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Stendrick Zvorwadza

Daniel Nemukuyu Senior Court Reporter—
JUDGE President Justice George Chiweshe yesterday dismissed with costs three separate constitutional challenges by some pressure groups against the ban on demonstrations by the police in Harare, a development that will maintain peace in the city up to October 15. Justice Chiweshe, who heads the High Court bench, discharged with costs an earlier provisional order issued by Justice Priscilla Chigumba in favour of the pressure groups after finding fault with parts of the draft final order.

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The terminated provisional order, invalidated Statutory Instrument 101 A of 2016, which brought into effect the initial two-week ban on demonstrations in Harare’s Central Business District by the police in August.

Justice Chiweshe’s latest decision confirmed the validity of the police’s 30-day ban on demonstrations in Harare’s CBD, putting to rest contestations by pressure groups and political activists.

The Judge President threw out two urgent chamber applications by the Democratic Assembly for Restoration and Empowerment (DARE), Combined Harare Residents Association, National Electoral Reform Agenda (NERA), an activist Stendrick Zvorwadza and the Zimbabwe Divine Destiny.

The pressure groups were seeking to invalidate Statutory Instrument 245 of 2016 banning demonstrations in the city between September 16 and October 15 this year for public order reasons.

They contended that the notice was unconstitutional and that it ought to be quashed. In a comprehensive judgment that also took into account arguments by the pressure groups to have Justice Chigumba’s provisional order confirmed, the Judge President terminated his fellow judge’s temporary decision.

“I conclude therefore that this application cannot succeed.
“Accordingly, it is ordered as follows:

1 The application under case Number HC 9469/16 (DARE, NERA, Zvorwadza and CHRA) be and is hereby dismissed with costs.

2 The application under case number HC 9470/16 (Zimbabwe Divine Destiny) be and is hereby dismissed with costs.

3 The provisional order under case number HC8940/16 (by Justice Chigumba) be and is hereby discharged with costs.”

The JP ruled that the police acted lawfully and that Section 27 of the Public Order and Security Act (POSA) which brings limitations to the people’s right to demonstrate and petition was fair and justified.

“Taking all these factors and considerations into account, I am satisfied that based on a value judgment, the provisions of Section 27(1) of the Public Order and Se3curity Act satisfy the requirements set out under Section 86(1) of the Constitution, namely that the limitation it imposes on the right to demonstrate as enshrined under Section 59 of the Constitution is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.

“Accordingly, I would hold, as I hereby do, that Section 27(1) of POSA is not ultra vires the Constitution. It meets the requirements of constitutional validity,” ruled the Judge President. In determining the fairness and reasonable of the limitation imposed by POSA, the JP relied on value judgment.

“As already discussed, there is no special scientifically determinable yardstick for determining what is fair, reasonable, necessary and justifiable in a democratic society. “The court must arrive at a value judgment, taking into account all relevant factors of the case at hand.”

Discharging Justice Chigumba’s provisional order, Justice Chiweshe said he disagreed with various parts of the draft final order. “I am inclined to discharge that provisional order for the following reasons:

“Firstly, having now heard full arguments, I do not agree in principle with the import of paragraph (a), (b) and (c) of the draft final order. “My views on these issues have been canvassed in this judgment. Secondly, paragraph (a) seeks to saddle the first respondent personally with costs.

“There is no basis for doing so in view of my reluctance to confirm the provisional order. My sentiments in this regard apply equally with regards paragraph (e) where it is proposed without basis to award costs against third and fourth respondents.”

This means no demonstrations shall be held in Harare’s CBD up to October 15 this year. Attorney General Advocate Prince Machaya appeared in court in person to successfully argue the matter with the assistance of a director in charge of the Civil Division Mrs Fortune Chimbaru following criticism on the competence of the esteemed office of Government lawyers. Mr Tendai Biti and Advocate Fadzai Mahere represented the pressure groups.