Judgment No. CCZ 9/18
Civil Appeal No. CCZ 5/18
On 1 September 2016, the first respondent published a statutory instrument in terms
of which he, acting in his capacity as the regulating authority for the Harare Central Police
District, banned for a period of two weeks, the holding of any public processions or
demonstrations within the Harare Central Police District. In acting as he did, the first
respondent relied on the provisions of s 27 of POSA which in subs (1) provides:
“27 (1) If a regulating authority for any area believes on reasonable grounds that the
powers conferred by section 26 will not be sufficient to prevent public disorder being
occasioned by the holding of processions or public demonstrations or any class thereof
in the area or any part thereof, he may issue an order prohibiting, for a specified period
not exceeding one month, the holding of all public demonstrations or any class of public
demonstrations in the area or part thereof concerned.”
On 2 September 2016, a day after the publication of the Statutory Instrument, the
applicants approached the High Court at Harare on a certificate of urgency, seeking the
suspension of the statutory instrument pending the determination of, among other issues, the
constitutional validity of s 27 of POSA. The other challenges mounted by the applicants against
the ban are not germane to the question before this Court.
The respondents opposed the application. They contended, in the main, that
marches organised by the applicants in the past had not been peaceful and had led to the
destruction of property. It was their position that the statutory instrument under challenge was
published for the safety and security of the nation and was a fair and reasonable prohibition,
balancing the rights of the applicants to demonstrate against the rights of those citizens who
had lost their livelihood during the previous demonstrations.
On 23 September 2016, the High Court granted the provisional order sought
thereby suspending the operation of the ban. Part of the terms of the final order sought by the
applicants, to be confirmed on the return day, was the constitutional validity of s 27 of POSA.
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