Worlds Apart: Conflicting narratives on the right to protest By G. Feltoe, G. Linington and F. Mahere Case Notes on 1. Democratic Assembly for Restoration and Empowerment (DARE) & Ors v The Commissioner of Police & Ors HH-554-2016 2. Democratic Assembly for Restoration and Empowerment (DARE) & Ors v The Commissioner of Police & Ors; Zimbabwe Divine Destiny v Sauyama & Ors HH-5892016 Introduction On 1 September 2016 the police officer commanding the Harare district issued a notice in terms of section 27(1) of the Public Order and Security Act [Chapter 11:07] (POSA) which prohibited for two weeks the holding of all public processions and demonstrations in the Central Business District of Harare. This notice was published in the Government Gazette as Statutory Instrument 101A of 2016. This case note deals primarily with the issue of whether section 27 of the Public Order and Security Act [Chapter 11.17] curtails the constitutional right to protest peacefully provided for in section 59 of the Constitution to an extent that is not reasonably justifiable in a democratic society. It deals only briefly with other issues arising from the processes used by the police when issuing the order. Differing perspectives in Zimbabwe on the right to engage in public demonstrations “Human Rights Commission statement torches storm” was the headline in the Herald newspaper on 20 August 2016. What had the Commission said that had allegedly torched this storm? All the Commission had done was to issue a temperate statement about the constitutional right to peaceful protest and the duty of the police force not to violate this right. The Commission’s statement highlighted the constitutional provision in section 219 of the Constitution which imposes on the police the duty to protect people and enforce the law without fear or favour. The police, it said, had a duty to facilitate the conduct of undisturbed peaceful demonstrations and petitions but instead had used the excuse of security concerns to harass demonstrators and non-demonstrators alike. The Commission went on to express great concern about the recent violent conduct on the part of the police. It pointed out that it had received complaints of alleged police brutality which had caused injuries to some innocent persons including minors. It called for the prosecution of such human rights violators and encouraged complainants to make reports to the Commission. It also exhorted demonstrators to exercise their rights in a peaceful manner. The statement ended by urging the police and the respective arms of the Executive to ensure that citizens are permitted to demonstrate peacefully and utilize constructive dialogue to address genuine concerns This statement was roundly condemned by the Herald in an editorial on 29 August 2016. The editorial quoted unnamed “analysts” who said that the Commission was acting like an armchair critic by failing to appreciate the situation on the ground. It accused the Commission of being partisan and of pushing the interests of opposition political parties. It pointed to the injury to persons, including police officers, and destruction of property caused in previous demonstrations. The editorial said that police were simply doing their duty by responding to the situation and protecting people against such violence. It alleged that the

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