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