JUSTICE IN ZIMBABWE 115 ____________________________________________________________________ The allegations and evidence of the allegations was entirely specious. The main basis of the charge against the President of THE LAW SOCIETY was that he had organised a meeting on 4 March 2002 to plan “peaceful” “mass action” in support of the MDC and at this meeting it was agreed that the MDC would cease reconciliation talks with ZANU (PF). This was a patently false allegation. On 4 March 2002 the Presidential elections had not yet been held. The reconciliation talks between MDC and ZANU (PF) only commenced some time after the election and mass action only started to be planned after the election. In any event the planning of “peaceful” mass action is not a criminal offence. Planning mass action can only constitute an offence in terms of s 5 of the Public Order and Security Act if the mass action is “accompanied by physical force or violence or the threat thereof.” This section does not criminalise the organising of peaceful mass action. Indeed it could not criminalise peaceful mass action as this would violate the fundamental right to demonstrate peacefully protected by the freedom of expression and association clauses in the Constitution. (ss 20 and 21 of the Constitution.) The two men emphatically denied that they had written the two letters that formed the basis of the charge and prima facie the letters were of highly questionable authenticity. There were numerous indications that they were crude forgeries and that their contents were completely false, yet the judge stated that it was “not possible to say with certainty that the letters are fraudulent or otherwise. It is only possible if there is a full inquiry into the matter.” The point was surely not whether it could be said with certainty that the letters were fraudulent; the point is whether the police could have formed a reasonable suspicion of the commission of a criminal offence, given the improbability of the allegations against the unlikelihood of their having authored the letters. Furthermore, if — as suggested above — the conduct of which the two men were suspected did not amount to a criminal offence, the police cannot be said to have had a reasonable suspicion that they had committed an offence: compare R v Nkomo & Ors 1963 R & N 572; 1963 (4) SA 166 (SR). Even if it could be said that there was a reasonable suspicion of the commission of a specific offence, the question still arises as to whether it was necessary to arrest and later to continue to detain the men. The case of Muzondo v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S) lays down that the police have a discretion whether or not to arrest and must exercise this discretion reasonably. Considerations to be taken into account are factors such as whether the suspect may abscond, whether he may