Court savages govt's protests ban

HARARE - In a major victory for Zimbabwe’s fledgling democracy, a High Court judge — Justice Priscillah Chigumba — yesterday struck down a two-week ban on public protests in Harare that was issued by the government last week, in the wake of growing civil unrest in the country.

Speaking to the media soon after the ruling, lawyer and prominent opposition figure, Tendai Biti, paid tribute to Chigumba saying she had issued “a brave judgment that asserts the independence of the courts”.

“The judgement is a very brave judgement. We are very proud that the court recognised the power it has (and) importantly that courts will adjudicate matters without fear and favour,” he said in apparent reference to the threats to the judiciary by Mugabe last weekend.

Yesterday’s ruling was made as Zimbabwe’s economic woes continue to deepen, with cash shortages worsening by the day as the Reserve Bank of Zimbabwe (RBZ) prepares to introduce the much-disliked bond notes next month.

“After hearing submissions from both counsel ... I find that the conduct of the respondents (the police) in publishing Statutory Instrument 101A of 2016 (which banned the protests) in the Government Gazette on the 1st of September 2016 did not promote efficient administration justice.

“I find that the applicants’ (pro-democracy groups and opposition parties) right to lawful, prompt, efficient, reasonable and proportionate administrative conduct was violated. Respondents’ conduct was not impartial, reasonable or substantively fair. I say so because the procedure set out in Section 27 of Posa was not followed.

“Neither the first, second, third respondents or fourth respondents (officer commanding police Harare Central District Newbert Saunyama, commissioner-general of police Augustine Chihuri and Home Affairs minister Ignatius Chombo) have any power in terms of Posa, or the Police Act or the Constitution to make a Statutory Instrument,” Chigumba ruled.

“Posa does not give the respondents power to make Statutory Instruments. SI 101A of 2016 is not protected by the presumption of validity or doctrine of legality because it is not an Act of Parliament.

“The decision to issue it has no factual basis on these papers which are before me as I have alluded. Having made a finding that SI 101A was made unprocedurally, we must determine its fate in terms of the relief sought . . . I declare that SI 101A of 2016 is invalid to the extent of its inconsistency with the Constitution,” she added.

The ruling followed the move by stretched police last Thursday to invoke Statutory SI 101A, to ban demonstrations in central Harare for two weeks.

This came on the eve of a mega demonstration that had been planned by 18 opposition parties to press for much-needed electoral reforms ahead of Zimbabwe’s eagerly-anticipated 2018 national elections.

A week earlier, the High Court had allowed the same 18 parties to hold their demonstration, which was ruthlessly crushed by law enforcement agents.

Even after the High Court had ruled then that the protest march could go ahead, riot police — backed by armoured trucks and water cannons — indiscriminately fired volleys of teargas at all and sundry, battering and chasing groups of determined opposition supporters.

And speaking on Saturday, a few hours after he arrived back in the country from Dubai — where he had spent three days amid swirling rumours regarding his health — Mugabe told Zanu PF youths that courts were being negligent by allowing demonstrations to go ahead.

“Of course, we can’t allow them (the opposition) to continue with these violent demonstrations unimpeded. Enough is enough,” the increasingly frail nonagenarian thundered.

His attack on the judiciary was widely interpreted as trying to force judges from allowing demonstrations to take place, as these have seriously unnerved the government.

The attack evoked bad memories from 2001 when the government purged white judges from the Bench, including the then chief justice Anthony Gubbay, for ruling against Zimbabwe’s chaotic land reform programme.

But yesterday Chigumba appeared to have the answers ready when she addressed the issue of judges’ independence.

“Before I come to the relief that I am going to grant to the applicants, I wish to say the following. Judicial authority derives from the people of Zimbabwe and is vested in courts in terms of Section 162 of the Constitution.

“Section 164 of the Constitution states that the courts are independent and are subject to this Constitution and to the law which they must apply impartially, expeditiously and without fear, favour or prejudice.

“Independence, impartiality and effectiveness of the courts are central to the rule of law and to democratic governance. The principle which guides the judiciary is set out in Section 165 of the Constitution. The Constitution stipulates that the role of the court is paramount . . .  in safeguarding rule of law in a democratic society,” Chigumba asserted.

She then went on to suspend the demo ban for seven days, to give authorities time to correct the required procedures — adding that future notifications for gatherings must be dealt with in terms of the Constitution.

Pro-democracy and rights groups hailed the High Court decision which they said was a major victory for the judiciary and ordinary Zimbabweans.

“This is a landmark High Court ruling in as far as it asserts judiciary independence and resists undue political pressure from president Mugabe who recently launched into a tirade meant to undermine the integrity and independence of the judiciary.

“The High Court judgment that the purported police ban is unconstitutional is an island of defiance in a sea of political repression. We hope this will be a lesson to Mugabe and his government to stop interfering with the judiciary.

“But there is a risk that this solid judgment could trigger further attacks from an unrepentant executive,” Human Rights Watch senior researcher for southern Africa, Dewa Mavhinga, told the Daily News last night.

MDC spokesperson Obert Gutu also said the judgment was “a relief” to opposition parties and human rights defenders who had for long been “subjected to repression” by Mugabe and Zanu PF.

“It’s a victory for the rule of law, a victory for constitutionalism. This ruling should send a very clear and unequivocal message to the beleaguered Zanu PF regime that the people’s fundamental human rights and liberties are sacrosanct.

“As the MDC, we are very happy and excited about this ruling. Going forward, we hope that the ZRP shall not continue to conduct themselves like Adolf Hitler’s Gestapo. The ZRP are not a law unto themselves,” Gutu told the Daily News.

Mugabe, in power since 1980 when Zimbabwe gained its independence from Britain, is facing the biggest challenge to his 36 year-rule which critics say has been catastrophic.

Zimbabwe is currently deep in the throes of a debilitating economic crisis which has given rise to waves of protests and riots by ordinary citizens who blame public sector corruption and the government’s policies for the current rot.

In July riots broke out at the border town of Beitbridge when angry traders protested against the government’s ill-advised decision to ban the importation of basic consumer goods.

More than 70 people were arrested in the aftermath of those riots which destroyed property worth hundreds of thousands of dollars, including the burning of a warehouse belonging to the Zimbabwe Revenue Authority.

The riots later spread to Harare where police once again used force to break a demonstration called by commuter omnibus drivers and touts to protest too many police roadblocks on the roads, which they claimed had become extortionate.

Mugabe is also struggling to key his Zanu PF party together as infighting has created ructions which saw the war veterans serving him with divorce papers in July.

War vets have been one of Mugabe’s and Zanu PF’s strongest pillars of support over the past five decades, playing particularly significant roles to keep the nonagenarian in power in the hotly-disputed 2000 and 2008 elections which were both marred by serious violence and the murder of hundreds of opposition supporters.

Comments (17)

This is all smoke screen just like elections which are never free nor fair. They allow you these small victories so that when tomorrow you cry that the judiciary is compromised and partisan then can rubbish your claims. Mr Mugabe is an incompetent administrator but when it comes to political survival he plays the long game. Watch and see.

Galore - 8 September 2016

Mugabe must be impeached as a matter of urgency. He has a lot of charges of incompetency to answer including the disappearance of $15 billion of diamond proceeds and privatisation of Air Zimbabwe for own use to Singapore. Zim MPs are you sleeping on the job DAY & NIGHT.

Peter Pencil - 8 September 2016

I don't think we should underestimate the significance of the judgement and the professionalism and bravery demonstrated by upholding the rule of law and constitutionalism despite being subjected political harassment. When the history of Zimbabwe is written lets not forget some of the unsung heroes in the judiciary who could have otherwise rolled over but chose to remain steadfast and refused to compromise their principles and objectivity. A tear rolled down my cheek when I read the judgement my sister. I salute you for making me proud to be a Zimbabwean and appreciate that there are people like you out there whose love and devotion to their country shines so brightly. You gave many the hope and courage that there is an opportunity upon which we can build a free and prosperous platform for our children and future generations. God Bless you and God bless the people of Zimbabwe.

jaikolu maison - 8 September 2016

This demonstration ban victory, doesn't feel anything like a triumph to me, coz though the ban may be rubbished by the courts, when the next appointed date for a demonstration comes, this gvt will either deny it clearance to go ahead or the police will do what they do best these days. Tear gas and water canons will be the order of the event

Klass - 8 September 2016

the judgement clearly says the police have no authority to issue a statutory instrument,therefore the minister of home affairs who has the authoruty must invoke the statutory instrument and ban this thuggish behaviour in the CBD period

truth - 8 September 2016

I salute you Hon Justice Chigumba. By being bold and decisive you have made it clear to the world that not everyone is eating from RGM's paim, there are others who are thinking and preparing for life and career AFTER the departure of this dictator.

Sagitarr - 8 September 2016

The misplaced belief in the reliance on military might and brute force to govern is unsustainable in the long run. On the other hand, the cumulative efforts of registering public disapproval with governance will remain civil , democratic and effective means of keeping dictators and repressive elites in check as well as bringing them to account for their excesses.

Jaikolu Maison - 8 September 2016

Zimbabwe is full of bold courageous people. We salute the judge. It shows we still have some in the mould of Justice Sandura. It also shows we have among us men of courage similar in stature to Edgar Tekere, Edison Zvobgo. I can sleep well knowing that after the decay of the current dictatorship there is hope of Zimbabwe. The people will win!

Viva Unidade - 8 September 2016

Inonzi fare fare tindike. Opposition beware zanu will strike again.

Tari - 8 September 2016

This judge supports the opposition and is being paid by western imperialists. I say no to these so called demonstrations which are clearly designed to destroy the national liberation party of Cde Robert Mugabe who has sacrificed so much to bring an end British rule and white settler domination on behalf of of the toiling masses. This judge must go and practice her profession in Britain where she belongs. If she wants to continue with her nonsense then she must be arrested.

Julien Moore - 8 September 2016

Thank you Judge Chigumba. Thank you for being politically impartial and for being so professional.

david taylor - 8 September 2016

Galore is right, the same happened in the 2013 court dramas.

Mlovshto - 8 September 2016

An incompetent Mugabe has always been the enemy of the truth. All elections are a lie and according to him, judges do not exist in the country. Mugabe and his friends have cases to answer before the judges, thus they would rather the system died.

Lunkneed Jije - 9 September 2016

Thank you Judge Chigumba. Another nail in the dictator's coffin as his constitutional manipulation is exposed. This is very significant after Mugabe's irresponsible utterances against the judiciary on his visit to Zimbabwe from Dubai. What other rights of the suffering Zimbabweans have been violated constitutionally with the hastily formulated SI this SI that. Justice will prevail in Zimbabwe. The dictator and his minions cannot rig truth.

Daniel5 - 9 September 2016

I do wellcome a brave and bold decision from Justice Priscillah Chigumba by striking off a two-week ban on public protests in Harare against the favours of an opressive governenment. This can mean a lot as the strugle continues for the freedom of the masses. However I would be much happier to simillar appropriate ruling to the current biased police who are clearly seen taking the law in their hands. They are applying brutality where it is needless such as beating defenceless innocent civilians. Are they going to be let free and continue do the same thing in the forth coming peaceful demonstrations. Surely the rule of law should be found to be taking its course in such circumstances. Our constitutional rights should be upheld and no one should be above the law. The current series of civil unrest in Zimbabwe is a justfiable cause which if concluded democratically is going to benefit everyone including the police, the army and even those few government officials are are currently enjoying the fruits of the whole country - Zimbabwe.I applaude the judiciary stand to support constitutionalism. Please shame the devil and bring light as to what the law means to the livelyhood of every citizen.

Pythias Makonese - 9 September 2016

The nation salutes you Judge Chigumba for possessing the courage to do what is fair, just and right.

Mbewa - 9 September 2016

I do not see anything to celebrate. The judge just did what judges are exactly expected to do. Same applies to all civil servants police and army included do not do your work to please ZANU PF follow the constitution.

mwenjemwenje - 9 September 2016

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