CONSTITUTION WATCH 9/2020
[30th July 2020]
The Covid Lock-down and the Right to Protest
Trade unions, political groupings and civil society organisations have called on the public to take to the streets on the 31st July to protest against economic mismanagement and public corruption. Some of the calls for protests have been couched in intemperate language, and so have threats by members of the Government and ruling party to suppress any demonstrations forcibly. The main reason given by Government spokespersons for suppressing the demonstrations ‒ apart from alleging that the organisers are “terrorists” bent on forcible régime change ‒ is that demonstrations will breach the national lock-down and other measures introduced to combat the Covid-19 pandemic. The Minister of Justice, Legal and Parliamentary Affairs, for example, said in an interview:
“In March, the President announced a state of public emergency because of the corona virus (Covid-19) pandemic … The general feeling is that we must be extremely cautious and heed whatever medical advice we are given to help contain the spread of the lethal virus. Firstly, because of the need to control the disease, the movement of people will be restricted, … it's allowed in our Constitution and in all the democracies … Now you find certain individuals pursuing their agenda of demonstrating in the middle of the pandemic … I t is something that cannot be tolerated. Any lawful government worth its salt will not condone such behaviour … We will ensure that courts are there to deal with the violators of Covid-19 regulations, that they are prosecuted and sent to jail.”
In this Constitution Watch we shall look at how far the Government can legitimately restrict the right of people to demonstrate peacefully during the Covid-19 epidemic.
The first point to make is that, contrary to the claim by the Minister of Justice, a state of public emergency is in not force.
The President has power under section 113 of the Constitution to declare a state of public emergency, but he has to do it by proclamation in the Gazette and it must be approved by a two-thirds majority of the Senate and the National Assembly sitting together. The President has not published such a proclamation.
What happened is that on the 17th March the President declared in terms of the Civil Protection Act that a state of disaster existed in Zimbabwe because of the worldwide Covid-19 pandemic. Declarations of states of disaster give the Government very few powers, as explained in our Bill Watch 14/2020 of the 14th April [link], and in any event they last for only three months ‒ so the state of disaster is no longer in force.
Then on the 23rd March the Minister of Health and Child Care ‒ not the President ‒ published SI 77 of 2020, in which Covid-19 was declared to be a formidable epidemic disease for the purposes of the Public Health Act. This declaration gives the Minister ‒ again, not the President ‒ power to make far-reaching regulations under section 68 of the Act to deal with the disease. In our Bill Watch 14/2020 we outlined how far-reaching the regulations can be, but it is noteworthy that although the Act permits regulations to restrict the movement of persons and the convening of public gatherings, it does not specifically permit regulations to prohibit the holding of public demonstrations. Indeed, so important is the right to demonstrate, as we shall explain, that the Act could not prohibit them.
The Constitutional Right to Demonstrate
Section 59 of the Constitution provides that:
“Every person has the right to demonstrate and to present petitions, but these rights must be exercised peacefully.”
The right to demonstrate, together with freedom of expression guaranteed by section 61 of the Constitution, is one of the lynchpins of democracy because it allows groups of like-minded people to bring their views, even controversial views, to the attention of the public. It affords an additional avenue for people to express and propagate their opinions, apart from voting in elections or writing in the press. The right must not be limited or restricted lightly. This is laid down in section 86 of the Constitution, which allows fundamental rights to be limited by law, but only if the law is:
“fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom”.
A limitation on a fundamental right should not impose greater restrictions on the right than are necessary [that word again] to achieve the purpose of the limitation (section 86(2)(e) of the Constitution).
To be protected by the Constitution, demonstrations must be peaceful. This means they must not be violent, but it does not mean they must be entirely passive. All public demonstrations, other than those comprising one or two people, contain an implicit threat of violence. The fact that demonstrators obstruct the passage of pedestrians and vehicles does not make them violent even though pedestrians and drivers may fear that if they try to force their way through the demonstrators will turn violent. Nor does the fact that demonstrators shout slogans or create a loud noise make them violent even though people in the neighbourhood are disturbed by the noise. Disturbance, in other words, is not the same as violence. Finally, if a few demonstrators resort to violence while the majority remain peaceful, the demonstration by the majority remains protected by the Constitution.
It is helpful to look at international law here, because the Constitution must be interpreted in the light of treaties and conventions to which Zimbabwe is a party (section 46(1)(c) of the Constitution).
Zimbabwe is a party to the International Covenant on Civil and Political Rights [link], and article 21 provides:
“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”
In a comment on article 21 adopted by the UN Human Rights Committee on the 23rd July 2020 [link], the following points are made:
States parties to the Covenant have a duty to “respect and ensure” all the rights conferred by it. This means that States parties have certain positive duties to facilitate peaceful assemblies: for example they may have to block off streets, redirect traffic or provide security to allow demonstrations to take place.
The right to participate in an assembly or demonstration includes the right to organise it. So organisers must be protected and not harassed before the assembly or demonstration takes place.
The mere act of organising or participating in a demonstration must not be criminalised under anti-terrorism laws.
Restrictions on the right of assembly should be directed at facilitating the right rather than imposing disproportionate limitations on it. Prohibiting an assembly should be regarded as a measure of last resort.
Restrictions must not be used, explicitly or implicitly, to stifle political opposition to the Government or peaceful challenges to authority.
Failure to notify the police of an intended assembly does not render participation in the assembly unlawful and cannot be used as a reason for dispersing the assembly.
Assemblies may be prohibited on the ground of public health only in extreme cases where they pose a substantial risk to the public generally or the participants themselves.
Restrictions on the number of participants in an assembly can be imposed in the interests of public health, e.g. to ensure social distancing.
The fact that an assembly may provoke adverse reactions from some members of the public is not a sufficient ground to prohibit the assembly.
Violent acts committed by counter-demonstrators or by agents provocateurs cannot be attributed to demonstrators so as to render the demonstration non-peaceful.
Law enforcement officers should try to de-escalate tensions, and must exhaust non-violent means and give a warning before resorting to force to disperse or control assemblies. Any force must be legal, necessary and proportionate and those using force must be accountable. Firearms must never be used to disperse an assembly. All use of force must be recorded.
States parties have a duty to investigate effectively, impartially and in a timely manner any allegations of the unlawful use of force by law enforcement officers.
Governments should not block or hinder Internet connectivity in relation to peaceful assemblies. Any restrictions on the operation of information dissemination systems must conform with the tests for freedom of expression.
From what we have said it is quite clear that the Government is obliged by the Constitution and by its international obligations to permit demonstrations against corruption to go ahead tomorrow. This is so even though the Police may not have been notified of the demonstrations in terms of the Maintenance of Public Order Act. Any such notification would be a formality in any case because the security services are well aware of the planned demonstrations. The security services must do what they can to ensure that the demonstrations proceed peacefully. If violence occurs to such an extent that law and order is seriously endangered, then the security services must try to persuade the demonstrators to disperse and, only if that fails, may resort to minimum force to disperse them.
Demonstrators on the other hand must remain peaceful in order to be protected by section 58 of the Constitution. Because of the Covid-19 restrictions imposed under the Public Health Act, they should wear masks and maintain social distancing if possible. They should also, if possible, stay in groups of up to 50 people. Unless the threat to public health is really serious and immediate, however, the security services should not break up the demonstrations because some demonstrators fail to wear masks or keep one metre apart.
Only time will tell if any of this happens. The omens are not favourable.
Many people round the world have been celebrating the life of John Lewis, a distinguished American civil rights activist and friend of Martin Luther King. Let us remember his words: "When you see something that is not right, not fair, not just, you have to speak up. You have to say something; you have to do something." "Never ever be afraid to make some noise and get in good trouble, necessary trouble”