23 November 2018

Zimbabwe: No Constitution, Posa Conflict - Ag

Attorney — General Advocate Prince Machaya yesterday said there is no conflict between the Constitution of Zimbabwe and the Public Order and Security Act (POSA) in relation to the deployment of members of the Zimbabwe Defence Forces (ZDF) to assist police in the maintenance of law and order.

Adv Machaya said there was no need to amend POSA to make it explicit that the President of the country was the one empowered by the Constitution to deploy soldiers.

He said this while giving oral evidence before the Commission of Inquiry into the August 1 post-election violence that claimed six lives and left a trail of destruction in central Harare.

"My understanding of these provisions is that the two should be read in a complementary sense in that the Constitution is the supreme law of the land and POSA, being an Act of Parliament, should be read subject to the Constitution," said Adv Machaya.

"Perhaps it could be better phrased, but I do not think it's an issue of the provision of POSA requiring alignment of the Constitution."

Asked if he was of the view that there was no need to amend POSA, Adv Machaya said: "Yes, I believe so because the Minister of Defence being minister will always be aware of the provisions of the Constitution which stipulates how deployment of Defence Forces is carried out.

"So, there is not likely to be any confusion in his mind on the nature of authority that is required."

Section 213 of the Constitution provides that the President, as Commander-in-Chief of the defence forces, has power to authorise their deployment in support of the police in the maintenance of public order.

Section 37 of POSA stipulates that the Minister of Defence may authorise deployment of defence forces upon receiving request from the Minister of Home Affairs for the purposes of suppressing civil commotion or disturbances in any district.

Adv Machaya said if the provisions of POSA were read in isolation of the Constitution, they could give the impression that the Minister of Defence was the one who was the ultimate authority in the deployment of the defence forces for purposes of maintaining law and order within the country.

"A member of the public reading the Act independent of the Constitution will get the impression that a Minister of Defence is the person empowered to give the necessary authority for defence forces to be deployed for purposes of maintaining law and order," he said.

"The minister himself will be under no such misapprehension."

In an interview, Commission spokesperson Mr John Masuku yesterday said the commission had started working on the structure of the report.

He said the Commission was expecting MD-Alliance leader Mr Nelson Chamisa and MDC-Alliance deputy national chairperson Mr Tendai Biti to appear before it during the next hearing on Monday as they were expected to have been back in the country.

The Commission has received footage from some international journalists on what transpired on the fateful day, which is expected to assist it.

"We are very grateful to the international broadcasters as some of them have availed the footage of August, 1 2018 so the Commission is going to be assisted by that footage as they do the collating, as well as the analysis of what they have gathered," said Mr Masuku.

"The commissioners are going to determine whether they have got enough footage. The footage they got is the lengthy footage which shows sequences of events rather than edited versions which are mainly circulating on social media."

Zimbabwe Lawyers for Human Rights representative Mr Mordecai Pilate Mahlangu said his organisation had reservations on the independence of the Commission and made a failed bid to challenge the setting up of the seven-member body.

"We feel that there was no need for a Commission to deal with criminal acts," he said. "Perpetrators should have been prosecuted.

"People have the right to demonstrate although they should do it peacefully. Somebody should take responsibility for organising the demonstrations."

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