Today has been a great day for human rights and judicial independence in Zimbabwe. Citizens took the government to court challenging SI 101A of 2016, a decree banning demonstrations in central Harare. After a slight delay due to a postponement two days before, Justice Chigumba ruled in favour of the citizens.
In her judgment, she also took the opportunity to defend the independence of the judiciary, correctly pointing out that judicial authority derives from the citizens. The judgment was remarkable not so much on account of its substance – no reasonable judge could have possibly approved of the decree – but because it was made against the background of a threat made less than a week before, by President Mugabe who warned judges against making orders permitting citizens’ demonstrations.
Most people were appalled by President Mugabe’s comments, concerned that he was unduly interfering with the judiciary and violating the constitutional principle of separation of powers. The fear among citizens was that the judge handling the matter would be cowed into submission. They were concerned that at best she might buy time for the government, through postponements or reserving judgment or at worst rule in favour of the government, however absurd that judgment would be. Zimbabweans have grown accustomed to some bizarre judgments from the courts and a judgment in the same genre would have been hardly surprising. The burst of celebration among Zimbabweans when it was announced was not so much because of the positive judgment, but that the judge had mustered the courage to deliver it given the circumstances.
But now that the euphoria of unusual success is settling, it’s important to exercise sober judgment.
Here, I remind fellow citizens of the cautionary approach I have advised in the past: Whenever you are dealing with ZANU PF, you must place yourself in their shoes and ask what you would do if you were ZANU PF faced with the same circumstances. It is important to wear the ZANU PF hat and think like them in order to anticipate what they might do. It is important to imagine the worst things they might do, because most likely, that’s exactly what they will do. In this way, politics is not unlike a game of chess or draught or even a game of cards. You have to anticipate the opponent’s next move before you play yours in order to counter it in advance. You can’t be reckless with your moves, attacking without guarding the defence. A football team that attacks and leaves open gaps behind becomes vulnerable. In this case, citizens must avoid the urge to rush spurred by the excitement of victory.
This political struggle, like all else in life, is a war – it has many battles. What was won today is merely a battle. There will be many more to come. The war continues and already ZANU PF is plotting the next move. It’s a party that does not take defeat lightly. Remember what happened after the constitutional referendum in 2000? As people celebrated, ZANU PF was already in the field making a counter-move that would reverse the gains made by the citizens and the opposition. They clawed back at the June 2000 parliamentary elections.
What then could ZANU PF be thinking of doing after this latest setback?
One thing for sure is, it’s not writing congratulatory notes to the citizens and the opposition. It’s plotting a response.
State of Public Emergency?
The most drastic response would be to suspend the Constitution and the fundamental rights it guarantees by declaring a State of Public Emergency. Under section 116 of the Constitution, the President is allowed to declare a State of Public Emergency in the whole of or in any part of Zimbabwe. Under section 87, the government would have the power under a State of Public Emergency to enact legislation to place more limitations on constitutional rights. The only rights that are exempt from such limitations are the absolute rights listed under section 86(3), such as freedom from torture and the right to human dignity. However, other rights such as the right to demonstrate and freedom of assembly and association may be limited.
This option is available, particularly because it can be declared for a portion of the country, which means is can be declared in central Harare alone. The only thing that might hold them back is that declaring a State of Public Emergency is such a drastic measure which cannot be taken lightly. Not only will it be an acknowledgement of failure, it will also, rather embarrassingly, be an admission that the country is in a serious crisis, something which the government has so far refused to accept. Declaring a State of Public Emergency can also be challenged in court, as would laws made under it. This could cause further embarrassment. My suspicion is that if there are other less drastic measures, they will avoid this one for the time being.
Demonstrations tax?
Higher education Minister, Professor Jonathan Moyo gave a hint of another option which they are probably considering: the absurd measure to impose a surety requirement on demonstrators. This would mean anyone wishing to demonstrate would be required to pay some security in advance, presumably to pay for any damage that might be caused if violence erupts. It is an absurd proposition, which amounts to imposing a tax on exercising constitutional rights. It would also discriminate against the poor, who cannot afford to pay security. It would result in a situation where constitutional rights would only be reserved for the wealthy who by comparison probably have less cause to exercise freedoms such as the right to demonstrate.
Further, this would be a new limitation on constitutional rights which cannot possibly qualify as fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom under section 86(2) of the Constitution. Even if the idea is to prevent violence, there must be other less drastic and discriminatory remedies to achieve the same objective than imposing a financial tax on constitutional rights. It may have been Moyo’s personal opinion, but I wouldn’t be surprised if they were considering such a measure. As the decree banning demonstrations in Harare showed, ZANU PF is capable of doing the most absurd measures, even if it is to stretch the limits of the law.
Issue a new Statutory Instrument?
ZANU PF might decide to re-issue the SI 101A of 2016 but through the Minister of Home Affairs. This is because they think its only fault is that it was issued by a police officer whom the court has declared had no authority to do so. However, they ignore the elementary rule in section 134(b) that subsidiary legislation cannot limit or infringe upon rights guaranteed under the Constitution. SI 101A or any similar subsidiary legislation would be similarly deficient to the extent that it limits a number of rights guaranteed under the Constitution. ZANU PF thinks SI 101A of 2016 only limited the right to demonstrate, but they have not applied their mind to the broad range of rights which is abrogates. Whether issued by the Minister of Home Affairs or by the President, SI 101A OF 2016 or its equivalent would suffer the same fate.
Pseudo-demonstrators?
Another, more likely strategy is to infiltrate peaceful citizens’ demonstrations and cause enough mayhem to justify banning future demonstrations and possibly to deploy the military, without necessarily declaring a State of Public Emergency. The Chronicle newspaper, the Bulawayo-based state daily carried an ominous story this week warning that graduates of the National Youth Service would be deployed “to deal with violent protestors.” This is effectively a militia, which does not fall within the structures of the national security services as provided for under section 207 of the Constitution. The Chronicle’s warning brought a reminder of the Fifth Brigade, a crack military unit which carried out Operation Gukurahundi which killed at least 20,000 civilians in Matabeleland and Midlands. It operated outside the formal military strictures.
The Report on the Gukurahundi atrocities compiled by the Catholic Commission for Justice and Peace in Zimbabwe shows that government deployed “pseudo-dissidents” in the affected regions to create the impression of dissident activity. These pseudo-dissidents, who were in fact government agents, committed atrocities posing as dissidents. The government then used these murders by pseudo-dissidents as justification for its brutal intervention in the regions. A similar strategy is likely to be deployed during citizens’ demonstrations, with “pseudo-demonstrators” being deployed among peaceful demonstrators to cause destruction of property and to harm innocent citizens. This will not only draw condemnation of the demonstrators but it will also be used to shame the courts. It will also be used to justify a more serious ban on demonstrations or a serious clampdown on demonstrators by arresting the leaders on account of violence.
Appreciating these possibilities is important because it helps organisers of future demonstrations to ensure there are proper system and controls to guard against them. It’s probably too early and premature for a State of Public Emergency. The proposal of demanding security from demonstrators is absurd and unconstitutional. But the deployment of pseudo-demonstrators to cause violence and justify a longer ban and a heavy clampdown on leaders is the most probable. It is something ZANU PF is likely to do, and I suspect they will do it. They might even use pseudo-demonstrators without having to infiltrate peaceful demonstrations. It is important for the citizens’ movement and opposition parties and coalitions to plan whatever next move they make with this in mind.
waMagaisa
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