DZAMARA & ORS V COMMISSIONER-GENERAL OF POLICE & ORS 2016 (2) ZLR 11 (H)

Flynote

Constitutional law: " Constitution of Zimbabwe 2013 " Declaration of C Rights " freedom of assembly and freedom to demonstrate (ss 58 & 59) " limitations which may be imposed (s 86) " limitations must meet test of proportionality

Practice and procedure: " application " urgent " grounds for " defence of D constitutional rights " not sufficient grounds for urgency

Headnote

The applicants had been holding an "indefinite" demonstration in Africa Unity Square in Harare, to continue until their grievances against the government were met. They were rounded up, assaulted and dispersed by police. They now made an urgent chamber application to interdict the police from violating their right to peacefully assemble and demonstrate and to be free of violence. They also sought a final order declaring the actions of the police unlawful. The court was requested to determine that the application be considered urgent.

The applicants based their claim for urgency on the fact that constitutional rights had been violated by the police, who had threatened to do so again if the demonstration was resumed. The police, as respondents, argued that the applicants had not shown that they had no other legal remedy, and they had been dispersed because they had resisted the arrest of some criminals hiding in their midst, thus threatening public safety. A continuous demonstration would also stretch the resources of the police. Furthermore, the applicants had contravened the law by not notifying the police of their demonstration.

The court considered the question of urgency in terms of rights as well as the permissible restrictions placed on those rights guaranteed by s 86 of the Constitution, and reflected in international human rights instruments. Anyone who violates rights must justify any restrictions in terms of s 86(2).

The dispersal of a lawful gathering, even one of which the police have not been notified, will be unlawful unless it meets the proportionality test: the nature and extent of interference must be balanced against the reason for interfering. The applicants would have to take account of the possibility for violence and disorder if they wish to hold a demonstration in a public meeting place and engage the police to ensure order.

The behaviour of the police in perpetrating violence has at times contributed to a lack of culture of peaceful demonstration, but in this case, the reasons for restriction of the right made the restriction justifiable, since they were aiming at reducing crime. The potential for health and safety problems justify the limitations on the rights, which passed the test of proportionality. The applicants also did not show why they could not use other avenues to present their grievances to Government.

In view of these conclusions, the matter was ruled not to be urgent and could be heard on the ordinary roll.