Background Statement on the Public Order and Security Bill before the Zimbabwean Parliament

December 19, 2001

Human Rights First considers that several provisions of proposed legislation presently being pushed through the Zimbabwean Parliament violate fundamental human rights and freedoms protected by international law and the Constitution of Zimbabwe. The Public Order and Security Bill, 2001, published on December 14 in the official government gazette, has been introduced into Parliament by the government of President Robert Mugabe. The Parliament remains dominated by the ruling Zanu-PF party, although the main opposition party, the Movement for Democratic Change (MDC) has gained increasing public support. The Bill has been introduced at a critical time for Zimbabwe, where, according to the Constitution, presidential elections must be held before the end of March 2002. The provisions of the new Bill appear designed to mute criticism of the government, and of the President, in the run up to the elections. In recent weeks, President Mugabe has launched scathing attacks on the MDC, there has been significant political violence, and attacks on and intimidation of opposition leaders, journalists and other government critics have increased to a level that has attracted international condemnation.

The Public Order and Security Bill is designed to amend three existing statutes and to replace the Law and Order (Maintenance) Act. In a memorandum accompanying the Bill, it is stated that its provisions are intended to “protect public order and security in Zimbabwe while paying regard to the fundamental freedoms of assembly, association and expression laid down in Chapter III of the Constitution.” In addition to the detailed constitutional provisions on freedom of expression, assembly and association, Zimbabwe is also bound by the International Covenant on Civil and Political Rights (ICCPR), since its accession to that treaty in 1991, and the African Charter on Human and Peoples’ Rights. Human Rights First believes that the terms of the Bill do not strike an appropriate balance between respect for basic rights the need to maintain public order and, instead, breach the standards contained in articles 19, 21 and 25 of the ICCPR, articles 9, 11 and 13 of the African Charter, and article 11 of the Constitution.

The following clauses of the Bill are of particular concern:

• Clause 5, which renders “coercing or attempting to coerce the Government” a criminal offence, punishable by imprisonment for up to twenty years. In the same clause, “coercing” is defined to include “constraining, compelling or restraining” through “civil disobedience or resistance to any law, whether such resistance is active or passive.” Anyone who engages in, advocates or organizes acts of civil disobedience, or threatens to do so, may be subject to prosecution under this clause.
• Clause 15, which criminalizes “publishing or communicating false statements prejudicial to the State.” A person may be fined or imprisoned for up to five years for publishing a false statement which carries the risk of promoting public disorder, or undermining public confidence in the police, armed forces, or prison services.
• Clause 16, making it an offence to make a public statement with the intention to, or knowing there is a risk of “undermining the authority of or insulting” the President. This prohibition includes statements likely to engender “feelings of hostility towards” the President, cause “hatred, contempt or ridicule” of the President, or any “abusive, indecent, obscene or false statement” about him personally, or his office.
• Clauses 23-31, regulating the organization and conduct of public gatherings. By these provisions, a senior police officer is designated as a “regulating authority” and given broad powers to issue directions concerning a public gathering, to disperse a gathering (using “reasonable force” if necessary), to prohibit a gathering, or even to prohibit all public gatherings in an area for up to three months.

These provisions contain unjustifiably broad measures of prior restraint. Their effect will be to muzzle legitimate criticism of the government, prevent individuals and organizations from gathering together for peaceful political demonstrations or rallies, and put all persons who object to government policies and practices at risk of prosecution, should they seek to engage in, advocate or organize acts of peaceful civil disobedience.

If passed into law, the Bill would have a particularly damaging impact on the legitimate activities of human rights defenders, whose work exposing violations of human rights by government agents or officials might easily fall into the category of “undermining public confidence” in the security forces, or of “undermining the authority of the President.” Article 6(c) of the United Nations Declaration on Human Rights Defenders provides that everyone has the right, individually and in association with others “to study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters.”

The Human Rights Committee, which monitors the implementation of the ICCPR in all States parties to the Covenant, has recognised the crucial importance of the rights to freedom of expression, association and assembly in any democratic society. In its General Comment to article 25 of the ICCPR (on the right of all citizens to take part in the conduct of public affairs, to vote and be elected, and to have equal access to public service), the Committee states that:

“In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. It requires the full enjoyment and respect for the rights guaranteed in articles 19, 21 and 22 of the Covenant, including freedom to engage in political activity individually or through political parties and other organizations, freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticize and oppose, to publish political material, to campaign for election and to advertise political ideas.”

Likewise, in several complaints brought through the mechanism contained in Optional Protocol I to the ICCPR, the Committee has emphasised that, “the freedoms of information and of expression are cornerstones in any free and democratic society. It is in the essence of such societies that its citizens must be allowed to inform themselves about alternatives to the political system/parties in power, and that they may criticize or openly and publicly evaluate their Governments without fear of interference or punishment, within the limits set by article 19, paragraph 3.” (See Adimayo M. Aduayom, Sofianou T. Diasso and Yawo S. Dobou v. Togo, Communications 422/1990, 423/1990, 424/1990.) The Committee has also emphasised that restrictions on freedom of expression must meet a strict test of justification (See, e.g. Tae Hoon Park v. Republic of Korea, Communication 628/1995).

Particularly in the run up to the 2002 presidential elections, it is vital that all persons in Zimbabwe are able to engage in a free political debate and to express their views concerning the government and its policies. Members of the press, opposition candidates and leaders, human rights defenders and organizations, all must be able to contribute to the democratic process without fear of repercussions. Human Rights First has already expressed its condemnation of recent physical attacks and threats against human rights activists and political leaders in Zimbabwe (See Media Alert of November 16, 2001) and has emphasized the important role of such individuals and organizations in creating a functioning society based on respect for the rule of law. The new Public Order and Security Bill further restricts the ability of those who advocate democratic change and progress towards increasing respect for human rights to make their voices heard.

Human Rights First condemns Zimbabwean Public Order and Security Bill