DZAMARA & ORS v COMMISSIONER-GENERAL OF
POLICE NO & ORS

HIGH COURT, HARARE

[Urgent Chamber Application HH 398-16]

June 27 and July 4, 2016

TSANGA J

Practice and procedure – Urgent chamber application – Urgency – What constitutes urgency in matters involving the exercise of constitutional rights to assemble and to demonstrate – Whether urgency is affected by non-compliance with provisions of the Public Order and Security Act [Chapter 11:17].

The applicants were arrested while in a demonstration at the Africa Unity Square in Harare. They had not complied with the provisions of the Public Order and Security Act [Chapter 11:17] that requires notice to be given to the police for processions, public demonstrations and public meetings. They filed an urgent chamber application seeking a provisional order interdicting the police from unlawfully interfering with their constitutional rights to freedom of assembly and to freedom to demonstrate. The respondents opposed the application and challenged, in limine, the urgency of the matter.

Held, that urgency in such matters hinges substantially on an appreciation of the constitutional value accorded to the right to assemble and the right to demonstrate alongside an understanding of the ambit of permissible restrictions. Where there are facts that justify restrictions permitted by the Constitution, the matter cannot be urgent. In this case, the failure of the applicants to give notice to the police impacted negatively on the urgency of their application. The matter was not urgent.

Cases cited:

Chidawu & Ors v Shah & Ors 2013 (1) ZLR 260 (S), referred to

Kambarami v Kambarami & Anor 2015 (1) ZLR 621 (H), referred to

Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (H), referred to

S v Moyo HB 84-15 (unreported), referred to

Legislation considered:

Constitution of Zimbabwe, 2013, ss 58 (1), 59, 86 (1), (2)

Criminal Law (Codification and Reform) Act [Chapter 9:23], s 184 (1)

Public Order and Security Act [Chapter 11:17], s 25

International conventions:

African Charter on Human and Peoples’ Rights, Art 11

International Covenant on Civil and Political Rights, A/53/40 (1998), Art 21

Universal Declaration on Human Rights, GA RES/217 [III] A (1948), Art 20

Article cited:

Harris P “The Right to Demonstrate” (2010) 2 UCL Human Rights Review 44 <https://www.ucl.ac.uk/human-rights/research/ucl-hrr/docs/hrreviewissue3/harris> accessed 1 December 2017

Book cited:

Greer S The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights (Council of Europe Publishing, Strasbourg, Human Rights Files No 17, 2000) <http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-17(2000).pdf> accessed 1 December 2017

KE Kadzere with E Mandevere, for the applicants

T Tabani with T Gurajena, for the respondents

TSANGA J:

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