MOPA Bill: Old wine in new bottle

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Chengetai Zvauya

Everyone knows the famous bible verse in Matthew about new wine being poured into old wineskins. It is always conveniently quoted. However nobody really goes further with the verse to talk about the consequences of such an action. The verse however is clear… ‘else the bottles break, and the wine runneth out, and the bottles perish’.

It is in this light that media practitioners and legal experts are raising the red flag about the Maintenance of Peace and Order Bill, which is one of the legal instruments that will replace the Public Order and Security Act (POSA).

MOPA is part of government’s plans to align laws with the Constitution.

The Bill was gazetted last month and is now set be tabled in Parliament for debate.

Legal expert Chris Mhike said while it was a step in the right direction that government now recognises the obnoxious nature of POSA, the “draft law is wholly unsatisfactory and is a remarkably inadequate solution to the flaws of POSA”.

“The proposed changes to POSA under MOPA are largely trivial and clerical.  For instance:  the term “Police Force” in POSA is changed to “Police Service” under MOPA; and MOPA revises the reference to “facsimile numbers” in POSA to now read as “cellphone and electronic mail numbers” under the proposed new law,” he said.

Mhike said MOPA Bill has failed to enhance the possibility of citizens enjoying civil liberties that are enshrined in the Constitution’s Bill of Rights.

“Nothing in MOPA seriously advances the right to personal security, freedom to demonstrate and petition, freedom of conscience, freedom of expression, or other pertinent rights and freedoms that are outlined in Chapter 4 of our Constitution,” he said.

“The fresh curtailment of freedoms in the vicinity of Parliament and courts of law, the introduction of civil liability in respect of convenors, and the requirement for people to carry identity documents, are also grotesque features of the proposed new law.  These proposed
provisions cannot be deemed to be reasonable in a truly democratic society.”

He said the MOPA Bill “needs to be extensively reviewed so that it aids the quest for the full attainment of relevant constitutional rights and freedoms”.

Legal and Parliamentary think tank Veritas said the provisions of the MOPA Bill were copied from POSA adding that all undemocratic features had been retained.

“For example, in clause 5 (8) of the Bill the police will still be entitled to ask political parties for lists of members or office-bearers who attend meetings of the parties’ committees or other structures. In clause 7 of the Bill, people will not be allowed to hold public gatherings without giving the police written notice: seven days’ notice in the case of processions and demonstrations and five days in the case of public meetings,” Veritas said in its analysis of
the Bill.

“As in section 25 of POSA, the notice will have to specify details such as ‘the exact and complete route’ of a procession or demonstration and ‘the number and types of vehicles, if any’, that are to take part in the procession. Anyone who fails to give notice will
be guilty of a criminal offence and liable to imprisonment for up to a year.”

Clause 12 of the Bill entails that if the police are not given notice of a gathering, the conveners will be civilly liable for any damage or injury occasioned by any public disorder or breach of the peace occurring at the gathering, Veritas said.

“This will be so even if the damage or injury was caused by counter-demonstrators or people who were not under the conveners’ control. The draft Bill is not new wine in an old bottle: it is the same old wine in the same old bottle with a new label stuck on it,”
the legal think-tank said.

Attorney-General Prince Machaya said the Bill was part of realigning legislation to the Constitution, adding that it will repeal POSA.

“In aligning POSA to the Constitution, we have to take out all its aspects that are inconsistent with the Constitution and add new material. In that respect, it was decided that POSA be renamed to MOPA Bill. The provisions in POSA that have found their way into the MOPA
Bill are consistent with the Constitution,” he said.

MDC Alliance legislator Innocent Gonese described the new MOPA Bill as a law which will face resistance  by opposition MPs when it comes to Parliament because “it is not progressive at all” and is a mere replica of POSA.

“There are no changes at all in this new Bill compared to POSA. Actually, the changes are just cosmetic and it is very similar to the previous law (POSA) because we will still have the same problems of criminalisation and abuse of people who fail to notify the police when
they engage in demonstrations or gatherings,” said Gonese who has in the past moved a private members’ Bill to amend POSA with no success.

“The police still have powers to prohibit meetings and this can be abused and I would describe the Bill as a regurgitation of POSA, except for that section 27 of POSA was struck down by the courts. Obviously from the opposition perspective, we will not be supporting
this Bill, but unfortunately, Zanu PF will use its numbers (majority) to vote for it.”

He said MOPA does not speak about repealing of POSA.

“It should have a clause that speaks about repealing POSA.” said Gonese.

He said the Constitution does not speak about applying to the police for people to hold public gatherings.

He said section 69 of the Constitution is very explicit concerning the rights of citizens and so the new Bill would also leave room for criminalisation and abuse of people by the police.

The removal of provisions of Section 27 of POSA that required people to move around with ID documents or risk arrest and detention will provide relief to citizens.

Clause 14 of the Bill states that if a person cannot produce his or her identity document immediately upon being asked for it by a police officer, he or she must be given up to seven days within which to produce it at a police station, failing which he or she is guilty of
an offence.

The clause is intended to bring the law into line with a Supreme Court judgment delivered in 1997.

In a departure from POSA, whose Section 27 provided for temporary bans of demonstrations, the new Bill has omitted those in line with a previous Constitutional Court ruling which deemed the bans unconstitutional.

Under Clause 8 of the Bill, police have to notify organisers of processions or demonstration within three days of receiving the convenor’s notice that the demonstration or procession can go ahead if the regulatory authorities have no problem with it. Previously under Section 26 of POSA there was no time-frame thereby keeping convenors in the dark.

The Bill provides mechanisms to ensure maintenance of peace and order during demonstrations or any public gatherings, among other provisions.

Government’s critics have often cited POSA as a draconian law meant to curtail citizens’ freedoms.