AG’s of­fice to chal­lenge demo ban judg­ment

Chronicle (Zimbabwe) - - National News - Daniel Ne­mukuyu Harare Bu­reau

AT­TOR­NEY Gen­eral Ad­vo­cate Prince Machaya says his of­fice will soon chal­lenge the High Court de­ci­sion in­val­i­dat­ing Statu­tory In­stru­ment 101A of 2016.

Jus­tice Priscilla Chigumba on Wed­nes­day de­clared un­con­sti­tu­tional the SI used to ban street demon­stra­tions or pro­ces­sions from Septem­ber 2 to 16 this year.

She, how­ever, gave Gov­ern­ment up to seven days to rec­tify the de­fects in the le­gal in­stru­ment.

Ad­vo­cate Machaya said al­though the in­terim or­der of the court ef­fec­tively con­firmed the po­lice’s two-week ban on demon­stra­tions, his of­fice in­tended to chal­lenge the in­val­i­da­tion of the SI.

Be­tween now and Septem­ber 16 when the one week grace pe­riod ex­pires, no one is al­lowed to hold a demon­stra­tion in Harare Cen­tral Po­lice District.

The one week grace pe­riod coin­ci­den­tally ex­pires at the same time with the con­tested two-week po­lice ban.

Adv Machaya said: “We are not happy with the find­ing that SI 101A of 2016 is in­valid. We in­tend to ap­peal at an ap­pro­pri­ate time.

“We are also not happy with the dis­missal of our ob­jec­tions in the mat­ter and we are con­sid­er­ing to file an ap­peal soon.”

In an in­ter­view, Adv Machaya said the judge, in ar­riv­ing at her de­ci­sion, was mis­led into re­ly­ing on a sec­tion of Pub­lic Or­der and Se­cu­rity Act that was re­pealed a decade ago.

“Ref­er­ence to Sec­tion 12 of POSA in the court or­der is in­cor­rect be­cause that sec­tion was re­pealed some 10 years. Such ref­er­ence as it ap­pears on para­graphs 2 and 3 of the in­terim or­der is not help­ful at all.

“In pa­pers pre­pared by Mr Tendai Biti, Sec­tion 12 of POSA was cited sev­eral times and maybe the judge was mis­led into con­sid­er­ing it as a valid law,” said Adv Machaya.

One of the four pre­lim­i­nary ob­jec­tions dis­missed by the court was an ar­gu­ment that in terms of Sec­tion 27B of POSA, any chal­lenges against le­gal in­stru­ments mooted by lo­cal po­lice are heard by a mag­is­trate and not a judge.

“In terms of Sec­tion 27B, the ag­grieved party ap­proaches the mag­is­trates’ court and not the High Court. “We ar­gued that the High Court had no ju­ris­dic­tion to hear the case but that was dis­missed,” he said.

Adv Machaya showed The Her­ald a stamped copy of an af­fi­davit by Of­fi­cer Com­mand­ing Harare Po­lice District Chief Su­per­in­ten­dent New­bert Saun­yama putting to rest al­le­ga­tions that his of­fice had not filed the cru­cial doc­u­ment at the High Court.

How­ever, Adv Machaya said his of­fice de­cided not to use two other af­fi­davits that came from the po­lice be­cause they were not help­ful.

“Chief Su­per­in­ten­dent New­bert Saun­yama’s af­fi­davit was filed at the High Court on Septem­ber 7, as you can see.

“The other two af­fi­davits were to­tally un­help­ful and could not take our case any fur­ther. We ex­er­cised our dis­cre­tion not to use them,” said the AG.

Adv Machaya said there was no room for in­fil­tra­tion of his of­fice.

“The peo­ple we em­ploy here are pro­fes­sion­als who per­form their du­ties in terms of the law. There is no room or pos­si­bil­ity of in­fil­tra­tion by other forces,” he said.

Mr Jab­u­lani Phet­shu

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