Democratic Assembly for Restoration & Empowerment (DARE) and Others v Newbert Saunyama N.O and Others; Zimbabwe Divine Destiny v Newbert Saunyama and Others

On 1 September 2016, the 1st respondent (police officer commanding Harare District) issued a notice under section 27(1) of the Public Order and Security Act (POSA) banning all public processions and demonstrations in Harare CBD for two weeks, published as SI 101A of 2016. The applicants challenged this in HC 8940/16, and Chigumba J granted a provisional order suspending the ban. Following this, the 1st respondent issued Government Notice No. 239A of 2016 proclaiming his intention to ban demonstrations for one month (16 September to 15 October 2016), which was brought into effect by Government Notice No. 245 of 2016 published on 16 September 2016. The applicants filed urgent applications under HC 9469/16 and HC 9470/16 challenging the validity of the new ban. Zimbabwe Divine Destiny, a faith-based organization, also challenged the ban, claiming exemption from POSA as a religious organization intending to march to Parliament to petition against police brutality. All three applications were consolidated and heard together.

• Whether section 27(1) of POSA is constitutional and complies with section 86 of the Constitution of Zimbabwe
• Whether section 27(1) constitutes a permissible limitation on the right to demonstrate under section 59 of the Constitution
• Whether the limitation imposed by section 27(1) is fair, reasonable, necessary and justifiable in a democratic society
• Whether the 1st respondent acted lawfully and within the provisions of POSA in issuing the temporary ban on demonstrations
• Whether the 1st respondent was required to follow the consultation procedure outlined in section 27(2) of POSA
• Whether the notices banning demonstrations were ultra vires section 134 of the Constitution
• Whether faith-based organizations are exempt from POSA when engaging in political demonstrations
• Whether the High Court had jurisdiction to hear the matter given the appeal mechanism in section 27B of POSA

1. The application under case number HC 9469/16 is dismissed with costs. 2. The application under case number HC 9470/16 is dismissed with costs. 3. The provisional order under case number HC 8940/16 is discharged with costs.

Section 27(1) of the Public Order and Security Act is constitutional and not ultra vires the Constitution of Zimbabwe. A limitation on a fundamental right is permissible if: (1) it is a law of general application, and (2) it is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account the factors in section 86(2)(a)-(f). Constitutional rights must be interpreted purposively and generously while derogations must be interpreted narrowly and restrictively. The right to demonstrate under section 59 is not absolute and must be balanced against the government's responsibility to maintain public order and protect public safety. A regulating authority under section 27(1) POSA need not follow the consultation procedure in section 27(2) when it is not practicable to do so. What is "reasonably justifiable in a democratic society" requires a value judgment by the court examining whether the provision arbitrarily and excessively invades constitutional rights. Faith-based organizations engaging in political demonstrations are not exempt from POSA under the Schedule's religious gathering exemption.

The court observed that if section 59 were given "a liberal, generous and purposive interpretation" it would mean: "Every citizen has a right and freedom to demonstrate, alone or collectively with others, anytime, anywhere, anyhow for any cause or lack of it, silently or otherwise, in motion or static, in celebration or denunciation, without fear, let or hindrance whatsoever! Whatever it is that may be done, must be done peacefully." The court noted that the liberation struggle was fought precisely to achieve civil rights such as the right to demonstrate, which form the very core of democracy and are sacrosanct. The court observed that no democracy can function or thrive in an environment of public disorder and anarchy, and that the extent to which citizens may enjoy fundamental rights directly depends on the prevalence of peace, public order and security. The court noted that cases decided under the old Constitution remain relevant in interpreting the present Constitution as there are no fundamental differences in the rights protected. The court commented that when courts give relief, they must synchronize the real world with the ideal constitutional world and consider the effect of orders on the general public.

This case is significant in South African (Zimbabwean) constitutional jurisprudence as it establishes the constitutional validity of section 27(1) of POSA under the new Constitution of Zimbabwe (Amendment No. 20 of 2013). The judgment clarifies the framework for assessing limitations on fundamental rights, particularly the right to demonstrate under section 59, applying the section 86(2) test. It affirms that courts must balance fundamental rights with public order and safety concerns, and that no fundamental right is absolute. The case demonstrates continuity between the old constitutional order and the new Constitution regarding permissible limitations. It establishes that temporary, geographically limited bans on demonstrations can be constitutionally valid when based on reasonable grounds relating to public order. The judgment also clarifies the High Court's constitutional jurisdiction and the purposive interpretation approach required for constitutional rights while applying narrow interpretation to derogations.