This was an application seeking a determination as to whether, section 27 of the Public Order and Security Act (POSA), banning any public processions or demonstrations in the Harare Central Business District for two weeks, was constitutional.

The court determined the constitutional validity of section 27 of the POSA. The court found that the provision infringes the right to freedom of demonstration guaranteed by section 59 of the Constitution. The provision failed the constitution validity test for a law limiting fundamental rights and freedoms. Section 27 was held to be unfair, unreasonable, unjustifiable and an unnecessary manner. 

In conclusion, the court held that section 27 of POSA was unconstitutional. The High Court declaration of constitutional invalidity of section 27 of POSA was suspended for 6 months from the date of judgment. The matter was remitted to the Supreme Court for the determination of the appeal, and each party was ordered to bear its cost.

The 1st respondent, the police officer commanding Harare District, issued a notice in terms of section 27(1) of the Public Order and Security Act [Chapter 11:07] (POSA) in terms of which he banned for a period the holding of all public processions and demonstrations in the Central Business District of Harare, for two weeks.

This application challenged the validity of the statutory instruments which held that all public processions and demonstrations were temporarily banned.

In determining the legality of the 1st respondent’s actions, the court determined whether section 27(1) of POSA is a law of general application and whether the provisions of section 27 (1) of POSA are a fair, reasonable, necessary and justifiable derogation or limitation in a democratic society?

The court found that section 27(1) of POSA is a law of general application. The court noted that it had to give the provisions of section 59 of the Constitution, a purposive and general interpretation, one that endeavours to give citizens the full measure of that fundamental right and freedom. Further, that there is no scientifically determinable yardstick for determining what is fair, reasonable, necessary and justifiable in a democratic society. The court must arrive at a value judgment, considering all relevant factors of the case at hand. Such factors must include those factors listed under section 86 (2) (a) – (f) of the Constitution: the nature of the right or freedom concerned, the purpose of the limitation, the nature and extent of the limitation, the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others, the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others and whether there are any less restrictive means of achieving the purpose of the limitation.

The court applied these factors and held that the statutory instruments passed the test for constitutional validity. The application was thus dismissed.