just saying Paul Kaseke

Last week, we looked at some background history on the Maintenance of Order and Peace Bill (MOPA) as well as similarities between the Bill and its predecessor, the Public Order and Security Authority (POSA). This week, we explore the defects of the Bill more substantively and why it should not be passed without major reforms.

We already established that the Bill is a replica of POSA and thus major criticisms of POSA apply unreservedly to the draft Bill. Let’s turn to consider the offences created in MOPA.

There are eight cardinal sins in terms of MOPA which will attract criminal liability. These are:

• Violating the prohibition on possessing certain weapons leading to six months imprisonment, a fine or both per Clause 4 (4);
• Failing to give notice of a protest, public gathering or public meeting which leads to a one-year sentence, a fine or both per Clause 7(5);
• Violating a prohibition notice issued against a public demonstration, gathering or meeting or not heeding to any conditions that may have been given by the police for the gathering/demonstration which leads to a one-year sentence, a fine or both per Clause 8(11);
• Failing to produce an ID after seven days results in a fine per Clause 14(5);
• Entering or leaving cordoned areas without written permits issued by the police leads to a six-month sentence, a fine or both per Clause 15(2);
• Public disorder or violence per Clause 15(3)(b);
• Failure or refusal to stop when required by the police or taking measures to prevent being stopped or searched leading to a 12-month sentence, a fine or both per Clause 16 (3);
• Hindering or obstruction of a police officer exercising powers of search and seizure of aircraft and vessels leads to a 12-month sentence, a fine or both per Clause 17(6).
  It is already quite obvious which crimes are problematic and counter democracy, but let’s discuss how these crimes and their corresponding provisions violate the Constitution.

Limitations on the right to protest and political participation                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           MOPA presents major hurdles to two twinned constitutional rights: The right to protest in s59 and the right to political participation in s67 of the Constitution. The right to protest in s59 states:

“Every person has the right to demonstrate and to present petitions, but these rights must be exercised peacefully.”

Our Constitutional Court has gone to great lengths to express how fundamental and important the right is. In Democratic Assembly for Restoration & Others v Saunyama N O & Others, a unanimous judgment of the Constitutional Court penned by Justice Rita Makarau, the court held that protests serve as an expression and reminder of outrage, condemnation or support of policies or actions.

In addition, she noted that “demonstrations have become an acceptable platform of public engagement and a medium of communication on issues of a public nature in open societies based on justice and freedom”. Protests are, therefore, legitimate and necessary in a democracy, provided they are peaceful.

As a result of the supremacy of our Constitution, laws such as MOPA need to be consistent with the Constitution without derogating from the rights and protections enshrined in it.

How does MOPA limit the right to petition and protest, you may ask? Well, this is done chiefly through the requirements of notices prior to processions, public demonstrations or public meetings in Clause 8 and the criminalisation of failing to give such notice. People are required to notify and obtain approval from the police of such protests beforehand.

It must be noted that the Constitution does not place similar requirements prior to the exercise of the right to protest nor does it grant the police power to approve or prohibit protests. To the extent that the proposed legislation curtails the right by placing these notification obstacles, MOPA is unconstitutional.

Furthermore, MOPA like POSA, impliedly prohibits any spur of the moment protests, public meetings or public gatherings. You will recall that the Constitutional Court already indicated that protests are a medium of communication, but are also an expression of outrage or support.

There are protests that will occasionally sprout up from the immediate circumstances that move the country to a common cause for protests or gatherings, but these are not legally permissible with the provisions relating to notification.

In fact, there is a penalty for a protest, public gathering or demonstration that is not sanctioned by the police. MOPA would make the kind of protests that broke out during the 2017 coup, unlawful.

MOPA also makes the gathering of people outside courts such as the ones we witnessed during cleric Evan Mawarire’s case, unlawful.

Some analysts have been quick to defend MOPA’s notification clauses by citing the South African Gatherings Act which contains similar provisions, but unfortunately, this comparison is not useful.

Firstly, that Act is an Apartheid-era Act which has been fallen out of use in that it is hardly enforced, but more importantly, the Constitutional Court of South Africa declared that the provisions were unconstitutional in the case of Mlungwana and Others v S and Another.

Internationally, the same concept of notification for demonstrations has been seen as a limitation to the enjoyment of the right to protest. The United Nations Human Rights Committee’s decision in Kivenmaa v Finland Communication expressly found that criminalising non-notification limits the right in Article 21 of the International Covenant on Civil and Political Rights (ICCPR). Article 21 states: “The right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the

law and which are necessary in a democratic society …”
Limitations on the right of movement, privacy and dignity

Clause 13 gives the police the power to establish cordons around any area if they consider it necessary to either contain public disorder in the area or “protect the area from public disorder”. The language here will no doubt remind many of the emergency regulations under the Rhodesian government and that points to the problem here.

These wide powers are essentially emergency powers which Zimbabwe will be subject to indefinitely if MOPA is enacted as law. The unchecked power of the police to determine when cordons will be established is extremely problematic and invites an obvious potential for abuse.

Clause 13 further gives police officers the powers to conduct searches within the cordoned areas without warrants to look for persons who are suspected of having instigated the public disorder or violence that led to the establishment of the cordon or to find evidence for such crimes.

It’s important to bring in s57 of the Constitution at this stage. Section 57 guarantees every person the right to privacy, which includes the right not to have their home, premises or property entered without their permission; their person, home, premises or property searched, and their possessions seized.

Warrants generally provide the necessary justification to override this since a magistrate or judge has oversight over the process.

In the absence of judicial oversight, this right will certainly be infringed by Clause 13’s wide formulation. Nothing in the clause prevents police from having perpetual cordons and searches without warrants since all that is required is a subjective belief that establishing a cordon is “necessary”. More safeguards are required to bring this in line with the Constitution and to prevent unjustifiable intrusions into the privacy of Zimbabweans.

Regrettably, MOPA fails to take this right into account and unduly fetters not just the right to privacy but also restricts the right to dignity in s51 of the Constitution that accompanies the right to privacy.

If dignity is the sense of worth and value, then unjustified intrusions and forced searches without warrants will detract from that feeling of worth. Something about arbitrary searches and seizures strikes at the core of our dignity and leaves one feeling violated. It’s therefore important that this is factored in.

Something more worrying about Clause 13 is that the section criminalises movement into or from a cordoned area without written permission. If one knowingly leaves or enters a cordoned area, then in terms of Clause 13(2), an offence has been committed which could result in a fine or six-month imprisonment or both.

In an open democracy, such archaic restrictions and corresponding penalties must be resisted. Section 66 of the Constitution grants everyone in the right to move freely within Zimbabwe and leave Zimbabwe. The broad powers given to police to establish cordons and arrest persons who leave cordoned areas without written permission, inevitably interferes with this right.

Clause 16 which authorises police to stop and search any person, vehicle or vessel entering of leaving Zimbabwe, without a warrant is also problematic in its interference of rights of privacy. It also lacks sufficient controls to prevent abuse by the police.

In the last instalment of this series, I will look at how the Bill can be bettered and also give a run down of other problematic provisions that we have not covered as yet.

By Stephen Chadenga

THE trial of Mkoba legislator Amos Chibaya (MDC Alliance), facing allegations of plotting to subvert a constitutionally-elected government, was on Thursday further postponed to
May 31.

Chibaya’s charges emanate from an interview he allegedly had with a private daily newspaper in January this year where he was quoted as having said: “… 2019 is the year that we are going to send [President Emmerson] Mnangagwa packing … We are not going to go on the streets to toyi-toyi, but go straight to State House, because that is where there is the person who stole the elections.”

The State’s case is that between December 16 and January 2, Chibaya had a phone discussions with Learnmore Magorimbo, the national chairperson for Zimbabwe National Youth Alliance, a
pressure group mobilising for a nationwide demonstration.

The alleged communication, the court heard, was done using certain cellphone numbers.

The State further alleges that on January 2, Chibaya communicated with all MDC Alliance supporters mobilising them to destabilise the government.

The court heard that as a result of his message, violent demonstrations occurred in Mkoba, Mtapa and Ascot high-density suburbs in Gweru, where Chibaya was allegedly among the
protesters.

It is alleged that property were destroyed by protesters, who took heed of Chibaya’s order to overthrow the government through unconstitutional means. Chibaya, who is out of custody on a $1 000 bail, however, denies the charge.

BY TATIRA ZWINORA

SIMBISA Brands’ US dollar pricing model is now servicing its monthly US$1 million demand for raw materials bill which has upped the company’s initial capital expenditure to $15 million on 20 more outlets, NewsDay has learnt.

In February, Simbisa announced it would invest about $10 million setting up 21 new outlets, with the company opening a Nando’s branch last Friday in Harare central business district at a cost of US$675 000.

Helping the company increase its capital investment is the company’s adoption of a US dollar pricing model in December 2018 which covers its monthly raw materials demand and is helping
with the company’s expansion plans.

“What we have looked at is, because of the demand for our brands throughout the country, we have upped that investment from $10 million. We are still working out the finer details, but it may come closer to about $15 million or $17 million for 20 more outlets by the end of this financial year (ending June 30, 2019),” Simbisa Brands managing director Warren
Meares told NewsDay Business.

“Basically, the United States dollar pricing has helped in that it has made available the US dollars required to help us with our expansion and to import all the raw materials required
to run our operations. In our operations we require at least US$1 million a month and I would say for our raw materials it (US dollar pricing) is largely covering that.”

The US pricing model includes offering customers discounts nearly at cost for those buying with the United States dollar.

Other fastfood chains implementing such a model include KFC Zimbabwe and Slice Distributors (Private) Limited.

Simbisa operates Chicken Inn, Pizza Inn, Baker’s Inn, Creamy Inn, Fish Inn, Rocomamas, Steers, Nando’s and Galito’s outlets.

Meares said on top of increasing their total outlets across all the brands they also have plans to introduce some new ones.

“We also have some new brands that we are going to be bringing in from South Africa,” Meares said.
To date, Simbisa Brands has 209 outlets across the country.

In its financials for the half year ended December 31, 2018, the fastfood chain saw a 44% growth in revenue to US$143,24 million from the previous year’s comparative of US$99,2
million.

This was from a 6% increase in the total number of customers served to 30 million, equivalent to at least every citizen buying twice from Simbisa Brands outlets in the period.

In terms of profit after tax, this more than doubled to US$16,37 million for the period under review from a comparative of US$7,99 million in the previous period.

Heading into the second half of the year, the company had an operating profit margin of 19% leaving it in a very profitable position.

Total assets grew 23,33% to US$104,64 million from the previous period’s comparative US$84,84 million.

By Freeman Makopa

The Zimbabwe women’s national cricket team made a fine start to the International Cricket Council (ICC) Women’s World T-20 Africa qualifier after beating Mozambique by 163 runs at Old Hararians Sports Club in Harare yesterday.

Sharne Mayers scored a half century as Zimbabwe posted an impressive 198 for 3 in their 20 overs, while in reply the tourists only manage a 35 before they were bowled out in 19.2 overs.

Mayers hit 62 off 45 balls before, going for a big hit, she was bowled by Isabel Chuma, the score then was 162 for 2 in the 17th over.

Chipo Mugeri had the second highest run tally for Zimbabwe with 37, while opener Modester Mupachikwa scored 29.

Mary-Anne Musonda and Josephine Nkomo were on 19 and 12 not out, respecticvely.

None of the Mozambique batters managed doule figures and their highest run scorer was Fatima Guirrugo who made seven runs.

On the bowling side Nkomo took 2 for 7, while Precious Marange and Mazvishaya each had 2 for 5.

In the other match yesterday, Namibia beat Kenya by 39 runs. Namibia batted first to make 117 for 6 in their allotted 20 overs, while in reply Kenya only managed 78.

BY Xolisani Ncube

PRESIDENT Emmerson Mnangagwa has dropped his Zanu PF hardline stance and once again invited his political nemesis, opposition MDC leader Nelson Chamisa, for talks to tame the country’s runaway inflation, which has seen prices of goods and services shoot through the roof, as the virtual Real Time Gross Settlement dollar chases the elusive United States dollar.

Mnangagwa, who has since last year’s disputed presidential poll failed to pin down Chamisa for dialogue as the latter insisted on the talks to be premised on resolution of the Zanu PF’s legitimacy issue, yesterday took to his official Twitter handle, to invite the youthful opposition leader for negotiations.

“Today, as we remember (the late MDC founder) Morgan (Tsvangirai) and his contribution to the nation, let us all choose to live those values which he embodied: Unity, dialogue and
patriotism,” Mnangagwa said.

The Zanu PF leader admitted that the country was facing a crisis and it was time for political leaders to set aside their different party ideologies and engage each other for the betterment of the people.
“We live in challenging times, and only by working together, irrespective of party, ethnicity or totem, can we build a peaceful and prosperous Zimbabwe. May Morgan’s memory be blessed and let us all join hands for the well-being of our great nation,” Mnangagwa said.

His latest overture to Chamisa comes after his engagement with nearly 20 other fringe opposition leaders was widely dismissed as a ruse and insignificant.

Chamisa narrowly lost last year’s hotly contested elections to Mnangagwa and has refused to accept the Zanu PF leader’s legitimacy even after losing the presidential election challenge at the Constitutional Court.

Several international bodies, including the European Union, have called for dialogue between Mnangagwa and Chamisa to address the legitimacy issue, which has been cited as the major stumbling block to the country’s engagement efforts and economic revival plans.

Some local church groups have also offered to broker the talks, but both Zanu PF and the MDC have remained deeply entrenched in their hardline party stances.

Mnangagwa has been holding talks with losing presidential candidates in last year’s elections, but Chamisa snubbed the talks demanding for a neutral mediator.

The Zanu PF leader had insisted that he would only engage Chamisa if the latter recognised his legitimacy.

Yesterday, the MDC, through its spokesperson Jacob Mafume, said the party was ready to engage with Mnangagwa through a credible process, provided he was sincere.

“The president, Advocate Nelson Chamisa, has been very clear and consistent. That is a welcome move and we don’t have time to waste. The people of Zimbabwe are suffering. We need to do something to help them. We don’t want to continue talking about dialogue, we need to talk and solve the crisis. This is what we represent,” he said.

Addressing supporters at Tsvangirai’s memorial service in Humanikwa village, Buhera, on Saturday, Chamisa bragged that he would soon drag Mnangagwa to the talking table “kicking and screaming” as the Zanu PF leader was under siege from a crumbling economy.

Speaking at the same event, Tsvangirai’s eldest son, Edwin, also pleaded with the two political protagonists to talk in the interest of the nation.

Edwin said, to save the country from further collapse, opposition leaders must draw lessons from Tsvangirai, who between 2009 and 2013, worked hand-in-glove with his rival former President Robert Mugabe in a coalition government.

“As you might recall, we had an economic crisis sometime back and my father sacrificed his life and family for the good of the people,” he said.

“I think we are at that point now where the economic situation is bad. I think we have reached the same levels, if not worse. Things are hard and we are saying let us put the interest of the people first.”

Chamisa has demanded that the talks between him and Mnangagwa be led by a neutral convener preferably from the region.

By Farai Matiashe

TEACHERS’ unions yesterday vowed to urge their members to embark on yet another go-slow as schools open for the second term tomorrow to press government to improve their working conditions, particularly their inflation-ravaged salaries.

Schools open tomorrow at a time workers’ salaries have been eroded five-fold as the Real Time Gross Settlement dollar continues to lose value against the United States dollar, triggering a wave of price hikes.

Progressive Teachers’ Union of Zimbabwe (PTUZ) secretary-general Raymond Majongwe told NewsDay yesterday that their members would report for duty as usual on Tuesday, but embark on a sit-in as they push for fresh salary negotiations because they were currently financially-incapacitated and demotivated.

Last term, teachers embarked on a similar industrial action, prompting government to award them a salary increase, which has since been eroded by rising inflation.

“No person will ever lead a war without counting whether his soldiers are in the barracks or not. So, we are simply going back to school to make sure that we create a strategy that must take us forward,” Majongwe said.

“Our salaries have just gone below US$80 and we are talking of people here who are degreed,”Majongwe said.

“People have families to take care of, but it seems government seems to be insensitive or they are busy looking somewhere else. The painful part is we have patriotic teachers who want to turn up for duty, but it is almost impossible we are going back to exactly where the circle started. Teachers are incapacitated.”

He said it was unfair labour practice for government to come up with a plan that benefits a certain segment of the public service.

Teachers were last time forced to abandon their strike after government made some concessions, but very little of what was agreed on was implemented.

Amalgamated Rural Teachers’ Union of Zimbabwe president Obert Masaraure yesterday said what government had promised civil servants early this year, when they went on strike, was not
genuine and an industrial action was imminent.

“Our members are going to school, but they will not be working. They are simply going to log in, but will not be undertaking any duties. We will likely call for a complete withdrawal of
labour in the first two weeks,” he said.

“The promises by government were not sincere. Our members are failing to access the promised residential stands and duty-free cars.”

Government withheld salaries for some teachers who went on strike early this year over poor salaries and working conditions.

Some of the teachers claim they had been receiving death threats from suspected State security agents.

But Majongwe said they would keep on fighting for a better salary.

“Government may try to come up with laws to say people cannot demonstrate, but that is futile because that has been tried elsewhere. We are ready for them and we will keep fighting. As
PTUZ, we are not going to relent and be intimidated. We will continue saying what they do not want to hear,” he said.

However, Zimbabwe Teachers Association chief executive officer Sifiso Ndlovu said their members would be going to school when schools open tomorrow to demonstrate their love for
learners and the teaching profession, albeit under difficult circumstances.

He said the much-publicised April salary rise had come to naught and the promises made by government when they suspended their strike early this year had not been realised.

“The duty-free motor vehicle benefit has been committed to in principle and through a statutory instrument legalising that benefit, but the practical realisation of the benefit has been
shackled by absence of administrative instruments guiding application of the same. Housing benefit, promised as land for educators, has not moved from the realms of rhetoric,” Ndlovu
said.

BY JAIROS SAUNYAMA

OFFICIALS representing Newfield Investments, involved in granite stone mining in Mutoko, have denied reports that they sealed off boreholes they had sunk in the area, leaving villagers stranded for water.

The company’s managing director Gary Welsh yesterday denied claims by Zanu PF Mashonaland East political commissar and MP Hebert Shumbamhini that they had disabled the boreholes after winding up operations at Sidingo Mine in Mutoko East.

“Sidingo Mine is a responsible and compliant company, which values their relationship with all the communities surrounding our operations,” Welsh said.

“We have never sealed any boreholes and have continuously supplied water to the Makochera community, even though we have temporarily suspended our operations and placed our mine under care and maintenance. Sidingo has donated a Lister pump to the community, which has always been used to pump water for our operations.”

When NewsDay visited the communities at the weekend, two of the three boreholes were functioning, with villagers fetching water.

Shumbamhini last week told a Zanu PF provincial co-ordinating committee meeting that the firm had sealed the boreholes and refused to repair villagers’ houses which were affected by
heavy blasting from the mining site.

He also accused the company of failing to repair damaged bridges in the area.

But Welsh dismissed the allegations as unfounded.

“These unfounded allegations are absolutely untrue as all blasting we undertake is performed on loose rock formation as we cut the rock loose from the mother rock using diamond wire
saws and this prevents any damage to our granite formation and it’s impossible to cause damage to houses hundreds of metres away,” he said, adding that besides boreholes, his company had built a community hall, two classroom blocks at Gurure Primary School and refurbished a building at Makochera Primary School as part of its corporate social responsibility.

By Simbarashe Sithole

A 35-YEAR-OLD Guruve man was last week brought to court for masquerading as a gold seller before attacking a gold buyer with a machete, stealing the victim’s money and property in the process.

Forget Gwena, of Museka village under Chief Chipuriro in Guruve, pleaded not guilty before magistrate Artwell Sanyaytwi, who remanded him in custody to May 13 for trial.

The State alleges that on February 12, Gwena and his eight accomplices, who are still at large, called Timothy Mutanda on his mobile phone and told him they were selling gold.

Mutanda was attracted by the offer and drove to Guruve with ZWL$14 200 stashed in a satchel, US$3 300 placed inside a vehicle compartment and $20 in his wallet.

On arrival, Gwena and his accomplices allegedly demanded some United States dollars from Mutanda as they assaulted him with machetes and robbed him of his money.

The court heard that the accused dragged Mutanda to a bush and tied his hands and legs to a tree using barbed wire.

They allegedly ransacked Mutanda’s car, took away three cellphones, a wrist watch, car chargers, a modulator, gas tank canister and car keys before fleeing.

Mutanda later managed to untie himself and walked back to his vandalised car.

Seeing that his car keys were missing, he sought overnight refuge at a nearby house and filed a police report the following morning.

Gwena was arrested the following day after a search was conducted at his house and two machetes were recovered from his wardrobe.

Police also recovered a piece of fake gold in his jacket inside the wardrobe.

Mutanda was called to the police station, where he positively identified the machetes used and the fake gold his assailants used to dupe him.

Albert Mazhindu represented the State.

EDITORIAL

WATER is life, so goes the old adage. Its scarcity spells doom. So it goes without saying that government should consider water provision as one of its top priorities.

Despite the critical nature of water, it is however, sad to note that several local authorities, among them Harare, Bulawayo, Gweru, Gwanda and Chitungwiza, to mention but a few, are currently reeling under severe water shortages and we believe it’s irresponsible for leaders to play politics over this life-saving resource.

Bulawayo residents have now grown weary of the falsehood that their perennial water shortages would “soon” be a thing of the past as successive Zanu PF governments always promise to
implement the Matabeleland Zambezi Water Project (MZWP). The lies are given fresh impetus each time we draw closer to an election with the momentum dying down soon after.

Gwanda and Gweru have also had their fair share of this shameless promise from our politicians.

Harare has had the same narrative with talk of Kunzvi Dam resurfacing each time there is a looming general election. For decades, residents have been told that solutions to Harare’s
water woes lay east of the capital along Nyaguwi River in Goromonzi district. We have been sold this dummy of a story through many activities that included ground-breaking ceremonies and awarding of contracts to some Chinese companies who camped, or are still camped at the Kunzwi Dam site. Thousands of villagers were also relocated from the dam’s vicinity in
preparation for construction, but up to this very day nothing much has happened.

We really get worried when we start hearing that the Harare City Council (HCC) is now busy talking to some Turkish investors with the view to build, on a build-operate-transfer basis, a
new dam, south of the capital, through a special purpose vehicle, Independent Water Provider.

The council hopes to get Cabinet approval for the construction of Muda Dam at a cost of US$3,2 billion.

We are not against these initiatives at all if they are meant to ease the capital city’s unending water woes. But we take exception when our city fathers and government keep going in
circles over this issue. What has now happened to Kunzwi? Should we forget about it? What are the problems at Kunzwi that have informed HCC and government to take them this long to
build that dam? Similar questions can be asked of the MZWP, which has been an on-off since the Rhodesian era.

We are now beginning to doubt if government is serious about solving water problems facing Harare and other urban areas. We would have thought that if it was serious at all the water
sources to the country’s urban areas should be supplying water by now.

We are very much aware that politics and corruption have played a very big role, but if the Zanu PF government is a people’s government it should quickly act on this critical issue. It should not matter whether or not the people in the cities voted for Zanu PF, the government of the day should simply do what it is supposed to do.

BY OWN CORRESPONDENT

Award-winning gospel musician Tatenda Mahachi has released a single titled Victory, which incorporates English, Shona and Swahili languages, giving it the potential to attract several audiences.

Mahachi, who shot to prominence with the song Ndisiye Satani featuring the late music superstar Oliver Mtukudzi, said his track reminded Christians that they were victors in Christ.

“The song, which was produced by Rodney Beats, is done in three languages, (of) English, Shona and Swahili. It reminds Christians that all their battles were won on the cross when Jesus
Christ was crucified. Since we are victors in Christ, there is no reason to give up when we face difficulties,” he said.

“It’s a great track that I believe will compete at international level. I wrote it after praying and the realisation that many people lose hope in the midst of challenges forgetting
that no matter what we go through we are victors.”

Mahachi said the single is available on online stores and he would engage local radio stations for airplay.

“The track is available on all online stores. We are also engaging all local and international radio stations for airplay. This song is a build-up to my fifth studio album,
Magnifier, that I am going to release in June,” he said.

Mahachi released his first album, Miyedzo, with Gramma Records in 2007.