Lovemore Lubinda
The High Court Judge President George Chiweshe yesterday deferred two urgent applications filed at High Court challenging the new prohibition order banning demonstrations in Harare for a month, to Friday 30 September 2016, urged parties to file heads of arguments.
At a hearing yesterday before Judge-President Chiweshe, it was agreed that the two parties (the applicants and respondents) file their heads of arguments on or before Wednesday 21 September for the former and Friday 23 September for the later respectively, ahead of a hearing on Tuesday 27 September and judgement on Friday 30 September 2016.
Among the grounds raised by the applicants were the allegation that although he invited representations on the proposed ban as required by the law section 27 (2) of POSA, the regulating authority (Newbert Saunyama) had no bona fide intention of listening to the objections and had made up his mind anyway. The prohibition order does not state his reasons for believing the ban to be justified he therefore failed to comply with section 3 of the Administrative Justice Act.
This Act’s objective is to provide for the right to administrative action and decisions that are lawful, reasonable and procedurally fair for the entitlement of written reasons for administrative action or decisions, to provide for relief by competent court against administrative action or decisions contrary to the provisions of this Act.
Section 3 (c) of the Act lays down a general rule that an official (in this case Saunyama) who takes administrative action must supply written reasons for that action within the time specified by law or where as is the case with section 27 of POSA, no time is specified by the relevant law, within a reasonable period after being requested to supply reasons by person concerned. The courts have repeatedly ruled that an obligation to provide reasons for official action is not satisfied merely by citing the section number of the enabling statutory provision, or by repeating phrases from that provision.
Another head raised was that the order limits numerous constitutional rights and freedoms enshrined in the Declaration of Rights and is therefore a breach of section 134 b of the constitution, which state that statutory instruments must not infringe or limit any of the rights and freedoms set out in the Declaration of Rights.
It will be for Judge-President Chiweshe to decide whether these differences and the evidence and arguments before him are sufficient to warrant a conclusion different from that reached by Justice Chigumba.
