Q&A and Analysis: WOZA V. Zimbabwe

In November 2022, the African Commission on Human and Peoples’ Rights issued a positive decision in Communication 446/13 between Jennifer Williams, Magodonga Mahlangu, and Women of Zimbabwe Arise (WOZA) and the Republic of Zimbabwe. Finding that the government of Zimbabwe violated the Complainants’ rights to freedom of association, assembly, and expression and their right to liberty, the Commission asked the government to investigate, prosecute, and punish all State actors responsible for the violations. Robert F. Kennedy Human Rights (RFK Human Rights) and Zimbabwe Lawyers for Human Rights (ZLHR) represented the Complainants in this case, first filed on April 13, 2013.

Why is this case important?

The African Commission held that peaceful protests without prior authorization from the State should enjoy a presumption of legality even when such authorization is required by domestic law. The Commission concluded that assemblies should not be automatically penalized for failure to notify the State. This decision elevates the provisions of the African Commission's Guidelines on Freedom of Association and Assembly in Africa (FoAA) on notification regimes to binding State obligations under Article 11 of the African Charter on Human and Peoples’ Rights. The Commission further reiterated that the State has a duty to create an environment that is conducive to free and unencumbered exercise of the right to association and underscored that the State should not only refrain from interfering with the exercise of the rights to freedom of association, expression, and assembly, but also actively protect associations from those who might seek to interfere with such rights.

Who are the Complainants in this case?

The Complainants are Jennifer Williams, Magodonga Mahlangu, and Women of Zimbabwe Arise (WOZA). Established in 2003, WOZA (now known as Women and Men of Zimbabwe Arise), is an activist organization that mobilizes Zimbabweans to demand social justice through peaceful protests and public demonstrations. The acronym of “WOZA” is a Ndebele word that means “come forward.” Williams and Mahlangu are the Executive Director and Programme Coordinator of WOZA, respectively.

What are the facts of this case?

This case is based on the arbitrary arrests and detentions of the Complainants between 2003 and 2013 as they were carrying out peaceful demonstrations in different parts of Bulawayo and Harare. While Williams and Mahlangu were the main targets of the government's repression, over 10,000 WOZA members were arbitrarily detained or attacked by police and other State agents in the decade leading up to this case. On numerous occasions, the Complainants and other WOZA members were charged under the Zimbabwe Criminal Code for “disorderly conduct in a public place” and “criminal nuisance” simply for exercising their right to peacefully assemble.

The WOZA case was filed at the African Commission after the Zimbabwean government failed to respect and implement a Supreme Court decision holding that the Government violated the rights of the Complainants when they were arrested and detained for organizing and participating in a peaceful protest on October 16, 2008. In its decision, the Supreme Court determined that the conduct for which the Complainants were arrested, detained, and charged “could never amount to a violation of law.” The Supreme Court ruled that the Complainants’ right to protest was protected under the Zimbabwean Constitution and that their arrest and detention were wrongful.

Despite the Supreme Court’s judgment, the Complainants’ peaceful demonstrations continued to be disrupted by authorities. On February 10, 2012, ten WOZA members participating in a peaceful demonstration were arrested and charged with “criminal nuisance.” To prevent further government interference with peaceful assemblies in the lead up to the 2013 elections, the Complainants sought the intervention of the African Commission.

What was the African Commission’s decision on the admissibility of the case?

Admissibility of a case refers to a determination by the Commission that a case meets the seven requirements of the African Charter Article 56(5). After reviewing the submissions of the parties, the Commission determined that the case met all admissibility requirements despite the Government’s arguments on the contrary. The Commission ultimately determined that the Complainants had exhausted local remedies on three main grounds:

1. Despite the change in the Zimbabwean Constitution creating the Constitutional Court and giving it jurisdiction to hear appeals from the Supreme Court on constitutional issues, the Complainants exhausted all available local remedies because their case was filed with the African Commission before the new Constitution came into effect.

2. Zimbabwe’s continued violation of the Complainants’ rights by arresting, prosecuting, and detaining them for conduct that had already been declared lawful by the Supreme Court indicated that “available remedies are ineffective [emphasis added].” Additionally, although the Constitutional Court was supposedly available and accessible to the Complainants, the government of Zimbabwe failed to demonstrate that “the Constitutional Court as a local remedy was effective both in theory and in practice.”

3. The Commission found that the available domestic remedies “are both ineffective and insufficient [emphasis added] to redress the violations alleged” because in this case, the government of Zimbabwe had been sufficiently notified of the alleged violations through numerous complaints but failed to take steps to investigate them”. The Commission explained that the requirement of exhausting local remedies is designed to ensure that governments have been notified of the issue and offered an opportunity to respond. Where, as in this case, the government was notified and nonetheless failed to take action, "it [loses] its prerogative to settle the matter domestically.”

What were the Complainants’ arguments on the merits of this case?

The Complainants argued that the repeated criminalization of WOZA members’ right to protest in Zimbabwe reflects both the State’s systematic attacks against civil society and its routine repression of the fundamental freedoms of assembly and expression. They argued that the State’s continued denial of the right to engage in peaceful protest presents a danger to the foundation of a democratic society and the rights of all Zimbabweans to participate freely in the governance of their country.

Specifically, the Complainants argued that in violation of Article 1 of the African Charter, the State has no adequate safeguards against overzealous state agents who threaten, torture, use physical force, and arbitrarily arrest victims in order to prevent them from engaging in peaceful protest and public demonstrations.

They argued that they continue to experience discriminatory treatment on the basis of their opinions critical of the government (a violation of the right to non-discrimination - Article 2) and that their rights to freedom of expression, association, and assembly have been impeded due to the discriminatory application of criminal law by the authorities (a violation of an equal protection right - Article 3).

In addition, Complainants argued that the arbitrary arrest and detention of WOZA members constitutes a violation of Article 6 of the African Charter. They posited that while an arrest or detention may be a legitimate form of law enforcement, it is arbitrary in cases where the deprivation of liberty falls outside the confines of the law.

The Complainants stated that the primary aim of WOZA is to mobilize Zimbabweans to demand social justice. WOZA does this by educating members on nonviolent ways to voice their opinions, including by conducting peaceful protests. They alleged that the systematic suppression of their ability to protest has prevented them from carrying out the purpose of their organization (a violation of the right to freedom of association - Article 10). The Complainants also alleged that WOZA's offices have been raided, organizational materials confiscated, and that WOZA members were targeted as reprisals solely on account of their membership in WOZA, thereby rendering them unable to discuss and promote their human rights activities free from government interference.

The Complainants argued that the freedom to protest peacefully is a fundamental component of democracies, which are supported by the two tenets of freedom of expression (Article 9) and assembly (Article 11). They held that both rights may be subject to limitations, but that such limitations must be prescribed by law, necessary for achieving a legitimate goal, and must be proportionate.

Regarding the right to freedom of assembly, the Complainants contended that the State has restricted the victims' ability to peacefully demonstrate on at least two dozen documented times. The victims and other peaceful WOZA protesters had repeatedly been beaten and unlawfully dispersed by the State. The Complainants further claimed that although the Public Order and Security Act (POSA), which governs the policing of public gatherings and demonstrations, initially only required that prior notification be given to the police, this notification requirement had evolved into a de facto permission requirement, enabling the police to disperse any assembly that had not been expressly authorized. Contrary to international human rights norms, POSA criminalized failure to give notice of a demonstration, subjecting participants to abuse at the hands of law enforcement.

What was the Commission’s decision on the merits of this case?

The Commission found that the government of Zimbabwe violated Articles 1, 2, 3(2), 6, 9(2), 10(1), and 11 of the African Charter and urged the government of Zimbabwe to:

• Promptly and independently investigate, prosecute, and punish all State actors responsible for violations of Articles 1, 2, 3(2), 6, 9(2), 10(1), and 11 of the Charter and provide redress for prejudices suffered by the victims;

• Implement all domestic laws, policies, and practices as well as international and regional standards, for the protection and facilitation of the right to engage in peaceful protest and public demonstration; and

• Carry out human rights training for police and public officials.

What are the highlights of the Commission’s decision?

At the center of the Commission’s decision is its analysis of the scope and application of Zimbabwe’s POSA. The Complainants argued that the government had violated the African Charter by violently dispersing WOZA’s protests. In response, the government of Zimbabwe claimed that the dispersal of protests was due to the Complainants’ failure to comply with the POSA provisions. The government argued that POSA’s requirements constitute a lawful and necessary restriction on the freedom of assembly in the interest of public safety and the rights of other citizens.

In reaching its decision in this case, the Commission addressed three key issues:

1. Does POSA impose a lawful restriction on the right to freedom of assembly?

No, the Commission concluded that section 27 of POSA imposes an unlawful restriction on the right to freedom of assembly.

In its decision, the Commission analyzed section 27 of POSA to determine whether the government applied it in accordance with Article 11 of the African Charter. Section 27 imposes a one-month ban if the regulating authority believes on reasonable grounds that public disorder would result from holding a procession or public demonstration. The Commission considered domestic cases in Zimbabwe, particularly the Democratic Assembly Case. In that case, the Constitutional Court of Zimbabwe declared section 27 of POSA to be unconstitutional on the basis that it allowed authorities to pre-emptively prohibit all demonstrations, irrespective of their nature or scope, and was therefore an unjustifiable limitation on the right to demonstrate and present petitions. The Commission also cited the decision of the Supreme Court of Zimbabwe in Jennifer Williams and Others v. Phathekile Msipha; Minister of Justice and Attorney General, which found that the conduct of the Complainants did not constitute the offense on which they were charged (disturbing peace, security, and public order) as they were protesting peacefully to express their views. The Commission affirmed that the right to freedom of assembly is not absolute and can be limited in certain circumstances as set out in Article 11 of the Charter. It emphasized that States must “ensure that the right to organize peaceful assembly is not restricted by any undue bureaucratic obligations and must further ensure that the freedom is enjoyed in a practical manner [emphasis added].” The Commission recalled its Guidelines on Freedom of Association and Assembly in Africa (FoAA), which requires States to ensure the protection of all assemblies from interference, harassment, intimidation, and attacks by third parties and non-State actors. The Commission therefore concluded that section 27 of POSA amounted to an unlawful restriction on the right to freedom of assembly.

1. Is a failure to give prior notice of an assembly unlawful and does the absence of prior notice justify an interference with the right to freedom of assembly?

No and no, the Commission concluded that freedom of assembly is a right that need not be authorized by the State in order to be lawfully exercised. Furthermore, the Commission held that failure to give notice, even in contravention of domestic law, does not justify a State’s interference with the exercise of the right to freedom of assembly.

Section 24 of POSA requires organizers of public gatherings to give a four day written notice to the regulatory authority. In determining whether the implementation of the law accords with the African Charter, the Commission referred to the decision of the Supreme Court of Zimbabwe in Tendai Laxton Biti & Movement For Democratic Change v. Minister of Home Affairs & The Attorney-General, which dealt with a constitutional challenge brought against the requirement of section 24 of POSA. In that case, the Supreme Court held that section 24 of POSA does not arbitrarily or excessively invade the enjoyment of the freedoms of expression, assembly, and association because it does not give the regulating authority the power to prohibit or disperse the gathering. While the Supreme Court stated that notification is important to allow authorities to take necessary measures to maintain public order, the Commission noted that the requirement could also be abused by authorities in the guise of implementing the law. The Commission applied its Guidelines, which provide that “participating in and organizing assemblies is a right and not a privilege, and thus its exercise does not require the authorization of the State.” The Guidelines further provided that a “notification regime requires that the presumption is always in favor of holding assemblies, and that assemblies not be automatically penalized, through dispersal or sanction, due to failure to notify.” In line with the Guidelines, the Commission held that as long as there is no potential harm to the public, States should facilitate the exercise of the right to assemble peacefully. The Commission emphasized that this is particularly the case when people are protesting against the government over matters that directly concern them. The Commission determined that WOZA’s failure to give notice did not justify the actions of the police in dispersing and arresting protesters and therefore the protesters’ right to assemble peacefully had been violated.

1. Was the principle of non-discrimination violated and was the application of POSA discriminatory?

Yes, the Complainants were treated differently by the government without a reasonable justification thereby violating the principle of non-discrimination under Article 2 of the African Charter, but no, the application of POSA against the Complainants did not violate the principle of equal protection of the law under Article 3(1).

The Commission considered whether POSA was applied in a discriminatory manner to prevent civil society and individuals critical of the government from exercising their right to freedom of assembly in violation of Article 3 of the African Charter. In doing so, the Commission compared the present case to other cases related to the application of POSA. It found that previous bans on rallies and demonstrations in Zimbabwe had been arbitrarily imposed and concluded that there was a pattern of disrupting demonstrations and police overreaching their powers under POSA to restrict public gatherings. However, the Commission did not find discrimination in the application of POSA towards the Complainants on the basis of their membership with WOZA as other demonstrations in Zimbabwe had also been similarly restricted. Accordingly, there was no violation of Article 3(1) of the Charter.

The Commission went on to consider whether there was differential treatment of the Complainants on the basis of their affiliation with WOZA. The Commission applied the three-part test established in Good v. Republic Of Botswana, which provides that there is a violation of the principle of non-discrimination if (1) equal cases are treated in a different manner; (2) a difference in treatment does not have an objective and reasonable justification; and (3) the means employed are not proportionate to the aims sought. The Complainants argued that police allow pro-government assemblies while preventing those which, like WOZA’s, are critical of the government, thereby practicing differential treatment. The government of Zimbabwe responded to the Complainants’ argument only by stating that there is general application of the law, therefore failing to prove that the dispersal of WOZA’s protests served a legitimate aim. As a result, the Commission found that there was differential treatment against the Complainants which lacked any reasonable justification. The Commission also pointed to the government’s failure to initiate any investigations to verify the allegations, thus demonstrating the State’s lack of commitment to taking any remedial action. Therefore, the government of Zimbabwe failed to discharge its affirmative duty to prohibit discrimination and ensure equal protection of the law, as established in Egyptian Initiative for Personal Rights v. Egypt. Consequently, the Commission held that there was a violation of Article 3(2) of the Charter. Given the link between the right to equal protection of the law and the principle of non-discrimination enshrined in Article 2, the Commission also found a violation of Article 2 of the Charter.

What are the next steps for this case?

The government of Zimbabwe has a responsibility to actively participate in the implementation of measures to ensure that WOZA and other Zimbabwean civil society organizations may freely assemble and express their opinions.

With the general elections approaching, the ability of civil society members and organizations to assemble freely and express their opinions is crucial to ensuring the legitimacy of the election process and guaranteeing the right of Zimbabweans to meaningfully participate in the democratic process.