BY DR MASIMBA MAVAZA
Last week cde VP rtd General Constantine Guvheya Nyikadzino Chiwenga said the police are acting outside their mandate by refusing the CCC to conduct their rallies. The Vice President was very correct.
The actions of the police are undermining the purpose of the new dispensation. The provincial police commanders are shooting the Police Commissioner General down in trying to please political leaders.
Nothing can be more important in terms of the police’s political neutrality than the conduct of demonstrations or a rally. Yet the blatant lapses by the police have been alarming. The problem is over the selective way in which they are enforced.
The law defines a “gathering” as a meeting involving “social interaction with each other, or to undertake any other activity”. That includes protests – even if social distancing was maintained, even if they are entirely peaceful.
So when CCC members were stopped from attending or addressing rallies despite holding a court order police were doing their job. But have they shown consistency?
The world looks at rallies held by Mwonzora and by ZANU PF In many other rallies elsewhere – no arrests were made. Criticism has been made of the passive police response to crimes but quick jump to stop a peaceful CCC gathering. These gatherings were already illegal even before such instances took place. But why the leniency shown on other occasions?
Democracy is defined by broad values involving participation and formal rules about procedures such as elections. But for most persons most of the time these are removed from daily life. That is not true for the police, the agency of government that citizens are most likely to see and have contact with.
All industrial societies use police to control crime and to contribute to public order (e.g., mediating and arbitrating disputes, regulating traffic and helping in emergencies). But the conditions under which police operate, the means they use and the ends they seek vary greatly between democratic and non-democratic societies.
Police are a central element of a democratic society. Indeed one element in defining such a society is a police force that is subject to the rule of law, rather than the wishes of a powerful leader or party. The police should be able to intervene in the life of citizens only under limited and carefully controlled circumstances and must be publicly accountable.
It is a myth that all that stands between total chaos and social order is the police. Social order has multiple sources. These include socialization to norms, a desire to have others think well of us, reciprocity, self-defense and the design of the physical environment. Yet police are an important factor. Their importance increases with the heterogeneity and size of a society.
A defining characteristics of police is their mandate to legally use force and to deprive citizens of their liberty. This power is bound to generate opposition from those who are subject to it. It also offers great temptations for abuse. Law enforcement requires a delicate balancing act. The conflicts between liberty and order receive their purest expression in considerations of democratic policing.
It is ironic that police are both a major support and a major threat to a democratic society. When police operate under the rule of law they may protect democracy by their example of respect for the law and by suppressing crime. Police are moral, as well as legal, actors.
But apart from the rule of law and public accountability, the police power must respect the rule of law. The policing of crime and politics merge and political dissent becomes a crime. Police are increasingly concerned with internal security, the prevention of public dangers and the prevention and redress of breaches of law. They also themselves came to be more controlled by the law.
There is no simple or widely agreed upon definition of a democratic police. Indeed it is easier to define a non-democratic police and non-democratic police behavior than their opposites. But viewed abstractly all democratic police systems share the ideal that police powers are to be used according to the rule of law and not according to the whims of the ruler or the police agent. The state’s power must be used in a restrained fashion and proportional to the problem. Ideally citizens would accept police authority out of respect, rather than out of intimidation.
A democratic police is defined by both its means and its ends. Some means are simply too abhorrent and are prohibited under any circumstances: Other means involving the use of force, the denial of liberty and interrogation must only occur with due process of law. Due process does not refer to questions of guilt or innocence, but with the way in which guilt is determined.
In the two circumstances where the ZRP have acted against CCC it was against a court order. In issues of liberty the court is more qualified to decide on issues of freedom. It is painful for every lawyer to see the police force ignoring a court order. The police in Zimbabwe have been showing a steady progress towards respect of the rule of law.
The idea of a democratic police includes content as well as procedure.
Thus for police to enforce laws that oppress the citizens even if passed by a legislature, is hardly democratic. In the case of Zimbabwe the police were not enforcing any law. The police were either pleasing some provincial leaders.
It is easier to specify democratic procedures than democratic content. But at the most general level such content involves respect for the dignity of the person and the ideas associated with freedoms. Freedoms of speech, association and freedom to attend political rallies.
In a democratic society police must not be a law unto themselves. In spite of strong pressures and temptations to the contrary, they are not to act in an explicitly political fashion, nor to serve the partisan interests of the party in power, or the party they would like to see in power. Their purpose must not be to enforce political conformity. Holding unpopular beliefs or behaving in unconventional, yet legal, ways are not adequate grounds for interfering with citizen’s liberty. When opponents of democracy operate within the law police have an obligation to protect their rights, as well as the rights of others.
In an important sense a democratic police is a neutral police.
Democratic societies strive for equal law enforcement. Political parties are to be treated in equivalent ways. Police are trained to behave in a universalistic fashion. Should their personal attitude depart from the demands of the role they are playing, this must not effect their behavior. Police show neutrality if they simply enforce the rules regardless of the characteristics of the persons or group involved.
The problem with most Provincial leaders is that they think political success is the absence of opposition. In trying to achieve this they abuse the police by instructing them to stop any opposition gathering in their province. This then is done not because ZANU PF has requested that but because some individuals in the party are seeking relevance.
On the other hand the police in provinces duck up to the political leaders because if they do not do that they will be transferred to bush stations or they will never be promoted.
Police promotions must never be tied to political performance.
The symbolic meaning of police as representative of the nation is stressed and police are trained to see themselves as exemplars of moral behavior. The police in trying to please local leaders they have embarrassed us all.
The ZRP must serve the nation,not a political party and are subject to civilian control at the higher levels. Given its turbulent political history, Zimbabwe believe that if democracy is to be protected, the rights of society must take precedence over those of the individual. Police are given greater leeway in the collection of political intelligence.
The democratic police ideal is generally supported by a variety of organizational means including a division of labor between these who investigate, arrest, try and punish and those who control law and order in political space. These efforts involve the belief that liberty is more likely to be protected if power is diffused, if competing agencies watch each other and if police identities and actions are visible fair and transparent.
Given the potential for abuse, police face numerous external and internal controls.
An important task of a national police force is to guard against the misuse of political coercion by political leaders. The Police must guard against the softer forms of unwarranted secret and manipulative control made possible by political powers.
Restrictions on rallies are not a sufficient guarantee of freedom. Yet a police whose power is too great is also a danger.
There is a paradox in the fact that a democratic society needs protection both by police and from police. On a broader scale, this is one of the major challenges of democratic government. The police must be able to control the people and also control itself.
Zimbabwe was steadily gaining its place in the democratic space but the behaviour of the police has taken us back thousands of years. Furthermore Matanga has managed to drive the police into a professional path but now he is allowing his gains to be swallowed by overzealous provincial commanders. Matanga must resist promoting his officers on recommendations of provincial politicians. He must respect court judgements even if they are against his wishes.
We have nothing to be afraid of as ZANU PF. CCC is not a threat Chamisa is a decorated liar flanked by world class clowns like Job Sikhala and Tendai Biti. No amount of their rallies will dislodge ZANU PF. So please in the name of the Law allow them to congregate they will expose their emptiness and that will be our advantage.
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