What are the differences between the draft Bill and POSA?
There are very few differences between the Bill and POSA – depressingly few, in fact. After the excited fanfare in the State-owned press about how far-reaching the Bill would be, we expected rather more than this.
The Bill makes some up-dating changes to the provisions of POSA: for example, "Commissioner of Police" has been changed to "Commissioner-General of Police" and "Police Force" to "Police Service". But apart from those the only changes we can find are the following:
Clause 1 (Short title)
The title of the Bill is slightly more emollient than POSA's.
Clause 6 (Appointment of responsible officers for public meetings)
Words have been added to subclause (1) to the effect that persons who are appointed as organisers of public meetings are to be regarded as conveners for the purposes of Part II of the Bill. This makes the clause a little tidier, but does nothing more.
Clause 7 (Notice of gatherings)
A reference in POSA to "facsimile numbers" has been updated to refer to cellphone and e-mail numbers. That is the only change. In all other respects the requirement to give notice of public gatherings will remain the same.
Clause 8 (Consultations, etc., re holding of public gathering)
Under this clause a regulating authority (a senior police officer) will have to notify the convenor of a public procession or demonstration within three days of receiving the convenor's notice that the procession or demonstration can go ahead, if the regulating authority has no problems about it causing disruption or disorder. Under section 26 of POSA no time-limit is specified, so convenors can be kept in suspense until the last minute before being told about the regulating authority's attitude.
The clause also differs from section 26 of POSA in that a proviso is added to subclause (3). The proviso is incomprehensible.
In all other respects the clause is virtually identical to section 26 of POSA, so it retains the existing anomaly that convenors of a demonstration must give at least seven days' notice to the regulating authority and, if the regulating authority has problems about possible disruption or disorder, he or she must invite the convenors to a consultative meeting at least seven days before the demonstration – which means there cannot be a consultative meeting if the convenors have given the minimum seven days' notice.
Section 27 of POSA (Temporary prohibition of public demonstrations)
This section has been omitted from the draft Bill. It authorises a regulating authority to prohibit for up to one month the holding of public demonstrations within a particular police district. The Constitutional Court recently declared the section to be unconstitutional and void. Obviously therefore the section could not be incorporated into the Bill.
Clause 14 (Carrying of identity documents)
This clause differs in a material respect from its equivalent in POSA. Section 32 of POSA empowers a police officer to arrest a person who fails to produce an identity document upon being requested to do so, and to detain the person until his or her identity is verified. This clause is not so draconian. It states that if a person cannot produce his or her identity document immediately upon being asked for it by a police officer, he or she must be given up to seven days within which to produce it at a police station, failing which he or she is guilty of an offence. The clause is intended to bring the law into line with a Supreme Court judgment delivered in 1997, and in one respect it does: the judgment held that a statutory provision which – like section 32 of POSA – made it an offence not to produce an identity document on demand was unconstitutional, and clause 14 omits that provision. On the other hand, the 1997 judgment also said that a statutory provision which empowered the police to stop people at random and demand their identity documents was unconstitutional in that it inhibited freedom of movement. Clause 14 contains this provision, thus ignoring the 1997 Supreme Court judgment.
Clause 18 (Defence Forces assisting police)
This clause will rectify the constitutional defects in section 37 of POSA by ensuring that the President, rather than the Minister of Defence, authorises the deployment of soldiers to assist the police in maintaining law and order, as required by section 213 of the Constitution. The clause will also oblige the President to inform Parliament within seven days after deploying the Defence Forces, in accordance with section 214 of the Constitution.
That is the sum total of the differences we can find. The provisions of POSA have been copied slavishly in the Bill so that ‒ apart from what is noted above ‒ all POSA's undemocratic features have been retained.
· The Police will still be entitled to ask political parties for lists of members or office-bearers who attend meetings of the parties' committees or other structures [clause 5(8) of the Bill].
· People will not be allowed to hold public gatherings without giving the Police written notice: seven days' notice in the case of processions and demonstrations, five days in the case of public meetings. As in section 25 of POSA, the notice will have to specify details such as "the exact and complete route" of a procession or demonstration and "the number and types of vehicles, if any," that are to take part in the procession. Anyone who fails to give notice will be guilty of a criminal offence and liable to imprisonment for up to a year [clause 7 of the Bill].
· If the Police are not given notice of a gathering then, as in POSA, the conveners will be civilly liable for any damage or injury occasioned by any public disorder or breach of the peace occurring at the gathering [clause 12 of the Bill]. This will be so even if the damage or injury was caused by counter-demonstrators or people who were not under the conveners' control.
And, perhaps out of fear that the Bill does not repeat all the undesirable features of the existing law, the drafter has omitted a clause repealing POSA ‒ so POSA will remain in force even after the Bill is enacted.
The draft Bill is not new wine in an old bottle: it is the same old wine in the same old bottle with a new label stuck on it."
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