Category: News Feeds

The laden Toyota Hiace minibuses and Isuzu pick-ups that depart from South Africa’s economic hub every day on journeys hundreds of miles north are a vital artery that helps to keep Zimbabwe’s broken economy alive.

As the shortage-plagued nation once ruled by Robert Mugabe has descended deeper into crisis this year, Zimbabwe’s border-crossing omalayitsha — which means transporters in the Ndebele language — have shuttled groceries, clothes and cash from Zimbabweans abroad to families facing inflation of 175 per cent at home. Emmerson Mnangagwa, who succeeded Mr Mugabe as president in a 2017 coup, is attempting to shore up Zimbabwe’s fragile new local currency and rebuild empty state coffers. As he does so, remittances such as those brought into the country via this malayitsha bus system, are a crucial safety net.

They also show why, for countries such as Zimbabwe, remittances of food and goods — known as remittances in kind — can be just as important as wiring money home. There is even a malayitsha app. “There is no food that side — or there is, but it is too expensive,” said Florence Ncube, a 43-year-old cleaner in Johannesburg who sends food home to her family in Bulawayo, Zimbabwe’s second city, which she left a decade ago. “It is better to buy groceries here” and send them home, she said. What are remittances? Money and goods sent by workers and other people living abroad to their families and friends at home. As global migration patterns have intensified over the last couple of decades, remittances have grown to become a significant contribution to some countries’ economies. Ms Ncube typifies Zimbabwe’s diaspora, which is millions strong after decades of turmoil. Most are based in South Africa, doing jobs such as domestic work, but Zimbabweans can be found around the world.

The expats have become a powerful economic force back home, sending remittances that last year were worth at least $1.9bn, or 9.6 per cent of the nation’s GDP, according to the World Bank. Economists estimate that a third of that total came from Zimbabweans in South Africa. Even then these figures are likely to understate flows, since the malayitsha system and other informal channels are difficult to track. A man waits with goods on the side of the road in Johannesburg for pickup by malayitsha, or transporters © AFP Mr Mnangagwa has pledged to make Zimbabwe “open for business” to foreign investors but many were scared off by last year’s botched election and repeated military crackdowns on dissent. As a result the ruling Zanu-PF, which was once hostile to those who voted against it with their feet, is now courting diaspora money.

In a speech in July Mr Mnangagwa asked “brothers and sisters in the diaspora to be good ambassadors of our beautiful country and invest back home”. When the economy does well, [people] are sending building materials. When it’s not doing well, it’s groceries Chipo Dendere, Wellesley College Yet the reality is that many diaspora remittances are like Ms Ncube’s — small amounts, often in kind, that are vital to the daily survival of family members. Among her biggest outgoings is the $35 she sends home to her son for school fees every term. “It’s not savings. It’s going towards school fees, groceries and fuel,” said Chipo Dendere, a Zimbabwean-born political scientist at Wellesley College who studies the links between remittances and Zimbabwe’s economy and politics. “When the economy does well, omalayitsha are sending building materials. When it’s not doing well, it’s groceries,” she said. This system also reflects the high transaction costs of sending money through the formal financial system. Sub-Saharan Africa is the world’s most expensive place to remit money.

According to World Bank data, it cost $18 on average to remit $200 between African countries last year, $4 more than the global mean — and in southern Africa, it cost over $37 on average. Every 100 South African rand ($7) that Ms Ncube sends home to Zimbabwe costs about 20 rand on mobile-money remittance services, she says. Remitters such as Ms Ncube are wary of the new Zimbabwe dollar, which was launched in June when the government withdrew the legal-tender status of foreign money. The new rules made an exception for remittances, which can still be received in foreign currency.

But the money then has to be changed into the Zimbabwe dollar in order to be spent in shops, where prices have soared. There is a wide gap between the official and black-market rates for the new currency, and little trust in it. “That money doesn’t have any value.

You cannot buy anything with that money if they exchange it. Things are too expensive,” Ms Ncube said. There are longer-term pressures on the Zimbabwean remittance economy — including simply that the diaspora is ageing. Read more Best of Lunch with the FT 2018 ‘I’m not a crocodile’: Zimbabwe’s president has Lunch with the FT Professionals who left as the economy began its tailspin in the 2000s are now entering late middle age. Many in the US are obtaining citizenship. Some are choosing to be buried abroad. “People are settling in, or have reunited with nuclear families. There is less money to remit to extended family in Zimbabwe,” Ms Dendere said. Cash trails This FT series looks at how money sent by migrants links disparate countries in unexpected ways. Part one Remittances in kind Still to come . . . Part two The politics Part three Investment Part four Labour shortages Part five After remittances Part six Technology Part seven The global perspective Subscribers can receive alerts when new content is published in this series by following ‘global remittances’ with myFT.

She added that the newest wave of migrants became younger and more desperate as the economy worsened. Many Zimbabwean migrant workers in South Africa and other nearby nations now barely earn enough to survive, let alone to remit. It is stressful to be a distant breadwinner. Behind economic figures on remittances lies “the strain on relationships, the pressure on those sending” cash each month, Ms Dendere said. “Western Union babies” and “WhatsApp parents” have become part of Zimbabwean family life. “It is too difficult,” Ms Ncube said, emotion rising in her voice. “People are starving at home.”

Post published in: Business

You don’t have to have meticulously followed the storied history of Susman Godfrey to basically understand what the firm brings to the table. The high-end litigation boutique — that has probably outlived its “boutique” label now that it boasts over 100 attorneys — finds itself in the headlines often with its success defending clients in complex litigation and eye-popping verdicts secured on the plaintiff side. It’s a firm built on aggressively recruiting the top talent around and having the confidence to let the young attorneys actually practice.

And that commitment to building up young lawyers may have an unintended effect: producing a crop of talented political candidates taking aim at attorneys general offices around the country.

Last year, Justin Nelson ran for Attorney General of Texas, earning the Houston Chronicle’s endorsement as “the single best reason for a Texas Republican to cross over and vote for a Democratic candidate.” Beto says “ouch.” Like Beto, Nelson fell short against indicted incumbent Ken Paxton, 50.6 percent to 47 percent.

It turned out Nelson was just the start of a trend. Montana native Raph Graybill spent some time at Susman Godfrey on his way to serving as Chief Legal Counsel to Montana Governor and ludicrously non-Senatoroial candidate Steve Bullock. Graybill’s background fits the Susman Godfrey mold perfectly — Columbia undergrad, Yale Law, a Ninth Circuit clerkship, and a Rhodes scholarship along the way.

People who are confused about how Democrats win elections in Montana — which includes 90 percent of the commentators who pass for experts on such things — should pay attention to Graybill’s campaign. Through his position with Bullock, he’s already worked to foil Trump’s dark money efforts and halt a Republican effort to delay conservation easements — it’s not unfair to say that the Governor’s office has been doing the actual work of the Attorney General for the past few years. His campaign kickoff highlighted the role of a proper AG in sticking up for “real people” instead of the “highest bidder.” It’s a progressive message that resonates in a state with roots in ranching that keeps seeing shadowy outsiders coming in and gutting the land for fun and profit while depositing hefty checks with compliant politicians.

Meanwhile, a Susman partner in Seattle is also looking into an attorney general bid. Drew Hansen, who currently serves as a state representative in addition to his legal career, has said he might run for the job if current Washington AG Bob Ferguson decides not to seek re-election, which is part of the set of dominos involved in Jay Inslee’s ongoing quixotic run for president. Hansen is a Harvard undergrad who also went to Yale Law and clerked for the Second Circuit. He is, for good measure, also a Rhodes Scholar.

If you’re looking anywhere around the country for the next generation of attorneys general — or federal judges, for that matter — it may be time to focus on Susman Godfrey’s ranks.

Earlier: A Deep Dive Into The History Of One Of America’s Premier Law Firms

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

There’s really only two ways Jeffrey Epstein could have died last weekend.  Either he killed himself, or someone else killed him.  (I will not entertain the conspiracy theory that he’s still alive somewhere and some other corpse was placed in his cell.)

The most likely theory, in my opinion, is that he died by suicide. Why wouldn’t he?   If convicted of the charges against him, he’d be potentially facing life in prison.  His reputation was ruined; his life in shambles; his property subject to seizure and forfeiture.  Without warning he was pulled from jet-setting around the world, staying in penthouses and mansions, hobnobbing with the rich and famous when, on returning from Paris in his private jet, he was thrust into a parallel universe of prison — isolation, debasement, impersonalization, bad food, and bad roommates.  Welcome to the Metropolitan Correctional Center (MCC) — quite a change from what he’d been used to.

At first, he’d hoped he have a chance at bail.  But despite his lawyers’ pleas, suggesting he could post $77 million as well as underwrite the cost of having guards stationed at every floor of his Upper East Side mansion, the judge said no.  He’d be treated like every other defendant facing serious charges, forced to await his fate in prison.

As a lawyer who’s been to the MCC many times, it’s one of the worst jails I’ve ever seen.  Featureless, imperious, cold, no natural light even from the few windows stuck high in the walls.

And no matter how bad the general population part of the prison is, the Segregated Housing Unit (SHU) where Epstein was being housed is even worse.  Each cell is so small that from the room’s center outstretched hands can touch both sides.  Every item (sink, bed, chair) is affixed to the floor.  The window is high up and angled to see nothing. The other window, cut into the cell door, permits a slim view of the hallway.  The place was meant to keep prisoners from knowing each other. You could be next to your brother and not realize it.

Security there is so tight, it can take up to an hour or more to be admitted, and another hour to leave.  Every movement is monitored by security cameras.  Every action — the “feedings,” the meetings with attorneys — are recorded in a logbook.  Nobody comes or goes without being seen and signing his name.

Every time I went in, I’d be itching to leave within an hour. If you’ve got claustrophobia, it’s not the place for you.

Coming from a world of complete opulence, power, and independence, it’s no wonder the man would want to take his own life.  The enormity of his fall from grace, the charges he was facing, and the reality of where he’d be spending the next good chunk of his life could easily have gotten to him.

The question is, how did the guards let it happen?  When someone tries to take his own life, he’s usually placed on suicide watch.  Anything he has that could be honed into a weapon (like a loose utensil or paper clip), every item of clothing or bedding that could be twisted into a rope, is usually taken from him.  Guards peer into the cell every 15 minutes and are supposed to be aware of movements and sounds inside.

Epstein was reportedly on suicide watch after his first alleged suicide attempt, but somehow those protocols were lifted.  Usually that happens if the inmate or his lawyers request it and only if the change is approved by a mental health professional.  Epstein was no longer on suicide watch when he killed himself, but he was in the SHU, probably to protect him from other inmates.  Other prisoners could not come in contact with him, nor could he come in contact with them.

So, option two, someone else killed him.  There’s a lot of reasons people may have wanted him dead.  First, all the people he allegedly harmed through the charged criminal contact. Next, any of the other inmates.  There’s a hierarchy of people despised by prisoners and the alleged child rapists are at the bottom of the barrel.

Then, there are the many people who also took part in Epstein’s alleged procurement of underaged girls.  The talk of wild parties, the rich and famous who attended and did things they could not do elsewhere.  Were they afraid Epstein would trade information about them for a lesser sentence, or that the glare of an open trial would shine the spotlight on them, too?

While many people are probably breathing a sigh of relief now that Epstein’s case won’t see the light of day, I highly doubt that personnel at the MCC are clever enough, or venal enough, to mastermind a scheme to get Epstein killed without the whole world finding out.

As I said, everything is monitored, reported, and logged.  While on TV and movies it seems like guards or inmates can get the most complex plot together to kill people with choreographed precision, never leaving a trace, that’s just not real life.

I’ve been in prisons too often to believe that CIA-type shenanigans are likely to happen in a place where a guard is generally no more than a few feet away, and that’s so poorly managed the elevators don’t often work.

Provided the right materials, like a sheet or a T-shirt, it doesn’t take much time for an inmate to asphyxiate himself in jail.   A guard could have been looking the other way, or maybe Epstein knew their schedules and planned it carefully, but for my money, this was no Clintonian (or even Trumpian, who knew him also) conspiracy.

Considering what he was facing and how far he’d fallen, he may have seen suicide as his best option.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Kinney Recruiting is partnering with a global firm on its search for a real estate transactions associate to join its rapidly expanding Chicago office.

We are seeking an associate with at least two years sophisticated real estate transactions experience and an interest in working along side a group of partners who are at the top of their field. This firm is committed to the Chicago market and it is developing a substantial presence in the city, which is attracting high level laterals to its practice.

This is an exciting time to join the firm’s Chicago office because associates are on the ground floor of something relatively new and will participate in the growth of an international firm’s strategic location. The litigation associate will work with a group of partners, some recent laterals themselves, with substantial business located throughout the US and Americas.

This firm is offering its associates an outstanding compensation and the opportunity to be involved with business development early in their careers.  Associates are often a part of client pitches and they are trained on how to develop their own business.In addition to considering candidates currently living in Chicago, this firm welcomes candidates from outside the state who are seeking to move the city and will provide relocation assistance. If you are interested in learning more about this position then please apply through this positing or send your resume to jobs@kinneyrecruiting.com.

As diligent followers of either Kim Kardashian or law school gossip know, the second-oldest Kardashian sibling has taken a step to follow in her father’s footsteps and is working to become a lawyer. Though she taking a non-traditional route to becoming an esquire (she’s working through an apprenticeship program), she’s been working her way through a standard 1L curriculum.

Through her constantly updating social media, you get a sense of her coursework. There was the criminal law issue spotter that featured some of her famous friends. Definitely some appropriate 1L work. Then she explained that she was derelict in her live tweeting duties to keep up with torts homework.

Now she’s taken to her Instagram stories to report once the kids go to bed, Kim K. starts work on her contracts homework. And, yes, of course, she’s rocking the IRAC method.

Looks like she’s really serious about living that law school life.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

“Flow.”

It’s the mental state in which you’re fully immersed in an activity, performing it effortlessly, and almost divorced from the rest of the world.

A great pianist might experience the state of flow in the midst of a performance.  A great athlete might experience it in the midst of a game.  Flow is being “in the zone,” although the “flow state” was actually named by Mihaly Csikszentmihalyi in 1975, of course.  (Have I mentioned that Google is a great gadget?)

What does flow have to do with law?

Because lawyers can be in a flow state, too.

Did you ever argue an appeal, and the only thing that existed in the world was the panel?  You were completely focused on questions, and answers, and making your point.  When the red light came on, you didn’t know where the time had gone, and everyone congratulated you on the argument.  Where were you?  In flow.

Or maybe it happens during jury trials (though long trials are a long time to remain in a state of flow).

Some folks are in a state of panic before jury trials.  Some are in stress.

But then the trial starts, and a lucky few go into flow, performing effortlessly at an extraordinarily high level.

(Or some people absolutely hate preparing for and trying cases, but they love the ability to tell war stories after the fact, and that’s where they find joy in the game.  To each his own.)

Maybe you find flow elsewhere in the law:  Arguing tough motions.  Deposing adverse experts.  Sitting at a desk, pen in hand, marking up an extremely tricky brief.

You look at your watch, and hours have vanished.  The work product is great.  You were in flow.

At a law firm, the times when you’re in flow are the best times.   You’re doing something challenging.  You’re immersed in it.  You’re performing at your best.  And time passes unnoticed.

Sort of the opposite of document review, but that’s another story.

When you go in-house, you still need flow:  It’s part of what makes work satisfying.  But you’ll probably have to find it in different activities.  Depending on where you work, you may no longer be arguing motions or appeals, taking depositions, or trying cases.  So you’ll have to find flow elsewhere.

You might still find flow in editing briefs.  You might find flow in giving presentations to the Board.  There might be some other aspect of your in-house job that has you immersed and performing at your best.

But be sure that there’s an opportunity to be in flow before you choose (or as you decide whether to keep) your in-house job.

Flow is, after all, a big piece of what makes work worth doing.  (You may be in flow for only a small percentage of your time at work, but it could easily be those moments that make your job worthwhile.)

If you choose a job that provides many benefits, but strips away the chance for you ever to be in flow, you may have picked the wrong job.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

The preparations for the much awaited people’s Free Zimbabwe peaceful march remain on course and are now at an advanced stage.

The people’s Free Zimbabwe peaceful march will be held on Friday 16 August 2019, in line with Section 59 of our national Constitution that guarantees all citizens of Zimbabwe the unconditional right to demonstrate and petition peacefully.

In this regard, no stone has been left unturned in strict measures to ensure that the people’s Free Zimbabwe march is going to be most peaceful one ever witnessed in the country.

In particular, hundreds of peace marshalls will be deployed.

Further, digital cameras will be used to film the entire march to ensure that any violent planted elements trying to disrupt the peaceful march will be fully recorded.

This is meant to ensure that the people’s Free Zimbabwe march is not just guaranteed to be peaceful, but also to be resounding success.

The MDC is thus concerned by the spirited attempts by Zanu PF and the rogue regime to message and plan for the people’s Free Zimbabwe march, that they are clearly not part of.

Indeed, Zanu PF and the rogue regime have no business whatsoever related to the people’s Free Zimbabwe peaceful march.

lt is very clear that that both Zanu PF and the rogue regime are now in a panic mode and desperate to justify their well known own violent behaviour.

This then explains why they are now actively using their functionaries such as Cain Mathema, Pupurai Togarepi, Energy Mutodi, and Victor Matemadanda, among others, in a futile attempt to dictate the nature and character of the forthcoming people’s Free Zimbabwe peaceful march.

lndeed, Zimbabweans are not surprised at all by the rogue regime’s desperate efforts to disrupt the popular people’s Free Zimbabwe peaceful march.

The rogue regime’s behaviour is typical of similar other dictatorships that always panic whenever the people try to express their constitutional rights.

lndeed, the rogue regime’s behaviour is a strong reminder of such dictatorships under despots like Idi Amin Dada, Sani Abacha, Mobutu Sese Seko, Slobodan Milosevic, Pol Pot, Augusto Pinochet, Nicolae Ceausescu, among others.

But like those similar dictatorships the rogue regime in Zimbabwe will not be able to stop the people from expressing their popular wishes and aspirations. ln fact, like all other dictatorships, the rogue regime will eventually collapse under the heavy weight of the democratic dreams of the people of Zimbabwe.

lronically, the rogue regime claims it is a “New Dispensation”. Yet its behaviour clearly shows that it is nothing but the same old Zanu PF regime Zimbabweans have come to know and fear since 1980.

The rogue regime is continuing in the same old repressive tendencies that were used against Joshua Nkomo and PF Zapu, Edgar Tekere and ZUM; and Morgan Tsvangirai and MDC.

However, no amount of determined attempts by the rogue regime will stop the popular tide of the people’s call for democratic change in Zimbabwe.

lt is now so clear that all Zimbabweans are now so tired of suffering endlessly, and totally fed up with the painful repression from the rogue regime.

Indeed, the rogue regime must be reminded that the people of Zimbabwe are now so determined to make sure that all perpetrators of violent injustice will no longer be allowed to get away with murder, both literally and metaphorically.

lndeed, freedom may be denied temporarily, but it cannot be denied permanently. Neither can be justice be delayed forever.

So it is now just a matter of time before freedom and justice prevail in Zimbabwe.

lt is now clear to the whole world and indeed to all Zimbabweans across the entire national spectrum, that the rogue regime has failed dismally to resolve the never ending crisis in Zimbabwe.

This then explains why so many Zimbabweans from across all political divide; be it business, labour, churches, women, youths, students, social movements, civil society, among others; are all very eager to actively participate in the forthcoming people’s Free Zimbabwe peaceful march.

lndeed, the MDC is totally confident that the people’s Free Zimbabwe march on Friday 16 August will both be peaceful and a resounding success.

MDC: Change that Delivers

Daniel Molokele
MDC National Spokesperson

Post published in: Featured

The House of Assembly Has Adjourned until 27th August

The Senate Will Meet on Wednesday 14th August for Special Business

By furious fast-tracking of business on Wednesday 8th [they sat until 10.39 pm] and Thursday 9th [until 4.10 am on Friday morning] the National Assembly managed to pass, not only the Finance (No. 2) Bill and the Appropriation Supplementary (2019) Bill [the two Budget bills], but also, with amendments, the Maintenance of Peace and Order Bill [see Bill Watch 43/2014 of 9th August [link]]. The House then adjourned until 27th August.

At the end of their sitting at 3.55 pm on Wednesday 7th August, Senators resolved to adjourn until Tuesday 27th August as it then seemed highly unlikely that the National Assembly would be sending the two Budget bills – or any other Bill – to the Senate in time for Senators to deal with them before the holiday weekend.

But late on Friday it was announced by Parliament that the President had summoned the Senate to re-assemble on Wednesday 14th August, two weeks earlier than expected.

Senators Recall

The President acted in terms of section 146 of the Constitution, which empowers him to alter a House’s own recess arrangements by summoning it to sit at any time “to conduct special business”.  In this case the special business cited in Parliament’s announcement of the recall, is to finalise the three Bills that were passed by the National Assembly last Thursday [in fact early Friday morning] and immediately sent to the Senate – the Finance (No. 2) Bill, the Appropriation Supplementary (2019) Bill and the Maintenance of Peace and Order Bill.

Why the Hurry?

What is it about these Bills that qualifies as “special business”?

There is only one truly special element to the business facing the Senate – the need to avoid the collapse of the new monetary arrangements at midnight on Wednesday 21st August.  That collapse may occur if Part VI of the Finance (No. 2) Bill does not become law on or before the 21st August.  This deadline stems from the temporary nature of  SI 33/2019, which underpins these arrangements.  SI 33 – which was gazetted under the Presidential Powers (Temporary Measures) Act on 22nd February – is due to expire at midnight on Wednesday 21st August. Part VI [clauses 20 to 24] of the Finance (No. 2) Bill is designed to validate and regularise [“statutise” is the word used in the explanatory memorandum to the Bill] the monetary system changes enacted by the SI 33 – and, “for the avoidance of doubt”, SI 142/2019.

If the Finance (No. 2) Bill is passed on Wednesday by the Senate there will be only seven days left for the President to assent to and sign it and have it published as an Act of Parliament in the Government Gazette.

[Note previously there have been gaps after the expiry of Presidential Powers regulations – but there has been so much contention over these particular monitory measures that it is likely the government is acting to avoid more litigation].

The Senate has limited power when it comes to money bills – they cannot make amendments, but can only suggest amendments and send the Bill and suggested amendments back to the National Assembly for consideration.  This would cause a delay which the Government may well pressure the Senate to avoid.

The Senate can make amendments to the Maintenance of Peace and Order Bill and it is hoped that they will take time to to reflect on the Bill in its amended form.  It still open to serious criticism.  As pointed out in our Bill Watch 44/2019 [link] there are still unconstitutional clauses.

Relevant Documents Available on the Veritas Website

Appropriation Supplementary (2019) Bill [link]

Finance (No. 2) Bill [link]

Original Maintenance of Peace and Order Bill [link]

Joint Report on the Maintenance of Peace and Order Bill by  the Portfolio Committee on Defence, Home Affairs and Security Services and the Thematic Committee on Peace and Security [link]

Amendments to Maintenance of Peace and Order Bill made on 8th August [link]

Annotated Maintenance of Peace and Order Bill indicating how the amendments of 8th August fit into the text of the Bill [link].

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

Post published in: Featured

Amendments Made to the Maintenance of Peace and Order Bill

At a sitting that started on 8th August and ended at 4.10 am on 9th August the National Assembly passed the Maintenance of Peace and Order Bill with amendments, most of which were intended to meet objections raised by the Parliamentary Legal Committee [PLC] in its adverse report on the Bill.  [The adverse report was outlined and discussed in Bill Watch 39/2019 of the 29th July [link].]  Following a summons by the President recalling the Senate from its current recess, the Senate is now due to consider the amended Bill on Wednesday 14th August, together with the Appropriation Supplementary (2019) Bill and the Finance (No. 2) Bill.

This bulletin analyses the amendments which the National Assembly made to the Maintenance of Peace and Order Bill.

Relevant Documents Available on the Veritas Website

Original Maintenance of Peace and Order Bill [link]

Joint Report on the Maintenance of Peace and Order Bill by  the Portfolio Committee on Defence, Home Affairs and Security Services and the Thematic Committee on Peace and Security [link]

Amendments to Maintenance of Peace and Order Bill made by the National Assembly [link]

Annotated Maintenance of Peace and Order Bill indicating how the amendments made fit into the text of the Bill [link].

The Amendments Made by the National Assembly

New Preamble:

A preamble was inserted in the Bill setting out the provisions of section 86 of the Constitution, which allows laws to limit rights and freedoms guaranteed in the Declaration of Rights.  Presumably, the preamble is intended to justify and explain the limits the Bill will impose on freedoms to assemble, demonstrate and petition Parliament.

Clause 4: Temporary prohibition of possession of weapons

This clause will give regulating authorities (senior police officers) power to ban for up to three months the carrying of weapons in public.  The clause was amended:

• to exclude traditional weapons from the list of weapons that can be banned
• to prohibit the renewal of a ban within a year after its expiry, unless a magistrate has permitted the renewal
• to require bans to be communicated through traditional leaders in the areas where they have been imposed
• to give aggrieved persons a right to appeal against a ban to a magistrate, rather than to the Minister of Home Affairs.

While the amendments improve the clause, it is still too widely phrased.  Anyone who carries a banned weapon in public will be guilty of an offence and liable to imprisonment for six months, regardless of their justification for having the weapon.

Clause 7: Notice of processions, public demonstrations and public meetings

This clause will require convenors of public gatherings to notify the police in advance of the gatherings;  if they fail to do so they will be guilty of an offence and liable to imprisonment for up to a year.  The PLC considered that imprisonment was too severe a punishment for the offence and that a fine would suffice.

The amendment passed by the Assembly does not meet the PLC’s objection because it will retain the punishment of imprisonment for failing to give notice of a gathering.  Moreover, it will create two further offences ‒ failing to notify the police if a gathering is postponed or if it is cancelled.

The amendment does not meet more general objections raised by the PLC, that clauses 5 to 8 of the Bill will unduly stifle freedom of assembly and association, and that clause 7, in particular, will prevent spontaneous gatherings being held.  Judgments of the Constitutional Courts of this country and South Africa have emphasised the importance of allowing spontaneous demonstrations;  the judgments are referred to in the Bill Watch mentioned at the beginning of this bulletin.

The amendment is also ineptly drafted.  It does not actually say that failing to give notice of a gathering will be a criminal offence, though by prescribing a heavy fine and imprisonment it obviously will be.  Also, the level of the fine to be imposed for the two new offences is not specified ‒ something that the Senate will have to rectify with a further amendment.

Clause 12: Civil liability of convenor of a gathering

This clause will impose civil liability on convenors for damage or injuries caused at public gatherings which have been held in contravention of the Bill.  The PLC said the clause was too broad and an invasion of freedom of assembly and association guaranteed by section 58 of the Constitution.

The amendments passed by the National Assembly will make the clause less oppressive ‒ but only very slightly.  They will make convenors responsible for loss or injury “caused by” the public gathering, not for loss or injury “arising of or occurring at” the gathering.  And they will allow co-convenors to avoid liability if they show they were not responsible for failing to give notice of the gathering.

The changes made to the clause are insignificant and it remains far too broad.

Clause 13: Powers of Police

This clause will give police officers power to control disorder at gatherings and, in its original form, the clause would have given them the right to use firearms and other weapons as a last resort.  The National Assembly passed an amendment to the clause to remove the references to firearms and weapons.  This is a welcome and necessary change, one which was not suggested by the PLC.

Clause 14: Persons to carry identity documents

This clause required every adult to carry his or her identity document in public and gave police officers power to demand that he or she produce it.  This, as the PLC rightly pointed out, was unconstitutional.

The clause has been amended so that it provides merely that if a person is reasonably suspected of having committed an offence the police can demand his or her identity document.  The person will then have to produce it within seven days at a police station. The clause is now constitutional.

The next five amendments were not suggested by the PLC and were made in the course of debate during the Committee Stage in the National Assembly.

Clause 15: Cordon and search

This clause will allow the police to establish cordons round an area in order to contain public violence within the area or to prevent violence spreading to the area.  The effect of the amendment is that cordons may be established for those purposes if it is reasonably necessary to do so in the interests of, amongst other things, “public morality, public health or regional or town planning”.  What public morality, public health or town planning have to do with containing public violence is anyone’s guess.

Clause 19: Powers of search and seizure

This clause will allow a court convicting a person of an offence involving public security to order the forfeiture of any vehicle, aircraft or vessel involved in the offence.  The amendment will limit the court’s power to vehicles, aircraft or vessels used to commit the offence or to enable it to be committed.

Clause 21: Special jurisdiction of magistrates

This clause will give magistrates jurisdiction to impose very severe sentences for offences involving public security.  The National Assembly resolved to delete a subclause giving the President power to suspend the operation of the clause.  While deleting the subclause is a good idea, magistrates’ sentencing powers under the clause are still far too great and should only be exercised by the High Court.

New clause: Repeal of POSA

The Assembly resolved to insert a new clause repealing POSA;  the Bill in its original form omitted to do this.

Schedule:

The Assembly voted to insert a provision that will allow “meetings of traditional leaders with their subjects” to be held without the need to give prior notice to the police.

Is the Bill Now Constitutional?

No it is not.  As pointed out above, the amendments have not met the PLC’s objection that clauses 5 to 8 unduly limit citizens’ constitutional right to demonstrate peacefully in public.  Clause 12 is equally repressive, by imposing excessive civil liability on convenors who fail to notify the police of forthcoming demonstrations.  The Bill still prohibits demonstrations near Parliament which, as the PLC said, unduly inhibits citizens from petitioning Parliament.

It is to be hoped that the Senate will make further amendments to protect the essential democratic freedoms of assembly and demonstration, and to render the Bill fully compliant with the Constitution.  Further amendments to that end could include the following:

• Allowing unplanned demonstrations and meetings to be held.
• For planned demonstrations and meetings, reducing the period of notice that must be given to the police beforehand:  four days should be ample notice.
• Giving a magistrate, rather than a senior police officer, the power to prohibit the holding of gatherings under clause 8(9) of the Bill.  In other words if a regulating authority (a senior police officer) believes that a gathering will cause serious disorder, he or she should approach a magistrate for an order prohibiting the gathering, and the magistrate should be obliged to consult the organisers before issuing such an order.
• Allowing organisers of public gatherings to escape civil liability for loss or damage under clause 12 of the Bill if they can show that the injury or damage would probably have occurred even if they had complied fully with all instructions given by the police.
• Giving courts a discretion to award compensation for loss or damage caused by violent public gatherings under clause 12(5) of the Bill.  At present courts must award compensation, whether victims have asked for it or not.
• Obliging the Police, whenever they use force to disperse or control a gathering, to make a full written report to the Minister with a copy to the organisers of the gathering, and obliging the Minister to lay the report before Parliament.

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