News:Legal experts say recent Flag ban by Govt is unconstitutional

<vote /> Alex Magaisa and Fadzayi Mahere have commented on the recent Flag ban which was issued yesterday by the Ministry of Justice, Legal and Parliamentary affairs. Magaisa has labelled the ban as unconstitutional while Mahere has concluded that no law bans the wearing or use of the national flag by citizens. Government yesterday warned Zimbabweans against the abuse, manufacture and importation of the Flag.

Magaisa argues that Section 5 of the Constitution on which the ban is partly based on is unconstitutional. He further notes that the legislation is vague in its wording and asks,

What exactly is meant by the offence of "insulting" the national flag? What is meant by bringing the flag into "disrepute"? Who makes the determination and at what point is that determination made? Is it before or after a person has used or applied the national flag?

He notes that the ban is an infringement of identity, dignity and free expression. He says,

The legislation unduly limits the freedom of expression of identity provided for under section 61 of the Constitution. Section 61 is a critical foundation to the exercise of other rights, including the exercise of the freedom to demonstrate under section 59 and political rights under Section 67. The ability of an individual to express him or herself is at the core of the right to liberty.

Magaisa further argues that the ban is an infringement of Section 134 of the Constitution which prohibits subsidiary legislation from limiting or infringing upon rights set out in the Declaration of Rights. Mahere also comments on the regulations and highlights that the Regulations used as the basis of the ban do not require citizens to seek the permission of the Permanent Secretary to use, wear or possess the flag in circumstances where the citizens do not intend to sell, import or manufacture the flag. She also cites Section 61 and says,

Section 61 of the Constitution empowers citizens to freely express this thought - including in a manner that respectfully uses the national flag.

She also uses Section 134 and argues that the President does not have the power to limit the rights accorded to the Zimbabwean citizen by Section 35(4), 60(1)(b) and 67(2)(b) of the Constitution,

On an application of section 134 of the Constitution, the President does not have the power to limit these fundamental human rights by the expedient of subsidiary legislation promulgated in terms of the Flag of Zimbabwe Act - nor does the Permanent Secretary of Justice. To the extent that the President or any public official would purport to do so, their conduct in so doing would be invalid and of no force or effect in terms of section 2 of the Constitution which provides that the Constitution is the supreme law of the land and that any law or conduct inconsistent with it is invalid to the extent of the inconsistency.

She concludes that no

law bans the wearing or use of the national flag by citizens. If anything, the Constitution empowers citizens respectfully and peacefully to use the flag to propagate the conscious belief that citizenship is embodied by the national flag - and to wear, use, possess or display the flag accordingly - particularly where such conduct is driven by respect and adoorstops for the values embodied in the flag.

However Magaisa encourages opposition parties to challenge the ban in court as well as on the political arena.

Read More: Alex Maigaisa, Fadzayi Mahere


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