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REPUBLIC OF ZEMUNDA

IN THE HIGH COURT OF ZEMUNDA

PETITION NO E 698 OF 2023

IN THE MATTER BETWEEN

TETEA HAKI COMMISSION ON HUMAN RIGHTS……………. 1ST

PETITIONER

OMUKOSI WASE……………………………………………………... 2ND

PETITIONER

AND

ATTORNEY GENERAL………………………………………………. 1ST

RESPONDENT

CHIEF MAGISTRATE COURT OF ZEMUNDA AT INGO CITY…. 2ND

RESPONDENT

INSPECTOR GENERAL OF THE NATIONAL POLICE SERVICE… 3RD

RESPONDENT

MEMORIAL FOR THE APPLICANT

Table of contents

List of legal sources……….3

List of abbreviations……….4

List of caselaws...................5

Summary of facts………….6-10

Prayer………………………11

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List of Legal sources

Constitution of Zemunda

Public order act

International Covenant on Civil and Political Rights

African Charter on Human and Peoples Right

United National Code of Conduct

3
List of Case laws

Citizens Against Violence (CAVI) & 14 others v Attorney General & 3 others [2020] eKLR

Noah Kazingachira Vs Zimbabwe, 2004

Ferdinand Ndung’u Waititu & 4 others v Attorney General & 12 others

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List of Abbreviations

HR- Human Rights

THC- Tetea Haki Commission

ICC- International Criminal Court

HCZ- High Court of Zemunda

NPS- National Police Service

POA- Public Order Act

CPS- Central police Station

COZ- Constitution of Zemunda

IHRI-International human rights instrument.

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Summary of Facts

As a democratic state Zemunda values the supremacy of its constitution, sovereignty of the
people, the separation of powers and the rule of law. The 2010 constitution of the Republic of
Zemunda is a transformative constitution.In August 2023, Zemunda conducted its third general
elections under the constitution of Zemunds 2010. It was highly contested and Mr. Wiki Ijayo
emerged as the winner. Mr. Sema, the runners up, disputed the outcome claiming it was not
conducted in accordance with the constitution. Despite this the SC ruled in favour of Mr. Wiki
Ijayo.

Mr. Ijayo’s national agenda focuses on agriculture, uplifting small and medium enterprises,
health care and affordable housing. Other collateral agendas include job creation and
industrialization. A budget of 3.2 TZS is required. Omukosi Wase, a human right activist, has
been advocating against heavy tax burden. He appeared in several media stations advocating that
the government should use other means to finance its budget.

The people took their frustrations to the streets to demonstrate. Omukosi announced in his social
media platform that he enjoys huge following that he will conduct a grandfather of all
demonstrations. Omukosi gave a two-day notice to the CPS. The same evening the County
Commander announced there will be no demonstrations as the police had not received any valid
notice to hold a demonstration.

On the day of demonstrations thousands of demonstrators assembled carrying empty packets of

Unga, pluck cards of pay slips and sufurias on their heads. The protests turned violent when the
police established a barricade to prevent protestors from accessing the presidential way where
the office of the President was located. The police descended on the demonstrators as they were
destroying property. The police used water cannons, truncheons and tear gas indiscriminately.
The protestors injured guards, entered buildings and vandalized property.

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MERIT A

Whether the actions of the Police and other state actors to quell the demonstrations
violated the right to assemble, demonstrate and picket enshrined in the Constitution and
international human rights instruments.

With crystal clarity we submit that indeed the police and other state actors violated the right to
assemble, demonstrate and picket. Pursuant to Article 37 of the COZ promulgated 2010,
provides that every person has a right, peaceably and unarmed, to assemble to demonstrate to
picket and to present petitions to public authority 1. This is an inherent right not only provided by
this national legislation but also by international laws. The right of peaceful assembly shall be
recognized. No restrictions may be placed on the exercise of this right other than those imposed
in conformity with the law and which are necessary in a democratic society in the interests of
national security or public safety, public order, the protection of public health or morals or the
protection of the rights and freedoms of others2.

On limitation of this right, we understand the conjunctive test is twofold, one, it can be limited if
it is prescribed by the law, two, it can be limited with respect to the principle of necessity and
proportionality. The right ought not to be violated by the police. The situation did not pass the
conjunctive test to be limited.

a) limitation prescribed by the law.

The police illegally limited this right. They ignored the fact that Omukosi adhered to the
regulations of the POA3. Moreover, the police violated the right to assemble by barricading
protestors from accessing the Presidential Way 4, where the Office of the President is located.
This prevented them from exercising their right to peacefully assemble and express their
opinions5, which is a fundamental human right protected by various IHRI and the COZ.
Therefore,this right can't be limited in this situation with regards to the prescribed law.

b) limitation by principle of necessity and proportionality.

1
Constitution Of Zemunda Article 37 2010.
2
International Covenant on Civil and Political Rights Article 21 1976.
.
3
Public Order Act 2019 Chapter 5 s 1.
4
Fact 15.
5
Universal Declaration of Human Rights 1948 Article 20.

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Tens of thousands of people showed up in the capital to attend the demonstrations. The
protestors carried empty packets of unga, pluck cards of payslips, and sufurias on their heads.
The demonstrations were peaceful in the capital but turned violent when the police barricaded
protestors from accessing the Presidential Way6.There was no need for the police to interfere
with the demonstrations7, which were peaceful. This action by the police prevented the protestors
from exercising their right to assemble and express their opinions.

In the case of Ferdinand Ndung’u Waititu & 4 others v Attorney General & 12 others 8, there is
no doubt that the right to assemble, demonstrate, picket and petition as enshrined under Article
37 is not absolute. It may be limited by the law. Foremost, the Constitution itself has provided
claw-backs. Demonstrators, picketers and petition-presenters must do so “peaceably and
unarmed”. Assemblies, picketing and demonstrations which are not peaceful are excluded from
the protection of the Article. If they consist of violence to or intimidation of the public, then the
assembly or the demonstration ought to be stopped. In this instance, the demonstrations were
peaceful until the police barricaded the protesters. The NPS does not provide for creation of
barricades by the police and hence there was no need for the police to barricade. The protestors
became violent out of provocation, they acted at the heat of the moment when they were denied
access to the Presidential way.

6
Fact 15.
7
ICCPR/C/GC 37(24).
8
Ferdinand Ndungu Waititu & 4 others v Attorney General & 11 others [2016] eKLR

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MERIT B

Whether the police violated their obligations under the Constitution and International Law
regarding the use of force during demonstrations.

With consideration we submit that the police indeed violated their obligations under the
Constitution and International Law regarding the use of force during demonstrations. The police
are only mandated to use force when a non-violent means is ineffective or without any promise
of achieving an intended result 9. The use of force is subject to specific standards and limitations
aimed at safeguarding human rights and ensuring the responsible and lawful exercise of law
enforcement powers. Law enforcement officials may use force only when strictly necessary and
to the extent required for performance of duty 10. The international standards regarding the police
use of lethal force and firearms are underpinned by two fundamental principles pertaining to the
use of force by the police generally, namely necessity and proportionality.

Factualy, citizens have the fundamental right and freedom that may not be limited 11. The
freedom from torture and cruel, inhuman or regarding treatment or punishment 12 shall not be
limited.

Moreover, human beings are inviolable. Every human being shall be entitled to respect for his
life and the integrity of his person. No one may be arbitrarily deprived of these rights 13.Every
citizen has a right to life. 14. The police descended on the protestors. They used truncheons, water
cannons, and tear gas and shot in the air 15. Later, 300 people were admitted to various hospitals
in the city with brutal injuries from gunshots, bone fractures, and other internal injuries. This
infringes their to free from inhumane treatment. Fourteen people were reported dead from the
injuries sustained during the demonstration. The police clearly denied the protestors their
fundamental right to life.

In Noah Kazingachira Vs Zimbabwe, 2004, the African Commission noted that when there have
been allegations levelled against state agents, regarding the violation of fundamental human
9
National Police Service Act 2012 sch 6.
10
United State Code of Conduct Article 2 1781.
11
Constitution of Zemunda Article 25 2010.
12
Constitution of Zemunda Article 25(a) 2010.
13
African Charter on Human and Peoples Rights Article 4 1986.
14
Constitution of Zemunda Article 26 2010.
15
Fact 15.

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rights, “……. the African Commission will first establish whether the four deceased persons
referred to in the Communication were killed by agents of the Respondent State in circumstances
amounting to wrongful death, summary executions or extra-judicial killings through an excessive
use of force.’’ The ruled that sanctity of life is the cornerstone of human rights.

In Citizens Against Violence (CAVI) & 14 others v Attorney General & 3 others [2020] eKLR 16
where the petitioners claimed that the police responded in a violent manner. This after post-
election violence erupted after election results were announced. The court stated that the use of
lethal force or firearms by the police or other state agents was only permissible in the most
extreme circumstances, such as self-defence or the defence of others from serious bodily harm or
death. when such force has to be used, it must be kept to the minimum required to bring the
situation under control.

In conclusion we find it prudent that the police service is the organ responsible for maintaining
law and order, preservation of peace, protection of life and property, as well as prevention and
detection of crime including the apprehension of offenders. In this matter the police performed
extra judicial killings hence overused their obligation to use force.

PRAYER.

a) We pray this court finds that the police infringed the protestors right to assemble, demonstrate,
and picket.
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Citizens Against Violence (CAVI) & 14 others v Attorney General & 3 others [2020] eKLR

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b) We pray that this court finds the police guilty for using excessive force.

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