Commentary by Muna Ndulo
Full Case Can be Found HERE
The petitioners sought a declaration that sections 5, 6 and 7 amended by Statutory Instrument No. 1 of 1996, of the Public Order Act, Chapter 113 of the Laws of Zambia were unconstitutional. Section 5 provides in part (4) that any person intending to assemble or convene a public meeting procession or demonstration shall notify the police in writing of such intent fourteen days before the meeting. Section (6) provides that where it is not possible for the police to adequately police any particular public meeting, procession or demonstration, the regulating office of the area shall, at least five days before the date of the public meeting, procession or demonstration, inform the conveners of the public meeting, procession or demonstration in writing the reasons for inability of the police to police the public meeting procession or demonstration and shall propose an alternative date and time for the holding of such public meeting, procession or demonstration and (7) provides that whenever the police notify the conveners of a public meeting, procession or demonstration that it is not possible for the police to adequately police any proposed public meeting, procession or demonstration, such public meeting procession or demonstration shall not be held.
THE LEGAL ISSUE
Whether sections 5, 6, and 7 (as amended by Statutory Instrument No. 1 of 1996) of the Public Order Act are unconstitutional.
Judge Hamaundu held that the amended section (5) removed the requirement that the convener of a meeting should apply for a permit and replaced it with the requirement that the convener notify the police of the intended meeting. He further held that the amendment has introduced an administrative grievance procedure in subsections (8) and (9) of section 5. A person aggrieved by the regulating officers decision has a right to appeal to the Minister and therefore to the High Court. In so holding, he came to the conclusion that the relevant sections were not unconstitutional.
In his judgment Judge Hamaundu fails to address the fact that although section 5 has changed from requiring a permit to requiring notification, the conditions attached to the notification are such that in substance, section 5 requires a permit and is therefore unconstitutional. The Oxford English dictionary defines “permit” as “an official document granting authorization.” In contrast it defines notification as “make known.” The amended section 5 outlines numerous conditions for the holding of an assembly and moreover the applicants have to wait for police authorization before they can proceed to hold the assembly. Section 5 gives the police absolute power to determine whether or not an assembly, meeting or procession should take place. This scenario is clearly not envisaged by the constitution. The constitution does not in any way intend that the enjoyment of a rights and freedoms enshrined by it in articles 20, 21, and 28 be conditioned or contingent on the opinion of an official of the executive arm of government. A law which confers discretion on a public official without indicating with sufficient precision the limits of that discretion does not satisfy the quality of the “law” contemplated in article 21 by the requirements of prescribed law.
In New Patriotic Party vs. Attorney-General the Ghanaian Supreme Court held that “restrictions as are provided by article 21(4) of the 1992 constitution may be necessary from time to time and upon proper occasion. But the right to assemble, protest or demonstrate cannot be denied.” The Ghana Supreme Court nullified section 12 (a) of the Public Oder Decree which gave a police officer an unfettered discretion to stop and cause to be dispensed any meetings or processions in any public place in contravention of sections 7 and 8; and section 13(a) which made it an offence to hold such procession, meetings and public celebration without permission. The Court of Appeal in Nigeria, in Inspector-General of Police v. All Nigerian Peoples Party and Others, after holding that the permit system under the Nigerian Public Order Act was unconstitutional stated: “constitutions should be interpreted in such a manner as to satisfy the yearnings of the Nigerian Society. The court observed “A rally or placard-carrying demonstration has become a form of expression of views on current issues affecting government and the governed in a sovereign state. It is a trend recognized and deeply entrenched in the system of governance in civilized countries. It will not only be primitive but also retrogressive if Nigeria continues to require a pass to hold a rally. We must borrow a leaf from those who have trekked the rugged path of democracy and are now reaping the dividend of their experience.” In In re Munhumeso, the Zimbabwe Supreme Court held that powers placed in the hands of the police are arbitrary where (a) there is no criteria to be used to regulate the authority in the exercise of its discretion, (b) the regulating authority is not obliged to take into account whether the likelihood of a breach of peace could be averted by attaching conditions such as time, duration and route, and (c) it allows refusal of a permit even on the slightest possibility of breach of peace.
The approach adopted by the African courts as explained above is also supported by case law elsewhere in the world. In the US case of Shuttleworth v. Birmingham, the court found that the city commission had power to refuse permission for a procession on such vague criteria as “public welfare, safety, health, decency and public morals” and concluded that that this created an avenue for arbitrariness. It struck down the legislation. Similarly, in Gregory v. Florida a statute which gave the police almost unlimited discretion to decide whether or not demonstrators had committed a “diversion tending to a breach of peace” was declared an unconstitutional interference with Freedom of Assembly. Shuttleworth stated that the test required for the restricting law is an objective one and should not depend on the subjective view or opinion of a police officer. The Zambian statutes prescribe criminal penalties in the event of breach of the restrictions imposed on Freedom of Assembly. It is one thing for the court to uphold the restrictions and quite another for it to enforce the criminal penalties accompanying any breach of the restrictions. The penalty itself may be declared unconstitutional as an infringement of the Freedom of Assembly if it is deemed disproportionate. In Ezelin v. France, the applicant participated in a demonstration against the courts and judges. The demonstration degenerated into violence, and the applicant, who was a lawyer, refused to answer police questions and did not disassociate himself from the demonstration. He was reprimanded by the Court of Appeal in its exercise of disciplinary functions over lawyers. The European Court of Human Rights held such a penalty to be disproportionate to the interest of the prevention of disorder. Clearly, therefore, a court may accept certain restrictions as legitimate but still outlaw a disproportionate penalty accompanying breach of the restrictions.
Interestingly the facts in the Law Association of Zambia v. Attorney- General are strikingly similar to the facts in Ghana case of New Patriotic Party vs. Attorney General and the Nigerian case of Inspector-General of Police v. All Nigerian Peoples Party and Others. In the Ghanaian case the petitioners had been granted a permit however the police later withdrew the permit. In the Nigerian case respondents being a registered political party requested the defendants to issue to their members permits to hold unity rallies throughout Nigeria to protest the rigging of the 2003 elections. The request was refused. In the Zambian case the UNDP on numerous occasions notified the police of their intention to hold rallies or protests. The Police offered a variety of reasons including, on 29 May 2012, that (i) the police would be unable to police the protest and (ii) the police had information that a certain group of people intended to disrupt the procession—effectively given an unnamed group the right to prevent others from having an assembly and (iii) that the subject matter of the procession was already in the courts. In the notification of August 1, 2012, the police initially had no objection to the intended August 2012 rally being held, subsequently, however, the police withdrew their support on the ground that manpower to police the rally had been diverted to the Copper belt where a football march between Zambia and Uganda needed to be policed. The UNDP obtained a court order staying the decision by the police. The Police disobeyed the court order and sealed off the venue and maintained police presence to prevent people gathering at the site. On September 10, 2012 the UNDP again notified the police of its intention to hold a public rally on 16th September, 2012 at the same venue. The police informed the UNDP that the rally would not be allowed because the venue was the subject of litigation. The UNDP then notified the police of its intention to hold a public rally on the 16th of September 2012 this time in Chawama. The police did not allow the rally on the grounds that the situation in Lusaka at that time rendered densely populated areas unsuitable as venues for political rallies. In of January 2013, the UNDP notified the police of its intention to hold a public rally in Kabwata. The police again refused to grant permission on the grounds that the security of both the police and members of the public could not be guaranteed. In this case the Minister of Home Affairs did however subsequently allow the public rally to be held.
Section 5 of the Public Order Act is nothing more than a permit system, the police administer it in that way and use it to interfere with the Freedom of Assembly. The fact that the decisions of the Police can be appealed to the Minister and eventually to the courts does not in any way make section 5 constitutional. In fact, the facts before the court clearly demonstrate the hollowness of that approach. The court failed to realize that Freedom of Assembly is the foundation to the life of a democracy. It helps create space for collective politics and secondly it is essential in democratic politics because only through meeting and talking with fellow citizens can we critically explore the various beliefs and values which animate political decisions. The more discussions that take place the better and more legitimate political decisions are likely to be. The Public Order Act in its present form is undemocratic and unconstitutional. It was conceptualized in a colonial setting in which Zambians were subjects and not citizens. A democratic society involves the exchange of ideas formulated in a culture of free interaction and association. It is unfortunate that the court missed out on an important opportunity to throw out this antithesis to a democratic society.
 Part (5) states that the notice required under subsection (4) shall contain an undertaking by the persons intending to assemble or convene a public meeting, procession or demonstration that order and peace shall be maintained through the observance of the following conditions: (a) that they have been informed by the police that the site for the meeting has not already been granted to another convener for the holding of a public meeting, procession or demonstration; (b) that the route and the width of the route is suitable for the holding of processions in accordance with the width and route specifications for such purposes as specified by the Minister by statutory order;(c) that marshals of a number sufficient to monitor the public meeting, procession or demonstration are available and shall co-operate with the police to ensure peace and stability; (d) that the commencement, duration and destination of the public meeting, procession or demonstration shall be notified to the police; (e ) that the public meeting, procession or demonstration shall not create a risk to security or public safety, a breach of the peace or disaffection amongst inhabitants of that neighborhood; and (f) that the conveners of the meeting, procession or demonstration have been assured by the police that at the time of the proposed activity shall be held it will be possible for it to be adequately policed.
 1992-93 GBR 585-(2000) 2HBLRA, 1.
 (2) 18 NWLR 457 C.A.
 1994(1) ZLR 49(s).
 (1969) 394 US 147.
 (1969) 394 US 111.