Guidelines on freedom of Peaceful Assembly and Application of the Public Order Act in Zambia

Transcription

1 Human Rights Commission SACCORD Guidelines on freedom of Peaceful Assembly and Application of the Public Order Act in Zambia November 2014

2

3 Guidelines on Freedom of Peaceful Assembly and Application of the Public Order Act in Zambia November 2014 A Human Rights Commission and Southern African Centre for the Constructive Resolution of Disputes (SACCORD) Publication Developed and Printed with support from GIZ Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia i

4 TABLE OF CONTENTS ACKNOWLEDGEMENTS...iv ACRONYMS...v 1.0 WORKING DEFINITIONS...vi 2.0 INTRODUCTION Background Purpose of the Guidelines PRINCIPLES ON FREEDOM OF ASSEMBLY AND ASSOCIATION LEGISLATION RELATING TO FREEDOM OF ASSOCIATION AND ASSEMBLY IMPORTANCE OF CLEAR GUIDELINES ON THE APPLICATION OF LAWS RELATING TO FREEDOM OF ASSEMBLY PROTECTION OF FREEDOM OF ASSEMBLY NATIONAL LEGAL FRAMEWORK GUIDING PRINCIPLES RELATING TO FREEDOM OF ASSEMBLY Only peaceful assemblies are protected The presumption in favour of holding assemblies The state s positive obligation to facilitate and protect peaceful assembly Legality Proportionality Non-discrimination Good administration The liability of the regulatory authority IDENTIFIED GAPS AND BEST PRACTICES Non-compliance with Court Orders Decision- Making by the Police on Notification Selective policing of public Human Resource for Policing Assemblies Notification and Feedback Threat to Security Managing Illegal Assemblies...23 ii Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia

5 9.8 Content Spontaneous Assembly Appeal Process...25 REFERENCES...27 LIST OF FIGURES Figure 1: Freedom of Assembly Key Players...28 Annex Annex 1: Public Order Act...29 Annex 2: Christine Mulundika and 7 Others v The people...45 Annex 3: Resident Doctors Association of Zambia and 51 Others v The Attorney General...55 Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia iii

6 ACKNOWLEDGEMENTS The Human Rights Commission (HRC) and the Southern African Centre for the Constructive Resolution of Disputes (SACCORD) would like to thank all the institutions and individuals that contributed to the publication of these Guidelines on freedom of assembly and the application of the Public Order Act to regulate the enjoyment of this right in line with international human rights principles and standards. The development of the guidelines owes much to the combined efforts of staff from HRC and SACCORD who relentlessly committed their time and shared their ideas, knowledge and experience. The following members of the core team that came up with the initial draft of the Guidelines deserve particular mention for their commitment and insightful suggestions: Mr. Simon Mulumbi (HRC), Ms Mildred Chama (HRC), Mr. Shakespeare Siatakwi (HRC), Mr. Mwiba Mwenda (HRC), Mr. Edgar Mainza (SACCORD),Mr. Obby Chibuluma (SACCORD), Ms Tumaini Hauli (SACCORD) and Ms Natasha Kaira (SACCORD). We would also like to thank Ms Sindiso Sichone for her valuable contribution and feedback at the stage of reviewing the Guidelines. The development of the Guidelines could not have been accomplished without the support of the Zambia Police. We especially thank the Inspector General of Police who supported the full participation of regulating officers in the training workshops conducted on the Public Order Act. The participants in these workshops provided valuable input that helped shape the final draft of the Guidelines. We wish to especially thank the Deputy Director of Research and Training Department at Zambia Police, Mr. Mwaba Makasa, who took time to facilitate at the workshops and enabled the Police s continued participation. The Commission also acknowledges the generous support of the Government of the Federal Republic of Germany through German Cooperation in Zambia (GIZ), whose significant contribution in financing the Project on the Public Order Act resulted in the publication of the Guidelines. We are very grateful for the support and guidance received from Mr. O brien Kaaba and colleagues at GIZ. Florence Chibwesha Director Human Rights Commission Boniface Cheembe Executive Director SACCORD iv Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia

7 ACRONYMS ACHPR ACRWC CIS FODEP ICCPR ICESR ODIHC OSCE POA UDHR UN UNCRC African Charter on Human and People s Rights African Charter on the Rights and Welfare of the Child Commonwealth Independent States Foundation for Democratic Process International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Office for Democratic Institutions and Human Rights Organisation for Security and Co-operation in Europe Public Order Act Universal Declaration of Human Rights United Nations United Nations Convention on the Rights of the Child Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia v

8 1.0 WORKING DEFINITIONS Assembly: The intentional and temporary presence of a number of individuals in a public place for common expressive purpose. A peaceful assembly is one conducted in a manner that does not pose a threat to public order, peace and security. Human rights: Are entitlements that are inherent in all human beings regardless of nationality, sex, national or ethnic origin, language or other status. These rights are interrelated, indivisible and interdependent. For example, a person cannot enjoy the freedom to association or assembly and yet be denied the freedom to express himself or herself. The enjoyment of one right or freedom depends on the promotion and protection of the other right or freedom. State: Refers to a territory recognized by international law as a sovereign nation under an organized authority or government. Human rights instrument: Refers to a treaty or international document that outlines minimum standards and norms aimed at promoting and protecting human dignity. Optional protocol: Refers to an additional treaty to an international treaty or human rights instrument which may either provide for procedures with regard to the treaty or address a substantive area related to the treaty. Optional Protocols to human rights treaties are treaties in their own right, and are open for signature, accession or ratification by countries who are party to the main treaty. Arbitrary action: Refers to an action taken by a person in authority in breach of the substantive or procedural requirements of the law or policy. Inherent: Refers to something that is naturally part of a person. In relation to human rights inherence refers to rights which every human being possesses and is entitled to enjoy by virtue of being human. Inalienable: Refers to something that cannot among other things be surrendered, transferred or taken away from a human being. Human rights defenders: Refers to individuals, groups and associations contributing to the promotion and protection of human rights and the effective elimination of all violations of human rights and fundamental freedoms of peoples and individuals. Domestication: Refers to the process by which states incorporate provisions of international treaties to which they are parties into their domestic laws, so that the rights and duties contained in such treaties become applicable and enforceable under their national laws. Ratification: Refers to the act by which a state signifies an agreement to be legally bound by the terms of a particular treaty. The State first signs the treaty to signify its willingness to be bound by the treaty and then fulfills its own national legislative requirements for ratification. Accession: Refers to an act by which a state becomes a party to a treaty after it has already come into force. It has the same legal effect as Ratification but it is not preceded by an act of signature. vi Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia

9 Discrimination: Refers to affording different treatment to different persons attributable, wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political opinions colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description. Notification: Refers to written communication or announcement given to the police by the convener of a public meeting, assembly or procession in accordance with the Public Order Act. Misdemeanor: Refers to an offence which is not a felony Public procession: Refers to a group of people moving together in an orderly manner from a defined point to another using a defined route. Public interest: Refers to matters that concern the general welfare of members of the public, as opposed to selfish interest, in which the whole society has a legitimate stake and which warrants recognition, promotion, and protection by the government and its agencies. Proportionality: Refers to a logical action taken by authorities in response to a prohibited act that takes into consideration the correct balance between the restriction imposed by law and the severity of the act in question. Public meeting: Includes any meeting in a public place and any meeting (whether or not in a building) which the public or any section are permitted to attend, whether on payment or otherwise. Monitor: Refers to a person or group of persons or organisation that undertakes active collection, verification and immediate use of information to address human rights challenges and problems. Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia vii

10 2.0 INTRODUCTION 2.1 BACKGROUND Freedom of Expression, Association and Assembly In any democratic society the freedoms of association, assembly and expression are indispensable. The year, 1991 was a major turning point in the history of Zambia because of the re-introduction of multiparty democracy which brought competition for political hegemony, by whatever means, among parties to the fore. This transition to democracy, to a large extent, saw the emergence of more aggressive campaigns, demonstrations and meetings, a vibrant civil society and media and political associations. This brought the existing laws that regulate the enjoyment of the freedoms of assembly, association and expression to a major test Part III of the Constitution of Zambia 1 (the Bill of Rights) provides for the protection of civil and political rights and guarantees the freedom of assembly, association and expression. In Zambia, however, there are pieces of legislation that have been used in a manner that runs counter to the constitutionally protected freedoms mentioned above; they are the amended Public Order Act (POA) 2, the Societies Act 3 and the Non-Governmental Organisations Act 4 (NGO Act) The colonial administration enacted the POA which came into force on 19 th August At that time, the ordinance did not deal with issuing of permits for public meetings, assemblies and processions, it was concerned with the prohibition of wearing uniforms in connection with political objects, prohibiting quasi-military organizations, carrying weapons at public meetings and processions and prohibiting the promotion of hostility between the sections of community and similar matters. At that time too, issues of constitutional freedoms were not paramount and laws were particularly passed to oppress the nationalists The Public Order Act and Societies Act were enacted for the purpose of stifling the freedoms of assembly and association of nationalists in order to curtail their ability to meet and organise themselves to challenge the colonial government. It is, therefore, important, in a more modern and democratic society to consider revising these laws so that they conform to the current democratic dispensation. The effects of these old laws on people s freedoms to assemble, associate and express themselves have far reaching consequences from a democratic perspective. It is essential to afford every citizen an opportunity to associate, assemble and express their views as long as it is within the confines of the law and does not cause public disorder or a breach of peace. The Public Order Act, Societies Act and NGO Act takes center stage in the enjoyment of the freedoms of assembly, association and expression. Therefore these laws need to deal with all matters that may interfere with the reasonable enjoyment of these fundamental freedoms as guaranteed in the Bill of Rights. 2.2 PURPOSE OF THE GUIDELINES The purpose of the Guidelines is to inform and guide the administration of the POA in a manner that ensures that the enjoyment of the freedoms of assembly and association is facilitated rather than hindered and that the enforcement of the Act is in accordance with its provisions, the Constitution and the regional and international human rights instruments that Zambia is a party to. The target audience for the Guidelines is the Zambia Police Force, political parties, civil society organizations and other relevant stakeholders. 1 Chapter 1 of the Laws of Zambia 2 Chapter 113 of the Laws of Zambia 3 Chapter 119 of the Laws of Zambia 4 Act No. 16 of Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia

11 2.2.2 It is hoped that the Guidelines will help to create awareness among key stakeholders on the law relating to the promotion and protection of the freedom of association and the POA and jurisprudence relating to the enforcement of the Act. The Guidelines also highlight some best practices in the regulation of public meetings and processions that can be borrowed by Zambia. These Guidelines are contextualised to the Zambian situation taking into account the experiences and observations regarding the application of the Public Order Act in Zambia These Guidelines have been developed in line with other recognised guidelines such as the Organisation for Security and Cooperation in Europe (OSCE) guidelines and it is hoped that the best practices will be useful in changing the attitude and manner of administering the Public Order Act in Zambia. The Guidelines on freedom of assembly are in line with existing international human rights instruments and treaties such as the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples Rights (ACHPR). 3.0 PRINCIPLES ON FREEDOM OF ASSEMBLY AND ASSOCIATION 3.1 According to the Human Rights Committee: 5 freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society. The two freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions. Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights. The freedoms of opinion and expression form a basis for the full enjoyment of a wide range of other human rights. For instance, freedom of expression is integral to the enjoyment of the rights to freedom of assembly and association, and the exercise of the right to vote Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue, and defend common interests. The right to freedom of association is recognized as a human right, political right and civil liberty. Freedom of assembly and freedom of association may be used to distinguish between the freedom to assemble in public places and the freedom of joining an association. Freedom of assembly is often used in the context of the right to protest, while freedom of association is used in the context of labour rights and has been interpreted to mean both the freedom to assemble and the freedom to join an association 3.3 The international human rights system attaches great importance to the exercise of freedom of assembly as evidenced by the creation of the mandate of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association by the United Nations Human Rights Council, through the adoption of Resolution 15/21 7 on 20 th September, According to the Resolution, the functions of the Special Rapporteur are to, inter alia: gather all relevant information, including national practices and experiences, relating to the promotion and protection of the rights to freedom of peaceful assembly and of association, to study trends, developments and challenges in relation to the exercise of these rights, and to make recommendations on ways and means to ensure the promotion 5 A Committee of Experts established under Article 28 of the ICCPR to monitor the implementation of the Covenant. 6 General Comment No. 10 adopted on 12 th September, 2012 and contained in document No. CCPR/C/GC/34 7 The resolution reaffirms that everyone has the rights to freedom of peaceful assembly and of association, and that civil society makes a valuable contribution to the achievement of the aims and principles of the United Nations. The resolution also calls upon States to ensure these rights by taking all necessary measures to abide by obligations under international human rights law. Most importantly, the resolution creates the first ever UN Special Rapporteur on the Rights to Freedom of Assembly and of Association. Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia 2

12 and protection of the rights to freedom of peaceful assembly and of association in all their manifestations; seek, receive and respond to information from Governments, non-governmental organizations, relevant stakeholders and any other parties who have knowledge of these matters, with a view to promoting and protecting the rights to freedom of peaceful assembly and of association; integrate a gender perspective throughout the work of the mandate; contribute to the provision of technical assistance or advisory services by the Office of the High Commissioner to better promote and protect the rights to freedom of peaceful assembly and of association; report on violations, wherever they may occur, of the rights to freedom of peaceful assembly and of association, as well as discrimination, threats or use of violence, harassment, persecution, intimidation or reprisals directed at persons exercising these rights, and to draw the attention of the Council and the High Commissioner to situations of particularly serious concern; work in coordination with other mechanisms of the Council, other competent United Nations bodies and human rights treaty bodies, and to take all necessary measures to avoid unnecessary duplication with those mechanisms. 4.0 LEGISLATION RELATING TO FREEDOM OF ASSOCIATION AND ASSEMBLY 4.1 In Zambia, freedoms of association, assembly and expression are broadly guaranteed under Article 11 of the Constitution. More specifically, protection of the freedom of expression is provided for in Article 20 (1) while protection of the freedom of assembly and freedom of association is guaranteed in Article 21 (1). However, it should be noted that Articles 20 (3) and 21 (2), of the Constitution, provide for limitations relating to defence, public safety, public order, public morality or public health and for the purposes of protecting reputations, rights and freedoms of other people. The freedoms of expression and assembly are also recognized at international law in instruments such as the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples Rights (ACHPR). 4.2 In the case of Mulundika and Others Vs the Attorney General 8, the appellants challenged the constitutionality of Section 5 (4) of the POA, which required that any person wishing to hold a peaceful assembly had to obtain a permit and contravention of which was criminalized by Section 7 of the same Act. The challenge related to both the requirement of a permit, the prosecution based on the absence of such permit. 4.3 The Appellants case was also premised on the enjoyment of the freedoms of expression and peaceful assembly. A subsidiary challenge related to the exemption of certain offices from the need to obtain a permit. In this context, it was argued that the exemption was discriminatory because it violated Article 23 of the Constitution. The question that arose therefore, in the appeal was whether the provisions of the POA were consistent with the freedoms of assembly and speech enshrined in the Constitution. A major argument against Section 5 (4) of the Act 8 SCZ Judgement No. 25 of Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia

13 was that although the freedoms under the Constitution are not absolute, they should only be regulated, but not abridged, diminished or denied. It was argued on behalf of the Appellants, that Section 5 (4) could not reasonably be justifiable in a democratic society when it reduced the fundamental freedoms to the level of a mere license to be granted or denied on the subjective satisfaction of a regulatory officer. Counsel for the state conceded that the law required amendments to offer adequate guidelines and to prevent abuse. 4.4 In responding to this submission, the Supreme Court observed that the requirement of prior permission was an obvious hindrance to two very important freedoms under the constitution since the right to organize and participate in a public gathering is inherent in the freedom to express and to receive ideas and information without interference. The Supreme Court went further to observe that the fact or possibility that permission to assemble and to speak may be refused, so that the constitutional freedoms are denied altogether, on improper or arbitrary grounds or even on unknown grounds renders the sub-section objectionable. However, the Supreme Court pointed out that even in the best of the democratic traditions, some regulation of public gathering is required. For instance, the Public Order Act 1986 of England made provision for notifications to be given by organizers of processions or gatherings so that the regulating authorities could have the opportunity to perform the necessary functions of giving directions and imposing conditions, if any, for the sake of upholding public order and preserving peace. 4.5 The Supreme Court noted the giving of notice to a regulating authority for the latter to give regulatory direction is one thing: giving or refusal of permission to meet and to speak out is quite another matter. In striking down Section 5 (4) of the Public Order Act, the Supreme Court observed that the people of Zambia have come a long way and would not like ever again to be oppressed or caged by any other individual or group of individuals. The Supreme Court rejected the argument that there would be chaos and anarchy, if the requirement of obtaining permission was done away with. The Supreme Court noted that at any rate, the requirement of a prior permit was left over from the days of Her Majesty s Governors and that the British themselves no longer required permission to assemble and speak and wondered why Zambians should require it. 4.6 Although the police were proscribed from denying permits, the Supreme Court observed that they were under a duty in terms of the remainder of the POA, to regulate public meetings, assemblies and processions strictly for the purpose of preserving public peace and order. The police and any other regulating authority could only perform this other necessary function of giving directions and imposing conditions if they are notified, in advance, of any gathering proposed to be held. Such notification differs in form and content from an application for permission under the subsection that was successfully challenged. The Supreme Court ordered the revision and modernisation of the POA in its entirety to enable the police to carry out their duties effectively without contravening any provisions of the constitution. 4.7 Following the decision in the Mulundika Case, government initiated an amendment to the Public Order Act which culminated in the enactment of a new Section 5 (4). Section 5 (4) now provides that every person who intends to assemble or convene a public meeting, procession or demonstration shall give the police at least seven (7) days notice of that person s intention to assemble or convene such meeting, procession or demonstration. The Public Order Act goes on to provide that the notice shall be in the prescribed form and 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: Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia 4

14 (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 width of the route is suitable for the holding of a procession in accordance with the width and route 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 order; (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 public safety, a breach of the peace or disaffection among inhabitants of that neighborhood; and (f) That the conveners of the meeting, procession or demonstration have been assured by the police that the time the proposed activity shall be held it will be possible for it to be adequately policed. 4.8 The amended Public Order Act further provides that where it is not possible for the police to adequately police any public meeting, procession or demonstration, the regulating officer of the area shall at least five (5) days before the date of the public meeting, procession or demonstration, inform the conveners of the public meeting or demonstration in writing the reasons for the 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. Section 5 (7) has frequently been used as a reason not to authorise public gatherings by the Police although the law requires them to propose an alternative date. 4.9 In addition, the amended POA provides that where the police notify the conveners of a public meeting, procession or demonstration, that it is not possible to adequately police any proposed public meeting, procession or demonstration such public meeting, procession or demonstration shall not be held. Furthermore, the amended Act provides that if the conveners of a public meeting, procession or demonstration are unsatisfied with the reasons given by the regulating officer, they may immediately appeal to the Minister who shall decide and inform the conveners in writing of his decision on the matter within a period of five (5) days The net effect of the amendment to the Public Order Act is that it is no longer necessary to obtain a permit in order to hold a public meeting, procession or demonstration. The requirement of obtaining a permit has been substituted by a duty to notify the police. To this extent, the police are required to be informed to enable them regulate public meetings, processions and demonstrations. The requirement of notification is merely for the purposes of preserving public peace and order Since its amendment in 1996, the Public Order Act has been the subject of interpretation by the courts of law. A leading case on the interpretation of the amended Public Order Act is the Resident Doctors Association of Zambia and 51 Others Vs the Attorney General 10. The brief facts of the case are that the petitioners intended to conduct a peaceful demonstration on the 27 th of April 2000, in order to raise public awareness about the deplorable situation in hospitals and doctors condition of service. 9 Section 5 (8) of the Public Order Act, Chapter 113 of the Laws of Zambia 10 Appeal No. 39/2002, SCZ Judgment No. 12 of Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia

15 4.12 On 20 th of April 2000 the petitioners notified the commanding officer about their intention to conduct a peaceful demonstration. Two days prior to the demonstration, the police informed the petitioners that they would not be allowed to demonstrate because they had information that there was a group of persons who were not in support of the petitioners demonstration and were ready to disrupt the procession. The petitioners were further informed that Zambia Police Force did not have sufficient human resources to police the event. The petitioners requested the police officers to suggest an alternative date but the police declared the matter closed The petitioners informed the police officers that they would nonetheless proceed with the public procession and on the 27 th of April 2000, dressed in doctor s attire, the petitioners organised fifty marshals and held the procession. The petitioners duly observed the procedures required during public processions and as a result, there was no interruption to the flow of vehicles or traffic. Photographs of the orderly procession were taken. The public procession was peaceful and the only interruption came from the police when they stopped the procession and requested the petitioners on the ground. Consequently, the police officers summoned two trucks and transported the petitioners to a police station where they were detained and released the following day. Subsequently, the petitioners commenced proceedings claiming the following: a) Their freedom of expression as guaranteed by the constitution had been violated b) Their freedom of assembly and association as guaranteed by the constitution has been violated by the police action and conduct; and c) That the police action was in its entirety in breach of the Public Order Act In delivering judgment, Justice Peter Chitengi held that any person wishing to hold a public meeting, procession or demonstration, is not required to obtain a permit from the police for such an event and that the police have no power to refuse any person from holding a public meeting, procession or demonstration. He went on to state that those who administer the Public Order Act should erase the word permit from their minds and substitute it with the word notification. Therefore, the only demand the police can make from a person intending to hold a public meeting, procession or demonstration is a notification of at least seven (7) days. Once such notification and necessary undertakings have been made in accordance with the law, the meeting or demonstration must take place and were the police are unable to police the event, they are obliged to by law, to suggest an alternative date at which the event should take place. Thus the power to decide whether the event would cause a breach of peace is no longer with the regulating officer as was the case under the repealed law In another landmark case relating to the Public Order Act between the Law association of Zambia and Others Vs the Attorney General, 11 the applicants sought an order restraining the respondent from preventing a planned procession and public meeting to protest against former President Frederick Jacob Titus Chiluba s bid for a third term of office. The facts of the case are that the applicants gave the police notification of their intended meeting on the 12 th of April The police responded on the 18 th of April 2001 and advised that they were not able to police the event. The police also informed the applicants that proceeded with the planned procession, the event would be disrupted by the police In her decision, Justice Muyovwe observed that the relevant provisions of the Public Order Act clearly states that the regulating officer should inform conveners of the meeting in writing the reasons for the inability of the police to police the event and propose an alternative date /HP/ 0382 (Unreported) Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia 6

16 The Court held that the provisions of the POA were not adhered to by the regulating officers. Justice Muyovwe observed, further that, the police acted in bad faith and contrary to the spirit of the Act, which if adhered to by both themselves and the conveners would not cause unnecessary litigation. The Court pointed out that the police failed to follow the very Act which guides their role in these matters. The Court noted that if the police have information that the situation is volatile, it is the more reason why they should police the meeting and ensure that there is law and order during such meeting. The Court held and directed that because the police acted in bad faith, they were stopped or prevented from refusing to police the meeting. Thus the police were ordered to police the event to ensure maintenance of law and order The requirement of notification under the POA is well intended. Clearly, the notification enables the police to plan for possible disturbances of public peace and order. However, the requirement for notice should not be equated with a licensing system under which the police have the power to grant or deny permission for the holding of a public gathering or procession. This would certainly be a clear and unjustifiable limitation on freedoms of speech and assembly. From these decisions of the courts, it is evident that the courts do respect and uphold individuals freedom of assembly as enshrined in the Constitution. 5.0 IMPORTANCE OF CLEAR GUIDELINES ON THE APPLICATION OF LAWS RELATING TO FREEDOM OF ASSEMBLY Having identified the law that impacts on the enjoyment of the freedom of assembly, it is evident that the POA in its current form is not a repressive piece of legislation, but certain aspects of the Act require amending or repealing. Notwithstanding the inherent shortcomings Act, it has nonetheless helped in ensuring orderly conduct and management of public meetings, processions and similar gatherings. Therefore, Guidelines to help both those that administer the POA and the people seeking to assemble, meet or hold a procession are paramount because they highlight key principles that are to be followed in the administration of the Act in order to ensure the enjoyment of the freedom of assembly. 6.0 PROTECTION OF THE FREEDOM OF ASSEMBLY 6.1 Human rights are universal legal guarantees that protect individuals and groups against actions which interfere with the enjoyment of these fundamental rights and freedoms. 12 They are rights which every human being possesses and is entitled to enjoy simply by virtue of being human. The law does not create human rights but simply recognises them and provides for their enjoyment without distinction as to race, sex, age, colour, national origin, religion, language or social status. Additionally, the duty to promote and protect human rights primarily falls on the State. The promotion and protection of human rights including the freedom of expression and assembly must be guaranteed by the state through the adoption of legislative, judicial and administrative measures. 6.2 As regards the freedom of expression and assembly, the State has the obligation not to arbitrarily interfere with the freedom to assemble and express opinions at such assemblies. As a duty-bearer, the State should not perform, sponsor or tolerate any practice, policy, or legal measure that violates the dignity of individuals or infringes on their fundamental rights and freedoms. The duty to protect the freedom of expression and assembly also entails that the State must prevent violations by others and that where violations occur, the State should stop 12 The United Nations System and Human Rights: Guidelines and information for the Resident Coordinator System approved on behalf of the Administrative Committee on Coordination (ACC) by the Consultative Committee on Programme and Operational Questions (CCPOQ) at its 16 th Session, Geneva, March Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia

17 further violations, guarantee and provide affordable and accessible redress or legal remedies. 6.3 The second paragraph of the Preamble of the Charter of the United Nations (UN) reaffirms the determination of the member states of the UN to reaffirm their faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. The Charter also outlines the purposes of the UN as being, inter alia, achieving international cooperation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion In order to give effect to these provisions of the Charter, the United Nations adopted what is commonly referred to as the International Bill of Human Rights which consists of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) together with its two Optional Protocols on the involvement of children in armed conflict and the prohibition of child pornography and prostitution, and the International Covenant on Economic, Social and Cultural Rights (ICESCR). 6.5 The UDHR recognises a number of civil and political rights, including among others, the protection from arbitrary arrest, freedoms of expression, association and assembly. Article 20 (1) of the UDHR provides that: Everyone has the right to freedom of peaceful assembly and association. 6.6 Further, Article 21, of the International Covenant on Civil and Political Rights (ICCPR) provides that: 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 others. 6.7 The fundamentality, inherence and inalienability of the freedom of assembly is equally emphasised in Article 12 (1) and (2) of the Commonwealth Independent States (CIS) Convention on Human Rights and Fundamental Freedoms which states that everyone shall have the right to freedom of peaceful assembly and to freedom of association with others and that no restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, public order, public health or morals or for the protection of the rights and freedoms of others. It is a requirement, however, that where restrictions on the enjoyment of such freedoms are made, such limitations must be prescribed by the law and they must be reasonably justifiable in a democratic society. The said provisions do not preclude the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or by members of the law-enforcement of administrative organs of the State. 13 Article 1 (3) of the Charter of the United Nations Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia 8

18 Restrictions on Freedom of Assembly Legitimate grounds for restriction should be prescribed in the Constitution and other legislation in conformity with international and regional human rights instruments and democratic principles. A broad spectrum of possible restrictions that do not interfere with the message communicated are available to the regulatory authority. As a general rule, assemblies should be facilitated within sight and sound of their target audience. Freedom of assembly of police or military personnel should not be restricted unless the reasons for the restriction are directly connected with their service duties, and only to the extent absolutely necessary in light of considerations of professional duty International human standards also recognise the rights and freedom of human rights defenders to freely assemble associate and express their views or opinions. This is for instance highlighted in Article 5 (a) of the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms of 1999, which states that: for the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels to meet or assemble peacefully. 6.9 At the regional level, Article 11 of the African Charter on Human and People s Rights (ACHPR) provides that every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others. Articles 7 and 8 of the African Charter on the Rights and Welfare of the Child (ACRWC) provides that: Every child who is capable of communicating his or her own views shall be assured the rights to express his opinions freely in all matters and to disseminate his opinions subject to such restrictions as are prescribed by laws. Every child shall have the right to free association and freedom of peaceful assembly in conformity with the law It should be noted that freedom of assembly is also guaranteed for children. Article 15 (1) of the United Nations Convention on the Rights of the Child (UNCRC) provides that State parties recognise the rights of the child to freedom of association and to freedom of peaceful assembly. 9 Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia

19 7.0 NATIONAL LEGAL FRAMEWORK 7.1 At international level, Zambia is a party to various international human rights instruments aimed at, among other things, promoting and protecting the freedom of expression, association and assembly. These human rights instruments include, inter alia: The International Covenant on Civil and Political Rights (ICCPR) The United Nations Convention on the Rights of the Child (UNCRC); The African Charter on Human and Peoples Rights; and The African Charter on the Rights and Welfare of the Child (ACRWC) 7.2 It is however important to note that these international and regional human rights instruments are not self-executing in nature and require Zambia, which is a dualist nation (because international law does not automatically become part of domestic law) to take steps to domesticate and implement them. Zambia is required to stake legislative, judicial and administrative measures to ensure that these rights are realised in practice. The fundamental rights and freedoms are enshrined in the Constitution. Article 11(b) of the Constitution provides as follows: It is recognised and declared that every person in Zambia has been and shall continue to be entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed, sex or marital status, but subject to the limitations contained in this Part, to among other things freedom of conscience, expression, assembly, movement and association. 7.3 However, the provisions of the Bill of Rights have effect for the purpose of affording protection to those rights and freedoms subject to such limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest. Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia 10

20 Article 20 of the Constitution further provides that: (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence. (2) Subject to the provisions of this Constitution no law shall make any provision that derogates from freedom of the press. (3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision: (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or (b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating educational institutions in the interests of persons receiving instruction therein, or the registration of, or regulating the technical administration or the technical operation of, newspapers and other publications, telephone, telegraphy, posts, wireless broadcasting or television; or (c) that imposes restrictions on public officers; and except so far as that provision or, the thing done under the authority thereof as the case maybe, is shown not to be reasonably justifiable in a democratic society. 7.4 The Constitution also provides for the protection of the freedom of assembly and association in Article 21(1) and (2) provides as follows: Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to any political party, trade union or other association for the protection of his interests, and that nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision; (a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; (b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons; 11 Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia

21 (c) that imposes restrictions upon public officers;...and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society. 7.5 The violation of the freedom of expression, association and assembly entitles a person or group of persons to seek redress under Article 28 (1) and (2) of the Constitution which provides as follows: (1) Subject to clause (5), if any person alleges that any of the provisions of Articles 11 to 26 inclusive has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply for redress to the High Court which shall: (a) hear and determine any such application; (b) determine any question arising in the case of any person which is referred to it in pursuance of clause (2); and which may, make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of Articles 11 to 26 inclusive. (2) (a) If in any proceedings in any subordinate court any question arises as to the contravention of any of the provisions of Articles 11 to 26 inclusive, the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his opinion the raising of the question is merely frivolous or vexatious. (b)any person aggrieved by any determination of the High Court under this Article may appeal there from to the Supreme Court: 7.6 From the foregoing, it is clear that the Constitution guarantees all persons the enjoyment of the freedom of expression, association and assembly. However, the full realisation and of these rights must take into consideration the rights of other people, public security, law and order. Other laws that are relevant to the enjoyment of freedom of assembly include the Penal Code, 14 the Preservation of National Security Act, 15 and the Public Health Act The POA provides, inter alia, for the regulation of assemblies, public meetings and processions. It also provides for penalties for disobeying a direction or violating conditions attached to the holding of a public meeting, procession or an assembly as provided by law. Further, it prohibits weapons at public meetings and processions as well as offensive conduct conducive to breaches of peace. 7.8 More importantly, the following Sections under the Public Order Act provides as follows: 14 Chapter 87 of the Laws of Zambia 15 Chapter 112 of the Laws of Zambia 16 Chapter 295 of the Laws of Zambia 5 (1) The Inspector-General of Police may, by Gazette notice, appoint by name or office any police officer of or above the rank of Sub Inspector to be the regulating officer for the purposes of this section in respect of such area as the Inspector General may, by the same or any other Gazette notice, define. (2) In any area in respect of which no police officer has been appointed to be the regulating officer under the provisions of subsection (1), the District Secretary of the District in which such area is situated shall be the regulating officer for the purposes of this section: Guidelines on freedom of peaceful assembly and application of the Public Order Act in Zambia 12