The appellant challenged provisions of Section 5 of the Public Order Act on the grounds that they violated Articles 20 and 21 of the Constitution. The challenge was prompted by refusals by the Police to allow public meetings, processions or demonstrations.
- Whether Public Order Act as amended by Act No 1 of 1996 and Act No 36 of 1996 was constitutional.
- Whether the Police apply the provisions of the Public Order Act in a fair and just manner.
Section 5(4) of the Public Order Act requires the convener of a public meeting, procession or demonstration to give the Police seven days’ prior notice. However, section 5(5) of the Act gives the Police Officer dealing with the notification power to impose conditions of a mandatory nature such as the date and time as well as duration of the meeting, persons permitted to speak at the public meeting, procession or demonstrations and matters to be discussed. Section 5(6) of the Act gives the regulating officer open ended discretion to defer the intended event.
Articles 20 and 21 of the Constitution guarantee the freedom of expression and the freedom of assembly, respectively.
The appellant questioned the manner in which the police had dealt with notices from the public relating to the holding of public meeting, procession or demonstration. They alleged that section 5 subsection (3), (5) and (7) negate the rights and freedoms of individuals as provided under Art 20 and 21 of the Constitution. The respondent countered that rights and freedoms are subject to limitations designed to ensure that their enjoyment by individuals do not prejudice the rights and freedoms of others or public interest.
DETERMINATION OF ISSUES
The learned trial judge had held that in its current form, section 5(4) of the Public Order Act was not unconstitutional since it did not require the convener to apply for a permit, but rather to provide a notice. It also held that the grievance procedure introduced in sec 5(8) and (9) provides for guidance and effective control of the regulating officer by stating that any aggrieved person may appeal to the Minister and if not satisfied by the decision of the Minister, to the High Court.
Section 5(4) of the Public Order Act, addresses constitutionality concerns that were raised in previous pronouncements of the court. As the law stands, a convener of a public meeting, procession or demonstration is no longer required to obtain a permit from the Police, but to simply give the Police notice. Dispensing with this requirement of the provision will make it difficult for the Police to maintain public peace and order. In Christine Mulundika and Others v The People (1995-1977) Z.R. 20, we stated that
Though, therefore, the Police can no longer deny a permit because the requirement for one is about to the pronounced against, they will be entitled – indeed they are under a duty in terms of the remainder of the Public Order Act – to regulate public meetings, assemblies and procession strictly for the purpose of preserving public order.
In this regard, we hold the view that the requirement for notice is necessary, as this is the only way the police can perform their regulatory function and maintain law and order in our society. The requirement placed on the convener or a public meeting, procession or demonstration is not burdensome as they are merely regulatory functions necessary for the police to maintain public peace and order, and a convener has a responsibility to help the Police maintain peace and order. The requirements of section 5(5) of the Act are an undertaking to do so. We do not in any way think that these provisions allow the police to place restrictions on the substantive focus of public meetings, processions and demonstrations.
Section 5(6) is a half-hearted attempt to comply with the striking down of the pre-amendment section 5(4) for being unconstitutional. It does not provide a timeframe for a reasonable alternative period to which the public meeting, procession or demonstration may be postponed to. Section 5(6) reads:
Where it is not possible for the Police to adequately police any particular public meeting, procession or demonstration, the regulating officer of the area shall, at least five days before the date of the public meeting, procession or demonstration, inform the conveners public meeting, procession 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.
In applying this provision, the Police have refused to police public meetings and processions without proper explanation and without proposing an alternative date for the public meeting, procession or demonstration. This is despite the fact that section 5(6) of the Act demands that a reason for the inability be furnished. … We wish to dispel the notion that under section 5(6) of the Act, the police are at liberty to refuse a proposed meeting, procession or demonstration without suggesting an alternative date in the very near future even though section 5(6) of the Act does not set a time limit.
The refusal of the Police to police [a procession] on grounds that they are a group of people who planned on disrupting the procession is [an] example of the misapplication of the Public Order Act. It defies logic that the police would rather provide manpower to prevent people from exercising their right under Article 21 of the Constitution, than protecting them against the elements that were planning on infringing upon this right. In such a case, it is the duty of the police to protect persons who are properly exercising their right to assemble from those that are threatening to infringe their right.
However, the freedoms guaranteed under Articles 20 and 21 of the Constitution are not absolute but are subject to limitations. According to Article 20(3)(a) of the Constitution, ‘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 that is reasonably required in the interest of defence, public safety, public order, public morality or health…’ A similar provision is contained in Article 21 (2)(a) of the Constitution. Article 5(6) does not violate these constitutional provisions.
As we have already noted, the provision only obliges the police to give a reason for their failure to police a public meeting and that this reason must fall within Articles 20(3)(a) and 21(2)(a). In this regard, we do not think it is arbitrary for the police to ask a convener to postpone a public meeting if there is a genuine reason which falls with the limits set in Articles 20(3)(a) and 21(2)(a) of the Constitution. We do not think that the limitations that the Public Order Act place on the rights under Article 20 and 21 of the Constitution are unconstitutional.
Lastly, we are of the view that the grievance procedure in section 5(8) and (9) of the Act is sufficiently robust The procedure allows for the decision of both the regulating officer and the Minister to be challenged. When the Police are unable to police a public meeting, procession or demonstration, section 5(6) of the Act obliges them to inform the convener of their inability to do so and with reasons, within five days of the notification. This decision may be challenged on appeal to the Minister. This offers sufficient guidelines to prevent arbitrariness on the part of the regulating officer. Under Section 5(8) of the Act, the Minister has five days to determine the appeal and inform the conveners in writing of his decision on the matter.
Any grievance that arises under Section 5(6) of the Act must be resolved within ten days, which in our view, is a reasonable period of time. The time limit within which the decisions have to be made by a regulating officer and the Minister allow for a matter to be determined within the shortest possible time. Thereafter, the decision of the Minister may be challenged in the High Court within 30 days as provided for under Order 55 of the Rules of the Supreme Court. We have not found any inefficiencies or unfairness in the grievance procedure