The constitutionality of the Public Order Act must be challenged as a matter of urgency.
In its present form the Act is nothing but a tool of oppression that has been used by the Police to champion the agenda of the ruling party by stifling dissenting voices, and unless opposition parties together with civil society mount a constitutional challenge in the High Court, they can expect worse.
A well intentioned ruling by the Supreme Court intended to open political space by allowing the full reign of freedom of expression, association and assembly has been totally vandalized to provide a more repressive and totalitarian piece of legislation which is at odds with the dictates of democracy.
At page 8 and 9 we publish the full text of a Supreme Court judgment that was intended to give effect to the inalienable rights of citizens to meet and freely express themselves, but which right has been clawed back by subsequent legislation that has totally nullified the judgment.
The Act strikes at the most fundamental rights of association, assembly and expression which underpin democracy. Although the requirement for a Police permit was removed by the Supreme Court in 1996, disabling conditionalities have been reinstated making it impossible to hold a meeting without police approval.
Technically sufficient mischief has been imbedded in the law as to make it very difficult for opposition parties to hold meetings.
Firstly those intending to hold a meeting must notify the Police in a prescribed form, but no such form exists. The Government printer has no such form and there is no standard template for the same. Applicants are left to their own devices with many writing letters to the Police which are invariably turned down.
Secondly the law makes it implicit that police notification is not only imperative but that a meeting cannot take place unless Police are ready to make a presence.
Therefore political meetings are made contingent on police presence! In essence therefore without police there can be no meeting.
Where an applicant is aggrieved by police refusal recourse is to the Minister, who is hardly impartial. If the appeal fails recourse is made to courts of law, but the process is long and laborious.
Clearly the law is intended to stifle and suppress any form of public manifestation against the Government. This is true today as it was in 1955 when it was first enacted.
From the colonial Government in 1955 to the current Government in 2014, the act has been used to stop opposition groups from expressing their constitutional and inalienable right to assemble and freely express themselves.
In 1996 the Supreme Court under the erudite and highly authoritative leadership of Chief Justice Mathew Ngulube made a very bold and decisive effort to proscribe this very oppressive legislation, but their effort seems to have failed because the law was manipulated to continue with oppression.
The Colonial Government enacted the Public Order Act in 1955 to stop political parties from holding meeting by insisting that any such meeting should have a prior permit authorized by the Police or appropriate Government official. Invariably few meetings were authorized resulting in many freedom fighters being arrested for holding illegal meetings.
The UNIP Government adopted the Act in total just as did the MMD Government. In 1995 Christine Mulundika and 7 others challenged the constitutionality of the law and the Supreme Court according struck out and thereby proscribed the requirement of a permit and also decriminalized “illegal” meetings.
The Patriotic Front has adopted and used the law and there is no reason to believe that any other party that gets into power will not do the same to disadvantage opponents.
It is therefore imperative that political parties unite now and tackle the problem once and for all to ensure that the run up to the 2016 elections is on a level playing field.