Freedom of expression vis--vis public order: when is public order, public order, when is it a farce?

475,Correspondent,, | Tuesday May 24, 2016 00:00

In the latest incident, the police did not arrest the economic freedom fighters, but unlawfully and brutally assaulted them. To add salt to an injury, the police detained the youngsters at Central Police Station under the guise that an investigation was on-going and an arraignment would be performed at Extension II Magistrates’ Court on the 9th August 2016.

In the wee hours of the morning of the 9th August 2016 (5am to be exact), the police attempted to release the protesters and when the protesters inquired about their court appearance that morning, they were told to forget about it and go home. They refused and demanded to only go home after meeting their lawyers. They were never arraigned and were released without a charge.

On the 9th August 2016, Honourable Minister of Defence, Justice and Security read a statement in Parliament stating his concern about Batswana who are desirous of exercising their fundamental rights. He praised the provisions of Public Order and Safety Acts by stating that the duo served Botswana very well in the past and urged Batswana to continue their culture of docility in the face of oppressive laws.

It is imperative to state upfront that Public Safety Act (Cap. 22:03) was enacted by our colonial masters in 1907 through Proclamation No. 15 of 1907 and was adopted by Botswana Government through legal notice No. 84 of 1966 without any modification, save to insert the word Botswana. Similarly, what was Law and Order (Maintenance) Act during colonial epoch became Public Order Act (Cap.22:02). The Public Order Act was adopted by Act No. 6 of 1967.

Honourable Minister Kgathi, glorifies the unconstitutional provision of Public Order Act and the fact that the police did deny Batswana permits in the past to embark on procession of any kind. I beg to differ.

The laws did not serve us well. The fact that in the past Batswana did not challenge section 4 of the Public Order Act in the Courts of law, should not be misconstrued as accepting the constitutionality of section 4 thereof. In fact, in February 1995, Police denied the students of University of Botswana permit to hand petition to the Speaker of the National Assembly.

The Students resolved in a student body meeting to match to Parliament without a permit, and match we did. Subsequently, they were many other attempts to secure permits and police under the instruction of their political masters refused to grant University of Botswana permits to hold processions.

In recent years political parties and trade unions had sought permits to hold processions and the police refused to grant them permits. Early this year, the BCPYL sought permission to hold procession in Sebina and police refused again and again. This is the situation that the Honourable Minister of Defence, Injustice and Insecurity is glorifying. The Honourable Minister is glorifying the fact that the police service has been in cohorts with ruling party to deprive Batswana to exercise their basic rights.

In this entire legal conundrum, the question that cries out for an answer is, whether Police Officers’ acts in refusing to grant permit under the guise of section 4 of the Public Order Act, is constitutional. In other words, is section 4 of the Public Order Act consistent with section 12 of the Constitution? A layman reading of section 4 and 12 aforesaid cannot reveal much, unless one takes a legal detour and analyse legal jurisprudences of other countries on the same subject-matter. In conducting an analysis of jurisprudences of other countries I will consider countries that shared legal and political colonial history with Botswana such as Tanzania, Zambia, Zimbabwe, Ghana, Kenya and India. 

Tanzania

Tanzania was a British colony like Botswana. The colonial master bequeathed to Tanzania a Constitution with identical provisions on the Bill of Rights with Botswana. In 1993, the Court of Appeal of Tanzania was faced with a situation where police denied permission to protesters.

The Tanzanian Public Order Act, like that of Botswana, bestowed discretionary power on the District Commissioner to grant permission or not. In Pumbun v Attorney-General, [1993] 2 LRC 317, at 323, the Court of Appeal in Tanzania held that the provisions that required citizens to apply for permit were unconstitutional and void.

The Court of Appeal held further that; “a law which sought to make the exercise of a right subject to the permission of another person could not be consistent with the express provisions of the Constitution as it would make their exercise illusory”. The Court of Appeal in Tanzania held that, “until the legislature made appropriate arrangements, it would be sufficient for a notice of a public assembly or procession to be lodged with the police.”

 

Zambia

Zambia was also a colony of Great Britain. The same provisions of the Constitution on freedom of expression and assembly bequeathed to Botswana by Britain were found in the Zambian Constitution at Independence. Same applies to the Public Order Act. In Mulundika and others v The People (1996), the High Court held that the provisions of the Public Order Act which required protesters to apply for permits were valid and constitutional. Mulundika and his company appealed the judgment of the High Court to the Supreme Court.  The Supreme Court of Zambia held thus; “the requirement of prior permission was an obvious hindrance not only to freedom of assembly but also to freedom of expression since the right to organize and participate in a public gathering was inherent in the freedom to communicate, express and receive ideas and information without interference”.

 

Kenya

In Imanyara v the Attorney general & another (1994), the High Court of Kenya, held that it would be unconstitutional to deny an opposition politician to assemble and associate freely with members of a church by virtue of his political association.

 

India

Like Botswana, India was a colony of Britain and they share the legal history on issues of freedom of expression and Public Order control systems. In Rangarajan v Jagjivan Ram (1990) LRC 412 at 424, the Supreme Court of India had time to consider the constitutionality of the provisions of Public Order Act vis-à-vis the basic rights enshrined in the Constitution.

The Supreme Court of India held thus; “These rights were too important to be conditional upon a subsection drafted in 1953 when the authorities did not have these fundamental freedoms in mind. 

Experience had shown and it was not hypothetical that since that time such a requirement had been used to muzzle critics and opponents as well as alleged troublemakers.”

Zimbabwe

Section 20 of the Constitution of Zimbabwe as bequeathed by Great Britain in 1961 [as amended in 1965, 1969, 1979 and 2009] provides thus; “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 and to receive and impart ideas and information without interference with his correspondence”. Section 12 of Botswana Constitution is couched in the same words.

On the 1st June 1992, the Zimbabwe Congress of Trade Unions applied, in terms of section 6(2) of the Law and Order (Maintenance) Act, to a regulating authority, being the police officer in command for Harare Central District, for permission to stage a peaceful public procession. The police decline to grant the permission in the following words; “we must advise that taking other factors into consideration the application was not successful”.

The Supreme court of Zimbabwe held that section 6(2) equivalent to section 4(3) of Public Order Act of Botswana was struck down as unconstitutional in the case of In Re Munhumeso and Others (1995) 1 SA (ZCS).

 

WHY IS FREEDOM OF ASSEMBLY VITAL?

The Supreme Court of Zimbabwe in Re Munhumeso (p. 557F-G) stated that “the right to freedom of assembly is often exercised by persons taking part in public processions. And freedom of assembly covers not only static meetings but public processions as well”.

The European Court of Human Rights held in H v Austria, “a procession, which is but an assembly in motion, is by its very nature a highly effective means of communication, and one not provided by other media. It stimulates public attention and discussion of the opinion expressed. The public is brought into direct contact with those expressing the opinion.”

 

IS BOTSWANA A DEMOCRATIC SOCIETY?

There is a Setswana adage that goes, “mmualebe o bua la gagwe gore monalentle, a letswe”, something akin to “everybody is allowed to partake in expressing their idea in the market place of ideas”. On that basis one may assume that contestation of ideas regardless of the medium of communication is permitted.

However, the recent events where opposition views are not covered by Btv, Radio Botswana and other state media coupled with banning of the freedom to assembly is a worrying trend that signals that Botswana’s democracy is decaying or is on a supersonic decay.

In Retrofit (Pvt) Ltd v Posts and Telecommunication Corporation [1996] 1 SA 847 (ZCS), at 857F-G, the Supreme Court of Zimbabwe held that endorsing Richards article thus; “People are not to be constrained to communicate or not to communicate, to believe or not believe, to associate or not to associate.

The value placed on this cluster of ideas derives from the notion of self-respect that comes from a mature person’s full and untrammelled exercise of capacities central to human rationality.

Thus, the significance of free expression rests on the central human capacity to create and express symbolic terms, such as speech, writing, pictures and music. Freedom of expression permits and encourages the exercise of these.”

Are concerns by Honourable Kgathi based on oppressive law or protesters basic rights?

Honourable Minister says that he appeals to everyone to assist in ensuring that there is peace and tranquility that we are known by.

Peace and public order cannot be secured by oppressive laws. Police and the ruling party are instilling fear in the society by violating citizens basic rights enshrined in the constitution. It is common cause that when an Act of Parliament clashes with the provision of the Constitution, the Constitution prevails.

If Honourable Kgathi wants peace and order to prevail, he must order police to stop unlawful acts of assaulting citizens exercising their rights. He must also attend to oppressive laws that are unconstitutional. Fear and disorder is generated by oppressive laws. Oppressive laws are indicative of the type of democracy we have. We have an authoritarian type of democracy or if you like a jaundiced kind of democracy.

I dedicate to the Honourable Minister of Defence, (In)Justice and (In) Security, the words of Justice Brandies, in the case of Whitney v Carlifornia, 274 U.S. 357 (1927) at 375, where the illuminious Judge of the Supreme Court of America lectured about how to eliminate fear of public disorder. He said; “Those who won our independence believed that the final end of State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.

They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly, discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of government.

They recognised the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion; they eschewed silence coerced by law- the argument of force in its worst form.

I hope this piece of advice will go a long way in shaping the discourse of educating our police officers that it is not their duty to assault innocent souls who are exercising their basic rights.

I hope Honourable Minister will liaise with Legal Officers at the relevant institution to offer him legal advice on how to amend the laws that were bequeathed to us by our colonial masters. Police officers are not above the law such that they can just assault people who are enjoying their right to freely assembly and communicate their ideas to members of the public.

To the martyrs who spent about 20 hours under unlawful detention and some spent close to 11 hours without access to medical attention I say bravo guys. Injustice cannot end on its own without sacrifices.  To attain genuine independence based on deliberative and participatory some will be victims of oppressive laws. Nelson Mandela and other struggle icons spent 27 years in prison to get political freedom for South Africans.  I wish you good luck in future endeavours and for young legal Turks that I found at the Central Police Station fighting nail and tooth to get your brothers freedom keep it up guys.

To those Member of Parliament and pastors who pleaded for the release of the innocent souls, I say good bless. Honourable members of Parliament, you must identify with poor, the marginalised, workers and students at all times. Just ignore the lamentations of Honourable Minister Kgathi.

 

‘Honourable Minister Kgathi, glorifies the unconstitutional provision of Public Order Act and the fact that the police did deny Batswana permits in the past to embark on procession of any kind.’

 

* Nelson Ramaotwana