America-based Zambian law professor Muna Ndulo has wondered what is there to discuss about the “unconstitutional Public Order Act” save for repealing it.

And Prof Ndulo says the only reason the POA has survived in Zambia is because the judiciary has failed to come out unequivocally to uphold the right to free Assembly embedded in the Constitution.

Last week, Home Affairs Minister said the National Dialogue Forum was receiving submissions on what changes to make to the Public Order Act, mocking UPND for sharing their ideas with the media instead.

But in an article titled “The Public Order Act and the Right to Assembly” shared with News Diggers, Sunday, Prof Ndulo argued that the provisions of the Public Order Act were not in sync with the republican constitution which provided for freedom of assembly.
He said it was therefore unnecessary to discuss an unconstitutional, invalid law.
“In Zambia, there is the constant talk of the need to discuss the implementation of the Public Order Act. I have been trying to fathom what there is to discuss about this Act. The incomprehensibility of the discussion in the public sphere is heightened by the fact that the Act in issue is unconstitutional and therefore invalid. What is there to discuss about an unconstitutional act save for repealing it?” Prof Ndulo asked.

“Although, I am conscious that I might be speaking to the deaf, it helpful to comment on the issues surrounding the Public Order Act for the sake of posterity and those who are genuinely interested in learning about this Act. It is imperative that the collective consciousness of the Zambian society is wakened to the inherent perilousness of allowing the shrinking of the common public space under any guise including the implementation of an unconstitutional colonial relic – the Public Order Act.”

Prof Ndulo argued that no democracy could leave it to the goodwill of police to decide whether or not citizens can be allowed to assemble.

“No meaningful constitutional democracy can encourage the disappearance of the right of Assembly of the citizens. It is even worse to imagine that the right is dependent on the good pleasure of the Police, the Parliament or any other organ of government. It is the Assembly of the people/citizens that forms a nation. Even the smallest spheres of community assemblage is a necessary corollary of the right of citizens to assemble, associate and form relationships in order to pursue common aspirations which includes the idea of nationhood,” he stated.

And Prof Ndulo said the only reason the POA has survived in Zambia is because the judiciary has failed to come out unequivocally to uphold the right to free Assembly embedded in the Constitution.

“The Public Order Act is ordinary legislation passed by Parliament which cannot override the Constitution – the supreme law of the land… In my view, the Public Order Act in its present form is unconstitutional, invalid and void. It has survived in Zambia mostly because the judiciary has failed to come out unequivocally to uphold the right to free Assembly embedded in our Constitution as evidenced by decisions in the following cases: Law Association of Zambia v. The Attorney (2015) and Resident Doctors Association of Zambia v. The Attorney General (2003). The Public Order Act restriction of the right to Assembly is in direct conflict with the fundamental rights of citizens which are entrenched and guaranteed by the Constitution. It offends the conception of a constitution in a democracy. The Zambia Police often abuse the Act and use it to prevent the opposition parties from holding meetings to explain their platforms to the Zambian public,” he stated.

“No healthy democracy, therefore, can afford the luxury of citizens who are quarantined in their homes —with no meaningful capacity to engage the state through free assembly and other forms of citizens’ participation. The public sphere belongs to citizens. Only slaves – not citizens – are forced into pens and kept away from the public sphere.”

He noted that the right to freedom of assembly was guaranteed in all major international and regional human rights conventions which Zambia was a signatory to.

“Furthermore, the right to Freedom of Assembly is guaranteed in all the major international and regional human rights conventions. It is guaranteed in article 21 of the International Covenant on Civil and Political Rights. It is also reflected in article 8 of the International Covenant on Economic, Social and Cultural Rights; article 11 of the African Charter of Human and Peoples Rights to name a few. Zambia subscribes to these international covenants and treaties. Granted this right can be subject to specific limited derogations which are prescribed by law and for purposes reasonably foreseeable and necessary in a democratic society—article 21 (2) of the Zambian Constitution – 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 the others. These derogations are to be narrowly interpreted,” stated Prof Ndulo.

“It, therefore, calls for a severe recollection of Zambians that Freedom of Assembly is the lifeblood of democracy. It helps create spaces for collective politics, and secondly, it is essential in democratic politics because it is only through meetings, dialogues, talking and communicative action with fellow citizens that we can critically explore the various beliefs and values which animate policy decisions. The more ideas are discussed, the better and more legitimate political decisions are likely to be. The Public Order Act in its present form is unconstitutional because it shrinks the public spaces and removes the grounds of public engagement from the citizens – leaving them on free fall and directionless in the face of politics and policies that determine their collective destiny. The Public Order Act was conceptualized in a colonial setting in which Zambians were subjects and not citizens. To elevate it in the manner now seen in Zambia is to defeat the very essence of Independence of the Zambian people.”