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1.0 INTRODUCTION
The Constitution of Zambia, as amended by Act No. 2 of 2016 (the “Constitution”), contains
provisions under its Part 3 (unamended provisions from the 1996 Constitution) which are a
domestication of the International Bill of Rights. The human rights safeguarded under the
Constitution are inalienable, interdependent, and aimed at ensuring that human beings live out
their full potential and enjoy the utmost dignity and respect.
It is this spirit that guided the formulation of the rights of freedom of assembly and association, as
well as the freedom of expression, rights respected under Articles 21 and 20 of the Constitution,
respectively.
Article 21 of the Constitution provides:
“(1) Except with his own consent, no person shall be hindered in the enjoyment of his
freedom of assembly and association, that it to say, his right to assembly 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.
(2) 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…”
It has been a long standing argument that the infringement of the right to assembly and association
has a bearing on the freedom of expression. As such, on a similar level of enjoyment, and probable
abuse is the right protecting the freedom of expression as outlined under Article 20 which provides:
“Except with his consent, no shall person shall be hindered in the enjoyment of hiss
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.”

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However, it is also understood that every right has a corresponding duty. As such, the law has put
in place mechanism that ensure that the balance between the rights and duties is preserved. This is
illustrated under Article 21(3) of the Constitution which empowers the State to pass legislation
which may restrict the enjoyment of the right, only to the extent as can be shown that the restriction
does not entirely derogate and completely take away from the enjoyment of the right [to assembly
and association.]1 It is against this backdrop that Public Order Act, chapter 113 of the laws of
Zambia (formerly chapter 104) (“POA”) was enacted, or rather carried from the colonial regime
to regulate public assemblies.
2.0 FRAMEWORK AND INTERPLAY OF THE POA WITH HUMAN RIGHTS
The POA is a 1955 enactment whose objective was “to prohibit the wearing of uniforms in
connection with political objects and the maintenance by private persons of associations of
military or similar character, and makes further provision for the preservation of public order.”2
Of particular relevance to this paper is section 5(4), which prior to its amendment read as follows:
“Any person who wishes to convene an assembly, public meeting or to form a procession
in any public place shall first make application in that behalf to the regulating officer of
the area concerned, and, if such officer is satisfied that such assembly, public meeting or
procession is unlikely to cause or lead to a breach of the peace, he shall issue a permit in
writing authorising such assembly, public meeting or procession and specifying the name
of the person to whom it is issued and such conditions attaching to the holding of such
assembly, public meeting or procession as the regulating officer may deem necessary to
impose for the preservation of public peace and order.”
The thrust of this provision was that it put power on the regulating officer to either grant or reject
the permit applied for by persons intending to hold a public procession or gathering. The purpose
of placing such a limitation was to guard against such public gatherings that may result in breaches
of peace, as well as to be able to control the number of assemblies that are being held.
1 Chanda,A.W. Constitutional Lawin Zambia.(Lusaka:UNZA Press) 2011,p. 1121.
2 Long title of the Public Order Act, chapter 113 of the laws of Zambia.

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However, it was not long before conflicts with this provision surfaced, and the provision begun to
be viewed as a means to take away from the full enjoyment of the right to assemble and express
oneself. This conflict was aptly evidenced in the landmark case of Christine Mulundika and
Seven Others v The People3, where the argument was that section 5(4) of POA was
unconstitutional. The Court held that section 5(4) was not reasonably justifiable in a democratic
society for a number of reasons:
1. The uncontrolled nature of the discretionary power vested in the regulating authority;
2. The fact that the regulating authority was not obliged, when imposing a ban, to take into
account whether disorder or breach of the peace could be averted by attaching conditions
upon the conduct of the procession or meeting such as relating to time, duration and route;
3. Although the rights to freedom of expression and assembly are primary and the limitations
thereon secondary, section 5(4) reversed the order, in effect denying such rights unless the
public meeting or procession was unlikely to cause or lead to a breach of the peace or
public disorder;
4. The criminalisation of a procession or meeting held without a permit irrespective of the
likelihood of occurrence of any threat to public safety or public order; and
5. The lack of adequate safeguards against arbitrary decisions.
Consequently, section 5(4) of the POA was held to be unconstitutional and, null and void. The
POA was then amended in 1996, and section 5(4) now reads:
“Every person who intends to assemble or convene a public meeting, or procession or
demonstration shall give police at least seven days’ notice of that person’s intention to
assemble or convene such a meeting, procession or demonstration.”
This notwithstanding, it is a fact undeniable that the POA still has problematic features, as
observed by Alfred Chanda:
“The Amendment Act [POA] still has unacceptable features which make it difficult for
people to enjoy freedom of assembly and expression unhindered.
3 SCZ Appeal No 95 of 1995.

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1. First, the requirement of seven days advance notice in every situation is a prior
restraint on the exercise of the fundamental rights to expression and assembly.
What it means is that one cannot participate in a public meeting, procession or
demonstration unless one first notifies the police. There is no reasonable
justification for requiring seven days advance notice in every case. In the case
of a public meeting at a fixed place why do the police need seven days advance
notice?
2. Second, Police are given broad and uncontrolled powers to stop a meeting from
taking place. They can simply say, as they often do, that they do not have
adequate manpower to police the event. There is no way of ascertaining
whether such a reason is valid or not. On numerous occasions in Zambia police
have stopped people from holding rallies, processions and demonstrations on
the spurious grounds they do not have adequate manpower. Yet, if the rally,
procession or demonstration goes ahead the police are able to mobilise
hundreds of officers to disperse the rally, procession or demonstration at short
notice.
3. Thirdly, the Amendment Act does not provide adequate safeguards against
arbitrary decisions; nor does it provide effective controls against abuse by
those in authority when applying the law. The cases of LAZ v.Attorney-General
and Resident Doctors Association of Zambia illustrate the extent to which the
police still abuse their powers to regulate public meetings.
4. Fourth, the provision for an appeal to the Minister is not an effective safeguard
because Ministers are rarely impartial and are in fact highly partisan. It is most
unlikely that the Minister will overrule the police, especially where the
appellants are perceived opponents or critics of the government. In practice
there has been no recorded instance where the Minister has ever upheld an
appeal.
5. Fifth, the provision of a further appeal to the High Court is nothing new as the
courts havealways had thepower of judicial review of administrative decisions.
There is nothing in the Act which requires the court to hear and determine the
appeal within a short period of time. It is well knownthat civil cases takea long

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time to resolve in the courts. Moreover, litigation in the High Court is an
expensive affair. How many citizens have the money, the time and patience to
wait until final resolution of the matter in court?
6. Sixth, the Act lacks flexibility as seven days’ notice must be given in every
instance. Yet, there may be many instances where people may need to meet or
demonstrate before the expiry of seven days. Needless to say that
demonstrations, processions and public meetings are often convened in
response to an event. It may often be necessary to respond quickly to an event
or occurrence.
7. Seventh, the penalty for unlawful assembly has been increased from six months
to five years. Moreover, there is no distinction made between organisers and
those who merely attend. This severe sanction has a chilling effect on the
freedom of expression and assembly. It is certainly not justifiable in a
democratic country to send people who are merely exercising their human
rights to peaceful assembly or demonstration, to prison for five years. No
distinction is made between peaceful assemblies and demonstrations on the one
hand, and those that are violent or disrupt public order, on the other.”4
As such, the existence of the POA has been perceived as an obstacle towards the enjoyment of the
freedom of assembly and expression, rights guaranteed by the Constitution. The POA has therefore
been regarded as tool used by the government to suppress the enjoyment of these rights, especially
political dissent and the participation of the civil society in matters of national interests. Thus,
despite the POA being enacted with a view to preserve public order, it has been abused and has
since served as government’s tool to intimidate and prevent the participation of the public in
matters that have an impact on them.5
It can therefore be seen that the amendment of the POA still left unsettled points, which can only
lead to the inference that the POA only serves to protect the interest of those in power. As an
illustration, the late President Michael Sata had promised, in his campaign promises to amend and
4 Chanda,A.W. Constitutional Lawin Zambia.(Lusaka:UNZA Press) 2011,p. 1121
5 Kamusaki,T.Impactof the Public Order Act on the Freedoms of Speech, Assembly and Association.October 2002,
p. 3

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possibly repeal the POA but shortly after his ascension to power, talks of amending the POA died
a natural death.
This has therefore amounted to a loss in certainty, in that one cannot really tell whether the evil
side of the POA is only seen when you are not in power. Additionally, there are replete examples,
especially during the 2016 pre and post-election periods that show how the POA has been used a
cloak to hamper the freedom of expression and assembly of members of the public that are not
pro-government. Rallies that were not hosted by the ruling party could not take off and the police
would defensively say it was because no permission was given, but the same yardstick was not
applied to pro-governmental gatherings.
Another example would the brutality with which most University of Zambia (“UNZA”) students
are subjected to. In as much as it is true that not all demonstrations that the students hold are
peaceful and lawful, there are however been instances where the students are forced to respond
violently owing to the brutal treatment that the police are subjecting them to. Such brutality
includes the breaking into of the hostels and nabbing students who may not even be privy to the
demonstrations.
This is evidenced in the nearly 4 cases that are currently pending before the court, where UNZA
students are being charged for unlawful assembly and riotous behaviour, when in most cases, the
students merely staged a peaceful demonstration to have their requests heard. This goes to show
that the POA as it stands hampers the enjoyment of human rights.
According to theories of jurisprudence, law and society must be held in tandem. This is because
the law is a product of society and aims at regulating it. The law cannot therefore exist independent
of society, and vice-versa. Society must therefore seek to preserve the law in the same way that
the law seeks to meet the needs of society. The POA can therefore not be said to be meeting the
needs of society as it is evident that it only seeks to kill the people it is supposed to protect.
3.0 RECOMMENDATIONS
1. The first recommendation would be the complete amendment of the POA. This Act has
been in existence for decades and yet proved problematic. This is because, as it is well

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understood that the spirit behind its enactment in the colonial regime was to suppress any
forms of assembly and association as the colonial masters feared this may result in a
revolution and possible overthrow. 52 years after independence, do we still need such a
law? Could it be that Zambian citizens are not entirely free from colonialism only that we
are living under a different colonial master? The Act should therefore be amended to
incorporate the views of the public and also to propagate the full and unhindered enjoyment
of human rights by the citizens, regardless of sex, social status, and indeed political
affiliation.
2. Another shortcoming is the presence of claw back clauses and derogations. This has been
one of the major criticisms against most African statutes, including the African Charter.6
As a matter of fact, Article 21 of the Constitution provides that the freedom of assembly
can only be enjoyed within the law. In as much as it is understood that the interest of one
party need to be balanced against the interest of the public, and that it is in national interest
to coordinate the enjoyment of this right to assembly and association, it is quite
disheartening to note that the derogations have proved problematic. In the case of Pumbum
v Attorney General7 it was stated that:
“...... a law which seeks to limit or derogate from the basic right of the individual
on grounds of public interest will be saved…only if it satisfies two essential
requirements. First, such a law must be lawful in the sense that it is not arbitrary.
It should make adequate safeguards against arbitrary decisions, and provide
effectivecontrols against abuse by those in authority whenusing the law. Secondly,
the limitation imposed by such law must not be more than is reasonably necessary
to achieve the legitimate object. This is what is also known as the principle of
proportionality. The principle requires that such law must not be draftedtoowidely
so as to net everyone including even the untargeted members of society. If the law
which infringes a basic right does not meet both requirements…, it is null and void.
And any law that seeks to limit fundamental rights of the individual must be
6 Compendium of key Human Rights Decisions of the African Union,5th ed. (Pretoria: Pretoria University LawPress),
2013, p. 345.
7 (1993) 2 L.R.C. 317

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construed strictly to make sure that it conforms with these requirements otherwise
the guaranteed rights under the constitution may easily be rendered meaningless
by the use of the derogative or claw back clauses of that very same constitution.”
Hence, any law seeking to limit the enjoyment of constitutional rights must not be arbitrary;
and also the limitation in the law must be not more than is reasonable necessary to achieve
the legitimate object of the limitation. In this regard, a clear balance between the right to
feely assemble and the duty not to cause breach of peace must be clearly stipulated by the
legislators, taking into account the two principles set out being proportionality and the lack
of arbitrariness.
3. A comparative analysis of the our POA against the Public Order Act 1986 of England
shows how it is possible to have law that meets the needs of society in a non-discriminatory
way. Section 11 of the English POA provides:
“(1) Written notice shall be given in accordance with this section of any proposal
to hold a public procession intended-
a. to demonstrate support for or opposition to the views or actions
of any person or body of persons;
b. to publicise a cause or campaign; or
c. to mark or commemorate an event,
unless it is not reasonably practicable to give any advance notice of the
procession.”
This section shows that public gatherings are not viewed from a one-size-fits-all approach;
rather particular notice periods are created depending on the nature of the event. This Act
can therefore serve as an example of how our Act can be. Additionally, the English POA
creates different categories of punishment for unlawful assembly, depending on the role
that each culprit played in the unlawful association.
4.0 CONCLUSION

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