IS IT AN INADEQUACY OF THE LAW OR SIMPLY IMPUNITY?
I have heard of people crying over the Public Order Act that, it must be repealed. They go on to say it is a hindrance to real democracy. Therefore, there is a feeling that, once repealed people will enjoy their fundamental human rights. Unfortunately, I do not share such enthusiasm.
Now allow me to share a bit on the processes around public order act management. In this, I will use the famous Mulundika and 7 Others VS People (S.C.Z. Judgment No. 25 of 1995) [1996] ZMSC 26 (9 December 1996).Remember, superiority of the law states that, any law that contravenes the provisions of the constitution is null and void. This was the case decided in the supreme court of Zambia. In this case the appellant challenged the constitutionality of certain provisions of the Public Order Act Cap 104, especially section 5(4). The challenge followed on the fundamental freedoms and rights guaranteed by articles 20 and 21 of the Constitution.A subsidiary challenge related to the exemption of certain office-holders from the need to obtain a permit.Held (by a majority, CHAILA, J.S., dissenting): (i) Section 5(4) of the Public Order Act Cap 104 contravenes articles 20 and 21 of the Constitution and is null and void.The most important thing is, in addition to statutes, constitution etc law reports are as much source of law. In short a court decision, in itself is law and must be respected as providing meat to the law and helps to remove ambiguity.
In this case the need to get police permit was outlawed and replaced with merely notification.What does this mean? It simply means that the police shall never regulate meetings but, merely recipients of notices and provide security accordingly. For this reason, the police must not be allowed to use such flimsy reasons as, the security does not allow, which security do they refer to and under what article of the Constitution of Zambia. For goodness sake, that’s why they are there, to avert a security threat so the people enjoy the fundamental rights. Even if it means getting the whole police battalion from kamfinsa, so be it.This court decision was respected from 1996 to 2016. This is when we heard of Air force Generals restricting air space against opposition parties. As the Air force covered the sky, the police deployed a ground infantry that gunned down Chibulo Mampenzi as seen in the Chawama cleared rally that was cancelled at the shortest of the notices.The irony of the security risks the police keep on referring to. It always turns out that in fact, they’re the threats as all the people killed at every procession and gathering are by the police themselves who should have protected victims.According to police standard operation procedure in crowd management, there are three phases:
1.An assembly, two more people gathering with a common purpose
2. Riot, a group of people after assembling begin to execute their common purpose.3. Riot felony, when the group continues to execute their common purpose after proclamation.Remember, these three phases are the ones that are staged without ever notifying the police. Forget about permit.In all these stages, how should the police manage them? During an assembly, which comes without notification. The police come in to engage the gathering which should consist of two or more people and notify them that the police is not aware of their gathering. In this case, the police must hold ground and observe the assembly.
The second phase is that of a riot. In this phase, the gathering which may upgrade into acting to implement it’s reason for the gathering and begin to advance. The third phase is where a Ranked Senior police officer in charge of officers on the ground, will order the riotous assembly to disperse in the words we call, proclamation. He says the following, “In the name of the president I order you to dispace”. This proclamation must be repeated in at least five common local languages.
If after proclamation, the assembly is still determined to carry out their common purpose. The commander then orders the officers to dispace the gathering by minimum force. And at that stage the riot becomes a felony.On disapcing the gathering, riot gear is used and it consists of tear smoke and long and short buttons.If the group is still fighting the police to execute their common purpose. The police will upgrade, the force to the use of water canons and rubber bullets. In the deployment of rubber bullets, a good distance must be kept. Because within short range the rubber bullets can be lethal. Simply put, short range rubber bullets can kill. The objective is not to kill.If after all these interventions, the group still puts resistance thereby endangering lives and threatens to destroy property. The gun men are then deployed as a last resort. These are given specific instructions, shoot only to maime and not kill.
If even after deploying gun men/women the riot still goes on and the police is overwhelmed, they will turn to the defense forces for support.
In the phase riot felony, people are arrested and transported to police stations.During these arrests, the police officers are required by law to book those being arrested on special forms indicating not only the suspect’s name but, place and time of arrest.
Now, because of impunity they do not follow all these procedures. The result is well known they have never succeeded in convicting the people they arrest. They are always acquitted. Because police plays politics, there are never consequences for the erring officers. In fact, they get promoted. It is all impunity and not inadequacy of the law. How would we explain the arrests of people for unlawful assembly when the meeting they are arrested for was held for days ago, case of miners and Chishimba Kambwili in Luanshya. The case is still in court. As long as it justifies the polical end the means does not matter.
The repealing of the public order Act may not be the answer but, strong oversight institutions like judiciary and legislature to watch on the excesses of other arms of governance. As things stand today we only have one wing, whatever it’s name is. All we can remind men and women in uniform is that don’t be used to execute political battles ending up killing your own brothers and sisters. Politicians come and go, but Zambians will remain there with you and me.
Sikaile C Sikaile
Good Governance and Human Rights Activist for Zambia and Amnesty International