By MARVELLOUS SAKALA
AFTER the Second World War Africans became increasingly conscious of their unjustified oppression and injustice of colonialism. They began fighting for their rights through political organisations, assemblies and protests.
When the colonial masters saw the momentum of the uprisings they decided to regulate assemblies and gatherings by enacting Public Order Acts (POA) in their various colonies.
In 1955 this outdated and relic law was enacted in Northern Rhodesia – nine years before independence. Some prominent academicians and legal scholars have and are still arguing that this piece of legislation must be done away with completely because it is archaic and it infringes on citizens’ rights.
Internationally recognised scholar in Constitutional Law Professor Muna Ndulo has on several occasions argued that the Public Order Act is “unconstitutional” because it infringes on the right to assemble which is a Constitutional right, provided for and guaranteed by Article 21 of the Constitution.
The Constitution being the Supreme Law of the land it therefore gives life and meaning to any other piece of legislation according to Prof Ndulo’s argument.
Going by the Professor’s rationale – The Public Order Act being a subsidiary piece of legislation cannot override the Constitution on the right to assemble and other freedoms it provides and guarantees.
Additionally, the only legally mandated authorities to interpret the Constitution or laws are the competent Courts. Consequently, no other State institution including the Police can give what can be considered a binding interpretation of the Constitutional right of assembly.
That being the case, I feel that this piece of legislation has outlived its usefulness and is now only being used in a disguise of maintaining public order when in the actual sense it is used to undermine human rights that are essential to a democracy.
The deliberate reluctance by successive administrations to repeal this law that threatens to undermine the country’s democratic reputation is a source of concern.
Many politicians have promised to repeal this archaic law once elected into the highest office of the land but once they get there they develop some form of selective amnesia and they completely forget how bad this piece of legislation is.
The current President, Mr Hakainde Hichilema called for a repeal of the Public Order Act on December 21, 2019 during a twitter conversation with Human Rights activists Pilato and Laura Miti.
Not only that – the President, as an opposition leader, had on several occasions expressed his displeasure at how the Public Order Act was being used to infringe on citizen’s rights and he promised to repeal it.
I have hope and faith he will do just what he promised regarding this 1955 Public Order Act.
However, Justice Minister Mulambo Haimbe was quoted by the Daily Mail on the October 21, 2021 that the new dawn administration would not completely get rid of the Public Order Act because it is necessary in promoting Law and Order and also controlling of public associations or gatherings.
According to the newspaper, Mr Haimbe said the new bawn Administration will only amend the Public Order Act to strike a balance between the interests of the people and Government.
If the newspaper quoted the Minister of Justice that it is the correct position of Government then this debate on the Public Order Act will surely drag on.
For instance, the country’s former ambassador to Ethiopia, Emmanuel Mwamba in his article posted on his Facebook page on January24 2022, strongly argued that it is now time to repeal the Public Order Act, a law that successive Governments have used and abused for their own preservation.
I find myself agreeing with Prof Ndulo and Mr Mwamba’s sentiments that the Public Order Act must be repealed because it is too tied with the colonial legacy.
Fifty-eight years after independence I don’t think we still need this law which was first introduced by the colonial masters with the sole purpose of having our freedom fighters quarantined in their homes instead of mobilising during the struggle for Independence.
Queen Elizabeth of the United Kingdom was only 29 years old when this law was being enacted in Northern Rhodesia and now she is 95 years old – that’s how old this Law is, do we still need this Law? The answer is NO. Even Queen Elizabeth herself would be shocked to hear that Zambia is still holding on to the 1955 Public Order Act when it is now a free and sovereign state.
We are now Zambia and not Northern Rhodesia – We must repeal this colonial, anachronistic and antiquated piece of legislation we call the Public Order Act.
