Covid 19 Guidelines and Public Order Act: Deadly Combination for Democratic Spaces

By Parkie Mbozi

For over six decades successive liberation movements, opposition parties, civil society and other governance stakeholders have had one thing uniting them: fighting the public order act (POA). The POA has been the most politically abused and repressive piece of legislation. The POA now has a partner in the Covid 19 regulations and, guess what, it is a deadly combination with serious ramifications for our democracy ahead of the 2021 polls.

The POA is properly referenced as Chapter 113 Of the Laws of Zambia Chapter 113. It was first enacted in 1955 by the colonial government of Godfrey Huggins. Roy Welensky, the second Prime Minister of Northern Rhodesia solidified and used it to silence revolt against the 10-year (1953 – 1963) Federation of Rhodesia and Nyasaland and subsequently the struggle for the independence of our country.

Since 1955 the law has undergone nine amendments (in 1959, 1960, 1965, 1967, 1970, 1977, 1985 and twice in 1996). It has survived and emerged even more controversial especially after the 1996 amendment. For the first eight years of multiparty democracy (1964 – 9172) UNIP used the POA to stifle the opposition. After the Choma Declaration and introduction of the one-party participatory ‘democracy’ the Act was weaponized against any voices of dissent and civil disobedience organised by such groups as the trade unions and student groups.
Despite condemning it while in opposition and promising to do away with it when assuming office, the MMD embraced and even toughened it by adding a time dimension to giving notice to the police. President Frederick Chiluba is on record as having used the POA to try and eliminate UNIP and opposition parties that emerged before the 1996 elections, such as Dean Mungomba’s Zambia Democratic Congress.

Amnesty International, for instance, observed that, “Starting in 1991, the Public Order Act was re-activated in the context of a multiparty democracy. However, many organisations – the opposition, NGOs, and civil society groups – found that provisions of the act were routinely used against them. Government permits to hold meetings were difficult to obtain or were revoked at short notice. In the latter-half of 1995 and throughout 1996, numerous groups were denied permission to meet.

“In order to further control public gatherings, parliament enacted an amendment to the act (Chapter 4 enacted on March 3, 1996) to require fourteen days prior notice to request police permission to hold meetings, processions, or demonstrations. No set number of days were previously required. Under pressure President Chiluba shortened the notice needed for the police to approve a permit from fourteen to seven days. However, little in practice has changed. In the run-up to the election, several opposition rallies and a march were refused permission.”
Similarly for 10 years while in opposition, the Patriotic Front had running battles with police and the successive MMD governments of Levy Mwanawasa and Rupiah Banda over the POA, with the climax of was the incident where Michael Sata was teargassed by police on November 26, 2010. Like its predecessors, the PF has embraced the POA and continues to use it to its full advantage. Soon after taking over in 2011, on October 5, 2012 when swearing in Joseph Akafunba as permanent secretariat for the Ministry of legal affairs late President Sata said, “POA is a bad law when you are in the opposition”. “No country can operate with sanity and enforce order in society in the absence of the law.”

The statements drew sharp reactions from political parties and other stakeholders and demanded an explanation for the ‘change of heart’ on Sata’s part, which they didn’t get. NGOCC said they were shocked “to learn that President Sata was now praising the same law he condemned during his time in opposition.” The complaints did nothing to stop the abuse of the POA by the PF. On March 24, 2014 the Evangelical Fellowship of Zambia (EFZ) observed that “the PF government was deliberately misapplying the archaic POA to silence citizens from speaking against the poor governance and the injustices that were being perpetrated by President Sata’s regime.”

Opposition parties, civil society, churches and other stakeholders have complained that abuse of the POA and shrinking of democratic spaces has worsened under the current government of President Edgar Lungu and the evidence of the abuses is abundant. For instance, within days of losing the 2008 Presidential by-election, then PF president Sata was on the road campaigning. In contrast UPND President Hakainde Hichilema and other opposition parties have repeatedly been denied permits to do so and are occasionally arrested and prosecuted even for merely stopping by markets to greet people.

The Amnesty International Report for 2015/16 hence reported that, “Police continued to implement the Public Order Act (POA), arbitrarily restricting freedom of assembly for opposition parties and civil society. While Section 5(4) of the POA provides for every person who intends to assemble or convene a public meeting, procession or demonstration to give the police seven days’ notice, police often interpreted this provision to mean police permission is required before any public assembly can proceed.

“In May, police opened a docket against opposition leader Hakainde Hichilema after he conducted a door-to-door campaign in Kamwala market in Lusaka, the capital. He was questioned by police in the presence of his lawyers for over an hour and made to write a letter of undertaking to comply with the provisions of the POA to be spared prosecution.”
This is despite Lungu, as the PF candidate to replace the late Sata in the January 2015 Presidential by-election, saying the following on December18, 2014 in a Movi TV Interview, “We have the decency to own up that the Public Order Act is not ok. It needs to be revised.” At the time he was also Minister of Justice and Minister of Defense.
The issues with the POA is that it is a bad law both in form and in its application. Implicit bias in the police application of the POA and their surrender to manipulation by the party in power weakens any argument that every state requires this kind of law. In terms of form, the POA has built-in clauses that unambiguously not only infringe on the constitutionally given induvial rights and freedoms but also gives the party in power an edge.

First, apart from needing a 7-day notice to the police to assemble or demonstrate (Section 5/4), the police can dictate who attends and//or addresses a meeting and what matters to be discussed.
Second, the Act gives the ruling party an edge over its opponents by exempting its senior office bearers from its provisions (section 5/6). It says, “the provisions of subsections (4) and (5) shall not apply to any public meeting convened by or at the request of and intended to be addressed by the President, the Vice-President or any Minister or Junior Minister or the Speaker or Deputy Speaker of the National Assembly.”

Third, at the whim of the moment and perhaps with influence from ‘above’, the Police can terminate any gathering on the pretext that a permit ‘was not properly issued’, even though it may have been in the first place. Refusal to obey any orders given thereof under such circumstance earns the organizer//s an arrest and prosecution (Section 5/6).

Fourth, a minister, despite being an interested party politically, can dictate to the police not to issue a permit for a meeting or ban holding of assemblies or meetings for a period up to three months (section 5/12). All s/he needs to do is argue that circumstances exist in Zambia or in any part thereof, not to allow for such citizen assemblies, meetings or demonstrations.

Fifth, uttering “any words or does any act or thing whatever with intent to excite enmity between tribe and tribe or between one or more sections of the community on the one hand” is a punishable offence. The problem with this section lies in its interpretation, which results in selective application. So, whereas members of the opposition have been affected by this law, such utterances by senior PF leaders have been conveniently ignored (examples abound). Sixth, the law can be abused to protect those in authority from ‘threatening’ statements even where such are warranted. It says, “Any person who in any public place or at any public meeting uses threatening, abusive or insulting words with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence.”

The second and main problem with the POA is its selective application by those in power through the police. Civicus, an international human rights organization sums up: “By misapplication of the Public Order Act, Police in Zambia routinely prevent or break up protests that are even mildly critical of the government. However, protests or marches in support of government are allowed to go on even if the protester are openly breaking the law by being carrying weapons and being violent.”

The Covid 19 ‘laws’ or regulations are vague at this stage. They are even absent on the MoH website. So far what is known are:1 permits for assembly of more than a certain number of people; 2, social distancing; and,3. wearing of masks in public. Ambiguous as they are, the aspect on assembly or meetings is what directly fits into the POA prism. Going by experience there are high chances that POA and Covid 19 guidelines will be used interchangeably to curtail citizen’s freedoms to assembly, specifically political gatherings as we surge towards 2021. Chapter One Foundation executive director Linda Kasonde says, “it is unfortunate that COVID-19 regulations regarding the right to freedom of assembly and movement are being applied selectively to favour those in authority”. This concern was echoed by Human Rights Commission (HRC).

In essence the POA should have been the famous Bill 10.

The author is a media, governance and health communication researcher and scholar with the Institute of Economic and Social Research, University of Zambia. He is reachable on pmbozi5ATyahooDOTcom.