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Tuesday, January 18, 2022

The public order Act is very bad law which must be done away, repealed and NOT amended

Columns The public order Act is very bad law which must be done...

By Fred M’membe

There is a role for the government in keeping people safe from actual criminals. But some of our laws, like the public order Act, don’t keep people safe. The public order Act punishes peaceful meetings, protests, demonstrations or rallies and other activities unlikely to be performed with criminal intent.

The absence of criminal intent should be taken more seriously by our politicians, legislators and other leaders. With a law like the public order Act which punishes you without you having intent to commit a crime on our statute books, the old adage that “ignorance of the law is no excuse” no longer makes sense. Therefore, government should regularly repeal laws, like the public order Act, we no longer need. Although there are some exceptions, criminal intent or mens rea is an essential element of most crimes. Under the common law, all crimes consisted of an act carried out with a guilty mind. In modern society, criminal intent can be the basis for fault, and punishment according to intent is a core premise of criminal justice.

Crimes that have an “evil” intent are malum in se and subject the defendant to the most severe punishment. Crimes that lack the intent element are less common and are usually graded lower, as either misdemeanors or infractions. Malice aforethought is a special common-law intent designated for only one crime: murder. The definition of malice aforethought is “intent to kill.” Society considers intent to kill the most evil of all intents, so malice aforethought crimes generally mandate the most severe of punishments, including the death penalty in jurisdictions that allow for it.

To be charged under the public order Act there has been no consideration for criminal intent.

Criminal intent is a necessary component of a “conventional” crime and involves a conscious decision on the part of one party to injure or deprive another. It is one of three categories of “mens rea,” the basis for the establishment of guilt in a criminal case. There are multiple shades of criminal intent that may be applied in situations ranging from outright premeditation to spontaneous action.

It is possible to establish criminal intent even when a crime is not premeditated. Individuals who commit a crime spontaneously may still understand that their actions will cause harm to another party and contravene existing criminal law. In other words, an individual that takes or withholds action with the knowledge that such behaviour will lead to the commission of a crime can be said to possess criminal intent.

Clearly, whichever angle one looks at, the public order Act is very bad law which must be done away, repealed and not amended.

18 COMMENTS

  1. Whn his friend Michael Sata as president of Zambia was saying the Public Order Act was a very good law, Fred M’membe cheered him on. Wht has changed now?

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  2. For correction…POA is only bad when you are in opposition because it inhibits your potential to campaign and market yourself. It’s only good when you are in government because it gives you power to prescribe your opponents, you decide when and how others can conduct their politics.

  3. We all suffered during run up to the general elections as the POA was applied selectively and the UPND should not start enjoying its sweetness because now we are in power. I know its a necessary devil when you are in power. This must be done away with for the good of our nation. For those who are intent on committing crimes there are enough laws to take care of them. There is always need to equip the Police Service with basic policing equipment at the moment if one was to appear before the police for interviews one would wonder if the govt cares about about the welfare of officers. In most offices apart from senior ones there is torn out and fallen apart furniture, lack of station functional vehicles and communication equipment and in most cases officers use their personal mobile phones…

  4. Another (far too long article) from uncle Fred. Go get your Post up and running, that’s what people are waiting for!

  5. Sorry I don’t agree with your views and argument.
    The problem is not the act itself, it’s the governing parties have constantly misused the act for political reasons. Public Order Act has to be amended at the core of it must serve to protect the rights of protesters not government. It must strengthen the rights of the public to assemble, freedom of speech and peoples voices to heard.

  6. HEHH has been advised to leave that act alone for now………

    untill the clique who are trying to fan tribal strife to cover their corruption are subdued through convictions ……….

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  7. It’s difficult to get rid of anything inherited from the British. The POA is a British Law, they left it with us just many others. As a student of Law, Fred how many British pieces of Law still exist in our statutes? Many! Even the wigs and gowns worn by Ladyships and Lordships were left by the British. The British don’t have a Constitution but they left us with one and 57yrs after they left we’re still struggling to perfect it. We have failed to come up with a reasonable document. We have tried to amend the POA but have failed. Kampyongo had his own version, Jack Mwiimbu has his own. Simply put, we have failed ourselves

  8. POA has the potential to be abused by a bad government like we have seen in the past. But it may also follow that if it was done away with, bad citizens may abuse the vacuum and cause problems. Damage to property and life can never be redeemed by arresting those that committed the crime. So we should settle for a balance that ensures that the governing party does not use POA to trample on other political players rights and conversely the opposition political parties and other aggrieved individuals do not take advantage of the absence of POA to make the country ungovernable.

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  9. If one day your party should form government (God forbid), you will see what a nice piece of legislation the Public Order Act is.

    Ask HH.

  10. The problem was with Ministers of Home Affairs, Inspector Generals of Police and their commands. The POA is there to allow for the police to provide a safe and orderly environment for the assembling or protesting or demonstrating person. Take for example, Ridgeway Campus students want to demonstrate and they block Nationalist Way. This means that ambulances and cars carrying patients to UTH will be obstructed and lives may be lost. No one should ever expect a mob to behave reasonably, on the contrary crowds tend to disorder. The POA if interpreted CORRECTLY is good law. The Supreme Court has provided that guidance.

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  11. If you use a knife to kill someone, is the knife the one to take to prison? The POA is good law but the nation should have punished the police who abused it. We have always punished the political parties but never the individual police officers who break the law.

  12. I think before we repeal the public order act, my suggestion is that we use it on PF so that they never ever assemble, even their planned general conference for June 2022, must be impacted. just to let them feel the feeling of what others went through when they fully abused it. Please support me on this suggestion

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  13. Sansanya Bijanga you have said all I waned to say brother. Look at some countries and see how freedom to do anything by citizens has caused chaos,overwhelmed Police numbers , disrupted a lot of things etc etc because they do not need a permit , we need some element of restrictions. FREEDOM IS NOT ABSOLUTE! Currently we have NGO’s headed by people with little sense and have always wanted countries to be ungovernable so sorry we need some sense in this bill. Let’s just hope UNPD will also not abuse this power they now have in their hands!

  14. Someone wants support for his senseless comment? Sorry we have supporters of different Political parties on this fora, those for UPND, PF, MMD, SOCIALIST ,ETC ETC………some debaters, AFRICA WHY? WHEN ARE WE GRADUATION FROM 1903 MENTALITY, WHY AFRICA?

  15. Repealing it is being overzealous again. You have to be very careful how you are going to deal with the clique of thieves who want to make this country ungovernable by appealing to tribal sympathy. They know they have stolen big and want to find a way of escaping prison.

  16. There is nothing wrong with the POA. The challenge has been been the abuse and misapplication of the POA by police and ruling part politicians. It is always better and safer to leave room for people to freely air their views but provide for adequate checks for those that cross the threshold into crime and criminal intent to be sanctioned accordingly. The rulers of yesterday abused the POA with impunity and the masses did not like. For this they were flushed down the drain.

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  17. WHEN SATA AND PF SAID THEY WOULD GOVERN ZAMBIA BASED ON THE TEN COMMANDMENTS EVERYBODY WAS EXPECTING A RULE OF LAW BASED GOVT. BUT WHAT WE SAW WAS THE BANISHMENT OF RULE OF LAW WHICH WAS REPLACED BY RULE OF MEN. IT IS RULE OF MEN THAT CLOSED POST NEWSPAPERS, POST COURIERS AND OTHER VIABLE BUSINESSES. WHERE WERE YOU ALL THE TEN YEARS OF PF MISRULE?

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