REPORTABLE Z.L.R. (6)
Judgment
No S.C. 9\2002
Civil
Application No 34\2002
(1) TENDAI
LAXTON BITI (2) MOVEMENT FOR DEMOCRATIC CHANGE v
(1) MINISTER OF HOME AFFAIRS
(2) THE
ATTORNEY-GENERAL
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, SANDURA JA, CHEDA JA, ZIYAMBI JA & MALABA JA
HARARE
FEBRUARY 15 & 28, 2002
A.P.
de Bourbon SC, for the
applicants
Y.
Dondo, for the
respondents
SANDURA
JA: This application was brought directly to this Court in
terms of s 24(1) of the Constitution of Zimbabwe (the
Constitution). In it the applicants sought a declaration that s
24 of the Public Order and Security Act [Chapter 11:17] (the
Act)
contravened sections 20 and 21 of the Constitution.
The
background facts are as follows. The first applicant (Biti)
is a Member of Parliament for the constituency of Harare
East. He
is a member of the National Executive of the Movement for Democratic
Change (the MDC), the main opposition party
in Zimbabwe.
On 28
January 2002 Biti, acting in terms of s 24(1) of the Act, wrote to
the Officer Commanding the Police, Harare Suburban District,
Chief
Superintendent Kupara (Kupara), notifying her that the MDC
would be holding twelve public meetings in the Harare East
constituency from 2 to 23 February 2002. The date and venue of each
meeting, as well as the time at which each meeting was to commence,
were given.
In reply,
Kupara informed Biti that only four of the twelve meetings could be
held. The rest were prohibited for various reasons.
Aggrieved by
that decision the applicants approached this Court and filed this
application, alleging that s 24 of the Act infringed
their rights of
freedom of expression and freedom of assembly.
Section 24
of the Act reads as follows:-
(1) Subject to subsection (5),
the organiser of a public gathering shall give at least four clear
days written notice of the holding
of the gathering to the
regulating authority for the area in which the gathering is to be
held:
Provided
that the regulating authority may, in his discretion, permit shorter
notice to be given.
For
the avoidance of doubt, it is declared that the purpose of the
notice required by subsection (1) is -
to
afford the regulating authority a reasonable opportunity of
anticipating or preventing any public disorder or a breach of the
peace; and
to
facilitate co-operation between the Police Force and the organiser
of the gathering concerned; and
to
ensure that the gathering concerned does not unduly interfere with
the rights of others or lead to an obstruction of traffic,
a breach
of the peace or public disorder.
Any
Saturday, Sunday or public holiday falling within the four-day
period of notice referred to in subsection (1) shall be counted
as
part of the period.
Where
there are two or more organisers of a public gathering, the giving
of notice by any one of them in terms of subsection (1)
shall be a
discharge of the duty imposed upon the other or others by that
subsection.
This
section shall not apply to public gatherings of a class described in
the Schedule.
Any
organiser of a public gathering who fails to notify the regulating
authority for the area of the gathering in accordance with
subsection (1) shall be guilty of an offence and liable to a fine
not exceeding ten thousand dollars or to imprisonment for a period
not exceeding six months or to both such fine and such
imprisonment.
I now wish to set out the
relevant provisions of sections 20 and 21 of the Constitution.
The relevant
part of s 20 reads:-
(1) Except
with his own consent or by way of parental discipline, no person
shall be hindered in the enjoyment of his freedom of expression,
that
is to say, freedom to hold opinions and to receive and impart ideas
and information without interference, and freedom from interference
with his correspondence.
(2) Nothing
contained in or done under the authority of any law shall be held to
be in contravention of subsection (1) to the extent
that the law in
question makes provision -
(a) in the interests of defence,
public safety, public order, the economic interests of the state,
public morality or public health;
;
or
;
except
so far as that provision or, as the case may be, the thing done under
the authority thereof is shown not to be reasonably justifiable
in a
democratic society.
The
relevant part of s 21 reads:-
(1) Except
with his own consent or by way of parental discipline, no person
shall be hindered in his freedom of assembly and association,
that is
to say, his right to assemble freely and associate with other persons
and in particular to form or belong to political parties
or trade
unions or other associations for the protection of his interests.
(3) Nothing
contained in or done under the authority of any law shall be held to
be in contravention of subsection (1) to the extent
that the law in
question makes provision -
in
the interests of defence, public safety, public order, public
morality or public health;
-
(d)
;
except
so far as that provision or, as the case may be, the thing done under
the authority thereof is shown not to be reasonably justifiable
in a
democratic society.
(4) The
provisions of subsection (1) shall not be held to confer on any
person a right to exercise his freedom of assembly or association
in
or on any road, street, lane, path, pavement, side-walk, thoroughfare
or similar place which exists for the free passage of persons
or
vehicles.
It is well
established that in a democratic society the freedom of expression
and the freedom of assembly and association are of
great importance.
As this Court stated in the case of In
re Munhumeso & Ors
1994 (1)ZLR 49(S) at 56G-H:-
The
importance attaching to the exercise of the right to freedom of
expression and freedom of assembly must never be under-estimated.
They lie at the foundation of a democratic society and are 'one of
the basic conditions for its progress and for the development
of
every man', per European Court of Human Rights in Handyside
v United Kingdom
(1976) 1 EHRR 737 at para 49. See also Whitney
v California
274 US 357 (1926) at 375; Cox
v Louisiana(2) 379
US 559 (1965) at 574;
S v Turrell & Ors 1973
(1) SA 248 (C) at 256G-H.
Freedom
of expression, one of the most precious of all the guaranteed
freedoms, has four broad special purposes to serve: (i) it
helps an
individual obtain self fulfilment; (ii) it assists in the discovery
of the truth; (iii) it strengthens the capacity of
an individual to
participate in decision making; and (iv) it provides a mechanism by
which it would be possible to establish a reasonable
balance between
stability and social change. See Pandey
Constitutional Law of India
24 ed at p 118. In sum, what is at stake is the basic principle of
the peoples right to know. See Indian
Express Newspapers (Bombay) v Union of India
(1985) 2 SCR 287.
However,
this Court has recognised the need to reconcile the rights of freedom
of expression and assembly with governmental responsibility
to ensure
the sound maintenance of public order. There must be a compromise
which will accommodate the exercise of the protected
rights within a
framework of public order which enables ordinary people to go about
their business without obstruction. See: In
re Munhumeso & Ors, supra,
at p 58D-H.
Having
said that, I now proceed to consider whether s 24 of the Act
infringes the rights of freedom of expression and freedom of
assembly. If it does, a further issue to consider is whether a
derogation from these protected rights is reasonably justifiable
in a
democratic society.
S
24 of the Act provides that the organiser of a public gathering shall
give at least four clear days written notice of the holding
of the
gathering to the regulating authority for the area in which the
meeting is to be held, and that if he fails to do that he
commits an
offence which renders him liable to a fine not exceeding ten thousand
dollars or to imprisonment for a period not exceeding
six months, or
to both such fine and such imprisonment. I have no doubt in my mind
that the section infringes the rights of freedom
of expression and
freedom of assembly. The right to assemble and the right to express
ones views publicly are fundamental in
a democratic society. The
need to give notice of the intention to exercise that democratic
right is an infringement of that right.
However,
that is not the end of the matter because s 20(2)(a) of the
Constitution permits the enactment of a law, or anything done
under
the authority thereof, which derogates from the right to freedom of
expression in the interests of public safety and public
order to an
extent which is reasonably justifiable in a democratic society.
Similarly,
s 21(3)(a) of the Constitution permits the enactment of a law, or
anything done under the authority thereof, which derogates
from the
right to freedom of assembly and association, in the interests of
public safety and public order to an extent which is reasonably
justifiable in a democratic society.
In
order to succeed, therefore, the applicants had to show that this
Court should not accept that s 24 of the Act is reasonably
justifiable in a democratic society on the grounds of public safety
or public order. I am not convinced that they have succeeded
in
doing so.
As
can be seen from the provisions of s 24(2) of the Act, the notice
required in terms of s 24(1) serves two main purposes. The
first is
to afford the regulating authority a reasonable opportunity of
anticipating or preventing any public disorder or any breach
of the
peace, and the second is to ensure that the gathering concerned does
not unduly interfere with the rights of other people
or lead to an
obstruction of traffic, a breach of the peace or public disorder.
In
my view, the above objectives are covered by the provisions of s
20(2)(a) and s 21(3)(a) of the Constitution.
What
is reasonably justifiable in a democratic society is a concept which
cannot be defined with precision. As this Court said
in the
Munhumeso case,
supra,
at p 64B:-
What
is reasonably justifiable in a democratic society is an illusive
concept - one which cannot be precisely defined by the courts.
There is no legal yardstick save that the quality of reasonableness
of the provision under challenge is to be judged according
to whether
it arbitrarily invades the enjoyment of a constitutionally guaranteed
right. See, generally, Commissioner
of Taxes v CW (Pvt) Ltd
1989 (3) ZLR 361 (S) at 370F-372C, 1990 (2) SA 260 (ZS) at
265B-266D.
In
my view, s 24 of the Act does not arbitrarily or excessively invade
the enjoyment of the freedom of expression and the freedom
of
assembly and association. It merely requires the organiser of the
public gathering to give the written notice to the regulating
authority. Most importantly, it does not give the regulating
authority the power to prohibit the gathering or to order the persons
taking part in the gathering to disperse. These powers are given to
the regulating authority in terms of other sections of the
Act which
are not under consideration in the present application.
Incidentally,
there is legislation in the United Kingdom which requires the
organisers of a procession to give written notice to
the police. S
11 of the Public Order Act 1986, in relevant part, reads:-
(1) Written
notice shall be given in accordance with this section of any proposal
to hold a public procession intended -
to
demonstrate support for or opposition to the views or actions of any
person or body of persons;
to
publicise a cause or campaign; or
to
mark or commemorate an event
(2)
(6)
Where
a public procession is held, each of the persons organising it is
guilty of an offence if -
the
requirements of this section as to notice have not been satisfied;
or
the
date when it is held, the time when it starts, or its route, differs
from the date, time or route specified in the notice.
In
addition, s 2(1) of the same Act has the following provision:-
Where
three or more persons who are present together use or threaten
unlawful violence and the conduct of them (taken together) is
such as
would cause a person of reasonable firmness present at the scene to
fear for his personal safety, each of the persons using
or
threatening unlawful violence is guilty of violent disorder.
In
my view, the application cannot succeed.
As
far as costs are concerned, in line with previous decisions of this
Court such as Hewlett v
Minister of Finance & Anor
1981 ZLR 571 (SC), and Bull
v Minister of Home Affairs
1986 (1) ZLR 202 (SC), I think that there should be no order as to
costs.
In
the circumstances, the application is dismissed with no order as to
costs.
CHIDYAUSIKU
CJ: I agree
CHEDA
JA: I agree
ZIYAMBI
JA: I agree
MALABA
JA: I agree
Atherstone
& Cook, applicants
legal practitioners
Civil
Division of the Attorney-Generals Office,
respondents legal practitioners
