By Wapona Kita
At a time when we are increasingly aware both of the strengths and weaknesses of extensive government, the ways of government become even more complicated for the citizen to understand. Even the law which has often been looked to by the citizen as a lifeline if all else fails, seems in many situations to have become tinged with the less attractive hues of official power. In these circumstances, it is more necessary that the citizen, his representative and all concerned with public affairs should understand the structure of legal and constitutional principle which underlies our system of government.1
The concept of demonstration is not new in Malawi. Those familiar with the recorded history of Malawi know that it has been practiced way back to 1915, during the John Chilembwe uprising. Then fast forward to the 1960s, songs such as “Zivute zitani ife amalawi, tili pambuyo pa kamuzu…. Eee tizafaaa eee tizafaaa eee…” will rekindle memories of demonstrations in most Malawians. Fast fast forward to the 1990s, songs like “Kodo kodo aaeee eee kodo kodo aaeee waikodola…”is also reminiscent of some demonstrations. All these demonstrations were political in nature to do with fight for regime change.
This year, it is clear again to almost every Malawian who follows politics that our nation has been locked which issues that have called for demonstrations for or against government. Let it be pointed at the outset that where as previous demonstrations could lead to regime change, under the new constitutional dispensation, that is not possible. It is only elections that can lead to regime change. A government set up as a result of demonstrations will be unconstitutional and will thus lack validity. Indeed those that end up setting up a government as a result of demonstrations may be prosecuted for treason. Of course let me put a rider that it would be lawful, if as a result of demonstrations, the President resigns to hold elections and chose another President. The Vice President can only act for a period of not more than 60 days. (Vide S. 85 of the Constitution) The law is not clear if an extension can be sought for the Vice-President to continue acting. I digressed. That is another topic, for another day, I hope.
To conduct a demonstration is a legal issue which is provided for and regulated by the law. The right to demonstrate is provided by the Constitution and regulated by the Police Act 2009. As can be noticed, the Police Act 2009 is a recent piece of legislation and to the best of my knowledge has not been subject to any thorough interpretation by the Courts. It was only assented to by the President on the 8th of January 2010 and came into force on the 14th of January 2010 when it was published in the Gazette.
This paper is written to offer insights on the right to demonstrate in Malawi in the light of the Police Act, 2009. It will provide lessons to both the Government and the citizens who want to exercise their right to demonstrate. It will also expose some grey areas in the law which might or could lead to a possible infringement of the right to demonstrate. Regard shall be had to the incidences of July 20th as well as August 17th 2011 demonstration and assembly to illustrate some of the points.
DEMONSTRATION AS A HUMAN RIGHT
It is provided in S. 38 of the Constitution of the Republic of Malawi that:
Every person shall have the right to assemble and demonstrate with others peacefully and unarmed.
This is a human right. To understand what it means to be a human right, I can do no better than quote what I regard to be the best definition of human rights offered by one learned author, Louis Henkin2 when he states:
To call them ‘human’ implies that all human beings have them equally and in equal measure by virtue of their humanity, regardless of sex, race, age; regardless of high or low ‘birth’; social class, national origin, ethnic or tribal affiliation, regardless of wealth or poverty, occupation, talent, merit, religion, ideology or other commitment. Implied in one’s humanity, human rights are inalienable and imprescriptible; they cannot be transferred, forfeited or waved; they cannot be lost by having been usurped, or by one’s failure to exercise or assert them.”
Human rights are ‘rights’:
“They are not mere aspirations, or assertions of the good. To call them rights is not to assert, merely, that the benefits indicated are desirable or necessary; or merely that it is ‘right’ that the individual shall enjoy these goods; or even merely that it is the duty of the society to respect the immunity or provides the benefits.
To call them ‘rights’ implies that they are claims ‘as of right’ not by appeal to grace or charity or brotherhood or love; they need not be earned or deserved. The idea of rights implies entitlement on the part of the holder in some order under some applicable norm. … The state must develop institutions and procedures, must plan, must mobilise resources as necessary to meet these claims.
A closer look at S. 38 of the Constitution shows that it contains two human rights. The right to assemble and the right to demonstrate. Citizens can choose to exercise either one right or both. For example, when the Civil Society Organisations (hereinafter referred to as CSO) chose to hold a vigil on the August the 17th, they were attempting to exercise their right to assemble only. On the other hand, on July, 20th when they chose to present a petition to the Chief Executive of the Lilongwe City Assembly, and in doing so agreed to meet at Lilongwe Community Ground and walk to the Civic offices, they had chosen to exercise both, their right to assemble and demonstrate. It is however difficult to see whether the right to demonstrate can be exercised independent of the right to assemble.
Even the Police Act distinguishes the right to assemble from the right to demonstrate. This now leads us to the definition of what is meant, to assemble and to demonstrate.
According to S. 92 of Police Act, an “assembly” means any assembly, meeting, rally, gathering, concourse, or procession of more than fifteen persons in or on any public place or premises or on any public road (a) at which the views, principles, policies, actions, or failure to act of the Government or any other government, or of a political party or political organisation, whether or not that party or organisation, whether or not that party or organisation is registered under any applicable law, are publicly discussed, attacked, criticised, promoted or propagated; or (b) held to publicly hand over petitions to any person or to mobilise or demonstrate support for or opposition to the views, principles, policies, actions or failure to act of any person or of any body of persons or any institution, including the Government or any other government or any governmental institution.
On the other hand, the same S. 96 of the Police Act, defines “demonstration” as any demonstration, whether by way of a procession, march or otherwise, in or on any public place or premises or on any public road, whether by one or more persons, for or against any person, organisation, cause, action or failure to take action, which is organised to be publicly held for the same purpose as in the case of an assembly.
Thus in terms of terminology as well as legally, it is wrong to call the planed August 17th vigil a demonstration. It was supposed to be an assembly only and not a demonstration. On the other hand, what happened on July the 20th was a proper demonstration, so called.
Like any other right, the exercise of the right to assemble and demonstrate is regulated by law. In the discussion at hand, we are talking of Part IX of the Police Act, 2009. A group of persons cannot just wake up one morning and decide to go the streets. In the exercise of their right to demonstrate, they must follow the procedures as provided by law. What then are these procedures? I will attempt to outline them one by one.
First of all, any organisation which intends to hold an assembly or a demonstration must appoint a convenor and a deputy convenor. The District Commissioner must immediately be notified of the appointment who shall in turn notify the officer in charge of the police station concerned. (vide S. 93 of the Police Act). As for the July 20th demonstrations the CSO had chosen Rev Sembereka of HRCC as the Convenor whereas for the August 17th assembly, Mr Robert Mkwezalamba of MCTU was.
The functions of the Convenor are to be responsible for the arrangements of any intended assembly or demonstration and to act on behalf of the organisation at any consultations or negotiations. He or she must make sure that he or she is present at the assembly or demonstration.
Where it is intended to hold an assembly or demonstration, the convenor must give notice in writing, of not less than forty eight hours and not more than fourteen days to the District Commissioner with a copy to the officer in charge of the police station concerned. The District Commissioner shall stamp every notice received with an official stamp and shall indicate the date and the time the notice was received by him. (Vide S. 96(1) of the police Act). The Notice must stipulate the name of the Convenor, his addresses and phone numbers, the name of the organisation on behalf of which the assembly or demonstration is convened, the purpose of the assembly, the place where the assembly or demonstration is to be held, the anticipated number of participants, the exact route it will take, the time when and the place where the participants in the procesission are to assemble , the time when they are supposed to disperse, the place where and the person to whom the petition will be handed, just to mention a few of the salient requirements.
Experiences from the July 20th and August 17th have shown that this section has created some problems on both sides of the organisers and the District Commissioners. This is so especially in cities where we have Chief Executives of the City Councils being in control of the cities. There has been ball throwing between the District Commissioners and the Chief Executives of the cities. For instance, the organisers were once turned away by the Chief Executive of the Lilongwe City Council when they went to present their notice to him because the Act talks of District Commissioner and not a Chief Executive. And yet it is clear the District Commissioner does not exercise control over the cities where the planned demonstrations were supposed to take place. The District Commissioners have also abdicated their duties holding that they do not have control over the cities. This ended up with a situation as for the July 20th demonstration where consultations had to take place with both the District Commissioner and the Chief Executive present. And yet in the strict legal sense, it meant one of the two was acting beyond his powers (ultra vires).
It is suggested that the law should amended to give powers to Chief Executives of City Councils to be the ones to be served with a notice of demonstration or assembly since they are the ones (in the absence of Mayors) under the Local Government Act in control of the cities.
The law strictly requires the District Commissioners to stamp the notice with the official stamp and indicate the date and time the Notice was received. However, in respect of both the July 20th and August 17th demonstration and Assembly, the District Commissioner’s office for Lilongwe refused to do so. This requirement was put there for a good purpose, i.e to determine whether the demonstration or assembly will be held within the time prescribed by law. But it would appear this has been misinterpreted by the authorities to mean endorsing the demonstration.
This observation leads us to another important issue to do with demonstration. As is clear from S. 96(1) of the Police Act, what is supposed to be given to the District Commissioner is a Notice of the intended demonstration or assembly and NOT application for permission to hold the demonstration or assembly. Many a time, I have seen letters from the District Commissioner and/or the Chief Executive of the city where they a Notice was presented refusing permission to demonstrate. The Chief Executive of the Zomba City Assembly is one such instance where a letter was written to CCASU refusing them to demonstrate for clocking 100 days of academic freedom fight. James Nyondo of Salvation Front also received a similar letter from the Chief Executive of the Lilongwe City Council refusing him permission to hold an assembly to launch his party.
It is a basic principle of human rights that one does not need permission to enjoy a birth right. The right to demonstrate is a birthright and it would be wrong for any official to put himself in a position whereby he can deny a citizen of the right to exercise of his right. The whole purpose of giving Notice is to help the citizen enjoy his right properly and to make sure that at the same time he does not infringe on others’ enjoyment of their rights.
It is for this reason that the Police Act in Section 98 provides that where the District Commissioner has received notice in accordance with section 96 or other information regarding a proposed assembly or demonstration comes to his attention, he shall forthwith consult with the officer in charge of police concerned regarding the necessity for negotiations or any aspect of the conduct of, or any condition with regard to, the proposed assembly or demonstration.
The law gives the District Commissioner and the Officer in charge powers to negotiate how a demonstration or assembly should be conducted to ensure that there (a) vehicle traffic or movement of pedestrians on public roads, especially during traffic rush hours, is least impeded, (b) an appropriate distance is maintained between participants in the assembly and a rival or other assembly or demonstration, (c) access to property and workplaces is least impeded and (d) injury to persons or damage to property is prevented. A District Commissioner who refuses a request of conducting a demonstration in a particular way or imposes any condition shall give the Convenor reasons in writing for his decision. (Vide S. 99 of the Police Act.)
At the time of writing this paper, the CSO had just held a press conference on the August 17th vigil/assembly. What then is the procedure to cancel or postpone a duly called for assembly or demonstration. According to S. 100 of the Police Act, if an assembly or demonstration is postponed or delayed, the Convenor shall forthwith notify the District Commissioner and the District Commissioner may call for a meeting of all the parties to map the way forward.
OF INJUNCTIONS AND DEMONSTRATIONS
Several people have expressed their opinion that the July 20th demonstrations were marred by the injunction which was obtained by one private citizen Mr Chiza Mbekeani. The question one may ask is can an injunction be obtained to stop another from exercising or enjoying his right. My opinion is that it cannot. I will buttress my point by reference to the law. The starting point is that we are talking of exercising the right to assemble and demonstrate peacefully and unarmed. Therefore if one wants to demonstrate unpeacefully, and armed, then that is outside the ambit of the right we are talking about here. It is possible that the right to demonstrate peacefully and unarmed may still violate other people’s rights. For instance, if the people demonstrating or assembling sing songs on top of their voices near a school or a church or a mosque, they may be interfering with others right to education or worship. In those cases, the District Commissioner and the Police Commissioner should come in to regulate the assembly or demonstration by either asking the demonstrators to sing in low tones or use a different route so that the rights of others are respected as well. Getting an injunction regulating how to conduct a demonstration is different from getting an injunction stopping the holding of the demonstration or assembly altogether.
It is for this reason that even the Police Act does not give either the District Commissioner or the Police or indeed any private citizen the right to obtain an injunction stopping a demonstration or an assembly. Rather it is provided in S. 102(5) of the Police Act a Convenor or any other person whose rights may be affected by the holding of an assembly or any term in the Notice of the assembly or demonstration may apply to the High Court for the striking out or amendment of any such term or condition or for the imposition of any other condition or for permission to hold, or for an assembly or demonstration and the High Court may strike out, amend or impose any such term as it considers just in the circumstances.
It is clear from the above that the Court cannot by way of an injunction stop a demonstration. It can strike out any term or amend how the demonstration should be conducted so as to make sure that it does not infringe on the rights of others.
Mr Chiza Mbeakeani obtained his injunction because he had fears that on July 20th, there were two planned demonstrations one for and one against government which were going to use the same route but starting from opposite directions. These two were bound to clash and at some point hence there would be anarchy and disorder. The court in that case took extreme care in establishing the facts as presented by Counsel for Mr Chiza Mbekean by among other things establishing the route the two demonstrations would take and whether they would start off at the same time and whether the injunction was in respect of both demonstrations. Upon being convinced with the answers, the court granted an injunction restraining the two demonstrations taking place as planned. Considering that the Injunction was granted ex parte, one may argue that there was a suppression of the material law before judge.
The Courts cannot shut out any person from approaching it and will decide a case on the basis of the facts and the law brought to it attention. Had it been brought before the attention of the Judge that according to Section 96(4) of the Police Act where the District Commissioner receives two or more Notices for assemblies or demonstrations on or at the same place and time, the convenor or organisation whose notice was first received by the District Commissioner shall be the one entitled to hold the assembly or demonstration at such place and time, we do not think the court could have proceeded to grant the injunction as it did. In the Chiza Mbekeani case, reliance was placed on newspaper excerpts and not evidence from the District Commissioner to show that there would be two demonstrations taking place July the 20th. And yet the law is clear that it is the first notice of the demonstration received by the district commissioner and not first notice placed in the newspapers (assuming that was the case) that is supposed to proceed with the demonstration.
It is based on the above argument that we hold the view that one cannot obtain an injunction restraining a demonstration altogether, rather one can obtain an injunction to regulate the procession or conduct of a demonstration.
It remains to be answered as to between a private citizen and the police, who is better placed to gauge issues of security threats? Like in terms of what happened on July 17th, the police had a day before met the organisers of the demonstrations and guaranteed them security. As the Police were getting ready to offer the said security, they were served with the injunction to the effect that a private citizen thought there would not be enough security and feared for his life hence they should not provide any security to the demonstrators. This is what perhaps confused everyone, including the Police and it is no wonder that what was supposed to be a peaceful demonstration will full protection by the police ended up in riots and looting taken advantage of by some citizens who haboured sinister motives.
OF USE OF FIREARMS AND DEMONSTRATIONS
According to the Malawi Human Right Commission, police used lethal force to shoot 58 people and 19 died during the July, 20th demonstrations. The question is were these fatalities justified? Did the police have to use live bullets in such a way as to kill up to 19 people during the demonstrations or indeed at all?
According to the police Act use of firearms should be of last resort if it is established that other methods of control are ineffective. And this is so only in respect to a person who is seen attempting to kill another during the demonstration r causing serious damage to property. (See s. 105 of the police Act.) However, the said section clearly provides that the degree of force which may be used shall not be greater than is necessary to prevent the concerned actions and shall be appropriate to the circumstances of the case.
The constitutional question to be asked here is can vandalism justify the deprivation of the right to life by way of the shooting by the Police? The offence of causing malicious damage to property as well as rioting are well provided for under our penal code and do not call for a death sentence. Justice Mzikamanda had an opportunity to interprete police use of force in the Mchesi case3 where he held: “It will thus be observed that the use of firearms by police officers is very much restricted. The authority vested in a police officer under Section 30(1) is in addition to and not in substitution for any authority to use firearms vested in a police officer by any other law. ( See Section 30(2) of the Police Act). It is an overarching requirement that the use of firearms by police officers as authorized by Section 30 of the Police Act shall as far as possible be to disable and not to kill. It follows that in the use of firearms the police are not to kill or take away human life. In the present case Yusufu Abdullah can not be said to have been in lawful custody charged with a felony nor was he a person convicted of a felony who was escaping.
Even if he was in lawful custody and escaping use of firearm would still have been restricted by the proviso (i) to Section 30(i). There had to be reasonable ground for the accused police officer to believe that he could not have otherwise prevented the escape without using firearms. There is no evidence to show that there was such reasonable ground for the accused police officer to believe there was no other way of stopping Yusufu Abdullah from escaping other than the use of firearms. The further restriction is that even where it became necessary to use firearms there had to be a warning first about the readiness to use firearms against the escape and the escapee must have not heeded such warning. In the present case there is no evidence of such warning. Although the law does not specify what form such warning should take, in my view it is not enough merely to see that a police officer one is dealing with has in his or her possession firearms. Probably a shout, some visible signal capable of being interpreted as a warning and nothing else and the firing of warning shot in the air would suffice as warning…..
In considering whether the use of the firearm in this case was unlawful or not I have had to consider whether the third accused could be said to have acted in self-defense in the defense of another in imminent threat of death or serious injury as envisaged in proviso (ii) of Section 30(1) of the Police Act. I found the United Nations Basic Principles on the use of Force and Firearms by Law Enforcement Officials and some relevant foreign case authorities illuminating. These have been cited to me in the submissions. I have studied them and I find them useful and important in complementing the local laws. According to the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, law enforcement officials in carrying out their duty, shall, as far as possible apply non-violent means before resorting to the use of force or firearms.
Whenever lawful use of force and firearms is unavoidable, law enforcement officials must exercise restraint and act in proportion to the seriousness of the offence and the legitimate objectives to be achieved. Regarding self-defense, law enforcement officials shall not use firearms against persons except in self-defense or in the defense of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such danger and resisting their authority, or to prevent his or her escape. The basic principles provide that intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. There is nothing to support an idea that the third accused acted in self defense or in the defense of another against the imminent threat of death or serious injury at the hands of Yusufu Abdullah. Yusufu Abdullah may have deserved to face justice but that justice should have been through due process of law through the courts. Yusufu may have been escaping but, it was not for the accused police officer to exact summary justice on Yusufu Abdullah by so arbitrarily taking away his life in such a brutal manner.
The United Nations Code of Conduct for Law Enforcement Officials provides that law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty. In this case it was clear that it was not strictly necessary to fire at Yusufu Abdullah. It is imperative that law enforcement officials in this country adhere to the law and to the international human rights instruments including the United Nations Basic Principles on the use of force and firearms by Law Enforcement Officials and the United Nations Code of Conduct for Law Enforcement Officials.”
The right to demonstrate is here to stay whether one likes it or not. The author of this paper supports the exercise of the right to assemble and demonstrate with others peacefully and unarmed just as he supports the exercise of any other right under the Constitution. In so long as the organizers have followed the correct legal procedures, people should be allowed to demonstrate or assemble. Surely those being demonstrated against will try to show that there is no cause to demonstrate but it does not lie in another’s mouth to judge whether one is demonstrating for the right cause or not. The District Commissioners and police are under a duty to protect the right to demonstrate by not stopping the demonstrations but seeing to it that it is done peacefully. It is also the duty of the demonstrators themselves to ensure that they are doing so peacefully. As was held by Justice Twea:4
The Police Service would be advised to use these powers properly. Again, as Malawians, the organisers of demonstrations on this issue, or indeed any other issue, for or against must bear in mind public tranquillity. Democracy will always have enemies both within and without the Government. Granted that the Police have, at times, acted in a biased manner, as numerous cases before this Court will show, but we must take heed that confrontation will only result in chaos and disorder which are, in themselves, enemies of democracy. The Rule of Law must be preserved by challenging those we think have wronged us before the Court. The wrong doers too must be heard. I wish us to direct our minds to the words of Tambala J, as he was then, in the case of the National Consultative Council vs The Attorney General Civil Cause No.958 of 1994, he held that::-
“There is need to strike a balance between the needs of society as a whole and those of individuals. If the needs of society in term of peace, law and order, and national security, are stressed at the expense of the rights and freedoms of the individual, then the Bill of Rights contained in our Constitution will be meaningless and the people of this country will have struggled for freedom and democracy in vain. In a democratic society, the Police must sharpen their skills and competence. They must be able to perform their main function of preserving peace, law and order without violating the rights and freedoms of the individuals. That is the only way they can contribute to the development of a free State. Matters of national security should not be used as an excuse for frustrating the will of the people expressed in their Constitution.”
Every Malawian who is mature enough will remember that for 30 years, eight years ago, this country “enjoyed” peace and quiet, law and order that was devoid of the rights and freedoms and the social justice now enshrined in our Constitution. Taking judicial notice of the cases brought before this Court and the events in our National Assembly, very few Malawians want that kind of peace and quiet, law and order.”
*Wapona Kita is a Legal Practitioner with Ralph and Arnold Associates and Interim Chairperson of Youth Association for Democracy in Malawi