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Colonial relics I: the requirement of a permit to hold a peaceful assembly

Published online by Cambridge University Press:  28 July 2009

Joanna Stevens
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Extract

In November 1993, in the case of NPP v. Inspector-General of Police, Archer, CJ., in striking down Ghanaian legislation providing for the licensing of peaceful assemblies, stated rhetorically:

“… police permits are colonial relics and have no place in Ghana in the last decade of the twentieth century. …Those who introduced police permits in this country do not require police permits in their own country to hold public meetings and processions. Why should we require them?”

Over the last three years, possible justifications for the retention of laws requiring that a permit be obtained prior to holding a peaceful assembly have been examined and rejected by the courts of Zimbabwe, Tanzania and Zambia as well as Ghana. In all four jurisdictions such laws were struck down as unconstitutional as being contrary to the fundamental right to freedom of assembly and, additionally, in Zimbabwe, Tanzania and Zambia, the right to freedom of expression. This article assesses the interpretation by the courts of the relevant limitation clauses under the respective constitutions and raises the question of why, within the space of 12 months, courts in West, Southern and East Africa, although unaware of each other's decisions, reached the same conclusion on a law which had been present on the statute books since colonial times. It is suggested that these series of cases signify a turning point in the development of constitutional law in Commonwealth Africa with respect to civil rights.

Type
Articles
Information
Journal of African Law , Volume 41 , Issue 1 , Spring 1997 , pp. 118 - 133
Copyright
Copyright © School of Oriental and African Studies 1997

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References

1 New Patriotic Party v. Inspector-General of Police Supreme Court of Ghana, 1993, unreported.Google Scholar

2 Re Munhumeso & Ors [1994] 1 LRC 282; 1995 (2) BCLR 125 (ZS) 125; 1995 (1) SA 551.Google Scholar

3 Mtikila v. Attorney General High Court of Tanzania, 1993, unreported.

4 Mulundika & Ors v. The People Supreme Court of Zambia, 1996, unreported.

5 The Ghanaian Supreme Court did not examine compatibility with constitutional provisions relating to freedom of expression.

6 The Ghanaian decision was handed down in November 1993, the Zimbabwean decision in January 1994 and the Tanzanian decision in October 1994. The Zambian decision which was handed down in January 1996 did refer to the earlier precedents from Africa. It should be noted that on 9 December, 1991, in ANC (Border Branch) and Anor v. Chairman, Council of State, Ciskei and Anor (1994) (1) BCLR 145 (Ck), assembly permit legislation was declared unconstitutional, as contrary to the right to freedom of assembly and die right to participate peacefully in political activities as provided for under the Ciskei Bill of Rights, but not struck down. The Ciskei Supreme Court decided merely to invite the legislative body to reconsider the law due to the non-appearance of counsel for the respondents coupled widi the lack of notice mat such an order would be sought. The Court held mat the limitation on the said rights was not subject to adequate guidelines and effective control. This decision was not referred to in the cases under examination in this article.

7 The term “civil rights” is used here to refer to a number of overlapping freedoms namely: freedom of expression; freedom of assembly and association; and freedom of thought and conscience.

8 Which may itself be a response to a lag in constitutional development by judicial interpretation.

9 Dow v. Attorney General [1992] LRC (Const) 623.

10 Re Munhumeso, above at 292.

11 Mulundika, above at 9.

12 NPP above at 41–42. Sitting with a bench of seven judges, the Ghanaian Supreme Court, with Hayfron-Benjamin, J.S.C., delivering the main judgment, was unanimous in striking down the legislation. Where, in this article, reference is made to a concurring judgment, the name of the individual judge is given.

13 Mulundika, above at 9.

14 NPP, above at 20.

15 Mtikila, above at 33.

16 Imanyara v. Attorney General High Court of Kenya, 1994, unreported.

17 Seif Sheriff Hamad v. The Regional Commissioner of North Region, Unguja, High Court of Zanzibar, 1995, unreported.

18 Arts. 9(2), 10(2), 11(2) of the Convention.

19 Judgment of 25 March, 1983, A. 61, at 33.

20 Malone case, judgment of 2 August, 1984, A. 82, at 27.

21 The Supreme Court of Canada has also adopted this principle, see Re Ontario Film and Video Appreciation Society and Ontario Board of Censors (1983), 147 DLR (3d) 58Google Scholar; 5 CRR 373.

22 The majority of which were modelled on the European Convention.

23 [1993] 2 LRC 317 at 323.

24 Above at 12.

25 The court examined the validity of a number of laws (not just those concerned with assembly permits) as well as certain amendments to the constitution. Perhaps for this reason, the length devoted to the issue was less than that given in the written judgments of the other courts.

26 Above at 294.

27 State v. The Ivory Trumpet Publishing Co. [1984] 5 NCLR 736 at 750.Google Scholar This is one of the rare occasions in which the constitutionality of ex-colonial legislation has been challenged and struck down by an African Court. See the similar conclusion reached in Nwankwo v. The State 1983 (1) NCR 366; [1984] 5 NCLR 736.

28 (1939) 5 W.A.C.A. 56 at 60; [1940] A.C. 231. It should be noted, however, that at the time Wallace-Johnson was decided there was no Bill of Rights in the Gold Coast. This case may be contrasted with a post-colonial appeal to the Privy Council from Antigua & Barbuda. The Board, interpreting the Antiguan Bill of Rights, held that a provision of the Public Order Act which criminalized statements likely to “undermine public confidence in the conduct of public affairs” which posed no threat to public order amounted to “political censorship of the most insidious and objectionable kind” and was contrary to the right to freedom of expression. Hector v. Attorney General (1990) 37 WIR 216.

29 When the permit legislation was first enacted in Zambia.

30 See The People v. Mwape & Mmembe High Court of Zambia, 1995, unreported.

31 Above at 19; see also 17.

32 Nwankwo v. The State 1983 (1) NCR 366 at 407.

33 Re Munhumeso, above at 288.

34 Whitney v. California (1927) 274 US 357 at 375 cited in Mulundika, above at 14.

35 1967 Z.R. 145.

36 Mulundika, dissenting opinion at 6–7

37 I.e., burdens placed which are just.

38 [1984] 1 AC 689 (PC). This case has frequently been cited as the authority when applying the presumption of constitutionality in Commonwealth jurisdictions.

39 Hector v. Attorney-General of Antigua, above, n. 28, at 220.

40 See earlier discussion above under “Contained in or done under the authority of any law”.

41 For example, due to the non-appearance of Counsel for the respondent.

42 Agbakoba v. Director, State Security Services & Anor [1994] 6 NWLR 475Google Scholar; see also State v. Petrus [1985] LRC (Const) 699; Matinkinca & Anor v. Council of State, Ciskei & Anor 1994 (1) BCLR 17; State v. Smith 1994 (3) SA 887; Qozeleni v. Minister of Law and Order [1994] 2 LRC 359; Mwellie v. Ministry of Works, Transport and Communication & Anor [1995 ] 4 LRC 184.

43 1968 Z.R. 99. See also The People v. Mwape & Mmembe, above where Chitengi.J., stated at 28, “I for my part would wish to have nothing to do with this presumption of constitutionality as it tends to put the citizen beyond the pale of the Constitution”.

44 Kachasu, above at 159; cited in Mulundika, dissenting opinion at 2.

45 (1904) 194 US 267.

46 (1974) 418 US 683.

47 See Plessy v. Ferguson (1896) 163 US 537, where the U.S. Supreme Court first rejected challenge to segregation laws, holding that separate facilities on the basis of race was consistent with the “equal protection clause” under the Fourteenth Amendment.

48 347 US 483 (1954).

49 Uganda v. Rajat Neogy & Abu Mayanja (1968) reported in Transition, No. 38, 47.

50 Sandra Colliver, The Article 19 Freedom of Expression Handbook, 1993, 132.

51 The author refers here to certain provisions of statutory laws first enacted during the colonial period e.g., those relating to sedition, the preservation of public security, public order, the regulation of societies, the authority of chiefs and vagrancy.