Christine Mulundika and Ors v Attorney General (SCZ Appeal No. 95 of 1995) [1996] ZMSC 57 (10 January 1996)

..... C'J -· t IN TH£ suPREMECOURT OF ZAMBIA MOLDEN AT LUSAKA SCZ Appeal No. 95 of 1995 CHRISTINE MULUNDIKA & OTHERS Appellants vs THE ATTORNEY-GENERAL Respondent CORAM: Ngulube C. J., Bweupe D. C. J.~ Challa, Chirwa and Muzyamba JJ. S. 21st November, 1995 and 10th January 1996 For the appellants Mr. S. S. Zulu of Zulu & Co. and Professor Mvunga of Mvunga Associates For the respondent Mr. A. G. Kinariwala, Principal State Advocate J U D G M E N T Chaila J. S. I have had an opportunity of reading the judgment of the learned the Chief Justice just delivered. I am in complete agreement with the conclusion reached by the learned the Chief Justice on the interpretation of Article 23 of the Constitution visa viz certain holders of offices and meetings. I have with greatest respect disgreed with the conclusion on and interpretation of section 5 (4) of the Public Order Act and its anulment. I have observed that the majority decision has mainly been based on the persuasion by various f'/ L----1... ) . authorities from United States, Tanzania, Ghana and Zimbabwe.;\... ~'\:Lx (,.; .. i\ The facts of the case have already been cited by the majority judgment. , . ( The facts are not mainly in dispute except that the appellants did not prove that the 1 r app 11 cat! on had been turned down or that they had been hindered in the enjoyment of their rights. The question of enjoyment of human rights --z.....,__\._.,~"-'--- as enshrined in Part III of the Constitution was first raised in the case of I\ Kachasu vs the Attorney -General in ,'lov21nber 1967 Zambia Law Reports 1967 page 145. The validity of regulations by the Minister of Education was chal langed. The Ministry of Education had imposed a regulation that pupils tn Government schools were required to sing national anthem and to salute the - J2 - national flag; but Kachasu whose parents were members of Watchtower sect refused to sing the national anthem and was subsequently sent away from ~ school. She took up the matter with the High Court and complained that the legislation was unconstitutional. The learned Chief Justice determined the case and made various pronouncements on the constitutional provisions and subordinate legislation. During the arguments before Blagden C. J. the Advocates for Kachasu quoted various authorities from United State and India on the subjective test and urged the learned G. J. to follow those authorities. Blagden C. J. at page -159 expressed his position as follows:- I have been referred. in relation to this issue. to a "! come now ta the consideration of what I have described as the constitutional issue in this case. I have already stated it in brief. number of cases from various parts of the world. considereable assistance from these authorities and I indebted to counsel on both sides for their industry in locating them. But I have also borne in mind, as being particularly apt here, the words of Lord Raddcliffe in Adegbenro v Akintola [10). where he said, in relation to the study of decisions on the interpretation of the constitutions of other countries: I have derived • • • lt is in the end the wording of ·the Constituton itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other Constitutions which are not explicitly incorporated in the formulas that have been chosen as the frame of this Constitution." I totally agree with the position taken by the former C. J. on the authorities cited to us. They have a big force but they are not binding on this court. What matters to this court is to look., ~t the wording of our constitution ,__.._.,,...,...._, " itself and to interpret and apply it. The Article relied upon provides as ( fol lows: Article 21 of the present Constitution reads:- (1) Except with his own consent, no person shall be hindered in the enjoyment of 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 any political party, trade union or other association for the protection of his interests. /2 ••• - J3 - (2) Nothing contained in or done under the authority of any law shall be held to be incoqsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision - (a) (b) that is reasonably required in the interest of defence, public safety, public order, public morality or public health; that is reasonably required for the purpose of protecting the rights or freedoms of other persons; Article 21 of the previous Constitution considered in the Kachasu 1 s case reads: ... ( 1) (2) (5) Except with his own consent, no person shall be the enjoyment of his freedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in canmunity with others, and both in public and in private~ to manifest and propagate his religion or belief in worship, teaching, practice and observance~ Except with his own consent (art if he is a minor, the consent of his guardian) no person attending any place of education shall be r9quired to receive religious instruction or to take part in or attend any religious ceremony·or observance if that instruction, ceremony or observance relates to a religion other than his own. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision which is reasonably required .. (a) (b) in the interest of defence. public safety. public order, public morality or public health; or for the purpose of protecting the rights and freedoms of other persons, including the rlght to observe and practise any religion without the unsolicited intervention of members of any other religion; and 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." In this case it is common knowledge that there is need to have some regulating law. In his argument Professor Mvunga has admitted that the /4 ••• - J4 - enjoyment of the rights in Part III of the Constitution is not absolute. ~. In the case of Kachasu, Blagden C. J. accepted and found that the applicant's undoubted right to enjoy freedom of conscience, and al 1 the other rights guaranteed by Chapter III of the Constitution, depend for their very existence and implementation upon civil society - that is the ordered society - established by the Constitution. The continuance of that society itself depends upon national security, for without security any society is in danger of collapse or overthrow. National . serurtty is thus paramount not only in the interests of the State but also in the interests of each individual member of the State; and measures designed to achieve and maintain that security must come first: and, subject to the provisions of the Constitution, must override, if need be, the interests of individuals and of minorities with which they conflict. Blagden C. J. in accepting the principle of these arguments went further to say that suo section 5 of that section .indicat ed that in the interest of security of the State or general rights of the people, the individual I s right to the unhindered enjoyment of freedom of conscience can be curtailed. The learned C. J. in the Kachasu case went to consider the sub section 5 of the section- 21 of the Constitution and concluded that for a law to come within the ambit of sub section (5} of section 21 of the Constitution- that law does not have to be necessarily required or even urgently required - it has only to be reasonably required. He then moved to the second position of how the court should give due weight to the opinion of the Legislature, as expressed in the legislation and he considered the Nigerian case of DP P v Obi (13] (1961) All N. L. R. 186 Brett, F. J., said, at page 197: 2"There is one fact to which our attention was not drawn by counsel but which I do not feel able to ignore. The Constitution entrusts the courts with the task of deciding conclusively whether or not any legislative measure contravenes Chapter III of the Constitution, and I do not wish to say - J5 - anything which might suggest that the courts are evading their responsibilities. Nevertheless, it is r,ight that the courts should remember that their function is to decide whether a restriction is reasonably justifiable in a democratic society, not to impose their own views of l'Jhat the law ought to be. In considering the correst judicial approach, the Supreme Court of India said, in Madras v Row (1952) S. C . R. 597; 1 1n evaluating such elusive factors and forming their own conception of what is reasonable in all the circumstances of a give case, it is inevitable that the social philosophy and the scale of values of the judges part.lcipating in the decision should play an important 1>art, and the limit to their interference with legislative judgment can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution 1s meant not only for people of their own way of thlnl<ing but for all, and that the majority of the elected representatives of the people have. in authorising the imposition of the restrictions, considered them to be reasonable'. In similar vein, Holmes, J., delivering the judgment of the Supreme Court of the United States in Mo., Kan, and Texas R. R. v May (1904) 194 U. S. 267, a case concerning the constitutional guarantee of the equal protection of the laws said: 'It must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the Courts'." Later the learned C. J. asked himself whether it was reasonably required in the interests of public safety, or the purpose of protecting the rights and freedom of others that children in Government schools should be required to sing the national anthem and salute the national flag? The criterion ls reasonableness, not essentiallty. He concluded by saying that a requirement can be reasonable without being essential. He further found that the burden is on the applicant to show that the requirement is reasonable, and he went V" ,.. further on to say the applicant had not discharged the burden. As regards section 5 ( 4) of the Public Order Act, my approach 1 s whether or not the provision is reasonable. The appellants' Advocates have maintained that the sub section lacks jui~e lines to the regulating officer and that it is subject to abuse. (.:. U.:~ ) I\ /6 ••• f - J6 - In the Kachasu case, Blagden C. J. on the legislature said: "There is, however, a presumption that the Legislature has acted constitutionally and that the la1Ns which it has passed are necessary and reasonably justifiable (see Arzika v Gov. N. Region [11) per Bate, J. at 382); and I think this presumption extends to rules made by a minister under statutory powers conferred on him by the Legislature. It is part of the applicant• s case that regulation 25 is unconstitutional and invalid. The onus is on her to prove it, and as part of that onus she has to show that regulation 25 is not saved by any of the provisions of section 21 {S) of the Constitution (see Cheranci v Cherance [12] commented on in 1963 J. A. L. at pages 159-160)). Similarly, if the issue arises, it wt 11 be for her to show that 11the thing done under the authority" of the regulations - that is to say, the coercion exercised on her, her suspension and her continued exclusion from school, or any orie of them - is not reasonably justifiable in a democratic society." The appellants must prove that Parliament did not act constitutionally in passing section 5 (4) and that the section is not necessary and it not reasonably justifiable in a democratic society. I have already mentioned that the appellants' Advocates have agreed ti1at enjoyment under Part III is not absolute. This was confirmed by Kachasu's case. The constitution itself also states that enjoyment of the rights under ?art III of the Constitution can-.t be hindered by an appropriate legislation. The big question is if secti.on_~~ (4) is declared inconsistent (t.»,~ with the constitution how will the police legally and effectively regulate I\ the meetingst processions and demostrations? If three person or political parties or groups of people decide to hold a meeting on particular day. at particular venue and the meetings happens to be at same time, same date and same place, how wil! the regulating officer handle the situation if ther~ Is no element of the regulating officer having to give some form of permit? The holders of the meeting may decide not to inform the police, what will happen? The Article of the Constitution is worded in such a way that the police in considering the applications should not prevent or reject an application any how. The police should not prevent people to enjoy their rights, if anything they sl1ould assist people to enjoy their rights. but the police must be fully involved. The police should further give reasons, when /7 .... - J7 - they refuse to give 1JeJ,5ons is as if section 5 (4) --!s completely struck out. i~ 'L_.. J1' The regulating officer will not be in a poslton to perform properly regulating duties as envisaged by the Constitution and Chapter 104. The appellants in my view have not discharged the burden that the legislature in passing the Public Act acted uncornti"t~Jtionally and that the section is not necessary and is not reasonably justifiable. In my opinion section 5 ( 4) 1 s necessary. It allows the police some say in maintaining law and order. For the foregoing reasons I would dismiss the appeal.