Friday, December 14, 2012

The public order Act

The public order Act
By The Post
Fri 14 Dec. 2012, 13:00 CATc order Act and its implementation.

It is clear that in its current form, the public order Act is not advancing liberties, but is curtailing inalienable rights, which include freedom of speech and expression, freedom of assembly.

The public order Act in its current form and implementation has not changed things much from the way they were under the one-party state. Despite some amendments having been made to the public order Act to try and bring it in tune with a multiparty political dispensation, its enforcement or implementation has not changed much from what it was under the one-party state.

Yes, it is true freedom of expression and that of assembly are sometimes abused by various individuals and groups, and society sometimes needs protection from such abuses. But the solution is not to try and take away such liberties in a generalised way. And moreover, what is at stake here are not small privileges that the government of the day extends to some citizens. We are here dealing with fundamental liberties which exist independently of government.

And since these liberties exist independently of government, these rights cannot be legislated away, nor are they subject to the momentary whim of an electoral majority. And this is a fundamental principle upon which democratic government is founded. It is said that governments in a democracy do not grant fundamental freedoms; governments are created to protect those freedoms that every individual possesses by virtue of his or her existence.

But what should the government do in cases where such freedoms are abused? The answer, by and large, is nothing. It is not the business of government to judge such matters. In general, the cure for abused freedoms is more freedom.

It may seem a paradox, but in the name of free expression, a democracy must sometimes defend the rights of individuals and groups who themselves advocate such non-democratic policies as repressing the freedom of expression of others.
We cannot continue with the practices of the one-party state when it comes to the protection of fundamental freedoms such as the freedom of speech and expression and that of assembly.

Since the end of the one-party state, successive MMD governments, without exception, have abused the public order Act to curtail the freedoms of the opposition and others opposed to them. The MMD rule is over. And sometimes it may be politically expedient to make them taste their own medicine, their own quinine. And indeed this current Zambian government has made them taste that. But we cannot continue on that path because we can't build a progressive and democratic nation on the basis of revenge.

What the MMD in government did to many people, including ourselves, cannot be forgotten. We all face the challenge of coming to terms with the past in ways which will enable us to face the future as a united people, a progressive and democratic nation at peace with itself.

And in saying all this, we are not in any way implying that we should forget the way the MMD enforced the public order Act. Whilst we can forgive, we can never forget. And this is so because the more we keep that on our minds, the better we will be in ensuring that it is not repeated.

Michael Sata and the Patriotic Front are not in government for the purpose of retribution. They were voted for by the great majority of our people on the understanding that they were better placed to help create a more just, fair and humane society in our homeland. And this can't be done with feelings of retribution and revenge.

Again, we must emphasise, that in saying this, we do not mean that this government should not punish crimes committed by MMD leaders when they were in government. Those who committed crimes, abusing their public offices, should all, without exception, be arrested and prosecuted for their crimes. This is not revenge or hatred. It is simply a fair and just way of maintaining the rule of law.

We are more concerned today about the way this government is perpetrating the wrong and evil practices of the successive MMD governments when it comes to enforcement of the public order Act. We are concerned because freedom of speech, expression and assembly are the lifeblood of any democracy. To debate and vote, to assemble and protest, to ensure justice for all - these rely on government's respect for fundamental rights.

Before people can govern themselves, they must be free to assemble and express themselves. Citizens in a democracy live with the conviction that through the open exchange of ideas and opinion, truth will eventually win out over falsehood, the values of others will be better understood, areas of compromise more clearly defined, and the path of progress opened. The greater the volume of such exchanges, the better.

We defend these rights for everybody, including for those who have declared us their enemy number one, for those whose only discernible preoccupation is to attack us, to destroy us, out of the conviction that, in the end, the protection of these liberties for the enjoyment of everyone will lead to greater truth and wiser public actions than if they are stifled.

Furthermore, we defend these rights for everyone because the suppression of these rights for the people we detest or we may find unreasonable today is potentially a threat to our exercise of these freedoms tomorrow - which perhaps someone else might find offensive.

All people are harmed when the fundamental rights or freedoms of one person or group of persons are repressed. This is so because if what they are trying to do or say is right, society is deprived of the opportunity of exchanging error for truth. And if they are wrong, society loses out on the clear perception and livelier impression of truth produced by its collision with error.

Therefore, the government has a duty to protect these inalienable rights for all citizens, including for the political opponents of those in power, through restraint, and by limiting their own actions.

We have to realise and accept the fact that human beings possess a variety of sometimes contradictory desires. People want safety yet relish adventure; they aspire to individual freedom yet demand social equality. Democracy is no different, and it is important to recognise that many of these tensions we are witnessing in our country today, are present in every democratic society.

A central paradox exists between conflict and consensus. Democracy is in many ways nothing more than a set of rules for managing conflict. At the same time, this conflict must be managed within certain limits and result in compromises, consensus or other agreements that all sides accept as legitimate.

An over-emphasis on one side of the equation can threaten the entire undertaking. If groups perceive democracy as nothing more than a forum in which they can press their demands, the society can shatter from within. If the government exerts excessive pressure to achieve consensus, stifling the voices of the people, the society can be crushed from above.

The answer is that there is no single or easy answer. Democracy is not a machine that runs by itself once the proper principles and procedures are inserted. A democratic society needs the commitment of citizens who accept the inevitability of conflict as well as the necessity of tolerance. And it is for this reason that the culture of democracy is so important to develop.

In a democratic society, citizens have a right to gather peacefully and protest the policies of their government or the actions of other groups with assemblies, demonstrations, marches, petitions, boycotts and other forms of direct citizen action.

And such assemblies or protests are a testing ground for any democracy. The ideals of free expression, freedom of assembly and citizen participation are easy to defend when everyone remains polite and in agreement on basic issues.

But protestors - and their targets - do not agree on basic issues, and as such disagreements may be passionate and angry. The challenge is then one of balance: to defend the right to freedom of speech and assembly, while maintaining public order and countering attempts at intimidation or violence. To suppress peaceful protest in the name of order is to invite repression; to permit uncontrolled violent protests is to invite anarchy.

Clearly, there is no magic formula for achieving this balance. In the end, it depends on the commitment of the majority to maintaining the institutions of democracy and the precepts of individual rights. Democratic societies are capable of enduring the bitterest disagreements among citizens - except for disagreement about the legitimacy of democracy itself.

We urge the government to urgently review the entire public order Act and also exercise limitations in the way the current law is being enforced. We feel there is something clearly not right in the way the public order Act is being enforced against the opposition. They have the right to be there and to conduct their political activities. If they break the law, then the law should take its course as no one is above the law.

But even when this happens, there has to be equality before the law, or equal protection of the law, because this is fundamental to any just and democratic society. Whether political ally or opponent of those in power - all are entitled to equal protection before the law and under no circumstances should those in power impose additional inequalities; they should be required to deal evenly and equally with all citizens.

There is no democratic society that can tolerate the current public order Act and the way it is being enforced in a manner that appears to be arbitrary or subject to political manipulation.

Michael and the Patriotic Front have the will and ability to change things for the better; they have the political support to enable them to do good. And there is no good reason why this public order Act and its enforcement should remain the way it has been under the previous regimes of the MMD. And because Michael and the Patriotic Front have more to give, more will be demanded of them, and more will be expected of them.

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