Madam Speaker and Honorable Members of the August House, In my capacity as Minister of Justice and Constitutional Affairs, I have found it necessary to address the House, and through it, the entire nation regarding the recent demonstrations by some NGOs, some political parties, and certain individuals.
My presentation has been necessitated by the evident paucity of knowledge and information on the rights and duties of (a) conveners or sponsors of demonstrations; (b) participants in demonstration; (c) police officers and the armed forces and (d) ordinary citizens. These four categories of persons often interact during demonstrations, and are directly affected by such. The recent demonstrations have exposed the need for the general public and, indeed all sectors of society, to be reminded of their rights and duties in relation to demonstrations so that there is no misunderstanding whatsoever by anybody.
At the outset, let me state that all the rights we exercise or enjoy in this country derive their recognition and validity from our constitution. And the framers of our constitution fashioned all our rights in such a way that, if properly excised and enjoyed, they can and should happily exist side by side without friction. Ordinarily, the lawful enjoyment or exercise of our rights should not adversely impinge upon the enjoyment by others of their rights. Bringing this constitutional architecture into the present context, we must ensure that the enjoyment or exercise of the freedom to demonstrate, should not infringe upon the right of others to own property, the right to safety and security, the right to life, or the right of free movement.
Under the law in Malawi, if a demonstration leads to violence, injury, looting, theft or loss; the organizers of the demonstrations as well as the perpetrators of such mischief, are liable to the criminal offences so committed, and also in civil law to pay compensation for any injury or loss suffered during or as a result of the demonstrations.
Madam Speaker, for the here and now, I will focus of three pieces of legislation that need to be understood by all those excising their right to demonstrate.
- The Police Act
- The Riot Damages Act
- The Preservation of Public Security Act
The Police Act
- Under section 99(1) of the Act, the District Commissioner may refuse a request for the holding of an assembly or demonstration or of his own accord or at the request of the officer in charge of police, impose conditions regarding the conduct, of an assembly or a demonstration to ensure that (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 or demonstration 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.
- Under section 104(7) of the Police Act, no person present at or participating in an assembly or demonstration shall (a) by way of a banner , placard, speech or singing or in any other manner incite hatred of other persons or any group of other persons on account of difference in culture, race, gender, language, religion or political affiliation; (b) use abusive or insulting language in making or delivering a speech or by way of a banner, placard or singing, or (c) perform any act or utter any words which are calculated or likely to cause or encourage violence against any person or group of persons.
- By section 104(8) no person shall at any assembly or demonstration wear a disguise or mask or any apparel or item, which obscures his facial features and prevents his identification unless the identity of such person is disclosed beforehand.
- By section 105(1) where an assembly or demonstration is to take place in compliance with the provisions of this Part, a police officer (a) if he has grounds to believe that the police will not be able to provide adequate protection for the persons participating in such an assembly or demonstration, may notify the convener and such persons accordingly and shall give them the grounds in writing and (f) shall take such steps, including negotiations with the relevant persons, as are in the circumstances necessary and appropriate to protect persons or property, whether or not such persons are participating in the assembly or demonstrations.
- Under section 105(2) where a District Commissioner has prohibited an assembly or a demonstration at any place and the High Court has upheld such prohibition; or where a police officer of or above the rank of inspector has reasonable grounds to believe that danger to persons or property, as a result of the assembly or demonstrations, cannot be averted by the steps referred to in subsection (1) if the assembly or demonstration proceeds, any police officer of or above the rank of inspector, as the case may be may(a) make or cause to be made a proclamation, commencing with the President’s name, in such form as may be prescribed or, if no form be prescribed, in such form as he thinks fit to enable the persons participating in the assembly or demonstration to disperse; and (b) in a loud voice in the English language or in a language understood by the majority of the persons present, order the persons to disperse or depart from the place of the assembly or demonstration within a time specified by him, which shall be reasonable.
- By section 105(3) where, pursuant to subsection (2), a police officer orders persons gathered to disperse and such persons have not dispersed or have made no preparations to disperse, the police officer may order members of police under his command to disperse the persons concerned and such members of police may for that purpose use such force as may be reasonably necessary and as shall be appropriate to the circumstances of the case.
- Under section 105(4) if any person who participates in an assembly or demonstration or any person who hinders, obstructs or interferes with persons who participates in assembly or a demonstration(a) kills or serious injuries, or attempts to kill or seriously injure, or shows a manifest intention of killing or seriously injuring, any person; or (d) destroys, does serious damage to, or attempts to destroy or to do serious damage to, any property considered to be valuable, a police officer of or above the rank of inspector may order the members of police under his command to take necessary steps to prevent such action and may, for that purpose, if he finds other methods to be ineffective or inappropriate, order the use of force, including use of firearms and other weapons.
- By section 106(1) if any riot damage occurs as a result of an assembly or a demonstration, every organization on behalf of or under the auspices of which the assembly or demonstration was held, the convener, and every person participating in the assembly or demonstration, as the case may be, shall be liable for that damage as a joint wrong-doer together with any other person who unlawfully caused or contributed to such damage.
- By section 106(2) any person or organization held liable for riot damage under subsection (1) shall, notwithstanding that subsection, be deemed to be liable in any civil claim in respect of (a) recourse against, or contribution by, that person or organization for intentionally and unlawfully causing or contributing to the cause of the riot damage; or (b) contribution by the other person who, or other organization which, is jointly liable for the riot damage.
- By section 106(3) it is provided that this section shall not in any way affect the right, under the common law or any other written law, of a person or body to recover the full amount of damages arising from the negligence, intentional act or omission committed by or at the behest of any person or body.
The Riot Damages Act
- By section 2, a riot includes an unlawful assembly, and ‘riotously assembled’ includes unlawfully assembled.
- By section 3, where any riot has occurred and by reason thereof any shop or house or other building has been damaged or destroyed, or any property or article has been damaged or destroyed, or any personal injury has been caused, the District Commissioner of the District in which such riot occurred may define the area in which, in his opinion, the riot occurred or the persons reported to have taken part in the riot were residing at the time of the riot and may declare such area or areas for the purposes of this Act.
- The Minister may publish a notice in the gazette designating an area as a Riot Damage area. Following the declaration, he shall appoint a Riot Damage Commissioner in respect of the area who will ascertain the total monetary value of the loss sustained by reason of the riot damage, the number of persons above 17 years who reside in the area, the number of persons that were present at the riot, etc and proceed to submit a report to the Minister who may then direct the imposition of a levy on the persons resident in the area into a Riot Damages Fund, the proceeds of which are to be paid to owners of affected or damaged property.
The Preservation of Public Security Act
- Under section 2 of the Act, ‘public security’ is defined to include the securing of the safety of persons and property, the maintenance of supplies and services essential to the life of the community, the prevention and suppression of violence, intimidation, disorder and crime; the maintenance of the administration of justice and the prevention and suppression of mutiny, rebellion and concerted defiance of and disobedience to lawfully constituted authority and the laws in force in Malawi.
- Section 3(2) of the Act gives the Minister the power to make regulations, by notice published in the Gazette, for the preservation of public security. Pursuant to this power, the Minister made Public Security Regulations.
- Regulation 3 gives the Minister the power, if he considers it necessary for the preservation of public order so to do, to make a control order against any person, prohibiting a person from entering, leaving or remaining in any such place or area in Malawi as may be specified in the order, etc.
- Under Regulation 4 (1) no person shall do any act or publish anything likely, (a) to be prejudicial to public security; (b) to undermine the authority of, or the public confidence in, the Government; (c) to promote feeling of ill- will or hostility between any sections or classes or races of the inhabitants of Malawi.
- By Regulation 4(2) any person who contravenes Regulation 4(1) shall be guilty of an offence. For the purpose of Regulation 4, the word ‘publish’ includes any publication by means of any words written or spoken, pictorial representations, gramophone records and cinema films, including sound tracks.
- By Regulation 7(1) if, as respects any area, it appears to the Minister to be necessary that special precautions should be taken for the preservation of public order, he may, by order, declare such area to be a special area for the purpose of this regulation.
- By Regulation 7(2) it shall be the duty of any person in a special areas to stop and submit to search when called upon to do so by any administrative officer, police officer or any member of the armed forces of Malawi, and, if any person fails to stop when challenged or called upon to stop by any such officer of member, he shall be guilty of an offence and may be arrested by any such officer or member without warrant.
- By Regulation 7(3) it shall be lawful for any administrative officer, police officer or any member of the armed forces of Malawi on order (a) to effect an arrest under sub-regulation (2), or(b) to overcome forcible resistance offered by any person to such arrest; or (c) to prevent evasion or escape from arrest or the rescue of any person arrested as aforesaid, to use such force as, in the circumstances of the case, may be reasonably necessary, which force may extend to the use of lethal weapons.
- Regulation 11 gives power to any authorized officer to, if it is necessary for the preservation of public order to do so, issue orders for the prohibition, control or regulation of the movement or use of any vessel or road vehicle.
- The general penalty for offences under the Regulations is a fine or imprisonment for five years.
I would like to inform the Honourable House that the Government of Professor Arthur Peter Mutharika shall ensure that the rule of law prevails in this country at all times. While others have tried to goad Government towards anarchy, the Government remains resolute in ensuring that this Nation is governed in strict adherence to its laws. Constitutional democracies administered in the strict adherence to the rule of law can sometimes seem inconvenient, and sometimes inefficient. But Madam Speaker, other methods of running a country outside the legal framework lead to chaos, anarchy and national ruin.
Towards this rule of Law, therefore, I wish to inform the Honourable House and the Malawi nation that all Security Agencies in Malawi and all officials have been duly instructed to ensure that all our laws as cited above, including the Penal Code, and others, are strictly enforced and strictly obeyed.
It is Government’s and every law abiding citizen’s hope, too, that every participant in demonstrations will ensure that they abide by the above cited laws, paying special attention to the ‘dos and don’ts’ so that together, we can progress peacefully as a Nation.
I thank you Madam Speaker.