The International Human Rights Framework on the Right of Peaceful Assembly
Zambia is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Zambia is also a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
At regional level, Zambia is a state party to the 1981 African Charter on Human and Peoples' Rights. Article 11 provides as follows:
Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.
Zambia is a signatory but not a state party to the 1998 Protocol on the African Court on Human and Peoples' Rights.
The Domestic Legal Framework on the Right of Peaceful Assembly
Under Article 11 of the 1996 Constitution of Zambia, it is recognised and declared that every person in Zambia has been and shall continue to be entitled to freedom of assembly.
The primary legislation on assemblies is the 2019 Public Order Act. The Act requires five days' notice of a public assembly. Failure to provide such notice makes the assembly unlawful and is a criminal offence.
Under Section 7(1) of the 2019 Act, the authorities may restrict a public assembly where it is reasonably believed that the assembly is likely to:
(a) result in public disorder or damage to property;
(b) give rise to an obstruction of a public road;
(c) jeopardise the safety of a person;
(d) give rise to the commission of an offence under any written law;
(e) be held within or near a restricted area as prescribed by the Minister; or
(f) result in disruption of the community in the area where the public gathering is proposed to be held.
Under Section 11(3) of the Act, the authorities may order the dispersal of a public assembly from a particular area within a reasonably specified time where it is reasonably believed that it "poses a direct and imminent threat to public order, health and safety" or "is likely to result in a loss of life of the participants and members of the public in the surrounding area".
In a May 2019 column in the Lusaka Times, Professor Muna Ndulo argued that the new 2019 law was unconstitutional.M. Ndulo, "The Public Order Act and The Right to Assembly", Lusaka Times, 6 May 2019, at: https://www.lusakatimes.com/2019/05/06/the-public-order-act-and-the-right-to-assembly/.
According to CIVICUS, writing before the passage of the Act:
Under the colonial era Public Order Act, seven days’ notice must be given for the holding of an assembly. Police often misinterpret the need to give notice as giving them the authority to refuse permission. The police may impose conditions on the date, time, place, duration and manner of an assembly, and the law is interpreted in ways that are selective, politicised and arbitrary. There are instances of police violence to break up assemblies, including those held by civil society groups, trade unions and the political opposition, and detentions of participants. Criminal sanctions in the Penal Code include jail sentences for the unlawful assembly of three or more people, while the Preservation of Public Security Act 1960 gives the president emergency powers to restrict assemblies deemed to pose a security risk.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
The use of force to arrest is generally subject to principles of necessity and reasonableness under the 1930 Penal Code Act.Chap. IV, s. 18, 1930 Penal Code Act.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Under the 1965 Zambia Police Act, any police officer may use his/her firearm against "any person in lawful custody charged with or convicted of a felony when such person is escaping or attempting to escape" where the police officer "has reasonable ground to believe that he cannot otherwise prevent the escape and unless he shall give a warning to such person that he is about to use firearms against him and the warning is unheeded".Part IV, s. 24, 1965 Zambia Police Act.A Police officer may also use his/her firearm against "any person who by force rescues or attempts to rescue any other person from lawful custody" or who "by force prevents or attempts to prevent the lawful arrest of himself or of any other person" where it is necessary in the circumstances and that there is a danger of grievous bodily harm.Part IV, s. 24, 1965 Zambia Police Act.
The 1930 Penal Act allows the dispersion of rioters including by recourse to lethal force:
If upon the expiration of a reasonable time after such proclamation is made, or after the making of such proclamation has been prevented by force, twelve or more persons continue riotously assembled together, any person authorised to make proclamation, or any police officer, or any other person acting in aid of such person or police officer, may do all things necessary for dispersing the persons so continuing assembled, or for apprehending them or any of them, and, if any person makes resistance, may use all such force as is reasonably necessary for overcoming such resistance, and shall not be liable in any criminal or civil proceeding for having, by the use of such force, caused harm or death to any person.Chap. IV, s. 18, 1930 Penal Code Act.
These rules are considerably more permissive than international law allows.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
Zambia has not come before the Human Rights Committee in recent years. In connection with Zambia's appearance before the Universal Periodic Review under the Human Rights Council in 2017, the Zambian Human Rights Commission (ZHRC) stated that
the country experienced unprecedented levels of political intolerance and violence before, during and immediately after the 11 August 2016 general election. It expressed grave concerns over violent actions of political party cadres and police officers which left several people injured, caused loss of life and property, curtailed freedom of assembly and expression and bred a culture of fear among the electorate and political players. ZHRC commended steps taken by Government to appoint a Commission of Inquiry and recommended making public the finding of this Commission when they become available.
Zambia has not submitted a national report to the African Commission on Human and Peoples' Rights since 2005.
Views of Civil Society
According to Freedom House's 2019 report on Zambia:
Freedom of assembly is guaranteed under the constitution, but is not consistently respected by the government. Peaceful protests against the government and political meetings are frequently restricted under the Public Order Act. Police must receive advance notice before all demonstrations. In 2018, police continued to deny permission for rallies, political meetings, and other demonstrations even after organizers had met legal requirements to host them.
In September, anticorruption protesters in Lusaka were attacked by suspected PF supporters, who threw rocks at the demonstrators. Although several of the assailants were detained by police, it was unclear whether they were criminally charged for the assaults. In December, six anticorruption demonstrators were acquitted of unlawful assembly charges for a protest held in front of parliament in 2017.