Constitutional Law - State of Emergency - Bill of Rights
INTRODUCTION
Part III of the Zambian Constitution, chapter 1 of the laws of Zambia, contains fundamental rights and freedoms of citizens. These include the right to life, liberty, freedom of assembly, freedom of conscience, and many more. All these rights have limitations. However, their limitation becomes more manifest in a state of emergency, as provided for in Articles 30 and 31 of the Constitution. This article seeks to critically analyse those provisions and other law related to those provisions vis-a-vis the Bill of Rights.
A state of emergency, as defined in Professor Alfred W Chanda’s book ‘Zambian Constitutional Law: Cases and Materials,’ (UNZA Press, 2011) at page 2066 is an exceptional situation of public damage which is a threat to the entire population of a country. Professor Chanda then goes on to give examples of an emergency, which would include war, secession, insurrection, or a natural catastrophe. Article 30 provides for what occurs in a country in a state of emergency while Article 31 provides what occurs in a threatened state of emergency, which can be defined a state of affairs which though not a state of emergency, may, if left unchecked, lead to a state of emergency.
Article 25 provides that a law that derogates the rights to liberty, property, privacy, freedom of conscience, expression, assembly, movement and protection from discrimination and exploitation of young persons shall not be deemed as in contravention of those rights, provided that the law in question states that those derogations shall exist during a time when Zambia is at war or there is a declaration of the state of emergency as provided in Article 30. This provision permits the limitation of rights during a state of emergency.
The laws in question that limit rights in such scenarios are the Emergency Powers Act, chapter 108 of the laws of Zambia, which provides for what actions the state can take during a state of emergency under Article 30, and the Preservation of Public Security Act, chapter 112 of the laws of Zambia. For purposes of this article, the related articles of the Constitution shall be discussed together with the legislation that gives effect to the articles in question.
Let it also be noted that in this article, state of emergency may refer exclusively to a state of emergency or may be inclusive of a state of emergency and a threatened state of emergency. The context shall indicate what is meant by a state of emergency.
A State of Emergency
A state of emergency is provided for under Article 30 of the Constitution. It gives the President the power to declare a state of emergency. All that is required before the President can make such a declaration is that he consults Cabinet and has parliamentary approval from simple majority in the National Assembly within seven days of the declaration (clauses 1-4). The declaration lasts for three months and can be renewed by a simple majority of the National Assembly or revoked at an earlier date (clause 5).
As stated earlier, Article 25 provides for the creation of laws that derogate certain rights during a state of emergency. The law that provides for these derogations during a state of emergency is the Emergency Powers Act. The preamble of the Act states that the purpose of the Act is to “empower the President to make emergency regulations” when there is a state of emergency. It then provides under section 3(1) that the President, through a statutory instrument, can make certain regulations as deemed necessary for maintaining public security. Subsection 2 then specifies the extent of the President’s power. The power includes the power to restrict movements and deport foreigners, authorise the seizing of any property in Zambia and the searching of any property. The President can also amend or suspend any law without needing any parliamentary approval. Section 4 provides that the regulations shall be still in force, even if in conflict with existing laws. This is all that the law provides for a state of emergency.
A Threatened State of Emergency
A threatened state of emergency is addressed in Article 31 of the Constitution and in the Preservation of Public Security Act. A threatened state of emergency, as stated by learned author Professor Alfred Chanda in his book, ‘Zambian Constitutional Law: Cases and Materials,’ (UNZA Press, 2011) page 2067, is a situation which has the potential of leading to a state of emergency unless something is done to curtail it. Article 31 has the same requirements as Article 30.
The Preservation of Public Security Act is an Act of Parliament is for the purpose of preserving public security, which includes, according to section 2, the prevention of violence, mutiny and other actions that threaten national order and security (essentially, for the purpose of preventing a state of emergency). According to section 3(1) comes into effect once the President makes a declaration (the declaration in question is pursuant to Article 31 of the Constitution). Subsection 2 then outlines what the president can do (through regulations) in a state of emergency. Like the Emergency Powers Act, the president also has power in this Act to restrict movement of citizens, suspend the operation of any law for purposes of preserving security, seize property, and detention of citizens without trial. Furthermore, the President (as also stated in the Emergency Powers Act) may, in their regulations, provide for the compensation and renumeration of individuals affected by the regulations (section 4[a]). Despite those similarities, there are notable differences.
One thing to note is under the Preservation of Public Security Act (herein referred to as the Act), the President does not have the power to deport foreigners, which is in stark contrast to the provisions contained in section 3(1) of the Emergency Powers Act. In addition, according to the Act, in section 3(2) (c), the President can only seize movable property, in contrast to the Emergency Powers Act which enables the President to seize any property. Furthermore, the Act only permits the president to suspend laws, unlike the Emergency Powers Act, which also enables the President to change the existing laws.
The Differences between a State of Emergency and a Threatened State of Emergency
The differences between a State of Emergency and a Threatened State of Emergency are summed up below.
- According to Article 25, the President is permitted to derogate certain rights as provided for in that Article during a state of emergency as declared by the President through the powers granted to him in Article 30. Article 25 does not extend the derogations to a declaration under Article 31. Thus, the President is only allowed to derogate the rights provided for in Article 25 through a declaration of a state of emergency under Article 30.
- A state of emergency is provided for in Article 30 while a threatened state of emergency is provided for under Article 31.
- The law that provides for the powers of the President during a state of emergency is the Emergency Powers Act while the law that provides for the powers of the President under a threatened state of emergency is the Preservation of Public Security Act.
- According to section 3(2) (a) of the Emergency Powers Act, the President has the power to deport foreigners. This in contrast to section 3(2) of the Preservation of Public Security Act (which contains the powers of the President during a threatened state of emergency), which does not give the President power to deport foreigners.
- Section 3(2) (b) of the Emergency Powers Act gives the President absolute powers to seize any property. On the other hand, section 3(2) (c) of the Preservation of Public Security only grants the President power to seize moveable property.
- Section 3(2) (d) of the Emergency Powers Act grants the President power to amend or suspend any law for the purposes of preserving public security. On the other hand, section 4(c) of the Preservation of Public Security Act only grants the President power to suspend any existing laws.
Case Law Concerning both a State of Emergency and a Threatened State of Emergency
Zambia has had a few states of emergencies. During the regime of Kenneth Kaunda, in 1976, a state of emergency was declared in 1976 due the political instability in the nations surrounding Zambia (refer to the New York Times’ article, ‘Kaunda Assumes Emergency Powers, Citing Threats to Zambia,’ January 29, 1976, https://www.nytimes.com/1976/01/29/archives/kaunda-assumes-emergency-powers-citing-threats-to-zambia.html ). During the tenure of Fredrick Chiluba, two states of emergencies were declared. The first was in 1993, when there was an alleged plan by UNIP to overthrow of the government (this is detailed in a report done by the Human Rights Watch called, ‘Zambia: Model for Democracy Declares State of Emergency’, 10th June 1993, Volume V, Issue 8, https://www.hrw.org/reports/pdfs/z/zambia/zambia936.pdf ) The second was in 1997 (which is narrated in the case Dean Namulya Mung’omba v Attorney General 1997/HP/2617). A threatened state of emergency was declared during the tenure of Edgar Lungu in 2017 (Refer to the News Diggers article, ‘Lungu Declares Threatened State of Emergency’, 5th July 2017, https://diggers.news/local/2017/07/05/lungu-declares-a-state-of-emergency/ ) All these events have led to certain actions which some deemed to be illegal from the state. These persons filed their applications to the court, especially during the state of emergency during the tenures of Kaunda and Chiluba. It is from here that case law concerning a state of emergency has developed.
Can the courts review the legality of an emergency declaration?
The primary duty of the court in a democratic society is enforcement of the law. This is not only limited to regular citizens, but to the state as well. Thus, when the state is found abrogating the law, it is the duty of the court to intervene and declare such actions as illegal. The question of whether the court can review the legality of a declaration of a state of emergency was addressed in the case of Dean Namulya Mung’omba v Attorney General 1997/HP/2617.
Brief facts of the case are that the applicant was arrested in 1997 during a state of emergency. As such, he was not tried but kept in prison. This led to him applying for a habeas corpus (a court application for one to be released from prison and appear for trial in the court, refer to Black’s Law Dictionary, 8th Edition) and further claimed before the High Court that the situation in Zambia did not warrant the declaration of a state of emergency, thus his detention was unlawful.
The court dismissed his application by stating that they had no jurisdiction to review the legality of a state of emergency. The court stated that all that is required for a President to declare a state of emergency, according to Article 30, is that he consults cabinet and has parliamentary approval. For the court to seek to inquire as to whether there is good reason for a declaration of a state of emergency is outside the powers given to the court by the Constitution. To quote the court, “It is a matter of executive discretion...” It is only the National Assembly vested with the power to review a declaration of the state of emergency, not the court. The only thing the court can do is assess whether the actions of the President were in line with the regulations of a state of emergency, which the court found were in line. As such, Dean Mung’omba’s application was dismissed.
This court case was not appealed against. So, as it stands, it is valid law in Zambia. Thus, the courts of law cannot review the legality of the declaration of a state of emergency as it is a matter of executive discretion. It is only the National Assembly that has the power to either approve or disapprove a declaration of a state of emergency.
Can one seek for redress for detention without trial during a state of emergency?
One of the issues that came up in the Mung’omba case was whether one detained during a state of emergency can seek for any redress from the state. The court mentioned, in concluding its statement on how a state of emergency is of executive discretion, that if one desires to seek redress for detention without trial, “That is the function of the special tribunal for which provision is made under the constitution. Under our constitution, an application can be made to the High Court for redress if a protective provision is contravened. This is not such an application.” The provision being referred to is Article 26(1), which enables one detained under a state of emergency to apply to a special tribunal to review their detention.
One of the authorities referred to in that case is the case of John Chisata and Faustinos Lombe v Attorney-General (1981) Z.R. 35 (S.C.). In that case, the parties were detained under the Preservation of Public Security Act and made an application under Article 26 for unlawful detention. The Supreme Court dismissed their application, stating that for them to seek redress, it is necessary for them to show that the state did not have any reasonable ground to detain them.
Another vital authority on this matter is Re Alice Lenshina Mulenga (1970) S.C.Z 179. In this case, the petitioner applied to the executive for judicial review of her detention. However, her petition was denied, which led to her petitioning to the High Court, alleging that it violated the provisions of Article 26 (then Article 27). The matter then went on appeal to the Supreme Court, where the ruling was in the favour of the petitioner. The court, in giving its judgement, held that the petitioner had a constitutional right apply for review of their detention during a state of emergency. Furthermore, the state was obliged to immediately set up a tribunal to review the detention.
Based on the three cases discussed, one can seek redress for detention without trial under Article 26, but they must request that their case be reviewed and must show that their detention was unreasonable.
Can the state arbitrarily arrest someone during a state or threatened state of emergency?
Though the Emergency Powers Act and the Preservation of Public Security Act grant the President power to detain without trial, that does not necessarily entail that the President can detain arbitrarily. Case law has provided conditions under which a person can be detained in a state of emergency.
One landmark case to highlight is the case of Chipango v the Attorney General (Supreme Court Judgement No. 7 of 1971). In that case, the court held that any failure by the state to follow the provisions of Article 26 in relation to detention as unlawful. This case sets precedent that a detention during a state of emergency must be in line with the provisions of Article 26. Case law since this case has expanded on this principle. A few shall be highlighted for purposes of this article.
In the case of Vincent Namushi Munalula and 6 Others v Attorney-General (1979) Z.R. 154 (S.C.), the appellants were detained under regulation 33(1) of the Preservation of Public Security Regulations. According to the appellants, the police’s reasons for arresting them were vague, which was contrary to Article 27(1) (a) (now Article 26[1]) of the Constitution, which requires that those detained during a state of emergency must be given a detailed statement concerning why they were arrested. So, it was being argued before the court that their detention was illegal. The court ruled in that case that for detention to be valid, it is necessary that the detainees are furnished a detailed statement as to why they were arrested. However, what amounts to vague or detailed is dependent on the circumstances of the facts. The facts of that case indicated that the statement was detailed enough for the appellants, so their appeal was dismissed.
Though this case was not ruled in the favour of the appellants, it does bring to the fore that those arrested during a state of emergency must be informed in detail about the reason for their arrest. Failure to which, they are to be released from their detention.
From the two cases cited, it has been shown that though the state has wide powers in terms of detention of individuals during a state of emergency, they are still required to follow procedures of Article 26 and the regulations they set up during a state of emergency.
Critique of the Provisions in Relation to a State of Emergency
Now that the laws in relation to a state of emergency has been discussed, it is necessary, for the development of Zambia’s jurisprudence that the laws be critiqued. This critique shall not only look at the provisions in the Constitution, but also the Acts that give effect to a state of emergency. This critique ultimately seeks to do one thing, which is to determine how the provisions ensure that the human rights guaranteed in the Constitution are protected.
The Constitution
The first provision to look at is the Constitution. Article 1(1) of the Constitution states that it is the supreme law of the land and any law inconsistent with it is void insofar as is the inconsistency. In the case of Thomas Mumba v the People (1984) Z.R. 38 (H.C.), the High Court held that all laws derive their validity from the Constitution. Thus, any provision contained in the Constitution is of vital importance. One integral part of the Constitution is Part III, which is the Bill of Rights. Not only does this Part contain the fundamental rights and freedoms of citizens, it is also the most rigid part of the Constitution because according to Article 79, any amendment to the Bill of Rights requires the at least more than 50% of the eligible voting population to vote in favour of a motion to amend the Bill of Rights. Contained in the Bill of Rights are the provisions relating to a state of emergency.
Article 30 and 31 of the Constitution do not provide enough safeguards to prevent the President from abusing rights during a state of emergency or threatened state of emergency. Though Article 25 limits what rights the President can derogate, the rights he is allowed to derogate are worrisome, particularly, the rights to freedom of conscience, expression, assembly and movement. These rights have been highlighted for a particular reason. Throughout Zambia’s history, state of emergencies have often being used by the ruling government as a means of quelling the opposition rather than actually stopping a public emergency. As Amnesty International rightly noted in their report of Zambia during the 1997 State of Emergency, titled, ‘Zambia: Misrule of law-Human rights in a state of emergency’ (2nd March 1998, AFR 63/04/98), the state of emergency declared by President Chiluba was unwarranted as the instigators of the attempted coup were apprehended. The report further took note of how those arrested by the government were those who were political enemies of the President. Thus, the Constitutional provision is weak in this regard.
Another weakness with the Constitutional provisions is the requirement for a state of emergency to be declared. Articles 30 and 31 simply require the President to consult cabinet and a majority vote from the National Assembly. One could argue that the provision requiring approval from the National Assembly is a safeguard, but it is not. The provision only requires a simple majority. It does not require two-thirds majority. It is a known fact in Zambian politics that the majority in the National Assembly are from the ruling party. Furthermore, the Members of Parliament from the ruling party often side with decisions of the President. Thus, there are no safeguards that can prevent the President from abusing his powers for political favour.
The sad part about the provisions is that they are contained in Part III of the Constitution, which as noted earlier, requires a high threshold for it to be amended. The relatively recent 2016 referendum on the Bill of Rights shows just how difficult it is to amend Part III of the Constitution (for further reading, see Professor Cephas Lumina’s article in Constitution Net, titled, ‘Zambia’s Failed Constitutional Referendum: What Next?’ https://constitutionnet.org/news/zambias-failed-constitutional-referendum-what-next ). As such, the defective provisions of Articles 30 and 31 shall remain entrenched in the Constitution unless there is political will from both the state and the people to amend those provisions.
The Acts of Parliament
Though the provisions for a state and threatened state of emergency in Articles 30 and 31 are defective, they do not outline in detail how much powers the President has during those time periods. The Acts of Parliament that give effect to those provisions (the Emergency Powers Act and the Preservation of Public Security Act) provide more detail in terms of powers of the President. For purposes of this section, the two Acts shall be addressed together.
The Acts grant the President unlimited power in what they can do an emergency. The major shortcoming of the Acts is lack of any safeguards contained to prevent abuse of human rights. Now, the safeguard of public security is necessary in safeguarding the rights of all citizens, as was stated in argument by the Attorney General (which was accepted by the court) in the case of Kachasu v the Attorney General (1967) Z.R. 145, J18. That said, the derogation of rights should not be used as a means of infringing on rights. Rather, any derogation should be reasonable and just in a democratic society. This provided for in the derogation clauses of each right contained in the Constitution (for example, Article 20[3]). This point concerning derogations was also fortified in the case of Christine Mulundika and 7 others v the People 1995/SCZ/25 (unreported). By the Acts giving the President unlimited power during a state of emergency and threatened stated of emergency, they fail to meet the criteria of the Constitution and can thus be argued to be unconstitutional.
Conclusion
A state of emergency brings instability in a nation. As such, limitation of certain human rights are necessary for public security. However, the law Zambia has concerning a state of emergency and threatened state of emergency is too defective as it fails to strike the balance between safeguarding national security and protecting human rights. Thus, it is necessary provisions discussed in this article be amended so that both public security and human rights are properly safeguarded.
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