Zulu v Attorney General (SCZ 5 of 1994) [1994] ZMSC 146 (8 June 1994)

Su£ ciU. 3 UF 1994 AiVtAL RU. x-j Or 1i>93 *N THE SUPREME COURT FDR ZAMBIA HOLDEM AT LUSAKA B E TWEEN: Alfred M’thakati Zulu Appellant And Attorney-General Respondent Coram: Gardner, Chirwa and Chaila OJOS., 9th February, 1994 and s;cn Oun«, 1994 Mr. R. M. Simeza of RMA Chongwe and Co.., appeared for the appellant. Mr. C. Jayawardena Assistant Principal State Advocate appeared for the State. JUDGMENT Gardner J. So delivered the judgment of the court. This is an appeal against a judgment of the High Court refusing a . g>««t.*of : fa declaration that a cancellation of a police permit for a meeting was invalid, and, that the alleged cancellation was a violation of the constitutional freedoms of speech and association of the students concerned. The facts of the case were that on the 1st of September, 1992 the appellant, as Secretary General of the University of Zambia Students Union, together with the President of the Union applied for a permit to hold a public rally on the 27th September, 1992. They went to Lusaka Division Police where they were directed to the room of Inspector Buchisa who said he was the Regulating Officer. A permit was issued by Inspector Buchisa for a meeting to be held consisting of a procession along the Great East Road to a rally at Kafue roundabout. The evidence of the appellant was that later a number of police officers told him that the person who issued the permit was not qualified to issue it; but he was never told that the permit has been cancelled. He treated the subject of cancellation as a rumour. On the 24th of September, 1992 the union representatives were called to State House where the President of the Republic, according to this witness, told them that they should hold the meeting at the University campus and not at Kafue roundabout. 2/ □ n 27th of September the students went ahead with their meeting and were stepped by police at a road-block on the Great Cast Road. They were then told that the permit for the meeting had been cancelled. They were told to disperse, but they did not do so and were arrested. In cross-examination the appellant said that the President nf the Union learned frcim Assistant Commissioner Ndhlovu in the corridor of Central Police Station on the 22nd September, 1992 that the permit for the meeting had been cancelled. As to the change of venue of the meeting the appellant said that Mr. Ndhlovu had cancelled th-' meeting, not only the venue, and that it was the './ice Chancellor and Doan of Students whe suggested that they change venue to th-1 campus of the University of Zambia,. The President of the union also gave evidence concerning the obtaining of the peri fit and said that on 22nd of September, he went to Lusaka Central Police Station where he met hr. Ndhlovu who told him that he h:;d cancelled the permit because the students were not a political party. Thereafter Mr. Kumanda the Deputy Commander nf Lusaka Division Police asked the witness to change the venue tn the University of Zambia. The witness replied that he needed time to consult his colleagues. The witness confirmed that on the 27th September, 1992 th'? students started marching and the procession bias halted, by the police. The? third witness for the petitioner was Inspector Buchisa who gave evidence that he issued a permit for the meeting and that before doing so he looked for Mr. Ndhlovu whom he was required to inform before issuing any permit. said Mr. Ndhlovu was not there so he issued the permit on the authority df Chief Inspector Nkhonje. The witness confirmed he was Regulating [Ifficer responsible for issuing permits.. The witness went on to say;- "I changed my mind, I followed the applicant,, retrieved the permit and cancelled it. For all the time I whs in that office I never cancelled any permits. This was the first case to be. cancelled. I followed the applicant tn cancel the permit., I issued it on 21st September, 1992 and I cancelled it on 22nd September, 1992." B3 Later in his Guidance in chief he said: "Mr. Ndhlovu asked me to cancel the permit. That was in the morning of 22nd September, 1992. On 21st September, 1992 no one queried me about the permit. My superior officer told me to cancel the? permit." In cross-examination the witness confirmed that ha had previously been instructed not to continue issuing permits without the consent of the Commanding Officer. He said that the students who. came to see him told him that the Commanding Officer had advised them to see the witness and that he should issue the permit to them. He said;- "On 22nd September, 1992 I was instructed to retrieve the permit from the students. He did that because he realised that he had been tricked by the students when they told me that they had seen him before they come to my office. The Commissioner (Mr. Nahluvu) personally told the students saying;- "Comrades since, you did not see me before issuing the permit I now cancel the permit.11 The first witnisc fur the defence Senior Assistant Commission :r of Police ■<:?. Ndhlovu gave evidence that Inspector Buchisa was workinc with, him in 1992 as Regulating Officer issuing permits fcr ceremonies which were not political. He said for a political meeting th“> power to issue permits was vested in him’ He said he took over the power of issuing political meeting permits and that he was also a Regulating Officer. The witness said that he realised that Inspector Buchisa had issued the permit in question on the understanding that the witness had advised him to issue the permit because the two students had falsely told Buchisa that they had seen him. He said that when he met the two students’ officials he told them that the permit had been cancelled because he did not have enough manpower to cover their meeting when he already had a UNIP Congress Meeting at Namaynni Farm and c Bhell BP Championship gathering. This he said made him cancel the permit. He cofirmed that the issuing of the permit by Mr. Buchisa was legally done and said that he did net cancel the mooting completely because he allowed them to hold it nt the University of Zambia campus. M........... - - In cross-examination he maintained that liis conduct did not mean that the permit far the masting vias cancelled end said that he had only changer' th a venua. The learned trial judge found that it ums hairsplitting tn argue that hncnusn the permit vsaa issued by inspector Buchisa Hr. Ndhlovu as superior officer had no right to attach conditions to it. He found- that the permit had net boon cancelled but that only tha vacua had been changed. He held tharafnre that the appellant was nit entitled to a declaration that the cancellation was invalid. The learn-.>d trial judge nisei found that there has beer- ni? violation of the fundamental rights of the students. On appeal iir. flimoza, on behalf of the appellant, submitted a number of grounds nf appeal and hoods of arguments. The first ground u-^r: that the learned trial judge erred in finding that hr. Ndhlovu, hocauoe ha was the most superior officer, had power to attach to nr change conditions in the permit issued by inspector Buchisa. He argued that in terms of section 5 of the Public Order Act, the only person who can change the venue or conditions in a permit earlier issued is the Regulating Officer referred tn under section 5 (^) of the Act, who in this case, as was admittui.’. by both parties, was Inspector Buchisa. It was his contention that neither Nr. rjdhlovu nor any superior had the right to order a change of venue or stench any conditions to the permit. Hr. Simoza argued that, whilst it was admitted that a Regulating Officer had a wide discretion to grant or refuse the grant of a permit or tn attach conditions tn it, the exercise nf such discretion rested entirely upon the Regulating Officer concerned, namely Inspector Buchisa, and hr> should not exercise those powers under dictation or instruction from his superior or higher authorities. Ho should have exercised his discretionary powers individually and without any interference from any quarter whatsoever. Ho arguori that i :r. Ndhlovu's cancellation or alteration of the issued pnrmit was an attempt to interfere with the discretion vested solely in Inspector Buchisa. Mr. Simeza indicated that it was his argument that Inspector Buchisa, tn whom the application wr n msde, was the one bihia should consider whether or not there was sufficient manpower in the police force to deal with th.- meeting frr which th.: permit was obtained taking into 5/.................... □5 account any other commitments of the police force. In reply, after tha learned State Advocate had addressed the court with his arguments, i'r. Simeza was adamant in arguing that, if a Regulating Officer rec ;ived an order to cancel or attach conditions to «• permit already issued by him, he should not obey such an order even if he agreed with it and realised that he had made a mistake in granting the first order. Mr. Simeza, also put forward a number of other grounds of appeal which related to whether the original permit had been cancelled or whether it had been varied by the imposition of another condition as to venue. However, those were withdrawn because they depended solely on whether nr not the cancellation or alteration of the original permit was permissible at law. In the same way ground 5 of the appeal, which contended that the learned trial judge had erred in holding that th ■ action nf cancelling the procession and rally and th- arresting of th- students who had a valid permit had not in any way virlatod their fundamental rights, depended entirely on whether '• r not uh? concpllation of the original permit was permissible. Finally, hr. Simeza appealed against the learned trial judge's finding that th- '’ppclient r,n behalf of the students could not recover one hundred and fifty thousand kwacha spent on advertising costs for the unsuccessful meeting. Mr.. Simeza was unable to frame a causa of action under which the amount was claimed but argued only that, tha money which had been spent by the students on the advertising was wasted because the police wrongfully preventing the holding of th;: proposed meeting. In support of his claim and his arguments Mr. Simeza referred, us to the cose of R. v. Commissioner of Police of the Metropolis (Ex parte Blackburn) (196S) 2 Q. B. IIS at page 136. This was a case in which a private individual sought an order against the Commissioner nf Police in London to make him take action against certain gamine clubs. In the event, by the time the case came before th” court the necessary action had already been taken against the clubs so that the court found it unnecessary to make any order. In th: course of his judgment Lord Denning H. R. commented that the Commissioner of Police could not be given orders as to how he perform’d th? duties of his office by anyone - not even by the Home Secretary, 6/ - (><) It was this portion of the judgment that Mr. Simeza wished to call in aid in support of his argument that Mr. Buchisa's discretion as to the issue of permits was not subject to the order of any other officer in the police force. Ule would distiquish that case from the appeal at present before us. The case being considered was whether an order for Judicial Review was available against the Commissioner, which question was answered in the affirmative by the court, but in fact no order was found to be necessary in that case. The comments about the question as to whether or not a Commissioner of Police is subject to the orders of others are not relevant to the question of whether or not a police inspector is so subject. Ide appreciate that Mr. Simeza argues that a person appointed as a Regulating Officer is given a discretion which cannot be interfered with by any other person, but we can find no authority for such a proposition. There is no statutory authority to support the argument and nothing to suggest that a Regulating Officer is not subject to the ordinary chain of command existing in the Police Force. However, in this case we do not have to consider the general law of the situation. There was specific evidence from Senior "ssistant Commissioner of Police Mr. IMdhlovu that he was also a Regulating Officer who was responsible for giving instructions to Mr. Buchisa. In those circumstances, despite Mr. Simeza's forceful argument to the contrary, there can be no doubt that Mr. Ndhlovu was fully entitled to give orders to Mr. Buchisa about the issuing and cancellation or variation of permits and Mr. Buchisa was in duty bound to obey such orders. The question of whether the origihal order was cancelled or varied is immaterial. There was no impropriety on the part of the police and the cancellation ur variation of the permit in this case was valid at law. The question of compensation for the wasted advertisements does not, therefore, arise. For the reasons we have given to appeal is dismissed. There will be no order to costs. B. T. GARDNER SUPREME COURT JUDGE M. S. CHA ILA SUPREME COURT JUDGE D. H. CHIRUA SUPREME COURT JUDGE