At this stage of the proceedings, I would agree with Mr Gillespie that s 6 contains features which, taken cumulatively, show that it is a provision not reasonably justifiable in a democratic society in the interests of public safety or public order. The term “public safety” means the safety of the community from external and internal dangers. Public order is synonymous with public peace, safety and tranquillity. See Pandey op cit at pp 125-126. The adverse features are these: First, the discretionary power of a regulating authority is uncontrolled. He may, under s 6(1), issue a direction prohibiting the right to form a public procession upon a ground not related in any way to conditions of public safety or public order. There is no definition of the criteria to be used by the regulating authority in the exercise of his discretion. It may be gravely misplaced and made the instrument for the arbitrary suppression of the free expression of views. See Shuttlesworth v Birmingham 394 US 147 (1969) at 153; Collin v Smith 447 F Supp 676 (1978) at 685 in fine. Second, before imposing a ban on a public procession the regulating authority is not obliged to take into account whether the likelihood of a breach of the peace or public disorder could be averted by attaching conditions upon the conduct of the procession in the issuance of a permit relating, for instance, to time, duration and route. If the potential disorder could be prevented by the imposition of suitable conditions, then it is only reasonable that such a less stringent course of action be adopted than an outright ban. Third, although the rights to freedom of expression and assembly are primary and the limitations thereon secondary, s 6(2) reverses the order. Its effect is to deny such rights unless a certain condition is satisfied, namely, that the public procession it is sought to form is “unlikely to cause or lead to a breach Page 65 of 1994 (1) ZLR 49 (S) of the peace or public disorder”. If there is the slightest possibility of it doing so, permission is refused. Fourth, the holding of a public procession without a permit is criminalised irrespective of the likelihood or occurrence of any threat to public safety or public order, or even of any inconvenience to persons not participating (see ss 6(5), (6) and (7)). Accepting, as one must, that the power to prohibit or control a public procession is necessary in the interests of public safety or public order, the ensuing infringement or limitation of the freedoms of expression and assembly, could be adequately achieved, so it would seem, by less restrictive and authoritarian provisions than are contained in s 6. Compare, for instance, s 3 of the English Public Order Act 1936 (repealed) and s 12 of the English Public Order Act of 1986. THE ORDER In the result: 1. A rule nisi will issue calling upon the Minister of Home Affairs to show cause before this Court, at 0930 hours on 25 February 1994, why s 6 of the Law and Order (Maintenance) Act [Chapter 65] should not be declared to be ultra vires ss 20 and 21 of the Constitution of Zimbabwe and, accordingly, invalid. 2. The costs of the application are to stand over for determination on the return day. McNally JA: I agree Korsah JA: I agree Ebrahim JA: I agree