are not to be diluted or diminished unless necessity or intractability of language dictates
otherwise.
Held, further, that freedom of expression and of assembly are vitally important rights.
These rights lie at the foundation of a democratic society and are basic conditions for the
progress of society and the development of persons. Freedom of expression serves four
broad purposes, namely: it helps an individual to obtain self-fulfilment; it assists in the
discovery of truth; it strengthens the capacity of an individual to participate in decision
making; and it provides a mechanism for establishing a reasonable balance between
stability and social change.
Held, further, the right of freedom of assembly is often exercised by persons taking part
in public processions and protects. A procession is an assembly in motion and is a highly
effective means of drawing public attention to an issue and involving them in discussion
on the issue. Public places such a streets and parks have traditionally been used for
processions.
Held, further, that the right to freedom of assembly is not absolute and must be balanced
against the responsibility of government to maintain public order and protect public
safety.
Held, further, that as s 20(6) and ss 21(4) of the Constitution interfere with
Page 51 of 1994 (1) ZLR 49 (S)
fundamental rights and as there is an area of ambiguity in the meaning of these
provisions, these provisions should be interpreted in favour of the liberty of the
individual. They should not be interpreted as totally prohibiting freedom of assembly and
expression on public roads and pavements, but only to mean that these rights should not
be exercised so as to obstruct traffic in thoroughfares. Such an interpretation is in
accordance with s 11 of the Constitution and it also avoids the withdrawal of protection
from the most visible, effective and immediate means by which grievances can be
brought to the knowledge of those in authority, by holding of public processions,
provided those processions will not prevent or hinder free passage of persons or vehicles
in places set aside for such traffic.
Held, further, that ss 20(2)(a) and 21(3)(a) of the Constitution permit the enactment of
laws which derogate from freedom and assembly in the interests of public safety and
public order to an extent which is reasonably justifiable in a democratic society. In terms
of s 2(5) of the Constitution, the applicants had to show the court that s 6 of the Law and
Order (Maintenance) Act was not reasonably justifiable in a democratic society.
Held, further, that what is reasonably justifiable in a democratic society is a concept
which cannot be precisely defined by the courts and there is no legal yardstick to measure
this except that the quality of reasonableness of the provision under challenge is to be
judged according to whether it arbitrarily or excessively invades the enjoyment of a
constitutionally guaranteed right.
Held, further, that s 6 of the Law and Order (Maintenance) Act 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. These are:
(i)
the discretionary power of a regulating authority is uncontrolled;
(ii)
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 peace or public
order could be averted by attaching conditions upon the conduct of the procession;