The right to peaceful assembly in Botswana: The constitutionality of the Public Order Act

Abstract

The right to peaceful assembly and association is protected under the International Bill of Human Rights. The Constitution of Botswana protects this right under Section 13. The Public Order Act, governs the exercise of this right. In terms of the Public Order Act, an individual is required to obtain a permit from a police officer prior to convening a public meeting. This requirement is a limitation on the constitutional right to peaceful assembly and association. This article examines the Public Order Act and in particular the manner in which the permit for a public meeting is issued under sections 4 and 8. The author argues that the Public Order Act is unconstitutional because it clothes the issuer of the permit with broad discretion to refuse a permit and offers the applicant little recourse where a permit is refused. The article argues that the wording of Section 13 of the Constitution incorporates the so called “three prong proportionality test” laid down in R v Oakes and that the Botswana Courts, in applying the test, would find the provisions of the Public Order Act inconsistent with the provisions of the Constitution. A comparative survey indicates that similar provisions have been struck down as unconstitutional in Nigeria, Ghana and the United States. It is recommended that the Attorney General and the Law Revision Committee of Parliament consider a review of the Public Order Act.