The police, rocked recently by torture allegations, excessive kowtowing to the government, and plummeting public confidence, recently saw commissioner Anil Kumar Dip attempt damage control. However, when talking about the onus of the police to dictate terms for public demonstrations, did he just create powers for the police that the law does not give it?

1) The commissioner’s interpretation

END of July, commissioner of police (CP) Anil Kumar Dip held a press conference in an attempt to stem flagging public confidence in the police force, rocked by the surfacing of videos on social media showing Mauritian policemen torturing suspects. The timing of Dip’s attempt to win back hearts and minds, and warn critics of the police force, comes as evidence comes in of plummeting public confidence in the police. A survey conducted by the firm Afrobarometer in March 2022 found that only 42 per cent of Mauritians found that the police did a professional job; 63 per cent believed that the police kowtowed to political and personal interests and were not neutral; with only 21 per cent saying that the police were doing a good job fighting crime. Overall, according to the survey, the proportion of Mauritians that trusted the Mauritian police plunge down from 59 per cent in 2014 to 46 per cent in 2022. Interestingly, the survey found that 58 per cent of Mauritians thought the police “uses excessive force”, when dealing with public protests. 

This brings us to the problem with the CP’s press conference at its headquarters Line Barracks. Referring to public protests, Dip said that all public gatherings, including public demonstrations, needed prior police approval to go ahead. “But what do we see? Somebody just calls for people to come out on the street to hold a demonstration. There is a right to demonstrate, but there is also a legal framework for it. There is a procedure to follow, you must apply for permission.” The problem is that the PC, telling the public that they need police permission to hold a public protest, is one of those persistent myths in the Mauritian body politic that just refuses to die. “There are a lot of people, including within parliament itself, who say that you need police permission to demonstrate. And that is just completely wrong,” says Ram Seegobin of Lalit. So, has the PC just misrepresented the powers the police really has? 

Firstly, Mauritius is a signatory to a number of international agreements and conventions upholding the right to protest. It signed the 1966 International Covenant on Civil and Political Rights (ICCPR) of which article 21 states that “the right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law, and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others”. The Mauritian state has also signed the 1981 African Charter on Human and People’s Rights whose article 11 pretty much follows what the ICCPR says. Such language pretty much makes up section 13 of the Mauritian Constitution as well, which states that “except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assembly freely and associate with other persons”.

2) The POA and its stance

JUST how wrong the PC seems to have got the law can be understood by the simple fact that before the Public Gathering Act (PGA) – that regulates public protests – there was the Public Order Act (POA) of 1970, slammed by its critics as being too draconian. It was to replace the heavy-handed POA that the PGA was introduced in 1991. “The POA was much more draconian, and had things like mandatory prison sentences for illegal gatherings; overall compared to that, the PGA was an improvement,” says Seegobin. But, argues lawyer Sanjay Bhuckory, “nothing much changed in between these two laws when it came to the power of the police to regulate public protests.” Not even the draconian precursor to current laws gave the police force the power to determine who can or cannot protest, let alone, demand that anyone wanting to protest must ask the police for authorization. That is, even the POA did not give the powers to the police that the PC seems to think it has. 

Back in 1971, Suresh Moorba and a number of others were hauled before the courts under the POA for illegally protesting. The district court of Grand Port sent the case to the Supreme Court to determine what was an illegal assembly, was the police right not to authorize the protest, and was permission from the police even necessary? The Supreme Court was quite clear on this point: “If the section gave an unfettered discretion to the Commissioner to control the right of assembly, it would have been unconstitutional. That right is one of the fundamental rights protected by the constitution, and the exercise of a fundamental right should not be subject to the arbitrary control of an official.” 

Then there was the Michel case in 1988 where four people were accused of leading an illegal protest of 250 people at the Central Housing Authority office in Rose Hill. The district court seemed to think that the POA required a protest to have police permission and convicted all four people, sentencing to them to a month in prison. But the Supreme Court found that the district court was wrong about that: “If the appellants had along with other persons, five or more in number, assembled anywhere – a right which they undeniably have – they did not have to seek authority from anyone to do so. An assembly of five or more persons becomes unlawful only when either it intends to commit an offence, or when it conducts itself in such a manner as is likely to lead to or provoke a breach of the peace.” 

The Supreme Court ruled that under the POA, “there was no need for any authorization from anyone to assembly in the first place… and secondly, it is not the assembly by itself which can constitute an offense under the Public Order Act, it must be the assembly, having gathered, committing a distinct offence. We find that the magistrate misapprehended the law and came to the wrong conclusion”. The conviction in the Michel case was quashed. Simply put, the people on trial could not be convicted of assembling without the permission of the police precisely because even under the draconian POA that was in force until 1991, no such permission from the police was needed. So, even if during the heyday of the heavy-handed state and legislative repression of the 1970s and 1980s the courts knew that Mauritians could gather without needing permission from the police, where is Dip getting his interpretation of the law from?

3) What does the PGA say?

THAT brings us to the PGA of 1991, which is currently the law concerning public protests. Section 3 (2) of the PGA states that “any person wishing to hold or organize a public gathering shall give written notice to the commissioner not less than 7 clear days before the day on which the gathering is to be held or organized”. “Notice”, not an “application” for permission. Now under the law, the PC can do one of three things: he can simply let the protest happen; he can impose conditions on the protest under section 4(1) of the PGA to prevent damage to public property or peace; or under section 4(3) to prohibit the protest where he thinks that coming up with conditions for regulating a protest would not be enough. But even then, the onus is on the police to prove why such a protest cannot take place. “It does not say anywhere in the law that the police have to grant their permission. The law just asks applicants to give notice to the police,” explains Bhuckory, “even where the police refuse to give its clearance, you can go to court, so that discretion is not absolute either. We have had cases were people wanting to protest have had the police’s objections overruled by the courts.”. 

This has been borne out by two instances under the PGA, that although coming to different conclusions, both insisted on the same interpretation of the PGA. The first was the case in 1993 of Jack Bizlall, who then headed the ‘Parti Militant Travayer’. On October 8, 1993, Bizlall wrote to the police to be allowed to hold a series of demonstrations in the context of the ‘Francophonie’ summit to be held in Mauritius between 16 and 18 October that year. His group wanted to protest a number of different things: the poor human rights record of the then-governments of Burundi, Cameroon, Mali, Tunisia and Zaire (now DR Congo), an attack on a Greenpeace ship, France’s poor treatment of its immigrant workers, and Paris’ support to repressive regimes in Zaire, Cameroon and Djibouti as well as France’s continued occupation of Tromelin and Mayotte. The police prohibited Bizlall’s protest arguing that 300 international delegates would be attending the summit. Although the Supreme Court backed the police’s decision – “the facts averred clearly show that a summit involving about 300 delegates was being held in Mauritius. At the time of the proposed holding of the gathering at Rose Hill, the delegates would be going to the Plaza Theatre. In view of the number of delegates, security measures had to be strict. In these circumstances, no commissioner of police in his right mind would have allowed a gathering to take place”. 

However, the Supreme Court in that case did point out a number of things under the PGA: first, the PC “must first and foremost start on the premise that the gathering can take place and then proceed to impose conditions which he would invariably do. The general rule would be to allow a gathering to be held. It is only if the imposing of conditions would not suffice to prevent public disorder, damage to property or disruption of the life of the community, that the commissioner would be entitled, and even then, on a reasonable belief, to prohibit a gathering”. In short, the onus is on the police to show why a protest should not be held. Secondly, the police only has 48 hours after receiving notice of a protest to come to a decision about whether to impose conditions or prohibit it and lastly, “when the commissioner is acting under section 4(3) of the Act to prohibit a gathering, he is exercising an administrative decision, and he is bound to give reasons for his refusal to allow a gathering to be held”. In Bizlall’s case, the police did give such a reason; so the prohibition against Bizlall’s party from demonstrating against the ‘Francophonie’ summit was upheld. 

The second case came a decade later in 2003 and this was the police not giving permission to the General Worker’s Federation and 28 other trade unions, social organizations and political parties to hold a protest against the African Growth and Opportunity Act (AGOA) summit in Mauritius as well as the policies of then-US President George W. Bush. In that case, it was the PC who did not reply on time (well after the 48-hour time window within which to lodge his objections after being notified of the upcoming protest). And secondly, the PC did not come up with a good excuse to bar the protest when in a letter he said that he was not allowing the protest because “as the AGOA conference will be in progress, no public gathering, or procession will be allowed as the force will be fully taken up with the commitments in connection with the said conference”. The Supreme Court was not sparing in its scathing criticism towards government lawyers arguing on behalf of the PC, with the court ruling that the argument was “nothing less than preposterous and should be a cause of concern for those who wish to preserve a certain standard at the State Law Office by putting a premium on soundness of legal reasoning on the part of legal professionals with an independence of mind which could allow them, on matters of law and of legal reasoning, not to be blinded by their client’s objectives”. 

The commissioner did not come up with a good reason and the court was criticising state lawyers for parroting that in court. The decision of the PC was quashed. Although the courts in both of these cases came to different conclusions, their reasoning was the same: nobody needs the permission of the police to protest in Mauritius and if the police have a problem with a protest, it is the police that have to explain why. In one case, it succeeded in doing so, in the other, it failed. So, if the courts have been clear that no such police permission is needed either under the current PGA or its pre-1991 predecessor, the POA, where are the police – and the current PC – getting the idea that Mauritians need their permission to protest?

4) Taking advantage of the PGA

The confusion deepens if you look at smaller protests. Under section 2(a) of the PGA, a public meeting is defined as “an assembly of 12 or more persons, wherever convened or organized for any purpose…”. So, starting in the late 1990s, organizations such as the All Worker’s Conference started taking advantage of this; “since the PGA defined gatherings as 12 or more people, organizations under the conference proposed having small gatherings of 11 people or less that would not even need to notify the police,” argues Seegobin, “since then, these types of small protests have been very common”. For smaller protests of less than 12 people, the PC does not even need to be informed, let alone, asking for his permission. For larger ones, the PC has to be merely informed under the law, with the commissioner having to come up with a reason for not holding the protest. 

In the case of the police giving the impression that they need to give the green light for any protest, “this is just the police commissioner inventing this, and the police trying to give themselves powers that the law itself does not,” says Seegobin. But he adds that this is just not a problem limited to the current commissioner: “It’s a much wider problem, part of it is about the police still thinking that just as under colonial times they have total power over the population and part of it is just ignorance.” Between the ignorance of the police and misleading the population, it’s an old game with Seegobin recalling an incident in 2010 when his party wanted to protest against the UK setting up a marine-protected area in the Chagos. He was informed by the police that the protest had to be cleared by the ministry of public infrastructure. When threatened with taking the case to the Supreme Court, the police swiftly backed down. There was no hope that such an argument could hope to survive in front of a judge in chambers. This was not an isolated incident: “Very often the police lodges all sorts of objections only to withdraw them as soon as we start going to court,” concludes Seegobin. 

The problem for Bhuckory is that the PGA itself has to be made clearer: “Right now if somebody wants to hold a protest they have to inform the police commissioner, and when the police commissioner does not want that protest to take place, the law does not impose a duty on him to give a reason for his objection unless the matter goes to court. This is an intended loophole to maximize the discretion of the police.” It is such discretion outside the courts that allows the police to pretend that they have powers that the law does not give them.