“Ady Macauley’s Comment Does Not Present a Clear and Present Danger”- Legal Scholar Opines
Author: Issa Francis Kamara, Esq.
The investigation into the August 10 uprising is necessary to protect Sierra Leone’s democracy. Moreover, the investigators should follow the facts of the August 10 riot wherever it leads and prosecute the perpetrators to the full extent of the law. Democracy is an instrument that ensures every individual, high or low, the freedom to pursue their life’s goals in various forms. Without freedom of speech, democracy will wither and wilt. Although broad, the freedom of speech is not absolute. Certain speeches, such as inciting violence, which is so pernicious to liberty, fall outside the contours of protection. The police arrested Ady Macauley in connection with the August 10 investigation because of his comments on AYV Television.
In the interview on AVY Television, Ady Macauley responded to a question about the planned protest by saying that no one needs to notify the Inspector General of Police or apply for a permit to protest. As a professed strict constructionist, he argued that the use of the word “procession” in Section 17(1) of the Public Order Act (1965) does not include “protest.”
Any person who intends to take part or takes part in organising or holding any procession shall first notify the Commissioner of Police in writing of his intention to do so and any person who fails to give such notification as aforesaid shall be guilty of an offence.
He read the dictionary definition of a procession, which does not include protest. He also said that even though some might think it is “stupid” advice, he would provide “free legal representation” to anyone who protests without a permit.
In regulating free speech and incitement, the law distinguishes between mere advocacy and incitement. Incitement proximately causes an immediate and imminent breach of the law. Ady’s comment came a few days before the August 10 insurgence. Therefore, it was not a clear and present danger. Neither did it proximately cause an immediate breach of the peace. Nor is there a clear nexus with the August 10 incident. Unless the police have some more evidence, his speech on TV falls in the borders of protected speech, even though it was badly misguided.
If Ady thought his interpretation of the statute was correct, the wise action would have been to challenge the statute’s application in a court of law and not provide advice to anyone to protest without a permit, especially in the milieu of menacing and violent rhetoric. Even assuming the statute does not require a permit to protest, the police can arrest and prosecute protesters under Section 4(1) of the same statute and other laws for violence and other crimes.
However, Ady’s interpretation of Section 17 of the Public Order Act (1965) is wrong. Historically, a permit is required to make sure that the police are there to protect the protesters and the public. However, they could refuse to issue a permit if the police have actionable intelligence of intent or a threat to cause violence to life and property or overthrow the government. This act has become a lightning rod among many lawyers in Sierra Leone because previous administrations have used it as a form of prior restraint on speech—an odious violation of free speech.
As a strict constructionist, Ady relied on the ordinary meaning rule in construing procession in Section 17(1). The plain or ordinary meaning rule is deeply rooted in the Anglo-American legal interpretive tradition, which uses dictionaries and textual cannons to interpret statutes. The exception to the plain meaning rule is when reading the words in ordinary English usage would result in absurdity or suggests a scrivener’s error (mistake by the draftsman). It is strange for a statute on public order to require a permit for an orderly ceremony but not protests, which carries substantial risk. Therefore, it must be a scrivener’s error if a procession does not include protest.
Also, strict constructionists use dictionaries to precisely pin down the meaning of words. Ady used a contemporary English meaning of procession. A proper strict constructionist reading would have used a dictionary published in 1965 or one contemporaneous with the time Parliament promulgated the statute. Also, a strict constructionist would consider the technical meaning over ordinary usage. There is an analogous English statute with the same title, Public Order Act (1986), and a similar provision, Processions and Assemblies. The English Public Order Act (1986) repealed the Public Order Act (1936) to address the Southhall riot (1979), the Brixton riot (1981), and other disturbances. The statute defines a procession thus: to “demonstrate support for or opposition to the views or actions of any person or body of persons, (b) to publicise a cause or campaign, or (c) to mark or commemorate an event.” The English Public Order Act (1986) distinguishes imposing conditions on procession, assembly, and one-person protest. It is, therefore, suggestive that a procession includes a protest by more than one person. The English Public Order Act allows the police to deny permits under certain circumstances.
Moreover, a statute should be interpreted holistically to maintain its integrity. The title of the statute is the Public Order Act. Although there is no mention of the word protest in the statute, reading it in a way that excludes protests capable of causing substantial public disorder would be odd. Section 17(c) exceptions for other types of a procession, such as funerals, circumcision, marriage, scouts, and girl’s guide, are instructive that its focal concern is with processions that can cause severe public disorder, such as protests and rallies. This brief exploration clarifies that a procession is capacious enough to encompass protest.
Because of their considerable influence and learning, lawyers have an enormous responsibility to help protect Sierra Leone’s democracy and freedom against a mortal threat. As such, lawyers should play a prominent role in politics and be change-makers. They should also take that responsibility seriously. Hopefully, this incident does not scare or spook other lawyers from weighing in on the nation’s legal and political issues. Parliament should use this opportunity to amend the statute.
