Certain governments in East Africa have recently come under scrutiny for cracking down on peaceful protests. Yet freedom of assembly is a fundamental right enshrined in international law and in the constitutions of these nations.
2011 was a watershed year for the protest movement, with huge protests across the Arab world resulting in the toppling of long-standing regimes. 'The Protestor' was even named Time Person of the Year for 2011. Protests were, of course, not just limited to the Middle East and North Africa though, with demonstrations taking place in Asia, Europe, the Americas and Sub-Saharan Africa. Tragically however, many protests were brutally repressed by the ruling regimes, resulting in killings, torture, excessive use of force and unlawful arrest and detention.
In light of these violent responses to generally peaceful protests, the United Nations Human Rights Council has passed a resolution requesting the UN High Commissioner for Human Rights to report on "effective measures and best practices" to ensure that human rights are protected during peaceful protests.
This resolution, and the future subsequent report, is of importance for the nations of the East African Community, some of whom have come under international, regional and/or national scrutiny recently in relation to policing of public assemblies.
FUNDAMENTAL RIGHT
The right to peaceful assembly is enshrined in international human rights law and the national constitutions of all five EAC states. Under international law, no restriction can be placed on the freedom to assemble except for 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".
But when is a restriction "necessary in a democratic society" in the interests of public order and safety?
The UN Special Rapporteur on the Rights to Peaceful Assembly and Association, Kenyan Maina Kiai, recently addressed this question in his own report setting out best practice. His report will inform the UN High Commissioner's future report.
In his report, Kiai refers to the well-regarded "Key Guiding Principles of Freedom of Association with an Emphasis on Non-Governmental Organizations", which state that a restriction is deemed "necessary" when there is a "pressing social need for the interference". After such a need arises, the country must only put in place restrictions that are acceptable in a "democratic society". Kiai refers to longstanding legal jurisprudence which clearly states that a democratic society is one where "pluralism, tolerance and broadmindedness" exist. Therefore any restriction on the right to peaceful assembly must not undermine these key doctrines.
BEST PRACTICE
Kiai also outlines best practice in protecting the right to peaceful assembly in his report, some of which are summarized below.
Presumption in favour of holding peaceful assemblies: National laws should state that there is a presumption in favour of facilitating peaceful protests. This includes not requiring 'authorisation' for a public assembly, but at the most, only requiring organisers to notify the police. The Special Rapporteur stresses that any notification procedure should be clear and simple, and should ideally only be required for large meetings or meetings which may disrupt traffic. He also states that, where an assembly is denied or limited, prompt and detailed written reasons should be provided, and the decision should also be able to be appealed before a court.
No sanctions for lack of notification: Importantly for the EAC states, Kiai recommends that, where the organisers of a public assembly do not meet all the notification requirements, the assembly should not be automatically stopped and the organisers should not be subject to penalties. Provisions such as these currently exist in some of the national laws of the EAC states, such as in Tanzania, and should be removed.
Protection for protestors: Kiai stresses that governments have an active duty to protect the rights of their citizens to peacefully assemble, including protecting them from people trying to unlawfully disrupt or shut down peaceful assemblies. He is clear in stating that protestors do not lose their right to peaceful assembly just because others in the same demonstration may turn violent, and that organisers and participants should not be held responsible or liable for the violent behaviour of others. Uganda should take note of this, and consider removing responsibility and liability from organisers of public assemblies from the draft Public Order Management Bill.
Right to life is paramount: Police should ensure that the right to life is protected when policing public assemblies and that no one is subjected to arbitrary or excessive use of force. States should remember that the duty to protect citizens' right to life is above that of maintaining public order. Kiai refers to the view of Special Rapporteur for extrajudicial, summary or arbitrary executions who states that "the only circumstances warranting use of firearms…is the imminent threat of death or serious injury". The EAC nation states should remember this, and in particular Uganda, where it has been widely documented that unnecessary lethal use of force was used in the Walk-to-Work protests.
Monitoring peaceful assemblies: It is best practice to allow observers, including journalists, to observe and document assemblies, to monitor the conduct of participants and the police.
EAST AFRICA CONTEXT
Recently in East Africa, there have been allegations of officials shutting down peaceful assemblies that are perceived to be a "threat" to the government. This is a clear breach of international law, and in most cases the constitutions of each EAC nation state. Further, in some countries, it has been documented that firearms and excessive force have been used arbitrarily in policing of demonstrations; contrary to human rights standards.
It's time to protect the fundamental right of citizens to peacefully assemble and voice their opinion – it's a basic and essential way for the public to participate in national affairs. The EAC nations should implement the best practice recommendations of the Special Rapporteur, and closely consider the future report of the UN High Commissioner on Human Rights. Such action will only act to strengthen the reputation of the EAC as a group of democratic, secure, law-abiding nations.
Sarah Mount is Programme Officer, Access to Justice Programme, Commonwealth Human Rights Initiative.
