RIGHT TO FREELY ASSEMBLE under ARTICLE 11 OF THE AFRICAN CHARTER
The right to freedom of peaceful assembly is the right to gather publicly or privately and collectively express, promote, pursue and defend common interests. It is an essential part of activities of political parties, unions or pressure groups, and of the electoral processes especially if the conducts of such elections are to ensure the free expressions of the opinion of the people.Everyone has the right to freedom of peaceful assembly. This is a right closely linked to the right to freedom of expression. It provides a means for public expression and is one of the foundations of a democratic society.
The right to freely assemble bears its roots from an important international treaty called the 1948 universal declaration of human rights which stipulates in article 20 that “everyone has the right to freedom of peaceful assembly and association”
The right to demonstrate is closely related to the rights of freedom of association, assembly and expression, all of which are guaranteed by the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and People’s Rights.
Article 11 of the African Charter has that “every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others”. Individuals are much more likely to get their message across when they assemble than when they act individually. The right to assemble therefore facilitates the collective voicing of opinions and grievances. The term ‘assembly’ covers meetings, picketing, protest marches and demonstrations, as long as the assemblers aim to express a common opinion, and the size of the assembly is not material.
In Communication 91/93, in the case of Commission Internationale de Juristes v Togo, the Commission found that the shooting at peaceful demonstrators by the Togolese military on 30th January 1993 was a violation of the right to assembly. In this case however, the Commission held that these were acts committed under a previous administration and was satisfied that the present administration has dealt with the issues satisfactorily.
The purpose of the right is to protect assembly as a means of communicating opinion. Therefore the assembly must be ‘peaceful’ and unarmed. Actions or laws aimed against armed or violent assemblies will not constitute an infringement of the right to assemble. As the Commission noted in Communication 137/94, 139/94, 154/96, 161/97, in the case of International PEN, Constitutional Rights Project, and Civil Liberties Organisation, Interights (on behalf of Ken Saro-Wiwa Jr.) v Nigeria, preventing a person from attending a rally can adversely affect the right to assembly.
It is worth noting that, contrary to state practice such as requiring assemblers to first seek permit from authorities and the letter in turn arbitrarily deciding whether or not to grant such permit, this is not what the ICCPR and other international and regional instruments seek to achieve as it expressly mentions that restrictions can only be in place in conditions ‘which are necessary’. Any restrictions therefore must meet a strict test of necessity and proportionality. A better interpretation of such restriction clause on the exercise of the right to freedom of assembly is that assemblers should “notify” authorities rather than “seek permission” from them. Thus, while the provision makes available for the possibility that the law may require prior notification of demonstration, this has been misinterpreted in practice as a requirement to obtain authorisation. A good example of such misinterpretation under domestic laws is section 5 of the Public Order Act, laws of the Gambia.
The UN Special Rapporteur on the rights to freedom of peaceful assembly and association, Maina Kiai, has underlined that states have a positive obligation under international human rights law not only to actively protect peaceful assemblies, but to facilitate the exercise of the right to freedom of peaceful assembly. Additional, as per article 1 of the African Charter, there is a positive obligation on states to guarantee and protect the exercise of right to freedom of assembly.
