ADVANCE NOTIFICATION VIS-À-VIS THE LAW OF PEACEFUL ASSEMBLY AND PROTEST

ADVANCE NOTIFICATION VIS-À-VIS THE LAW OF PEACEFUL ASSEMBLY AND PROTEST

In every part of the world, you will find that whenever the citizens of a country wish to bring certain issues to the ears of their governments, they most often times embark on peaceful assembly and protest, which ultimately helps to drive government’s attention to those issues that bothers them. Protesting without the use of violence has had an abundant appearance throughout history. From t-shirt printing and picket signs, to public assembly and mass marching, many different non-violent protest methods have been thoroughly explored and implemented over the years. In fact, the right to a peaceful protest is an intrinsic part of any democratic society. This is however not an absolute right, with some qualifications and restrictions existing due to the threat posed by terrorism and also when concerned with anti-social behavior.

According to the United Nations Human Rights Council Report of March 2016, the ability to assemble and act collectively is vital to democratic, economic, social and personal development, and to the expression of ideas and to promote an engaged citizenry. Assemblies can make a positive contribution to the development of democratic systems and alongside elections, play a fundamental role in public participation, holding governments accountable and expressing the will of the people as part of the democratic processes.
Christof Heyns, the U.N Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions opines that “Assemblies are not a novel phenomenon – people taking to the street have played an important role in shaping our world and the development of the human rights system…Assemblies present opportunities as well as challenges, depending on how they are managed by everyone involved’’.

Yet despite the increasingly prominent role that assemblies play in today’s world, there remains a lack of clear understanding of the applicable international human rights law and standards, especially in the area of restrictions on the enjoyment of this right. Such as when can a State require advance notification of an assembly for instance? Can authorities place limits on the time, place or manner that protests are conducted? What are the State’s duties in terms of facilitating peaceful assemblies?

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 applies to protest marches and demonstrations, press conferences, public and private meetings, counter-demonstrations etc. The right only applies to peaceful gatherings and does not protect intentionally violent protests. There may be interference with the right to protest if the authorities prevent a demonstration from going ahead; halt a demonstration; take steps in advance of a demonstration in order to disrupt it; and store personal information on people because of their involvement in a demonstration. The right to peaceful assembly cannot be interfered with merely because there is disagreement with the views of the protesters or because it is likely to be inconvenient and cause a nuisance or there might be tension and heated exchange between opposing groups. There is a positive obligation on the State to take reasonable steps to facilitate the right to freedom of assembly, and to protect participants in peaceful demonstrations from disruption by others.

The rights to freedom of peaceful assembly and of association serve as a vehicle for the exercise of many other civil, cultural, economic, political and social rights. The rights are essential components of democracy as they empower men and women to ‘express their political opinions, engage in literary and artistic pursuits and other cultural, economic and social activities, engage in religious observances or other beliefs, form and join trade unions and cooperatives, and elect leaders to represent their interests and hold them accountable’. Such interdependence and interrelatedness with other rights make them a valuable indicator of a State’s respect for the enjoyment of many other human rights.

The right to freedom of peaceful assembly is guaranteed in Article 21 of the International Covenant on Civil and Political Rights (ICCPR) and the right to freedom of association in Article 22. They are also reflected in Article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and in other specific international and regional human rights treaties or instruments, including Article 5 of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms 1999.

However, according to Article 4 of the International Covenant on Civil and Political Rights (ICCPR), the right of peaceful assembly and the right to freedom of association are not absolute rights; as there are certain restrictions that have come to be accepted internationally. The UN Special Rapporteur also emphasizes that only “certain” restrictions may be applied, which clearly means that freedom is to be considered the rule and its restriction the exception. He refers to General comment No. 27 (1999) of the Human Rights Committee on Freedom of Movement: “in adopting laws providing for restrictions…States should always be guided by the principle that the restrictions must not impair the essence of the right…the relation between right and restriction, between norm and exception, must not be reversed”. As a result, when States would like to restrict these rights, all the above conditions must be met. Any restrictions must therefore be motivated by one of the above limited interests, have a legal basis (be ‘prescribed by law’, which implies that the law must be accessible and its provisions must be formulated with sufficient precision) and be ‘necessary in a democratic society’.

Article 11 of the European Convention on Human Rights sheds light on what amounts to a qualified right and as such the right to protest and the freedom of association may be limited so long as the limitation:
a. is prescribed by law;
b. is necessary and proportionate; and
c. pursues a legitimate aim, namely:
1. the interests of national security or public safety;
2. the prevention of disorder or crime;
3. the protection of health or morals; or
4. the protection of the rights and freedoms of others.

The requirement to give notice of plans to stage an assembly in advance will not necessarily breach the right to protest as long as notification doesn’t become a hidden obstacle to exercising freedom of assembly. Article 11(2) of the European Convention on Human Rights also states that this right will not prevent lawful restrictions being placed on the exercise of these rights by members of the armed forces, the police or the administration of the State. However, this has been narrowly interpreted to require convincing and compelling reasons for any such restrictions to be valid.

It should however be generally noted that the State has both a positive and a negative obligation if the right to peaceful assembly is to be enjoyed by its citizenry. As opined by the UN Special Rapporteur, States have a positive obligation to actively protect peaceful assemblies. Such obligation includes the protection of participants of peaceful assemblies from individuals or groups of individuals, including agents’ provocateurs and counter-demonstrators, who aim at disrupting or dispersing such assemblies. Such individuals include those belonging to the State apparatus or working on its behalf.

Furthermore, States also have a negative obligation not to unduly interfere with the right to peaceful assembly. The UN Special Rapporteur considers as best practice “laws governing freedom of assembly [that] both avoid blanket time and location prohibitions, and provide for the possibility of other less intrusive restrictions…Prohibition should be a measure of last resort and the authorities may prohibit a peaceful assembly only when a less restrictive response would not achieve the legitimate aim(s) pursued by the authorities.”

According to the Organization for Security and Cooperation in Europe (OSCE/ODIHR) in it’s ‘‘Guidelines on Freedom of Peaceful Assembly (Second edition)’’, it states that It is good practice to require notification only when a substantial number of participants are expected or only for certain types of assembly. In some jurisdictions there is no notice requirement for small assemblies, or where no significant disruption of others is reasonably anticipated by the organizers (such as might require the redirection of traffic). Any notification process should not be onerous or bureaucratic, as this would undermine the freedom to assemble by discouraging those who might wish to hold an assembly. Furthermore, the period of notice should not be unnecessarily lengthy (normally no more than a few days prior to the event), but should still allow adequate time for the relevant state authorities to plan and prepare (for example, by deploying police officers, equipment, etc.).

OSCE/ODIHR further argues for ‘Notification, not authorization’, stating that any legal provisions concerning advance notification should require the organizers to submit a notice of the intent to hold an assembly, but not a request for permission. A permit requirement is more prone to abuse than a notification requirement, and may accord insufficient value to the fundamental freedom to assemble and the corresponding principle that everything not regulated by law should be presumed to be lawful. It is significant that, in a number of jurisdictions, permit procedures have been declared unconstitutional. Nonetheless, a permit requirement based on a legal presumption that a permit for the use of a public place will be issued (unless the regulatory authorities can provide evidence to justify a denial) can serve the same purpose as advance notification.

Countries in which a permit is required are encouraged to amend domestic legislation so as to require only notification. Any permit system must clearly prescribe in law the criteria for issuance of a permit. In addition, the criteria should be confined to considerations of time, place and manner, and should not provide a basis for content-based regulation. The authorities must not deny the right to assemble peacefully simply because they disagree with the merits of holding an event for the organizers’ stated purpose.

It is our hope that nations of the world like Nigeria that still practice or have in place the regime of obtaining permit before a peaceful assembly can be held would turn a new leaf and move forward in the advancement of the enjoyment of the human rights of its citizens to peaceful assembly and association. It our desire to see societies progress ensuring that human rights are respected and not derogated by the whims and caprices of the government of the day.

Lanre Adedeji