1. Freedom of Peaceful Assembly (and of Association)
Dr Daria Davitti
Lund University, Law Faculty
3 December 2018

2. Is this right important? Why?

3. Freedom of Assembly: Instruments
UDHR Art 20(1)
ICCPR Art 21 (and Art 22 on association)
ICESCR Art 8 (more on association)
ICERD Arts 4 and 5(ix)
CEDAW Art 7(c)
CRC Art 15
ILO Conventions No. 87, 98 and 135
African Charter Arts 10 and 11
ECHR Art 10
American Convention on HR Arts 15 and 16

4. What is ‘Assembly’?
Org. for Security and Co-operation in Europe (OSCE) definition in Guidelines on Freedom of Peaceful Assembly:
‘Assembly means the intentional and temporary presence of a number of individuals in a public place [or private] for a common expressive purpose’
NB: link to freedom of speech BUT difference
Dangers of conflating the two?
Time, place, and manner in which these rights can be exercised

5. A Few Questions… Can peaceful assembly be disruptive?
Examples of ‘disruptive’?
Who decides the terms of an assembly?
Do protesters need permission and/or an agreed route?
Is there such a thing as an illegal or unlawful assembly? --

7. In case of violence/destruction…
Do peaceful protesters maintain the right to free assembly?
What is the obligation vested on the authorities in case of violence?
ensure rights of those who participate and affected; facilitate an enabling environment; distinguish
Can they order dispersal?
Is the use of force an option?
If no, why not?
If yes, to what extent?

10. Management of Assemblies (1)
What rights to protesters have?
Not only peaceful assembly
Also expression, association and belief; participation in the conduct of public affairs; bodily integrity (incl. rights to security, to be free from cruel, inhuman or degrading treatment or punishment and to life; dignity; privacy); and
And an effective remedy for all human rights violations

11. Management of Assemblies (2)
What about violent protesters?
As a result of violence, they forfeit their right to peaceful assembly
BUT they retain all the other rights, subject to the normal limitations
NO assembly should therefore be considered unprotected

12. Possible Restrictions to the Right
Lawfulness & non-discrimination
Legitimate and formal basis in law (legality principle), as must the mandate and powers of the restricting authority
Law itself must be sufficiently precise
Proportionality: measure must be
Appropriate to achieve its protective function but least intrusive of broad range available
Narrowly tailored to specific aims and concerns of authorities, and take into account an analysis of the full range of rights involved in the proposed assembly

13. Mlungwana and Others v S and Another (1)
Section 12(1)(a) of the Regulation of Gatherings Act 205 (1993)
Makes it a criminal offence to convene an assembly of more than 15 people without first notifying the responsible officer of a municipality, even if such a gathering is peaceful and unarmed
Held unconstitutional and invalid on 19 November 2018 by South African Constitutional Court

14. Mlungwana and Others v S and Another (2)
Unanimously held that
Criminalising the failure by the convener of a gathering to give notice of an assembly of more than 15 people limits the right to assemble peacefully and unarmed, enshrined in section 17 of the Constitution
Criminalisation deters the exercise of the right to assemble, and deterrence by its very nature limits the exercise of this right

15. Mlungwana and Others v S and Another (3) – Arguments
Respondents:
Purpose of criminalising the failure to give notice was to ensure authorities are prepared and can reduce violence
Court:
It unduly limits the right to peaceful assembly; e.g. definitions of “gatherings” and “conveners” are overly broad
Criminalisation results in criminal record and exposure to the penal system
No distinction between adult and child conveners in Section 12

16. Any Question?