ACHPR Considers Draft Guidelines on Freedom of Association and Assembly

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A demonstration in Johannesburg against Xenophobia
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The African Commission on Human and Peoples’ Rights (ACHPR) has prepared a draft of its forthcoming Guidelines on Freedom of Association as Pertaining to Civil Society and Guidelines on Peaceful Assembly (Draft Guidelines) to be presented at its 59th Ordinary Session, which began this week in Banjul, the Gambia. [ACHPR: Explanatory Note; ACHPR Press Release] The Study Group on Freedom of Association and Assembly, a specially appointed task force of civil society organizations, prepared the Draft Guidelines under the oversight of the Special Rapporteur on the Situation of Human Rights Defenders in Africa, Commissioner Reine Alapini-Gansou and with reference to its 2014 Report of the Study Group on Freedom of Association & Assembly in Africa. [ACHPR: Press Release] The Draft Guidelines lay down principles that strengthen and protect the rights of association and of assembly with the goal of assisting States in the region in implementing legal frameworks and adopting legislation pertaining to those rights. [ACHPR: Explanatory Note] The ACHPR invited input on the draft ahead of the current session. [ACHPR Press Release]

Main Principles and Focus of the Guidelines

The Draft Guidelines are intended to help States fulfill the rights to freedom of association and of assembly as set out in articles 10 and 11 of the African Charter on Human and Peoples’ Rights, a binding regional instrument to which all 54 States in the African Union are a party. The Draft Guidelines highlight concerns over the arbitrary and excessive restrictions on these rights, and note that such restrictions limit the potential for a free and open society. See Draft Guidelines, at 1-2. The ACHPR has called these rights “enabling rights” because they allow civil society to bring about change. [ACHPR: Explanatory Note]

The Draft Guidelines are limited to issues concerning civil society organizations and do not touch on other matters also falling under the right to freedom of association, such as issues regarding trade unions or political parties. [ACHPR: Explanatory Note] The focus on civil society is the result of concerns over some States’ practice of obstructing civil society’s participation in different sectors of society; concerns over the “chilling effect” of retaliations on civil society actors; and concerns over the excessive use of force used at assemblies and that sometimes results in extrajudicial killings. See Draft Guidelines, at 2.

The Draft Guidelines follow key principles of interpretation in international law, including that restrictions placed on the exercise of the rights to association and assembly must meet the principle of legality, must be for a legitimate purpose, and must be proportional to that purpose. [ACHPR: Explanatory Note] The principle of legality requires that any restrictions imposed are prescribed by law, which necessitates that they are in place prior to the act in question and that they are clear enough for a person to understand and to follow. A legitimate purpose requires not only that the end goal of the restriction is legitimate but also that the connection between the end goal and the restriction imposed is clear and rational. Finally, the principle of proportionality requires first, that the restriction is necessary and proportionate to achieve the legitimate purpose in a democratic society and second, that the means of achieving the legitimate end in question are the least burdensome available. [ACHPR: Explanatory Note]

Standards Identified in the Text

The 10 fundamental principles laid out in the Draft Guidelines emphasize States’ obligations to enable open and free public participation and to interfere only when necessary to protect other rights; to only restrict the rights to association and assembly by law for a legitimate purpose and when necessary; to use force only as a last resort and only to protect the rights of others; to ensure that authorities tasked with oversight are independent; to ensure that sanctions are clear, transparent, strictly proportionate, and imposed only as a matter of last resort; and to provide a remedy in cases of violations of the rights to association and assembly. See Draft Guidelines, at 5.

The text separates the right to freedom of association and the right to freedom of assembly. The guidelines define an association, in part, as “a not-for-profit grouping of persons brought together with a common interest,” and outline the criteria to acquire legal personality. Additionally, the guidelines provide key principles for the State, including that “[human] rights organizations shall be subject to legal regimes no more strict than those applicable to associations generally.” See id. at 6-10. States have an obligation, the text outlines, to establish mechanisms that enable associations to consult and initiate dialogue with public authorities in order to influence law and policy. See id. at 12-13. The guidelines emphasize the appropriate parameters regarding associations’ finances, including the supervision of finances, acquisition of funding, and receipt of public support. See id. at 17-20.

Similarly, the text defines an assembly as “an intentional and temporary gathering in a private or public space for a specific purpose,” and describes peaceful assemblies, specifying that “[isolated] acts of violence do not render an assembly as a whole non-peaceful.” See id. at 26-27. The Draft Guidelines again provide key principles for the State in implementing legislation and practice that guarantees the right to association, including the principle that participation in assemblies constitutes a right, not a privilege. See id. at 28. Additionally, the text prohibits States from implementing blanket prohibitions on conditions of assemblies, and it requires States to ensure the protection of assemblies from interference by third parties or non-State actors. See id. at 31-36.

The text also includes, in particular, provisions explaining what qualifies as permissible and impermissible restrictions to both rights, obligations to ensure accountability, and a framework for sanctions when the rights to association and assembly are violated. On restrictions, the guidelines provide specific rules relating to the purpose and activities of an association and on the content of assemblies, including the principle that hate speech and content that incites violence is not protected at an assembly. See id. at 11-12, 30. For both rights, the Draft Guidelines include obligations to establish accountability mechanisms that ensure an independent and accountable oversight bodies that comply with international human rights standards. See id. at 14-15, 40-42. Finally, the Draft Guidelines outline a framework that States should follow in administering sanctions and remedies for violations of the right to freedom of association and the right to freedom of assembly. See id. at 23-25, 43-44.

Sources of Law Considered

The Draft Guidelines refer to and incorporate standards established in a wide variety of human rights instruments, jurisprudence from national courts in Africa, regional human rights courts and monitoring bodies’ decisions, and statements from United Nations treaty bodies and special procedures. For example the definition of “association” draws on the Universal Declaration of Human Rights, a UN Human Rights Council resolution, a report of the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, and a judgment issued by the Nigerian Court of Appeal. See id. at 6. The ACHPR’s own decisions are frequently cited, as are various reports by the UN Special Rapporteur on the rights to freedom of peaceful assembly and association. While the guidelines cite a number of European Court of Human Rights judgments, they make no reference to any decision from the Inter-American Commission on Human Rights (IACHR) or Inter-American Court of Human Rights, although they do refer to the 2008 report of the IACHR Special Rapporteur for Freedom of Expression. See id. at 32.

Background

The Draft Guidelines were developed in accordance with ACHPR Resolution 319, which was adopted on at the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held in November 2015. See ACHPR, Resolution 319 on the Drafting of Guidelines on Freedom of Association and Assembly in Africa (November 2015). The Draft Guidelines are the result of various consultations in Benin and Cote d’Ivore with the Study Group on Freedom of Association and Assembly and other stakeholders. [ACHPR: Press Release] They are based on articles 10 and 11 of the African Charter on Human and Peoples’ Rights and on Article 45(1)(b) of the African Charter, which mandates the Commission to formulate principles and rules to guide African States’ legislation. See Draft Guidelines, at 1.

In 2011, the ACHPR established the Study Group to analyze laws in African States that violated freedom of association and formally appointed International Service for Human Rights, Institute for Human Rights and Development in Africa, West Africa Human Rights Defenders Network, East and Horn of Africa Human Rights Defenders Project, African Centre for Democracy and Human Rights Studies, Cairo Institute for Human Rights Studies, Central Africa Human Rights Defenders Network, and HURISA as its members. See ACHPR, Resolution 186 on the Appointment of Members for a Study Group on Freedom of Association in Africa (12 May 2011). The ACHPR extended the Study Group’s mandate over the years and, in 2015, tasked it with preparing the Draft Guidelines, with the oversight of the Special Rapporteur on Human Rights Defenders in Africa. See ACHPR, Resolution 319 on the Drafting of Guidelines on Freedom of Association and Assembly in Africa.

The Draft Guidelines reflect the content of the Study Group’s earlier report, which expanded upon standards not just established within the African system but also from universal sources, such as reports from the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association. For instance, the Study Group’s report relies on the Special Rapporteur’s expansion of the definition of associations, which includes unregistered associations. The Special Rapporteur has also emphasized that the registration process for associations should be easily accessible and non-discriminatory. The Draft Guidelines follow these principles as well. See Draft Guidelines, at 7-9. Additionally, the guidelines venture beyond ensuring the rights to freedom of association and assembly and also ensure political participation of associations. See id. at 13.

Other Guidance on Freedom of Assembly and Association

While human rights bodies have developed various guidelines and soft law instruments on freedom of expression, there are fewer documents advising States on protecting the freedoms of association and assembly. (Examples of the former include the ACHPR’s Model Law for African States on Access to Information and Declaration of Principles on Free Expression in Africa, and the IACHR’s Declaration of Principles on Freedom of Expression and Freedom of Expression Standards for Free and Inclusive Broadcasting.) Recently, however, the Organization for Security and Co-operation in Europe (OSCE) and Venice Commission of the Council of Europe jointly developed the Guidelines on Freedom of Association (2015). The OSCE also published the Human Rights Handbook on Policing Assemblies (2016), which provides guidance to law enforcement on ensuring the right to peaceful assembly while policing an assembly or other gather. The Draft Guidelines under consideration by the ACHPR do not reference either of these documents, although they do cite the 2012 OSCE and Venice Commission’s Guidelines on Freedom of Peaceful Assembly (2nd ed. 2010).

Additional Information

The Special Rapporteur on the Situation of Human Rights defenders in Africa is a special mechanism established by the African Commission on Human and Peoples’ Rights in 2004 to monitor and promote respect for the rights of human rights defenders on the continent. See ACHPR, Special Rapporteur on Human Rights Defenders. A member of the ACHPR, currently Commissioner Reine Alapini-Gansou, holds the mandate.

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