The University of Pretoria (UP) has played an instrumental role in supporting the drafting of General Comment 37 (2020) of the United Nations (UN) Human Rights Committee, which offers global guidance on peaceful assembly.

Professor Christof Heyns, an expert in human rights law at the Centre for Human Rights at UP, was the rapporteur (main drafter) of the committee that published the General Comment in July this year. He worked with colleagues and students involved in the Freedom from Violence project based in the Faculty of Law.

Prof Heyns made a presentation alongside Secretary-General of the UN António Guterres at the UN General Assembly event about peaceful assembly.

The General Comment clarifies the status of several publicly contested facets of the right to protest. It provides that the right to peaceful assembly applies indoors and outdoors, and in private and public spaces, and breaks new ground by recognising that the right of peaceful assembly applies not only offline but also online. Movements such as #Metoo are thus covered.

“Over the past two years, we developed General Comment 37 on the right of peaceful assembly,” says Prof Heyns. “We also drafted another document with the Office of the High Commission of Human Rights, which is called the UN Human Rights Guidance on Less Lethal Weapons; this was also released in July this year. These two documents summarise and restate the international law standards and UN standards on peaceful and not-so-peaceful assembly.”

The function of the UN Human Rights Committee is to monitor the Covenant on Civil and Political Rights, which deals with freedoms such as the right to life, the right against torture and the right of freedom of expression. The committee monitors the extent to which the 173 member states comply with these rights, for example, by hearing cases that come from the highest courts in these countries.

During his presentation at the General Assembly event, Prof Heyns said South Africa’s laws are quite progressive and are largely in line with international standards, where the governing of peaceful protests and the use of force is concerned. Yet, like many other states, the country still makes use of excessive force during assemblies, more specifically, during the enforcement of lockdown regulations.

“Part of the problem is probably training,” he says. “But many people also point to the police culture of using force. During lockdown in particular, we saw the deployment of the military, here and in other countries. They are not trained to carry out public order policing, and have a completely different approach to the use of force. And, of course, South Africa is a very violent society. In many cases, the police find themselves in situations where they fear for their safety and feel the need to protect themselves – that also plays a role in the use of force.”

Prof Heyns emphasised that the role of these two documents was to guide states and provide clarity on what their obligations and rights are. The goal is to create an environment where member states empower citizens with enough knowledge about what their rights and responsibilities are when it comes to assembly; law enforcement agencies are also reminded of what their roles are.

“The role of these two documents is to set out the rules of the game in advance,” Prof Heyns explains. “So that the police know what should be allowed, and also so that citizens know that they are not protected by the right to peaceful assembly if they use violence, but that they are still protected against excessive force.”

Prof Heyns explains the basics: “The first one is that it’s a peaceful assembly that’s protected. This doesn’t mean that if one person in a crowd is violent that everybody in the crowd may no longer demonstrate. But if there’s ‘serious and widespread’ violence in the group, then the gathering is no longer protected. If you engage in violence yourself, then you are not protected. That includes threatening violence or intending to be violent, or if violence is imminent on your side.

“The state may regulate the time, place and manner of demonstrations, but it may not regulate the content of demonstrations. So even if you’re promoting an unpopular idea, you still have the right to peaceful assembly. However, the state doesn’t have complete licence to regulate time, manner and place – it must have a good reason to say you can go down this street and not the other. Also, people must be able to conduct demonstrations ‘within sight and sound’ of their audience. So it’s no good for the state to tell you, as it does in some countries, that you can go to a soccer field outside the city to shout as much as you want.”

With COVID-19, there will be some restrictions around how many people are allowed to gather, he adds. “In principle, this is acceptable for public health reasons. The state may for public health reasons restrict assemblies, but only if the facts justify it: so they cannot disallow demonstrations for the next two years because of COVID.”

Click here to read General Comment 37.

Click here for commentary on the General Comment.