Keeping assemblies peaceful: UP’s Centre for Human Rights helps set the international standard

Posted on December 22, 2020

When Professor Tawana Kupe, Vice-Chancellor of the University of Pretoria (UP), welcomed viewers of a recent webinar with “Good afternoon, good evening, good morning to everybody,” he wasn’t being facetious.

Attendees had tuned in from across the globe to the Global Webinar on Peaceful (and not so peaceful) Assemblies: A Fresh Look at the International Standards. The chat facility alone featured viewers from about 30 countries, including Somalia, Rwanda, Morocco, Namibia, the Democratic Republic of Congo, Nepal, Chile, Singapore, the Philippines, Mexico, Vietnam, Hungary and the UK.

UP played an integral part in the webinar. Its Centre for Human Rights (CHR) co-hosted it with the United Nations (UN) Office of the High Commissioner for Human Rights (OHCHR), and Prof Kupe was a keynote speaker, alongside New York-based Ilze Brands Kehris, the UN Assistant Secretary General for Human Rights who, in her previous position, was a member of the UN Human Rights Committee that drafted the documents under discussion.

                       

UP Vice-Chancellor Professor Tawana Kupe was a keynote speaker at the event.

Professor Frans Viljoen, Director of the CHR, co-moderated the discussion with Abigail Noko, Regional Representative of the UN OHCHR for Southern Africa. UP's Professor of Human Rights Law Christof Heyns was one of the eminent panellists: not only is he a member of the  committee that drew up the documents but he also played a leadership role as its rapporteur. UP was “particularly proud” of Prof Heyns, said Prof Kupe.

The documents, issued in July 2020, are what is known as “soft law”, and set the international standards for the way societies should deal with the worldwide phenomenon of protests and demonstrations, referred to as assemblies. They are the General Comment 37 on the Right of Peaceful Assembly, and the Guidance on Less-Lethal Weapons in Law Enforcement.

Prof Kupe’s address covered their salient points. “The right to peaceful assembly and the judicious use of less lethal weapons in law enforcement is a fundamental human right, and something that every country in the world needs to address,” he said.

General Comment 37 clarifies that the right to peacefully assemble applies indoors and outdoors, in private and public spaces, and, said Prof Kupe, “breaks new ground by recognising that the right applies not only offline, but also online”.

He noted that the guidance on the use of less lethal weapons did not use the term “non-lethal”, given that the use of any weapon could have fatal consequences. Less lethal weapons include police batons, tear gas, tasers, rubber or plastic bullets, water cannons and acoustic weapons.

                    

Professor Frans Viljoen, Director of UP's Centre for Human Rights, co-moderated the discussion.

South Africa has about 12 000 demonstrations per year, and “the right of physical assembly is jealously and constitutionally guarded because it can too easily be taken away”, he said. The documents were “all about trying to prevent atrocities such as Sharpeville” – the South African massacre in March 1960 where police opened fire on several thousand people, killing 69 and injuring more than 250 – and the more recent Marikana massacre.

The guidance emphasises that law enforcement officers shall be trained in the lawful use of force, as well as in how to avoid using force through methods such as de-escalation techniques and mediation. However, as Prof Heyns had pointed out: guidance was one thing and its application another, said Prof Kupe. For example, South African laws on the subject were largely progressive and in line with international standards, but too often excessive force was still used during assemblies, “and during the enforcement of state of emergency controls on public behaviour such as lockdown regulations”.

Part of the problem was cultural and ideological conditioning. “If you have grown up fearing the police, or black people, or white people, or gay people, or men, or people of a different religious persuasion, it requires concerted and ongoing transformation to change this,” said Prof Kupe.

The UN’s 17 Sustainable Development Goals (SDGs) were a good road map for this. They were integral to UP, which was committed to “strengthening an inclusive institutional culture where diversity is valued and welcomed, where different perspectives are respectfully heard, and where every individual feels a sense of belonging and inclusion”, he said.

                        

The UP Centre for Human Rights’ Christof Heyns, who was one of the panellists, is also a member of the  committee that drew up the documents, having played a leadership role as its rapporteur.

Prof Heyns said when assemblies became volatile with a high level of uncertainty, “it is important to know what the rules of the game are, and that these rules are as protective of human rights as possible”. The two UN documents were designed for this purpose.

He said their main cross-cutting features included:

  • The dividing line in assemblies was not about compliance with domestic law, but whether the participants were peaceful or violent. Some level of disruption may have to be accepted as part of peaceful assembly. The fact that notification had not been given cannot be a criminal offence and make the assembly itself unlawful;
  • Blanket bans and zero tolerance approaches were not acceptedand isolated acts of violence by some participants should not be attributed to others. Only where there was serious and widespread violence could the entire assembly be regarded as violent, and force be used;
  • The right to peaceful assembly was not an absolute right and may be limited, but any restriction had to be justified. Generally participants may wear face masks, or conceal their identity – online as well – but not where their conduct constituted reasonable grounds for arrest; and
  • “The devil lies in the details” meant that emerging technologies that enabled mass surveillance, and assemblies on private property, would require further attention.

Perspectives from the other panellists included:

  • Clément Nyaletsossi Voule, UN Special Rapporteur, on the freedoms of assembly and association:  Many governments use COVID-19 as a pretext to restrict assemblies and so cancel any opposition. The right to peaceful assembly is not a privilege but a fundamental right to be enjoyed by everybody, including foreigners and migrants – documented or undocumented;
  • Commissioner Luis Carrilho, Police Advisor to the Police Division of the UN Department of Peace Operations: “Every police officer should be a human rights officer; I would say every police officer is a human rights officer.” Policing should be undertaken by appropriately trained and equipped police, not the military. Assemblies include processions, candlelight vigils and flash mobs; and
  • Francesca Fanucci, Senior Legal Advisor to the European Centre for Not-for-Profit Law (ECNL): Her organisation, which represents civil society, advocated for peaceful assembly to be the topic of this general comment. She commended the drafting process for being fully inclusive and participatory, and including regional consultations in Europe, MENA (Middle East and North Africa), Latin America, South Africa and Asia.

*The presentation of the fifth panellist, Barbara Fontana, Head of the Human Rights Section of the Permanent Mission of Switzerland to the UN in Geneva, was unfortunately not documented here because of a technical problem with the French-to-English translation.

Watch the full webinar below.

- Author Gillian Anstey
Published by Hlengiwe Mnguni

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