AMERICAN BAR ASSOCIATION
CENTER FOR HUMAN RIGHTS
WASHINGTON, DC
DATE:
May 5, 2016
TO:
Interested Persons
FROM:
ABA Center for Human Rights
RE:
Preliminary Analysis of Swaziland’s 2016 Public Order Bill and the Right to
Freedom of Assembly under International Human Rights Law
The American Bar Association (ABA) Center for Human Rights1 has conducted a preliminary
analysis of the Kingdom of Swaziland’s (Swaziland) current draft Public Order Bill (the Bill).
The Center determined that several provisions of the Bill may be inconsistent with Swaziland’s
treaty obligations.2 First, the Bill’s prior notification requirements appear to pose a
disproportionate restriction on the right to freedom of assembly by requiring a lengthy
notification process and failing to explicitly provide an exception for spontaneous assemblies.
Second, the Bill appears to impose criminal liability on organizers for providing false
information without requiring that they knew or should have known the information was false.
Third, the Bill imposes an unnecessary ban on all gatherings within 100 meters of certain
government buildings. Finally, and most egregious in the Center’s preliminary review, is that
the definition of a gathering in the Bill, which triggers its notification and liability requirements,
appears to expressly target those seeking to assemble to express political opinions.
Legal Analysis
Freedom of Assembly
The right to freedom of peaceful assembly is a fundamental human right that is essential for
public expression of one’s views and opinions and, as such, is indispensable in a democratic
society. Article 14 of the Constitution of Swaziland guarantees its citizens the right to freely and
peacefully assemble.3 In addition, Swaziland is a State Party to the International Covenant on
1
This statement was prepared by the Justice Defenders program of the American Bar Association, Center for
Human Rights. The views expressed herein have not been approved by the House of Delegates or the Board of
Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of
the American Bar Association.
2
This is a preliminary review only. There are potentially additional areas of concern that will be explored in a full
analysis, including various other broad provisions related to criminal offenses set forth in the Bill.
3
Article 14 (3) of the Constitution provides that restrictions to the right to freedom of assembly are subject to the
rights and freedoms of others and for the public interest.
1
Civil and Political Rights (ICCPR)4 and the African Charter on Human and Peoples’ Rights
(African Charter), which guarantee freedom of assembly in Articles 21 and 11, respectively. It is
not an absolute right, however, and may be restricted to the limited extent necessary to pursue a
legitimate government aim. Swaziland’s Constitution states that it may be restricted to protect
the rights of others or in the “public interest.” More specifically, the ICCPR and African
Charter, in substantially similar language, explain that the right may be limited only where such
limits are 1) imposed by law, 2) necessary, 3) proportionate, and 4) advance one of several
enumerated legitimate State interests, including national security or the rights and well-being of
others.5
Prior Notification
One of the concerns regarding the Bill is the requirement that organizers notify the authorities
seven days in advance of any public gathering of 15 or more people, with criminal liability
imposed for failing to provide at least 48-hour notice.6 Generally, prior notification procedures
are compatible with international human rights law where they are necessary to enable State
authorities to adequately facilitate assemblies, as part of their obligation to ensure enjoyment of
the right, or to maintain public order, public safety or promote the rights and freedoms of others.7
However, such restrictions must still be proportionate and limited to the extent necessary to
achieve the legitimate aim. For this reason, it is international best practice to only require
notification where a substantial number of people are expected or where organizers reasonably
expect the gathering may disrupt others.8 In this regard, there is no internationally accepted
maximum amount of time for a notification requirement before it becomes an undue burden,
although the UN Special Rapporteur on freedom of association and assembly has recommended
a maximum of 48 hours prior to the assembly9 and the Council of Europe’s Venice Commission
has indicated a four day period is reasonable.10 The African Commission on Human and
4
Article 21(2) of the ICCPR provides that “[n]o restrictions may be placed on the exercise of this right [to freely
assemble] other than those imposed in conformity with the law and which are necessary in a democratic society in
the interests of national security or public safety, public order (order public), the protection of public health or
morals or the protection of the rights and freedoms of others.” Article 11 of the African Charter provides that “the
exercise of this right shall be subject only to necessary restrictions provided for by law, in particular those enacted in
the interest of national security, the safety, health, ethics and rights and freedoms of others.”
5
Id.
6
Article 6(1) of the Bill states that an organizer of a gathering shall give the local authority at least seven days’
notice before the date of the intended gathering while Article 6(4) states that “any gathering in respect of which
notice of at least 48 hours as contemplated in subsection (2) has not been given shall be unlawful and any person
taking part in such gathering shall be guilty on an offence.”
7
See United Nations Human Rights Council, Report of the Special Rapporteur on the Rights of Freedom of Peaceful
Assembly and Association, at para. 52 and 90, U.N. Doc. A/HRC/20/27 (May 21, 2012). In his report, the UN
Special Rapporteur on freedom of association and assembly, a special mandate holder of the UN Human Rights
Committee, recommends that the notification procedure “be subject to a proportionality assessment, not unduly
bureaucratic and be required a maximum of, for example, 48 hours prior to the day the assembly is planned to take
place.” Id., para. 52.
8
See ICNL, Freedom of Assembly: Procedures for Permission and Notification,
available at http://dev01.icnl.org/demo/assembly/wp-content/uploads/2014/09/Permission-Notification.pdf, see also
Neil Jarman and Michael Hamilton, “Protecting Peaceful Protest: The OSCE/ODIHR and Freedom of Peaceful
Assembly”, 1 Journal of Human Rights Practice 2, 218 (2009).
9
Id.
10
Council of Europe, Venice Commission, Opinion 638/2011, para. 62 (October 17, 2011).
2
Peoples’ Rights’ (the African Commission) Study Group on the Right to Freedom of Assembly
in Africa has stated that notification should not be required too far in advance but has not
indicated any exact period.11
Similarly, there is no internationally accepted minimum number of persons at which notification
is reasonably imposed. For example, in the Republic of Moldova, any assembly of fewer than 50
participants may take place without prior notification while in the United Kingdom notification
is only required for processions and not for static assemblies.12 Neighboring South Africa’s
Public Gathering Act also requires seven days notification for any public gathering of 15 or more
persons, although it should be noted that this has been characterized as a barrier to peaceful
assembly in the country by the International Center for Not-For-Profit Law (ICNL).13
Overall, the seven day notification period does not appear so egregious on its face as to
constitute a per se violation of the right to freedom of assembly, although it is clearly outside of
the recommended 48 hours that has been put forward as international best practice. Similarly,
although 15 appears a relatively small number to trigger notification requirements, it does not
appear to amount to a per se violation of international law.
Prior Notification and Criminal Liability for Convenors and Participants
Article 6(2) of the Bill provides that where it is not possible to give seven days’ notice, at least
48 hours prior notice should be given. If the convenor fails to comply, Article 6(4) declares that
the gathering shall be unlawful and any person participating in such an event shall be guilty of an
offence.14 This provision appears inconsistent with international standards in two important
ways. First, it constitutes a total ban on spontaneous assemblies, which appears on its face to be
a disproportionate restriction as it completely denies the exercise of the right. Second, it imposes
criminal liability for failures to meet its notification requirements, which appears
disproportionate as it would impose criminal sanctions on organizers of assemblies where no
violence or other criminal activity or disruption occurred.
The African Commission’s Study Group on Freedom of Association and Assembly has explicitly
stated that there should be no notification requirements for spontaneous assemblies and that
States should explicitly carve out an exception for spontaneous assemblies, such as occur in
response to a particular political decision.15 Similarly, the U.N. Special Rapporteur has
recommended that States recognize spontaneous assemblies and exempt them from prior
11
African Commission, Report of the Study Group on Freedom of Association and Assembly in Africa, 25 (2014)
available at http://www.achpr.org/files/special-mechanisms/human-rightsdefenders/report_of_the_study_group_on_freedom_of_association__assembly_in_africa.pdf
12
Article 19, Mynmar, Legal Analysis. Amended Right to Peaceful Assembly and Peaceful procession Law, August
2014.
13
International Center for Not-For-Profit Law, Report on South Africa, available at
http://www.icnl.org/research/monitor/southafrica.html (last updated January 2016).
14
Article 6 (4) Any gathering in respect of which notice of at least 48 hours as contemplated in subsection (2) has
not been given shall be unlawful and any person taking part in such gathering shall be guilty on an offence.
15
African Commission, Report of the Study Group on Freedom of Association and Assembly in Africa, 61 (2014).
3
notification requirements.16 And the European Court of Human Rights17 has held that ‘in special
circumstances when an immediate response, in the form of a demonstration, to a political event
might be justified, a decision to disband the ensuing, peaceful assembly solely because of the
absence of the requisite prior notice, without any illegal conduct by the participants, amounts to a
disproportionate restriction on freedom of peaceful assembly.”18
Another concern raised is the possibility of criminal sanctions for organizers for property
damage committed by others during a demonstration. Under international law, criminal
sanctions imposed on one individual for the actions of another are only permitted if the
individual specifically intended to, and engaged in substantial steps toward, a criminal objective.
Organizers of public events therefore may not be held responsible for property damage by others
without evidence that they specifically intended for such damage to occur.
Moreover, the definition of “convenor” is impermissibly vague. Article 4 of the Bill requires
organizers of a gathering to designate a convenor and deputy. Article 5 goes on to state that
should the organizers fail to designate a convenor, then any person who has either taken any part
in the planning or organizing of the event or, through others, inviting any part of the public to
attend the gathering will be deemed a convenor for the purposes of the Act.
This is a strikingly broad definition given that the Bill imposes criminal liability on convenors
for failing to provide adequate notification of a gathering, in addition to criminal liability upon
anyone who knowingly participates in a gathering that is unlawful pursuant to Article 6(4)
(discussed above). As a result, any individual who forwards information about a demonstration
via social media could potentially qualify as a convenor under this definition and, as a result,
could potentially be given a criminal sentence for participation in a peaceful assembly. This
vague and overbroad provision fails to provide the legally required clarity necessary to put
individuals on notice of their potential liability.
In addition, Article 15(1) (c) imposes criminal liability for providing false information to the
authorities. In general, criminal offenses should include an intent requirement, i.e. that the
offender knew or should have known the information was false at the time. In contrast, other
subsections to Article 15(1) include a requirement that the offender have knowingly violated the
Bill, such as Article 15(1) (e) which criminalizes knowingly participating in a gathering that has
been prohibited. Without such a requirement, the Bill could potentially allow prosecutions for
organizers where larger numbers attend than they estimated in their official notification, as
16
United Nations Human Rights Council, Report of the Special Rapporteur on the Rights of Freedom of Peaceful
Assembly and Association, at p. 91 – specific recommendation, U.N. Doc. A/HRC/20/27 (May 21, 2012);
17
The ICCPR, the African Charter, and the European Convention on Human Rights use nearly identical terms to
describe permissible restrictions on the right to freedom of peaceful assembly. The decisions of the European Court
on Human Rights (ECtHR) are therefore relevant to an understanding of the rights and responsibilities outlined in
these related human rights instruments.
18
European Court of Human Rights [hereinafter ECtHR], Bukta and Others v. Hungary, at para. 36, Application No. 25691/04
(2007). ‘…in special circumstances when an immediate response, in the form of a demonstration, to a political event might be
justified, a decision to disband the ensuing, peaceful assembly solely because of the absence of the requisite prior notice without
any illegal conduct by the participants, amounts to a disproportionate restriction on freedom of peaceful assembly.’ See also
ECtHR, Molnar v Hungary, Application No. 10346/05, para 38 for the understanding of special circumstances. ‘Special
circumstances’ refers to cases in which an immediate response to a current event is warranted in the form of a demonstration.
4
Russia has done recently where the number of participants did not match the anticipated number
submitted to authorities.19
“No-Go” Zones
Article 2 of the Bill stipulates that a gathering may not be held in any building in which a court
room or a national or local representative organ of the state is situated, or within 100 meters
radius of such building, unless written permission has been obtained. The choice of where, how
and when an assembly will take place is an important aspect of the right to freedom of assembly
and should be the choice of the organizers. In some instances, these considerations are symbolic
to the message of the assembly. Furthermore, assemblies should be within “sight and sound” of
the target audience so that the message they (organizers and participants) want to convey reaches
this target audience.20
The UN Special Rapporteur, speaking on blanket restrictions, or bans, on time, location, or any
other aspect of the assembly, has emphasized that these are intrinsically disproportionate and
thus to be avoided.21 Similarly, the African Commission’s Study Group on Freedom of
Assembly in Africa recommended that States refrain from any blanket restrictions. 22 In this
instance, the Bill appears to be imposing such a restriction in violation of international standards.
Freedom of Expression
Article 2 of the Bill appears to explicitly target gatherings for expressing opinions or demands
related to government policy, political institutions, and other areas of public concern. It defines a
gathering as:
“… any assembly, concourse or procession of 15 or more people in a public place
(a) at which the principles, policy, actions or failure to act of any government, political
party or political organisation, whether or not that party or organisation is registered in
terms of any applicable law, are discussed, attacked, criticized, promoted or propagated;
or
(b) convened or held to form pressure groups, to hand over petitions to any person, or to
mobilize or demonstrate support for or opposition to the views, principles, policy, actions
or omissions of any person or body of persons or institution, including any government,
administration or governmental institution.”
Articles 9 and 21 of the African Charter and the ICCPR guarantee the right to freedom of
expression and association, respectively. Where States limit the enjoyment of either right such
19
UN General Assembly, Report of the Special Rapporteur on the Rights of Freedom of Peaceful Assembly and of Association
20
OSCE/ODIHR and the Venice Commission, Guidelines on Freedom of Peaceful Assembly, para. 99 and 101. See
also UN General Assembly report of the Special Rapporteur on the Rights to peaceful Assembly and of Association,
A/HRC/23/39
21
UN General Assembly, Report of the Special Rapporteur on the Rights of Freedom of Peaceful Assembly and of
Association, para. 25, U.N. Doc, A/68/299. See also A/HRC/29/25 Add.1, para. 29 and A/HRC/23/39 Add.1, para.
62.
22
African Commission, Report of the Study Group on Freedom of Assembly, 63 (2014).
5
restrictions must be prescribed by law and necessary and proportionate to achieving a legitimate
State aim, as discussed above in relation to freedom of assembly. Indeed, the right to freedom of
assembly is intrinsically intertwined with the right to freedom of expression, a necessary means
by which persons may join together for expressive purposes. Traditionally, this has been a vital
way in which people may peacefully express support or opposition to government policies and
stir public debate on matters of public interest.
States are not permitted to limit the right of assembly in a manner that discriminates between
different viewpoints. Such discrimination serves no legitimate State interest.
Indeed, expressions of political views, including collective expressions of these views through
public assemblies, are afforded heightened protection under international law as a means to
uphold democratic governance. For example, in finding that a law imposing criminal sanctions
for the defamation of a public official violated Article 9 of the African Charter, the African Court
on Human and Peoples’ Rights explained that such expression was entitled to heightened
protection, not less, in the interest of encouraging public debate as such severe penalties risked
chilling necessary public discourse on matters of public interest.23 Similarly, a law placing
additional burdens on the right to assemble peacefully where the gathering is attempting to
express so-called political speech is per se a violation of the ICCPR and the African Charter. In
this instance, the Public Order Bill imposes a notification scheme only upon the defined
“gatherings” and requires no such notification for “events,” defined in Article 2 as “any
assembly of 15 or more people in a public place, other than a gathering, which is held
exclusively for cultural, recreational, charitable, religious, professional, trade, or similar
purposes.” By subjecting “gatherings” to far greater regulation and interference than “events,”
the current Bill’s regulatory scheme for assemblies violates the rights to freedom of expression
and assembly as guaranteed by both the ICCPR and African Charter.
Conclusion
Although the Bill has several progressive features, several provisions of the Bill do not comply
with Swaziland’s international obligations, nor meet the conditions for legitimate restrictions to
the right to freedom of peaceful assembly. It should be revised to: 1) provide an exception for
spontaneous gatherings, 2) replace any criminal sanctions for non-compliance with notice
requirements with proportionate civil sanctions, 3) include a specific intent requirement for
provisions concerning false information, 4) remove the blanket restriction on assemblies within
100 feet of government buildings, and 5) remove sections (a) and (b) of Article 2 and erase the
disparate treatment of “gatherings” and “events” on the basis of political expression.
23
Issa Konaté v. Burkina Faso, Af. Ct. of Human and Peoples’ Rights, App. No. 004/2013 (2014), available at
http://www.ijrcenter.org/wp-content/uploads/2015/02/Konate-Decision-English.pdf.
6