Reform needed in the laws of demonstrations in Africa

Author: Prof Christof Heyns
Professor of Human Rights Law; Co-director, Institute for International and Comparative Law in Africa at the University of Pretoria; United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions

Many lives have recently been lost in Africa, as in other parts of the world, when demonstrations have turned fatally violent. This has been clearly seen inthe countries of the so-called Arab Spring, but numerous Sub-Saharan countries – Nigeria, Ivory Coast, Senegal, Malawi and South Africa come to mind – have also experienced violent and indeed deadly marches.

These demonstrations reveal the need to bring the legal and policy regimes that govern such expressions of popular opinion into line with human rights standards.

For example, the laws on the statute books that deal with mass gatherings in Egyptdate from 1914 and 1923. To make matters worse, these laws were suspended under a state of emergency that has lasted, with very little interruption, since 1967.

The pattern in many other countries on the continent is the same – laws from colonial times that pre-date the advent of international human rights and national constitutions continue to grant law enforcement officials wide-ranging powers to use lethal force to suppress democratic activity. In effect police officers in many countrieshave the right to create what can only be viewed as a mini state of emergency when they encounter public protest – but one where the right to life can be suspended – and to proceed with very little restraint.

It is not likely that this issue will disappear. In the urban areas, there are growing concentrations of young people whoare politically aware, open to new ideas and adept with modern communication technology that allows them to gather in an instant. Their energy is fuelled by a growing awareness of human rights and the relative depravation experienced by looking at the comparative wealth and freedom of other parts of the world.

As the Arab Spring has demonstrated so vividly, ideas are contagious, and once they start spreading, it is too late to change the rules of engagement. Sociological studies confirm that when groups are subjected to what they perceive as excessive and indiscriminate force, they also engage in what they otherwise would regard as irrational behaviour: violence escalates in a vicious cycle, leaving people dead on all sides. Libya and further afield, Syria, are vivid demonstrations of this dynamic.

For a recent study that I submitted to the Human Rights Council (A/HRC/17/28), a group of researchers at the Institute for International and Comparative Law in Africa gathered the laws from 76 countries around the world that set out the powers of the police to use lethal force. 15 of these countries are from Africa. The laws, as well as the report, may be found at www.up.ac.za/icla.

A review of these laws shows that the colonial model followed around the world in the last century was left intact upon independence. For example, the laws of a number of former British colonies in Africa (and elsewhere) have provisions allowing the police an almost unfettered discretion to use force against assemblies of more than 12 people. These laws not only violate international standards but also in many instances national constitutions.

The laws of many democratic countries, word-wide and on the continent, take a different approach to public demonstrations. Demonstrations are not necessarily seen as manifestations of hostilityagainst the state that must be suppressed as harshly as possible. Instead, they are expressions of public opinion that should be managed by the state to protect the interests and security of the demonstrators, the state and society as a whole.

In the Human Rights Council report I have outlined a number of principles that underlie modern demonstration laws. One of these is the so-called ‘safety triangle’.  This principle captures the need for the police, political leaders, and protest organisers to communicate, including using modern technology, with each other before and during the protestas the parties that are jointly responsible.

Laws and legal principles alone are not enough. What is needed is a culture of tolerance of different opinions, even when forcefully expressed. Of particular importance, the training and prevailing ethos in the police must be reviewed on an on-going basis. Managing crowds in a way that preserves the peace rather than inflaming violence is a challenge that requires advance planning and training, and the availability of protective gear for the police and less-lethal equipment.

I challenge lawyers across the continent toexaminetheir countries’ laws on the use of force by the police and measure them against human rights norms (and please provide us with copies of your laws where we do not have them!). The eventual legislative provisions will differ from country to country. It is therefore important that within each country thelegislatures, politicians, law reform commissions and the practitioners and law professors who advise them undertake a collective effort to find the formulation that will suit its needs and cultures. This may also be an area that calls for a model law on the continental or sub-regional level.

There is capacity available on the continent and abroad to help with such reforms, to ensure that the specific needs of the country in question are met. Wewould be glad to put those who want to engage in such reforms in contact with those who can provide technical assistance.  If we act nowmany lives can be saved and unnecessary escalations of conflict be avoided.

About the Author:
Christof Heyns is Professor of Human Rights Law at the University of Pretoria, and United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions.