The right to peaceful assembly and the COVID-19 pandemic: a threatened right; an ironic connection

Author: Foluso Adegalu
Centre for Human Rights, University of Pretoria

The right to peaceful assembly enables individuals to express themselves collectively and to participate in shaping their societies and can be of particular importance to marginalised and disenfranchised members of society. The right to peaceful assembly entails a legitimate use of the public space. Although the exercise of the right to peaceful assembly is normally understood to pertain to the physical gathering of persons, comparable human rights protections also apply to acts of collective expression through digital means, for example online gatherings.

The right to peaceful assembly is guaranteed under both international and national laws. The right to peaceful assembly is guaranteed under article 11 of the African Charter on Human and Peoples’ Rights, which provides that:

every individual shall have the right to assemble freely with others. 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.

It is also guaranteed in article 21 of the International Covenant on Civil and Political Rights (ICCPR), which provides that

the right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right 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 (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

The right to peaceful assembly is also provided for in the provisions of the bill of rights of most African Constitutions.

Like many other rights, the right to assembly is not an absolute right, and can be legitimately restricted in the interests of national security; public safety; public order (ordre public); the protection of public health; morals; or the protection of the rights and freedoms of others. However, Restrictions are not permissible unless they can be shown to have been provided for by law, and are necessary and proportionate to the permissible grounds provided for by international law. Thus, the test of validity of the restriction on the right to assembly is namely the cumulative requirements of legality, necessity and proportionality – A restriction must be legal, necessary and proportionate.

One of the major strategies that have been adopted by most African states in combating the spread of the COVID-19 is the principle of “social distancing” or “physical distancing.” The principle of social distancing simply means that people are required to keep physical space between themselves and other persons; social distancing entails avoiding crowded places and mass gatherings. Because of the nature of the right to assembly which usually requires physical public gathering, alongside the right to freedom of movement, the right to assembly is in the forefront of human rights that has been severely limited, restricted or absolutely prohibited by most African states as part of measures adopted to address the spread of COVID-19. Example of restrictions imposed by African states on the right to peaceful assembly include:

1. Non-prohibition:
   Countries like Botswana and Rwanda have so far placed no express ban on the right to peaceful assembly in terms of any regulation issued in response to the COVID-19
2. Partial prohibition:
   Some African countries have issued regulations or laws that limit public gatherings to certain number of persons. For instance, Togo & Malawi have restricted public gatherings to a maximum of 100 persons; Angola, Eswatini, Cameroon & Nigeria have restricted public gatherings to a maximum of 50 persons; Comoros restricted public gathering to a maximum of 20 persons; Eritrea, Namibia & Liberia have also restricted public gathering to a maximum of 10 persons.
3. Absolute prohibition:
   Algeria, Burkina Faso, Mozambique, Uganda, Ghana, Ethiopia and South Africa are some of the African countries that have placed absolute ban on public/physical gathering.

Notwithstanding the crucial role of social distancing in curbing the spread of the COVID-19 and the high connection between the violation of social distancing requirements and the exercise of the right to assembly, recent developments in Africa have shown that the right to assembly may inevitably have its role to play in the sustenance of measures and policies that are put in place by states to address the COVID-19 pandemic.

The response of African states to the COVID-19 pandemic has received mixed reactions from different section of the society. A blanket approach adopted by some African states has resulted in inadequate policies that neglect the needs of some sections of the society. Some of the policies put in place by African states disproportionately affects certain segment of the society who need to collectively express their grievances against policies that adversely affect them or the lack of policies to attend to their unique needs. In most instances, these category of persons are at a disadvantage and do not usually belong to the elitist section of the society that have access to the digital space to collectively express their concerns or response to policies put in place by government to curb the spread of the COVID-19 pandemic.  As such, these categories of persons may have to ultimately make recourse to some sort of physical gathering to collectively express their common intentions.

In addition to being used as a tool to voice their grievances, freedom of assembly in the physical space can also serve as a useful tool for access to information in a continent where the vast majority of the population is not connected to the digital world. Some form of physical assembly can be used by civil society actors, and community leaders to educate some sections of the populace who have limited access to the internet and other electronic media (due to poverty and or illiteracy) about COVID-19, the mode of transmission, the ways to prevent the transmission and to keep them informed about the palliative measures that the government is putting in place to cushion the harsh economic realities of COVID-19 measures. In this regard, the absolute prohibition of physical assembly may unintentionally deprive certain section of the population of the right of access to information. For instance, there have been different videos on social media where some members of society express their opinion about the COVID-19 pandemic and seem to be completely lost about what COVID-19 entails in its entirety. Some regulated form of physical assembly may, in addition to other existing communication mechanisms like community radios, loudspeakers, may help to educate some sections of the society about the COVID-19 crisis.

The need to adopt a human rights approach to measures adopted by African states has been reiterated by the African Commission. In addition to ensuring respect for existing human rights obligations of states, as explained above, a human rights approach to combatting COVID-19 can also offer other additional benefits that can complement the overall efforts of African states in combating the COVID-19. Since African states are coming up with different measures and regulations to respond to COVID-19, there is the need to accommodate the opinions of people who may want to collectively respond to government policies or the aftermath of certain government policies as it disproportionately affects them during the covid-19 crisis and may not have access to or influence in the digital space. At the moment, in most African state regulations that have placed absolute prohibition on freedom of assembly, there is a misconceived merger and absence of clarity on gatherings that are meant for the expression of common intentions and other forms of public gatherings or outdoor activities like sports, cultural and recreational activities. This is the situation in Uganda and Ethiopia where the government placed a general ban on all activities that may attract mass gatherings. The right to freedom of assembly cannot and should not be conflated with “any form of gathering. The absolute prohibition of the freedom of assembly by some African states amounts to derogation from the provision of article 11 of the African Charter on Human and Peoples’ Rights. In the case of Media Rights Agenda v Nigeria, the African Commission on Human and Peoples’ Rights held that the rights guaranteed in the Charter are non-derogable and can only be limited on grounds of: the exercise of other rights, collective security, morality and common interest. Without any doubt, the limitation of rights during COVID-19 pandemic is in the common interest of all, but in order to comply with the African Charter, states must leave an opportunity for limited exercise of rights guaranteed in the African Charter.

The right of people to collectively express their common intention without access to the digital space seems to be a forgotten right during the COVID-19 pandemic, but the right also has a paradoxical relationship with the control of the pandemic in Africa. In a continent where access to digital space and other basic amenities like electricity are luxuries beyond the reach of the bulk of the society, the freedom of assembly can help to point government towards the right directions as per policy responses and it can also help to educate a large part of the society.

Of course, the right to freedom of assembly cannot be exercised at a maximum level during the COVID-19 pandemic. Organisers of assemblies should have the obligations to put in place stringent measures of prevention and control; and adherence to social distancing during the exercise of the right to peaceful assembly. Organisers should also ensure that the number of persons is reasonable with consideration for intended space and time. On 22 April, 2020, over 2000 people gathered at the Rabin Square in Tel Aviv to protest against embattled Israeli’s Prime Minister, Benjamin Netanyahu. The protesters wore face masks and assembled on designated marks at least six feet apart. Undoubtedly, the exercise of the right to freedom of peaceful assembly in the physical space will have to adapt to the COVID-19 pandemic. As the Rabin Square protest of 22 April 2020 has shown, the pandemic should not spell the end for the exercise of the right to freedom of peaceful assembly.

About the Author

Foluso Adegalu is a Doctoral Researcher at the Centre for Human Rights, University of Pretoria. His area of research includes human rights monitoring, civic rights and disability rights.