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Transparency and Accountability at the Frontlines of Justice: Freedom of Assembly

Transparencia y rendición de cuentas en la vanguardia de la justicia: Libertad de asociación

Black Lives Matter protest

OVERVIEW

Enshrined in international law and an established global norm, the freedom of peaceful assembly is a fundamental right to collectively express, promote, pursue, and defend a common interest without fear of retribution. Beyond its normative value, freedom of assembly is essential to the functioning of open government and for healthy societies. For participation to be meaningful and effective, it cannot be limited to elections or formal, “invited” channels of engagement with officials. Freedom of peaceful assembly is also a critical form of political participation in a healthy civil society. It shapes debate, public policies, and strengthens governance by allowing diverse and different ideas to be expressed and heard, including the voices of minority or opposition groups.

Recent protests in the United States and beyond highlight the importance of establishing democratic norms and institutions to uphold the right to assemble, especially under the strain of social and health crises. There are a number of concrete actions OGP member countries can take, from creating channels for citizen expression to establishing guidelines that inform state responses to online and offline protests. Ultimately, designing legal and institutional protections for public assembly during times of peace will help countries maintain their democracies during times of turmoil.

RECOMMENDATIONS FOR GOVERNMENTS

  • Adopt the right: Adopt the right to assemble, placing the duty to define exceptions on the government.
  • Authorization: Enact regulations to ensure that no authorization is required to hold an assembly as stated by internationally agreed standards.
  • Police protocols: Establish open, clear, and ethical protocols addressing police conduct prior to, during, and following protests. This should include minimal use of force.
  • Police training: Train police officers in proportionate responses and requirements for the use of police at assemblies.
  • Legalize assembly: Decriminalize assembly activities, including clear regulations of this process.
  • Proportionate penalties: Only apply criminal or administrative liability that is compliant with well-proscribed law to protestors. This would include the proportionate application and use of civil and administrative fines and penalties for violations.
  • Surveillance and data collection: Provide consistent, publicly accessible standards and processes for destroying, preserving, accessing, or expunging data, in particular data gained through digital surveillance and facial recognition software.
  • Virtual human rights: Ensure cybersecurity measures and laws uphold human rights online, including freedom of assembly and the right to privacy.
  • Internet access: Guarantee unobstructed access to social platforms and the broader web at all times to allow mobilizing, sharing, and creating content.
  • Oversight of non-state actors: Provide for government oversight and industry standards regarding non-state actors, such as private security forces, to maximize safety and right to assemble.

RELEVANT ACTIONS

Citizen Involvement in Parades in Northern Ireland

In Northern Ireland, parades, processions, carnivals, and commemorations are core to cultural, political, and religious traditions. Unfortunately, parades have been marred by— and are sometimes the impetus for—sectarian violence. In 1998, preceding the Good Friday accords, the Northern Ireland Parades Commission was established to approve permits for parades. While it is not without critics, its establishment offers two positive lessons for countries struggling to balance public order and safety with freedom of assembly:

  • Remove the police from decision-making around parades. The first major accomplishment of the Parades Commission was to remove the permitting decision from the police department (previously the Royal Ulster Constabulary, now the Police Service of Northern Ireland). This allowed the police to focus on maintaining public order rather than judging the legitimacy of each parade.
  • Allow citizen voices in monitoring freedom of assembly. The quasi-judicial body is made of citizens that compete for nominations by the Secretary of State of Northern Ireland.

Despite initial success, there has been concern about the Parades Commission. In 2013, at the invitation of the UK government, the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association issued a report on the sensitive issue. The Northern Ireland Human Rights Commission followed with another report on how best to balance the competing demands for assembly and security. The two human rights bodies’ reports, followed by action by the Parades Commission, resulted in a framework called “Resolution by Dialogue.” It mapped the competing considerations of different human rights (e.g., freedom from violence and religious freedom) and invited participants and affected communities, including minority groups, to suggest improvements. The Resolution also emphasizes voluntary dialogue as a necessary first step before escalation to legal means such as banning a particular parade.

Demonstrators’ Early Response in Uganda

The Ugandan constitution guarantees citizens the freedom to assemble and demonstrate peacefully. However, laws such as the Public Order Management Act (POMA) give police wide-ranging power to regulate and prevent public meetings. This provision has enabled the police to justify arresting and detaining opposition leaders and their supporters at political rallies.

In the face of these challenges, CSOs have stepped up to defend the freedom of assembly. In 2016, Solidarity Uganda—a nonprofit organization that builds capacity with community-based organizations—created a rapid response system to assist protesters facing state-sponsored violence and repression. Operated full-time, the system has an emergency hotline that protesters and others can call for emergency assistance. When activists are arrested, the hotline coordinator connects them with a pro bono lawyer who assists with bail and representation if they choose to sue the state. The organization also provides medical and psychosocial care.

INTERNATIONAL NORMS AND GUIDANCE

The UN Special Rapporteur’s Guidance on Freedom of Assembly

In 2010, the United Nations Human Rights Council established the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association. The rapporteur uses a set of guidelines and indicators to assess how a country manages assemblies. These indicators include:

  • State duty to respect and ensure freedom of assembly;
  • The inalienable right to take part in peaceful assemblies;
  • Limited restrictions on the right to peacefully assemble;
  • Facilitation of the right to peacefully assemble;
  • The right to observe, monitor, and record assemblies;
  • Access to information on police protocols and training; and
  • State accountability.

The UN “Draft General Comment No. 37 on Article 21 (Right of Peaceful Assembly) of the International Covenant on Civil and Political Rights”

The Human Rights Committee is currently completing a General Comment on the Right to Peaceful Assembly that provides guidance on the scope of the right to peaceful assembly, state obligations, restrictions, notification and authorization, law enforcement agencies’ duties and powers, and assembly during states of emergency and armed conflict.

OSCE Guidelines on Freedom of Assembly

Starting in 2007, the regional Organization for Security and Co-operation in Europe (OSCE) produced guidelines to assist members in aligning their legislation with agreed European and international standards on freedom of assembly. This effort aims to provide countries with different models to regulate the right to free assembly. In particular, the guidelines address:

  • Legitimate grounds for restricting the freedom of assembly;
  • Procedural issues (including spontaneous assemblies and counter-demonstrations);
  • Independent monitoring of assemblies; and
  • Use of force and monitors for independent oversight of assembly.

OGP COMMITMENTS IN THIS AREA

  1. Nigeria (2019–2021): The National Human Rights Commission committed to improving rights to freedom of association, assembly, and expression by creating channels for citizens to voice their policy concerns and regulatory safeguards against undue monitoring of civil society.
  2. Ukraine (2012–2013): The first action plan worked to develop a draft law, “On Procedure of Organising and Conducting Peaceful Events.” Various ministries, from Justice and the Interior, as well as the Cabinet of Ministers, were actively engaged in the process.
  3. Italy (2016–2018): Italy adopted a commitment to promote its Charter of Internet Rights, which was approved by the legislature in 2015. This commitment sought to increase the public and officials’ understanding of the links between on and offline rights, including basic civil liberties such as assembly.

RESOURCES AND PARTNERS

Resources

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Featured Photo Credit: Julian Wan via Unsplash

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