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African Commission on Human and Peoples' Rights

Report Panel Discussion on Policing and Assemblies 58th Ordinary Session of the ACHPR, 9 April 2016

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The African Commission on Human and Peoples' Rights (ACHPR), in partnership with the African Policing Civilian Oversight Forum (APCOF) and the Danish Institute for Human Rights (DIHR) held a panel discussion on policing and assemblies during the 58th Ordinary Session of the ACHPR.

The event was chaired by Hon. Commissioner Med S.K. Kaggwa, and was one of series of panel discussions convened during successive ACHPR Ordinary Sessions to raise awareness on key issues pertaining to the promotion and protection of human rights in the context of policing. The following is a report on the proceedings of the panel discussion. For further information, please contact the ACHPR Secretariat's Policing and Human Rights Focal Person, Josiane Somdata Tapsoba (tapsobaj@africa-union.org ).

(1)  Introduction: Hon. Commissioner Med. S.K. Kaggwa, ACHPR

The panel discussion was opened by Hon. Commissioner Med S.K. Kaggwa, Special Rapporteur on Prisons, Conditions of Detention and Policing in Africa. He noted that human rights issues prior, during, and following assemblies exist and persist across Africa, and he acknowledged the prominent role that police play in protecting the rights to freedom of assembly and expression. Reflecting on the importance of the right to freedom of peaceful assembly, Commissioner Kaggwa reiterated that the right is not only an important right in itself, but is a critical precondition for the enjoyment of other human rights that are guaranteed in a democratic system. However, Commissioner Kaggwa noted that police actions can violate rights in this context, including through the use of onerous authorisation procedures, the use of force, arbitrary killings, and failure to establish responsibilities following any violence that occurs during assemblies.

Commissioner Kaggwa concluded by providing an update on international and regional advances in relation to policing and assemblies. He started with the work of the United Nations (UN) Special Rapporteur on the right to freedom of peaceful assembly and of association and the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, who released a joint report in March 2016 that provides practical recommendations for the police and other actors for the management of assemblies. He also detailed the recent Report of the Study Group on Freedom of Association and Assembly in Africa, and the adoption by the ACHPR of Resolution 319 on the Drafting of Guidelines on Freedom of Association and Assembly in Africa

(2)  Presentation of the new project on Policing and Freedom of Expression and Assembly: Mr. Ulrik Spliid, DIHR

Mr. Spliid reiterated Commissioner Kaggwa' s link between human rights compliant policing as critical to realising the right to peaceful assembly, noting that the police can make this important right both a reality and an illusion, and thus play a decisive role in the respect, protection and fulfilment of the right to peaceful assembly.

Mr. Spliid reflected on the ongoing collaboration between the ACHPR, DIHR and APCOF to strengthen the ACHPR's work on police and human rights, which most recently includes a collaboration with the Special Rapporteurs on Human Rights Defenders in Africa and on Freedom of Expression and Access to Information in Africa on developing Guidelines to address the policing of assemblies, and other tools during 2016 and 2017. He concluded by providing information on the methodology for the development of the Guidelines, noting that the process will be inclusive and involve State Parties to the African Charter on Human and Peoples' Rights (African Charter), national human rights institutions, civil society organisations, and the police themselves. Consultation will be facilitated by regional consultations, and the work will be aligned to that of the ACHPR Study Group on Freedom of Association and Assembly in Africa.

(3)  Policing and Assemblies in Africa, Achievements and Persisting Issues: Mr. JaphethBiegon,LLD Candidate, Centre for Human Rights, University of Pretoria

Mr. Japheth Biegon spoke about the achievements and persistent issues in relation to the policing of assemblies in Africa. He began by highlighting four key achievements:

·         Recognition of the right to freedom of assembly in many, if not all, African constitutions;

·         A number of countries have shifted their philosophy of assemblies from crowd control to crowd management. This shift promotes effective communication and collaboration between all actors, including local authorities, assembly actors and police. In this regard, Mr. Biegon presented South Africa's Safety Triangles as a good practice; here the law provides for the organisers of assemblies, local authorities and the police to sign an agreement that defines the parameters of the assembly;

·         A number of countries have established independent oversight authorities, some (including the Independent Police Oversight Authority in Kenya) with the specific mandate to monitor assemblies or general policing operations;

·         In recent years, there has been an increase in the establishment of accountability mechanisms to investigate violations committed in the context of assemblies.

In response to a question from the floor during the interactive dialogue, Mr. Biegon highlighted two key challenges that persist in relation to a rights-based approach to policing assemblies in Africa:

·         The requirement for notification: in many countries, authorities require advance notice of holding assemblies. Notifications are not a rights violation, per se, but in many cases the practical application of notification amounts to a permission regime, whereby authorities include onerous bureaucratic requirements in the notification procedure or require notification too far in advance to allow for spontaneous assemblies.

·         Excessive use of force: two issues that contribute to the excessive use of force are (1) the lack of effective coordination between different policing units, and (2) inappropriate equipment available to the police, which violate international prohibitions on the use of automatic weapons in the policing of assemblies. ACHPR General Comment No. 3 on the African Charter on Human and Peoples’ Rights: the Right to Life includes a section on the use of force and is a normative instrument in this regard.

(4)  Vulnerability of Human rights Defenders during Assemblies: Hon. Commissioner Gansou

Commissioner Gansou in her role as Special Rapporteur on Human Rights Defenders in Africa drew links between the importance of a rights-based approach to policing of assemblies and protecting the space in civil society occupied by human rights defenders. She called on all State Parties to the African Charter to recognise the right to peaceful assembly in their constitutions, and to respect and protect the right to assembly. Commissioner Gansou identified the right to assembly as an important right for human rights defenders, and she noted that human rights defenders are subject to police violence (including the use of live ammunition), arbitrary arrests and threats in the context of assemblies. Commissioner Gansou highlighted the importance of women human rights defenders and the critical need to ensure that the work of the ACHPR and its stakeholders take the particular vulnerabilities of women human rights defenders into account.

Commissioner Gansou concluded by highlighting the work of the Study Group on Freedom of Association and Assembly in Africa through Resolution 319 on developing Guidelines on Freedom of Association and Assembly in Africa, and urged all stakeholders to support the ACHPR's work to promote the adoption of special laws to protect human rights across the continent.

(5)  Practical Challenges faced by Police Officers during Assemblies: Madame Rabiatou Ganda Police Commissioner, Technical Adviser to the Director General of the National Police of Niger, Representative of POLI.DH

Madame Rabiatou Ganda provided a perspective on the challenges encountered by the police in the context of assemblies. Noting that the State's first obligation is to guarantee public services and execution of laws and regulations, Madam Ganda highlighted the important role of law enforcement in the maintenance of public order: when public order is threatened, the police are at the forefront of re-establishing order, which must be done within the framework of the law and human rights. In many democratic societies, it is unanimously accepted that some human rights can be limited to ensure the maintenance of law and order, and these are determined by international and national law. The maintenance of public order may require the use of force by the police, but this should be done with respect for the principles of proportionality, and necessity.

Madam Ganda highlighted a number of practical challenges that exist in terms of ensuring a rights-based response by the police to assemblies:

·         Outdated laws and operating procedures that are not adapted to modern policing contexts;

·         Lack of specialisation in law enforcement agencies, which hinders their capacity to manage public order incidents without force;

·         Lack of continuous training for the police on the use of force and managing assemblies;

·         Insufficient coordination between law enforcement agencies during the management of public assemblies.

She concluded by noting that the police administration should play a significant role, in concert with the State and civil society, in shaping and revising national legislation and procedures in this important context of maintaining peace and public order.

(6)  Launch of Newsletter No. 7: Ms. Josiane Somdata Tapsoba, Police and Human Rights Focal Person at the ACHPR Secretariat

Ms. Josiane Somdata Tapsoba presented the seventh edition of the Police and Human Rights Newsletter, which is a joint publication between the ACHPR, APCOF and DIHR, and published under the mandate of the Special Rapporteur on Prisons, Conditions of Detention and Policing in Africa. Ms. Tapsoba noted that the seventh edition of the newsletter has been aligned to the AU's Year of Human Rights with a specific focus on Women's Rights and thus includes a specific focus on the intersection between the policing and women's rights. The newsletter is available on the ACHPR website in English, French, Arabic and Portuguese. .

(7)  Interactive dialogue with participants

An interactive dialogue with participants raised a number of issues, including:

·         The need for the ACHPR to hold a panel discussion on best practices in policing assemblies in Africa to include the role played by national parliaments in setting the national standard);

·         Further exploration of the recommendations in the recent UN report on the management of assemblies (Representative of the UN Special Procedures): 

o    Preparation for assemblies: public authorities should attempt to engage organisers of assemblies. Further intrusive measures should not be used, and participants should not be stopped, searched or arrested unless there is an imminent danger of violence.

o    In the context of assemblies, police tactics should emphasise de-escalation. Before the procurement and selection of equipment, including less lethal equipment, States should subject such equipment to transparent assessment of their compliance with human rights standards. Operational guidance should be developed and published on the use of tactical options in assemblies, such as weapons which by design tend to be indiscriminate. States should also monitor training in the use and misuse of weapons. Automatic weapons should never be used.

o    Monitoring systems should be established by States, such systems to include the collection and dissemination of statistics on when and against whom force is used;

o    Monitoring authorities should routinely notify national human rights institutions and other independent oversight mechanisms about anticipated assemblies to allow them to monitor all parts of it.

o    States should not interfere with recording equipment, including neither seize nor damage recording equipment;

·         The ACHPR's efforts in establishing a normative framework for the policing of assemblies was welcomed. The 2011 public protests in Malawi, in which 20 people were shot, was a watershed moment for the country, and in the intervening period the management of demonstrations and assemblies has improved;

·         The ACHPR's work to develop normative standards on this issue should draw on existing standards, such as the General Comment on the Right to Life.

(8)  Closing remarksHon. Chairperson Commissioner Pansy Tlakula

In her concluding remarks, Hon. Chairperson Commissioner Tlakula thanked the panellists and participants for an interesting and important discussion, and commended Commissioners Kaggwa and Gansou for including a voice for the police on the panel. Commissioner Tlakula reflected on the challenges raised by Madame Ganda and noted that the destruction of property in the context of public demonstrations is a new and emerging issue that needs to be dealt with in the work of the ACHPR. She concluded by noting that when the policing of assemblies goes wrong, no one wins: police officers become victims, protestors become victims, and the country is the ultimate victim. The work of the ACHPR is important in this regard and will assist African States to navigate the challenges faced during demonstrations.