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African Commission on Human and Peoples' Rights

Policing Assemblies in Africa

Principles and Operational Standards for the Policing of

Assemblies by Law Enforcement Officials in Africa

ZERO DRAFT

28 June 2016

PREAMBLE

The African Commission on Human and Peoples' Rights (the African Commission), meeting at

its __ Ordinary Session, held from to in , :

Recalling its mandate to promote and protect human and peoples' rights under the African

Charter on Human and Peoples' Rights (the African Charter);

Recognising the mandate of the African Commission to 'formulate and lay down principles and

rules aimed at solving legal problems relating to human and peoples' rights and fundamental

freedoms upon which African Governments may base their legislation' as part of its promotion

mandate pursuant to Article 45(1)(b) of the African Charter;

Recalling Article 11 of the African Charter which guarantees the right of all persons in Africa to

assembly freely with others, subject only to necessary restrictions provided for by law, in

particular those enacted in the interests of national security, the safety, health, ethics and rights

and freedoms of others;

Noting Articles 2, 3, 4, 5, 6, 7, 8, 9, 10, and 13 of the African Charter on the rights to non-

discrimination; equality of, and equal protection before, the law; the right to life; the right to

dignity and freedom from torture and other ill treatment; the right to liberty and security of the

person; the right to have a cause heard; freedom of conscience; the right to receive information

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and to express and disseminate opinions; the right to free association; and the right to

participate freely in the government and equal access to public services and public property;

Noting further Article 8 of the African Charter on the Rights and Welfare of the Child, which

provides for freedom of peaceful assembly together with the right to free association;

Recalling Resolution 281 on the Right to Peaceful Demonstrations, adopted at its 55th Ordinary

Session, held from 28 April to 12 May 2014 in Luanda, Angola;

Recalling the African Commission's Guidelines on the Conditions of Arrest, Police Custody and

Pre-Trial Detention in Africa (the Luanda Guidelines), adopted during its 55th Ordinary Session in

Luanda, Angola; ACHPR/Res.259 (LIV) 2013: Resolution on Police and Human Rights in Africa;

ACHPR/Res.306 (EXT.OS/XVIII) 2015: Resolution on the Expansion of the Mandate of the Special

Rapporteur on Prisons and Conditions of Detention in Africa; ACHPR/Res.103a (XXXX) 06:

Resolution on Police Reform, Accountability and Civilian Police Oversight in Africa; ACHPR/Res.69

(XXXV) 04: Resolution on the Protection of Human Rights Defenders in Africa; ACHPR/Res.119

(XXXXII) 07: Resolution on the Situation of Human Rights Defenders in Africa; ACHPR/Res.196 (L)

11: Resolution on Human Rights Defenders in Africa; ACHPR/Res.230 (LII) 2012: Resolution on the

need for a study on the Situation of Women Human Rights Defenders in Africa; ACHPR/Res.61

(XXXII) 02: Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture,

Cruel, Inhuman or Degrading Treatment or Punishment in Africa, and General Comment No. 3 of

the African Charter on the Right to Life;

Further recalling its decisions in International Pen and Others (on behalf of Saro-Wiwa) v Nigeria

(2000) AHRLR 212 (ACHPR 1998) and Egyptian Initiative for Personal and Interights v. Egypt II

(2001) AHRLR 90 (ACHPR 2011), and in particular the need for State Parties to protect peaceful

protesters regardless of their political affiliation and/or sex;

Acknowledging the differences between State Parties in terms of political and legal systems and

traditions, and the structure of law enforcement agencies;

Recognising that the right to assembly is a cornerstone of democracy and provides individuals

and groups with a platform to express civil, political, economic and social, peoples', cultural and

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environmental rights, to hold government to account, and to raise and defend issues of common

interest;

Concerned about the role of law enforcement officials in arbitrary arrests, excessive use of force

(including the use of firearms against assembly participants) and sexual violence against women

assembly participants and human rights defenders;

Noting that many African countries have in place national laws and regulations that impede the

enjoyment of the right to assembly by imposing restrictions on the exercise of that right, and

which grant wide discretionary powers to authorities to prevent, stop or restrict the parameters

of public assemblies;

Concerned about the lack of effective mechanisms to foster negotiation and communication

between all relevant stakeholders involved in public assemblies, including organisers, law

enforcement agencies and local authorities;

Recognising that particular individuals and groups are especially vulnerable to limitations on their

right to assemble and to experiencing other human rights violations in the context of the policing

of assemblies based on their status, or an intersection of one or more statuses, such as race,

ethnic group, colour, sex, language, religion, political or any other opinion, national and social

origin, fortune, birth, disability, sexual orientation and gender identity, or being a human rights

defender;

Concerned about the lack of effective and appropriate monitoring mechanisms and independent

police oversight authorities across Africa, and about inadequate training and resources available

to law enforcement officials to promote and protect a rights-based approach to the policing of

assemblies;

Recognising the need to formulate and lay down principles and guidelines to strengthen the

promotion, protection and fulfilment of human rights in the context of the policing of assemblies

in Africa;

Hereby adopt the following Principles and Operational Standards for the Policing of Assemblies

by Law Enforcement Officials in Africa:

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PART I

GENERAL PRINCIPLES GOVERNING THE POLICING OF ASSEMBLIES IN

AFRICA

1. The right to assembly

1.1. For the purpose of these Principles and Operational Standards, 'assembly' refers to the

freedom of an individual or individuals to intentionally occupy or gather in a private or

public space for a specific or common expressive purpose and for the duration of one's

choosing. The right may be expressed in a number of ways including demonstrations,

protests, meetings, processions, rallies or sit-ins. The right may be exercised using the

internet as a tool and/or platform for the action.

1.2. The right to peaceful assembly is protected by the African Charter, these Principles and

Operational Standards and other relevant international human rights standards.

Fundamental and non-derogable human rights protections continue apply to all persons,

even if an assembly is not, or no longer, peaceful. This includes the right to life, freedom

from arbitrary arrest and detention, freedom from discrimination, and freedom from

torture and other cruel, inhuman or degrading treatment or punishment.

1.3. In making a determination as to whether an assembly is peaceful, a broad interpretation

must be given to 'peaceful' by law enforcement officials and other public authorities. 'An

assembly should be deemed peaceful if its organisers have professed peaceful

intentions and the conduct of the assembly is non-violent. The term 'peaceful' should be

interpreted to include conduct that may annoy or give offence, and even conduct that

temporarily hinders, impedes or obstructs the activities of third parties'.1

1.4. Everyone has the right to assemble freely with others.

1.5. Any limitations imposed by the State Party on the right to assembly must:

1.5.1. Adhere to the African Charter and other international normative standards; and

1 Definition borrowed from: OSCE/ODIHR, Guidelines on Freedom of Peaceful Assembly (2nd Edition), 2010, p. 7.

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1.5.2. Satisfy the principle of legality, be in pursuit of a legitimate interest as defined by

international human rights law, be a necessary and proportionate measure to

achieve that end within a democratic society, and satisfy the principles of non-

discrimination and equality before the law.

2. Legislative and regulatory framework for the right to assembly

2.1. The right to assembly should be accorded constitutional recognition by all State Parties

to the African Charter.

2.2. The enactment, interpretation, implementation and enforcement of national laws and

regulations that govern the right to assembly, and law enforcement responses to

assemblies, must:

2.2.1. Favour the presumption of the exercise of the right to assembly by all groups and

individuals;

2.2.2. Be consistent with all other African and international human rights instruments

ratified by the State;

2.2.3. Expressly recognise and facilitate the enjoyment of the interrelated rights to

freedom of expression and association, the right to information, freedom from

discrimination, the right to life, liberty and security of the person, and freedom

from torture and other cruel, inhuman and degrading treatment or punishment;

2.2.4. Expressly recognise the principles of non-discrimination and equality before the

law, and the right of all persons to freedom of assembly and other related rights;

and

2.2.5. Limit restrictions on the right to assembly to situations where such restrictions are::

2.2.5.1. Evidently consistent with State Party's obligations under the African

Charter and other international treaty obligations;

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2.2.5.2. Consistent with the principle of legality, in pursuit of a legitimate interest

as defined by international human rights law, necessary and proportionate

measures to achieve that end within a democratic society, and satisfy the

principles of equality before the law and non-discrimination.; and

2.2.5.3. Reviewable by competent, independent and impartial administrative or

judicial authority, in both law and practice.

2.3. State Parties must not adopt provisions of law or regulation that require permission

from public authorities prior to the conduct of an assembly.

PART II

ORGANISATIONAL AND OPERATIONAL REQUIREMENTS FOR A RIGHTS-

BASED APPROACH TO THE POLICING OF ASSEMBLIES

3. General principles

3.1. The obligation to protect and promote the right to assembly is vested in law

enforcement officials as representatives of the State Party to the African Charter. For

the purposes of these Principles and Operational Standards, 'law enforcement official'

includes all state officials who exercise police powers in the context of policing

assemblies.

3.2. The role of law enforcement officials in policing assemblies should be expressed in

national legislative and regulatory instruments as safeguarding and facilitating the right

to assembly. All actions taken by law enforcement officials in the conduct of such

operations must be given as satisfying the principle of legality, be in pursuit of a

legitimate interest as defined by international human rights law, be a necessary and

proportionate measure to achieve that end within a democratic society, and satisfy the

principles of equality before the law and non-discrimination..

3.3. To ensure a rights-based approach to policing assemblies, the overall legislative and

regulatory framework for law enforcement agencies should provide, at a minimum:

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3.3.1. Accountability to the law, including the Constitution and human rights principles,

through systems of internal discipline and external oversight and judicial processes;

3.3.2. Accountability to democratic structures and the community, including to a

dedicated police civilian oversight body, in the absence of which, an Ombudsman or

national human rights institution;

3.3.3. Transparency through open scrutiny and regular reporting to external bodies, such

as parliaments, auditors-general, and independent statutory civilian authorities;

3.3.4. Political independence and a command structure that gives operational priority to

protecting and upholding the rights, and guaranteeing the safety, of all persons;

3.3.5. The promotion and protection of human rights, and, in particular, the prioritisation

of the protection of life, liberty and security of the person, restrictions on the use of

force to situations where it is proportionate and necessary, and the policing of

assemblies that facilitates, rather than restricts, the enjoyment of this right by all

persons;

3.3.6. Adherence to a high standard of professional conduct, as expressed in a

professional code of conduct that accords with international human rights

standards, including the UN Code of Conduct for Law Enforcement Officials;

3.3.7. Recruitment, training and promotion policies and practices that promote law

enforcement agencies that are representative of the communities they serve.

3.4. State Parties should take all necessary measures to ensure that the working conditions

of law enforcement officials are consistent with the right of all persons to work under

equitable and satisfactory conditions as guaranteed by Article 15 of the African Charter.

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4. Regulatory framework for the policing of assemblies

4.1. The enactment, interpretation, implementation and enforcement of national laws,

regulations, standard operating procedures, standing orders, ordinances, or other

instructions must adhere to the general principles set out in Principle 3.2.

4.2. All regulatory instruments and information about law enforcement procedures relating

to assemblies must be made accessible in accordance with the right to freedom of

information as expressed in the African Charter and other relevant international

standards, such as the African Commission's Model Law on Access to Information in

Africa.

4.3. State Parties and law enforcement agencies should have in place, and make available in

the public domain, enforceable standards of conduct for law enforcement officials. Such

standards should be consistent with internationally recognised standards of conduct for

law enforcement officials in the context of the policing of assemblies, such as the UN

Basic Principles on the Use of Force and Firearms for Law Enforcement Officials and the

UN Code of Conduct for Law Enforcement Officials.

4.4. State Parties must ensure that the national legal and regulatory framework for law

enforcement provides that non-compliance with the standards of conduct for law

enforcement officials is a disciplinary offence. Disciplinary procedures must accord with

the principle of procedural fairness.

5. Command structures

5.1. Law enforcement agencies must establish a clear, transparent and single command

structure for the policing of assemblies. The operational roles and responsibilities of law

enforcement officials within the chain of command should be clearly established and

made known, and the appointment of a commanding officer should be made as soon as

possible after notification is given, or knowledge is gained, of an assembly. The

command structure must ensure responsibility for command decisions or unlawful acts

or omissions by law enforcement officials, and facilitate communication with other

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stakeholders, including assembly organisers, other service providers, and local

authorities.

6. Communication and facilitation mechanisms

6.1. Law enforcement agencies should have and make known a communication mechanism

and strategy, and appoint a specially trained official to act as a communications liaison

to liaise with stakeholders from the public, other service providers and local authorities.

The communication mechanism and strategy should be underpinned by principles of

transparency, community partnership, and the proactive dissemination of all key

information to stakeholders. Such information should include all regulations, standing

orders and instructions, codes of conduct, information about the chain of command and

operational decision-making, the type of equipment used in the policing of assemblies,

process and procedures for the imposition of limitations on the right to assembly by

public authorities, and how to access internal and external complaints mechanisms.

6.2. Law enforcement agencies should acknowledge and embrace the importance of

facilitating dialogue and mediation by third parties, such as Ombudsmen, national

human rights institutions, local authorities and civil society organisations, prior, during

and after assemblies, by providing prompt and relevant information to third parties.

7. Governing principles for the use of force

7.1. The use of force by law enforcement officials must be strictly regulated under national

law in conformity with the African Charter and other regional and international

standards, including the UN Basic Principles on the Use of Force and Firearms by Law

Enforcement Officials.

7.2. The use of force is an exceptional measure of last resort and limited to circumstances in

which the use of force is proportionate and necessary. Where strictly unavoidable, force

must only be applied to the extent necessary to achieve a legitimate objective.

Assessment of necessity and proportionality should be based on an assessment of the

relevant facts, with a requirement for reasonable grounds, rather than mere suspicion

or presumption of risk or harm.

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7.3. Firearms are not an appropriate tactical tool for the policing of assemblies. Firearms

must never be used to disperse an assembly. The indiscriminate discharge of firearms

into a crowd is a violation of Article 4 of the African Charter on the right to life.

7.4. Additional restrictions on the use of firearms must be prescribed by law. These

restrictions should limit the use of firearms to circumstances in which there is an

imminent threat of death or serious injury, or to prevent the commission of a serious

crime involving a grave threat to life, and only when less extreme measures are

insufficient to achieve these objectives.

7.5. In the planning, preparation and conduct of an assembly operation, tactical and other

measures must be taken to avoid the use of force and, where force is unavoidable, to

minimise the harmful consequences of the use of force. If law enforcement officials use

force that is necessary and proportionate, but the need to use force could reasonably

have been prevented from arising in the first place by exercising all precautions in the

planning, preparation and conduct of an assembly operation, they should be held

accountable.

7.6. All law enforcement officials must receive training on the lawful, proportionate and

necessary use of force and on alternatives to the use of force, such as understanding of

crowd behaviour and techniques in crowd facilitation and management, de-escalation

and a graduated response to tension or violence, and on first aid.

7.7. Law enforcement agencies should provide officials with appropriate personal protective

equipment and appropriate less-lethal weapons to reduce reliance on means capable of

causing death or serious injury. Appropriate protective and less-lethal equipment

includes shields, helmets, batons, bullet proof jackets and other equipment and less-

lethal weapons that have been independently tested and verified for the accuracy,

reliability and suitability to crowd management situations and comply with regional and

international human rights standards.

7.8. The use of remote controlled weapons is discouraged, and their procurement by State

Parties must be subject to independent testing and verification for accuracy, reliability

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and suitability to crowd management situations, and their compliance with international

human rights standards. If such weapons are used, law enforcement officials must be

trained in the use of such equipment, remain actively in control of the delivery of force,

and limit the use to circumstances in which it is justified, reasonable, proportionate and

necessary, and in a manner that minimises the risk of physical or psychological harm to

assembly participants, observers and by-standers.

7.9. Less lethal weapons and crowd control weapons should only be used when there are

legitimate grounds for the use of force, or for a dispersal, and only in circumstances

when other less harmful means have been exhausted.

7.10. To minimise the harmful effects on assembly participants, observers and by-

standards, law enforcement officials must exercise caution when using indiscriminate

weapons.

7.11. Less lethal crowd control weapons can potentially be abused by law enforcement

officials because of the presumption that they are not lethal. Less lethal crowd control

weapons should therefore only be used in a proportionate manner with the ultimate

aim of protecting persons against harm.

7.12. Weapons that cannot be used safely and effectively in a crowd control setting,

such as multiple projectile shotguns, must be prohibited from use in the conduct of

policing assemblies.

7.13. Law enforcement agencies should maintain registers of the equipment provided

to, and equipment used by, officials deployed in a policing of assembly operation.

7.14. Law enforcement officials should be subject to internal and external systems of

monitoring and reporting on the use of force in accordance with Principle 9.

8. Training

8.1. Law enforcement officials must be adequately trained to facilitate the right to assembly.

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8.2. At a minimum, training for law enforcement officials should include:

8.2.1. The normative framework for the right to assembly, and the importance and

relationship between assembly and other core human rights standards, including

the rights to non-discrimination; equality of, and equal protection before, the law;

the right to life; the right to dignity and freedom from torture and other ill

treatment; the right to liberty and security of the person; the right to have a cause

heard; freedom of conscience; the right to receive information and to express and

disseminate opinions; the right to free association; and the right to participate

freely in the government and equal access to public services and public property.

8.2.2. Effective communication for the facilitation of assemblies, including 'the possible

impact of any indirect communication that may be perceived by organisers and

participants as intimidation, for example, the presence or use of certain equipment

and the body language of officials'.2

8.2.3. Understanding participant behaviour, including 'different types of group behaviour,

how to recognise these groups within the larger assembly, how to differentiate

between various groups of people and their behaviour, and to deal with each

behaviour appropriately, rather than to view the whole assembly in the same way'.3

8.2.4. Minimising conflict, including through the development of negotiation and

mediation skills.

8.2.5. Tactics to promote the de-escalation of tension and violence, and to minimise the

risk of harm to assembly participants, observers and by-standers.

8.2.6. The lawful use of force in accordance with Principle 18.3, and other international

human rights standards such as the UN Basic Principles on the Use of Force and

Firearms by Law Enforcement Officials.

2 Concept borrowed from UN General Assembly, Joint report of the Special Rapporteur on the rights to freedom of

peaceful assembly and association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, [38], 4 February 2016. 3 Phrasing borrowed from OSCE/ODIHR, Human Rights Handbook on Policing Assemblies, 2016, at 23.

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8.2.7. The proper use of less lethal weapons to minimise the risk of abuse. Specific

training regimes should be devised for each weapon.

8.2.8. The safety and protection of persons and groups who are particularly vulnerable to

limitations on their right to assembly, and/or human rights violations in the context

of assemblies, on the basis of their status or an intersection of one or more

statuses. This includes but is not limited to race, ethnic group, color, sex, language,

religion, political or any other opinion, national and social origin, fortune, birth,

disability, sexual orientation and gender identity, or being a human rights defender.

9. Oversight, accountability and monitoring

9.1. The responsibility of State Parties and law enforcement agencies to protect, promote

and fulfil the right to assembly extends to establishing effective reporting and review

procedures to address any unlawful use of force, and to providing an adequate, effective

and prompt remedy to persons who experience human rights violations during the

policing of assemblies. To fulfil this obligation, State Parties should establish a dedicated

police civilian oversight body, in the absence of which, an Ombudsman, or national

human rights institution.

9.2. Oversight and accountability mechanisms must have the mandate to:

9.2.1. Receive complaints from the public and law enforcement officials about the

conduct of authorities in the policing of assemblies;

9.2.2. Make thorough, prompt and impartial investigations of all complaints and all

suspected cases of unlawful use of force or other human rights violation by law

enforcement officials;

9.2.3. Monitor and report on the preparation and conduct of all law enforcement

operations;

9.2.4. Make binding recommendations or findings; compel the production of any

document or other evidentiary source; refer cases for internal police discipline;

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refer cases to the public prosecutor; impose disciplinary measures; investigate and

report on systemic issues; and make and enforce orders of restitution,

compensation, rehabilitation or satisfaction.

9.3. Access to complaints, monitoring and oversight mechanisms must be guaranteed for all

persons, without fear of reprisals or punishment.

9.4. State Parties should establish, and disseminate information about, systems and

processes to guarantee the right of access to information for all persons, in accordance

with the African Charter, the African Commission's Model Law on Access to Information

in Africa, and other international normative standards. For the purposes of these

Principles and Operational Standards, information includes records held by a public body

at any level or by a private body performing a public function.

9.5. State Parties should establish processes for the systemic collection and dissemination of

disaggregated data on the policing of assemblies.

9.6. All persons have the right to observe and independently monitor public assemblies,

without fear of reprisal. This includes monitors, journalists and other media workers and

stewards. The right to observe and monitor extends to the active observation of an

assembly, and to the collection, verification, and use of information.

PART III

PREPARATION AND PLANNING FOR THE POLICING OF ASSEMBLIES

10. Procedures for the advanced notification of planned assemblies

10.1. Consistent with the right to freedom of assembly, State Parties are prohibited

from requiring assembly organisers or participants to obtain prior permission from

public authorities to convene an assembly.

10.2. State Parties are encouraged to establish systems for the prior notification of

assemblies for the express purpose of enabling law enforcement officials and other

stakeholders to properly prepare and plan for the assembly. Recognising the possibility

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of spontaneous assemblies, lack of prior notification of an assembly, for instance in the

case of a spontaneous assembly, does not render an assembly unlawful and should not

form the basis of a decision by law enforcement officials to disperse an assembly.

10.3. If a system for the prior notification of assemblies is established by the State

Party, its enactment, interpretation, implementation and enforcement must favour the

presumption of the exercise of the right to assembly by all persons and groups, and not

serve as a de facto system for obtaining permission to hold a public assembly.

10.4. Where a system for the prior notification of assemblies is established in law or by

regulation, information about the system must be made available in writing, be clear,

establish a fair and objective assessment process, require any restrictions placed on an

assembly to be communicated promptly and in writing to the assembly organiser, and

guarantee the right to prompt and accessible administrative and judicial review of

decisions or responses by the public authority in relation to such notification.

10.5. State Parties must clearly establish the public authority responsible for receiving

prior notification of the intention to hold a public assembly, and should provide detail of

any administrative requirements for notification. The public authority responsible for

receiving prior notification has a positive obligation to act promptly on the information.

10.6. Systems for the prior notification of assemblies should be free of charge to

assembly organisers and participants, and should ideally require no more than 48 hours

advanced notice, or such time as required by law enforcement agencies to prepare for

the assembly. The administrative requirements for prior notification should not unduly

burden assembly organisers, such that they limit the right of persons and groups to

make prior notification.

11. Procedures for responding to assemblies without prior notice

11.1. The conduct of an assembly without prior notice to public authorities, and

spontaneous or small assemblies, are protected by the right to freedom of assembly

pursuant to regional and international law.

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11.2. Spontaneous assemblies should be protected by law enforcement officials to the

extent that they are peaceful. Law enforcement officials should make all efforts to

ensure the facilitation of such assemblies, and limit any actions to restrict or disperse

these assemblies in a manner consistent with these Principles and Operational

Standards and which satisfy the principles of legality, necessity, proportionality, non-

discrimination and equality before the law.

11.3. As soon as practicable after knowledge is gained of an intended or actual

assembly, law enforcement officials must take all reasonable steps to identify and

communicate with assembly organisers and/or participants, and to take immediate

steps to prepare for the facilitation of the assembly.

11.4. Law enforcement agencies should have in place systems to anticipate and plan

for the conduct of assemblies without prior notice, including in relation to known or

scheduled political or social events, commemorative days, or in anticipation of decisions

made by courts, parliaments and other state authorities.

12. Information gathering and intelligence

12.1. To facilitate of the right to assembly, law enforcement officials require accurate

information to conduct of risk assessments, contingency planning, and the necessary

and proportionate deployment and equipping of law enforcement officials. Information

may be collected through a system for the prior notification of assemblies,

communication between law enforcement officials and assembly organisers, observers

or third parties, or through law enforcement information and intelligence gathering

techniques..

12.2. The collection and processing of information, and the tactics permitted to be

used by law enforcement officials in pursuit of this objective, must be regulated by law

in a manner consistent with the right of access to information, the right to privacy, the

presumption of innocence, and guarantees of due process pursuant to the African

Charter and other relevant international human rights instruments. Any information

collected and processed by law enforcement officials must be reasonable, necessary and

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proportionate to a legitimate law enforcement purpose, and must not be used to

harass, intimidate or discourage persons from exercising their right to assemble.

13. Communication and facilitation with assembly organisers and other stakeholders

13.1. Law enforcement agencies should prioritise communication with all stakeholders

in their approach to the facilitation of assemblies, in order to foster trust and confidence

in the policing of assemblies, assists in risk assessment and contingency planning, and to

prevent the escalation of tension and violence.

13.2. As soon as practicable after notification of intention to hold an assembly is given,

or knowledge is gained of an intended assembly, law enforcement officials must take all

reasonable steps to identify and communicate with assembly organisers and/or

participants, and must be able to evidence their attempts to engage in such

communication. To facilitate structured and effective communication prior to an

assembly, law enforcement agencies are encouraged to establish formal communication

processes or mechanisms in terms of Principle 7.

13.3. Communication by law enforcement officials with assembly organisers and/or

participants prior to an assembly should focus on gathering information to assist in risk

assessment and contingency planning for the facilitation of an assembly. This includes

information such as the expected size and modality of the assembly, the location, time

and expected duration of the assembly, the profile of participant groups or persons

(particularly persons to whom special protections may be afforded under the African

Charter, or those who may be vulnerable to rights abuses because of their status), any

subsequent change in circumstances or context, or any concerns about the security and

public safety measures, deployment or policing operation.

13.4. Law enforcement officials should make every effort to engage in communication

with assembly organisers and participants about planned security and public safety

measures (including any limitations or restrictions placed on the assembly), proposed

deployment, and the outcomes of risk assessments and contingency planning.

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14. Risk assessment and contingency planning

14.1. The facilitation of the right to assembly, and the lawful, proportionate, necessary

and non-discriminatory application of any limitations or restrictions on the right, require

law enforcement agencies make evidence-based risk assessments and contingency

plans. Risk assessments and contingency plans should be communicated to interested

stakeholders

14.2. Risk assessments should:

14.2.1. Favour the presumption of the exercise of the right to assembly by groups and

individuals and make provision for the protection of this right, including as it relates

to the safety and security of assembly participants, observers, and by-standers;

14.2.2. Be evidence-based;

14.2.3. Take into account current and historical factors, such as prevailing political or

social tensions, and previous assemblies on similar issues and/or by similar groups;

14.2.4. Assess, to the extent possible, the intentions of the assembly organisers,

including whether their intentions in the context of the assembly are peaceful or

non-peaceful;

14.2.5. Apply consistently to different types of assemblies, and be subject to transparent

decision-making;

14.2.6. Be subject to continual revision based on the most current information and

intelligence;

14.2.7. Take specific account of the safety and protection of persons and groups who are

particularly vulnerable to limitations on their right to assembly, and/or human

rights violations in the context of assemblies based on their status, or an

intersection of one or more statuses, such as race, ethnic group, color, sex,

language, religion, political or any other opinion, national and social origin, fortune,

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birth, disability, sexual orientation and gender identity, or being a human rights

defender;

14.2.8. Be designed to identify and address risks in a manner that satisfies the principle

of legality, is in pursuit of a legitimate interest as defined by international human

rights law, is necessary and proportionate measure to achieve that end within a

democratic society, and consistent with the principles of equality before the law

and non-discrimination;

14.2.9. Include consideration of the need to adapt to multiple scenarios and outcomes,

including but not limited to variations on the size, route, duration and modality of

the assembly, and the risk of counter-assemblies or simultaneous assemblies.

14.3. Contingency plans and evidence-based precautionary measures should be made,

with the express purpose of promoting the right of assembly participants to equal

enjoyment of public spaces with others, with tolerance for peaceful disruption to

ordinary commercial and civic activity, and the free flow of traffic, and to promote the

safety and security of those exercising their right to assembly, independent monitors,

and by-standers.

14.4. Contingency plans must be based on an evidence-based risk assessment and

satisfy the principle of legality, be in pursuit of a legitimate interest as defined by

international human rights law, be a necessary and proportionate measure to achieve

that end within a democratic society, and satisfy the principles of equality before the

law and non-discrimination..

14.5. Contingency plans should provide for:

14.5.1. The provision of basic services, including traffic management and medical

services;

14.5.2. Escalation of tension and the potential for violence during assemblies;

14.5.3. The potential for counter assemblies or simultaneous assemblies;

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14.5.4. The graduated use of coercive measures and force in accordance with these

Principles and Operational Standards and other relevant international human rights

standards on the use of force by law enforcement officials;

14.5.5. Measures to minimise harm in all scenarios, including the protection and safety

of law enforcement officials, assembly participants, independent monitors and by-

standers, with special measures in place to identify and provide specific protection

to groups vulnerable to rights abuses in accordance with Principle 8.2.8;

14.5.6. Adverse weather conditions and other environmental factors;

14.5.7. The availability of law enforcement officials, and the obligation of law

enforcement agencies to ensure that officials have adequate rest, and access to

food and water, and safe conditions of work;

14.5.8. Maintenance of regular internal communication to ensure that all law

enforcement officials deployed to an assembly operation are aware of the tactical

and other operational plans;

14.5.9. Maintenance of regular external communication with assembly organisers and

participants, independent observers, the media and oversight authorities, including

any changes to the tactical or operational approaches of law enforcement officials

during the conduct of an assembly operation;

14.5.10. Other hazards and risks identified in the risk assessment that are

particular to the context of a particular assembly.

15. Restrictions and limitations on the right to assembly

15.1. The right to assembly under the African Charter is not absolute and is subject to

limitations. Any limitations or restrictions imposed on an assembly by law enforcement

officials must meet the test for limitations in Principle 3, namely that they are consistent

with the African Charter and other human rights standards and satisfy the principle of

21

legality, are in pursuit of a legitimate interest as defined by international human rights

law, are a necessary and proportionate measure to achieve that end within a democratic

society, and satisfy the principles of equality before the law and non-discrimination..

15.2. The decision-making process for management and limitation of assemblies by

law enforcement officials must be transparent, known, accessible, fair and clearly

explained.

15.3. The imposition of limitations or restrictions on the enjoyment of this right by law

enforcement officials or other public authorities should be the exception, rather than

the rule. Limitations and restrictions must be the least intrusive in the circumstances

and be proportionate to a legitimate law enforcement objective that is, itself, consistent

with the obligation to facilitate an assembly and other relevant international human

rights standards. Vague and non-specific limitations such as 'national security' will not

satisfy the test for proportionality.

15.4. Law enforcement officials must not impose restrictions or limitations on the right

to assembly because there is the risk of violence. Any restrictions or limitations placed

on the right to assembly must be evidence-based, precise, follow a process of factual

risk assessments and contingency planning, and be communicated in writing to event

organisers.

15.5. Limitations on the time, place and manner of an assembly are permitted,

providing they subject to risk assessment and contingency planning, and satisfy the

requirements of legality, necessity, proportionality and non-discrimination. If such

limitations are imposed, alternatives must be provided to assembly organisers and

participants by law enforcement officials that are consistent with the right to assembly.

This includes alternatives that facilitate an assembly within the sight and sound of the

intended audience.

15.6. In recognition that the purpose of assemblies is to convey a message to a

particular target, any restrictions on the sight and sound of an assembly must be

reasonable and proportionate to protecting this purpose, and law enforcement officials

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should facilitate, to the extent possible, the holding of assemblies within the sight and

sound of the target audience.

15.7. Mechanisms for the prompt and independent judicial or administrative appeal

against decisions of law enforcement officials to limit or restrict the right to assembly

must be available in law and in practice.

PART IV

DURING THE POLICING OF ASSEMBLIES

16. General principles

16.1. Communication

16.1.1. Law enforcement officials should maintain open communication with all relevant

stakeholders, including assembly organisers and participants, other essential

services provides, and stewards. Law enforcement officials must proactively and

continually communicate the intention of the assembly operation, any limitations

or restrictions imposed on the assembly, and contingency planning in place.

16.1.2. All communication to assembly participants should provide participants with

sufficient time to follow instructions of law enforcement officials of their own

accord, including any warnings or directions provided.

16.2. Deployment

16.2.1. Law enforcement agencies must ensure the visible identification of all law

enforcement officials deployed in assembly operations.

16.2.2. In the deployment of officials to an assembly, law enforcement agencies must

apply risk assessment and contingency planning, which should itself take into

account the potential adverse influence that the visible appearance of law

enforcement officials, deployment tactics and equipping of officials at an assembly

can have on the way in which an assembly develops.

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16.2.3. Consistent with the obligation to facilitate assemblies, law enforcement officials

should always deploy the minimum number of officials necessary to ensure the

protection and safety of officials, participants, observers, and by-standers and take

a graduated approach to the increase of visible policing numbers during the course

of an assembly. Any reinforcement units should be stationed out of the sight of

assembly participants, and to the extent that law enforcement command has

assessed this to be appropriate and practical, and in accordance with the risk

assessment and contingency planning framework in Principle 14.

16.3. Documenting and video recording

16.3.1. Law enforcement officials may document and video record the conduct of an

assembly, providing that such recording and surveillance satisfy the principle of

legality, are in pursuit of a legitimate interest as defined by international human

rights law, are a necessary and proportionate measure to achieve that end within a

democratic society, and satisfy the principles of equality before the law and non-

discrimination..

16.3.2. The documenting and video recording of assemblies by law enforcement officials

must be regulated in national law in compliance with the African Charter, including

in accordance with the rights to privacy and due process.

16.3.3. Law enforcement officials must not use recording and surveillance tactics as a

means to harass or intimidate assembly participants, or to discourage persons or

groups from exercising their right to assembly. Law enforcement agencies must not

share or disclose video recordings or other information with third parties in a

manner that violates the right to privacy or due process.

16.3.4. Law enforcement officials must notify assembly organisers and participants of

the intention to, and purpose of, documenting or video recording an assembly.

Communication should be in a manner that is precise and well understood.

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16.3.5. The retention and use of information gathered through documentation and

video recording of an assembly by law enforcement officials must be regulated in

national law, with retention limited to evidence of the use of force, arrest and

detention, or where there is reasonable suspicion on the part of law enforcement

officials or oversight mechanisms that a crime or misconduct has been committed,

or where a complaint about the conduct of law enforcement officials is made by an

assembly organiser, participant, by-stander or observer.

16.3.6. All persons, including assembly participants, monitors, observers and by-

standers, have the right to record an assembly, including the right to record the law

enforcement operation. This right should be protected by law, with disciplinary and

criminal sanctions in place for law enforcement officials who seize or damage any

equipment, except where such seizure is authorised by an independent judicial

authority.

16.4. Stop and search

16.4.1. The use of stop and search by law enforcement officials in assembly operations

should be a measure of last resort, limited to circumstances in which there is an

actual risk of violence or other criminal activity, and in compliance with the African

Charter and other international instruments and Guidelines, including the African

Commission's Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial

Detention in Africa (the Luanda Guidelines).

16.4.2. The use of stop and search must not be arbitrary, or violate the rights to freedom

of movement, non-discrimination, equality before the law and privacy. The

participation of a person in an assembly is not, prima facie, a reasonable ground to

stop and search that person.

16.5. Arrest

16.5.1. Everyone has the right to liberty and security of the person. Arrest must always

be an exceptional measure of last resort. No one shall be subjected to arbitrary or

unlawful arrest.

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16.5.2. The use of arrest in the context of the policing of assemblies has a legitimate

function to protect and facilitate the right to assembly by all persons. In that

regard, law enforcement officials can exercise the power to arrest for the purpose

of removing persons who are acting violently, or who are otherwise reasonably

suspected of committing an offence. However, arrest powers must only be

exercised on grounds and procedures established by law. Such laws and their

implementation must be clear, accessible and precise, and consistent with the

African Charter, the Luanda Guidelines and other relevant international standards.

16.6. Facilitation of first aid and other essential services

16.7. Contingency plans must include the provision of prompt assistance by medical

aid for any person injured during an assembly. Law enforcement officials must receive

first aid training, and be subject to clear and precise protocols for communicating with

medical service providers in an assembly context. Law enforcement officials should

ensure that traffic management and other contingency planning facilitate the prompt

access to medical services for assembly participants, observers and by-standers.

16.8. The provision of first aid and other essential services by law enforcement officials

must be provided free of charge.

17. Facilitating peaceful assemblies

17.1. Peaceful assemblies that do not comply with restrictions, limitations or terms

of notification

17.1.1. If an assembly organiser, or participants, fail or refuse to comply with any

restrictions or limitations on the conduct of the assembly communicated to them

by law enforcement officials or other public authorities, or the conduct of the

assembly does not accord with the terms set out in the prior notification, the

response by law enforcement officials must be legal, proportionate, necessary,

non-discriminatory and consistent with the provisions in relation to dispersals and

the graduated use of force as set out in these Principles and Operational Standards.

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17.1.2. Law enforcement agencies should not disperse assemblies simply for technical

violations of limitations or restrictions without other serious cause, and any

dispersal should be based on the obligation to make continuous assessments of the

situation.

17.2. Access to, and the protection of, property

17.2.1. State Parties have a responsibility to achieve the proper balance between the

right to assembly and competing rights of other citizens whose lives, trade and right

to movement may be affected by the exercise of the right to assemblies. States

should tolerate the temporary disruption of business and traffic which is inevitable

in the exercise of the right to assembly. Assembly is no less legitimate a use of

public space than commercial and civil activities and the free flow of traffic.

17.3. Facilitating multiple assemblies

17.3.1. The right to assembly extends to the right to engage in simultaneous or counter-

assemblies. The prohibition of banning of one or more assemblies on the sole basis

that it is a counter assembly or a simultaneous assembly is an unlawful violation of

the right to assembly. The role of law enforcement officials in this context is to

protect and facilitate the right to assembly of all persons to the extent practicable

and in compliance with the African Charter, these Principles and Operational

Standards and other relevant international human rights standards.

17.3.2. If law enforcement officials impose limitations or restrictions on simultaneous or

counter-assemblies in accordance with these Principles and Operational Standards,

the principle of non-discrimination applies to ensure that assemblies in comparable

circumstances do not receive different or more onerous limitations or restrictions.

17.3.3. If law enforcement officials deem it impossible to facilitate counter or

simultaneous assemblies precisely as planned, they should give preference to the

facilitation of the first assembly notified (except where such notification is provided

in bad faith), and provide alternatives to the other assemblies. The alternatives

27

should take into account any need to facilitate the conduct of a counter or

simultaneous assembly within the sight and sounds of the other assembly, and take

account of additional policing resources to ensure the proper facilitation of all

assemblies and the protection of all assembly participants, observers and by-

standers.

18. Managing non-peaceful assemblies

18.1. General principles

18.1.1. In accordance with Principle 2, during operations to manage non-peaceful

assemblies, law enforcement officials must not derogate from the fundamental

rights to life, freedom from arbitrary arrest and detention, freedom from

discrimination, and freedom from torture and other cruel, inhuman or degrading

treatment or punishment.

18.1.2. All action taken by law enforcement officials during the management of non-

peaceful assemblies must satisfy the requirements of legality, necessity,

proportionality and non-discrimination in accordance with the African Charter,

these Principles and Operational Standards and other relevant international

instruments.

18.2. De-escalation

18.2.1. Law enforcement officials and their commanders must continuously monitor

assemblies, with the aim of identifying and proactively addressing issues as they

arise. Contingency plans must include de-escalation tactics that favour the

presumption of the right to assembly, such as open communication and dialogue

with assembly organisers and participants, demonstrating flexibility in the

enforcement of restrictions and limitations on an assembly, and tolerating

individual conduct in the context of peaceful assemblies that do not comply with

restrictions, limitations or terms of notification, on the basis that of the potential

adverse influence that the visible escalation of law enforcement officials tactics can

have on the way in which an assembly develops.

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18.2.2. If disputes or other issues arise during the course of an assembly, law

enforcement officials should, in the first instance and the extent possible, seek to

resolve these issues peacefully through negotiation, mediation and dialogue. The

role of independent observers, including independent monitors, Ombudsmen,

national human rights institutions and local authorities, should be acknowledged

and facilitated in this context by law enforcement officials.

18.2.3. Law enforcement officials should be trained to differentiate between persons

who are acting in violation of the law and/or present, or are threatening to present,

a risk of violence or harm to others, and other participants within the assembly. For

the intervention by law enforcement officials to be legal, proportionate and

necessary in this context, all efforts should be made to identify and remove specific

persons identified as acting in an unlawful or violent manner, and to continue to

facilitate the right to assembly for all other participants.

18.2.4. Crowd control strategies that include measures for containment should be

avoided and only used in exceptional circumstances on the basis that the blanket

application of such measures may be disproportionate and unlawful in the context

of the right to liberty and to freedom of movement, and may escalate tension if

applied discriminately to particular persons or groups and not others. Containment

tactics must allow for exit routes for assembly participants and observers that want

to leave the assembly, and must never amount to prohibited collective detention.

18.2.5. The use of force by law enforcement officials must only be used if other less

harmful means of de-escalation have failed. Any use of force must be in strict

compliance with these Principles and Operational Standards, the African Charter,

the UN Basic Principles on the Use of Force and Firearms by Law Enforcement

Officials, and other relevant international human rights standards.

18.3. Use of force

18.3.1. The use of force in the policing of assemblies must be strictly regulated in

national law, in strict conformity with Principle 8, the African Charter, the UN Basic

29

Principles on the Use of Force and Firearms by Law Enforcement Officials and other

relevant international human rights standards.

18.3.2. During policing of assembly operations, law enforcement officials should require

formal approval from the operation commander prior to any use of force, except

where force is evidently necessary and proportionate to protect against an

imminent threat to life or serious physical harm. Any orders to use force must be

carefully and factually evaluated to ensure that the force used is necessary and

proportionate, minimises damage and harm, and complies strictly with the

provisions of Principle 7, the UN Basic Principles on the Use of Force and Firearms

by Law Enforcement Officials and other relevant international law standards.

18.3.3. Law enforcement officials must, as far as possible, apply non-violent measures

prior to the use of force, including communication and de-escalation measures set

out in these Principles and Operational Standards. The use of force must, at all

times, be lawful, necessary, proportionate and non-discriminatory, and tactics must

favour the graduated use of force.

18.4. Dispersing assemblies

18.4.1. The dispersal of assemblies should be a measure of last resort, and law

enforcement officials must act on the presumption that although they have powers

to intervene in an assembly, they should only do so in circumstances in which it is

evidently legal, necessary, proportionate and non-discriminatory to do so.

18.4.2. If an assembly is unlawful but non-violent, law enforcement officials must avoid

the use force to disperse the assembly. Where force is deemed to be a lawful

proportionate response, law enforcement officials must only use the minimum

level of force necessary.

18.4.3. Where an assembly is non-peaceful, or assembly participants are in violation of

the law, law enforcement officials should, to the extent possible, use

communication and de-escalation strategies before attempting to disperse an

assembly. In particular, if dispersal is deemed lawful, proportionate and necessary,

30

law enforcement officials must clearly communicate an intention to disperse the

assembly to participants, and provide participants with a reasonable opportunity to

disperse voluntarily, before any action is taken by law enforcement officials. Force

must never be used against peaceful demonstrators who are unable to disperse

from the assembly.

18.4.4. The authority to issue an order for dispersal should be limited to law

enforcement officials in command of assembly operations, and only ordered in

situations where there is a serious, widespread and imminent threat to the safety

of persons, or damage to property, or the rights and freedoms of others, providing

that all reasonable attempts have been made to minimise the harm. Use of force in

the dispersal of assemblies must comply with these Principles and Operational

Standards, and other regional and international standards on the use of force.

18.4.5. Firearms must never be used to disperse an assembly. The indiscriminate

discharge of firearms into a crowd is a violation of Article 4 of the African Charter

on the right to life.

18.4.6. Non-participants to an assembly, including journalists and independent

observers, may be required by law enforcement officials to disperse, however such

persons must not be prevented from observing and recording the dispersal

operation.

PART V

AFTER THE POLICING OF AN ASSEMBLY

19. Detained persons

19.1. Detention by law enforcement officials should be an exceptional measure of last

resort and no person must be held in detention for more than 48 hours without access

to a judicial or other review mechanism. National regulatory frameworks, policies,

training and standard operating procedures, including those specifically in relation to

the policing of assemblies, must promote the use of alternatives to police custody,

including court summons or police bail or bond.

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19.2. The use of detention by law enforcement officials in the context of assemblies

must conform with the provisions of the Africa Charter and, in particular, Parts 2

(General protections) and 7 (vulnerable groups) of the Luanda Guidelines. This includes

the provision of safeguards such as the presumptive right to bail and bond; the right to

have detention timeously reviewed by a competent authority; and access to confidential

and independent complaints mechanisms, legal services, interpreters, and medical

assistance.

19.3. In a policing of assemblies context, contingency planning must including

measures for the safe custody of persons held in detention at the assembly site, and

their safe and timeous transfer to a recognised place of detention. While mass arrests

are to be avoided, there may be occasions involving public assemblies where numerous

arrests are deemed necessary. Law enforcement officials should not deprive a person of

their liberty if they do not have the resources to facilitate individual arrests.

20. De-briefing and review

20.1. Law enforcement agencies must have in place post-assembly debriefing

processes. These processes should promote monitoring, evaluation and learning, and

identify any failings or good practice in the law enforcement operation in relation to

facilitation of the right to assembly; the effectiveness of risk assessments and

contingency planning, internal and external communication, deployment and

equipment; the use of force; the health, safety and working conditions of law

enforcement officials deployed to the operation (in particular, where law enforcement

officials died or were seriously injured); and tactics, decision-making and future training

needs. Law enforcement agencies are encouraged to make reports of the de-briefing

available to assembly organisers, participants, oversight authorities and other relevant

stakeholders.

20.2. Any use of force by law enforcement officials during the conduct of an assembly

operation should be subject to an automatic, independent and prompt review.

32

20.3. The discharge of a firearm by a law enforcement official during an assembly

operation must be reported to operational command, and a report be promptly made to

a competent authority, such as any oversight authority with a mandate to review and

report on police conduct and operations.

20.4. State Parties must conduct a thorough investigation and account for

circumstances surrounding every case of death or serious injury of persons in the

context of assemblies.

20.5. If a person dies as a result of law enforcement action during an assembly, a

prompt, impartial and independent inquiry into the cause of death must be undertaken

by a judicial authority. The purpose of the investigation is to determine the cause,

manner and time of death, the person responsible, and any pattern or practice which

may have brought about that death. The investigating authority must have access to all

necessary information and persons to conduct a thorough, impartial and independent

inquiry.

20.6. Law enforcement agencies should publicly communicate the findings of any

internal de-briefings, investigations (both internal and external) resulting from each

assembly operation.

PART VI

IMPLEMENTATION

21. Implementation measures

21.1. In accordance with Article 1 of the African Charter, States must adopt legislative,

administrative, judicial and other measures to give effect to the Charter, and should take

into account these Principles and Operational Standards to ensure that the rights and

obligations contained herein are guaranteed in law and practice, including during

conflict and states of emergency. State Parties are encouraged to review existing

legislative, administrative and other provisions to assess compatibility with these

Principles and Operational Standards.

33

21.2. State Parties are encouraged to disseminate these Principles and Operational

Standards to law enforcement officials, and other state security and justice agencies,

Ombudsman, national human rights institutions, national preventative mechanisms,

statutory oversight authorities and civil society.

22. Application

22.1. State Parties remain responsible for ensuring that the provisions of the African

Charter, these Principles and Operational Standards, other relevant instruments

developed by the African Commission pursuant to the Charter, and other relevant

international laws and standards are applied to the policing of assemblies.

23. Training

23.1. State Parties must ensure that all officials who are involved in the facilitation or

management of assemblies are properly trained in relation to the provisions of these

Principles and Operational Standards. The provisions of these Principles and Operational

Standards and other instruments developed by the African commission pursuant to the

African Charter should be incorporated into the curricula of all basic and in-service

training for relevant public officials.

24. Reporting

24.1. State Parties to the African Charter must provide information on national

compliance with these Principles and Operational Standards in their reports to the

African Commission pursuant to Article 62 of the African Charter.