The International Human Rights Framework on the Right of Peaceful Assembly
Benin is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. 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.
Benin is a State Party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, Benin is a State Party to the 1981 African Charter on Human and Peoples' Rights. Article 11 provides as follows:
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.
Benin is a State Party to the 1998 Protocol on the African Court on Human and Peoples' Rights, and had accepted the right of petition to the Court by individuals and non-governmental organisations but announced that it was withdrawing this acceptance in April 2020.
The Domestic Legal Framework on the Right of Peaceful Assembly
According to Article 25 of the 1990 Constitution of Benin, the state "shall recognize and guarantee, under conditions fixed by law, the freedom to go and come, the freedom of association, of assembly, of procession and of demonstration."
In 2000, the Constitutional Court ruled that:
the constitutional principles of movement, freedom of association, assembly, procession and manifestation are aimed at guaranteeing the individual the enjoyment of fundamental freedoms and protection against arbitrariness. So long as an administrative authority, specifically, the sub prefect fails to give any reasons for its decision to deny him such freedoms, it is construed that the Constitution has been violated.Constitutional Court ruling DCC 00-03 of 20 January 2000.
The right of peaceful assembly in Benin is regulated by the French Law of 30 June 1881 on public meetings, which remains in force. Under this law, the organisers must notify the mayor of the municipality or the prefect of the department where the assembly is to take place at least 24 hours before the meeting takes place. However, despite this ostensible notification regime, Article 6 of the Law contains restrictions on place and time restrictions of assemblies, including precluding protests on public roads or protests that take place after 11pm.CIVICUS and GAPP, Republic of Benin: Joint Submission to the UN Universal Periodic Review 28th Session of the UPR Working Group (2017).
The Government of Benin has been considering the drafting of a framework draft law on freedom of association, assembly, and expression.
In 2016, claiming the need to preserve public order, the Council of Ministers issued a decree banning activities of organisations, federations, unions, and associations of students on public universities for an undetermined period, until a new decree to regulate their activities and its conditions was issued. Although the Constitutional Court found the decree unconstitutional, the Government did not overturn the ban.CIVICUS and GAPP, Republic of Benin: Joint Submission to the UN Universal Periodic Review 28th Session of the UPR Working Group (2017).
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
A 2005 decree allows law enforcement agencies to use force to disperse unlawful assemblies either following warnings or when “serious violence is exercised by demonstrators towards law enforcement or security forces”.Arts. 23 to 25, Decree No. 2005-377 of 23 June 2005 on Regulation of the Maintenance of Public Order.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
With respect to firearms, the 2005 Decree states that they may be used without express order
when the forces of the law and order are the subject of serious and widespread violence and may otherwise defend the places, persons or materials they have the mission to keep or otherwise ensure their own safety. The use of firearms can only be justified for isolated agents in cases of self-defence.Art. 27, Decree No 2005-377 of 23 June 2005 on Regulation of the Maintenance of Public Order.
This is more permissive than international law allows.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2019 Concluding Observations on Benin, the Committee against Torture expressed its concern
at reports that, on 1 May 2019, in Cotonou, after the announcement of the results of the parliamentary elections, the Beninese law enforcement agencies and the armed forces suppressed demonstrations with excessive use of force, including the use of live ammunition against hundreds of protesters surrounding the former president's residence to show their support for him, which resulted in the death of at least two people....
The Committee called upon Benin
to conduct prompt and impartial and thorough investigations into all allegations of excessive use of force, and to develop clear guidelines on the use of force and firearms incorporating the principles of legitimacy, necessity, proportionality and precaution.
It also called upon Benin to ensure its laws and regulations governing the use of force is made consistent with international standards, including the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
During its 2017 Universal Periodic Review (UPR) under the UN Human Rights Council, Benin claimed that the security forces had not used excessive force while policing recent demonstrations.
In 2015, the Human Rights Committee expressed its concern about restrictions on rallies and demonstrations in Benin.
The African Court on Human and Peoples' Rights no longer has jurisdiction to hear cases concerning violations of human rights by individuals and NGOs in Benin.
Views of Civil Society
CIVICUS has reported that at least two people were killed and more than 470 individuals arrested in post-electoral protests and clashes that erupted after the announcement of the provisional results of the second round of the presidential polls. Supporters of presidential candidate Mahamane Ousmane, who contests the results and claims that the ballot was marred by theft, ballot-box stuffing and threats against voters, took to the streets on 23 and 24 February 2021 in Niamey and clashes between protesters and security forces ensued with reports of protesters throwing stones and security officers responding by firing tear gas. Protesters attempted to gather in front of the headquarters of the ruling party Nigerien Party for Democracy and Socialism (PNDS) but were dispersed by security officers. Clashes also occurred in Dosso, where the headquarters of a political party allied with the ruling party was set on fire. In Zinder, a massive deployment of security forces was reported.
According to Freedom House's 2019 report on Benin:
Freedom of assembly is generally respected; permit and registration requirements for demonstrations are not always enforced. In February 2018, security forces prevented a women’s march in Cotonou from traveling along the organizers’ planned route, even though the demonstration was approved by the authorities. The event was ultimately cancelled.