The International Human Rights Framework on the Right of Peaceful Assembly
DR Congo 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.
DR Congo is also 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, DR Congo 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.
DR Congo is a signatory but not a state party to the 1998 Protocol on the African Court on Human and Peoples' Rights.
The Domestic Legal Framework on the Right of Peaceful Assembly
According to Article 25 of the 2006 Constitution of DR Congo (as amended), "The freedom of peaceful gatherings without arms is guaranteed subject to respect for law, public order and good morals." Article 26 stipulates that:
The freedom to demonstrate is guaranteed.
Any demonstration on the public highways or in the open air must be notified by the organisers in writing to the competent administrative authority.
No one may be forced to take part in a demonstration.
The law sets the appicable conditions.
Until a new legal instrument is adopted, the Legislative Decree 196 of 29 January 1999 regulating Public Assemblies and Demonstrations is the primary legislation governing assembly in DR Congo. According to Article 1: "All Congolese have the right to organise peaceful demonstrations and assemblies and to participate individually or collectively, publicly or privately, in accordance with the law, public order and morality ". This decree law distinguishes between demonstrations and assemblies, which are "sedentary gatherings of at least two people with no continuous movement from one place to another".Art. 2(2), Legislative Decree 196 of 29 January 1999 regulating Public Assemblies and Demonstrations.Demonstrations include rallies, marches, parades, and political, cultural, or religious processions.
Assemblies and demonstrations that are planned to be organised in public spaces, such as the public highway, normally require prior authorisation from the authorities.Arts. 4(2) and 5(2), Legislative Decree 196 of 29 January 1999 regulating Public Assemblies and Demonstrations.
DR Congo reported to the African Commission on Human and Peoples' Rights in 2017 that a law on freedom of assembly was passed at the beginning of 2016 by the Congolese Parliament. It was, at that time, "awaiting promulgation and publication". In early 2019, however, DR Congo reported to the United Nations Human Rights Council, in the context of its Universal Periodic Review, that "the parliament is currently considering a number of bills in order to strengthen the protection of journalists, including by decriminalizing press offences, and to ensure the freedom to carry out public demonstrations". The previous September, President Kabila had said that the issue of a new law would be reconsidered in March 2019.
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 prioportionate to that purpose.
The Congolese National Police may only use force “in case of absolute necessity and only in order to achieve a legitimate objective” and “in, any circumstances, the use of force must respect the principle of proportionality and progressivity”.Art. 8, Organic Law 11/013 of 11 August 2011 on the organization and functioning of the Congolese National Police.
According to Article 8 of the Legislative Decree 196 of 29 January 1999 regulating Public Assemblies and Demonstrations, law enforcement officials may only intervene to disperse demonstrators where there is serious violence occurring.
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. Lethal force may never be used to disperse or arrest demonstrators.
The police may use, "in case of absolute necessity", knives when they are tasked to disperse crowds or suppress riots, but may only use firearms "when previously requested to do so by the authority legally responsible for the maintenance of order". Before any recourse to firearms, this authority makes three summons formulated in a high and intelligible voice with the following terms: “Obey the law! We are going to use firearms. Good citizens, leave!”Art. 9, Organic Law 11/013 of 11 August 2011 on the organization and functioning of the Congolese National Police.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2017 Concluding Observations on DR Congo, the Human Rights Committee expressed its concern to note that,
despite the provisions of articles 25 and 26 of the Constitution, under which demonstrations are allowed if prior notice is given to the authorities, the legislative framework has not yet been harmonized and the authorities can impose a prior authorization requirement under current law. Of particular concern are allegations that authorization is systematically denied for demonstrations in support of the political opposition, but granted for demonstrations in support of the Government....
The Committee called on DR Congo to:
(a) harmonize its legislative framework with articles 24 and 25 of the 2006 Constitution; and
(b) avoid taking any measures to deprive individuals of their right to freedom of peaceful assembly when such measures are not justified under the provisions of the Covenant.
The Committee was also concerned
about allegations that police and security officers have used excessive force to disperse demonstrations, resulting in deaths and injuries in some cases, such as the demonstrations that took place between 19 and 21 September 2016 and on 19 and 20 December 2016....
The Committee further called on DR Congo to:
see to it that all instances of excessive use of force are promptly, impartially and effectively investigated and that those responsible are brought to justice. It should also take measures to effectively prevent and eliminate all forms of excessive use of force by police and security officers, including by providing such personnel with training on the use of force, taking due account of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
In the context of the 2019 Universal Periodic Review of DR Congo under the UN Human Rights Council, the UN Joint Human Rights Office reported documenting arbitrary arrests and other violations of the right to liberty and security of person against 2,252 victims, including at least 103 women, in the exercise of their rights to freedoms of expression and opinion, demonstration and peaceful assembly or association.
The African Commission on Human and Peoples’ Rights has, in a number of recent resolutions, condemned excessive use of force by state agents, as well as the “ongoing impunity” attached to their actions, and called on the Government of the DR Congo to conduct investigations into the human rights violations allegedly committed.ACHPR, Resolution 358 on the Human Rights Situation in the Democratic Republic of Congo, ACHPR/Res. 358(LIX) 2016, 4 November 2016; ACHPR, Resolution 393 on the Human Rights Situation in the Democratic Republic of Congo – ACHPR 393 (LXII), 22 February 2018.
A Commission of Inquiry was established in 2018 by Ministerial OrderMinisterial Order N°001/CAB/MIN/DH2018.to investigate “the violations and abuses of human rights in relation to the protests of 31 December 2017 and 21 January 2018 in Kinshasa”. Its report, which was published on 10 March 2018,Mixed Commission of Inquiry-3121, “Rapport de synthèse de la commission d’enquête mixte 3121: Enquête sur les violations et atteintes relatives aux droits de l’homme en lien avec les manifestations du 31 décembre 2017 et 21 janvier 2018 à Kinshasa”, 10 Mars 2018, Kinshasa.found that violations of the right to life and of the right to physical integrity had been committed by the Congolese National Police and the DRC armed forces. It recommended that the government create an Independent Commission of Experts tasked with revising the command system and the deployment protocol of the defence and security forces in situations other than war or violent riots. It also recommended that the government ensure the investigation and prosecution of the perpetrators of violations and abuses of human rights during the protests of 31 December 2017 and 21 January 2018.
Views of Civil Society
According to Freedom House's 2019 report on DR Congo:
The constitution guarantees freedom of assembly, and demonstrations are held regularly, but those who participate risk arrests, beatings, and lethal violence in practice. The government repeatedly banned opposition demonstrations and used force against protesters during 2018. Among numerous other incidents over the course of the year, in January security forces arrested church-led protesters calling for elections across the country. In July, police arrested peaceful protesters from two youth organizations who were demanding the release of fellow activists detained in Kinshasa. In August, government forces used tear gas and live ammunition to disperse opposition protests. Protest-related violence continued as the December elections approached, and more than a dozen people were reportedly killed at various demonstrations in the final weeks before the balloting.