The International Human Rights Framework on the Right of Peaceful Assembly

Eswatini (formerly Swaziland) 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.

Eswatini is not 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, Eswatini 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. 

Eswatini 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

Constitutional Provisions

According to the 2005 Constitution of the Kingdom of Swaziland, fundamental human rights and freedoms of the individual are guaranteed, including respect for the freedom of peaceful assembly.S. 14(1), 2005 Constitution of the Kingdom of Swaziland Act.

National Legislation

The 2017 Public Order Act is the primary legislation governing assemblies in Eswatini. The Act removes the earlier requirement that organisers of a public gathering had to obtain a permit from the Police. Conveners of meetings or gatherings have to give the Police at least four days' notice of an assembly. In special circumstances, this may be reduced to 48 hours where "valid reasons" are provided for the shorter notice.

The notification will be followed by a consultation process between the Police, Local Authorities, and the conveners or organisers to discuss logistics such as routes to be used and the start and dispersal times of the assembly. The Police and the Local Authorities may set conditions to the conduct of a gathering where there are concerns of public order and safety.

The Police are only allowed to prohibit an assembly where they are satisfied on reasonable grounds that it will endanger public order and public safety and that no amendment, condition, or arrangement can be set or made to prevent the threats. The Act incorporates a provision for judicial review by a magistrate of a decision by the Police to prohibit an assembly.

The 2008 Suppression of Terrorism Act has been found to be unconstitutional because of its impact of freedom of expression and assembly. The breadth of definition considered criticism of the King as an act of terrorism.

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.

National Legislation

The 2017 Public Order Act amends legislation from 1963 on public gatherings.1963 Police and Public Order Act.A gathering that is deemed by a police officer (above the rank of sergeant) to be a "direct and immediate threat to public order or safety" may be dispersed, if necessary by force.S. 11(8), 2017 Public Order Act.The force used:

shall not be greater than is necessary to secure the dispersal of the gathering and shall be proportionate to the circumstances of the case and the object to be attained.S. 11(10), 2017 Public Order Act.

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. 

National Legislation

The 1938 Criminal Procedure and Evidence Act allows a police officer immunity from prosecution for shooting to death an escaping criminal, whether or not he or she is armed or otherwise poses an immediate threat to life.S. 41, 1938 Criminal Procedure and Evidence Act.In its 2016 National Report for its Universal Periodic Review under the UN Human Rights Council, however, Eswatini claimed that:

The criminal procedure code permits law enforcement officers to use lethal force as measure of last resort where their lives are in danger. Non-lethal force is used where a person suspected of criminal conduct resists arrest or flees and cannot be apprehended or prevented from fleeing by means other than the use of force.

State Compliance with its Legal Obligations

Views and Concluding Observations of United Nations Treaty Bodies

In its 2017 Concluding Observations on Eswatini in the absence of a national report, the Human Rights Committee called on the state party to the ICCPR to:

promptly adopt legislation to ensure that any restriction on the exercise of freedom of expression, assembly and association complies with the strict requirements in the Covenant. The State party should take all measures necessary to protect the rights to freedom of expression, association and peaceful assembly and ensure that police officials, judges and prosecutors receive adequate training regarding such protection.

In its 2016 submission in the context of the Universal Periodic Review of Eswatini under the UN Human Rights Council, the UN Country Team stated that:

no significant progress had been achieved in the area of freedom of assembly and association. Political parties remained banned and their leaders remained under constant threat of prosecution under the Public Order Act, the Suppression of Terrorism Act and the Sedition and Subversive Activities Act.

Regional Jurisprudence

Eswatini has not submitted a national report on implementation of the African Charter on Human and Peoples' Rights to the African Commission of Human and Peoples' Rights since 2000.

Views of Civil Society

Freedom House, in its 2019 report on Eswatini, stated that: 

Freedom of assembly remained heavily restricted in 2018. Demonstrations are often violently dispersed by police, and protesters risk arrest and detention. In September, civil servants marching for pay increases were met by police who fired stun grenades into the crowd and assaulted demonstrators. Surveillance of protests is common, and the information collected is reportedly used to deny protesters access to government jobs and services.

Downloads

2005 Constitution of the Kingdom of Swaziland - Download (1 MB)
2017 Public Order Act of Eswatini - Download (1 MB)
2008 Suppression of Terrorism Act of Eswatini - Download (214 KB)
Human Rights Committee Concluding Observations on Eswatini (2017) - Download (234 KB)