The International Human Rights Framework on the Right of Peaceful Assembly
Malawi 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.
Malawi 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, Malawi 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.
Malawi is also a State Party to the 1998 Protocol on the African Court on Human and Peoples' Rights, and has allowed the right of petition to the Court by individuals and non-governmental organisations.
The Domestic Legal Framework on the Right of Peaceful Assembly
Under Section 38 of the 1994 Constitution of the Republic of Malawi: "Every person shall have the right to assemble and demonstrate with others assembly peacefully and unarmed."
Derogation, during a state of emergency with respect to certain rights, including freedom of assembly, is permitted.
The 1960 Preservation of Security Act allows the Minister of Interior to "make provision for the prohibition, restriction and control of assemblies".
Under Section 96 of the 2010 Police Act, organisers of assemblies must provide authorities with 48 hours’ notice. The Act requires authorisation for demonstrations within the vicinity of Parliament, a state residence, or a court.S. 103, 2010 Police Act.
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.
Under the 1930 Penal Code, in effecting an arrest the means used must be necessary and the degree of force used must be reasonable. Under revised policy and operational guidelines on public order events, issued by the National Police in 2020, it is stipulated that the police must only use force during public order management where it is "legal, necessary and proportionate to do so".
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.
Section 105(4) of the Police Act allows the use of firearms against a person attempting to destroy or damage "valuable" property. Subsection 5 provides that the level of force used must be no more than is necessary and appropriate in the circumstances. Nonetheless, this is more permissive than international law allows.
In 2020, however, the National Police Headquarters issued a second edition of its policy and operational guidelines on public order events reflecting directly the restrictions imposed on the use of firearms by the 1990 UN Basic Principles.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2014 Concluding Observations on Malawi, the Human Rights Committee called on the authorities to "expeditiously prosecute all persons allegedly responsible for arrests, killings and ill-treatment in relation to the demonstrations that occurred in July 2011 and adequately compensate the victims".
In its 2015 Concluding Observations on Malawi, the African Commission on Human and Peoples' Rights called on Malawi to:
Take steps to effectively sensitize and train its security agents on a rights-based approach to crowd management including by developing guidelines for human rights-based management of public demonstrations.
Views of Civil Society
According to Freedom House's 2021 report on Malawi:
Freedom of assembly is guaranteed in the constitution. Prior to the February 2020 Constitutional Court ruling on the disputed 2019 presidential election, the HRDC continued to organize a series of street protests against the 2019 election’s irregularities. In March, the outgoing government arrested and charged HRDC leaders after they called for nationwide antigovernment protests, though these charges were dropped by the new government. Many other postelection demonstrations have occurred peacefully, without violence from security agents. Prominent among the year’s protests were demonstrations in October and November, criticizing the government’s failure to implement the Gender Equality Act (GEA) and speaking out against the increasing rate of gender-based violence.