The International Human Rights Framework on the Right of Peaceful Assembly

Namibia 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.

Namibia 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, Namibia 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. 

Namibia 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

Under the 1990 Constitution of the Republic of Namibia, all persons shall have the right to "assemble peaceably and without arms".Art. 21(1)(d), 1990 Constitution of the Republic of Namibia.

National Legislation

The 1989 Public Gatherings Act is the primary legislation governing assemblies in Namibia. Notification of a planned assembly is required at least three days in advance.

Under Section 5 of the Act, when any persons attending a public assembly

(a) kill or seriously injure any person, or attempt or show a manifest intention of doing so; or
(b) destroy or do serious damage to any valuable property, or attempt or show a manifest intention of doing so

the police may disperse the assembly.

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.

National Legislation

Under Section 5(2) of the 1989 Public Gatherings Act, a dispersal may use force that

shall not be greater than is reasonably necessary for dispersing the persons assembled, and the force used shall be moderated and proportionate to the circumstances of the case and the object to be attained....

The actions of the Namibian Police Force are generally regulated by the 1990 Police Act (as amended through 2005). The Police Act allows any police officer to use

such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of an offender or suspected offender or persons unlawfully at large.S. 14(10), 1990 Police Act (as amended through 2005).

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

Under Section 6(1) of the 1989 Public Gatherings Act, firearms "or other weapons likely to cause serious bodily injury or death" may be used to disperse a public gathering after less-lethal weapons have failed to achieve that objective "or unless or until" any persons attending the assembly:

(a) kill or seriously injure any person, or attempt or show a manifest intention of doing so; or
(b) destroy or do serious damage to valuable property, or attempt or show a manifest intention of doing so.

These provisions also do not comply with international law. Under subsection 2, 

Firearms or other weapons likely to cause serious bodily injury or death shall be used for the purposes aforesaid with all reasonable caution, without recklessness or negligence, and so as to produce no further injury to any person than is reasonably necessary for the attainment of the object aforesaid.

Under the 1977 Criminal Procedure Act, a police officer may use firearms to arrest a fleeing suspect who is to be arrested for a wide range of offences that include theft, fraud, or sodomy. If the officer

cannot arrest him or prevent him from fleeing by other means than by killing him, the killing shall be deemed to be justifiable homicide.S. 49(2), 1977 Criminal Procedure Act.

These provisions also do not comply with international law. 

State Compliance with its Legal Obligations

Views and Concluding Observations of United Nations Treaty Bodies

In its 2016 Concluding Observations on Namibia, the Human Rights Committee did not address the right of peaceful assembly.

Regional Jurisprudence

In its 2016 Concluding Observations on Namibia, the African Commission on Human and Peoples’ Rights commended Namibia for implementing Article 21 of the Constitution which provides for freedom to assemble peacefully and without arms, but was concerned about a proposed Bill on public gathering, which "has the potential to infringe" on the right to assembly.

Views of Civil Society

According to Freedom House's 2019 report on Namibia:

Freedom of assembly is guaranteed in law and is usually observed in practice, but can be restricted during a national emergency. Authorities occasionally prevent peaceful protests from taking place, and have increasingly used violence to disperse demonstrators. In August 2018, student protesters in Windhoek, who had marched to the Higher Education Ministry to hand over a petition demanding government funding for tuition fees, were assaulted by police. The police claimed that the force applied was in response to demonstrators acting in a “disorderly” manner, which the student activists denied.

In July, police arrested several members of the Caprivi Concerned Group, which advocates for secession of the Zambezi Region, while they were attempting to hold a public meeting near Katima Mulilo. Six members of the group were subsequently charged with sedition and several other crimes, but the charges were quickly dropped.

Downloads

1990 Constitution of Namibia - Download (285 KB)
1989 Public Gatherings Act of Namibia - Download (77 KB)
1990 Police Act - Download (355 KB)
1977 Criminal Procedure Act - Download (2 MB)
ACHPR Concluding Observations on Namibia (2016) - Download (215 KB)