The International Human Rights Framework on the Right of Peaceful Assembly
South Africa 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.
South Africa 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, South Africa 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.
South Africa is also a state party to the 1998 Protocol on the African Court on Human and Peoples' Rights, but has not allowed the right of petition to the Court by individuals and non-governmental organisations.
The Domestic Legal Framework on the Right of Peaceful Assembly
Chapter 2 of the 1996 Constitution is the Bill of Rights. Under Section 17, "Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions."
The 1993 Gatherings Act governs public assemblies. Section 3 ("Notice of gatherings") requires the convener of a gathering to give notice in writing signed by him of an intended gathering seven days in advance. If, however, it is "not reasonably possible" for the convener to do so, he or she "shall give such notice at the earliest opportunity". If notice "is given less than 48 hours before the commencement of the gathering, the responsible officer may by notice to the convener prohibit the gathering."
Under Section 5 of the Act ("Prevention and prohibition of gathering"):
(1) When credible information on oath is brought to the attention of a responsible officer that there is a threat that a proposed gathering will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property, and that the Police and the traffic officers in question will not be able to contain this threat, he shall forthwith meet or, if time does not allow it, consult with the convener and the authorized member, if possible, and any other person with whom, he believes, he should meet or consult, including the representatives of any police community consultative forum in order to consider the prohibition of the gathering.
(2) If, after the meeting or consultation referred to in subsection (1), the responsible officer is on reasonable grounds convinced that no amendment ... and no condition ... would prevent the occurrence of any of the circumstances contemplated in subsection (1), he may prohibit the proposed gathering.
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.
Section 9(2) of the 1993 Gatherings Act gives the police broad powers to order the dispersal of an assembly and to use force to achieve that objective: If an order to disperse has been given and has not been complied with by the deadline given by the police
(b)... a member of the Police may order the members of the Police under his command to disperse the persons concerned and may for that purpose order the use of force, excluding the use of weapons likely to cause serious bodily injury or death.
(c) The degree of force which may be so used shall not be greater than is necessary for dispersing the persons gathered and shall be proportionate to the circumstances of the case and the object to be attained.
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 9(2) of the 1993 Gatherings Act provides, with respect to use of firearms:
(d) If any person who participates in a gathering or demonstration or any person who hinders, obstructs or interferes with persons who participate in a gathering or demonstration-
(i) kills or seriously injures, or attempts to kill or seriously injure, or shows a manifest intention of killing or seriously injuring, any person; or
(ii) destroys or does serious damage to, or attempts to destroy or to do serious damage to, or shows a manifest intention of destroying or doing serious damage to, any immovable property or movable property considered to be valuable, such a member of the Police of or above the rank of warrant officer may order the members of the Police under his command to take the necessary steps to prevent the action contemplated in subparagraphs (i) and (ii) and may for that purpose, if he finds other methods to be ineffective or inappropriate, order the use of force, including the use of firearms and other weapons.
(e) The degree of force which may be so used shall not be greater than is necessary for the prevention of the actions contemplated in subparagraphs (d) (i) and (ii), and the force shall be moderated and be proportionate to the circumstances of the case and the object to be attained.
The authorisation to use firearms is considerably more permissive than international law allows.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In 2016, in its Concluding Observations on South Africa's initial report on its implementation of the 1966 International Covenant on Civil and Political Rights, the United Nations Human Rights Committee expressed its concernHuman Rights Committee, Concluding observations on the initial report of South Africa, UN doc. CCPR/C/ZAF/CO/1, 27 April 2016, §26.
about numerous reports of excessive and disproportionate use of force by law enforcement officials in the context of public protests that has resulted in loss of lives. The Committee is also concerned about the slow pace of the investigation into the Marikana incident, including with respect to the criminal responsibility of members of the South African Police Service and the potential liability of the Lonmin Mining Company....
The Committee called on South Africa to:Human Rights Committee, Concluding observations on the initial report of South Africa, UN doc. CCPR/C/ZAF/CO/1, 27 April 2016, §27(a).
Expedite the work of the Task Team and the Panel of International Experts established by the Ministry of Police in implementing the recommendations of the Marikana Commission of Inquiry, revise laws and policies regarding public order policing and the use of force, including lethal force by law enforcement officials, to ensure that all policing laws, policies and guidelines are consistent with article 6 of the Covenant and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials....
In its 2016 Concluding Observations on South Africa, the African Commission on Human and Peoples' Rights expressed its concern about the lack of information on the promotion of the rights of human rights defenders. The Commission called on South Africa to:
take legislative and other measures to protect and promote human rights in conformity with the UN Declaration on Human Rights Defenders, the African Charter, the Kigali Declaration and other regional and international human rights instruments that guarantee the right to freedom of association and assembly.
One of the most notorious incidents of recent years was the shooting to death of 34 striking miners by officers belonging to the South African Police Service (SAPS) and the injury of more than 70 others at Marikana during a single day in August 2012. Some of the casualties resulted from the use of assault rifles in fully automatic mode. A Commission of Inquiry was established to investigate the use of force by SAPS officers.Marikana Commission of Inquiry: Report on Matters of Public, National and International Concern Arising Out of the Tragic Incidents at the Lonmin Mine in Marikana, in the North West Province, 31 March 2015.The Commission's report in 2015 recognisedMarikana Commission of Inquiry Report, pp. 548-49.
the dangers inherent in the situation when Public Order Policing members are faced with a crowd armed with sharp weapons and where non-lethal force is ineffective. However the use of R5 or any automatic rifle is clearly untenable, not only because of the Constitutional imperatives, but also because the effects seen at Marikana are just too disturbing and devastating for South Africa even to contemplate any recurrence.