Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The African Commission on Human and Peoples’ Rights (ACmHRP) held that Zimbabwe was responsible for violating the applicants’ rights to freedom of expression, freedom of assembly, freedom of association, personal liberty, non-discrimination, and equal protection. The petitioners were members of an organization called Women of Zimbabwe Airse (WOZA) and were systematically harassed, intimidated, threatened, arbitrarily arrested, and prevented from engaging in public demonstrations and peaceful protests. The Commission found that all these were unlawful restrictions because they were not necessary in a democratic society and served no legitimate aim, such as protecting national security, public order, public health, or morals. The Commission ordered Zimbabwe to investigate, prosecute, and punish those responsible for the human rights violations; provide redress for prejudices suffered by the victims; and carry out human rights training to police and public officials.
Between 2003 and 2015, Jennifer Williams, Magodonga Mahlangu, and other members of Women of Zimbabwe Airse (WOZA) participated in peaceful demonstrations in different parts of Bulawayo and Harare, Zimbabwe. Their peaceful protest included processions, marches, mass demonstrations, sit-ins, verbal expressions, and the holding of placards. On several occasions, they were criminally prosecuted for participating in gatherings with the intent to promote breaches of the peace, or bigotry, under Section 37 of the Zimbabwe Criminal Code. Particularly, on October 16, 2008, Jennifer Williams and Magodonga Mahlangu were arrested and detained for three weeks.
The applicants litigated through the domestic system and received a final decision by the Supreme Court of Zimbabwe on November 26, 2010. The Court held that the participation of the applicants in the public demonstrations was protected under the Constitution of Zimbabwe and that the arrest was a violation of their right to personal liberty. However, they still faced obstacles to engage in peaceful protests.
On February 10, 2012, ten WOZA members were arrested and charged with criminal nuisance, under Section 46 of the Zimbabwe Criminal Code, and released on bail. They were granted a referral to the Supreme Court, for a determination on the question of violation of their fundamental rights.
On April 13, 2013, the Robert F. Kennedy Center for Justice and Human Rights and Zimbabwe Lawyers for Human Rights filed a complaint before the African Commission on Human and Peoples’ Rights on behalf of Jennifer Williams, Magodonga Mahlangu, and Women of Zimbabwe Airse (WOZA). The applicants also requested provisional measures, in order to prevent any irreparable harm that could occur if the government continued to suppress their rights to engage in peaceful protests in the time leading up to the elections, in 2013. The Commission did not grant the provisional measures, on the grounds that the complaint did not disclose sufficient grounds.
On July 2015, the Commission declared the communication admissible and informed this decision to the parties on October 8, 2015.
The African Commission on Human and Peoples’ Rights unanimously condemned the State of Zimbabwe for violating the African Charter on Human and Peoples’ Rights due to the systematic patterns of disruption of peaceful protests organized by the NGO WOZA, combined with the persecution, threat, and harassment of its members. The Commission had to decide whether the continued combination of systematic practices by the Zimbabwe police forces and authorities to restrict the complainants’ peaceful social protests, the persecution and arrest of WOZA members, and the state’s domestic regulations constituted violations of the rights to freedom of expression, freedom of assembly, freedom of association, personal liberty, non-discrimination, and equal protection.
Regarding the admissibility of the case, the petitioners argued that they should not be required to exhaust further local remedies because, as a practical matter, they are unavailable and ineffective. To sustain this argument, the applicants referred to the Supreme Court’s decision of November 2010, and pointed out that despite this judgment, they continued to be harassed, intimidated, threatened, arbitrarily arrested, and prevented from engaging in public demonstrations and peaceful protest. Thus, since they have already litigated a case and received a favorable decision from the highest domestic court, which was disregarded by the state, the applicants submitted that considering the general context, local remedies are neither effective nor sufficient to redress Zimbabwe’s systematic pattern of violations.
As for the merits, the petitioners claimed that their right to peaceful protest had been violated because the Zimbabwe Republic Police (ZRP) and other state agencies prevented them from carrying out peaceful protests and arrested and detained them between 2003 and March 2013. Additionally, they demanded reforms of Zimbabwe’s laws that restricted the right to engage in peaceful protest. For example, they consider that there are no adequate safeguards against police officers and other state agents who utilize various methods such as threats, physical force, torture, and arbitrary arrest, to prevent people from engaging in peaceful protests and public demonstrations. The applicants also considered they experienced discriminatory treatment, on the basis of their critical opinion of the Government, and that their rights to freedom of expression, assembly and association were violated because of their political position. The petitioners also submitted that their arbitrary arrest and detention violated their right to personal liberty. Further, the petitioners considered that the notification requirement has turned into a de facto permission, which entitles the police to disperse any assembly not expressly authorized, as unlawful. They also added that even if POSA is a law of general application, “its overly broad construction allows for selective enforcement by government actors to prevent the free exercise of the right to freedom of assembly on the basis of opinion” [para. 110].
The state held that the case was inadmissible because the applicants failed to exhaust all local remedies. In this sense, Zimbabwe noted that there were pending proceedings before the Constitutional Court. Secondly, regarding the merits, the state held that it has appropriate legislation that allows every person to engage in peaceful protests. Nevertheless, it explained that governments should balance the rights of those who want to demonstrate with the rights of those who want to proceed with their daily business without hindrances. In its opinion, the applicants have the habit of “engaging in demonstrations without following the law which results in disturbing the public peace, safety and order” [para. 103]. In particular, Zimbabwe referred to its Public Order and Security Act (POSA), which requires conveners of public meetings, gatherings, or processions to give notice to the police. Zimbabwe argued that the petitioners’ arrests and detentions followed their failure to comply with the law and were not the result of a discriminatory application of the law based on their critical opinions of the government.
The ACmHRP recalled that according to its well-established jurisprudence, complainants are required to exhaust local remedies only if they are available, effective, and sufficient. For this case, the Commission considered that since the decisions from the highest Court were ignored, the remedies were not effective. Additionally, it held that the State had not refuted any allegations of on-going violations, which render the available remedies ineffective in the circumstances of the applicants.
Regarding the submissions on the merits, the Commission analyzed the violation of the rights to freedom of expression (article 9 of the African Charter on Human and Peoples’ Rights), freedom of association (article 10), and freedom of assembly (article 11) altogether. In this sense, it held that “the rights to freedom of expression, assembly and association are intertwined to the extent that they are fundamental human rights that form the foundations of democratic societies” [para. 118].
As for the right to freedom of association, the ACmHPR affirmed that associations must be given the freedom to pursue a wide range of activities, including exercising their rights to freedom of expression and assembly. It also sustained that the right to freedom of association obliges states to establish an environment that is conducive to the exercise of this right without fear and encumbrances, this means, without threats, harassment, interference, intimidation or reprisals of any kind. In particular, the right to freedom of association includes the prohibition against physical attack on the basis of affiliation with any association. The Commission held that the State had interfered with WOZA’s activities through the arrests, harassment, seizure of property, amongst other methods, and declared the violation of article 10 of the African Charter.
Regarding article 11, the Commission acknowledged that the right to freedom of peaceful assembly is not absolute. However, restrictions must be established by law and necessary to protect interests such as national security, safety, health, ethics or the rights and freedoms of others. Here, the Commission recalled that the applicants were dispersed, arrested, harassed, and detained on several occasions during their peaceful demonstrations, with trumped-up charges against them. Thus, it concluded that these were unlawful restrictions that curtailed the rights to freedom of expression and assembly, with no proper justification.
Furthermore, the ACmHPR held that the procedure established by law, which requires prior notification to hold protests could be necessary for the smooth conduct of public demonstrations. However, it also emphasized that these procedures could be abused by authorities to curtail the right to freedom of assembly. The Commission established that “any intervention to an assembly that did not seek prior notice can only be justified if it is clearly shown that there is potential risk or disruption to the public” [para. 159]. In this case, the Commission held that the State did not prove that the restrictions were aimed at protecting morals, and order nor legitimate to a democratic society, so it declared a violation of article 11, because the dispersal of the unauthorized assembly, was unjustified because the interference did not pursue a legitimate aim.
Regarding freedom of expression, the Commission highlighted that this right is the “cornerstone of a democratic country, and any violation of the right to freedom of expression impacts on the full realization of other rights and freedoms enshrined in the African Charter and other international instruments” [para. 171]. It also warned that restrictions to this right must serve a legitimate interest and be necessary in a democratic society. Since Zimbabwe did not provide any justifiable reasons to show that restrictions to freedom of expression were based on legitimate grounds, including the need to safeguard national security public order, public health or morals, the Commission found a violation of article 9 of the African Charter.
Additionally, the ACmHPR also held that the arrests and detentions of demonstrators were unlawful and declared the violation of article 6 of the African Charter (right to personal liberty). In terms of the right to non-discrimination and equal protection, the Commission declared that “States should not focus on the existence or content of legislation, but rather how the legislation is enforced and applicable to all citizens” [para. 201]. Here, even if POSA was a law of general application, the ACmHPR found “a pattern of disruption of demonstrations with the police over-reaching their powers under POSA to unnecessarily restrict and prevent public gatherings” [para. 212]. However, the Commission held that there was no discriminatory impact of the law against the applicants in particular because other demonstrations in the State have also been interrupted as well. Still, the Commission held that, in general, demonstrations relating to matters critical of the government were restricted, but pro-Government demonstrations were allowed to take place, without any valid justification. This situation amounts to differential treatment or favoritism and implies a violation of article 2 (right to non-discrimination) and Article 3 (equal protection).
In conclusion, the Commission ordered Zimbabwe to i) promptly and independently investigate, prosecute, and punish all State actors responsible for the human rights violations; ii) provide redress for prejudices suffered by the Victims; iii) implement all domestic laws, policies, and practices as well as international and regional standards, for the protection and facilitation of the right to engage in peaceful protest and public demonstration; and iv) carry out human rights training to police and public officials.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expands freedom of expression and the right to engage in peaceful protests because it establishes that, even if demonstrations do not request prior authorization, as required by domestic law, they still enjoy a presumption of legality: any intervention to an assembly that did not seek prior notice can only be justified if it is clearly shown that there is potential risk or disruption to the public. This means that the lack of authorization cannot be the only reason to restrict the rights to freedom of expression, assembly and association. Restrictions to these rights must be established by law, serve a legitimate interest, and be necessary in a democratic society to safeguard national security, public order, public health or morals. Furthermore, the ACmHPR held that States must establish an environment that is conducive to the exercise of the right to engage in peaceful protests, without fear, threats, harassment, interference, intimidation or reprisals of any kind.
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Case significance refers to how influential the case is and how its significance changes over time.
This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.
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