Peaceful Political Protest: Is It Under Threat?

The Public Gatherings and Public Processions Bill tabled in parliament last week appears to be aimed solely at political speech.

It makes sense to require advance notice to the police when large gatherings are planned – to allow for logistical planning, such as ensuring sufficient numbers of marshalls and police escorts or taking steps to minimise disruption to traffic.

But the bill tabled in parliament applies to gatherings on the basis of their purpose rather than their size – and, for the first time in Namibia, empowers the police to prohibit gatherings rather than just imposing conditions to protect public safety. This seems ominous in an election year.

What gatherings would the bill apply to?

The bill regulates only public gatherings and processions that take place for one of three reasons: (1) to demonstrate support of or opposition to the policies or actions of any person or government; (b) to publicise a cause or a campaign; or (3) to hand over a petition.

Anyone organising a gathering of this nature must give the police five days’ advance notice, regardless of the gathering’s expected size.

Failure to give notice is a crime punishable by a N$5 000 fine or a year in prison.

In contrast, the law currently in force requires advance notice to the police in any case where more than 20 people are expected to attend a gathering in a public place, regardless of the purpose – with exemptions for gatherings unlikely to pose any danger to public order, such as church services, funerals, sporting events and entertainment events.

The bill currently before parliament seems to be aimed entirely at political speech and political protest.

Examples

Suppose a sports organisation organises a public procession in Windhoek to welcome home Namibia’s Olympic athletes. It expects hundreds of people to attend and to parade down Independence Avenue.

There may be disruptions to traffic as part of the celebrations and there is a plan to have several bands playing loud music which could disrupt business activities along the route.

Suppose, in contrast, two people arrange to meet in front of a ministry building to go in together to hand over a petition.

They don’t plan to have signs, loudspeakers, music or speeches, but only to assemble at the entrance to go inside and deliver the petition together.

Under the proposed bill, the sports organisation would not need to give advance notice to the police, but the two people quietly assembling together at the entrance of the government building would.

This is obviously nonsensical. The bill would regulate public gatherings solely on the basis of their purpose rather than their size or capacity for disruption – which makes no sense in terms of the stated objectives of protecting public health, public order and public safety.

Moreover, the notice procedure seems unrealistic.

The bill proposes three layers of decision-making in just five days, with the notice going through the station commander, the regional commander and the inspector general – any of whom may decide to hold a consultative meeting with the organisers, and any other parties the police consider necessary, to discuss possible conditions to be applied to the gathering.

Special rules for restricted areas

In terms of the proposed bill, “restricted areas” include court buildings, both houses of parliament, State House, airports, embassies, military buildings, prisons or Namibia Central Intelligence Service facilities – as well as other places designated as restricted areas by the relevant minister.

Public gatherings may not take place within half a kilometre of these places without special permission from an “authorised officer” – who is vaguely defined as the executive director, chief executive officer or “other official” designated to decide these matters. (The bill does not say who will make this designation.)

This makes no sense. If the goal is to prevent disruption of important institutions, the distance is excessive.

Furthermore, if the gathering does not involve one of the specified purposes, the bill does not apply and anyone can gather freely near these places without police notice.

The limitations on restricted areas are not a reasonable way to protect public order, but they would function to prevent political messages from being effectively presented to their target audience.

Moreover, special permission is required to organise a gathering within 150 metres of “any other area” – but the bill contains no clear indication of what areas this refers to.

Would the bill allow police to prohibit public gatherings altogether?

Yes. The inspector general would have the power to prohibit a public gathering or procession if he or she receives sworn information that the proposed gathering would endanger national security or the public and decides, after holding a consultative meeting, that imposing conditions on the gathering will not be sufficient.

Astonishingly, this goes farther than the current law that predates Namibia’s Constitution, which allows police to impose conditions aimed at protecting public order but gives them no power to prohibit a gathering altogether.

Are there other problems with the bill?

Yes, many. The bill would make it a criminal offence to possess a weapon at a public gathering – but the definition of weapon is so broad it could include the stick a person is using to hold up their sign.

The bill also authorises the police to disperse a gathering if anyone taking part “encourages resistance” to the government or any authority “legally established or recognised in Namibia” – another wildly broad and vague provision.

As another example, the bill requires that notice for a “national public gathering” must be given straight to the inspector general instead of starting with the station commander – but the definition of what constitutes a “national” event is incomprehensible.

What does the Namibian Constitution say?

Article 21 of the Constitution protects freedom of speech and expression, freedom to assemble peacefully and without arms and freedom of association.

These freedoms may be reasonably restricted where necessary to protect the sovereignty and integrity of Namibia, national security or public order.

The problem is the bill’s framework for such restrictions does not seem reasonable or necessary.

Moreover, article 17(1) says all citizens shall have the right to participate in peaceful political activity intended to influence the policies of government – making it all the more concerning that the bill seems to be particularly aimed at public gatherings which attempt to do just that.

Up to now, Namibia has been praised for its respect for freedom of speech and assembly and members of the public regularly exercise their right to take part in peaceful public gatherings.

Public order has been maintained for 34 years without giving the police the power to prohibit any public gatherings and without restricting gatherings on the basis of their purpose.

Public assemblies are crucial tools in democracies worldwide for members of the public to voice their concerns and are particularly important avenues for politically or economically disempowered people and groups.

The right to organise peaceful public protests should be carefully safeguarded against excessive government interference.

Further discussion on the bill by the National Assembly has been deferred until September. This might be a good time to exercise your right to assemble peacefully to make your views known.

• Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible.