Protection of the Right to Freedom of Assembly under Ethiopian Law: Gaps and the Way Forward
| Author | Tsega Andualem Gelaye |
| Position | Tsega Andualem Gelaye, LL.B, LL.M in Human Rights Law (Addis Ababa University), LL.M in Comparative Constitutional Law (Central European University), (SJD student in Comparative Constitutional Law, Central European University). |
| Pages | 296-340 |
296
Protection of the Right to Freedom of
Assembly under Ethiopian Law:
Gaps and the Way Forward
Tsega Andualem Gelaye
Abstract
The right to Freedom of assembly is among the political rights enshrined under the
Constitution of the Federal Democratic Republic of Ethiopia (FDRE). Despite the
frequent reporting of its rampant violation by human right monitoring bodies and
the media, one cannot find a research that assesses the adequacy of protection
offered to the right by the Ethiopian Constitution and other laws of the country.
This article seeks to fill this gap by indicating some of the key problems with the
existing legal regime governing the right and the prevailing practice. As such, it
argues that the present Constitution of Ethiopia gives an incomplete protection to
the right, by failing to go beyond listing grounds of limiting it without
incorporating additional guarantees of preventing arbitrary restrictions such as
necessity and proportionality in explicit manner. Moreover, it contends that this
problem was exacerbated by the presence of too many loopholes in the Peaceful
Demonstration and Public Political Meetings Proclamation that ranges from
inadequate rules governing notification procedure to the absence of fair hearing
and judicial or administrative review procedures in the law. Suggestions to
improve the legal guarantees for freedom of assembly in Ethiopia are also made in
the article in light of lessons from the experience of other national and
international jurisdictions with better standards of protection. Furthermore, it
asserts that reforming the legal regime applicable to freedom of assembly and
ensuring its appropriate implementation requires a strong political will of the
ruling party in promoting good governance, respecting rule of law and
strengthening democratic institutions.
Key terms
Demonstration, Ethiopia, freedom of assembly, notification, proportionality,
limitation
DOI http://dx.doi.org/10.4314/mlr.v10i2.2
Tsega Andualem Gelaye, LL.B, LL.M in Human Rights Law (Addis Ababa University),
LL.M in Comparative Constitutional Law (Central European University), ( SJD student in
Comparative Constitutional Law, Central European University).The author would like to
thank the anonymous reviewers of the Journal for enhancing the quality of the final
article. He could be reached at: tsega.andualem@gmail.com
Protection of the Right to Freedom of Assembly under Ethiopian Law … 297
Introduction
Freedom of assembly is a right that is rarely defined in major human rights
treaties including the International Covenant on Civil and Political Rights
(ICCPR). No General Comment that defines what the right protects is issued to
date. To fill this gap in the existing treaties, several authorities have attempted to
define what is meant by protected assembly. For instance, the experts of the
Venice Commission (an advisory body of the Council of Europe) have defined
an assembly as ‘Intentional and temporary presence of a number of individuals
in a public place for a common expressive purpose’.1 The right safeguards the
purposeful gathering of people in public places such as streets, parks, squares or
other spaces that are freely accessible to the public. The ultimate aim of such
gathering is the public expression of positions on various issues of public
concern, be it in a declarative form like the case of public demonstration or an
inward deliberation and discussion on issues among the assembled as the case in
public meetings.2
The right to freedom of assembly only safeguards gatherings which are
nonviolent.3 This requirement is implied in every definition of a protected
assembly and unanimously recognized in international human rights instruments
as well as the domestic constitutions of states. Here it must be noted that, the
right to freedom of assembly is not an absolute right. Thus, limitations could be
placed upon it to safeguard other legitimate interests such as national security,
public safety, public order or respect for the rights of others.4 This however does
not mean that the right could be restricted arbitrarily by invoking every ground.
Instead, ‘in each instance of potential limitation the state must clearly define the
precise purpose served, as well as showing that the measure in question is
necessary and proportionate’.5 In other words, the state must meet the
proportionality scrutiny.
1 OSCE/ODHIR (2010), Venice Commission Guideline on Freedom of Assembly (2nd ed)
(June 2010).
2 O. Salat (2015), The Right to Freedom of Assembly a Comparative Study, Hart , Oxford,
pp. 5-6.
3 OSCE/ODHIR (n1), pp. 25-26.
4 International Covenant on Civil and Political Rights Adopted and opened for signature,
ratification and accession by General Assembly resolution 2200A (XXI) of 16 December
1966, entry into force 23 March 1976, in accordance with Article 49) art. 21; African
(Banjul) Charter on Human and Peoples' Rights, (Adopted 27 June 1981, OAU Doc.
CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered Into Force 21 October 1986, art. 11.
5 African Commission on Human and Peoples Right (ACHPR), Report of the Study Group
on Freedom of Association & Assembly in Africa, (2014), p.21.
298 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
Like many national constitutions, the present constitution of Ethiopia (FDRE
Constitution) adopted in 1995 has recognized the right to freedom of assembly.6
Ethiopia has also ratified all international and regional treaties acknowledging
this right which further reinforces its obligation to respect and enforce it.
Moreover, other subsidiary laws were enacted prior to the adoption of the
Constitution with the objective of facilitating the implementation of the right.7
Yet, the right remains one of the most repressed political rights in the country as
witnessed in practice. Severe suppression of the right has led some including the
author, to regard the right as illusory and devoid of any practical significance.
To corroborate this assertion, it might be relevant to see the situation in the
pre and post 2005 Ethiopian general election. This period is imperative for
anyone who is interested in studying the history of freedom of assembly in
Ethiopia since the adoption of the Constitution in 1995. It marks the period
where, the right enjoyed a relative respect for a short duration before it entered
its several years of hibernation. Unlike the preceding elections which were
largely boycotted, the 2005 election was competitive to a large extent.8 This is
mainly attributed to the pledge of the ruling party to open democratic space and
undertake a free and fair election.9 Accordingly, ‘live televised debates on
matters of public policy, opposition party access to state-owned media, and
huge, peaceful rallies’ were seen for the first time.10 Further, in a manner which
is unprecedented before, nearly one million people in the capital displayed their
support for opposition parties through an entirely peaceful demonstration.11
Other massive rallies were also held by opposition supporters in many parts of
the country without much difficulty.
However, these developments were short-lived. On the evening of the
election date, the late prime minster issued a decree that outlaws the conducting
of demonstration in the capital for a period of one month which was extended
6 The Federal Democratic Republic of Ethiopia Constitution (1995), art. 30(1).
7 The Proclamation to Provide for Peaceful Demonstration and Public Political Meetings,
Proclamation No. 3/1991, Federal Negarit Gazzeta 50th Year No. 4, Addis Ababa, 12
August 1991 (hereinafter Demonstration and Political Meeting Proclamation).
8 Terrence Lyons, ‘Ethiopia in 2005: The Beginning of a Transition?’ African Notes No.25
Center for Strategic and International Studies January 2006
prod.s3.amazonaws.com/s3fs-public/legacy_files/files/media/csis/pubs/anotes_0601.pdf >
accessed on 23 October 2016.
9 Ibid.
10 Ibid.
11 Stefan Brüne (2010), ‘The European Union and its Africa strategy Case study Ethiopia’ in
Valeria Bello and Behailu Geberewold (eds)A Global Security Triangle European,
African and Asian Interaction , Routledge Taylor Francis Group, London and New York,
p.142.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 299
until July 2005.12 Those who defied the order of the prime minster paid dearly
with their lives and bodies. Even after the expiry of the ban on demonstration, in
September and subsequent months, municipalities and other administrative units
consistently refused to allow gatherings organized by opposition parties in
different parts of the country.13 This marked the beginning for the long period of
dormancy for the right. Thus, for eight years subsequent to the 2005
controversial election, no demonstration was held in the capital Addis Ababa.14
Even after 2013, a number of notifications for undertaking public
demonstrations or political meetings were either denied by the authorities
regulating assemblies from the very outset or dispersed by force subsequently.15
Many people also died and sustained bodily injury in the course of exercising
this right in Oromia and Amhara regional states of Ethiopia.16 The violence and
destruction of property that ensued following the crackdown of the protests by
security personnel ultimately led to the declaration of state of emergency17 by
the government which entailed the complete suspension of the right to freedom
of assembly and severe restrictions to other fundamental freedoms throughout
12 Carter Center, Observing The 2005 Ethiopia National Elections Carter Center Final
Report (December 2009) p.4.
13 U.S Department of State, ‘Ethiopia’ (8 March 2006).
14 Solomon Goshu, ‘Peaceful Political Rallies: The Right Besieged by Hurdles’, The
Reporter, 31 January 2015 accessed 3l
March 2016; Human Right Watch, World Report 2015: Ethiopia,
May 2016.
15 Neamin Ashenafi, ‘Cancellation of Planned Demonstration Annoys Medrek’
medrek> accessed 1April 2016; ‘Ethiopia Arrests 43 Anti-Graziani Statute Protesters in
Addis Ababa’ accessed 31 March 2016,
Ethiopian Police Crackdown On Anti-Saudi Protest’.
March 2016.
16 ‘UN Experts Urge Ethiopia To Halt Violent Crackdown On Oromia Protesters, Ensure
Accountability For Abuses’
D=#sthash.veMqExX4.dpuf > accessed 1 April 2016; ‘Ethiopia: Dozens killed as Police
Use excessive force against peaceful Protesters’
excessive-force-against-peaceful-protesters/? > accessed on 18 November 2016;‘Dozens
killed in Ethiopia protest crackdown’ -killed-
ethiopia-protests-opposition-160808105428331.html> accessed on 18 November 2016.
17 ‘Ethiopia declares state of emergency as deadly protests continue’ The Guardian (10
October 2016) te-
of-emergency-as-deadly-protests-continue> accessed: 18 November 2016.
300 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
the country. Further, more than 11,000 people were arrested by the Ethiopian
government ‘command post’ subsequently for their alleged involvement in
violence and destruction of property.18 According to the Ethiopian Broadcasting
Corporation, 9,980 detainees were expected to be released until the end of
December 2016 (EBC; December 17, 2016).
This article seeks to critically assess the contribution of the existing
Ethiopian legal regime governing freedom of assembly for this state and its
adequacy from a comparative perspective. Accordingly, the first section
explores the rationale for protecting freedom of assembly by pointing certain
features and functions that distinguishes it from other rights. The second section
examines the protection of the right under the FDRE Constitution by focusing
on limitations. Sections 3 to 7 analyze the provisions of the Ethiopian Peaceful
Demonstration and Public Political Meeting proclamations by giving emphasis
to issues of notifications, spontaneous assemblies, restrictions on time, place and
conduct, public order and public safety limitations, hearing procedure and
judicial review. These aspects would be critically examined in the light of
selected practices and cases in a comparative manner. The last section assesses
the importance of political will of those in power towards promoting good
governance, rule of law and strengthening democratic institutions to address the
problems identified in the legal regime and its implementation.
1. The Utility of Freedom of Assembly
Given the strong interlink between the right to freedom of expression and the
right to freedom of assembly, some question whether the latter adds any unique
value. Concerning the relation between the two sets of rights, one must
underscore the undisputed fact that any form of assembly ultimately has a
communicative or expressive purpose. As such, the expression aspect of
freedom of assembly is within the purview of protection of the right to freedom
of expression19 because demonstration and meeting constitute one of the
mechanisms available for disseminating one’s view. This has led some to
contend that if the ultimate objective of freedom of assembly is ‘expression’,
individuals should utilize other options of communicating their concerns
through the mass media including news papers, radio, TV or internet.20 The
justification they offer in support of their contention is that, since ordinary
18 ‘Ethiopia state of emergency arre sts top 11,000’
161112191919319.html > accessed 18 November 2016.
19 Manfred Nowak et al (eds) (2012), All Human Rights for All: Vienna Manual on Hum an
Rights, Antwerp: Intersentia; Vienna : NW Verlag Recht, p.382.
20 Eric Barendt (2000), ‘Freedom of Assembly’, Chapter 9 in Jack Beatson and Yvonne
Cripps(eds.), Freedom of Expression and Freedom of Informati on, OUP, p.161.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 301
assemblies create inconvenience for the public by disrupting the flow of traffic
and operation of businesses, individuals should resort to less disruptive channels
of communication.21
What such critics ignore is that, expression through mass media is
qualitatively different from physical assemblies. By virtue of their physical
presence together in public places, the latter indicate how committed and united
they are for the cause they stand for which has the capacity to exert influence on
the government.22 Further, the dramatic nature of expression also enables
participants to express their position in a vivid and influential manner.
Moreover, all sections of the society do not have equal access to various means
of communication because of poverty or marginalization. Hence, ‘freedom of
assembly provides opportunities for public expression of those with less power,
wealth or status.’23 In particular, freedom of assembly guards the rights of the
minorities from the tyranny of the majority. Any democratic system aspires to
rule/implement the wishes of the majority of the people while protecting the
rights of the minorities. Freedom of assembly pursues this aspiration of
democracy by allowing minorities to assemble together and voice their concerns
and interests.24 At times, freedom of assembly could be the only way to make
their voice heard since they do not have the power to influence the political
process using the normal system of election since they would be outnumbered.
It would also enhance their right to self determination enabling them to promote
their culture, way of living and identity.25
An assembly is primarily ‘characterized by physical presence of multitude of
individuals who are aligned by a common purpose to collectively communicate
a cause to the general public [emphasis added]’.26 What made the collective
expression of concern possible in the first place is physical gathering of many
individuals with a shared interest. Hence, what an assembly distinctly
safeguards is the ‘bodily togetherness of a group of people’.27 In the absence of
the right to freedom of assembly, individuals could not gather in the first place
for voicing matters affecting public interest. And this attribute is not addressed
by freedom of expression.
21 Id., 164.
22 Id., 166.
23 N. Jarman and M. Hamilton (2009), “Protecting peace ful protest: The OSCE/ODHIR and
Freedom of Peaceful Assembly” Journal of Human Rights Practice Vol.1 No.2 (2009), p.
208.
24 Solyom Peter (tras) (2008), ‘The Constitutional Principles of Freedom of Assembly in
Hungary’, Fundamentum Vol.12, p.37.
25 OSCE/ODHIR supra note 1, p.13.
26 Michel Rosenfeld and András Sajó (ed) (2012), The Oxford Handbook of Comparative
Constitutional Law, Oxford University Press, p.951.
27 Ibid.
302 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
The underlying goal of the two rights is different. Freedom of expression is
characterized by some scholars as civil right primarily because its prime focus is
to allow the individual fulfill himself by speaking his mind.28 The ‘discovery of
truth’ through the exchange of different ideas is also mentioned as an additional
aim of the right.29 In contrast, the right to freedom of assembly is characterized
as political right since its principal target is the governing of the polity and
democratic process.30 Hence, assemblies primarily promote collective interests
rather than individual ones. Besides, the contribution of assemblies for
discovery of truth is also minimal since the prime concern of the participants in
a demonstration is not discovering the truth but making their voice heard and
taking a position.31
Freedom of assembly is also regarded as an ‘early warning’ instrument for
democracies that something is going wrong with the system.32 Protests against
the government expressed in the form of demonstration would indicate that
some sections of the society are seriously dissatisfied with the way the
government is handling certain matters. In a democratic system, governments
are expected to be responsive to the demands of the people.33 As such, when the
people express their displeasure, the government must seriously consider those
issues and address them properly before they are exacerbated. Ignoring the early
warning might make it difficult for the government to handle issues after they
go out of control.
2. Freedom of Assembly under the Ethiopian Constitution
The FDRE Constitution provides that all persons have the ‘right to assemble’ ‘to
demonstrate’ and ‘to petition’.34 The fact that the Constitution does not define
each of these terms might not be surprising given the nature of constitutions that
merely enshrine general principles. It is to be noted that the prevailing literature
characterizes them as different forms of assembly. The ‘right to assemble’ in the
Constitution primarily refers to public meetings conducted with the purpose of
deliberating on certain important matters.35 This could be contrasted with the
‘right to demonstrate’ that has the principal objective of proclaiming the
position of the assembled on an essential matter to the external audience
28 Nowak, supra note 19, p. 371.
29 Barendt, supra note 20, p.166.
30 Nowak, supra note 19, p.371.
31 Barendt supra note 20, p.166.
32 Salat , supra note 2, pp.49-50.
33 Ibid.
34 FDRE Constitution, supra note 6, art 30(1).
35 Salat, supra note 2, p.6.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 303
concerned.36 Hence, the target of demonstration is getting attention of an
outsider rather than discussing the issue among the assembled.
This line of interpretation also conforms to the stipulations of the
Proclamation on Peaceful Demonstration and Public Political Meeting37 which
serves as the implementing legislation in Ethiopia for the constitutional
provision that enshrines the right to freedom of assembly. Accordingly, the
Proclamation makes a distinction between ‘peaceful demonstration’ and ‘public
political meeting’ and defines them separately. By peaceful demonstration the
Proclamation refers to ‘any public and orderly procession in which a group of
people express their ideas through speech, songs, mottos, placards etc...
[emphasis added]’.38 This definition fits to the declaratory nature of
demonstrations. The usage of symbols, songs and placards is also a
distinguishing feature of such gatherings. With respect to ‘public political
meetings’ the Proclamation explicates its meaning in the following manner ‘any
meeting in which a group of people discuss political and politics oriented issues
[emphasis added]’.39 From this, one can observe that the focus of political
meetings is more on deliberation and discussion than expression of stance.
The tricky part in the Ethiopian constitutional provision recognizing freedom
of assembly is the ‘right to petition’. Does it provide something which is not
covered either by right to assembly or demonstration? Or is it a needless
duplication? To address these questions, we can examine the interpretation
given to such formulations in early constitutions that included the right to
assemble and the right to petition in the same provision. A good example in this
regard is the First Amendment of the US Constitution adopted in 1791. It
provides: ‘Congress shall make no law … abridging … the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances’40.
According to El-Haj, the framers of the US Constitution saw a strong
intersection between the two sets of right, and that explains why they paired
them.41 He states that some of the founders of the Constitution argued that in the
normal course of things, submission of grievances by the public to the
government are preceded by the assembly of the people to seriously deliberate
on the issue and it is only logical to place the two rights together. However, it is
important to note that not all assemblies have the ultimate purpose of
36 Id., p.5.
37 Demonstration and Political meeting Proclamation, supra note 7 .
38 Id., art.2(1).
39 Id., art.2(2).
40 U.S. Const. amend. I
41 El-Haj Tabatha Abu, ‘The Neglected Right to Freedom of Assembly’, (2009) 56 UCLA
Law Review 560-566.
304 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
communicating discontent or petition. They might be convened for deliberation
or celebratory purpose. Likewise, the right to petition is not necessarily tied to
the right to freedom of assembly since protest could be expressed by using
various channels of communication without the need to assemble.
The same logic can explain the pairing of the right to freedom of assembly
with the right to petition under the Ethiopian Constitution. Hence, it could be
argued that the Constitution made reference to the right to petition in this
provision in order to underscore that the right to freedom of assembly or
demonstration is not only confined to mere deliberation on an issue or
demonstration. Rather, it could go to the extent of demanding the government to
address their grievances deliberated and expressed through demonstration. As
such, the presence of the right to petition in the provision (that recognizes
freedom of assembly) further enhances the exercise of the right to assembly by
explicitly informing the people about their entitlement to express their
dissatisfactions with the measures or actions of the government and demand
redress by using demonstration as a channel.
The Constitution also lists the grounds for limiting freedom of assembly
which includes ‘public convenience’, ‘protection of democratic rights’, ‘public
morality’ and ‘peace’.42 The terms ‘public convenience’ and ‘democratic rights’
are somewhat unique. This is because it is uncommon to find such kind of
formulations in other jurisdictions. For instance, ‘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’ are mentioned as the only
possible reasons for restricting the right under the ICCPR.43 These grounds are
often addressed in human rights literature and jurisprudence of courts as
‘legitimate aims’ for restricting a right. With respect to public safety, it refers to
safeguard ‘against danger to the safety of the persons, their life or physical
integrity, or serious damage to their property.’44
The ground ‘public order’ is more tricky because of its relative broadness.
According to the Siracusa Principles, ‘public order’ refers to ‘sum of rules
which ensure the functioning of the society or set of fundamental principles on
which the society is founded.’45 The FDRE Constitution seems to allow the
consideration of ‘public convenience’ as a ground for restricting the venue and
42 FDRE Constitution, supra note 6, art 30(1).
43 International Covenant on Civil and Political Rights Adopted and opened for signature,
ratification and accession by General Ass embly resolution 2200A (XXI) of 16 December
1966, entry into force 23 March 1976 , in accordance with Article 49) art. 21.
44 Siracusa Principles on the Limitation and Derogation of Provisions in the International
Covenant on Civil and Political Rights (hereinafter Siracusa Principles) Annex, UN Doc
E/CN.4/1984/4 (1984) art vii para.33.
45 Id., para.22.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 305
route for conducting an assembly or a demonstration. In its essence, the ground
resembles ‘public order’ stipulated under the ICCPR since its ultimate objective
is to ensure the smooth functioning of society. Interpreting public convenience
as such might also be logical since the FDRE Constitution looks up to
international treaties like ICCPR for interpreting fundamental rights recognized
by it.46
The other ground for limiting freedom of assembly in the Constitution i.e.
‘protection of democratic rights’, does not sound sensible considering the
unusual classification of human rights enshrined in it as ‘fundamental rights and
freedoms’ on the one hand and ‘democratic rights’ on the other hand, without
providing the criteria for classifying them as such. Under the first group, rights
like right to life, liberty, freedom of religion and the right to fair trial are
included inter alia.47 The second category (i.e. democratic rights’) includes
freedom of speech, association, assembly, right of women, right to vote, right of
children etc...48 A textual reading of the FDRE Constitution leads to the
conclusion that, freedom of assembly is susceptible to limitation only where
democratic rights listed above are threatened which does not make any sense.
Hence, the broad stipulation of ‘rights of others’ envisaged in the ICCPR sounds
more logical and inclusive.
However, the listing of legitimate grounds for restricting freedom of
assembly by the Constitution is only the first step that prevents an arbitrary
limitation of the right. A full-fledged protection requires suitability of the
chosen means, necessity and proportionality. Yet, the FDRE Constitution does
not go beyond qualifying limitations on freedom of assembly with a phrase
‘appropriate regulations’.49 No implementing legislation or decision of an
Ethiopian court has elaborated what makes a regulation appropriate and the
parameters for saying so. It is only through an extended constructive
interpretation and reference to international human rights instruments ratified by
Ethiopia that one may arguably contend that appropriateness refers to suitability,
necessity and proportionality tests of acceptable limitation.
This author uses the word suitability in reference to the need to ensure that
the means chosen by the legislature for regulating freedom of assembly must in
one way or another contribute for attaining the legitimate aims.50 If the means
has no connection with the objective intended to be achieved, it would be
unacceptable. The necessity requirement envisages the need to examine the
46 FDRE Constitution, supra note 6, art. 13(1).
47 Id., art. 15, 17, 20& 27.
48 Id., art. 29-44.
49 Id., art. 30.
50 Dieter Grimm (2007), “Proportionality in Canadian and German Constitutional
Jurisprudence”, University of Toronto Law Journal, Vol.7 (2007) p. 390.
306 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
various alternatives available for addressing the concerns, based on which the
legislature must select the one which entails the smallest impairment to persons
exercising their right to freedom of assembly.51 Assuming that, the legislature
meets the necessity requirement, the final step is determining proportionality by
weighing the respective gain or loss for the rights concerned.
This requires putting two things on the scale: the social importance of the
purpose served by the limitation of the right in question i.e. freedom of
assembly vis-à-vis the damage the right sustains because of the restriction.52 If
the balance between the two is right, then the government measure would be a
sound limitation of the right. In contrast, if the cost to the right caused by the
limitations significantly exceeds the social importance gained because of its
limitation, then the government measure would be held unconstitutional because
it fails to pass the key test of proportionality which is a criterion used in the
balance.
3. Notification Requirement of Assemblies
The Peaceful Demonstration and Public Political Meetings, Proclamation
predates Ethiopia’s current Constitution. The Proclamation was initially
designed to facilitate the exercise of political rights after their total demise
during the Derg military regime. The preamble of the Proclamation provides
that the objective of the law is to enable people ‘start enjoying their democratic
rights forthwith, until detailed laws are worked out and promulgated’.53 Yet, the
promise of the Proclamation is still unfulfilled (even long after the adoption of
the Constitution), and there are several problems and controversies with regard
to its contents and application.
Unlike most fundamental freedoms, the exercise of the right to freedom of
assembly needs compliance with certain procedural requirements set by the
legislature. 54 This is almost a universal reality and it is difficult to find a
jurisdiction which does not attach a procedural pre-condition for its realization.
The main procedural requirement that organizers have to comply with in many
systems is that of ‘giving notice’ to or ‘seeking authorization’ from the
authorities.55 It is sometimes difficult to point out the real difference between
‘notice’ and ‘permission’, since the authorities regulating freedom of assembly
could prohibit the undertaking of the assembly on the basis of facts stated in the
notice. For instance, the African Commission on Human and Peoples Rights
51 Id., p.389.
52 Id., p. 340.
53 Demonstration and Political Meeting Proclamation, supra note 7 Preamble.
54 Salat , supra note 2, p.55.
55 Id., pp. 58 & 72.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 307
Working Group reports that despite the absence of a legal requirement of
seeking permission for organizing an assembly in some systems, ‘in practice the
state often refuses to grant permits to assemblies critical of the government.’56
Yet, the requirement of giving notice of ‘intent’ to conduct an assembly is
regarded as sufficient and ideal measure, rather than imposing the duty of asking
permission from the authorities to exercise the right. The prerequisite of
permission will relegate the right to freedom of assembly to a privilege
dependent on the goodwill of those regulating it.57 Further, it is imperative to
note that the prime purpose of notification must be facilitating the smooth
undertaking of an assembly by making necessary arrangements in advance.58
As a matter of theory, Ethiopia follows the notification system for controlling
assemblies, by virtue of the Demonstration and Public Political Meeting
Proclamation.59 The key provision in this regard is article 4 of the Proclamation
which stipulates the procedure for submitting notice. Accordingly, it provides
that ‘any individual, group or organization that organizes a peaceful
demonstration or public political meeting has the obligation to give written
notice 48 hours before the intended peaceful demonstration or public political
meeting is to take place’.60 The timeframe for submitting notification provided
by the Ethiopian law is reasonable considering the time authorities, organizers
and police need to properly facilitate the undertaking of the assembly. In other
jurisdictions, the duration of notification for assemblies ranges from 6 hours to
28 days.61
The Proclamation requires the notice to be presented to the administration of
the municipality (or to local administrations in rural areas). Here, it is important
to note various points related with the procedures of notification. First, both
indoor and outdoor assemblies are subjected to the requirement of notice in
Ethiopia. This is not the case in jurisdictions like Germany which do not require
notification for indoor assemblies,62 the justification being the non-occurrence
of traffic and other inconveniences as a result of such gatherings. Second,
Ethiopia’s law demands notification regardless of the size of assembly or the
number of participants. This deviates from the practice in many jurisdictions.
56 African Commission on Human and Peoples Right (ACHPR), Report of the Study Group
on Freedom of Association & Assembly in Africa, (2014), p. 61.
57 ‘Factsheet: Recommendations on Managing Assemblies Joint Report of Special
Rapporteurs Maina Kiai and Christof Heyns to the Human Rights Council’, March 2016
(A/HRC/31/66).
58 OSCE/ODHIR supra note 1, s.1 para.4.1.
59 Demonstration and Political meeting Proclamation, supra note 7.
60 Id., art. 4(1).
61Jarman and Hamilton, supra note 23.
62 Basic Law of the Federal Republic of Germany 2010, art 8.
308 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
For instance, the Armenian assembly law exempts small gatherings up to 100
participants from the requirement of notification.63
Likewise, the UN Special Rapporteur on Freedom of Assembly and experts
of OSCE/ODIHR argue for the exemption of assemblies with insignificant
number of participants from observing notification pre-condition.64 Their
argument centers on the very purpose of notification which is ‘facilitate’ the
undertaking of an assembly by addressing possible concerns such as traffic and
security issues in advance.65 If the number of the assembled individuals is very
few, it is unlikely for them to cause disruption to traffic or societal order. Hence,
to require notice for such assemblies might defeat the underlying rationale of
notification and it will be a disproportionate restriction of the right. Yet, what
constitutes a small assembly is still controversial.
Aside from the features of notification highlighted in the preceding
paragraphs, the Ethiopian law regulating assemblies also provides what a letter
of notification should contain. Accordingly, notice submitted by organizers is
required to state: the objective of the assembly, place of conducting it, routes it
goes through, date, time, estimation of possible attendees and finally the kind of
assistance they expect from the city administration in the course of undertaking
the assembly.66 The law does not specify the purpose of requiring these details
even if one can presume that it is to make the necessary arrangements in
advance. On this issue, the UN Special Rapporteur underscores the need to go
beyond presuming the government’s duty of cooperation in facilitating
assemblies. Rather, a clear statement of this duty in a legislation (that regulates
assembly) is necessary for the effective protection of the right.67
Hence, the explicit obligation imposed on the security personnel by the
Ethiopian assembly law to ensure peace and security68 might be considered as a
step in the right direction, if it is implemented properly. Yet, the Ethiopian law
is silent about the possibility of making modification to a notification of
assembly that is submitted and the consequences that follow. On this matter, the
stipulation of the Armenian assembly law can offer insights. If the organizers
make changes that affect the essence or the notified assembly, Armenia’s law
63 Republic of Armenia Law on Freedom of Assemblies 2011, art. 9(1) & 24.
64 ‘Report of the Special Rapporteur on the Right to Freedom of Peaceful Assembly and of
Association’ , Maina Kiai, A/HRC/20/27 (2012) par.28, & OSCE/ODIHR , Venice
Commission Guidelines on Freedom of Ass embly, (2nd ed Venice, 2010) para.115.
65 Ibid.
66 Demonstration and Political meeting Proclamation, supra note 7, art. 5(1).
67 Report of the Special Rapporteur on the Right to Freedom of Peaceful Assembly and of
Association , Maina Kiai, (hereinafter report of the Special Rapporteur ) A/HRC/20/27
(2012) para.27.
68 Demonstration and Political meeting Proclamation, supra note 7, art 6(1).
Protection of the Right to Freedom of Assembly under Ethiopian Law … 309
requires them to submit a new notice.69 We can infer that the change made is
major or substantial. In contrast, if the change is very minor and insubstantial,
the authorities must tolerate the deviation and facilitate the assembly without
demanding the re-submission of notice.
Once the notification is received, the Ethiopian assembly law gives 12 hours
for the authorities to make a decision on it.70 The inclusion of time limit for
decision making is a positive thing since it helps to ensure timeliness of decision
and accountability of authorities. The verdict of the administrative officials
could either be to give the green light for the assembly to proceed as planned or
to make a suggestion for the undertaking of ‘the public demonstration or public
political meeting to be held at some other time or place.’71 The grounds for
postponing the assembly to another venue or time must relate to concerns of
safeguarding peace, security or preventing the disruption of the day to day
activities of the public.72
These grounds seem to give authorities broader power and discretion for
postponing assemblies compared to other jurisdictions like Kenya. Under
Kenyan assembly law, the only ground that justifies the postponement or
relocation of a planned assembly is the prior reservation of the place selected for
the gathering by another assembly to be conducted at the same time.73 Thus,
Kenya’s law does not allow the undertaking of two assemblies having different
objectives at the same place and time. This seems true for Ethiopia as well, even
if the law is silent on that issue. However, such practice of banning counter
demonstrations is regarded by the UN Special Rapporteur as unjustified
restriction on freedom of assembly.74 The ideal solution is to find a means of
conducting both assemblies without prejudicing each other.
4. Gaps and Practical Challenges in the Notification
Regime for Assemblies
In the preceding paragraphs, an attempt has been made to provide a general
outline of the Ethiopian notification regime through a comparative lens. The
focus of this section is more on the gaps in the law and challenges of
implementation as observed in different practical cases. The discretionary
interpretation of the notification provision of the Ethiopian assembly law gives a
69 Republic of Armenia Law on Freedom of Assembli es, supra note 63, art. 14(5).
70 Demonstration and Political meeting Proclamation, supra note 7, art.6 (2).
71 Ibid.
72 Ibid.
73 Public Order Act Chapter 56 of the Laws of Kenya. Rev. 2009, s. 5(12).
74 ‘Report of the Special Rapporteur on the Right to Freedom of Peaceful Assembly and of
Association’ , Maina Kiai, A/HRC/20/27 (2012) para. 30.
310 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
partial explanation for the absence of a single demonstration in the Ethiopian
capital between 2005-2013.75 It is also cited as an explanation for the failure of
the majority of assemblies subsequent to 2013. One could only find a handful of
assemblies conducted successfully since then.
4.1 Issues Related to Receipt of Notification, Decline and Silence
The problem begins with the refusal on the part of the administrative officials to
receive the letter of intent to conduct assembly by the organizers. This happens
often when the place, time or purpose of the assembly is not agreeable to the
authorities for various reasons. A good example of such a case could be the
demonstration organized by Semayawi Party (Blue party) in Addis Ababa, on
September 7, 2013.76 The press release of the party indicated that it approached
the Addis Ababa City Administration Peaceful Demonstration and Meetings
Notification Department on September 5, 2013 with a letter of notification to
conduct a demonstration on the said date but the latter declined to receive the
notification. The party also sent the same letter via Ethiopian Postal Service but,
according to the statement made the party, the notification department of the
municipality was still defiant to receive the letter.77 This was later resolved after
leaders of the party discussed the matter with the Office of the Mayor and got
the explanation that it is impossible to conduct the assembly on the planned date
since various public places in the city will be occupied by sale exhibition of
small micro enterprises operating in the city; this forced the party to postpone
the demonstration for another time.78
Evidently, the refusal of the authorities to receive the letter of notification is
an arbitrary exercise of their power. If they have a problem with the undertaking
of the assembly on the planned date and time, what they should do is accept the
notification and give whatever decision they think is appropriate by taking into
account the principle of proportionality. This problem is partly due to the gap in
the implementing legislation as it fails to clearly order authorities to accept any
notification that meets the formality requirement set by the law. Further, there is
no mechanism of verifying whether the authorities have received notification of
an assembly. This is often a cause for evidentiary controversy between the
organizers of an assembly and the authorities in Ethiopia. To address this
75 Solomon Goshu, ‘Peaceful Political Rallies: The Right Besieged by Hurdles’, The
Reporter, 31 January 2015 accessed on
3l March 31, 2016.
76 ‘Blue Party Demonstration Postpon ed to 22 September 2013’ (Amharic),
accessed 31 March 2016.
77 Ibid.
78 Ibid.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 311
problem, the experience of Kenya, Armenia and the recommendations of UN
human rights bodies are relevant.
The Kenyan Public Order Act provides that ‘the regulating officer shall keep
a public register of all notices received.’79 It also gives the public the right to
examine or inspect the register of notifications in the opening hour of office.80
Likewise, the Armenian assembly law besides demanding recording of the
notice in a special register, also requires the authorities to immediately post a
copy of the submitted notice in the ‘administrative building’ of the authority as
well as on its website.81 This practice is also regarded by the UN Special
Rapporteur as a measure on the right track that ensures transparency and
accountability. He further endorses the suggestion of the Venice Commission of
Experts requiring the inclusion of a provision that forces authorities to
immediately issue receipt of acceptance of notification.82 Incorporation of such a
provision in the Ethiopian legal regime that regulates assemblies would have
helped in resolving some of the issues.
Another problem relates to the failure on the part of the Ethiopian authorities
to communicate (to the organizers) their decision on the status of received
notification within the prescribed period set by the law. In some cases, the
organizers considered the silence of the municipality administration office as
acceptance or recognition and have suffered from the consequences such as
imprisonment and violent dispersal of the assembly. An example to this problem
is the demonstration that was organized (for March 17, 2013) by the Blue party,
Baleraey Wetatoch Mahiber (Visionary Youth Association) and Private Initiative
Committee for the Defense of Ethiopian People’s Dignity and Heritage.83 The
notice dated March 4, 2013 was addressed to the Addis Ababa City
Administration Peaceful Demonstration and Meeting Notification Department.
It states that the purpose of the demonstration is to oppose the construction of a
museum and memorial park in Italy for Rodolfo Graziani who is regarded as a
fascist war criminal by the organizers as he massacred thousands of Ethiopians
during the 5 years of Italian occupation.84
The form of the assembly planned was a procession that starts at Yekatit 12
square where the statute of martyrs massacred by Graziani is located, and the
79 Public Order Act, supra note 73, s 5(14).
80 Ibid.
81 Republic of Armenia Law on Freedom of Assembli es, supra note 63, art. 15.
82 OSCE/ODIHR, ‘Joint Opinion on the Draft Law on Peaceful Assemblies of the Kyrgyz
Republic by the Venice Commission and OSCE/ODIHR’, Opinion no. 525/2009 (22 June
2009) s37.
83 Ethiopia arrests 43 anti-Graziani statue protesters in Addis Ababa’
84 Ibid.
312 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
final destination was planned to be the Embassy of Italy in Addis Ababa.
According to the organizers, the Municipality accepted the notification and kept
silent. They took its silence as a tacit approval and went on to conduct the
demonstration as planned. However, the Police dispersed the assembly as illegal
for failing to get recognition from the Administration and it arrested 43
individuals who participated in the demonstration.85 Such problems could have
easily been resolved had the Ethiopian assembly law clearly provided the
consequences of inability or unwillingness of the administrative officials to
render and communicate their decisions within the timeframe set by the law like
the one provided in the Armenian assembly law. In this regard, the Armenian
law on assemblies states that failure to make a timely decision on notifications is
‘considered as that the notification is acknowledged’.86 Similarly, the UN
Special Rapporteur and Venice Committee of Experts note that the principle that
silence amounts to acceptance shall govern such situations and the law should
allow demonstrators ‘to proceed with the planned assembly in accordance with
the terms notified and without restriction.’87
4.2. Treatment of Spontaneous Assemblies in Ethiopia
The other problematic issue in the Ethiopian legal regime governing notification
of gatherings is that of ‘spontaneous assemblies’. According to the Venice
Committee of Experts, such assemblies refer to those ‘organized in response to
some occurrence, incident, other assembly, or speech, where the organizer (if
there is one) is unable to meet the legal deadline for prior notification, or where
there is no organizer at all.’88 As their name suggests, these assemblies are
accidental and not planned in advance. What usually induces their occurrence is
a certain unforeseen event which is of interest to the public. Such incidents
might induce the public to react immediately by going out to the streets without
observing the notification requirement for normal assemblies. Various
authorities including the UN Special Rapporteur on freedom of assembly
recognize such kind of assemblies as exceptional in nature deserving a special
treatment.89 Thus, states are expected to devise (in their laws) a mechanism of
allowing such assemblies without requiring the ordinary process of notifying
assemblies which might take some time. Further, demanding spontaneous
assemblies to go through similar notification procedure deprives their immediate
nature and undermines their value.90
85 Ibid.
86 Republic of Armenia Law on Freedom of Assembli es, supra note 65, art.20(3).
87 Interim Joint Opinion on the Draft Law on Assemblies of the Republic of Armenia by the
Venice Commission and OSCE/ODIHR, Opinion no. 596/2010 (22 December 2010) s.40
88 OSCE/ODHIR , supra note 1, para. 126.
89 Report of the Special Rapporteur, supra note 67, para. 29.
90 Ibid.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 313
Ethiopia’s law (indicated in footnote 7 above) that regulates freedom of
assembly does not leave a room for making any exception for spontaneous
assemblies regarding notification requirement. The law treats spontaneous
assemblies as any other form of assembly and does not provide a special
treatment. This lacuna in the law has created a serious problem for exercising
the right to freedom of assembly in Ethiopia as it deprives spontaneous
assemblies from any protection.
Two cases of spontaneous assemblies which were dispersed by security
personnel –for failing to give advance notice– illustrate this problem. The first
spontaneous demonstration took place in Addis Ababa on November 15, 2013 in
front of the Saudi Arabia Embassy. What triggered the demonstration was the
killing of three Ethiopians by the Saudi police and the decision of the Saudi
government to deport around 23,000 illegal workers of Ethiopian origin.91 The
release of a video showing ‘a crowed dragging an Ethiopian from his house and
beating him’ created grievance in the public. Banners carried during the
demonstration show the disappointment of the people on the Ethiopian
government’s careless handing of the problem and its failure to safeguard the
interest of Ethiopian citizens working abroad.92 The reaction of the police was to
disperse the demonstrators and arrest some of the participants on the allegation
that they conducted a demonstration without getting the approval of the city
administration. In his response to the AFP broadcasting agency, the then
spokesperson of the government Shimeles Kemal noted that the demonstration
was terminated because ‘it was an illegal demonstration, they had not [obtained]
a permit from the appropriate office’.93
The second example of spontaneous assembly is the one that was dispersed
by the Police. It was triggered by a video released by the ISIS which showed the
beheading of 28 Ethiopian Christians in Libya.94 In his statement, the then
government spokesperson Redwan Hussein said that ‘it was not clear if the
victims were Ethiopians and the Ethiopian Embassy in Cairo was investigating
91 ‘Police crackdown on demonstrations against targeted attacks on Ethiopian migrant
workers in Saudi Arabia’ om/news/africa/2013/11/arrests-at-anti-
saudi-protest-ethiopia-2013111514640 25832.html> accessed: 31 March 2016.
92 ‘Ethiopian Police Crackdown on Anti-Saudi Protest’.
31March 2016.
93 ‘Police Crackdown on Demonstrations against Targeted Attacks on Ethiopian Migrant
Workers in Saudi Arabia’ rrests-at-anti-
saudi-protest-ethiopia-201311151464025832.html> accessed 31March 2016.
94 ‘Police Forcefully Disperse Protests Held by Ethiopians Against ISIS Killings’
isis-killings/> accessed 31 March 2016.
314 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
the matter’, and this statement further added fuel to the fire.95 Aggrieved with
the reaction of the government on the incident, thousands went out to the streets
on April 21, 2015 (without any organizer) by carrying banners with statements
saying ‘where is our government’, ‘justice for the dead’, ‘sovereignty is the
safety of citizens everywhere in the world’ and ‘don’t tell us they are not ours’.96
The city administration reacted by deploying members of Addis Ababa
police and federal police forces, and stopped the protestors from heading to the
headquarters of the African Union and National Palace.97 Like the Saudi protest
discussed above, no violence on the part of the protesters was reported. Such
practice of dispersing spontaneous assemblies by administrative officials and
police forces stands in direct contrast with the position of the UN Human Rights
Committee.98 This prompts another crucial issue regarding the fate of assemblies
conducted without giving notice.
4.3. Fate of Assemblies without Notice
Ethiopian assembly does not clearly provide the measures taken against
gatherings that are conducted without prior notification. The practice in Ethiopia
shows that, any public demonstration or public political meeting which fails to
comply with the requirement of notification is by definition illegal and
forbidden. It usually ends up with dispersal and with filing of criminal charges
against participants of such assembly.99 The Criminal Code of Ethiopia also
contains a provision that penalizes persons who take part in an assembly
prohibited by law which includes gatherings undertaken in the absence of
notification.100 It also extends criminal liability to those who avail their land,
property or hall to such assemblies.101
On the contrary, the UN Human Rights Committee has (in several cases
before it) decided that mere failure of organizers to notify authorities does not
give the latter an automatic power to disperse the assembly and arrest
participants so long as the assembly is peaceful. For example, the case of Igor
Bazarov v Belarus102 involves the dispersal of a street procession conducted by
the applicant and his subsequent liability for administrative offences. Igor, a
citizen of Belarus, conducted a street procession on March 25, 2009 with two
95 Ibid.
96 Ibid.
97 Ibid.
98 Igor Bazarov v Belarus, Human Rights Committee(Communication No. 1934/2010 ) 29
august 2014.
99 ‘Ethiopia arrests 43 anti-Graziani statue protesters in Addis
Ababa’ accessed 31 march 2016
100 The Criminal Code of Ethiopia 2004, art 482(1) a.
101 Id., art 482(1) b.
102 Igor Bazarov v Belarus, supra note 98.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 315
other participants without getting permission from the appropriate organ of the
city. Their march began at independence square and they were waving a ‘white,
red, white’ flag which they think is ‘symbol of revival for Belarus.’103 After
conducting the procession for 10 minutes, police stopped their march and took
custody of Igor on the ground that he conducted the procession without getting
authorization which is required by law. He was later found guilty of committing
an administrative offence of undertaking a procession lacking permission and
was fined 70, 000 Belarusian Rubles.104 Aggrieved with the decision of
Belarusian courts, the applicant approached the UN Human Rights Committee
alleging the infringement of the right to freedom of assembly recognized by the
ICCPR and Belarusian Constitution.
In its decision of 2014, the Committee found that Belarusian authorities have
violated the right to freedom of assembly. The reasoning of the Committee
underlined that the right to freedom of assembly is enshrined in the Constitution
of Belarus and the state is also a party to the ICCPR which recognizes the right
under article 21. The Committee noted that in restricting the right to freedom of
assembly, Belarus must comply with the safeguards of necessity and
proportionality incorporated in the Covenant. It particularly rejected the
contention of Belarus that the measure has a legal backing since the law requires
permission before conducting any procession.
The argument of the Committee was that Belarus ‘has not attempted to
explain why it was necessary –under domestic law and for one of the legitimate
purposes set out in … the second sentence of article 21 of the Covenant– to
obtain authorization prior to holding a peaceful street march in which only three
persons intended to participate.’105 For such restriction to be justified, the
Committee found that the state must go beyond citing a law that demands
authorization by showing how ‘the movement of the author and his two
acquaintances’ holding a flag along the pavement down a pedestrian street
during daytime would have violated the rights and freedoms of others or would
have posed a practical ‘threat to public safety or public order (ordre public)’.106
This decision shows that the Committee demands states to strictly observe the
requirement of proportionality whenever they restrict the right to freedom of
assembly by law or its application. Hence, they must discharge their burden of
establishing a link between the legitimate aims and the restrictions as well as the
non-availability of other less prejudicial means for the right that s state seeks to
limit.
103 Id., para.2.8.
104 Id., para 2.1.
105 Id., para.7.5.
106 Ibid.
316 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
A similar pronouncement was made by the Committee in the case, Sergey
Kovalenko v Belarus.107 On October 30, 2007 the applicant was joined by thirty
other people who also lost their families during the Stalin era which they
characterized as repressive. Their plan was to move around the various places in
the town of Vitebesk where their relatives were killed or buried and pay tribute
to them particularly ‘to lay wreaths and flowers and to erect a cross.’108 By
these gestures, they also wanted to show their disapproval of any form of
political suppression or the silencing of dissent.109 This event was organized
without seeking authorization from the city administration. Accordingly, after
they finished their first commemoration in one of the places and boarding a bus
to move to other places, the police arrested every participant on the allegation
that they took part in a picket or stationary assembly which is not permitted by
city officials. Subsequently, the organizer of the event Sergey was ordered by
court to pay 620,000 Belarusian Rubles for his violation of the administrative
law that requires seeking permission from authorities before conducting any
form of assembly.110 Being upset with the finding of the court, the applicant
submitted a case to the UN Human Rights Committee claiming violation of the
right to freedom of assembly enshrined in the ICCPR.
After a careful consideration of arguments of both parties, the Committee
held in favour of the applicant and found Belarus responsible, inter alia, for
violation of the right to freedom of assembly.111 The Committee reiterated its
reasoning in the Igor Bazarov case (discussed above) by indicating that no
evidence is adduced by the state which shows how the commemoration event
actually endangers ‘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’.112 The two decisions of the Committee (in the Igor
Bazarov and Sergey Kovalenko cases) conform to the position held by the UN
Special Rapporteur on the right to freedom of assembly as well as by the Venice
Commission of Experts. The decisions in both cases require states to refrain
from dispersing spontaneous assemblies or gatherings with negligible number of
participants by merely invoking failure to comply with a notification
requirement as it violates the principle of proportionality.113 A similar ruling
107 Sergey Kovalenko v Belarus, Human Rights Committee (Communication No. 1808/2008)
26 September 2013.
108 Id, para.2.1.
109 Ibid.
110 Id., para.2.1
111 Id., para.8.7.
112 Ibid.
113 ‘Report of the Special Rapporteur on the Right to Freedom of Peaceful Assembly and of
Association’ , Maina Kiai, A/HRC/20/27 (2012) par.28, & OSCE/ODIHR , Venice
Commission Guidelines on Freedom of Assembly, (2ed Venice, 2010) para. 115.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 317
was given by the African Commission in Malawi African Association and
Others v. Mauritania.114
The above decisions of the Committee have serious implications for Ethiopia
as a state party to the ICCPR. This is because, the country has a bad reputation
of dispersing gatherings conducted without compliance with the notification
procedure and subjecting participants to criminal liability as noted in several
parts of this article. The recent protest of a few Addis Ababa University students
in front of the US Embassy115 shows the level of intolerance of Ethiopian
authorities towards assemblies conducted without notice irrespective of whether
they pose security risk or not. This protest was held on March 8, 2016 by
disregarding the notification requirement set by the Demonstration and Public
Political Meeting Proclamation and the number of participants was 20 (twenty).
As the video footage of the demonstration shows, the students were expressing
their disapproval of the government’s handling of the recent crisis in Oromia
regional state in entirely peaceful manner.116 They were even carrying a white
flag to demonstrate their peaceful intention. Since their number was few, they
did not block the road nor prevent the free flow of cars and people. Yet, the
authorities immediately arrested the students and criminal charges were pressed
against them.
The first count accused the students of violating Article 486(1) (a) of the
FDRE Criminal Code which forbids assemblies conducted in violation of the
law. Here, the contention of the prosecutor is that the students violated this
article by failing to notify the city administration and for carrying out a
demonstration in front of an Embassy in violation of the Demonstration and
Public Political Meeting Proclamation.117
In the second count, the prosecutor alleged that the students are responsible
for spreading false rumours against the government and inciting the public by
carrying placards118 such as “Schools are Knowledge Camps, not Military
Camps”, “Stop the Genocide Against the Oromo People”, “The Government
should take Responsibility for those Killed”, “Stop the Killings and Evictions”,
“The Government should Withdraw its Military from Oromia Region”, “The
Ethiopian Defense Force is terrorizing the Oromo People”, ‘‘Stop giving Lands
to Investors while Citizens are Starved”, “The Government of America Should
114 Malawi African Association and others v Mauritania, Comm. Nos 54/91, 61/91, 98/93,
164-196/97 & 210/98 (2000), paras 10 8-11.
115 Public Prosecutor v Sorresa Demme et al, Federal First Instance Court Menagesha Bench
Reference no. GJBPPFNO 01716/08, 16 march 2016 (criminal charge).
116 Ibid.
117 Ibid.
118 Ibid.
318 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
be aware of Ethiopia’s Pseudo Democracy”119 in violation of Article 486(1) (a)
of the FDRE Criminal Code. The third charge incriminated the students of
infringing article 487(b) of the FDRE Criminal Code which prohibits inciting
‘others to disobey orders issued by a lawful authority or to disobey laws or
regulations duly promulgated’.120 The allegation of the prosecutor here is that
with the intent of disobeying the law, students carried a placard which says “the
Government of Ethiopia Should Amend the Anti Terrorism Law” and “Dissent
is not Terrorism”121.
The criminal proceeding against the students is undergoing during the
writing up of this article. Yet, few remarks could be made on the rationality of
the charges brought against them in light of their right to freedom of assembly
and other related constitutional rights. From the perspective of the right to
freedom of assembly recognized by the Constitution, none of the allegations
made by the prosecution would hold water. With regard to the first charge of
demonstrations without giving notice in a prohibited place, the issue that arises
is whether the restriction provided by the Public Demonstration Proclamation is
appropriate. Specifically, the issue would be whether the law is reasonable in
requiring notification for assemblies of a few participants (i.e., 20 in the case at
hand) where such events do not pose danger to public peace, order or free flow
of traffic. The purpose of notification is to facilitate assemblies, and such
requirement would be cumbersome to uphold considering their right to freedom
of assembly. Blanket ban on demonstrations before embassies without further
qualification is unduly burdensome to demonstrators especially where their
messages target at the officials in the premises of the Embassy.
Regarding the second accusation against them which is inciting the public
and spreading false rumours against the government, it also does not make much
sense. Content based limitation on participants exercising their right to freedom
of assembly is only allowed if it is proved that they have made an unequivocal
call for war or hatred.122 Apart from such cases, the right of demonstrators to
criticize the actions or policies of the government is fully protected by their right
to freedom of assembly and freedom of expression. The prime objective of these
rights is to protect such views from unnecessary attack as long as they are
expressed in a democratic and peaceful manner which seems to be the case.
None of the messages included in the placards they carried even remotely call
for violence or hatred. The sole claim of the prosecutor’s charge is that what
they are stating is false. For instance, the placard that regards Ethiopia’s pledges
119 Ibid.
120 Federal Democratic Republic of Ethiopia, Criminal Code 2004.
121 Public Prosecutor v Sorresa Demme , supra note 115.
122 OSCE/ODHIR , supra note 1, para. 94.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 319
to democracy as “Pseudo Democracy” is the expression of what the
demonstrators genuinely believe to be the case based on their observations.
The government may believe that it is exercising a genuine democracy and it
might consider the statements of the students as false. But is it fair to criminalize
expression on a contestable issue such as the prevalence of democracy in
Ethiopia solely because the statement is considered as false from the
government’s point of view? Is it not too cumbersome to demand citizens to
keep quiet unless they are hundred percent sure that what they are saying is true
from the government’s standpoint? Would this ever be possible in constitutional
democracy that upholds fundamental rights? I argue that this should not be the
case because citizens must be allowed to say what they genuinely believe in
without being required to prove its absolute veracity. A government may not
agree with what every citizen says, but it should not criminalize citizens for
saying so. Otherwise, recognizing freedom of assembly and expression become
superfluous.
The third count of the prosecution accuses the students of inciting non-
observance of the anti-terrorism law by openly calling the government for its
amendment.123 One does not see the link between how the request for
amendment of the law could be equated with a call for its disobedience. A
number of important questions might ensue. Is it fair to criminalize citizens just
for demanding an amendment of a law on anti-terrorism? What is wrong with
even asking for the amendment of the Constitution or its replacement with
another one so long as it is done in a democratic and peaceful manner? Overall,
the outright criminalization of assemblies conducted in the absence of
notification without risk of public order or peace in Ethiopia is inconsistent with
the interpretation of the UN Human Rights Committee regarding freedom of
assembly as envisaged in the ICCPR. Accordingly, it is time for Ethiopia to
revisit its laws and practices on freedom of assembly and ensure their
conformity with the country’s obligations under international human rights
treaties such as the ICCPR.
5. ‘Place, Time and Manner Restrictions’ on Assemblies
The other cluster of limitations that adversely affects the exercise of the right to
freedom of assembly is the one connected with place, time and manner. Two
forms of restrictions are envisaged in the Proclamation concerning the venue of
conducting assembly. The first is an outright or blanket restriction on
undertaking demonstrations or political meetings within 100 meters from the
places identified as prohibited.124 A long list of such venues is provided in the
123 Ibid.
124 Demonstration and Political meeting Proclamation, supra note 7, art 7(1).
320 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
Proclamation which includes embassies, international organizations, hospitals,
graveyards, churches, mosques, prayer houses, electric power houses, dams and
‘unsuitable’ market places on market days inter alia.125 Such blanket venue
restrictions are regarded improper by the UN Special Rapporeur on the right to
freedom of assembly.126 Further, no assembly could be conducted within 500
meter radius of detention centers, offices belonging to the military, or security
personnel.127 These place restrictions are very broad and one may need to go to
the wilderness to conduct an assembly if these restrictions are to be applied
strictly without any proportionality considerations.
The Proclamation also gives a wide range of power to municipalities to seek
postponement of time or relocation of place by citing concerns of peace,
security and ensuring the continuation of people’s ‘daily life’ without any
‘disruption’.128 The manner in which the restriction is crafted is susceptible to
wide interpretations especially in the Amharic version of the Proclamation. It
states that the municipalities may recommend that it is preferable to undertake
the assembly another time or place by stating their justifications.129 Here, it is
important to bear in mind the distinction between a decision and a
recommendation, the latter being non-binding. According to this interpretation
organizers could disregard the suggestion of the administration as it lacks
binding force.
On the other hand, the provision which allows a recommendation in the
beginning, states decision in the end, by stating that the municipalities cannot do
ban the conducting of an assembly at any time or place.130 A logical
interpretation of the second part of the provision leads to the conclusion that, the
city administration is at liberty to decide on postponement of time or changing
of venue as often as it wants save for total prohibition of an assembly. The
second line of interpretation seems to be the one agreeable to the municipalities
of Ethiopia. Because, what they frequently do is ask organizers to relocate place
or postpone date of the assembly upon receipt of notification by raising several
concerns.131 If the decision is not accepted by the organizers they will refuse to
endorse submitted notification which makes the planned assembly illegal. The
following examples demonstrate this problem.
125 Ibid.
126 Report of the Special Rapporteur, supra note 67, para. 39.
127 Demonstration and Political meeting Proclamation, supra note 7, art. 7(2).
128 Id., art. 6(1).
129 Ibid. (Amharic version of the law).
130 Ibid.
131 Daniel Berhane, ‘Semayawi’s Foiled Rally: A Reminder of Ethiopia’s Deeper Problems’,
on April 1, 2016.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 321
An open sky demonstration was organized by Semayawi Party (The Blue
Party) together with other opposition parties on November 25, 2014.132 The
organizers submitted their notification to Addis Ababa City Administration.
However, it declined to allow the assembly by alleging ‘security force shortage
as there are other scheduled events.’133 It further advised the organizers to
conduct an indoor assembly as an alternative. The organizers were not
convinced with the justifications provided by the authorities after the expiry of
the 12 hour period set by the law and proceeded with the assembly as planned.
Then, the city administration quickly broke the gathering by deploying police
force immediately. It also characterized the event as an ‘anti-constitutional
activity’.134
The coalition of parties submitted another notification to conduct a 24 hour
demonstration at Meskel Square set to begin on December 8, 2014 and to finish
on December 9, 2014 mid day.135 What makes this demonstration interesting
was the day selected for its undertaking, i.e. December 8 which coincides with
Nations and Nationalities day celebrated nationally. Some contend that the
organizers chose this date on purpose to irritate the current government that
celebrates this day, yet others say it is accidental.136 Leaving this aside, the city
administration rejected to approve the notification as it did in the past. Its
justification this time was ‘the increased traffic [in the square] due to ongoing
construction activities.’137 This was followed by a statement by the government
on national TV that warned the organizers to refrain from conducting the
assembly as planned. Nonetheless, the coalition of parties defied the decision of
the city administration and proceeded with the gathering until the police
detained more than 75 participants including the leaders of different opposition
parties.138 They were later accused of ‘outrage against the Constitution’ ‘rioting’
and ‘inciting terror and chaos.’139
Moreover, the recent controversy between the Ethiopian Federal Democratic
Unity Forum (MEDREK) which is a consortium of several opposition parties
and the Addis Ababa City Administration further illustrate the magnitude of the
problem. What caused the dispute was the refusal of the city administration to
approve a notification submitted by the party for conducting demonstration on
132 Ibid.
133 Ibid.
134 Ibid.
135 Ibid.
136 Ibid.
137 Ibid.
138 Ibid.
139 Ibid.
322 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
three separate occasions.140 The party first notified the authorities of its intent to
organize a peaceful procession on Sunday December 27, 2015. It also indicated
the route that starts at a place called Afencho Ber passing through Ras Mekonnen
Bridge, Churchill road and ending at tiglachen statute or Ethio-Cuba Friendship
Park. The purpose of the march was to condemn the killing of protestors in the
Oromia regional state and pay tribute for the dead.141 As noted time and again,
the city administration refused to acknowledge the undertaking of the
procession. Its justification for cancelling the procession was the presence of
several higher learning and government institutions in the route chosen for the
march, traffic congestion and the current situation of the country.142 These
grounds were not convincing for the leaders of the party and they characterized
them as ‘irrelevant and petty.’143 Nonetheless, the administration stated that it
will give approval to a demonstration that will be organized in another place
‘with no traffic congestion.’144
Accordingly, MEDREK presented another letter of notification to the city
administration to conduct a procession on January 17, 2016. This time they
chose another place as per the instruction of the administration but the objective
of the march was the same as the one rejected earlier. The planned procession
was set to start from Ginfile River and end at a place usually called Sholla Yeka
Epiphany celebration place.145 Yet again, the city administration rejected the
undertaking of the procession as the time and place chosen by the organizer is
not agreeable to it because of the upcoming Epiphany holiday will be celebrated
at the place chosen for demonstration. It further said that several international
meetings including that of the African Union would be held in the same time
and the timing of the procession is not acceptable.146 After hearing the response
of the administration, the organizers noted that such decisions could only be
140 Neamin Ashenafi, ‘Cancellation of Planned Demonstration annoys Medrek’
< http://www.thereporterethiopia.com/content/cancellation-planned-demonstration-annoys-
medrek> accessed 1 April 2016
141 Ibid.
142 ‘Addis Ababa City Administration Turns Down MEDREK’s Request for Demonstration
Permit’ down-
medreks-request-for-
demonstrationpermit/?utm_source=twitterfeed&utm_medium=twitter&utm_campaign=
@aababaonline> accessed 1 April 2016
143 Neamin Ashenafi, supra note 140.
144 ‘Addis Ababa City Administration Turns Down MEDREK’s Request for Demonstration
Permit’ -down-
medreks-request-for-
demonstrationpermit/?utm_source=twitterfeed&utm_medium=twitter&utm_campaign=
@aababaonline> accessed on 1 April 2016.
145 VoA Radio Amharic News 19 February 2016.
146 Neamin Ashenafi , supra note 140.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 323
interpreted as absence of good faith on the part of the authorities and their
unwillingness to allow the exercise of the constitutional right to freedom of
assembly.
They particularly underscored the fact that the day chosen for procession in
both cases was Sunday where there is no traffic congestion and the public
institutions and schools are closed on that day.147 Concerning the Epiphany
holiday, they said it was going to be celebrated three days after the planned
demonstration and it is difficult to imagine how it could be a sufficient reason
for banning the procession. The same is true for the said African Union meeting
as it was due to be held fifteen days after the planned date of procession.148
Despite successive rejections, MEDREK submitted another notification to
conduct a peaceful gathering at Meskel square on Sunday February 14, 2016.
According to the organizers, the administration kept quiet this time but they
received a threat from the police informally which made them to cancel the
gathering. They further noted their frustration with the decision of the
administration saying MEDREK’s existence as a political party would be
meaningless without freedom of assembly. The leaders of the party particularly
said: ‘if we are prevented from all this, then what instrument is left for us to
remain politically active and visible as a political organization?’149
The problems discussed in the preceding paragraphs raise several issues, the
first being whether the authorities should have unlimited power to postpone time
or change the venue for a planned assembly. To address this issue, it is
important to bear in mind that one component of the right to freedom of
assembly is the entitlement of organizers to choose the place and time they think
is appropriate for achieving their purpose unless there is an overriding concern.
A corollary of such entitlement is that authorities cannot arbitrarily make time
and place restrictions as they wish by mentioning insignificant concerns.
On this issue, the UN Special Rapporteur and Venice Commission of Experts
underscore that time and place restriction should take into account the principle
of proportionality which requires legitimate aim, suitability, necessity and
weighing the cost as well as the benefits of restriction.150 As such, a decision to
postpone the assembly to another time or place must be made after due
consideration of several factors, i.e. only when it is not possible to address the
concern by using another measure which is less restrictive. Further, they noted
147 Ibid.
148 Ibid.
149 Ibid.
150 ‘Report of the Special Rapporteur on the Right to Freedom of Peaceful Assembly and of
Association’ , Maina Kiai, A/HRC/20/27 (2012) par.40, & OSCE/ODIHR , Venice
Commission Guidelines on Freedom of Assembly, (2ed Venice, 2010) para.101
324 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
that organizers are not obliged to comply with the suggestion of the authorities
regarding alternative place and time for conducting the assembly if it
undermines the ‘essence’ of the gathering.151
A good example in this regard could be the suggestion of the Addis Ababa
City Administration to Semayawi Party to conduct an indoor meeting in a hall
instead of undertaking a demonstration in Meskel Square. Such alternatives
obviously erode the essence of the gathering since the purpose and effect of an
open sky demonstration and a meeting in a closed hall cannot be identical. This
is because freedom of assembly includes a right of undertaking a demonstration
within ‘sight and sound’ of its target audience.152 Hence, whenever the
administration seeks to apply time and place restriction –including
postponement or relocation– it must go through every step in the scrutiny of
proportionality to ensure the legitimacy of the measure.
The same position is reflected in the jurisprudence of the UN Human Rights
Committee. In Denis Turchenyak v Belarus,153 the applicants sought the
permission of Brest City Administration for conducting a picket of 10 people for
three days from 1 pm to 3 pm in an area reserved for pedestrians. The city
administration rejected their application by citing a bylaw which designates
‘Lokomotive Stadium’ as the only place of undertaking a picket.154 Courts also
affirmed the decision of the authorities as appropriate. This forced the applicants
to approach the UN Human Rights Committee alleging the violation of their
right to freedom of assembly.
Their main contention was, the alternative place available for them is an
‘isolated location in a stadium that is surrounded by a concrete wall’ which
detaches them from their target audience making their whole activity futile.155
The Committee endorsed their argument by reasoning that the place restriction
of the authorities on the applicants is capricious and disproportionate since it
was imposed without showing ‘how a picket held in the said location would
necessarily jeopardize national security, public safety, public order, the
protection of public health or morals or the protection of the rights and freedoms
of others.’ 156
This would take us to another related question whether there should be a
hierarchy among different uses of public spaces like streets, parks or squares.
The other question is whether the utilization of public places for conducting
151 Ibid.
152 Ibid.
153 Denis Turchenyak v Belarus, Human Rights Committee(Communication No. 1948/2010 )
10 September 2013.
154 Id., para. 2.4.
155 Id,, para 3.1.
156 Id., para. 7.5.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 325
gatherings is of secondary importance compared to other uses such as traffic,
trade fairs or celebration of religious festivals. Addressing these issues is very
crucial since the practice in Ethiopia seems to favour the use of public places for
other purposes than for conducting demonstration and public political meetings.
As noted in different parts of this article, the Addis Ababa City Administration
has repeatedly cancelled various notifications for conducting demonstrations by
raising concerns for the smooth flow of traffic or the occupation of these places
by other activities such as trade exhibition of micro-enterprises and giving an
outright priority for the latter.157
Such practice is contrary to the recommendation of the UN Special
Rapporteur on the right to freedom of assembly and Venice Commission of
Experts. Both authorities underscore the need to give equal value for the
utilization of public spaces for assemblies by stating that ‘the free flow of traffic
should not automatically take precedence over freedom of peaceful
assembly.’158 The Venice Commission of Experts further notes that ‘assemblies
are as much a legitimate use of public space as commercial activity and the
movement of vehicular and pedestrian traffic.’159 As such, administrative
officials must not consider assemblies as having a secondary importance which
could be easily forfeited whenever a competing use arises. Such approach
violates the proportionality that must be observed whenever freedom of
assembly is restricted. Hence, the municipality is duty bound to come up with a
mechanism to reconcile various uses instead of invariably choosing to sacrifice
the undertaking of assemblies for the sake of other uses. For instance, concerns
of traffic flow could easily be addressed by ‘rerouting pedestrian and vehicular
traffic in a certain area.’160
It is also important to bear in mind that, any restriction imposed on freedom
of assembly should be in line with ideals of democracy as enshrined in the
FDRE Constitution and ICCPR.161 The hallmark of a democratic society is its
tolerance of minor inconveniences and its ability to accommodate various
legitimate interests without imposing unnecessary burden on some for the sake
of others. Authorities regulating freedom of assembly need to appreciate that ‘in
157 ‘Blue Party Demonstration Postponed to 22 September 2013’ (Amharic),
accessed on March 31, 2016.
158 ‘Report of the Special Rapporteur on the Right to Freedom of Peaceful Assembly and of
Association’ , Maina Kiai, A/HRC/20/27 (2012) par.41, & OSCE/ODIHR , Venice
Commission Guidelines on Freedom of Assembly, (2nd ed Venice, 2010) para.3.2 & 20.
159 Ibid.
160 Ibid.
161 Constitution of Kenya, 2010, art. 37; International Covenant on Civil and Political
Rights (adopted 16 December 1966, entered into force 23 March 1976) art. 21
326 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
a democratic society, the urban space is not only an area for circulation, but also
for participation.’162 This shows that the provision of the Ethiopian assembly
law that gives municipalities the power to restrict assemblies as they wish on
account of preventing ‘disruption of ordinary life of the people’163 must be
qualified as it is inherently disproportionate. This is because it is impossible to
conduct gathering free from any inconvenience to the public in some way. The
consideration must rather be whether such nuisance is bearable in a democratic
society founded on respect for fundamental freedoms. Thus, unless the
participants of the assembly resort to violence ‘it is important for public
authorities to show a certain degree of tolerance towards peaceful gatherings.’164
This would take us to another related issue regarding the manner restrictions
on freedom of assembly (i.e. restrictions related to the manner of participants in
the assembly). As noted earlier, peacefulness constitutes a core element of the
right to freedom of assembly that bestows the right a protected status. So it is
only logical if authorities take measure against assemblies that are imminent
threat to peace and security. It is also acceptable if the law bans assemblies and
gatherings that incite racial hatred or discrimination which undermines the right
of others enshrined in Ethiopian assembly law.165
Yet, restrictions related to the manner of participants (i.e. manner
restrictions) imposed by administrative officials need to be subjected to
proportionality test to avoid unnecessary limitations. Contrary to this principle,
some municipalities in Ethiopia seek organizers to secure the peacefulness of
assembly in advance as a pre-condition for allowing the gathering to proceed.166
Such restriction is too cumbersome on organizers. According to the UN Special
Rapporteur on freedom of assembly, what organizers need to demonstrate is
their intention to conduct the assembly in a peaceful manner.167 Hence, asking
them to guarantee the peacefulness in advance does not seem appropriate
because it is the state that has the primary duty as well as power to do so. If any
duty is to be imposed on organizers it should be that of assisting state security
officers in ensuring the smooth running of the assembly.
The state’s positive obligation of facilitating assemblies to ensure its peaceful
completion is particularly relevant for Ethiopia. This is because; most
162 Report of the Special Rapporteur, supra note 67, para. 41.
163 Demonstration and Political Meeting Proclamation, supra note 7, art 6(1)
164 Balçik and Others v. Turkey, ECHR (Application No. 25/02) 29 November 2007 para.
52.
165 Demonstration and Political Meeting Proclamation, supra note 7, art. 8(1).
166 ‘Blue Party Demonstration Postponed to 22 September 2013’ (Amharic),
accessed 31 March 2016.
167 Report of the Special Rapporteur , supra note 67, para.25-26.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 327
demonstrations are dispersed by the police citing incidence of violence.168
Often, few individuals participating in a demonstration will start throwing
stones or provoke the crowd towards violent action. It is difficult to know
whether these persons are sent by the state itself or not. The usual approach of
security personnel is to disperse the assembly immediately irrespective of the
magnitude of violence.169 Such dispersal orders violate the principle of
proportionality. As recommended by the UN Special Rapporteur and Venice
Commission of Experts, security personnel should react by singling out
provocateurs or those who disturb instead of dispersing the whole assembly.170
Such measures will help peaceful participants of the assembly to proceed with
their demonstration until the very end.
The Proclamation regulating assemblies in Ethiopia says nothing about the
type of weapon that should be utilized by security personnel. However, ‘the only
circumstance warranting the use of firearms, including during demonstrations, is
the imminent threat of death or serious injury.’171 Hence, security forces should
not start firing whenever they see some degree of violence in an undergoing
protest. They are rather expected to show more tolerance towards the
demonstrators by considering the importance of the right to freedom of
assembly and other fundamental rights. As such, what they should do primarily
is facilitate the peacefulness of the assembly by picking out those who are
utilizing violent means and by using the least harmful but effective force
possible.172 This would make the measure legitimate, suitable, less intrusive and
proportional. However, if life or body is subjected to serious danger, that is
about to happen, the use of more force on by the police would be tolerated so
long as it meets all the tests of proportionality.
168 Aaron Maasho ‘Ethiopian Police Tear-Ga s Crowds Protesting Against Libya Killings’
idUSKBN0ND0QW20150422>22/ethiopian-
police-tear-gas-crowds-
protest?videoId=363951067&mod=rel ated&channelName=worldNews> accessed on
April 1, 2016.
169 Ibid.
170 Report of the Special Rapporteur, supra note 67, para. 33.
171 Id, para. 35.
172 Ibid.
328 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
6. Public Peace, Public Safety and Public Order Restrictions
The grounds of public peace, safety and order are considered legitimate for
limiting the right to freedom of assembly in many jurisdictions including
Ethiopia. However, the application of these grounds needs to be scrutinized
properly to prevent their unjustified use in restricting peaceful gatherings.
Ethiopian courts lag behind Kenyan courts in this regard. Kenyan courts are
becoming active in discharging their constitutional duty ‘to hear and determine
applications for redress of a denial, violation or infringement of, or threat to, a
right or fundamental freedom in the Bill of Rights’173 including the right to
freedom of assembly. The following two cases pertaining to freedom of
assembly demonstrate how Kenyan courts are utilizing the proportionality test
incorporated in the Constitution for reviewing legislative or the executive
restrictions imposed on an assembly.
In Eugene Wamalwa v. Minister for State for Internal Security,174 the
applicant Mr. Walmalwa was an elected member of the Kenyan national
assembly from the Sabouti constituency who was also interested in running for
presidency in the 2012 presidential election. He chose ‘Kamukinji Grounds’ as
a place to officially begin his election campaign.175 Subsequently, as per the
requirement of the Kenyan Public Order Act, he submitted a notice of intent of
organizing such event at ‘Kamukunji Grounds’ on January 29, 2011 from 10 am
to 6 pm.176 He further sought the cooperation of the security personnel to ensure
the peaceful undertaking of the political meeting. In the meantime, the applicant
continued to make other necessary arrangements such as advertisement and
preparation of posters by allocating around 1 Million Kenyan Shillings.
The response of the authorities came fifteen days after the submission of the
notice and four days before the undertaking of the planned event. Their decision
was to ban the planned political meeting by expressing their fear that “members
of an unlawful group known as ‘the Mungiki’ may attend the meeting and
disrupt public order in Nairobi”.177 They further noted that allowing the political
meeting to proceed will also endanger ‘the rights and fundamental freedoms of
others’.178 Hence, the planned gathering was cancelled.
Upset by the verdict of the police, the applicant approached the High Court
in Nairobi alleging the violation of his right to freedom of assembly enshrined
under article 37 of the Kenyan Constitution. Before it proceeded to resolving
173 Constitution of Kenya 2010, art. 23(1).
174 Eugene Wamalwa v Minster for Stat e for Internal Security & Another [2011] eKLR.
175 Ibid.
176 Ibid.
177 Ibid.
178 Ibid.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 329
the dispute, the court underscored that the right to freedom of assembly could
not be restricted in the absence of proportionality considerations laid down in
article 24 of the Kenyan supreme law.179 More importantly, the court held that
the ‘state should not be allowed to suppress the freedom of assembly without
sufficient and genuine reasons.’180 It further suggested that if people are denied
their right to assemble peacefully and express their view, they might be pushed
to resort to other violent means.181
It held that the reason provided by the state for cancelling the gathering was
not convincing and sufficient. This is because the alleged threat is something
which is within the capacity of the state to be averted. The court further stated
that the cancellation of the assembly on ground of security ‘is tantamount to
admitting that the State is incapable of dealing with members of outlawed
groups or sects, which is not the case.’182 From this decision, one can see that
the court made an exalting scrutiny to determine whether or not the ground
mentioned by the authorities for restricting freedom of assembly is proportional.
It particularly shows the failure of the state to meet the necessity element since
the security issue could be addressed by less restrictive means than entirely
cancelling the assembly thereby causing significant impairment to the right.
In Randu Nzai Ruwa & two Others v. Internal Security Minister,183 the
applicants were members of Mombasa Republican Council which was declared
by the Kenyan government as a criminal organization in accordance with the
law regulating organized crime.184 The justification provided by the government
for taking the measure was that, the council is not registered as an association
and it propagates a secessionist agenda contrary to the Kenyan Constitution
which proclaims Kenya as ‘one indivisible sovereign state.’185 The applicants
challenged the decision of the Kenyan government –to dissolve the association–
as incompatible with their right to freedom of association and assembly
recognized under the Kenyan Constitution.
Before giving its verdict, the court noted that the rights to freedom of
association and assembly are indispensable tools for exercising all political
rights.186 Then, the court went on to determine whether these rights are violated.
The court noted that outlawing the association clearly infringes the right to
179 Ibid.
180 Ibid.
181 Ibid.
182 Ibid.
183 Randu Nzai Ruwa & 2 others v Internal Security Minister & another [2012] eKLR
184 Ibid.
185 Constitution of Kenya, supra note 168, preamble.
186 Randu Nzai Ruwa & 2 others v Internal Security, supra note 183.
330 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
freedom of assembly and association.187 However, since these rights are not
absolute, the court went further to assess whether the infringement was justified
and reasonable. To arrive at its conclusion, the court referred to the limitation
clause of the Constitution which states that any restriction must be ‘reasonable
and justifiable in an open and democratic society’.188 It further underscored the
fact that ‘democracy is meaningless without tolerance’.189 In effect, the court
expressed the importance of having tolerance towards hearing different
viewpoints including those propagating secession, no matter how much the
majority disagrees with them.
The court stated that advocating a secessionist agenda is not in itself a threat
to public security or peace so long as the proponents want to achieve their end
through peaceful and democratic means.190 Since secession is not entertained
under Kenya’s current constitutional framework, executing such idea needs
constitutional amendment which has to follow the necessary procedure.191 Yet,
promoting such idea alone is not a sufficient reason to deny recognition to the
association. The court found that the measure taken by the Kenyan government
violates the principle of proportionality since it chose the most restrictive
method of dealing with the problem which is a total ban.192
Instead of such measures, the court suggested for controlling the activities of
the organization through appropriate registration or imposition of criminal
liability on members of the association who engage in violence, thereby
pursuing a less restrictive means of preventing the feared risk to national
security.193 This decision is very instructive for countries like Ethiopia which
take serious measures against political organizations have different positions on
matters stipulated in the FDRE Constitution. As long as individuals or
association utilize peaceful means and abide by rules of democracy, they should
be allowed to assemble and express ideas even if the views may not be favoured
by the current constitutional framework. The public can then be left free to
decide whether or not these ideas are acceptable and beneficial without
unnecessary involvement of the government.
187 Ibid.
188 Ibid.
189 Ibid.
190 Ibid.
191 Ibid.
192 Ibid.
193 Ibid.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 331
7. Decision Making Procedure and Judicial/Administrative
Review
7.1 Decision Making Procedure
Most of the problems associated with the notification of assemblies in Ethiopia
and the restrictions related to place, time and manner could have easily been
resolved had the existing implementing law on freedom of assembly provided
for a clear, transparent and inclusive procedure of decision making. The
Proclamation governing Peaceful Demonstration and Public Political Meetings
rather makes the municipalities or local authorities sole decision makers in the
process without the need to involve organizers.194 The organizers are not
allowed to have a say in the decision making process pertaining to assemblies or
restrictions imposed on them as of right. What the law entitles them to is to
merely get reasoned decision within the time prescribed by law.195 This would
make the decision unfair from a procedural point of view since it is made
without adequate hearing.
Such practices and procedures are regarded as inappropriate by the Venice
Committee of Experts who underscore the importance of ensuring ‘that the
decision-making and review process is fair and transparent.’196 They contend
that the right to freedom of assembly bestows upon the organizers ‘full rights to
participate in any hearing that takes place’, and that such hearing is required if
‘limitations or a prohibition are being proposed’.197 Hence, any decision
rendered without involving the organizers of the gathering violates the right to
freedom of assembly.
The Committee of Experts has also given an illustration of what constitutes
adequate participation in decisions that have a limiting implication for
assemblies. These include the right of organizers to be represented by a lawyer
in the decision making process and to adduce any evidence that support their
claim be it an oral testimony or documentary evidence.198 These entitlements
are very crucial in the decision making proceedings applicable to assemblies
since they ensure the fairness of the process and enhance the possibility of
making the right decision. Hence, Ethiopia should consider incorporating these
procedures in its law that regulates assemblies.
194 Demonstration and Political Meeting Proclamation, supra note 7, art. 6(2).
195 Ibid.
196 OSCE/ODHIR, Opinion on the Draft Law on Meetings, Rallies and Manifestations of
Bulgaria, Opinion no. 532 / 2009 (5 June 2009), s.39.
197 OSCE/ODHIR, Interim Joint Opinion on the Draft Law on Assemblies of the Republic of
Armenia by the Venice Commission and OSCE/ODIHR, Opinion no. 596/2010 (22
December 2010) ss.56-57.
198 Ibid.
332 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
7.2 Judicial or Administrative Review
Another big lacuna in the Ethiopian law of assemblies is the absence of any
administrative or judicial mechanism that reviews the decision of authorities
imposing limitations on peaceful demonstrations or political meetings. As far as
the Proclamation is concerned, the decision of the municipalities/local
administration on accepted notifications or related limitations thereof is final.
This is very dangerous because it gives wide discretionary power to authorities
to restrict freedom of assembly for whatever reason they think is appropriate
since there is no mechanism to hold them accountable. What is striking here is
that, despite numerous problems and ineffectiveness of notifications for holding
assemblies in Ethiopia, no single application for the review of such decisions
has been submitted to courts. What the organizers have done in this respect so
far is issuance of statements threatening authorities that they will challenge the
decisions in a court of law without actually doing so.199 They have also made a
few attempts to seek review of such decisions by higher officials of the city
administration in an informal manner.200
There are other complex issues concerning the role of courts in the
interpretation of constitutional rights in Ethiopia including the right to freedom
of assembly. On the one hand, the Constitution obliges courts at federal and
state levels ‘to respect and enforce’ fundamental rights and freedoms enshrined
in the Constitution.201 On the other hand, the Constitution reserves the power of
interpreting the ‘constitutional disputes’ to the House of Federation which
represents the Nation and Nationalities of Ethiopia.202 This stipulation has been
misconceived by members of the judiciary as precluding courts from entertaining
any claim that is principally based on the Constitution.203 Hence, judges
subscribing to this view have opted to send various cases to the Council of
Constitutional Inquiry merely because the Constitution is invoked as the primary
legal basis.204
Such practice is strongly criticized by some scholars with whom the author
agrees. For instance, Takele argues that it is a ‘literal’ and extended
interpretation of the term ‘constitutional dispute’ that led to the absurd scenario
199 Blue party Demonstration Postponed to 22 September 2013’ (Amharic),
accessed 31March 2016
200 Ibid.
201 FDRE Constitution, supra note 6, art. 13(1).
202 Ibid, art. 83.
203 Takele Soboka, ‘Judicial Referral of Constitutional Disputes in Ethiopia: From Practice
to Theory,(2011) 19 African Journal of International and Comparative Law, vol.1 (2011)
pp.107-110.
204 Ibid.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 333
in which courts have little say in entertaining cases of constitutional
importance.205 Accordingly, he argues for a restrictive understanding of
‘constitutional disputes’ which fall under the jurisdiction of the House of
Federation.206 Such a dispute arises only when the judge on whose bench a
constitutional case appears is faced with two or more constitutionally sound
interpretations of a certain constitutional clause or article, during which he/she
must refer the case to the House of Federation for decision.207 As Takele duly
notes, such construction ensures harmony among different provisions and gives
effect for all.
Not every dispute or controversy raised by the parties over the meaning of a
constitutional provision or clause in concrete cases will automatically deprive
the court its mandate to entertain the case. If the judges could easily resolve the
issues by undertaking a coherent scrutiny of the Constitution, then there is no
constitutional controversy and the case ends there. The remedy for the parties
will be appeal. It is to be noted that, a constitutional case involves ‘constitutional
dispute’ only when –after due consideration of several issues, the court is of the
opinion that there are more than one equally legitimate interpretations of the
contested constitutional provision which are in line with its purpose. Such cases
involve constitutional controversy and thus fall under the realm of the House of
Federation.208
This interpretation is in line with the duty of the court (stipulated under the
Constitution) to ensure the observance and enforcement of human rights
recognized by it including the right to freedom of assembly. It would also make
the provision of the Constitution –that provides all people ‘the right to bring
justiciable matters to court of law’– meaningful.209 Hence, decisions restricting
freedom of assembly are justiciable matters that could be resolved by courts by
examining national and international laws including the Constitution.
Furthermore, the duty of the judiciary to enforce human rights recognized by the
Constitution should include its obligation to explicate the content of the right to
freedom of assembly by referring to treaties ratified by Ethiopia. Such duty
should also be extended to determining the appropriateness of restrictions
imposed on the right to freedom of assembly (by authorities in Ethiopia) in light
of constitutional and international standards. In the absence of such authority,
courts cannot legitimately claim to be guardians of fundamental rights enshrined
in the Constitution.
205 Ibid.
206 Ibid.
207 Ibid.
208 Ibid.
209 FDRE Constitution, supra note 6, art. 37
334 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
The proclamation establishing federal courts in Ethiopia (i.e. Federal Courts
Proclamation No. 25/1996) recognizes the power of courts to enforce
fundamental rights incorporated in the Constitution since it gives them material
jurisdiction to entertain any case ‘arising from the Constitution or federal
law’.210 Hence, a person claiming the violation of his right to freedom of
assembly by arbitrary decision of municipalities could rightly approach courts as
his claim is founded on the Constitution. They also have a duty to hear and
decide cases. The phrase ‘case arising from the federal law’ may evoke
arguments because the current legal regime applicable for regulation of
assemblies was adopted during the transitional period and before the adoption of
the present Constitution and the federal structure. However, considering its
application at the national level to date, one can regard it as federal law and say
that federal courts or regional courts by way of delegation have the right to
entertain cases pertaining to the right to freedom of assembly.
The next question would be which kind of courts i.e. administrative or
ordinary courts should resolve assembly related cases. On this issue, the practice
of other countries shows that some have chosen the former and others the latter
as mentioned by the study of the UN Special Rapporteur and Venice Committee
experts.211 What is important for both bodies is having an opportunity to ‘appeal
before an independent and impartial court, which should take a decision
promptly’.212 It is also important to clearly state this right in the law regulating
freedom of assembly. Hence, Ethiopia should fill the lacuna in its assembly law
by clearly incorporating the right to appeal of organizers of an assembly against
any decision they think is an arbitrary restriction of the right to freedom of
assembly. The nature of the remedy could be an injunction order or a monetary
compensation if civil damage is sustained. Besides, national human rights
institutions such as the Ethiopian Human Rights Commission and the Ethiopian
Institution of Ombudsman should provide an additional oversight over
discretionary administrative decisions pertaining to the right to freedom of
assembly since they have the constitutional duty to ensure protection to the right
to freedom of assembly.
210 Federal Courts Proclamation No. 25/1996 2nd year No. 13 Federal Negarit Gazzeta Addis
Ababa - 15th February, 1996, art 3(1).
211 ‘Report of the Special Rapporteur on the Right to Freedom of Peaceful Assembly and of
Association’ , Maina Kiai, A/HRC/20/27 (2012) para.42 & OSCE/ODIHR , Venice
Commission Guidelines on Freedom of Assembly, (2ed Venice, 2010), para.66.
212 Ibid.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 335
8. The Role of Political Will in Safeguarding the Right to
Freedom of Assembly
The preceding sections have shown the gaps in the legal landscape governing
the right to freedom of assembly in Ethiopia, problems associated with its
implementation and best practices in other jurisdictions. The discussion on these
issues serves as a basis for the question as to how we can change this situation
by addressing the problems. A very important factor in this regard is political
will towards promoting good governance, ensuring rule of law and strengthening
democratic institutions. This is very critical because the challenges discussed in
the preceding sections are not only attributable to the lacunae in the Constitution
and the legislation regulating freedom of assembly. Even the best constitutional
and statutory protection afforded to the right to freedom of assembly might not
guarantee adequate realization of the right on the ground. In other words,
constitutional and legislative gaps have certain contributions but everything
cannot be attributed to them. Thus, we need to inquire further and ask other
fundamental questions concerning factors that could hinder legislative reform
and its implementation.
These questions may include the reason/s for (a) the failure of the
government/legislature to enact a law which better safeguards the right to
freedom of assembly; (b) unfettered arbitrary power of institutions regulating
freedom of assembly without accountability; (c) gross failure of courts (whose
independence is formally guaranteed by the Constitution) in discharging their
constitutional duty of defending the right to freedom of assembly when it is
restricted; (d) the indifference of courts when the right to freedom of assembly
is curtailed; (e) the failure of the national human rights institutions (established
by the Constitution) to guard against the encroachment of the right; and (f)
failure of the media and civil society to play their roles toward ensuring the
protection of the right. In sum, there is the need to inquire into the core factor
that is preventing democratic institutions recognized by the Constitution such as
parliament, courts, national human rights institutions (such as the Ethiopian
Human Rights Commission), media’s and civil society from defending the
protection of fundamental rights including freedom of assembly. As elaborated
in the following paragraphs, the main factor which explains many of these
questions is the lack of political will of those who hold political power towards
good governance, rule of law and functioning of strong democratic institutions.
In his message for the 2013 world human rights day, the UN Secretary
General Ban Ki-moon underscored the importance of political will on the part of
336 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
states to ensure the adequate protection of human rights.213 Post et al define
political will as ‘the extent of committed support among key decision makers for
a particular policy solution to a particular problem’.214 They identify the key
decision makers as elected or appointed officials who formulate and make the
final policy decision on certain matters.215 Depending on the democratic nature
of the regime, the decision maker could be a single person or group of persons
or shared among the different branches of government in a proportionate
manner as envisaged in democratic regimes.
The first element in political will relates to the manner of elections and
appointments. Factors like the presidential or parliamentary nature of
government, its unitary or federal character, the practice of single party or multi-
party system are also crucial in determining key decision makers.216 Applying
these criteria may shed some light in answering who is holding the key power of
making important decisions in Ethiopia. The answer to this question is central to
address the role of political will in realizing fundamental rights including the
right to freedom of assembly. Constitutionally speaking Ethiopia is a federal
state in which power is apportioned between the federal and state
governments.217 Beside horizontal division, the Constitution also apportions key
powers between the legislative, executive and judicial branches of the
government.218 The Constitution also dictates for a parliamentary democracy
with multiple parties.219
However, examining the practice may lead to a totally different conclusion.
In practice it is often the federal government that makes important decisions for
the central government as well as for members of the federation.220 Even among
the federal government organs, the power relationship is not balanced. Hence,
too much power is concentrated in the hands of the executive and the parliament
compared to the weak judicial organ. Consequently, the judiciary is unable to
exercise a strong oversight over their activities.221 With regard to political
213 United Nations, Secretary-General's Message for 2013
October 21, 2016
214 Lori Ann Post et al, ‘Defining Political Will’ (2010), Politics and Policy p.653.
215 Ibid.
216 Ibid.
217 FDRE Constitution, supra note 6, art 1&46, 50(1).
218 Id., art 45,
219 Id., art 50(2)
220 Kalkidan Kassaye, Center–State Relations in the Ethiopian Federal Setup: Towards
Coercive Federalism-A Glance From The Federal Practice (LL.M Thesis, Unpublished)
School of Law Addis Ababa University, 2010 pp.133-134.
221 Assefa Fiseha (2011), ‘Separation of powers and its implications for the judiciary in
Ethiopia’ Journal of East African Studies Vol.5 No.4 (2011).
Protection of the Right to Freedom of Assembly under Ethiopian Law … 337
parties, even if Ethiopia is constitutionally a multi-party state, it has been a
single party state de facto for the past 25 years. This has resulted in the blending
of the executive branch and the ruling party. Hence, arguably, one can consider
the Executive Committee of the ruling political party EPRDF (Ethiopian
Peoples Revolutionary Democratic Front) as the key decision maker in present
day Ethiopia. 222
The second element in political will requires the decision makers’
understanding ‘that a particular issue or condition has reached problem status’
and thereupon ‘agree on the nature of the problem, and that the problem requires
government action’.223 For our purpose, the issue which needs adequate
government attention or political will is ensuring good governance, observing
rule of law and preserving strong democratic institutions in general and
protecting the right to freedom of assembly in particular without which
sustainable peace and development are unthinkable.
Good governance is a broad concept and it includes a number of elements
within its ambit including rule of law and strong democratic institutions. In the
general sense it may be construed as ‘principles of accountability, participation,
transparency and rule of law’.224 In the particular sense it means, ‘free, fair and
frequent election; representative legislature that makes laws and provides
oversight; an independent judiciary that interpret laws; … guarantee of human
rights and rule of law; and …transparent and accountable institutions’.225
Decentralization of power and engaging civil society in decision making process
is also an attribute of governance that is good.226
The policy decisions made on these critical issues by the key decision makers
will have a negative or positive impact on the exercise of the right to freedom of
assembly. If they decide to conduct free and fair elections and abide by rule of
law as stipulated in the Constitution, a representative parliament will be
established. This parliament will be guided by rule of law, not rule by law. This
means, the legislature will not rush into adopting whatever law is proposed by
the executive or its members. It will rather seriously consider the human right
implications of the laws that it adopts, and makes sure that every law it makes
will not infringe them in a disproportional manner.227 Such policy decisions will
222 Kalkidan, supra note 220, pp.133-134.
223 Post et al, supra note 214, p. 662.
224 G.Shabbir Cheema (2005), Building Democratic Institutions Governance Reforms in
Developing Countries, Kumarian Press Inc., pp. 5-6.
225 Ibid.
226 Ibid.
227 Stefanie Ricarda Roos, The “Rule of L aw” as a Requirement for Accession to the
European Union,
accessed on October 21, 2016.
338 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
better safeguard the right to freedom of assembly and pave the way for the
adoption of a right friendly law.
Likewise, if the key decision makers decide to give complete autonomy and
operating space for democratic institutions such as courts, national human right
institutions, media and civil society, freedom of assembly would be guarded by
these actors from arbitrary encroachment. Further, if decision makers make
accountability and transparency their number one priority, the institutions
regulating freedom of assembly would take extra care not to infringe the right
and provide sufficient justifications when they do so. The central question here
is whether the key decision maker in Ethiopia i.e. EPRDF regards issues of good
governance and democracy as matters worthy of governmental action. Although
the party has (on several occasions) stated the gaps in good governance and its
willingness to address them,228 it has failed to take crucial policy decisions of
good governance in a manner that would have ensured better protection of
human rights in general and the right to freedom of assembly in particular.
Further, it is not clear how good governance, democracy and rule of law are
understood by the party.
The third and most important component of political will refers to the
commitment of the decision makers. According to Post et al, the heart of
political will is commitment on the part of the decision makers ‘in supporting a
particular policy’.229 The central question would be why the leaders of the ruling
party who are the key decision makers in Ethiopia are not showing a strong
support or commitment to address the serious issue of good governance, rule of
law, democratic institutions and respect for human rights including freedom of
assembly? This question is important because the ruling party often admits the
gaps in good governance and makes pledges to take certain measures to improve
the situation, but we do not often see the promised changes in practice.
On this point, Post et al provide two factors which might force the decision
makers to be committed to the pledged measure. The first is fear of
‘reputational cost’ due to which decision makers might be committed to pursue
a certain policy measure because failure to bring the promised changes will
damage their image in the eyes of the public.230 In other words, they will lose
credibility in the public and no one will take their pledges seriously. Based on
the observation of this author, the ruling party has made so many promises to
bring reforms of good governance and rule of law, but has failed to deliver them
228 ‘EPRDF pledges to fulfill responsibility in New Year’ 12 September 2016
responsibility-in-new-year > accessed: 23 October 2016.
229 Post et al, supra note 214, p. 663.
230 Id., p.664.
Protection of the Right to Freedom of Assembly under Ethiopian Law … 339
in a tangible manner. The second factor (identified by Post et al) which forces
decision makers to be committed towards a certain measure is the pressure of
accountability to the general public.231 This presupposes the existence of free
and fair election and multi party-democracy. In such systems, if the decision
makers fail to show commitment towards certain policy measures that are
desired by the public, it will replace them with another party in the next election.
This is a strong incentive for decision makers to show strong commitment for
their pledges in democratic regimes. But this does not seem to be relevant for
Ethiopia because the ruling party has no reasonable fear that it will be replaced
by elections at the moment since all relevant institutions for conducting fair
elections are under its control or influence.232
In spite of these gaps (in the factors that force decision makers towards
political will that facilitates good governance, rule of law and strong democratic
institutions), the unpredictability of what may transpire in the future with respect
to the overwhelming power of the ruling party, long term consideration of peace
and development that would accrue from good governance may allure the party
to take these reforms. Considering these factors, the ruling party should
demonstrate a firm political will to address issues of good governance, rule of
law and strong democratic institutions in general which have contributed to the
fragile protection of the right to freedom of assembly in Ethiopia.
Conclusion
The comparative study in this article has identified a number of problems in the
Ethiopian legal regime that regulates freedom of assembly. At the constitutional
level, the absence of an explicit and full-fledged proportionality requirement in
the FDRE Constitution for assessing the acceptability of limitations on freedom
of assembly is noted as a problem. Even though the Constitution requires the
interpretation of human rights (incorporated in it) to be in line with international
treaties, the reference is too generic and proportionality is not immediately
evident. This will make the task of enforcement and application unrealistic
given the bad track record of the country in democracy, rule of law and human
rights protection. Hence, there is good reason to be sceptical about this
approach. Instead, an explicit incorporation of proportionality and its
constitutive elements in the Constitution (as in the Kenyan Constitution) is a
better approach for protecting freedom of assembly rather than merely relying
on international treaties as guide for interpretation and conformity.
231 Ibid.
232 Jason Mosely, ‘Ethiopia's elections are just an exercise in controlled political
participation’, the guardian
development/2015/may/22/ethiopia-elections-controlled-political-part icipation >
accessed on October 21, 2016.
340 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
Second, at the sub-constitutional level, the existing Ethiopian legislation
governing assemblies contains many lacunae. Particularly, its provisions
regulating the notification procedure for conducting an assembly and the
decision making process are deeply flawed giving too much discretionary power
for authorities to do whatever they want. The non-existence of a provision that
guarantees the accountability of the authorities through judicial and
administrative review has further rendered the right to freedom of assembly
defenceless and the authorities unaccountable. Thus, an Ethiopian assembly law
that meets the test of proportionality must be enacted without delay to fill
significant gaps in the existing law and to make it compatible with international
standards set by the UN Special Rapporteur on freedom of assembly and
association, UN Human Rights Committee and the Venice Commission of
Experts. But for these reforms to happen in the existing legal landscape
governing freedom of assembly and be implemented subsequently in
appropriate manner, it requires the political will of the ruling party of Ethiopia
(EPRDF) which holds the key decision making power toward facilitating the
enhancement of good governance and rule of law, and enabling democratic
institutions to discharge their constitutional responsibilities.
All these interrelated matters require political will and they have a direct
repercussion for in/adequate protection of the right to freedom of assembly. For
instance, adopting a good law on freedom of assembly requires a strong
democratic institution i.e. parliament which critically debates on proposed bills
and ensures its proportionality with regard to the affected right. This in turn
depends on free and fair elections and a genuine multi-party democracy that puts
fundamental rights at its core which is an imperative element of good
governance. Likewise, commitment to rule of law is essential to constrain the
parliament from enacting a law that infringes freedom of assembly and to
control the executive from applying the law in an improper manner. It also
instils transparency, a culture of justification and accountability in their
functions.
Moreover, when the parliament and the executive commit infringements in
respecting and protecting the right to freedom of assembly, strong democratic
institutions such as courts, national human rights bodies, the media and civil
societies are expected to intervene and defend the right, and this requires
autonomy and operating space. Hence, in the interest of sustainable peace and
development, the ruling party should demonstrate genuine commitment to issues
of democracy, good governance, rule of law and respect for fundamental rights
including freedom of assembly. In the absence of such commitment and political
will, it would be naïve to expect the full-fledged protection of the right to
freedom of assembly in the Ethiopian law and practice.
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