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Statement by Maina Kiai
Special Rapporteur on the rights to freedom of peaceful assembly and of
association
20 th session of the Human Rights Council
Agenda item 3

20 June 2012
Geneva

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Madame President,

Distinguished delega tes,

Ladies and gentlemen,

It is an honour and privilege for me to present my first reports before this august
body as the first Special Rapporteur on the promotion and protection of the rights to
freedom of peaceful assembly and of association .

The ri ghts to freedom of peaceful assembly and of association are essential
components of democracy. They protect the rights of all individuals, including
persons espousing minority or dissenting views or beliefs, human r ights defenders,
trade unionists or even migrants, to assemble peacefully and associate freely.

The se rights were for too long neglected in international human rights law. However,
the events that have occurred in numerous Arab countries, and elsewhere, since
December 2010 have proved how these rights are important for people to express
their aspirations and to influence policy decision makers.

In this respect, I would like to applaud Human Rights Council resolution 19/35 by
which the Council requests the High Commissioner to prepare a report o n effective
measures and best practices to ensure the promotion and protection of human rights
in the context of peaceful protests. To maximize our inputs to this resolution, my
mandate, together with the mandates of the Special Rapporteur on the promotion
and protection of the rights to freedom of opinion and expression, and the Special
Rapporteur on the situation of human rights defenders, have committed ourselves to
present a joint statement to the High Commissioner and the Human Rights Council.

I wou ld also like to express once again my appreciation to the Human Rights Council
for holding a fruitful panel discussion on human rights in the context of peaceful
protests during the 18 th session of the Council. These developments show that there
is no turn ing back for the international community which has now taken a
courageous and strong stand with regard to these rights.

Since the inception of my mandate, I have received a wealth of information coming
from all continents of the world . I have sent more th an 120 communications and
issued 17 press statements on various issues brought to my attention. Observations
on the communications sent have been prepared , and these are presented before
you as an addendum to my main report . I remain at the disposal of all Governments
to support them in address ing the concerns raised.

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In this regard, I wish to especially thank the Government of Georgia for its
cooperatio n during my first country visit. I also wish to express my appreciation to
those Governments who extende d invitations to my mandate, namely Azerbaijan,
Guatemala, Honduras, the Kyrgyz Republic, the Maldives, Tunisia and the United
Kingdom. I regret that the Syrian Arab Republic , after having extended an invitation
to me, has yet to respond to my proposal of dates for when to carry out this mission .
I call on other States to consider a positive reply to my request s.

Thematic report

Madame President,

As you know, HRC resolution 15/21 , which established my mandate , also requested
me to identify best practices related to the rights to freedom of peaceful assembly
and of association . I would like to thank those who contributed to my thematic report
by responding to the questionnaire I sent in November last year . The compilation of
responses to this questionnaire can be found in addendum 1 of my report. I would
also like to thank the organiz ers of the regional consultations I had in Tbilisi
(Georgia ) and in Cairo (Egypt) , which further contributed to gathering relevant inputs
in the preparation of this report.

Be st practice s not only reflect what is required by international human rights law, but
also include principles that go beyond these legally binding obligations .

I will enter into the details of my findings, but I hope that the best practice s identified
in this report will further guide States not only in relation to legal reforms needed to
comply with international human rights law, but also measures required to implement
the law , as I am keenly aware that challenges remain in turn ing these rights into
real ity . Given the limited time available, I will only share with you a few key elements
of my report .

Common principles

One of the central elements of the rights to freedom of peaceful assembly and of
association is that “everyone is entitled to these righ ts”. This means that all
individuals, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status, shall enjoy these rights. This applies inter alia equally to women and men,
youth, persons with disabilities, persons belonging to minority groups or holding
‘unpopular or controversial’ opinions (A/62/225) or other groups at risk , including
those victims of discrimination because of their sexual orientat ion and gender
identity, as well as non -nationals. As a result, no one must be criminalized for the
sole exercise of the rights to freedom of peaceful assembly and of association, nor

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should he or she be subject to any discrimination, threats or use of vio lence,
harassment, persecution, intimidation or reprisals.

International human rights law allows for restriction s of these rights , but under strict
provisions. Resolution 15/21 , which echoes articles 21 and 22 of the International
Covenant on Civil and P rotection Rights, makes clear that “the exercise of the rights
to freedom of peaceful assembly and of association can be subject to certain
restrictions, which are prescribed by law and which are necessary in a democratic
society in the interests of nation al 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”. This clearly means that freed om is to be considered the
rule and limitations the exception . So an y limitation must be necessary in a
democratic society and respect the principles of pluralism, tolerance and
broadmindedness.

The rights to freedom of peaceful assembly and of association can be exercised
through new tech nologies including through the I nternet.
Special attention should be paid to the protection and promotion of the rights to
freedom of peaceful assembly and of association of women, minors, persons with
disabilities, indigenous peoples, individuals and groups of individuals belonging to
mi noritie s and other marginalized groups.

It is also important to highlight that , while the rights to freedom of peaceful assembly
and of association are interrelated and interdependent, they are in reality two
separate rights, which are in most cases gover ned by two different types of
legislation. As a result, I have treat ed these two rights separately in my report .

Free Assembly

At this stage , I wish to emphasize the following two important obligations related to
the right to peaceful assembly, which li e on those exercising this right and on States :

1. Those exercising this right have an important duty to remain peaceful. This is
a crucial element. The peaceful aspect of an assembly lies in the peaceful
intention of organizers and participants. Therefore the use of violence
perpetrated by a small group of individuals should not lead to an automatic
categorization as “violent ” an otherwise peaceful assembly.
2. It is astonishing how often States have violated the right of individuals to
assemble peacefully by violating their rights to life and to be free from torture,
rights which allow no limitation . This is a critical component of the right to
peaceful assembly.

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Any excessive use of force and subsequent human rights violations and abuses
need to be promptl y and thoroughly investigated. Victims should have the right to an
effective remedy and to obtain redress; and those responsible of violations should be
held accountable for such violations.

Importantly, as I stated before, participating in peaceful prot ests is an alternative to
violence and armed force as a means of expression and change which we should
support. It must thus be protected, and protected robustly. I urge States to respect
and protect equally those that express divergent, unpopular or disse nting opinions as
they do with those that are pro -Government.

Based on the best practices identified in the report, I propose the following set of
recommendations in relation to the exercise of the right to freedom of peaceful
assembly :
 A presumption in favour of holding peaceful assemblies should be established
in law in a clear and explicit manner.
 States should facilitate and protect peaceful assemblies, including through
negotiation and mediation. Wherever possible, law enforcement authorities
should not resort to force during peaceful assemblies and ensure that, “where
force is absolutely necessary, no one is subject to excessive or indiscriminate
use of force” (Council resolution 19/35, para. 6).
 The exercise of the right to freedom of peaceful ass embly should not be
subject to prior authorization by the authorities, but at the most to a prior
notification procedure, which should not be burdensome. In case an assembly
is not allowed or restricted, a detailed and timely written explanation should be
provided, which can be appealed before an impartial and independent court.
 Spontaneous assemblies should be recognized in law, and exempted from
prior notification.
 Simultaneous assemblies should be allowed, protected and facilitated,
whenever possible.
 States have a positive obligation to actively protect peaceful assemblies. This
includes the protection of participants of peaceful assemblies from individuals
or groups of individuals, including agents provocateurs and counter
demonstrators, who aim at d isrupting or dispersing such assemblies.
Assembly organizers and peaceful participants should not be held responsible
and liable for the violent behaviour of others.
 States should also ensure the protection of those monitoring and reporting on
violations and abuses in the context of peaceful assemblies.

Free Association

This covers cooperatives, NGOs, religious associations, political parties, trade
unions, foundations and also online associations.

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Individuals have the right to associate without formi ng a legal entity. For associations
to attain the status of a legal entity the re is a distinction between what is generally
called a ‘prior authorization procedure’ and a ‘notification procedure’. The latter,
which does not require associations to obtain a ny authorization from the authorities,
is in force in a number of countries and respect s international human rights law, and
I wish to commend those countries that adopt notification as opposed to
authorization.

Another integral and vital part of the righ t to freedom of association is the ability of
associations to access funding and resources. Without the ability to access funding,
from sources local, regional or international, this right becomes void . It is
disheartening how excuses such as sovereignty o r the fight against terrorism have
been used to limit access to funding.

Similarly, b ased on the best practices identified in the report, I propose the following
set of recommendations in relation to the exercise of the right to freedom of
association :
 Any associations, including unregistered associations, should be allowed to
function freely, and their members operate in an enabling and safe
environment.
 A simple regime of notification to establish an association as a legal entity is
preferable to a re gistration system.
 Where founder s choose to register an association for practical purposes, such
as opening bank accounts, this process should be similarly simple, easily
accessible, non -discriminatory, and inexpensive or free of charge.
Registration bodie s should provide a detailed and timely written explanation
when denying the registration of an association. Associations should be able
to challenge any rejection before an impartial and independent court.
 Associations should be free to determine their st atutes, structure and activities
and to make decisions without State interference.
 Associations should enjoy the right to privacy.
 Associations should be able to access domestic and foreign funding and
resour ces without prior authorization, just as busin esses and States
themselves do.
 Suspension or involuntarily dissolution of associations should be sanctioned
by an impartial and independent court in case of a clear and imminent danger
resulting in a flagrant violation of domestic laws, in compliance with
international human rights law.

The rights to freedom of peaceful assembly and of association play a decisive role in
the emergence and existence of effective democratic systems as they are conducive

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to dialogue, pluralism, tolerance and broadmindedness , where minority or dissenting
views or beliefs are respected.

I understand that the rights to freedom of peaceful assembly and of association may
be welcomed with reserve by those States that fear dissent. Dissenting views are
what makes our world so ric h and fulfilling . Any human being is unique and has
unique experiences to bring to the community: at home, at school, at work, in social
or political activities .

As a result, I would like to encourage regional human rights mechanisms to develop,
or to co ntinue developing , standards that could contribute to reinforcing these two
rights.

I would finally like to further encourage United Nations institutions and bodies to
continue promoting and protecting the rights to freedom of peaceful assembly and of
as sociation , across the world and within themselves as well . I call upon Human
Rights Council Member States to pay greater attention to violations and abuses of
the two rights in the framework of the Universal Periodic Review , and I will
recommend the Human Rights Committee to seriously consider developing general
comments on articles 21 and 22 of the ICCPR .

Georgia mission report

Madame President,
Distinguished delegates,
I would like to turn now to my recent visit to Georgia.
Last February I had the opp ortunity to visit the country as part of my activities as
Special Rapporteur. I am grateful to the Government for the invitation and for
securing a rich schedule of meetings with senior representatives. I also had
extensive meetings with non -governmental o rganizations, trade unions and
members of a number of political parties.
Today I will only focus on some of the most important issues –– that I believe are still
at stake .
Georgia has gone a long way since the “Rose revolution”. There have been
significan t improvements in many aspects of public life, which have certainly pushed
the country forward in terms of development and democratization. However, these
should not be taken for granted . The country is at a critical point where it can take
further steps t o improve on its human rights record , or slide backwards.

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During my mission, I became alarmed by the manner in which the Georgian
legislature amended the Law on Political Unions of Citizens in December 2011 . I
understand that a new version of the law was a dopted in May 2012 and that
cons ultation with civil society has been on -going . This must be recognized positively.
However, I remain concerned that a unit in the Chamber of Control has broad
power s to inspect anyone’s state of financial accounts if there is a suspicion of illicit
political party financing. While it may look like a legitimate endeavour, I am
concerned that the Chamber of Control could target persons for political reasons ,
including activists, human rights defenders, trade unionists and memb ers of
opposition.
I would like to reiterate the following :
 Laws on freedom of association should be as clear and concise as possible,
and should offer adequate safeguards to avoid human rights violations ; vague
and ambiguous provisions may undermine pro tection of individuals exercising
their rights .
 Laws specifically crafted to control the activities of a single individ ual are not
in line with international standards on freedom of expression , association and
peaceful assembly .
As the country moves towar ds an important electoral period, it is essential that the
Government ensures that all persons are entitled to their civil and political rights , and
further builds on the good work that has been done over the last ten years in
expanding development and dem ocracy. Central to this is ensuring a level playing
field for political parties to compete as equally as possible .
Before I conclude, Madame President, I would like to touch upon the violence that
occurred in Georgia during the protests of 26 May 2011. Af ter having held extensive
discussions with all stakeholders during my mission , I can confirm that stark
differences continue to exist in the narratives of the accounts of what happened on
that night. Although th ese might appear as isolated event s, they sho uld not be taken
lightly. An independent, impartial and credible investigation should be conducted into
these events without further delay . Considering the role that peaceful protest s played
in shaping the development of democratic process es in Georgia , th ere is an
expectation that the right to peaceful assem bly will be respected in future, as it was
recently i n a massive assembly in Tbilisi last month.
In my miss ion report I place emphasis on what I call “a climate of fear and
intimidation” against those w ho might wish to challenge the Government. I believe
that it is incumbent on the authorities to ensure that appropriate and early action is
taken to prevent acts of harassment and intimidation from escalat ing into violence or
reprisals , and that fundamenta l freedoms, as the ones my mandate pays attention to,

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continue to be protected. With elections planned for this and the coming year, it is
crucial that such action is taken, as a matter of urgency .
Madame President,

I look forward to a fruitful discussio n, and I thank you for your attention.