Public Gatherings Proclamation 23, 1989 (Proclamation AG23 of 1989)

Country: 
Date of assent: 
17 July 1979
Commencement date: 
21 July 1979


Issue Addressed:

The Proclamation was passed just 1 year before Namibia gained independence and ended the rule of apartheid in 1990. The years preceding independence were full of political turmoil and so public gatherings were common to spread information about the independence process. This Proclamation gives the police power to place conditions on public gatherings that may result in serious harm, encourage hostility, or interfere with someone exercising their legal rights. It was one of many proclamation that year as the government was establishing itself and mobilizing the population around independence.

Summary of Act:

The Public Gatherings Proclamation of 1989 restricts individuals from holding, presiding, officiating at, or addressing a public gathering unless they give duplicate written notices at least 3 days before the gathering. The notice must be given during office hours and submitted to the police station commander nearest to the place where the public gathering will be held. The commander must acknowledge receipt of the notice and the individual must have not made any knowingly or unreasonably false statements for the gathering to be authorized. The police commander retains discretion to authorize written notices submitted up to 24 hours before the gathering.

The written notice must include: (1) the place and time of the gathering; (2) the nature of the gathering; (3) who the person or organization the gathering is held on behalf of; and (4) the names and addresses of the individuals presiding over, officiating at, or addressing the gathering. The individuals must give an updated notice if any circumstances change.

The commissioner can stop or redirect a gathering if the public peace is seriously endangered, public order would be threatened, anyone would be killed or seriously injured, any property would be destroyed or seriously damaged, if hostility will be caused/encouraged, or if it would compel someone from doing or abstaining from doing something they are legally entitled to do or abstain from. No weapons are allowed at public gatherings and the proclamation contains a list of all banned weapons. Individuals are permitted to carry concealed pistols or revolvers.

If the commissioner is stopping or redirecting a gathering before the gathering happens, he can give notice through the Official Gazette, newspaper, radio, television, prominent places, or make an oral announcement. If he knows someone is planning a gathering, he can provide notice to that person with directions for how to proceed.

If police must stop a gathering as it is happening, the police may call for dispersal by “such lawful means as he deems most suitable,” within a timeframe specified by him. If they have not dispersed, he can use reasonable and proportionate force necessary to disperse and can use weapons but must use lesser force before using a weapon likely to cause serious bodily injury or death. However, an officer does not need to use lesser force first if individuals are seriously injuring or damaging people or property.

Punishment for not meeting the written notice standards or carrying a prohibited weapon at a gathering is a fine up to R4 000 or imprisonment up to 2 years or both. Both individuals who hold and attend the gathering are subject to these penalties. The fine for failing to obey an order is a fine up to R2 000 or imprisonment up to 2 years.

The proclamation does not apply to: bona fide church services or funerals; domestic affairs; business transactions; gatherings to educate about laws; bona fide sports/entertainment; any assembly, council, committee, or other body established by law; and administrative/judicial purposes.

Analysis:

The proclamation is in line with the goals of a new government establishing a democratic process in which public gatherings can be essential for information sharing and mobilizing support. The proclamation is comprehensive in that it clearly lays out what individuals need to provide to hold a gathering and what they can or cannot do at these gatherings.

The police do retain a significant amount of discretion in deciding when to stop or redirect a gathering, for example, in determining what constitutes “hostility” or abstaining from a legally protected activity. In creating the law, the government was concerned that gatherings would stop citizens from exercising their new rights under the independent government. The law as it is written makes sense because it remains important that individuals can gather and cannot be intimidated into not exercising their constitutional rights. It’s possible that the proclamation could use stronger language to clarify that individuals must be allowed to practice constitutionally protected rights considering that Namibia didn’t have a constitution until after this proclamation was issued. However, the law seems to be interpreted today as protecting constitutional rights so this point could be moot.

The proclamation uses qualifiers such as “knowingly” and “reasonably” to restrict the police’s powers to use force to disperse a gathering that is growing violent. When police are allowed any level of discretion in the use of force, there is always fear that police will abuse that discretion. In this case, the restrictions regarding the use of force in breaking up gatherings seem to be sufficient. The Namibian police are not known for police brutality. For example, while homosexual acts are illegal in Namibia and widespread intolerance remains, LGBTQ+ Namibians are not harassed by police or arrested or charged with sodomy. In fact, the Namibian government uses little force in general and their military is ranked as one of the weakest globally.

In practice, under-use of this proclamation has been a bigger issue than over-use. Recently, some gatherings in Namibia have resulted in hate speech and threats at otherwise peaceful gatherings. Police have had to remind the public about the need to obtain permission before holding gatherings, to conduct peaceful gatherings, and to inform organizers of their responsibilities in hosting these events. It seems that police have not been punishing people for not following the proclamation even though there are penalties outlined in the law.

Author: 
Jessica Boubker
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