Preliminary observations of the United Nations Special Rapporteur on the right to peaceful assembly and of association, Clément Nyaletsossi Voule, following his visit to Niger

I would first like to thank the government of the Republic of Niger for the invitation extended to my mandate to visit the country from December 6 to 16, 2021. I have just concluded this visit and I would like to express my sincere gratitude to the government, to all state institutions and entities, the office of the United Nations High Commissioner for Human Rights in Niamey, civil society and other actors involved in the promotion and protection of human rights, for their reception and availability during my stay.

My visit took place within a context of government cooperation, which fostered constructive exchanges with the authorities to whom I am grateful for their contribution to enable me to better understand the conditions under which the rights to freedom of assembly peace and association are currently guaranteed in Niger.

In Niamey, I met with a large number of authorities, such as the Minister of the Interior, who also represented the Prime Minister, the Minister of Justice, the Minister of Post and New Information Technologies, the Minister of Communication, the police, the judicial authorities and the President of the City Council (Mayor) of Niamey. I also had the opportunity to visit the National Police Station and Niamey prison. Outside the capital, I met with the Governor, the President of the City Council (Mayor) and the judicial authorities of Zinder.

I also had the opportunity to meet members of independent institutions, such as the National Commission for Human Rights (CNDH), the Superior Communication Council (CSC), the High Authority for the Fight against Corruption and Similar Infractions. (HALCIA) and the governing and opposition political parties. I also spoke with members of diplomatic representations in Niamey.

During my visit, I met a large number of civil society actors representing a wide range of perspectives and areas of intervention, interests and social, political and economic needs. I was able to observe the dynamism and enthusiasm of associative life both in the capital and in other localities. Despite the significant size of Niger, many civil society organizations manage to be present in the eight (8) regions of Niger.

I would like to thank all those who took the time to meet with me and share their experiences and testimonies. The dynamism, the diversity and the creative force of the Nigerien civil society are among the strong points of this country, a guarantee of the success for the promotion and the protection of human rights.

1. The political and security context

The invitation of my mandate by the Nigerien government comes at an important time in the country's history after a relatively peaceful transition of power between two elected presidents.

Despite disputes during the electoral process, the elections have on the whole enabled the country to take a fundamental step, which now give an opportunity to the Nigerien authorities and to civil society to deepen the achievements in the field of civil and political rights, in particular with regard to the right to peaceful assembly and association. This is all the more a success if we consider the current context of major political instability in the sub-region of the Sahel.

The discussions that I began with the authorities during my visit gave me an overview of the worrying security situation in the vast territory of Niger which borders with seven countries, among which some are facing an increase in attacks by extremist armed groups.

Unfortunately, Niger is not spared by this wave of violence, especially in the west of the country where this year, recurrent attacks have resulted in the death of hundreds of civilians and have caused the internal displacement of tens of thousands of people. This in a country already facing immense challenges of poverty and social exclusion for a large part of its population.

2. Encouraging initiatives

In this worrying security context, I congratulate the President of the Republic, His Excellency Mohammed Bazoum, for having demonstrated a clear political will to strengthen the links between government authorities and civil society. His election was followed by initiatives in this direction, including the establishment of a dialogue between public authorities and civil society to find ways and means of consolidating social cohesion when confronting terrorism.

I also note that there is a desire on the part of the President of the Republic to strengthen the participation of Nigerien civil society in which citizens are active and informed. During the meetings that I had with civil society, both in Niamey and Zinder, the interlocutors have repeatedly mentioned their desire to work with the authorities in a spirit of cooperation.

I was encouraged to learn that during my visit to Niger, the President reiterated this commitment to participatory democracy in a speech at the Democracy Summit in New York, in which he expressed his commitment to democracy and to the rule of law, on which he is determinedly dedicated to working with civil society.

3. Challenges

The rights to freedom of peaceful assembly and to freedom of association are essential components of democracy, as they allow women and men of all ages to express their political opinions and to engage in literary and artistic activities and in other cultural, economic and social occupations. These also include the right to practice religion or a belief, to form and join unions and cooperatives, and to choose representative leaders who are accountable.
Security challenges

The Republic of Niger, like its neighbours in the Sahel, has faced a terrorist surge since the collapse of Libya with its share of insecurity in several parts of the country. The measures taken by the authorities to face this terrorist pressure have an impact on the enjoyment of fundamental freedoms, including the limited access of non-governmental organizations (NGOs) to certain regions of the territory, thus depriving the most vulnerable communities of essential services provided by these NGOs. It is currently difficult to use the land route to reach the interior regions without a military escort, which is beyond the reach of civil society organizations.

This context of attack or fear of terrorist attack is often put forward as the main justification for restrictions on the enjoyment of fundamental freedoms, in particular the right to peaceful assembly.

The repercussions of the polarization of political life on civic space

The presidential election of February 21, 2021 and the public protests that followed contribute to a polarization of political life in the country, thus creating a deficit of confidence between the opposition and the majority.

This situation also exposes civil society, accused rightly or wrongly of aiming through its action and particularly through demonstrations, to destabilize the power in place. The lack of political dialogue between the majority and the opposition since the February 2021 election poses enormous risks to the enjoyment of fundamental freedoms, in particular the freedom of peaceful assembly, of opinion and of expression, and of the press.

The absence of an active opposition and of a consensual political framework to discuss the security and social issues of the country poses a threat to the democratic and political space. There is thus a worrying tendency to equate civil society which is critical of government action, with political opposition.

During my talks with stakeholders, I recalled the important role that civil society plays in building and consolidating the rule of law as well as peace and sustainable development.

The action of civil society does not aim to adhere power but to ensure that the decisions and measures taken by the governors do not have a negative impact on the population and especially on those who are most vulnerable. Criticism of the decisions and measures taken by those in power should not be equated with political opposition but with a willingness to make a contribution to improving these decisions.

When in a society there are no structures or space for people to associate and mobilize, the opinions and preferences of those who are privileged or who have access to power tend to take precedence. Action taken by civil society thus aims, among other things, to make the voice of those who do not have access to power and who feel excluded and marginalized, heard.

I regret this tendency to stigmatize civil society and label it as political opposition when it expresses its discontent with public policy.

In addition to the fact that the right to form and join political parties is enshrined in the Nigerien constitution, I remind the authorities that speaking out on national and international political issues does not equate with an affiliation to a political party.
I invite the authorities to view the action of civil society as a necessary and essential complement to government action.

The fight against corruption

During the interviews that I had with the various actors, corruption was cited as an evil which plagues the political and economic life of the country. Several demonstrations organized in the country made the fight against corruption one of their main demands. Corruption has an impact of depriving the country of the resources needed to fight poverty and invest in social programs aimed at reducing inequalities.

The authorities have also become aware of the need to fight against this scourge by adopting in 2016 Law No. 2016-44 of 6 December 2016 establishing the High Authority for the Fight against Corruption and Similar Infractions (HALCIA). I had discussions with the officials of HALCIA on their work and how the take into account popular calls to fight against corruption. I note that despite the investigative work conducted by HALCIA, the results of these actions are not apparent, especially with regard to legal proceedings.

The country continues to regress in the fight against corruption. According to the ranking of the NGO, Transparency International, the country has moved from 98th place out of 123 in 2015 to 123rd out of 179 in 2021 in the fight against corruption.

It is essential that judicial and political authorities take measures to facilitate the prosecution of corruption cases and related offenses.

Independence of the judicial system

From my meetings with the various judicial authorities as well as with those responsible of detention centres, it is obvious that the judicial system and the entire public administration in this sector lacks human resources and material, including the necessary technology, in order to be able to exercise its mandate within the allotted time and in due form.

One of the effects of the slowness of the public administration is that thousands of people remain in detention centres without having had the opportunity to appear before a judge. I take the liberty of drawing the attention of the Nigerien authorities to Resolution 43/173 of the General Assembly of the United Nations which provides a Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Particularly principle 11.1 which stipulates that “A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority (..).”

For example, according to figures provided by the manager of the Niamey Civil Prison, more than 85% of those detained are not convicted. I am concerned about the vulnerable groups such as the 101 detained minors, none of whom is convicted, and for the 53 female detainees, of whom only nine (9) have been convicted. While talking to a few detainees, I realised that most of them did not even know the reasons for their detention.

This situation can lead to an erosion of citizens' confidence in their justice system.

I was informed during my visit to Niamey civilian prison that all those detained following the various public demonstrations have been released.

Poverty and social exclusion

Poverty accentuates discontent among the population and especially among the most vulnerable groups who do not have access to water, education, food, and other basic needs. According to UNDP’s Human Development Index in 2019, Niger comes last.

I have been informed that among the causes pushing the population to protest is the issue of the distribution of natural resources and access to basic needs.

Despite the new power's desire to tackle the fight against poverty and social exclusion through the establishment of the Education and Training Sector Program (“PSEF”, for its acronym in French) and the Economic and Social Development Plan (“PDES”, for its acronym in French), concrete results have been slow.

4. Freedom of peaceful assembly

Niger is a State party to the International Covenant on Civil and Political Rights, which it ratified on 7 March 1986, and which protects the rights to freedom of peaceful assembly and association in its articles 21 and 22.

The right to freedom of peaceful assembly is a right guaranteed by the Constitution, in particular articles 15 and 32 of the Constitution of the 7th Republic of 25 November 2010.

The Law n°2004-45 of June 8, 2004, is the main legal text governing demonstrations on the public highway/spaces. According to the exchanges that I had with local authorities and those of the capital, the political parties and the representatives of the civil society, I regret to note that what was originally planned as a notification regime by law, translates in practice into an authorization regime.

According to the law, any kind of demonstration must be declared within five (5) and fifteen (15) days to the local town halls, which for their part must transmit the declaration within 72 hours to the prefects or governorates. If the latter considers that the planned demonstration may have serious effects on public order, local town halls can ban the demonstration through a prohibition order within 48 hours (prior to the planned protest). 

I reiterated in the meetings with the authorities and the police that there are international provisions, particularly General Comment N°37 of the United Nations Human Rights Committee on the right to peaceful assembly, which notes that while prohibitions on demonstrations may exist, this does not mean that authorization is required to exercise the right to freedom of peaceful assembly.

The same international human rights provisions provide that in the event of a lack of prior notification, this does not justify the dispersal of the gathering, and in no way exempts the State from its obligation to supervise demonstrations in order to guarantee the protection of participants.

I recognise that the Nigerien state generally respects the aforementioned deadlines. However, this does not provide sufficient time to allow the organizers to exhaust legal remedies to launch an appeal concerning the prohibition orders. This often results in a refusal to accept appeals against decisions notified at the last moment, failing to allow organizers to inform potential protesters of the ban in force.

In addition, prohibitions of demonstrations must be strictly governed by the principles of legality, necessity and proportionality.

Therefore, the bans must represent temporary and exceptional measures. I deeply regret the fact that in Niger the bans on peaceful assemblies have not been exceptional, but systematic for several years, with the justifications of "disturbing public order" or "fear of disturbing public order". While the law of June 2004 provides for the protection of public order, it does not give a precise definition of this concept.

In addition, Order No. 0010/MP/CVN/SG of 12 January 2017 prohibiting marches and meetings on working days and in the evening represents another permanent limitation on the right to freedom of peaceful assembly. In practice, since four years this has meant that protests can only take place one or two days a week. This ban contradicts the essence of peaceful assemblies, which consists of expressing discontent before government institutions, which does not have the same effect when demonstrators find themselves in front of closed government institutions on non-working days.

In addition, assembly bans are not enforced as temporary but permanent measures in Niger. In this regard, we often talk about the security state and the threat of terrorism in the Sahel as a whole. While I can understand the bigger picture, including the deployment of anti-terrorist forces in the regions, I can only stress that civic participation and the exercise of fundamental freedoms are central parts of this same struggle.

Indeed, citizens can contribute with their ideas, opinions and expressions of dissent. I insist on the fact that social cohesion is one of the most effective "weapons" in this fight, and that the Nigerien state is obliged to guarantee this platform of expression, in particular through peaceful demonstrations.

I have received testimonies from different sectors of society that when a demonstration is not banned, it usually takes place in a peaceful manner. In addition, I have received reports of dialogue in the past between the authorities and the organisers on the measures to be taken for the supervision of the demonstrations. This dialogue is another guarantee for the peaceful development of the planned demonstrations.

The state of the health emergency in the context of the COVID-19 pandemic and the measures taken by the State to combat it, such as curfews, have essentially limited the fundamental freedoms protected by the Nigerien Constitution. I reiterate that civic participation is one of the key components to jointly ending the spread of the COVID19 pandemic.

In this regard, I have received allegations of detentions for non-compliance with the curfew. These detentions have increased significantly in the recent electoral context in the country, especially between the end of 2020 and March 2021, and concern peaceful protesters, activists, human rights defenders, political leaders and journalists covering the rallies.

As I mentioned at the beginning of my speech, I had the opportunity to visit the Central Police Station of Niamey, as well as the Civil Prison of Niamey, two locations among several others where demonstrators and journalists are generally guarded and detained.

I am concerned about the precarious detention conditions due to the overcrowding of these centres, which result in the inevitable detention of people in pre-trial detention who are among the vast majority of prisoners, as previously mentioned.

To conclude, there is a large gap between the 2004 law and the practice, as well as its conformity with international human rights standards, the details of which I will soon specify in my full report to the Human Rights Council. Nevertheless, I stress my availability to provide technical advice, in particular in the context of the revision of the law in question.

5. Freedom of association

The right to freedom of association is a right enshrined in the Constitution of the seventh Republic of November 25, 2010. Article 9 of the Constitution provides for different types of associations, such as, political parties, unions and non-governmental organizations.

The exercise of this right is regulated by the Ordinance (Decree) N° 84-06 of March 1, 1984. During the exchanges with the representatives of the civil society and the various associations, it appeared obvious to me that this legislation is obsolete and does not respond to the current political and social climate in Niger.

Even if the Ordinance provides for a system of declaration, article 4 shows that an authorization system is established by specifying that the Minister of the Interior will rule by decree on the authorization or by simple notification on the refusal. This article is clearly in contradiction with the International Covenant on Civil and Political Rights which guarantees the freedom to form associations.

The former Special Rapporteur on the rights to freedom of peaceful assembly and association noted that procedures for registering civil society organizations are to be transparent, accessible, non-discriminatory, expedite and inexpensive.

During my meetings, I have noticed that the practice of the Ordinance does not comply with international standards for the registration of associations. Indeed, on several occasions, I have received reports of associations taking between two (2) to ten (10) years to be recognised.

The associations most affected appear to be the media outlets, especially online. For example, the Association of Bloggers for Active Citizenship (ABCA) had to wait five (5) years to receive its recognition decree.

I note that article 41 of the Ordinance provides for a press assistance fund. The Superior Council of Communication as well as various press companies have confirmed during my meetings with them that these funds are indeed allocated to this aid. This is a good practice that I encourage.

The Minister of the Interior who is in charge of registering associations informed us that there are more than 4,000 registered associations in Niger. I am delighted with this large number of associations which intervene in different spaces of the country’s social life.

Once again, I underline my availability to provide technical assistance in order to revise this Ordinance and bring it into conformity with international standards.

In analysing the legislative framework and during my exchanges with various media and press actors, I have noticed that the press, especially online, is not protected by law.

Ordinance N° 2010-35 of June 04, 2010 decriminalizes press offenses, while Law N° 2019-33 of July 03, 2019 (also known as the law on cybercrime) not only penalizes them again, but does not make any distinction between the different online contributors by penalizing any kind of action which is committed by means of or on a telecommunications network or an information system.

In addition, I was informed that one of the main purposes of the Cybercrime Law is to limit online incitement to hatred, especially ethnic hatred, which is legitimate. I also note the willingness of the Nigerien authorities to tackle the problems of racial, ethnic and religious discrimination, and calls to hatred in a relatively new media field. However, the law on cybercrime contains shortcomings and does not fully comply with relevant international standards in this area.

I am concerned about the allegations of the imprisonment of several online journalists, but also bloggers and citizens active on social networks on the basis of this law. I am surprised that in some cases people sentenced or in provisional detention even end up in Niger's high security prison. I deplore the fact that journalists and media professionals have been arrested in the legitimate exercise of their profession on the basis of a law which does not distinguish between online press and mere online publication.

Therefore, I invite the State of Niger to refer to the report of the former Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression on the regulation of “hate speech” online, presented to the United Nations General Assembly in October of 2019.

Finally, it has come to my attention that a draft bill to protect online journalism is being prepared and will be submitted to the government shortly. I encourage this initiative and call on the government to speed up the process of its adoption by involving civil society, especially journalists and bloggers.

6. Recommandations

The Special Rapporteur wishes to make the following preliminary recommendations:

• Create the conditions for a sincere dialogue between the opposition and the majority in order to preserve the country's democratic gains
• Continue the ongoing dialogue between the authorities and civil society in order to create the conditions conducive to the enjoyment of public freedoms and more particularly the rights of peaceful assembly and of association
• Provide the justice and penitentiary system with the necessary resources to reduce the number of non-convicted detainees, and ensure their independence
• Fight corruption by ensuring that pending cases can be brought to justice
• Set up and operationalize the National Commission for the Control of Security Interceptions (“CNCIS”, for its acronym in French)

 Freedom of peaceful assembly

• Amend the 2004-45 Law of June 08, 2014 governing demonstrations on public roads to ensure its compliance with international standards
• Provide security forces for the supervision of peaceful demonstrations in collaboration with the organizers in order to avoid any infiltration that could lead to attacks and violence against people and property
• Strengthen the capacities of law enforcement agencies in the management and facilitation of peaceful demonstrations in accordance with good practices
• Repeal Decree No. 0010/MP/CVN/SG of 12 January 2017 of the City of Niamey prohibiting marches and meetings on working days and in the evening
• Ensure that in the exceptional case of prohibition of a planned peaceful demonstration, the prohibition order is notified to the organizers within a reasonable time allowing them to exercise their full right to a legal remedy

Freedom of association

Recommendations to the Government

• Amend Ordinance No. 84-06 of March 1, 1984, which determines the regime for associations in Niger, in order to guarantee the inclusion of different types of associations and ensure their compliance with international human rights standards
• Revise the Law N° 2019-33 of July 03, 2019 known as the law on cybercrime in order to decriminalize opinions carried out online, in particular concerning online journalism
• Improve the process for issuing recognition orders for NGOs to avoid administrative delays and unreasonable delivery delays that are detrimental to certain NGOs. The state should avoid discriminatory treatment based on the NGO's field of intervention
• Speed ​​up the adoption of the bill on the protection and recognition of human rights defenders in accordance with relevant international standards and the commitments made by the country during its universal periodic review of 2021

Recommendations to civil society

• Set up capacity building programs for civil society actors on awareness of international human rights texts and monitoring of human rights violations
• Strengthen networking to increase its action within communities

Recommendations to the international community

• Support the country in its efforts to reduce poverty, fight terrorism and corruption
• Support initiatives aimed at strengthening civic space in the country
• Strengthen support for the work of civil society and especially on activities aimed at the most disadvantaged communities.