Introduction

The right to freedom of assembly has been widely accepted as a necessity in a functioning democracy as assemblies are used to express and defend different views.[1] This right has justified holding of political rallies, picketing, demonstrations and meeting or barazas held to discuss issues in the society, with the condition that any of such is done peacefully.[2] It is so essential that even the modes of protests have changed with time with online protests becoming more common. This has led to social media being viewed as a potent tool in aiding access to information as well as enhancing the right of the freedom of assembly. This has resulted in the need to justify the exercise of assembly online and the role the government has in safeguarding online assemblies.

So what constitutes and forms online assembly? What role does the government play in safeguarding this right? What constitutes an infringement and how can this be mitigated? This article seeks to answer these questions by first setting out the background of the right to the freedom of assembly in the traditional sense, then exploring the legal framework and case law, which set out the duties the State owes and how this right is applicable to online assemblies.

Background

Online assembly is a controversial issue especially when it comes to online protests. This is especially with the disruptive nature and wide reach online protests have. Discussing the legality of online assemblies is necessary as this will determine whether governments are justified in shutting down the internet or censoring content online. This involves discussing the role the right to access information plays in online assemblies.

The right to the freedom of assembly in the traditional sense is composed of two elements that aid it: free speech and the right to associate.[3] It finds its roots in “Tavern Talk” in America in the mid-18^th Century, where the biggest revolutions such as the famous Boston Tea Party were found to begin with the political discussion that happened in taverns. The taverns offered the Americans a place to vent of their common issues and discuss matters affecting them. Given the large pool of men visiting these taverns it was often easy to mobilise people to protest against the then British rule.[4] It foreseeable that the American legislator saw it important to protect free speech, freedom of association and the freedom of assembly in the First Amendment of the American Constitution. In fact, Congress in discussing what constitutes the freedom of assembly, found free speech and freedom of association as integral to fulfilment of this right.[5]

This notion has been widely accepted in the Kenyan context. The right to the freedom of assembly is first and foremost a constitutional right, which is the supreme law of the land. it further finds its routes in our democracy, which is the exercise of the people will through elected representatives.[6] The courts have interpreted the right to the freedom of as an end , with free speech and the right to associate being the means. The courts assert that free assembly requires the free flow of opinions and ideas…[7]

What is Online Assembly?

Online assembly in this article refers to the gathering of people on virtual platforms in groups so as to express their views and at times for the purpose of criticising the government. The nature of online assemblies is unique as it involves the sharing of information across a digital platform in order to mobilise internet users to take part in virtual protests. As such, online assembly has various elements unique to it: the online platform, the role access of information plays and the viral effect brought about by the network.

The disruptive nature that online assemblies have had has seen governments in most States taking action to try and control them through stringent rules as well as complete media shutdowns. This has led to push back as it was seen as an infringement on the citizenries’ right to access information and the right to the freedom of assembly.[8]

States are now required to ensure there is access to the internet as people have the right to gather online and express their opinions.[9] The state should therefore refrain form shutting down the internet without just cause.[10] There should additionally be no restrictions on content and government surveillance.[11] This is to ensure free speech is not policed by government and that it is protected.

It goes without saying that online assembly does have its dark side. This is because of the tools internet activists used such as hacking and the use of computers whose owners don’t know they are infected. This is illegal as one cannot use someone’s personal resources for your political purpose without their consent.[12] As such, the State does have the duty to draft frameworks to ensure online assembly is not abused.

Conclusion

There is a need to protect the right to online assembly as it has resulted in a lot of positive changes in society. An instance of this is the profound effect the #MeToo movement has had in addressing the need for stronger anti-rape laws. Online assembly has also has also played a profound role in advancing for the protection of citizens against violation of human rights, as seen in the Tunisian Revolution.[13] These are just a few examples of the numerous occasions where digital media has been used to advance for legitimate causes.

In light of this, the State has to balance the need to maintain public order with the right to online assembly, which is achievable without shutting down the internet or censoring the internet. The State can take measures to ensure that those who abuse online assembly are penalised through cyber laws whilst still ensuring people can freely gather and express their opinions online.

[1]http://www.academia.edu/6539898/The_Right_and_Freedom_of_Peaceful_Assembly_AShort_Case_Study_of_Kenya, 14^th June 2018

[2] Wilson Olai and 5 Others v Attorney General and 2 Others, [2017] eKLR

[3]  Inazu J., Virtual Assembly, Cornell Law Review, Volume 98, 2013

[4] Baylen J. Linnekin , “Tavern Talk” & the Origins of the Assembly Clause: Tracing the First Amendment’s Assembly Clause Back to its Roots in Colonial Taverns

[5] Baylen J. Linnekin , “Tavern Talk” & the Origins of the Assembly Clause: Tracing the First Amendment’s Assembly Clause Back to its Roots in Colonial Taverns

[6]http://www.academia.edu/6539898/The_Right_and_Freedom_of_Peaceful_Assembly_AShort_Case_Study_of_Kenya, 14^th June 2018

[7] Wilson Olai and 5 others v Attorney General and 2 others, High Court at Nairobi [2017] eKLR

[8] https://www.newscientist.com/article/mg22429921-500-legalise-online-protests-to-safeguard-democracy/, 25^th August 2018

[9] HRC Resolution 21/16

[10]The Right to Freedom of Peaceful Assembly: Best Practices Fact Sheet, United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai (published Nov. 2014)

[11]Freedom of Assembly and Association Online in India, Malaysia and Pakistan: Trends, Challenges and Recommendations , V.Gayathry, APC IMPACT, https://www.apc.org/sites/default/files/FOAA_online_IndiaMalaysiaPakistan.pdf

[12] https://www.newscientist.com/article/mg22429921-500-legalise-online-protests-to-safeguard-democracy/, 25^th August, 2018

[13] https://mashable.com/2011/12/07/social-media-uprising-activism/#_pWcch53qkqS, 25^th August 2018