The right to freedom of assembly is often exercised by persons taking part in public
processions. See Ezelin v France (1991) 14 EHRR 362 at para 32; and freedom of
assembly covers not only static meetings but public processions as well. See the
judgments of the European Commission of Human Rights in Christians Against Racism
and Fascism v United Kingdom App No. 8440/78, at p 148, para 4, and H v Austria, App
No. 15225/89, 15 EHRR CD 70. A procession, which is but an assembly in motion, is by
its very nature a highly effective means of communication, and one not provided by other
media. It stimulates public attention and discussion of the opinion addressed. The public
is brought into direct contact with those expressing the opinion. In an as yet unpublished
article entitled “Order, The Daughter not the Mother of Liberty — Processions and the
Constitution”, D Matyszak expounds:
“Public assemblies do not only impact upon those who personally see the demonstration,
but influence the broader community. Where the message is an unpopular one, or one that
mainstream thought would prefer to ignore, the constant presence on the streets of
processions promoting a contrary view has an unsettling effect which forces the opinion
to be debated. The underlying problems giving rise to the procession are thus brought
into the open and a redress of grievances may result. The very physical presence of the
demonstrators is indicative of the possibility of violent consequences if the issues are not
attended to.
Historically, the use of the public assembly and procession has proved itself
indispensable as a technique for the propagation of unpopular minority views, from the
demonstrations of the suffragettes in the United Kingdom to the Civil Rights movement
in the United States. Important issues were brought to the public attention through these
movements in a manner which could not be ignored and mass violence on the part of the
demonstrators averted.”
Page 58 of 1994 (1) ZLR 49 (S)
In Hague v Committee for Industrial Organisation 307 US 496 (1938) Justice Jackson
was at pains to spell out the importance attaching to the right to freedom of expression in
public places. He said at 515-516:
“Wherever the title of streets and parks may rest, they have immemorially been held in
trust for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions.
Such use of the streets and public places has, from ancient times, been a part of the
privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the
United States to use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute, but relative and must
be exercised in subordination to the general comfort and convenience, and in consonance
with peace and good order; but it must not, in the guise of regulation, be abridged or
denied.”
The need to reconcile the rights of freedom of expression and assembly — being
freedoms that shape a democratic regime — with governmental responsibility to ensure
the sound maintenance of public order, was also graphically alluded to by Lord Scarman
in the following passage in The Red Lion Square Disorders, Report of Enquiry (Cmnd
5919 of 1975):
“Amongst our fundamental human rights there are, without doubt, the rights of peaceful
assembly and public protest, and the right to public order and tranquillity. Civilized living