Legal Assessment of Anti-NGO Measures | Freedom House

Legal Assessment of Anti-NGO Measures

Note: This assessment was prepared as a companion to the May 2019 special report Freedom under Threat: the Spread of Anti-NGO Measures in Africa..

Most major anti-NGO laws and policy measures surveyed in this report violate commitments undertaken by the states in question under global and regional human rights treaties, in particular those related to freedoms of association, assembly, and expression. The relevant treaty at the global level is the International Covenant on Civil and Political Rights (ICCPR), and the key regional treaty is the African Charter on Human and Peoples’ Rights. Both have been ratified by virtually all 54 African states, with the exception of South Sudan. The rights they guarantee are given effect in the national legal sphere by constitutions, enabling legislation, and government policies.

These rights are not absolute and may be subject to certain limitations, so long as they meet strict standards specified by international and national law. As indicated below, the restrictions described in this report do not meet such standards, and therefore they violate international and constitutional obligations to uphold freedoms of association, assembly, and expression.

Freedom of Association

The right to freedom of association guarantees space for individuals to organize in pursuit of common interests, including through political parties that seek power and advocate certain public policies, social welfare groups that improve conditions for members in different spheres of life, and civic organizations that work to hold governments to account. The right to freedom of association is protected under Article 22 (1) of the ICCPR:

Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

Article 10 (1) of the African Charter states that “every individual shall have the right to free association provided that he abides by the law.” The right to freedom of association is not absolute: It can be limited by the state in very narrowly circumscribed conditions to advance particular public interests listed in Article 22 (2) of the ICCPR, notably “national 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.”

Freedom of Assembly

Freedom of assembly protects the right of individuals to peacefully gather in public spaces to make demands, protest, and express support for particular causes. Article 21 of the ICCPR and Article 11 of the African Charter protect the right to freedom of assembly. Article 21 of the ICCPR provides that

the right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national 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.

Article 11 of the African Charter provides that

every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law, in particular those enacted in the interest of national security, the safety, heath, ethics and rights and freedoms of others.

Freedom of Expression

The right to freedom of expression protects certain forms of speech from interference by the state or private actors. It facilitates citizens’ participation in public life, including the exchange and advocacy of ideas, the election of governments of their choice, and the defense or criticism of public officials’ performance. As an instrumental right, it facilitates the full expression of human dignity, and is as important to individuals acting alone as it is when they coalesce around common ideas, causes, or struggles.

Article 19 (2) of the ICCPR states:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

For its part, Article 9 (2) of the African Charter declares: “Every individual shall have the right to express and disseminate his opinions within the law.”

It is worth noting that not all forms of speech are protected. International law and many constitutions exclude hate speech, propaganda for war, and incitement to (ethnic or racial) violence. These limitations must be authorized by law. When governments curb freedom of expression beyond these categories, strict conditions are imposed by human rights law.

Limitation of Rights: When Are Some Restrictions Accepted as Legitimate?

Limitations of rights are permissible encroachments on rights under strict conditions. It is understood that in an open and democratic society, the state may legitimately encroach on some rights to advance legitimate governmental objectives, notably national security, public health, and the public interest. Like Articles 21 and 22 of the ICCPR, an overwhelming majority of the constitutions of African countries adopt an approach in which some rights—such as freedoms of association, assembly, and expression—have internal limitations, meaning the right is formulated to include a clause stating the rationale and conditions under which a right might be abridged. Only the South African and Kenyan constitutions have a discrete general limitations clause, which provides a framework for testing whether given restrictions on any rights are legitimate and therefore acceptable.[1]

As a standard for use in all the countries covered in this report, we apply here the four-part limitations test, which emerges from Articles 21 and 22 of the ICCPR:

  1. Do the measures pursue a legitimate governmental objective?
  2. Are the measures instituted by a law of general application (i.e., are they nondiscriminatory)?
  3. Are the measures that limit rights necessary in an open and democratic society (i.e., are there no alternative means to achieve the government’s objectives, while imposing the least restriction on protected rights)?
  4. Are the measures proportional to the ends pursued?

Assessment of Anti-NGO Measures in Light of Limitation of Rights

Articles 21 and 22 of the ICCPR list national security, public order, public health and morals, and protecting the rights of others as legitimate grounds for limiting rights by law. The following analysis of specific anti-NGO measures addresses the rationales of national security; sovereignty and noninterference in internal affairs; and accountability in the nonprofit sector.[2] Although sovereignty and accountability are not listed as grounds in the ICCPR and African Charter, this analysis takes the view the relevant provisions do not propose a numerus clausus or closed list of grounds for limiting rights.

Regarding sovereignty—a catchall defense offered by some states to justify anti-NGO measures—it is important to note that even as a key pillar of the international legal and institutional system, sovereignty as a concept admits of exceptions, human rights being the main one. Since the founding of the United Nations in 1945, and the subsequent adoption of several human rights treaties, states have committed to minimum standards that dictate how they must treat even their own citizens at home. The obligation to respect—one of three duties that also include the duties to protect and fulfill human rights—demands that states forebear from interfering with the existing enjoyment of rights.

Foreign Funding

Measures that restrict foreign sources of funding for NGOs are subject to the limitations test because they abridge the right to freedom of association. The UN special rapporteur on the freedoms of peaceful assembly and association has stated:

The right to freedom of association not only includes the ability of individuals or legal entities to form and join an association but also seek, receive and use resources—human, material and financial—from domestic, foreign and international sources.[3]

Applying the four-part test above, we accept that accountability may be considered a legitimate governmental objective, meeting the first part of the test. However, clauses that single out human rights and governance NGOs for special measures by imposing a different funding regime than that which applies to development NGOs do not meet the “law of general application” requirement, the second part of the test. They fail to pass muster on this ground alone.

Under the third part of the test, restrictions on foreign funds that use accountability as a justification would fail to pass muster, because only the least restrictive means for achieving a legitimate objective should be chosen, and promoting human rights and an open and democratic society requires as few restrictions as possible. Under the fourth part of the test, the means to achieve the end of accountability are not proportional: By restricting foreign funding, governments obliterate the right to associate for a large part of the civil sector, effectively using a mallet to kill a fly.

Money Laundering and Counterterrorism

Laws that limit NGO activities through strict regulations on terrorist financing and money laundering are essentially based on national security justifications. Cutting off terrorists from sources of financing is a legitimate governmental objective, so the first hurdle in the four-part test is cleared easily. But if laws on terrorism and money laundering do not extend to development NGOs and other associations, then they are discriminatory and fail the second part of the test.

With respect to necessity and proportionality, governments have other tools for ensuring that NGOs are not misused to undermine national security. If specific individuals are identified as perpetrators based on irrefutable evidence, criminal law would be an adequate recourse, whereas banning an association or freezing its accounts outside the criminal process—with a lower burden of proof—[TR1] [O2] is neither necessary nor proportional, because such a ban or freeze severely restricts or obliterates the association rights of other members of the organization.[4] The fight against money laundering as a justification for foreign funding restrictions may in many instances be a fig leaf that hides more sinister motives. Citing a World Bank report on the Financial Action Task Force (FATF), the UN special rapporteur on freedom of association has observed that “very few, if any, instances of terrorism financing have been detected as a result of CSO-specific supervisory measures.”[5]

Restrictions on Hiring Foreigners

Some framework laws place restrictions on or attach conditions to the hiring of foreigners by requiring variously that NGOs hire foreigners only when comparable skills are lacking at home; that foreign employees be paired with local staff for mentoring, with a clear skills-transfer or “succession plan” in place, as in Uganda and Kenya;[6] that NGOs align hiring practices with ethnic quotas negotiated in peace agreements, as in Burundi; or that authorization be sought from national authorities to hire foreigners on a full-time or part-time basis, as in Egypt and Burundi.

Foreign hires may also be subject to specific prehiring procedures to be applied in their home country at the foreign mission of the prospective host state, as in Uganda. Work-permit fees are a standard requirement for foreign workers, but in South Sudan, exorbitant work-permit fees amounting to $10,000, up from $300, were announced 2017, though the government backpedaled in the face of a public outcry. This measure may have been calculated to reduce the influence of foreign NGOs after the government came under scrutiny for wartime atrocities, including against the humanitarian community.[7]

With the exception of exorbitant work-permit fees and other measures that seem to have an obvious malign objective, many of these conditions and procedures for foreign hires should pass muster—unless a particular requirement can be interpreted as somehow abridging freedom of association, for instance by imposing procedures and demands that result in obfuscation and inordinate delays and thus effectively deny NGOs the opportunity to build capacity for competence and efficiency.

Interference in NGO Operations

With respect to forms of interference that are pursued under anti-NGO framework laws, those that effectively usurp NGOs’ autonomy and decision-making constitute outright violations of the right to freedom of association. In terms of the tripartite rights framework of duties—respect, protect, and fulfill—the duty to respect enjoins states not to interfere in the enjoyment of rights secured by citizens and other claimants themselves. Nonregulatory, autonomy-negating forms of interference include dictating or playing an outsized role in choice and design of programs and projects; choice of beneficiaries; budget-level resource allocations (by capping expenditure on certain items); and invasive, multilevel monitoring and evaluation that take on a “managerial flavor.” State monitoring and evaluation, where they operate as an added layer of decision-making above the most senior manager or policy organ in an organization, violate the freedom of association whether they are expressly mandated by law or implemented through discretionary power.

As stated above, transparency and accountability in the NGO sector is a legitimate governmental objective. Yet even if a law that mandates or allows excessive state interference does not discriminate between development NGOs on the one hand and human rights and governance NGOs on the other, it is still likely to fail the limitations test on the grounds of proportionality and necessity in an open and democratic society. The state does not need to take over or countermand key decisions of NGOs in order to guarantee transparency and accountability, or even to address national security interests arising from terrorist financing and money laundering. In other words, such a takeover is disproportionate to the end pursued.

Sanctions against NGOs: Freezing Accounts and Delisting

Freezing accounts and banning organizations are measures favored by states that seek to destroy critical voices. These steps, examples of which are highlighted in this report, have for the most part been taken against “troublemaking” human rights and governance NGOs because they shed light on corrupt practices in governments and mobilize different constituencies to hold officials to account.

Whether effected on valid grounds or not, freezing NGOs’ accounts or deregistering them altogether, which sometimes leads to the deportation of foreign staff, constitute the most severe violations of the right to freedom of association. They cannot be justified by the limitations test, and they essentially obliterate the association rights of the individuals affected, as the organization is declared “illegal,” dissolved, or simply unable to access the financial resources it needs to function.

A less invasive and therefore constitutional and legitimate alternative—provided that its requirements are not onerous in practice and it is enforced impartially[TR3] [O4] —could include mandatory periodic financial reporting and auditing by a designated national body, with reasonable impromptu reviews, asset declarations and lifestyle audits of nonprofit directors, and the application of both civil and criminal law where criminal misappropriation of funds is found. Criminal law provides the least invasive means for sanctioning offending officials while preserving the right of other members to continue exercising their freedom to associate unimpeded. This option renders freezing of accounts and deregistration of the organization unnecessary in an open and democratic society.

 

[1] Article 36, Constitution of South Africa, and Article 24, Constitution of Kenya.

[2] Since no state in this survey has advanced public health and morals or protection of the rights of others as grounds for limiting rights regarding NGOs, this report does not address those grounds.

[3] “Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai,” UN Human Rights Council, April 24, 2013, https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.39_EN.pdf.

[4] With respect to terrorism, see “Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai,” UN Human Rights Council, April 24, 2013, https://ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.39_EN.pdf.

[5] “Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai,” UN Human Rights Council, April 24, 2013, paragraph 25, https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A.HRC.23.39_EN.pdf.

[6] See “Circular No. NGOB2904/2016/ED,” NGO Co-ordination Board, April 21, 2016, http://www.ngobureau.or.ke/?wpdmpro=circular-number-ngob29042016ed.

[7] “South Sudan’s Visa Fee Hike a ‘Threat’ to Foreign Aid,” Deutsche Welle, March 17, 2017,  https://www.dw.com/en/south-sudans-visa-fee-hike-a-threat-to-foreign-aid/a-37999119.