International Journal of Not -for -Profit Law / vol. 1 6, no. 2, December 2014 / 16
Civil Society in Africa
Analysis of the Legal Framework for Civil Society in Burundi: Case of the December 2013 Law on Public Demonstrations and Assemblies
AUDACE GATAVU 1
Freedom of peaceful assembly is a fundamental right provided by international
instruments relating to human rights, a nd is present in the constitutions of nearly every country in
The enjoyment of freedom of peaceful assembly must be guaranteed to individuals and
groups of individuals, associations – informal or those with legal personality. This right has been
recognized as one of the pillars of a healthy and functional democracy. Its exercise allows all
persons living in a country to have the opportunity to express their opinions .2
Being able to hold peaceful assemblies is of crucial importance for the work of civil
society actors, including those working to promote the fulfillment of economic, social, and
cultural rights, for it allows them to publicly convey their message in order to achieve their goals.
In several countries , however, the right to hold peacef ul assemblies has been denied or restrained
by state authorities in violation of international human rights standards. As a result, the right to
take part in the conduct of public affairs, as ratified by Article 25 of the International Covenant
on Civil an d Political Rights (ICCPR), is restrained .3
1 Audace Gatavu is an Attorney at Nibitegeka & Associates in Bujumbura, Burundi. He was a Research
Fellow at ICNL in 2014.
Acknowledgments: We would like to cordially thank everyone who has con tributed directly or indirectly to
this project. We extend special thanks to the ICNL staff who spared no efforts for the success of this project and to
make our stay in Washington, DC, unforgettable. We want to thank Emerson Sykes for overseeing the proje ct and
Brittany Grabel for coordinating its completion. We also thank the Burundi civil society actors who sacrificed their
time to answer our questions. We extend our gratitude to USAID as well for the financial support.
This study is made possible by the generous support of the American people through the United States
Agency for International Development (USAID). The contents are the responsibility of the author and do not
necessarily reflect the views of USAID or the United States Government.
2 OSCE/O DIHR, Guidelines on Freedom of Peaceful Assembly, second edition, Warsaw/Strasbourg, 2010,
p. 23 .
3 United Nations, General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful
assembly and association, MainaKiai, A/HRC/23/39, § 43.
The right to freedom of assembly in Burundi has been provided by different constitutions.
However, the enjoyment of this right has always been restrained by public authorities through
laws regulating public assemblies, laws that were extremely restrictive relative to positive
provisions given by international legal instruments relating to human rights. The most recent one
is the December 5, 2013, law 1/28 regulating public demonstrations and assemblies.
In our pr oject, we provide an in-depth analysis of the provisions of that law with respect
to fundamental principles espoused by international instruments and with regards to the law’ s
The paper is divided into two chapters. The first is dedicated to general aspects of the
right to freedom of assembly in Burundi and includes a historical overview (section 1) and the
legal framework (section 2). The second chapter, consisting of the analysis of the law itself,
includes a global analysis of the December 5, 2013 , law (section 1) and various restrictions on
freedom of assembly (section 2).
Throughout this analysis, we provide proposals for recommendations that support the
reform of the present law.
This project was achieved in the framework of a research scholarship granted by the
American non -governmental legal organization International Center for Not -for -Profit Law
(ICNL) based in Washington, DC, in collaboration with United States Agency for International
Development (USAID). ICNL is an international organization that facilitates and supports the
development of a favorable legal framework for the civil society sector. ICNL provides technical
assistance through research and education to support the development of a favorable legal
framework for civil society in many countries around the world.
It is in this context that ICNL supports legal practitioners through research grants so that
they may contribute to law reform with the goal of creating an environment that allows the
enjoyment of fundamental rights and freedoms. The organization has been working for a long
time on the freedom of association and is extending its involvement on the freedom of peaceful
The project was conducted partly in Burundi on topics concerning Burundian legislation
and practices, and then in Washington, DC on matters concerning international human rights
The project was conducted following the documentary method that involves using
publications, articles, and reports, as well as national and international legal tools: international
conventions, the Constitution of the Republic of Burundi, the Arusha Peace and Reconciliation
Agreement, and legislative texts.
In addition, we have consulted Burundian civil society organization leaders who sat with
us and provided data on matters regarding freedom of peaceful assembly practices.
Finally, the project relies on information provided by the ICNL and the European Center
for Not -for -Profit Law (ECNL) staff members, who shared experiences and good practices in the
countries in which they operate.
I. Freedom of Assembly in Burundi
1. Historical overview
The evolution of the right to freedom of assembly has been strongly influenced by
Burundi’s political path since its independence from Belgian colonization. Although the various
constitutions 4 that governed the country have all provided for the right to freedom of assembly,
there has always been a gap between the text and the people’s actual enjoyment of the right.
After gaining independence in 1962 ,5 Burundi adopted a constitutional monarchy regime
with a constitution greatly inspired by the Universal Declaration of Human Rights. The
monarchy was ended after four years by a military coup d’état on November 28, 1966. The
country has since known various military regime s6 deeply rooted in the ideology of the single
party in power, UPRONA .7 The party outlined the overall political orientation of the nation and
inspired state action. In this political context, all the principles governing a democratic society
were completely nonexistent.
The democratization process in Burundi started around 1989, following the political
transformations happening in Europe after the fall of the Berlin wall. During the La Baule
conference in 1990, former French President François Mitterrand called for African heads of
state to follow the example set by western countries and begin the democratization process lest
they suffer economic and political sanctions from the international community .8
A constitutional commission was put in place in March 1991, its main function being the
democratization of political life in the country. A new constitution was enacted in March 1992
recognizing political pluralism and the separation of powers, while proclaiming civil rights and
public freedoms. Article 28 of this constitution declares: “freedom of peaceful assembly and
association is guaranteed under the condition set by law .”9
Burundi did not enjoy the benefits of democracy for long, for in October 1993, an
unprecedented civil war struck the country follow ing the assassination of the first democratically
elected president, Melchior Ndadaye.
On July 25, 1996, a military coup suspended the 1992 Constitution, and subsequently
banned the exercise of public freedoms, including in particular the right to freedom of peaceful
4 See the various constitutions that governed Burundi: www.uantwerpen.be/en/faculties/iob/research -and –
service/c entre -great -lakes/dpp -burundi/constitution/aper -u-hist -const/ .
5 Burundi was under German rule prior to World War I, and under Belgian rule from 1918 to 1962.
6 Lieutenant Général Michel Micombero, 1966 -1976 ; Colonel Jean Baptiste Bagaza, 1976 – 1987; Maj or
Pierre Buyoya, 1987 -1993.
7 UPRONA: Union pour le Progrès National (Union for National Progress), the party that led the country to
8François Mitterrand, speech at the La Baule conference,
9 Article 28 of the Constitution of the Republic of Burundi of March 12, 1992,
On August 28, 2000 ,10 after long periods of negotiations mediated first by Mwalimu
Julius Nyerere, then by Nelson Mandela, the Arusha Peace and Reconciliation Agreement in
Burundi was signed by Burundian political actors. The Arusha Agreement advocated the
enactment of an inclusive constitution recognizing people’s rights and freedoms.
Thus, the March 18, 2005, Constitution still in effect today was born. These two
fundamental texts recognize the right to freedom of peaceful assembly as one that all persons
must fully enjoy in Burundi.
2. Legal framework of the right to freedom of peaceful assembly
In this section we will consider legal texts, including international legal instruments, the
Arusha Peace and Reconciliation Agreement in Burundi, and the March 18, 2005, Constitution
of the Republic of Burundi.
A. Regional and international legal instruments
Burundi is party to relevant international legal instruments concerning human rights such
as the Universal Declaration of Human Rights, the International Covenant on Civil and Political
Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention
on the Rights of the Child.
In terms of regional obligations, Burundi is party to the African Charter on Human and
Peoples ’ Rights and the Protocol Establishing the African Court on Human and Peoples’ Rights.
Furthermore, Burundi has recently joined the East African Community, whose basic principles,
among others, are good governance, respect of the principles of democracy, rule of law,
responsibility, transparency, social justice, equal opportunity, gender equality, as well as the
recognition, promotion, and protection of human and peoples’ rights in accordance with the
provisions of the African Charter on Human and Peoples’ Rights.
The table below contains legal instruments, provisions relevant to the right to freedom
assembly, and Burundi’s dates of accession to the treaties.
TREATY PROVISIONS RELATING TO
FREEDOM OF ASSEMBLY
DATE OF ACCESSION
of Human Rights
Article 20 (1): Everyone has the
right to freedom of peaceful
assembly and association.
December 10, 1948
10Arusha Peace and Reconciliation Agreement in Burundi,
on Civil and Political
Article 21: The right to 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, the
protection of public health or
morals or the protection of the
rights and freedoms of others.
May 9, 1990
on Economic, Social
and Cultural Rights
Article 8: The States Parties to the
present Covenant undertake to
ensure: d) The right to str ike,
provided that it is exercised in
conformity with the laws of the
May 9, 1990
Convention on the
Rights of the Child
Article 15: 1. States Parties
recognize the rights of the child to
freedom of association and to
freedom of peaceful assembly.
2. No restrictions may be placed
on the exercise of these rights
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, the protection of public
health or morals or the protection
of the rights and freedoms of
October 19, 1990
African Charter on
Human and Peoples’
Article 11: 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, health, ethics and rights
and freedoms of others.
July 28, 1989
Treaty Establishing the
Article 6: The fundamental
principles that shall govern the
achievement of the objectives of
the Community shall include: d)
… the recognition, promotion and
protection of human and peoples’
rights in accordance with the
provisions of the African Charter
on Human and Peoples’ Rights ;
Article 7, 2. The Member States
undertake to abide by the
principles of good governance,
including adherence to the
principles of democracy, the rule
of law, social justice and the
maintenance of universally
accepted standards of human
July 1, 2007
B. The Arusha Peace and Reconciliation Agreement in Burundi
Seven years after the outbreak of civil war, political actors, with the help of the
international community, reached a historic agreement that lead to the end of the conflict in
Burundi: the Arusha Peace and Reconciliation Agreement in Burundi.
In the chapter entitled “Nature and Historical Causes of the Conflict,” the agreement
states that since independence and throughout the diffe rent regimes, a number of constant
phenomena have given rise to conflict in Burundi: deliberate killings, widespread violence, and
11 Arusha Peace and Reconciliati on Agreement in Burundi: Protocol I, Chapter I, Article 3, 1
In order to end these phenomena, parties to the agreement committed to adhere to the
principles of rule of law, democracy, good governance, pluralism, respect of fundamental rights
and freedoms of the individual, unity, solidarity, gender equality, mutual understanding, and
tolerance between the various political and ethnic components of the Burundian people.
Thus, the Arusha agreement emphasizes that:
The rights and duties proclaimed and guaranteed inter alia by the Universal Declaration
of Human Rights, the International Covenants on Human Rights, the African Charter on
Human and Peoples’ Rights, the Convention on the Elimination of All Forms of
Discrimination against Women and the Convention on the Rights of the Child shall form
an integral part of the Constitution of the Republic of Burundi. These fundamental rights
shall not be limited or derogated from, except in justifiable circumstances acceptable in
international law and set forth in the Constitution .12
Moreover, point 14 of the previously cited article of the Agreement provides for freedom
of assembly under the following terms: “Freedom of assembly and association shall be
guaranteed, as shall freedom to form non -profit -making associations or organizations in
conformity with the law .”13
In light of the above, it is clear that the Arusha Agreement has viewed the rights and
freedoms proclaimed by international legal instruments, including the right to freedom of
peaceful assembly, as one of the solutions to preventing recurrence of the Burundian conflict.
The Arusha agreement remains a form of social contract that inspires political life in the country.
C. Constit ution on the Republic of Burundi (March 18, 2005 Law No. 1/010)
The Constitution of the Republic of Burundi as enacted on March 18, 2005, embodies the
implementation of recommendations stated in the Arusha Peace and Reconciliation Agreement.
The provisions concerning the rights to freedom of assembly provided by the Agreement
have been integrated verbatim in the Constitution. Articles 19 and 32 of the Constitution pick up
the dispositions provided above, respectively. The major innovation of the current constitution of
the Republic of Burundi is the incorporation of international legal instruments into domestic law,
facilitating their applicability without any other implementing measure.
D. Previous legislation on freedom of assembly
Freedom of assembly has been regulated by specific laws since the colonial period.
However, rather than protecting and promoting the right to freedom of assembly, these texts have
had the common goal of controlling and in a number of cases preventing individuals from fully
enjoy ing this freedom. Their wording speaks volumes. Rather than regulating peaceful
assemblies and gatherings, they regulate “demonstrations and public meetings.
12Arusha Peace and Reconciliation Agreement in Burundi, Protocol II , Chapter I, Article 3, 1,
13 Arusha Peace and Reconciliation Agreement in Burundi, Protocol II, Chapter I, Article 3, 14,
These texts include Order No. 111/29 of Rwanda -Urundi , dated January 31, 1959,
regulating public demonstrations and meetings; Order No. 111/6 of Rwanda -Urundi , dated
January 18, 1962 , regulating public gatherings; Decree No. 100/187/91 , dated December 31,
1991 , regulating public demonstrations and meetings.
The first chapter provides only a broad picture of the regulation of the right to freedom of
assembly in Burundi. The remainder of the work focus es mainly on the current law on
assemblies and public demonstrations. The objective is to show the extent to which this law
complies with international standards regarding peaceful assemblies, both in regulation and in
II. Analysis of the December 5, 2013, Law
on Assemblies and Public Demonstrations
The root of the right to freedom of assembly can be found in regional and international
legal instruments, as well as in the case law of the supervisory bodies of these treaties. The other
root is in the constitution, which contains positive and protective provisions for the right to
freedom of assembly.
However, the provisions in the constitution are o ften too broad to allow a just and
effective implementation of the right to freedom of assembly. The vagueness of these provisions
can easily lead to abuses of power by the authorities responsible for implementing this right. A
law specifically regulating the exercise of freedom of assembly could be a solution to this
Although nothing in the international legal instruments requir es States to enact specific
laws on freedom of assembly, such legislation can tremendously help protect the right against
arbitrary administrative interference. Such legislation can in particular serve as a guide in the
decision process by the administrative authorities and point out the circumstances in which this
right may be hindered.
This research project therefore assesses whether the December 5, 2013 , law on public
assemblies and demonstrations is consistent with the special purpose of such a law, according to
the international standards applicable concerning regulation of the right to freedom of assembly.
1. Protection or restriction of the right to peaceful assembly? Overall analysis of the text
This section is devoted to the form and content of the text in terms of principle,
procedure, restrictions, and sanctions. This introductory analysis seeks to comprehensively deal
with the content of the law and its tendency to protect or restrict the right to freedom of peaceful
assembly in Burundi.
A. Title of the law
The law is entitled “The December 5 law No 1/28 regulating public demonstrations and
assemblies .” The law cl early targets specific categories of gatherings of people, namely public
demonstrations and assemblies. We believe that the law should have a title that encompasses all
possible forms of gathering to comply with international standards on the right to freedom of
B. Architecture of the legal text
The text contains five chapters in total: a chapter on principles and definitions (3 articles);
two chapters on procedure and restrictions (12 articles); one chapter on criminal and
administrative sanctions (13 articles); and a chapter relating to final provisions (2 articles).
Where principles are concerned, it should be noted that the law only discusses one
principle. Article 1 provides that: “public assemblies and demonstrations are free in Burundi .”
Other than this lone statement in favor of the right to freedom of assembly, the remainder of the
text consists of restrictions, administrative procedures governing these restrictions, and criminal
and administrative sanctions.
In view of the above, and generally speaking, it is apparent that the law restricts the right
to freedom of assembly more than it protects it.
C. General recommendations
The law should be entitled: “The December 5, 2013 law on peaceful assemblies and
gatherings in Burundi.”
The law should provide principles ensuring the protection of the right to freedom of
assembly articulated in the international instruments relating to human rights.
The law should contain more protective provisions and fewer restrictions and
2. Restrictions on the right to hold a peaceful assembly
Article 21 of the International Covenant on Civil and Political Rights guarantees the right
to freedom of peaceful assembly under the following terms:
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, the protection of public health or morals or the protection of the rights and
freedoms of others.
Burundi is party to the ICCPR. Moreover, Article 19 of its Constitution provides that all
the international instruments relating to human rights are integral parts of the Constitution of the
Republic of Burundi, and that the fundamental rights proclaimed by these instruments must not
be subjected to any restriction or exemption, except in certain circumstances justifiable by public
interest or the protection of a fundamental right.
The International Covenant on Civil and Political Rights, the African Charter on Human
and Peoples’ Rights, and the Convention on the Rights of the Child provide legitimate reasons
for restriction of a peaceful assembly. No restriction other than those stipulated in these
provisions shall be prescribed by national law. Indeed, these restrictions themselves should be
interpreted more restrictively to avoid abuses.
The Special Rapporteur on the right to peaceful assembly and the freedom of association
reminds in his A/HR C/23/39/report that whenever authorities decide to restrict an assembly, they
should provide assembly organizers, in writing, with “timely and fulsome reasons” which should satisfy the strict test of necessity and proportionality of the restrictions impose d on the assembly
pursuant to legitimate aims .14
The December 5, 2013, law provides a number of restrictions on the right to freedom of
Prior declaration: Articles 4 and 7
Defacto ban on spontaneous gatherings: Articles 4 and 7 read in conjunction with
Discretion on the part of the administration to ban any peaceful assembly: Articles 5
Restrictions on recourse mechanisms: Article 5
Time constraint: Article 11
Responsibility of organizers to maintain public order during peaceful assemblies:
Criminal and administrative sanctions: Articles 14 to 26
Repression of counter-demonstrations: Article 18 paragraph 2
A. Prior declaration
Problem: Articles 4 and 7 provide that public demonstrations and assemblies must be
subject to prior declaration. The declaration must include the identification of the members of the
organizing office, the time and date of the demonstration, its purpose, its foreseeable
involvement, and the intended itinerary of the procession or parade.
Analysis: The Special Rapporteur on the right to peaceful assembly and freedom of
association believes that the exercise of fundamental freedoms should not be subject to prior
declaration to the authorities, but rather to a process of prior notification in order to allow public
authorities to facilitate the exercise of the right to peaceful assembly, to ensure public safety and
order, and to protect the rights and freedoms of the rest of the population. This notification
should undergo an assessment of proportionality that is not unduly bureaucratic, and be
submitted within a period of time (48 hours, for example) determined prior to the scheduled date
of the assembly .15
The law being analyzed does not explicitly state the need for the declaration. Although
the idea of protecting the right to peaceful assembly cannot entirely be excluded, it is apparent
that the law seeks to control and restrict the right to freedom of assembly. This claim can be
made from the fact that, by law, the requirement of a prior declaration is directly linked to the ability of the competent authority notified to either defer the assembly or ban it altogether.
14 United Nations, General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful
assembly and of association , MainaKiai, A/HRC/23/39,§ 48 ,
15 United Nations, General Assembly, Rep ort of the Special Rapporteur on the rights to freedom of peaceful
assembly and of association, MainaKiai, A/HRC/23/39, § 47,
http://www.un.org/ga/search/vie w_doc.asp?symbol=A/HRC/23/39&referer=/english/&Lang=F .
Furthermore, a prior declaration leading to a possible ban on the assembly becomes an
authorization. Indeed, the law does not indicate the benefit of the information contained in the
declaration. It can therefore be used to ban a peaceful assembly on the basis of its purpose, its
organizers, its location, or the people planning to attend.
According to the Special Rapporteur, a notification should be considered overly
bureaucratic if one of the following points are imposed on the organizers: that more than one
organizer’s name be mentioned; that only registered organizations be considered capable of
organizing a gathering; that official identification documents such as passports or ID cards be
presented; that details concerning the identity of other participating persons (members of security
services, for example) be provided; that reasons for the gathering be specified, with respect t o the
principle of non-discrimination ; and that the number of participants be stated, which is difficult
to predict .16
Practice: Prior declaration operates as a prior authorization in the practice of the
administration in Burundi.
In his June 18, 2014, letter, the Minister of the Interior wrote, in response to an
administrative appeal of a demonstration banned by the Mayor of the town of Bujumbura: “…
and therefore, the procession that you intend to hold on June 20, 2014 cannot be permitted under
any circumstances ”17 (emphasis added).
In response to a prior declaration by the president of OLUCOME, 18 the Mayor of
Bujumbura wrote: “…I regret to inform you that, following the animated press conference by the
Attorney General of the Republic on April 4, 2014 regarding the Ernest MANIRUMVA file,
which exposes the sentiment of certain civil society organizations, including OLUCOME to seek
to confuse justice, this authorization cannot be granted ”19 (emphasis added).
Furthermore, prior declaration (authorization) is required to exercise the right to freedom
of assembly and all other forms of peaceful assembly. It must contain all the information
provided by Articles 4 and 7 lest it be deemed inadmissible by the administrative authorities .20
Recommendation: Prior declaration as provided by law and interpreted by the
administration goes against Articles 19 and 32 of the Constitution of the Republic of Burundi
and Article 21 of the ICCPR. Reform is necessary to differentiate gatherings that may pertain to
the declaration and those that may not.
A prior declaration must be required only for demonstrations of a great scale. Above
all, it must serve the legitimate reason of ensuring public safety and order for peaceful
16 Likewise, par. 54.
17 Letter from the Minister of the Interior No. 530/1161/CAB/2014 to Mr. Vice President of FORSC.
18 The Observatory for the Fight against Corruption and Economic Embezzlement (OLU COME) planned to
hold a demonstration for the commemoration of the fifth anniversary of Ernest Manirumva’s assassination, former
vice -president of the organization.
19 Letter from the Mayor of Bujumbura No. 531.17/618/CAB/2014 dated April 4, 2014, to Gabrie l Rufyiri,
President of OLUCOME.
20 See FORSC’s letter No. Ref 121/7/FORSC/2014 dated July 26, 2014, to the Mayor of Bujumbura.
It should be a simple letter indicating intent to exercise the right to freedom of
peaceful assembly and requesting protection of the assembly by the administration
and the police.
Where a declaration is required, it must not be interpreted as an authorization.
B. Spontaneous gathering
Problem: The requirement of a prior declaration provided by Articles 4 and 7 leaves no
place for a spontaneous gathering. Indeed, Article 9 underlines that any assembly or gathering
that does not comply with the law is unlawful and susceptible to sanction.
Analysis: The requirement of a prior declaration should not be so strict as to prohibit a
demonstration or a spontaneous assembly. Spontaneous gatherings are generally considered as
those occurring in response to an event, an incident, another gathering, or even when an
organizer (if there is one) cannot meet the legal deadline for prior notification or when there are
no organizers at all. These assemblies often occur at the same time as the triggering event, and
the capacity to keep them spontaneous is crucial, for any lateness would weaken their message .21
Freedom of association is an intrinsic right to human beings, and its exercise can only be
conditioned by an administrative procedure in the event of special circumstances specifically
defined by legal provisions.
Practice: Spontaneous assemblies are not possible in Burundi because a prior declaration
Recommendation: We propose reforming the law to provide the possibility for
spontaneous gatherings to be conducted.
C. Discretion of the administration to ban a peaceful assembly
Problem: Articles 5 and 8 give discretionary power to the administrative authority
notified to defer or ban an assembly if maintaining public order absolutely demands it.
Analysis: Maintaining public order is one of the legitimate reasons provided by Article
21 of the ICCPR to restrict freedom of peaceful assembly. However, this notion should not be
interpreted so broadly as to allow restrictions when a disturbance of peace is merely
hypothetical. The authority should produce material evidence demonstrating an imminent public
According to international standards, restriction of the right to freedom of assembly on
grounds of maintenance of public order should only be invoked when there is irrefutable and
verifiable proof that the participants themselves will resort to violence .22
The Special Rapporteur reminds in his report on the right to freedom of peaceful
assembly and association that the exercise of the right to freedom of peaceful assembly can only
be subject to restrictions “that are in conformity with the law and which are necessary in a
democratic society in the interest of national security or public safety, public order, the
protection of public health or morals or the protection of the rights and freedoms of others.”
21 OSCE/ODIHR, op. cit., 67.
22 Likewise, 51.
In this context, he emphasizes once again that freedom must be the rule and restriction the
Practice: The administration often violates the exercise of the right to freedom of
peaceful assembly. Although Burundian law provides only public order as a basis for restricting
freedom of assembly, in practice the administration invents reasons to ban even a properly
registered assembly. This practice violates three principles: the principles of legality,
proportionality, and good governance.
According to the principle of legality, all restrictions imposed must have a legal basis and
comply with international legal instruments on human rights. Administrative authorities should
not invoke justifications other than those explicitly provided by law. Moreover, the law must be
specific enough to allow individuals to assess what conduct may constitute a violation as well as
the consequences .24
Where the principle of proportionality is concerned, any restriction imposed on freedom
of assembly must be proportional to the legitimate goal sought by the administration .25
As to the principle of good governance, restrictions imposed on an assembly should be
promptly communicated in writing to the organizers to allow them to appeal the decision to an
independent court that would give a ruling before the date of the event .26
A few examples illustrate the practice:
On February 4, 2014, police prevented the Bar Association of Burundi from holding its
general assembly with a verbal notice that was as unfounded as it was illegal, stating that the
assembly was not permitted by the Mayor of Bujumbura .27 Yet, statutory assemblies of
organizations are explicitly excluded from the scope of application of the law on public
assemblies and demonstrations, as per Article 2.
On February 18 , 2014, police once again denied the Bar Association of Burundi to jointly
hold a training seminar with the French Bar Associations without a written basis , because the
police simply prohibited those lawyers from gaining access to the training room. Althou gh the
law does not require any form of statement for trainings that are scientific in nature, the Bar had
notified the Mayor of Bujumbura about the training in writing as a courtesy .28
In his response to the administrative appeal filed by the Forum for the Strengthening of
Civil Society (FORSC) for the march in support of Pierre Claver Mbonimpa ,29 the Minister of the Interior invoked the pending criminal case (Public Prosecutor C/Pierre Mbonimpa) to ban the
demonstration under the following terms:
23United Nations, General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful
assembly and of association, Maina Kiai, A/HRC/23/39, § 43,
http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/23/39&referer=/english/& Lang=F .
24 OSCE/ODIHR, op. cit., 16.
27 For a reminder of the day’s event (including the interview of President of the Lawyers’ Association of
Burundi), see http://www.youtube.com/watch?v= T3P_7wxGLkg .
28 Amnesty International, Rapport sur le Burundi, Le vérrouillage,lorsque l’espace politique se retrécit , 15,
http://reliefweb.int/sites /reliefweb.int/files/resources/Burundi%20 -%20le%20verrouillage.pdf .
29 Pierre Claver Mbonimpa is a human rights defender in prison at the time this project was drafted, and
president of the Association for the protection of prisoners’ human rights.
“Indeed, you claim to support Mr. Pierre Claver
MBONIMPA in an ongoing judicial case before the court. It would therefore be wise to show
patience and to allow the court time to render its ruling instead of distracting the public;
consequently, the procession you intend to hold on June 20, 2014 cannot be permitted under any
The Mayor of Bujumbura recalled a press conference of the Attorney General of the
Republic to deny a demonstration declared in good order: “…I regret to inform you that
following the animated press conference by the Attorney General of the Republic on April 4,
2014 regarding the Ernest MANIRUMVA case, which exposes the attitude of certain civil
society organizations as well as that of the head of OLUCOME to seek to confuse justice, this
authorization cannot be allowed .”31
All the cases mentioned constitute serious violations of international human rights law
(Article 21 of the ICCPR, Article 11 of the African Charter on Human and Peoples ’ Rights,
Article 15 of the Convention on the R ights of the Child), of the Constitution of the Republic of
Burundi (Article 32), and of that same law citing Articles 4 (4), 5(2), 10(2 ), which stipulate that a
decision of refusal must be duly justified.
Recommendation: Certain recommendations are releva nt concerning the legitimate
justification for restrict ing a peaceful assembly:
The law must be reformed to provide only those restrictions allowed by Article 21 of
Legitimate restrictions must be interpreted in a restrictive manner and in conformity
with international standards.
The administration must keep from invoking justifications not provided by law to
prohibit a peaceful assembly, as per Article 32 of the Constitution .32
The administration must address peaceful assembly organizers in writing, with
D. Recourse mechanisms
Problem: According to Article 5, assembly organizers possess both a hierarchic and a
judicial recourse to appeal an unfavorable decision concerning a peaceful assembly. However,
the law is not specific as to time period within which the administrative court must render its
ruling. The law merely states that the court shall rule according to the emergency procedure.
Analysis: Article 14 of the ICCPR provides that everyone has the right for his/her case to
be fairly and publicly heard by a competent, independent, and impartial court established by law,
which will rule without undue delay.
30 Lette r from the Minister of the Interior No. 530/1161/CAB/2014 dated June 18, 2014, to Vice President
31 Letter from the Mayor of Bujumura, No. 531.17/618?CAB/2014, dated April 4, 2014, to Gabriel Rufyiri,
President of OLUCOME.
32 Article 32: “Freedom of assembly and association is guaranteed, as well as the right to establish
associations or organizations in accordance with the law.”
The Constitution of the Republic of Burundi similarly provid es that every person has the
right, in a judicial or administrative procedure, for his/her case to be heard equitably and to be
judged within a reasonable time period .33
Indeed, the terms “without undue delay” and “reasonable time period” seek to protect
those who resort to courts and tribunals, and whose interests can be compromised by an unjustly
lengthy judicial procedure. In the present context, the interest in question is the legitimate
exercise of the right to freedom of peaceful assembly.
Thus, organizers should have effective and efficient mechanisms to appeal a decision that
they deem arbitrary. Such decisions should be communicated to the organizers within a
reasonable time frame to allow organizers to hold a peaceful assembly that was previously
Consequently, when the law uses vague terms for such a sensitive subject matter, it can
constitute a breach for violations of the right to freedom of assembly.
Practice: Practice shows that not establishing time constraints on the Administrative
Court process jeopardize s freedom of peaceful assembly. On June 26, 2014, the Forum for
Strengthening Civil Society filed an appeal before the Administrative Court against the June 12
decision No. 531.17/1015/CAB/2014 by the Mayor of Bujumbura. Although the law provides
that the Administrative Court adjudicate such a case according to the emergency procedure, the
first public hearing was planned for over two months after the case was filed.
This delay is undue (Article 14 of the ICCPR) and in no way constitutes a reasonable
time period (Article 38 of the Constitu tion) to rule on the illegality of a decision prohibiting a
Recommendation: The law should specify the deadline by which the Administrative
Court should render its judgment. We recommend a 48 -hour time period for the administrative
E. Time constraint
Problem: Article 11 provides that public assemblies and demonstrations cannot begin
before 6 a.m. or extend beyond 6 p.m.
Analysis: The right to freedom of assembly is admittedly not absolute. However, the
potential restrictions that it may be subjected to are limited to provisions of Article 21 of the
ICCPR. Restricting freedom of assembly at night makes sense in certain situations for public
demonstrations in poorly lit locales and for assemblies that may cause nighttime disturbances.
However, certain assemblies may be held past 6 p.m. in secure and enclosed places. As long as
assemblies are presumed peaceful where the law is concerned, there is no reason not to hold
them at night.
Moreover, restricting peaceful assemblies between the hours of 6 a.m. and 6 p.m. is
detrimental to the exercise of the right to freedom of assembly, on the basis that those are
working hours for a majority of people.
33 Article 38 of law No. 1/010, dated March 18, 2005, enacted from the Constitution of the Republic of
34 OSCE/ODI HR, op. cit., 70.
Instead of allowing peaceful assemblies only during the day, the law should allow peaceful assemblies that pose no practical problem to be held at night,
as well as alternative means of control and security for potentially dangerous assemblies.
Practice: Nighttime peaceful gatherings are nonexistent in Burundi.
Recommendation: The law should make distinctions between assemblies being held in
enclosed spaces and public demonstrations. For the latter, the answer is not to ban them outright,
but to regulate them on a case-by-case basis.
F. Maintaining public order in peaceful assemblies
Problem: Article 13: coordinating and monitoring assemblies and demonstrations falls to
the organizing office, which is also responsible for policing the assembly and maintaining public
Analysis: It is the duty of the State and its agents to maintain public order, in this case,
the police and local administration.
It is understandable that organizers collaborate with police and administrative authorities
to maintain public order in an assembly or a demonstration. However, it is inconceivable in both
national and international law that the primary responsibility for maintaining public order in this
type of event should fall on people who lack the position, the training, and the means to achieve
It is an extremely important legal gap and an impediment to the exercise of the right to
freedom of assembly. In a framework where a spontaneous assembly is not permitted, and where
all assemblies are subject to prior declaration identifying three official organizers, it is difficult to
find people who will commit to bear the responsibility of acting as administration and police and
suffer the consequences in case of failure to control the crowd.
The law in South Africa on the regulation of assemblies is a good alternative. It states
that the peaceful exercise of the right to assemble is the joint responsibility of event organizers,
police, and local administration leaders. Together, these three groups form a “security triangle”
with the joint responsibility to ensure order and safety during public events. The success of the
security triangle is due to collective planning, cooperation between the three groups, and a
willingness to negotiate a compromise when conflicts arise.
Practice: There is no available data regarding practice in this area.
Recommendation: The law should be clear on the responsibility of each of the relevant
actors : the administration, the police, and the peaceful assembly organizers. Contrary to current
law, the lead role should fall on the police and the administration, since they are responsible for
G. Criminal and civil responsibility
Problem: The last paragraph of Article 13 states that members of the organizing office
may incur civil action for damages caused and criminal action for offenses committed during
assembly activities, if assembly or demonstration organizers turn out to be at fault.
Analysis: Organizers have a responsibility to provide all possible efforts to uphold the
law and maintain the peaceful nature of the assembly. They should not, however, be held liable
for failing that responsibility if it is shown that they have provided reasonable efforts to do so.
Likewise, organizers should not be held liable for unlawful acts committed by
participants. Individual liability should arise for participants or organizers who commit an
offense or fail to carry out the rules and guidelines put in place by the administration and the
Furthermore, when an assembly escalates into public disorder, it is the State’s
responsibility to provide damage control. Organizers cannot be held liable for the actions of
In this respect, the law is not in accordance with international standards and national laws
on individual criminal liability.
Practice: There is no data concerning practice in this area.
Recommendation: All provisions that bestow shared liability on the organizers for the
actions of a few must be removed and replaced with a system of individual criminal liability.
The law should not include criminal dispositions since all potential offenses in assemblies
are provided for in the Burundian penal code.
H. Ban on counter-demonstrations
Problem: Article 18, par. 2, imposes a fine of 100,000 to 500,000 Burundi francs on
Analysis: Not only are counter-demonstrations banned, they are criminally punishable by
a fine. Yet, everyone has the right to assemble as a counterdemonstrator s to express
disagreement with another demonstration. What is crucial in such circumstances is to protect the
right s of each group to enjoy freedom of peaceful assembly. Instead of banning this type of
demonstration, an emphasis should be placed on the State’s duty to take measures to prevent the
disruption of the original demonstration while also protecting the right s of the
Practice: Practice is nonexistent, since this type of demonstration is strictly prohibited
and punishable by law.
Recommendation: We recommend decrim inalizing counter-demonstrations and
regulating them in accordance with universally applicable guidelines.
Despite the existence of the right to freedom of assembly in Burundian legislation, its
exercise has never fully been realized. Depending on the political climate, the exercise of the
right to freedom of assembly has been subject to either de facto restrictions or restrictions based
on text, legislation, or regulation.
The democratization process of the 1990s and the Arusha peace negotiations have
brought about a renewed importance of the fundamental human rights principles, which have
been integrated in national texts.
35 Id. , 93.
36 Likewise, 66.
However, there is a tendency to pass increasingly restrictive laws. The law regulating
public demonstrations and assemblies is an example. The text contains a good number of
restrictions to the exercise of the right to freedom of peaceful assembly.
We have analyzed these restrictions in the scope of international human rights law and of
basic principles that stem from international practice. For each analysis, we have put forth
recommendations aiming to reform the legal text.
Ultimately, we recommend a revision of the law paired with raising the awareness of
administrative and police authorities responsible for implementing th e law, thus ensuring that the
people residing on Burundi territory actually enjoy the right to freedom of assembly.
International legal texts
Universal Declaration of Human Rights
African Charter on Human and Peoples ’ Rights
Convention on the Rights of the Child
International Covenant on Civil and Political Rights
International Covenant on Economic, Social, and Cultural Rights
Treaty Establishing the East African Community
National legal texts
Order in Ruanda -Urundi No. 111/29 of January 31, 1959, regulating public demonstrations and assemblies
Order in Ruanda -Urundi No. 111/29 of January 18, 1962, regulating public assemblies
Decree No. 100/187/91 of December 31, 1991, regulating public demonstrations and assemblies
The 2000 Arusha Peace and Reconciliation Agreement for Burundi
The March 28, 2005, Constitution of the Republic of Burundi
The December 5, 2013 law No. 1/28 regulating public demonstrations and assemblies
The various constitutions that have governed Burundi: www.uantwerpen.be/en/fac ulties/iob/research -and –
service/centre -great -lakes/dpp -burundi/constitution/aper -u-hist -const/
OSCE/ODIHR, Guidelines on Freedom of Peaceful Assembly (2d ed.) (Warsaw/Strasbourg, 2010 )
Reports and press articles
United Nations, General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful assembly
and of association, Maina Kiai, A/HRC/23/39,
Amnesty International, Rapport sur le Burundi,Le vérrouillage, lorsque l’espace politique se retrécit ,
François Mitterrand’s speech at the La Baule conference. http://www1.rfi.fr/ actufr/articles/037/article_20103.asp
Interview with the President of the Burundi Bar, http://www.youtube.com/watch?v=T3P_7wxGLkg
e are tired of tolerating IBIS’ political
interference in Bolivia.” 119
A September 2014 article in the New York Times asserted that foreign “money is
increasingly transforming the once -staid think -tank world into a muscular arm of foreign
governments’ lobbying in Washington.” 120 The following week, United States
Representative Frank Wolf wrote a letter to the Brookings Institution, in which he urged
them to “end this practice of accepting money from … foreign governments” so that its
work is not “compromised by the influence, whether real or perceived, of foreign
Some governments assert that foreigners are not only seeking to meddle in domestic
political affairs, but also seeking to destabilize the country or otherwise engage in “regime
change.” Accor dingly, they argue that foreign funding restrictions are necessary to thwart efforts
to destabilize or overthrow the government currently in power.
In 2013 in Sri Lanka , the government justified a recent registration requirement for all
CSOs on the grounds that it was necessary to “thwart certain NGOs from hatching
117 Jonathan Lis, “Draft bill: NGOs with foreign funding to be defined ‘foreign agents,’” Haaretz , May 26,
2013, accessed September 8, 2014, http://www.haaretz.com/news/national/.premium -1.592754 .
118 “Some Azerbaijani NGOs Cooperated with Armenian Special Services Under ‘People’s Diplomacy,’”
Trend, August 15, 2014, accessed September 8, 2014, http://en.trend.az/news/politics/230 3147.html .
119 Agence France -Presse, “Bolivia expels Danish NGO for meddling,” Global Post , December 20, 2013,
accessed September 16, 2014, http://www.gl obalpost.com/dispatch/news/afp/131220/bolivia -expels -danish -ngo –
120 Eric Lipton, Brooke Williams, & Nicholas Confessore, “Foreign Powers Buy Influence at Think Tanks,”
New York Times , September 6, 2014, accessed September 17, 2014,
http://www.nytimes.com/2014/09/07/us/politics/foreign -powers -buy -influence -at-think -tanks.html?_r=0 .
121 Letter from Representative Frank Wolf to Strobe Talbott of the Brookings Institution, September 9,
2014, accessed September 17, 2014, https://s3.amazonaws.com/s3.documentcloud. org/documents/1301186/rep –
frank -wolfs -letter -to-strobe -talbott -at.pdf .
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 23
conspiracies to effect regime change by engaging in politics in the guise of doing social
A drafter of the Russian “foreign agents” law justified the initiative when it was pending
in pa rliament, stating, “There is so much evidence about regime change in Yugoslavia,
now in Libya, Egypt, Tunisia, in Kosovo — that’s what happens in the world, some
governments are working to change regimes in other countries. Russian democracy needs
to be prot ected from outside influences.” 123
In 2005, the Prime Minister of Ethiopia expelled civil society organizations, explaining,
“there is not going to be a ‘Rose Revolution’ or a ‘Green Revolution’ in Ethiopia after the
election” 124 — a reference to the so -called “color revolutions” that had recently occurred
in Georgia and elsewhere.
In June 2012, Uganda’s Minister for Internal Affairs justified the government’s threats to
deregister certain CSOs, stating that CSOs “want to destabilize the country because that
is what they are paid to do…. They are busy stabbing the government in its back yet they
are supposed to do humanitarian work.” 125
In the process of driving civil society organizations out of Zimbabwe , President Mugabe
justified his policies by claiming that the CSOs were fronts for Western “colonial
masters” to undermine the Zimbabwean government. 126 Similarly, the central committee
of Mugabe’s party claimed, “Some of these NGOs are working day and night to remove
President Mugabe and ZANU PF from power. They are being funded by Britain and
some European Union countries, the United States, Australia, Canada and New
In a March 2014 interview justifying a draft “foreign agents” law, Kyrgyzstan’s
President Atembaev argued, “Activities conducted by CSOs are obviously aimed at
destabilization of the situation in the Kyrgyz Republic…. Some CSOs do not care about
how they get income, whose orders to fulfill, which kind of work to execute…. There are
122 Xinhua, “Sri Lanka to Investigate NGOs Operating in Country,” Herald , June 13, 2013, accessed
September 8, 2014, http://www.herald.co.zw/sri -lanka -to-investigate -ngos -operating -in-country/ .
123 “Russian parliament gives first approval to NGO bill,” BBC , July 6, 2012, accessed September 8, 2014,
http://www.bbc.com/news/world -europe -18732949 .
124 Darin Christensen & Jeremy M. Weinstein, “Defunding Dissent,” Journal of Democracy 24(2) (April
125Pascal Kwesiga, “Govt gets tough on NGOs,” New Vision , June 19, 2012, accessed Septembe r 9, 2014,
http://www.newvision.co.ug/news/632123 -govt -gets -tough -on-ngos.html .
126 Thomas Carothers, “The Backlash Against Democracy Promotion,” Foreign Affairs , March/April 2006,
accessed September 9, 2014, http://www.foreignaffairs.com/articles/61509/thomas -carothers/the -backlash -against –
democracy -promotion .
127 “29 NGOs banned in crackdown,” New Zimbabwe , February 14, 2012, accessed September 9, 2014,
http://www.newzimbabwe.com/news -7189 -29+NGOs+banned+in+crackdown/new s.aspx .
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 24
forces interested in destabilizing the situation in Kyrgyzs tan and spreading chaos across
Central Asia and parts of China.” 128
In July 2014, the vice chairman of the China Research Institute of China -Russia Relations
argued that China should “learn from Russia” and enact a foreign agents law “so as to
block the way for the infiltration of external forces and eliminate the possibilities of a
Color Revolution.” 129
2. Transparency and Accountability
Another justification commonly invoked by governments to regulate and restrict the flow
of foreign funds is the importance of upholding the integrity of CSOs by promoting transparency
and accountability through government regulation. Consider, for example, the following
responses by government delegations to the UNSR’s Resource Report:
Egypt : “We agree with the principles of accountability, transparency, and integrity of the
activities of civil society organisations and NGOs. However, this should not be l imited to
accountability to donors. National mechanisms to follow -up on activities of such entities,
while respecting their independence have to be established and respected.” 130
Maldives : “While civil societies should have access to financing for effective operation
within the human rights framework, it is of equal importance that the organizations must
also ensure that they work with utmost integrity and in an ethical and responsible
Azerbaijan : “The changes and amendments to the national legisl ation on NGOs have
been made with a view of increasing transparency in this field…. In that regard, these
amendments should only disturb the associations operating in our country on a non –
transparent basis.” 132
Similarly, in response to a United Nations Hum an Rights Council panel on the promotion
and protection of civil society space in March 2014, the following government delegations
responded with justifications invoking transparency and accountability:
128 “Алмазбек Атамбаев: “Хочу максимально успеть,” Slovo.kg , March 23, 2014, accessed September
9, 2014, translated by Aida Rustemova, http://slovo.kg/?p=35019 .
129 Simon Denyer , “China taking the Putin approach to democracy,” Washington Post, October 1, 2014,
130 UN Office of the High Commissioner for Human Rights, “Clustered ID with the WG on HR and
Transnational Corporations and the SR on The Rights to Freedom of Assembly an d Association: Intervention
delivered by the Permanent Delegation of Egypt,” May 30, 2013, accessed September 9, 2014,
https://extran et.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Egypt_10_1.pdf .
131 UN Office of the High Commissioner for Human Rights, “Interactive Dialogue with the Special
Rapporteur on the Rights to Peaceful Assembly and of Association, M aldives Oral Statement,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/ 23rdSession/OralStatements/Maldives_12.pdf .
132 UN Office of the High Commissioner for Human Rights, “Remarks by Azerbaijan,” May 31, 2013,
accessed September 9, 2014,
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 25
Ethiopia , on behalf of the African Group: “Domestic l aw regulation consistent with the
international obligations of States should be put in place to ensure that the exercise of the
right to freedom of expression, assembly and association fully respects the rights of
others and ensures the independence, accou ntability and transparency of civil society.” 133
India, on behalf of the “Like Minded Group”: “The advocacy for civil society should be
tempered by the need for responsibility, openness and transparency and accountability of
civil society organizations.” 134
Pa kistan , on behalf of the Organisation of Islamic Cooperation members : “It may be
underscored that securing funding for its crucial work is the right of civil society,
maintaining transparency and necessary regulation of funding is the responsibility of
sta tes.” 135
Kyrgyzstan has also employed this argument to justify a draft “foreign agents” law. The
explanatory note to the draft law claims that it “has been developed for purposes of ensuring
openness, publicity, transparency for non -profit organizations, inc luding units of foreign non –
profit organizations, as well as non -profit organizations acting as foreign agents and receiving
their funds from foreign sources, such as foreign countries, their government agencies,
international and foreign organizations, fo reign citizens, stateless persons or their authorized
representatives, receiving monetary funds or other assets from the said sources.”
3. Aid Effectiveness and Coordination
A global movement has increasingly advocated for greater aid effectiveness, including
through concepts of “host country ownership” and the harmonization of development
assistance. 136 However, some states have interpreted “host country ownership” to be
synonymous with “host government ownership” and have otherwise co -opted the aid
effectivene ss debate to justify constraints on international funding. For example:
133 UN Office of the High Commissioner for Human Rights, “Statement by Ethiopia on behalf of the
African Grou p at the 25th session of the Human Rights Council On the Panel Discussion on the Importance of the
Promotion and Protection of Civil Society Space,” March 11, 2014, accessed September 9, 2014,
134 UN Office of the High Commissioner for Human Rights, “Joint Statement: India on behalf of like –
minded countries,” March 11, 2014, accessed September 9, 2014,
%20of%20LMG_PD_21.pdf . The “Like Minded Group” consists of Algeria, Bahrain, Bangladesh, Belarus,
Chi na, Cuba, Egypt, India, Indonesia, Malaysia, Pakistan, Russia, Saudi Arabia, Singapore, South Africa, Sri
Lanka, Sudan, Uganda, United Arab Emirates, Vietnam , and Zimbabwe .
135 UN Office of the High Commissioner for Human Rights, “Statement by Pakistan on be half of OIC:
Panel Discussion on Civil Society Space,” March 11, 2014, accessed September 9, 2014,
136 See the Aid Effectiveness Agenda of the Paris Declaration (2005), the Accra Agenda for Action (2008),
and the Busan Partn ership for Effective Development Cooperation (2011).
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 26
In July 2014, Nepal ’s government released a new Development Cooperation Policy 137
that will require development partners to channel all development cooperation through
the Ministry of Fi nance, rather than directly to CSOs. The government argued that this
policy is necessary for aid effectiveness and coordination: “Both the Government and the
development partners are aware of the fact that the effectiveness can only be enhanced if
the owne rship of aid funded projects lies with the recipient government.” 138
Sri Lanka ’s Finance and Planning Ministry issued a public notice in July 2014 requiring
CSOs to receive government approval of international funding. Justifying the
requirement, the Ministry claimed that projects financed with international funding were
“outside t he government budget undermining the national development programmes.” 139
In response to the UNSR’s Resource Report, the representative of Egypt stated, “The
diversification of the venues of international cooperation and assistance to States towards
the fund ing of civil society partners fragments and diverts the already limited resources
available for international assistance. Hence, aid coordination is crucial for aid
At the recent Africa Leaders Summit, the Foreign Minister of Benin s poke a t a workshop
on closing space for civil society. He asserted that CSOs “don’t think they are
accountable to government but only to development partners. This is a problem.” He said
Benin needs “a regulation to create transparency on resources coming from a broad and
the management of resources,” stating that the space for civil society is “too wide.” 141
The Intelligence Bureau of India released a report in June 2014 claiming that foreign –
funded CSOs stall economic development and negatively impact India’s GDP growth by
2 to 3 percent. 142 The report stated, “a significant number of Indian NGOs, funded by
some donors based in the US, the UK, Germany, the Netherlands and Scandinavian
137 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, accessed September 9, 2014,
138 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, Article 2.2, acces sed September 9, 2014,
139 “No foreign funds without approva l: Ministry,” Daily Mirror , July 22, 2014, accessed September 9,
2014, http://www.dailymirror.lk/news/50038 -no -foreign -funds -without -approval -ministry.html .
140 UN Office of the High Commissioner for Human Rights, “Clustered ID with the WG on HR and
Transnational Corporations and the SR on The Rights to Freedom of Assembly and Association: Intervention
delivered by the Permanent Delegation of Egypt,” May 30, 2013, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Egypt_1 0_1.pdf .
141 Personal notes of author.
142 “Foreign -funded NGOs stalling development: IB report,” Times of India , June 12, 2014, accessed
September 9, 2014, http://timesofindia.indiatimes.com/india/Foreign -funded -NGOs -stalling -development -IB –
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 27
countries, have been noticed to be using people centric issues to create an enviro nment
which lends itself to stalling development projects.” 143
4. National Security, Counterterrorism, and Anti -Money Laundering
As discussed above, governments also invoke national security, counterterrorism, and
anti -money laundering policies to justify restr ictions on international funding, including cross –
border philanthropy. For example, the Financial Action Task Force (FATF), an
intergovernmental body that seeks to combat money laundering and terrorist financing, stated:
The ongoing international campaign against terrorist financing has unfortunately
demonstrated however that terrorists and terrorist organisations exploit the NPO
sector to raise and move funds, provide logistical support, encourage terrorist
recruitment or otherwise support terrorist organi sations and operations. This
misuse not only facilitates terrorist activity but also undermines donor confidence
and jeopardises the very integrity of NPOs. Therefore, protecting the NPO sector
from terrorist abuse is both a critical component of the globa l fight against
terrorism and a necessary step to preserve the integrity of NPOs. 144
Governments have leveraged concerns about counterterrorism and money laundering to
justify restricting both the inflow and outflow of philanthropy. For example: 145
The governm ent of Azerbaijan justified amendments relating to the registration of
foreign grants, stating that the purpose of the amendments was, in part, “ to enforce
international obligations of the Republic of Azerbaijan in the area of combating money –
143 Rake sh Krishnan Simha, “Why India Should Follow Vladimir Putin’s Lead on NGOs,” Russia & India
Report, June 15, 2014, accessed September 9, 2014,
144 Financial Action Task Force, “International Standards on Combating Money Laundering and the
Financing of Terrorism & Proliferation: The FATF Recommendations,” Financial Action Task Force Report, 2013,
54, accessed September 9, 2014,
http://www.fatfgafi.org/media/fa tf/documents/recommendations/pdfs/FATF_Recommendations.pdf . See also
Financial Action Task Force, “Risk of Terrorist Abuse in Non -Profit Organisations,” Financial Action Task Force
Report, June 2014, http://www.fatf -gafi.org/media/fatf/documents/reports/Risk -of-terrorist -abuse -in-non -profit –
145 Constraints by donor governments on the outflow of cross -border donation s, albeit beyond the scope of
this article, similarly present significant barriers to cross -border philanthropy. These states assert that they have an
international responsibility to regulate the outflow of cross -border donations in order to ensure that fu nding destined
for other countries will not support criminal or terrorist activities in those foreign jurisdictions. For more information
about the justifications employed and the implications for civil society, please see: Ben Hayes, “Counter -Terrorism,
‘Policy Laundering’ and the FATF: Legalizing Surveillance, Regulating Civil Society,” Transnational
Institute/Statewatch Report, February 2012, http://www.statewatch.org/analyses/no -171 -fafp -report.pdf .
146 Charity & Security Network, “How the FATF Is Used to Justify Laws That Harm Civil Society,
Freedom of Association and Expression,” Charity & Security Network , May 16, 2013, accessed September 9, 2014,
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 28
The British Virgin Islands (BVI) enacted a law requiring that CSOs with more than five
employees appoint a designated Anti -Money Laundering Compliance Officer. 147 The
law also imposes audit requirements for CSOs that are not required of businesses. These
burdens were justified with explicit reference to FATF’s recommendation on nonprofit
organizations and counterterrorism. 148
In response to the UNSR’s Resource Report, a group of thirteen African states responded,
“It is the responsibility of governments to ensure that the origin and destination of
associations’ funds are not used for terrorist purposes or directed towards activities which
encourage incitement to hatred and violence.” 149
In 2013, a Sri Lankan government representative similarly stated, “While w e agree that
access to resources is important for the vibrant functioning of civil society, we observe
that Mr. Kiai does not seem to adequately take into account the negative impact of lack of
or insufficient regulation of funding of associations on natio nal security and counter –
In a National Security Analysis released in August 2014, Sri Lanka’s Ministry of
Defence claimed that some civil society actors have links with the Liberation Tigers of
Tamil Eelam, a group with “extremist separatist i deology,” and that these CSOs thereby
pose “a major national security threat.” 151 During the same period, the Sri Lankan
government announced that it was drafting a law requiring CSOs to register with the
Ministry of Defence in order to have a bank account and receive international funding.
5. Hybrid Justifications
While these categories and examples represent the types of justifications offered by
governments for restricting foreign funding, in practice, official statements often combine
multiple justifications. A recent example is the statement made at the UN Human Rights Council
by India on behalf of itself and twenty other “like minded” states, including Cuba, Saudi
147 “Non -Profit Organisations,” British Virg in Islands Financial Investigation Agency, accessed September
9, 2014, http://www.bvifia.org/non -profit -organisations .
148 Charity & Security Network, “How the FATF Is Used to Justify Laws That H arm Civil Society,
Freedom of Association and Expression,” May 16, 2013,
149 UN Office of the High Commissioner for Human Rights, “Oral Statement — Gabon on behalf of the
African Group,” 30 May 2013, accessed September 9, 2014,
150 UN Office of the High Co mmissioner for Human Rights, “23rd Session of the HRC Statement by Sri
Lanka —Item 3: Clustered ID with the SR on the rights to peaceful assembly & of association,” May 31, 2013,
accessed September 9, 2014,
umber=12.0&MeetingDat e=Friday,%2031%20May%202013 .
151 Gotabaya Rajapaksa, “Sri Lanka’s National Security,” Ministry of Defence and Urban Development of
Sri Lanka, August 19, 2014, accessed September 9, 2014,
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Arabia , Belarus, China, and Vietnam ,152 which weaves together a number of different
justifications, including foreign interference, accountability, and national security:
[C]ivil society cannot function effectively and efficiently without defined
limits…. Civil society must also learn to protect its own space by guarding against
machinations of donor groups guided by extreme ideologies laden with hidden
politicized motives, which if allowed could potentially bring disrepute to the civil
society space…. There have also been those civil society organizations, who have
digressed from their original purpose and indulged in the pursuit of donor -driven
agendas. It is important to ensure accountability and responsibility for their
actions and the consequences thereof and also guard against compromising
national and international security. 153
Similarly, Ethiopia, in its statement in response to the UNSR’s Resource R eport,
referenced justifications relating to state sovereignty, aid coordination, and accountability and
It is our firm belief that associations will play their role in the overall
development of the country and advance their objectives, if a nd only if an
environment for the growth of transparent, members based and members driven
civil society groups in Ethiopia providing for accountability and predictability is
put in place. We are concerned that the abovementioned assertion [about
lightening the burdens to receive donor funding] by the special rapporteur
undermines the principle of sovereignty which we have always been guided by. 154
Similarly constructed statements have also been put forward by Pakistan and other states. 155
152 The “Like Minded Group” consisted of Algeria, Bahrain, Bangladesh, Belarus, China, Cuba, Egypt,
India, Indonesia, Malaysia, Pakistan, Russia, Saudi Arabia, Singapore, South Africa, Sri Lanka, Sudan, Uganda,
UAE, Vietnam, and Zimbabwe. UN Office of the Hig h Commissioner for Human Rights, “Joint Statement: India on
behalf of like -minded countries,” March 11, 2014, accessed September 9, 2014,
154 UN Office of the High Commissioner for Human Rights, “Oral Statement: Ethiopia,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Et hiopia_12.pdf .
155 See, e.g., UN Office of the High Commissioner for Human Rights, “Statement by Pakistan on Behalf of
OIC: Panel Discussion on Civil Society Space,” March 11, 2014, accessed September 9, 2014,
ehalf%20of%20OIC_PD_21.pdf : “By virtue of its dynamic role civil society is well poised to build convergences
with the view to develop synergies between state institutions and their own networks. These synergies would
facilitate proper utilization of resources at the disposal state institutions an d civil society actors. In this regard, it
may be underscored that securing funding for its crucial work is the right of civil society, maintaining transparency
and necessary regulation of funding is the responsibility of states…. Within this social space, the civil society can
play its optimal role by working in collaboration with state institutions. Better coordination between civil society
actors and state institution [sic] would also facilitate enhancement of international cooperation in the field of hu man
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In this section, the a rticle briefly surveyed justifications presented by governments to
constrain the inflow of international funding, including philanthropy. In the following section,
we analyze constraints and their justifications under international law.
International Legal Framework
1. International Norms Protecting Access to Resources and Cross -Border Philanthropy
Article 22 of the International Covenant on Civil and Political Rights (ICCPR) states,
“Everyone shall have the right to freedom of association with others….” 156 Acco rding to the
The right to freedom of association not only includes the ability of individuals or legal
entities to form and join an association 158 but also to seek, receive and use resources 159 —
human, material and financial — from domestic, foreign and in ternational sources. 160
The United Nations Declaration on Human Rights Defenders 161 similarly states that
access to resources is a self -standing right:
“[E]veryone has the right, individually and in association with others, to solicit, receive
and utilize reso urces for the express purpose of promoting and protecting human rights
and fundamental freedoms through peaceful means….” 162
According to the Office of the United Nations High Commissioner for Human Rights, this right
specifically encompasses “the receipt of funds from abroad.” 163
156 United Nations International Covenant on Civil and Political Rights, Article 22, December 16, 1966,
157 While reports of the UNSR are not binding international law, his reports are referenced here because
they provide a comprehensive articulation and explanation of international law.
158 International law generally recognizes the freedom of association, and t his section follows that
formulation. Addressing the applicability of international law to non -membership organizations is beyond the scope
of this article, but for more information, please see: International Center for Not -for -Profit Law & World Movement
for Democracy Secretariat, “Defending Civil Society Report, Second Edition,” June 2012, 35,
http://www.icnl.org/research/resources/dcs/DCS_Report_Second_Editi on_English.pdf .
159 The UNSR defines “resources” as a broad concept that includes financial transfers (e.g., donations,
grants, contracts, sponsorship, and social investments), loan guarantees, in -kind donations, and other forms of
support. See United Nation s Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 10, UN Doc. A/HRC/23/39 (April 24, 2013) at
http://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
160 Ibid., para. 8.
161 The UNSR notes that while “the Declaration is not a binding instrument, it must be recalled tha t it was
adopted by consensus of the General Assembly and contains a series of principles and rights that are based on
human rights standards enshrined in other international instruments which are legally binding. Ibid., para. 17.
162 United Nations General Assembly, Declaration on the Right and Responsibility of Individuals, Groups
and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms ,
UN Res. 53/144, Article 13, http://www.un.org/Docs/asp/ws.asp?m=A/RES/53/144 .
163 United Nations Office of the High Commissioner for Human Rights, “Declaration on Human Rights
Defenders,” UN OHCHR, accessed September 9, 2014,
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 31
Reinforcing this position, 164 in 2013 the United Nations Human Rights Council passed
resolution 22/6, which calls upon on States “[t]o ensure that they do not discriminatorily impose
restrictions on potential sources of funding aimed at supporting the work of human rights
defenders,” and “no law should criminalize or delegitimize activities in defence of human rights
on account of the origin of funding thereto.” 165
The freedom to access resources extends beyond human rights defenders. For example,
the Declaration on the Elimination of A ll Forms of Intolerance and of Discrimination Based on
Religion or Belief states that the right to freedom of thought, conscience, and religion includes
the freedom to “solicit and receive voluntary financial and other contributions from individuals
and in stitutions.” 166 Access to resources is also an integral part of a number of other civil,
cultural, economic, political, and social rights. As the UNSR states: 167
For associations promoting human rights, including economic, social and cultural rights,
or those involved in service delivery (such as disaster relief, health -care provision or
environmental protection), access to resources is important, not only to the existence of
the association itself, but also to the enjoyment of other human rights by those benef itting
from the work of the association. Hence, undue restrictions on resources available to
associations impact the enjoyment of the right to freedom of association and also
undermine civil, cultural, economic, political and social rights as a whole. 168
Acc ordingly, “funding restrictions that impede the ability of associations to pursue their statutory
activities constitute an interference with article 22” of the International Covenant on Civil and
Political Rights. 169
2. Regional and Bilateral Commitments to Pro tect Cross -Border Philanthropy
164 This article briefly examines international norms governing global philanthropy. But it also recogniz es
that there are distinct limits to the impact of international law. For example, there is often an implementation gap
between international norms and country practice. In addition, there are few binding international treaties, such as
the ICCPR, and de tails are often left to “soft law,” such as the reports of the UNSR. At the same time, there is
concern that any effort to create a new global treaty on cross -border philanthropy or foreign funding would lead to a
retrenchment of existing rights.
165 United Nations General Assembly, Protecting Human Rights Defenders, March 21, 2013, UN Human
Rights Council, Resolution 22/6, para. 9, http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC /RES/22/6 .
166 United Nations General Assembly, Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief , November 25, 1981, UN General Assembly Resolution A/RES/36/55,
Article 6(f), http://www.un.org/documents/ga/res/36/a36r055.htm .
167 In similar fashion, the UN Committee on Economic, Social and Cultural Rights recognized the link
between access to resources and economic, social and cultural rights, when it expressed “deep concern” about an
Egyptian law that “gives the Government control over the right of NGOs to manage their own activities, including
seeking external funding.” See Egypt, ICESCR, E/2001/22 (2000) 38 at paras. 161, 176,
http://www.bayefsky.com/themes/public_general_concluding -observations.php .
168 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 9, UN Doc. A/HRC/23/39 (April 24, 2013) at
http://freeassembly.net/wp -content/uploa ds/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
169 Human Rights Committee, communication No. 1274/2004, Korneenko et al. v. Belarus, Views adopted
on October 31, 2006, para. 7.2.
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While this article is focused on global norms, cross -border philanthropy is also
protected at the regional level. For example:
The Council of Europe Recommendation on the Legal Status of NGOs states:
“NGOs should be free to s olicit and receive funding — cash or in -kind donations —
not only from public bodies in their own state but also from institutional or
individual donors, another state or multilateral agencies ….” 170
According to the Inter -American Commission on Human Rights, “states should allow and
facilitate human rights organizations’ access to foreign funds in the context of
international cooperation, in transparent conditions.” 171
In May 2014, the African Commission on Human and Peoples’ Rights (ACHPR)
adopted, in draft for m, a report of the ACHPR Study Group on Freedom of Association
and Peaceful Assembly, with a specific recommendation that States’ legal regimes should
codify that associations have the right to seek and receive funds. This includes the right to
seek and re ceive funds from their own government, foreign governments, international
organizations and other entities as a part of international cooperation to which civil
society is entitled, to the same extent as governments.
The European Court of Justice (ECJ) has issued a series of important decisions about the
free flow of philanthropic capital within the European Union. 172
In addition, many jurisdictions have concluded bilateral investment treaties, which help
protect the free flow of capital across borders. Some treaties, such as the U.S. treaties with
Kazakhstan and Kyrgyzstan, expressly extend investment treaty protections to organizations not
“organized for pecuniary gain.” 173 Indeed, the letters of transmittal submitted by the White
House to the U.S. Senate sta te that these treaties are drafted to cover “charitable and non -profit
170 Council of Europe, “Recommendation CM/Rec (2007)145 of the Committ ee of Ministers to member
states on the legal status of non -governmental organisations in Europe,” adopted October 10, 2007, Article 50,
171 Inter -American Commission on Human Rights, Report on the Situation of Human Rights Defenders in
the Americas , March 7, 2006, Recommendation 19, http://www.icnl.org /research/resources/assembly/oas -human –
rights -report.pdf .
172 For more information on these decisions, see: European Foundation Center and Transnational Giving
Europe, “Taxation of Cross -Border Philanthropy in Europe After Persche and Stauffer: From landloc k to free
movement?”, European Foundation Center Report, 2014,
http://www.efc.be/programmes_services/resources/Documents/TGE -web.pdf ; European Foundation Centre, “ECJ
rules in favour of cross -border giving ,” EFC briefing, January 27, 2009, accessed September 9, 2014,
http://www.efc.be/programmes_services/resources/Documents/befc09 08.pdf .
173 U.S. -Kyrgyz Bilateral Investment Treaty, Article 1(b); U.S. -Kazakh Bilateral Investment Treaty, Article
1(b). See also Article 1(2) of the China – Germany BIT: “the term ‘investor’ means … any juridical person as well
as any commercial or other c ompany or association with or without legal personality having its seat in the territory
of the Federal Republic of Germany, irrespective of whether or not its activities are directed at profit.”
174 Letters of Transmittal available at the U.S. State Departm ent website:
http://www.state.gov/documents/organization/4 3567.pdf .
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 33
A detailed discussion of investment treaty protection for cross -border philanthropy is
beyond the scope of this article. This issue is presented in brief form, however, beca use it is a
significant avenue for further exploration, as it expands the international legal argument beyond
human rights and implicates bilateral investment treaties with binding enforcement
mechanisms. 175 For further information on this issue, please see International Investment Treaty
Protection of Not -for -Profit Organizations 176 and Protection of U.S. Non -Governmental
Organizations in Egypt under the Egypt -U.S. Bilateral Investment Treaty. 177
3. Restrictions Permitted Under International Law
Continuing the discussion of global norms, ICCPR Article 22(2) recognizes that the
freedom of association can be restricted in certain narrowly defined conditions. According to
No restrictions may be placed on the exercise of this right other than those wh ich are
prescribed by 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. 178
In other words, international law allows a government to restrict access to resources if the
(1) prescribed by law;
(2) in pursuance of one or more legitimate aims, specifically:
o national security or public safety;
o public order;
o the protection of public health or morals; or
o the protection of the rights and freedoms of others; and
175 In addition, the European Court of Human Rights has held that Article 1 of the First Protocol of the
European Convention on Human Rights protects the right to peaceful enjoyment of one’s possessions. (Article 1 of
the First Protocol of the Euro pean Convention reads: “Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to
the conditions provided for by law and by the general p rinciples of international law. The preceding provisions shall
not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure the payment o f taxes or other contributions or
penalties.” In addition, the right to property includes the right to dispose of one’s property (Clare Ovey & Robin
White, The European Convention on Human Rights , 3rd edition (Oxford: Oxford University Press, 2002)), which
would seem to embrace the right to make contributions to CSOs for lawful purposes.
176 Luke Eric Peterson & Nick Gallus, “International Investment Treaty Protection of Not -for -Profit
Organizations,” International Journal of Not -for -Profit Law 10(1) (December 2007),
177 Nick Gallus, “Protection of U.S. Non -Governmental Organizations in Egypt under the Egypt -U.S.
Bilat eral Investment Treaty,” International Journal of Not -for -Profit Law 14(3) (September 2012),
178 United Nations International Covenant on Civil and Political Rights, Article 22, December 16, 1966,
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx . Article 22, ICCPR
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 34
(3) “necessary in a democratic society to achieve those aims.” 179
States should always be guided by the principle that the restrictions must not im pair the
essence of the right … the relations between right and restriction, between norm and
exception, must not be reversed. 180
The burden of proof is on the government. 181 In addition:
When a State party invokes a legitimate ground for restriction of freed om of expression,
it must demonstrate in specific and individualized fashion the precise nature of the threat,
and the necessity and proportionality of the specific action taken, in particular by
establishing a direct and immediate connection between the [ activity at issue] and the
The following section amplifies this three -part test contained in Article 22(2).
A. Prescribed by law
The first prong requires a restriction to have a formal basis in law. This means that:
restrictions on the right to free dom of association are only valid if they had been
introduced by law (through an act of Parliament or an equivalent unwritten norm of
common law), and are not permissible if introduced through Government decrees or other
similar administrative orders. 183
As discussed above, in July 2014, the Sri Lankan Department of External Resources of
the Ministry of Finance and Planning disseminated a notice to the public, declaring that any
organization or individual undertaking a project with foreign aid must have appro val from
relevant government agencies. Similarly, in July 2014, Nepal’s government released a new
Development Cooperation Policy that will require development partners to channel all
development cooperation through the Ministry of Finance, rather than directly to civil society. In
both cases, the restriction s were based on executive action and not “introduced by law (through
179 Case of Vona v. Hungary (A pp no 35943/10) (2013) ECHR para. 50,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -122183 .
180 United Nations Human Rights Council, Report of the Special Rappo rteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 16, UN Doc. A/HRC/20/27 (May 21, 2012),
http://www.ohchr .org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A -HRC -20 -27_en.pdf .
181 UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 15, Civil and
Political Rights: The Human Rights Committee, May 2005,
182 United Nations Human Rights Committee, General Comment No. 34, para. 35, UN Doc.
CCPR/C/GC/34 (September 12, 2011), http://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf .
183 See UN Special Rapporteur on the situation of human rights defenders, Commentary to the Declaration
on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Fre edoms, July 2011, 44,
http://www.ohchr.org/Documents/Issues/Defenders/CommentarytoDeclarationondefendersJuly2011.pdf : “It would
seem reasonable t o presume that an interference is only “prescribed by law” if it derives from any duly promulgated
law, regulation, order, or decision of an adjudicative body. By contrast, acts by governmental officials that are ultra
vires would seem not to be ‘prescribe d by law,’ at least if they are invalid as a result.”
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 35
an act of Parliament or an equivalent unwritten norm of common law).” Accordingly, they
appear to violate the “prescribed by law” standard required under Article 22(2) of the ICCPR.
This prong of Article 22(2) also requires that a provision be sufficiently precise for an
individual or NGO to understand whether or not intended conduct would constitute a violation of
law. 184 As stated in the Johannesburg Principles, “The law must be accessible , unambiguous,
drawn narrowly and with precision so as to enable individuals to foresee whether a particular
action is unlawful.” 185
This prong helps limit the scope of permissible restrictions. As discussed above, certain
laws ban funding of organizations that cause “social anxiety,” have a “political nature,” or have
“implied ideological conditions.” These terms are undefined and provide little guidance to
individuals or organizations about prohibited conduct. Since they are not “unambiguous, drawn
narrowl y and with precision so as to enable individuals to foresee whether a particular action is
unlawful,” there is a reasonable argument that these sorts of vague restrictions fail the
“prescribed by law” requirements of international law.
B. Legitimate aim
The second prong of Article 22(2) requires that a restriction advance one or more
“legitimate aims,” 186 namely:
national security or public safety;
the protection of public health or morals; or
the protection of the rights and freedoms of others.
This prong provides a useful lens to analyze various justifications for constraint. For
example, governments have justified constraints to promote “aid effectiveness.” As the UNSR
notes, aid effectiveness “is not listed as a legitimate ground for restricti ons.” 187 Similarly, “[t]he
protection of State sovereignty is not listed as a legitimate interest in the [ICCPR],” and “States
cannot refer to additional grounds … to restrict the right to freedom of association.” 188
Of course, assertions of national security or public safety may, in certain circumstances,
constitute a legitimate interest. Under the Siracusa Principles, however, assertions of national
security must be construed restrictively “to justify measures limiting certain rights only when
184 Though not a fully precise comparison, this concept is somewhat similar to the “void for vagueness”
doctrine in U.S. constitutional law.
185 Article 19, Johannesburg Principles on National Security, Fre edom of Expression and Access to
Information (London: Article 19, 1996), Principle 1.1(a),
http://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf . The Johannesburg Principles were
developed by a meeting of international experts at a consultation in South Africa in October 1995.
186 Case of Vona v. Hungary (App no 35943/10) (2013) ECHR para. 50,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -122183 .
187 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 40, UN Doc . A/HRC/23/39 (April 24, 2013) at
http://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
188 Ibid., pa ra. 30.
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they are taken to protect the existence of the nation or its territorial integrity or political
independence against force or threat of force.” 189 In addition, a state may not use “ national
security as a justification for measures aimed at suppressing opposition … or at perpetrating
repressive practices against its population.” 190 This includes defaming or stigmatizing foreign
funded groups by accusing them of “treason” or “promoting regime change.” 191
Accordingly, under international law, governments cannot rely on generalized claims of
“state sovereignty” to justify constraints on global philanthropy. In the words of the UNSR:
Affirming that national security is threatened when an association receives funding from
foreign sources is not only spurious and distorted, but also in contradiction with
international human rights law. 192
This brief analysis is not intended to explore the details of the aid effectiveness and
sovereignty justifications. Rather, the goal is to illustrate how the “legitimate aim” requirement
of in ternational law can help inform the analysis of certain justifications presented by
governments, such as arguments based on “aid effectiveness” and “sovereignty.”
C. Necessary in a Democratic Society
Even if a government is able to articulate a legitimate aim , a restriction violates
international law unless it is “necessary in a democratic society.” As stated by the Organization
for Security and Co -operation in Europe, the reference to necessity does not have “the flexibility
of terms such as ‘useful’ or ‘conv enient’: instead, the term means that there must be a ‘pressing
social need’ for the interference.” 193 Specifically, “where such restrictions are made, States must
demonstrate their necessity and only take such measures as are proportionate to the pursuance of
legitimate aims in order to ensure continuous and effective protection of Covenant rights.” 194
As stated by the UNSR:
In order to meet the proportionality and necessity test, restrictive measures must be the
least intrusive means to achieve the desired ob jective and be limited to the associations
189 See the “Siracusa Principles” [United Nations, Economic and Social Council, U.N. Sub -Commission on
Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of
Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1985/4 (1984)],
which were adopted in May 1984 by a group of international human rights experts convened by the International
Commission of Jurists, the International Association of Penal Law, th e American Association for the International
Commission of Jurists, the Urban Morgan Institute for Human Rights, and the International Institute of Higher
Studies in Criminal Sciences. Though not legally binding, these principles provide an authoritative s ource of
interpretation of the ICCPR with regard to limitations clauses and issue of derogation in a public emergency. They
are available at: http://graduateinstitute.ch/f aculty/clapham/hrdoc/docs/siracusa.html .
191 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 27, UN Doc. A/HRC/23/39 (April 24, 2013) at
http://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
192 Ibid., para. 30
193 OSCE/Office for Democratic Institutions and Human Rights (ODIHR), Key Guiding Principles of
Freedom of Association with an Emphasis on Non -Governmental Organizations , para. 5
194 United Nations Human Rights Committee, General Comment No. 31 (2004), para. 6, UN Doc.
CCPR/C/21/Rev.1/Ad d. 13, May 26, 2004.
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falling within the clearly identified aspects characterizing terrorism only. They must not
target all civil society associations…. 195
Consider, for example, Ethiopian legislation imposing a 10 percent cap on the for eign
funding of all CSOs promoting a variety of objectives, including women’s rights and disability
rights. As discussed above, Ethiopia has asserted a counterterrorism rationale to justify foreign
funding constraints. Ethiopia does not establish a “ direct and immediate connection between the
[activity at issue] and the threat.” 196 In addition, the cap is not the “least intrusive means to
achieve the desired objective and … limited to the associations falling within the clearly
identified aspects characterizi ng terrorism.” Accordingly, the counterterrorism objective fails to
justify the Ethiopian cap on foreign funding.
The UNSR also applied this test to the “aid effectiveness” justification. In response, he
even if the restriction were to purs ue a legitimate objective, it would not comply with the
requirements of “a democratic society.” In particular, deliberate misinterpretations by
Governments of ownership or harmonization principles to require associations to align
themselves with Government s’ priorities contradict one of the most important aspects of
freedom of association, namely that individuals can freely associate for any legal
In addition, “longstanding jurisprudence asserts that democratic societies only exist
where ‘pluralis m, tolerance and broadmindedness’ are in place,” 198 and “minority or dissenting
views or beliefs are respected.” 199
Applying this test, the UNSR has note