Freedom of Assembly and International Funding

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International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 5

A DIFFERENCE IN APPROACH: COMPARING THE US FOREIGN AGENTS REGISTRATION ACT
WITH OTHER LAWS TARGETING INTERNATIONALLY FUNDED CIVIL SOCIETY

SAMANTHA LAUFER1

I. Introduction
Over the last decade, several countries have drafted legislation that targets civil society
organizations that receive international funding. Governments have justified the enactment of
these laws by claiming that they are based on the United States Foreign Agents Registration Act
(FARA).2

This article will address the ways in which FARA differs from legislation drafted in other
countries. The article is not intended to be a comprehensive analysis or defense of FARA.
Rather, governments targeting internationally funded civil society organizations (CSOs) often
claim they have modeled their legislation on FARA, and this paper discusses critically important
differences in approach.

II. Background
The Foreign Agents Registration Act (FARA)3 was enacted in 1938 in response to the
proliferation of German propaganda prior to World War II.4
The stated purpose of the Act was to
ensure that government officials and citizens would be aware of the identity of those “engaging
in political activities for or on behalf of foreign governments, foreign political parties, or other
foreign principals, so that their statements and activities could be appraised in the light of their

1
Samantha Laufer is a 2018 J.D. candidate at Georgetown University Law Center and an intern at the
International Center for Not-For-Profit Law (ICNL). The author thanks Douglas Rutzen and the staff of ICNL for
their guidance and support.
2
In 2012, in response to criticism over Russia’s foreign agents law, President Vladimir Putin said, “I
believe that in Russia we can have a law similar to that adopted in the United States . . . why can we not do the same
in Russia?” In 2014, while defending the Kyrgyz foreign agents law, President Almazbek Atambayev argued that
“the terminology [foreign agent] was first introduced in America…the first of such laws was adopted in the cradle of
democracy – the USA.” Most recently, in 2016 Israel’s Minister of Justice Ayelet Shaked wrote an Op-Ed in which
she likened the Israeli NGO transparency law to the “similar” U.S. FARA. (See NGO law protects Russia from
foreign influence – Putin, RT, July 31, 2012, https://www.rt.com/politics/putin-seliger-forum-power-496/;
International Center for Not-for Profit Law, Analysis of the draft law of the Kyrgyz Republic on Making Additions
and Amendments to Certain Legislative Acts in of the Kyrgyz Republic, https://peremena.kg/wpcontent/uploads/2015/06/Analysis-of-ICNL-on-KG-draft-law-on-foreign-agents-eng_30-May.pdf; Ayelet Shaked,
Opinion, Ayelet Shaked Defends Her NGO Bill, JEWISH TELEGRAPHIC AGENCY, Jan. 4, 2016,

Op-Ed: Ayelet Shaked defends her NGO bill


3
Foreign Agents Registration Act of 1938 (“FARA”), 22 U.S.C.A. §611 – §621.
4 FARA Frequently Asked Questions, U.S. DEP’T OF JUSTICE, NAT. SEC. DIV., https://www.fara.gov/farafaq.html (last visited Oct. 16, 2016).
International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 6
associations.”5
FARA requires persons in the United States acting as agents of foreign principals
and engaging in political activities to register with the Department of Justice and disclose
information in connection with those activities.
In recent years, countries have proposed or enacted laws targeting internationally funded
CSOs, asserting that the legislation is similar to FARA.6

Examples of these laws include the
following:

 Russia: In July 2012, the Russian government amended its Law on Noncommercial
Organizations (NCOs)7
to require that any NCO that receives international funding and
also engages in broadly defined “political activities” be labeled a “foreign agent” and
submit to stringent reporting and disclosure requirements. As of August 1, 2016, 137
groups were labeled “foreign agents” and at least 22 NCOs had shut down as a result of
the law.8

 Ukraine: In 2014, the Yanukovych regime passed the Law on Organizations Receiving
Funding from Abroad,9
though the law was never enacted or implemented. Similar to the
Russian NCO law, the bill required nonprofit groups that receive international funding
and engage in political activities to register as foreign agents and be subject to
burdensome reporting requirements. The law also targeted the mass media and internet
providers.

 Kyrgyzstan: In 2014, a draft law was introduced in the Kyrgyz Parliament that would
have amended the Law on Noncommercial Organizations by placing restrictions on
organizations that received funding from abroad and labeling such organizations as
“foreign agents.”10 The original draft of the law was identical to the Russian NCO law. In
May 2016, the Kyrgyz Parliament voted down the draft law.

 Israel: On July 11, 2016, the Israeli Knesset passed the Transparency Requirements for
Parties Supported by Foreign State Entities Bill,11 which imposes enhanced disclosure
burdens on CSOs that receive over 50 percent of their funding from certain foreign
sources. The law applies exclusively to nonprofit groups that receive funding from
public—as opposed to both public and private—foreign sources. Of the 27 groups
affected by this legislation, 25 are Palestinian human rights groups.12

5 U.S. DEP’T OF JUSTICE, REPORT OF THE ATTY GEN. TO THE CONGRESS OF THE U.S. ON THE ADMIN. OF THE
FOREIGN AGENTS REGISTRATION ACT OF 1938, AS AMENDED, FOR THE SIX MONTHS ENDING JUNE 30, 2006 I – 2
(2007), https://www.fara.gov/reports/June30-2006.pdf.
6
See footnote 2.
7 Government of Russia, Amended Law on Noncommercial Organizations, 2016.
8
See Russian Ministry of Justice Registry of Foreign Agents,
https://unro.minjust.ru/NKOForeignAgent.aspx.
9 Government of Ukraine, Law on Organizations Receiving Funding from Abroad, 2014.
10 Government of Kyrgyzstan, Draft Law Amending the Law on Noncommercial Organizations, 2013.
11 Government of Israel, Transparency Requirements for Parties Supported by Foreign State Entities Bill,
2016.
12 Zena Tahhan, Israel passes controversial NGO bill amid criticism, Al Jazeera, July 12, 2016,
https://www.aljazeera.com/news/2016/07/israel-passes-controversial-ngo-bill-criticism-160712071408073.html.
International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 7
 Slovakia: At the time of writing, a “foreign agents” bill is pending in the Slovak
Parliament, requiring organizations covered by the bill to state on their educational and
informational materials “Warning! Foreign Agent.”13

III. Distinguishing Features of FARA
Three important features of FARA differentiate it from other laws targeting
internationally funded CSOs: (1) FARA requires an agent-principal relationship; (2) FARA
contains numerous exemptions to its application; and (3) FARA does not specifically target
CSOs.

1. FARA requires a principal-agent relationship
FARA requires the registration of any person or entity engaged in political activities and
acting as an agent of a foreign principal. The Act defines “agent of a foreign principal” as “any
person who acts as an agent, representative, employee, or servant, or any person who acts in any
other capacity at the order, request, or under the direction or control, of a foreign principal.”14 A
foreign principal includes any foreign government, foreign political party, non-U.S. person or
organization, or entities organized under the laws of other countries or having their primary place
of business outside the U.S.15

The meaning of “agent of a foreign principal” under FARA has been interpreted with
reference to the common law definition of agency.16 Under this definition, a principal-agent
relationship is created when an agent “acts as a representative of or otherwise on behalf of
another person” and where “[t]he person represented has a right to control the actions of the
agent.”17 This element of control is fundamental to the principal-agent relationship under FARA,
and the principal must “ha[ve] the right throughout the duration of the relationship to control the
agent’s acts.”18

In the Restatement (Third) of Agency, the American Law Institute provides examples of
relationships and circumstances that fall under this definition:
The elements of common-law agency are present in the relationships between employer
and employee, corporation and officer, client and lawyer, and partnership and general
partner. People often retain agents to perform specific services. Common real-estate
transactions, for example, involve the use of agents by buyers, sellers, lessors, and

13 See National Council on the Slovak Republic, Proposal to Amend Law No. 213/1997, available at
https://www.nrsr.sk/web/Default.aspx?sid=zakony/zakon&MasterID=6083. See also https://dennikn.sk/470467/ficoposkytol-rozhovor-tasr-bojovali-mimovladnym-sektorom-ktory-bol-casto-dotovany-financovany-zozahranicia/?ref=tit?ref=in
14 Foreign Agents Registration Act of 1938 (“FARA”), 22 U.S.C.A. §611(c)(1).
15 22 U.S.C.A. §611(b)(1)-(3).
16 See United States v. German-American Vocational League, 153 F.2d 860, 864 (3d Cir. 1946).
17 Restatement (Third) Of Agency § 1.01 (c) (2006).
18 Id. It is not enough to argue that dominance or influence over one party in itself create a principal-agent
relationship. Rather, a principal-agent relationship is created only when the principal “has a right of control, not
simply an ability to bring influence to bear.” Restatement (Third) Of Agency § 1.01 (c) (2006).
International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 8
lessees. Authors, performers, and athletes often retain specialized agents to represent their
interests in dealing with third parties.19

As demonstrated by these examples, a principal-agent relationship requires one party to
act as a representative of or on behalf of another party, as we find with a lawyer and client or a
real estate agent and home buyer. In addition, the principal has the right to control the actions of
the agent throughout the duration of the relationship.

A principal-agent relationship is not created simply because one party agrees to provide
funding to a second party. This is true even if “the agreement between the service provider and
the recipient specifies terms and conditions creating contractual obligations that, if enforceable,
prescribe or delimit the choices that the service provider has the right to make.”20
Under FARA, the fact that a CSO receives international funding does not automatically
mean that it must register, even if the organization engages in “political activities.” Rather,
FARA requires that the entity act “at the order, request, or under the direction or control, of a
foreign principal.”21 Congress clarified this point 50 years ago when it amended the law’s
definition of “agent of a foreign principal” in order to “make clear that the mere receipt of a bona
fide subsidy not subjecting the recipient to the direction or control of the donor does not require
the recipient of the subsidy to register as an agent of the donor.”22 In sum, FARA’s registration
requirements are not triggered simply because a politically active organization also receives
international funding.

By contrast, other laws disregard FARA’s requirement that the entity act “at the order,
request, or under the direction or control, of a foreign principal.” For example, the Russian
“foreign agents” law applies if a CSO receives international funding (in any amount) and
engages in broadly defined “political activities,” even if there is no connection between the
international funding and the political activities. For example, if a Russian nonprofit helping
orphans received US$1,000 from an international source to buy cribs and baby food, and also
received funding from Russian citizens to advocate for a change in Russia’s child protection
laws, the nonprofit would have to register as a “foreign agent” even though there was no
connection between the international funding and the organization’s advocacy activities.
The same is true in other legislation. Neither the law adopted by the Yanukovych regime
in Ukraine nor the bill proposed in Kyrgyzstan required a connection between the international
funder and the CSO’s “political activities.” Similarly, the new Israeli NGO transparency law
applies to any CSO that receives 50 percent or more of its funding from foreign governments or

19 Restatement (Third) Of Agency § 1.01 (Comment c) (2006).
20 Restatement (Third) Of Agency § 1.01 (f)(1) (2006).
21 When seeking out potential registrants, the DOJ FARA Registration Unit “looks for direction, control,
and tasking from a foreign government.” DEP’T OF JUSTICE, OFFICE OF THE INSPECTOR GEN., AUDIT OF THE NAT’L
SEC. DIV’S ENFORCEMENT AND ADMIN. OF THE FOREIGN AGENTS REGISTRATION ACT iii (2016) [hereinafter FARA
AUDIT 2016], https://oig.justice.gov/reports/2016/a1624.pdf.
22 H.R. Rep. No. 89-1470, at 2401 (1966). In September 2016 the Department of Justice’s Office of the
Inspector General (OIG) again clarified this point when it released a review of the FARA Unit’s enforcement of
FARA. The report stated that activities carried out by certain CSOs that receive international funding—for example,
think tanks, non-governmental organizations, and universities—have not been required by the FARA Unit to
register, despite the receipt of international funds, because they “generally claim that they act independently of
foreign control or are not serving a foreign interest.” FARA AUDIT 2016, supra note 21.
International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 9
political parties.23 In sum, these laws claim to be modeled after FARA, but they do not require a
principal-agent relationship or even any connection between the international funder and the
CSO’s advocacy activities.
2. FARA Contains Exemptions for Various Activities and Actors
FARA contains exemptions relevant to the nonprofit sector. First, FARA does not apply
to entities engaged in purely religious, scholastic, academic, or scientific pursuits, or the fine
arts.24 It also includes an exemption for entities engaged in the solicitation or collection of funds
for medical aid or “for food and clothing to relieve human suffering.”25

FARA also contains an exemption for lawyers representing foreign principals in litigation
or agency proceedings, so long as “representation does not include attempts to influence or
persuade agency personnel or officials other than in the course of [legal] proceedings.…”26 Such
an exemption does not exist in the foreign agents laws drafted in other countries. In fact, Russia
has labeled numerous legal service providers as “foreign agents,” including organizations
providing legal aid to migrant populations and victims of discrimination and homophobia.27
Some of the foreign laws contain no exemptions. The Israeli NGO transparency law, for
example, applies to all CSOs that receive public international funding. Other laws, such as the
Russian foreign agents law, do contain statutory exemptions,28 though it is unclear how these
exemptions are applied in practice. For example, despite excluding the “protection of flora and
fauna” from its definition of “political activities,” numerous environmental groups in Russia
have been targeted as foreign agents.29 Or, despite exempting groups that provide “social support
and protection of citizens,” the Russian government has labeled the Committee Against Torture
and the Anti-Discrimination Center as foreign agents.

3. FARA does not specifically target CSOs
FARA does not specifically target CSOs, but is geared much more broadly toward
regulating those “acting for or in the interest of foreign principals where their activities are
political in nature” so that government officials and the public “can appraise their statements and

23 Government of Israel, Transparency Requirements for Parties Supported by Foreign State Entities Bill,
2016.
24 22 U.S.C.A. §613(e).
25 22 U.S.C.A. §613(d).
26 22 U.S.C.A. §613(g).
27 Russia: Government vs. Human Rights Groups, Human Rights Watch, (Oct. 12, 2016),
https://www.hrw.org/russia-government-against-rights-groups-battle-chronicle.
28 The Russian law exempts from the definition of “political activities” anything “in the sphere of science,
culture, art, healthcare, prevention and protection of public health, social maintenance, social support and protection
of citizens, protection of motherhood and childhood, social support of persons with disabilities, propaganda of
healthy lifestyle, physical culture and sports, protection of flora and fauna, charitable activities.” Government of
Russia, Amended Law on Noncommercial Organizations, 2016.
29 Government of Russia, Amended Law on Noncommercial Organizations, 2016; Russia: Government vs.
Human Rights Groups, Human Rights Watch (Oct. 12, 2016), https://www.hrw.org/russia-government-againstrights-groups-battle-chronicle; Russia: Harsh toll of “Foreign Agents” Law, Human Rights Watch (June 25, 2014),
https://www.hrw.org/news/2013/06/25/russia-harsh-toll-foreign-agents-law.

The vast majority of those registered under FARA are law firms,
lobbying firms, public relations firms, and tourism agencies.31 Though there may be particular
instances where a CSO must register as an agent of a foreign principal (if, for example, that
organization is lobbying for a foreign interest and is under the direct control of a foreign
government), FARA is not specifically aimed at CSOs. In essence, FARA is intended to regulate
a specific type of activity rather than a specific group of actors. Moreover, “the Department’s
administration of the Act is not designed or intended to inhibit or discourage the expression of
political views in any way,”32 and FARA is almost never applied to CSOs.33
By contrast, the laws that have been drafted in other countries apply exclusively to CSOs
and not to other entities that might engage in lobbying activities. These initiatives are typically
justified as necessary for promoting transparency and accountability in the political sphere,34
though the laws do not attempt to broadly regulate the political activities of business or other
actors. Further, many of these laws target a subset of civil society, particularly those CSOs that
undertake activities disfavored by the government. The Israeli law, for example, requires
registration of organizations that receive funding from foreign public sources but not those
funded by private sources. In a list released by the Israeli government of CSOs impacted by the
law, as noted above, 25 of the 27 are human rights groups that support Palestinian causes.35
The Russian law also specifically targets civil society. It applies to groups that receive
any amount of public or private international funding, no matter how small a percentage of the
group’s overall budget. As of August 2016, 137 NCOs had been forced to register as foreign
agents and 22 NGOs had shut down as a result of the law.36

Russia’s unique historical and political context has also amplified the negative impact of
these laws: in Russia the term “foreign agent” is synonymous with “foreign spy.” Some groups
have voluntarily dissolved to avoid the stigma that comes with such a designation.37

30 1966 U.S.C.C.A.N. 2397, 2401; Letter from Peter J. Kadzik, Assistant Attorney General, to Charles E.
Grassley, Chairman of the Committee on the Judiciary (May 21, 2015) [hereinafter Kadzik Letter],
https://www.grassley.senate.gov/sites/default/files/judiciary/upload/2015-05-
22%20DOJ%20to%20CEG%20(Blumenthal%20and%20Kornblum%20FARA).pdf.
31 See U.S. DEP’T OF JUSTICE, REPORT OF THE ATTY GEN. TO THE CONGRESS OF THE U.S. ON THE ADMIN. OF
THE FOREIGN AGENTS REGISTRATION ACT OF 1938, AS AMENDED, FOR THE SIX MONTHS ENDING JUNE 30, 2015
(2016) [hereinafter REPORT ON FARA ADMINISTRATION 2015], https://www.fara.gov/reports/FARA_JUN_2015.pdf.
32 Kadzik Letter, supra note 30.
33 See REPORT ON FARA ADMINISTRATION 2015, supra note 31.
34 Opinion on Federal Law N. 121-FZ On Non-Commercial Organisations (“Law on Foreign Agents”), On
Federal Laws N. 18-FZ and N. 147-FZ, Venice Commission, Ninth Plenary Session, June 13-14, 2014.
35 See Zena Tahhan, Israel passes controversial NGO bill amid criticism, Al Jazeera, July 12, 2016,
https://www.aljazeera.com/news/2016/07/israel-passes-controversial-ngo-bill-criticism-160712071408073.html.
36 See Russian Ministry of Justice Registry of Foreign Agents,
https://unro.minjust.ru/NKOForeignAgent.aspx.
37 Charles Diggs, Foreign Agents Law Has Put 33% of Russia’s NGOs Out of Business, Bellona (October
20, 2015), https://bellona.org/news/russian-human-rights-issues/russian-ngo-law/2015-10-foreign-agent-law-has-put33-percent-of-russias-ngos-out-of-business; Luhn, Alec, Russian Green Group Labeled “Foreign Agent” in
Crackdown on NGOs, Guardian (January 14, 2016),
https://www.theguardian.com/environment/2016/jan/14/russian-green-group-labelled-foreign-agent-in-crackdownon-ngos.
International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 11
In sum, by contrast to FARA, the laws of other countries specifically target civil society.

IV. Key Issues to Address When Analyzing Claims that Legislation Is Based on FARA
Considering the features of FARA addressed above, the following questions may be
useful for determining whether a foreign law is in fact similar to FARA:
 Direction and control: Is the law triggered by a principal-agent relationship, or is
registration required merely for the receipt of international funding?
 Exemptions: Does the law provide exemptions for certain activities typically
undertaken by CSOs? If so, is the definition of “political activities” so broad that it
makes such exemptions meaningless?
 Who is being targeted: Does the law apply only to CSOs? Does it target specific
sources of international funding, with disparate impact on groups advocating against
government policies?
 Context: Does the phrase “foreign agent” carry historical or linguistic stigma? In
some countries, the phrase “foreign agent” is synonymous with “foreign spy,” which
has the effect of stigmatizing the work of civil society groups that are forced to
register.

I. INTRODUCTION
Every citizen is entitled to enjoy the human rights and civil freedoms set forth in
numerous human rights instruments and protected by national and international mechanisms.
The state has three core obligations regarding human rights: namely, the obligation to
respect, to protect, and to fulfill them.

Citizens may claim their rights as they see fit while fulfilling their duties towards the
state to ensure that society functions properly. Citizen engagement can take various forms,
including voting for local political representatives, taking part in public debates, joining
associations, and initiating other forms of civil action.

Civil society organizations (CSOs) help provide citizens with the space to engage with
public authorities and participate in public life. The basic role of civil society is to serve as a
watchdog and advocate for the preservation of civil space. Every democracy needs a wellfunctioning and authoritative state, but when a country is emerging from decades of dictatorship, it usually also needs to find ways to check, monitor, and restrain the power of political leaders and state officials. In supporting the transition from dictatorship to democracy, civil society plays
a key role in promoting citizens’ political participation.

In Burundi, civil society has had extensive experience engaging with state authorities on
issues of public interest. Especially during the 2015 general elections, civil society was at the
frontline as it challenged the president’s aim to run for a controversial third term of office.
This report assesses the scope of public freedoms in Burundi during the pre-election
period in 2015. The report focuses on the right to freedom of assembly and its manifestation in
the peaceful protests that took place from late April through June 2015. The report also looks at

1 Vital Nshimirimana is a Burundian lawyer and civil society leader, one of the leading human rights
defenders. He took the lead in the struggle for the respect of the Constitution and the Arusha peace agreement. Prior
to his position as the Chair of the Burundi civil society umbrella organization FORSC, he served with the judiciary
for eight years and completed a masters in International Law and the Settlement of Disputes with the United Nations
Mandated University (UPEACE) in Costa Rica, class of 2012.
Audace Gatavu is currently a visiting scholar at University of Ottawa in the Human Rights Research and
Education Centre. He recently completed his LLM in International Human Rights Law at the University of Notre
Dame Law School. He was a research fellow at the International Center for Not-for-Profit Law in Washington, DC,
during summer 2014.

This report was compiled by Réseau des Citoyens Probes (RCP), a civil society organization working in
Burundi to promote and protect human rights, with funding from the International Center for Not-for-Profit Law.
ICNL is not responsible for the information or opinions presented in this report.
International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 13
freedoms of association and expression in Burundi and the ways in which they were violated in
the government’s response to the pre-election protests.
Work on the report has been conducted in a highly repressive environment. In compiling
information, the authors have relied largely on reports issued by domestic and international
CSOs and news organizations. The personal experiences of the authors as witnesses to the events
also informed their analysis.

The peaceful demonstrations did not happen in a vacuum. They brought to public
attention a range of important underlying issues. Many observers believe that Burundian civil
society has proved its ability to engage effectively with public authorities and citizens on critical
issues and to ensure sound outcomes.

II. POLITICAL BACKGROUND OF THE PROTESTS
1. Debate Over the Third Term of President Pierre Nkurunziza
A debate over constitutional term limits for the office of the president is taking place
today in many countries in Africa. In mid-October 2014, African citizens started an historic
movement called “Tournons la page” (“Turn the Page”), which voiced concerns over adherence
to democratic principles in countries such as Togo and Gabon, where most people have been led
by a single family during their lifetimes. The movement contends that twelve families presently
in power in Africa were in the same position during the 1990s.2
This reprehensible practice contradicts democratic principles and weakens African
institutions. U.S. president Barack Obama openly voiced his concern when he addressed the
Ghanaian parliament in 2009. “Africa does not need strongmen, it needs strong institutions,”
Obama asserted.3
The effort of President Pierre Nkurunziza to remain in power in Burundi was the main
reason behind the nationwide protests that erupted in spring 2015.4
The constitution of Burundi
limits the president to serving two terms, but a debate over a third term for President Nkurunziza
was first raised as early as 2012. At that time, Nkurunziza’s intention to run for a third term of
office was not evident to many people.5
If journalists asked him about his position on the issue,
he did not respond clearly but said merely that it was a decision to be made by the ruling party,

2 Tournons la page was initiated by 100 African and European CSOs and high-profile scholars and artists,
including Achille Mbembe, Edgar Morin, Valentin-Yves Mudimbe, Eva Joly, Bertrand Badie, Olivier de Schutter,
Pierre Rosanvallon, Abderrahmane Sissako, Monique Chemillier-Gendreau, Smockey, and Noam Chomsky. In their
statement the founders of Tournons la page assert that “twelve families in power in Africa today were in the same
position in 1990. Eight-seven percent of Gabonese and 79 percent of Togolese have known no more than one family
in the position of head of state.”
3 The White House, “Remarks by the President to the Ghanian Parliament,” July 11, 2009.
https://www.whitehouse.gov/the-press-office/remarks-president-ghanaian-parliament
4Arusha Agreement for Peace and Reconciliation in Burundi, Protocol I, Article 4(b).
https://www.issafrica.org/cdburundipeaceagreements/No%201%20arusha.pdf
5
In 2012, leading civil rights activist Pacifique Nininahazwe began to engage public authorities on the
illegality of President Nkurunziza’s third term of office. In as early as 2013, a Facebook account entitled “Non au
3ème mandat du Président Pierre Nkurunziza” (“No to a Third Term for President Pierre Nkurunziza”) was created
for the purpose of engaging the community on the issue of the third term. In a very few months the issue become a
matter of frequent discussion among key political stakeholders.

14
the Conseil National pour la Défense de la Démocratie–Front de Défense de la Démocratie
(National Council for the Defense of Democracy–Front for Defense of Democracy, or CNDD–
FDD). However, Nkurunziza often added that if the party wanted him to run again as a candidate
for president, he would respect its choice.

In 2013 the issue of a third term for Nkurunziza was raised with more force as the
government undertook a process to revise the constitution. In October the Council of Ministers
of Burundi adopted a bill of constitutional amendments. The most alarming amendment extended
the president’s term of office from two to four terms. Many observers saw this amendment as an
attempt to establish some kind of monarchy, which was especially unpalatable to Burundians
because they had fought against such a development in the last civil war.6
In general, many stakeholders, including opposition parties, CSOs, the Catholic Church, and leading political
analysts, regarded the amendment process as an attempt to produce a new constitution rather
than amend the existing one.

Yet Burundi’s current constitution is the foundation of lasting peace and democracy in
the country. It is based on the Arusha Peace and Reconciliation Agreement for Burundi, which
was signed in 2000 after lengthy negotiations and almost a decade of civil war. The conflict
began with the assassination of Melchior Ndadaye, the first democratically elected Hutu
President, in 1993. After massive massacres of the Tutsi minority and retaliatory killings of Hutu
by the then Tutsi-dominated army, a rebel movement, the CNDD, was formed in 1994. The
CNDD’s military wing, the FDD, fought the government in a violent conflict that killed
hundreds of thousands of people. International mediators eventually sought to help Burundians
find a solution to their crisis. Peace talks were initiated by several groups, including the Catholic
Community of Sant’Egidio. In 1998 negotiations were launched under the auspices of President
Julius Nyerere of Tanzania, which continued under President Nelson Mandela of South Africa
after Nyerere’s death.

On August 28, 2000, the Government of the Republic of Burundi, as the principal party,
voluntarily agreed to the Arusha Peace and Reconciliation Agreement for Burundi. Other parties
to the Arusha Peace Agreement included the National Assembly and seventeen Burundian
political parties. The Arusha Peace Agreement was sponsored and guaranteed by several
international institutions, including the African Union, the United Nations (UN), and the
European Union (EU), as well as the presidents of Kenya, Rwanda, Tanzania, and Uganda,
which are now all partner states in the East African Community (EAC).7

The parliament of Burundi incorporated the Arusha Peace Agreement into domestic
legislation with Law No. 1/017 on December 1, 2000. In 2003 the government and the CNDD–
FDD signed ceasefire agreements and committed themselves to refraining from any act or
behavior contrary to the provisions of the agreement and to respect and implement its provisions,
both in their letter and their spirit, so as to achieve reconciliation, lasting peace, security for all, a
solid democracy, and the equitable sharing of Burundi’s resources. In 2005 the core principles of
the Arusha Peace Agreement concerning democracy, human rights, rule of law, peace, and
reconciliation were incorporated into Burundi’s new constitution.

6
Following the assassination of President Ndadaye on October 21, 1993, Burundi experienced a deadly
civil war in which at least 300,000 persons died. The core causes of the civil war, which lasted for a decade,
included ethnic exclusion and the effects of the military dictatorship.
7
For more information on the East African Community, see https://www.eac.int/
International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 15
Burundians strongly believed that the Arusha Peace Agreement offered the best
foundation for rebuilding the country on the basis of constructive dialogue, with all stakeholders
engaging regularly in frank and sincere discussion on important issues. This model of consensual
democracy was designed to prevent the kind of misgovernment that in the past had led to
discrimination, human rights abuses, and social injustice.
The Arusha Peace Agreement was clearly meant to have supra-constitutional and supralegislative value. This point was set forth in an explanatory memorandum about the draft
constitution that was published in a special issue of the official journal Ubumwe on November
10, 2004. Point 3 of the memorandum states that the constitution incorporates principles set forth
in the Arusha Peace Agreement and that the latter shall always be respected and considered
above the constitution.

The constitution itself, which was adopted on March 18, 2005, emphasizes the
importance of Arusha Peace Agreement at the beginning of its preamble, which states: “We, the
Burundian people … [reaffirm] our faith in the ideal of peace, of reconciliation and of national
unity in accordance with the Agreement of Arusha for Peace and Reconciliation in Burundi of
August the 28th, 2000, and with the Agreements of Cease-Fire.”
Thus the supremacy of the Arusha Peace Agreement in the hierarchy of legal documents
of Burundi derives from the fact that the constitution mentions the agreement as its legal
foundation. Clearly, a normative text can never refer to an inferior instrument as its legal
foundation.

The unilateral effort of the government to revise the constitution of Burundi in 2013 was
therefore opposed by many stakeholders, who feared that the revision would disrupt the progress
Burundi had made in achieving peace and development since the Arusha Peace Agreement was
signed. Many people saw the nonconsensual revision of the constitution as contrary to the
philosophy of open dialogue and inclusive participation in public affairs.
In addition, many stakeholders viewed the amendment process as an effort to break
established political and ethnic balance in the distribution of power.8

The 2005 constitution provides for a quota of 60 percent Hutu and 40 percent Tutsi in the National Assembly and
stipulates that laws can be passed only when voted on by at least two-thirds of the members of
parliament (MPs), with at least two-thirds of MPs present voting in favor. The proposed
reduction in the statutory majority required to pass laws would have undermined this ethnic
balance.

Other proposed revisions to the constitution diminished the Senate’s role in appointing
candidates to high office in favor of the executive; stipulated that the prime minister must come
from the same political-ethnic background as the president; reduced the statutory majority
necessary for passing laws in the National Assembly; and suppressed the right of magistrates and
prosecutors to form and join professional unions and to strike.
Thus the amendments to the constitution proposed by the Council of Ministers in 2013
were contrary to the Arusha Peace Agreement and the constitution itself, which states: “No
procedure of revision may be retained if it infringes the national unity, the cohesion of the

8 Burundi’s population is estimated to be 85 percent Hutu, 14 percent Tutsis, and 1 percent Twa.
International Journal of Not-for-Profit Law / vol. 19, no. 1, April 2017 / 16
Burundian People, the secularity of the State, the reconciliation, the democracy or the integrity of
the territory of the Republic.”9

On March 21, 2014, the proposed amendments to the constitution failed to pass in the
National Assembly because the required quorum for the vote was lacking. This failure prompted
the ruling party to then argue that the 2005 constitution in fact allows President Nkurunziza to
run for a third term.

2. Provisions for Term Limits in the Arusha Peace Agreement and the Constitution
Both the Arusha Peace Agreement and the constitution specifically address the
president’s term of office. Article 7 (3) of Protocol II of the Arusha Peace Agreement provides
that the president of the Republic of Burundi “shall be elected for a term of five years, renewable
only once. No one may serve more than two presidential terms.” Article 96 of the Constitution of
Burundi provides that “The President of the Republic is elected by universal direct suffrage for a
mandate of five years renewable one time.” In Article 302 of the constitution, the framers
included a special section dealing with the first post-transitional period. This article states that

“Exceptionally, the first President of the Republic of the post-transition period is elected by the
[elected] National Assembly and the elected Senate meeting in Congress, with a majority of twothirds of the members. If this majority is not obtained on the first two ballots, it immediately proceeds to other ballots until a candidate obtains the suffrage equal to two-thirds of the members of the Parliament. In the case of vacancy of the first President of the Republic of the
post-transition period, his successor is elected according to the same modalities specified in the
preceding paragraph. The President elected for the first post-transition period may not dissolve
the Parliament.”

Thus the debate regarding a third term in office for Nkurunziza was refocused to address
the two main constitutional issues presented in Articles 96 and 302. Arguments in support of a
third term stress the nature of Nkurunziza’s previous terms, claiming that his first term resulted
from universal indirect suffrage rather than universal direct suffrage and therefore should not be
counted. In fact, at a celebration on the second anniversary of Nkurunziza’s accession to his
second term of office, the president of the ruling party, Pascal Nyabenda, said that the president
was still serving his first term of office since he had been elected by a universal direct suffrage
for the first time in 2010.10 However, this argument does not have credence, since Article 8 of
the constitution of Burundi describes the two types of suffrage as equal: “[Suffrage] may be
direct or indirect under the conditions specified by the law.”

Following the nomination of Nkurunziza as the ruling party’s presidential candidate on
April 25, 2015, CSOs and the opposition parties protested this move as a violation of the
constitution and the Arusha Peace Agreement. In the ensuing legal dispute, fourteen senators
lodged a case with the Constitutional Court seeking its interpretation of Articles 96 and 302 of

9 Burundi’s Constitution of 2005, Article 299.
https://www.constituteproject.org/constitution/Burundi_2005.pdf
10 The celebration was organized in Gatumba, and Nyabenda took advantage of the event indirectly to
announce the candidacy of President Nkurunziza for a third term.
17
the constitution. The Constitutional Court delivered a ruling on May 4, 2015, that confirmed that
Nkurunziza’s candidacy for a third term of office as president was constitutional.11
However, an analysis of the Constitutional Court ruling reveals certain questionable
statements. For example, the ruling contends that the use of term “exceptionally” in Article 302
reflects a certain fuzziness in the intention of the constitution’s makers, which does not seem to
be the case. The court’s decision also contains many fundamental contradictions. In its reasoning
the court recognizes in several places that the Arusha Peace Agreement is the true, compulsory,
and indispensable source of the 2005 constitution; that the agreement constitutes the basis of the
constitution; and that whoever violates the principles of the agreement cannot claim to respect
the constitution. However, the ruling also recognizes the president’s right to renew his mandate
for a third term, in clear violation of the Arusha Peace Agreement, which states, “She/he [i.e., the
president] shall be elected for a term of five years, renewable only once. No one may serve more
than two presidential terms.”12

Finally, in its ruling the court fails specifically to discuss election modalities and the
president’s term of office. It does not even refer to Articles 103 and 106 of the constitution,
which define the president’s term of office, the timing of presidential elections, and the oath the
president takes upon assuming office. Moreover, the ruling inaccurately identifies judges who
participated in the hearing on the case on May 4, 2015, including Sylvère Nimpagaritse, the vice
president of the Constitutional Court, who had already fled the country citing threats to his life.13
In an effort to resolve the controversial issue of the president’s third term of office, the
EAC deliberated on the matter and concluded that “reading Article 302 together with Article 96
of the constitution and bearing in mind Article 20 (10) of Protocol II of the Arusha Peace
Agreement, the clear intention of both the framers of the constitution and the protocol was that
the first post-transitional election of the President be held by the National Assembly and the
Senate. The word “exceptionally” in Article 302 is in reference to the mode of election…. Since
the above elections were provided in the constitution, in absence of a clause excluding President
Nkurunziza from running from 2005 to 2010, it is clear that Article 96 of the Constitution
precludes him from another term notwithstanding that his first term was not by universal direct
suffrage.”14

11 Republic of Burundi. Constitutional Court. RCCB 303. https://lawyersofafrica.org/wpcontent/uploads/2015/05/Judgment-of-Burundi-Constitutional-Court-ENGLISH-Translation.pdf . In his paper
commenting on the constitutional court ruling, Dutch academic Stef Vandengiste concludes that the ruling did
nothing to resolve either the legal or the political questions surrounding a possible third term of office. Stef
Vandengiste, “Droit et pouvoir au Burundi: un commentaire sur l’arrêt du 4 mai 2015 de la Cour Constitutionnelle
dans l’affaire RCCB 303,” May 2015. https://www.anclradc.org.za/sites/default/files/images/RCCB303%20commentaire.pdf
12 Arusha Peace Agreement for Peace and Reconciliation in Burundi, Protocol II, Chapter I, Article 7.
13 In subsequent testimony, Sylvère Nimpagaritse said that constitutional judges were threatened to the
extent that he was obliged to flee and his three colleagues “surrendered” and changed their position regarding the
case. See Iwacu, “Journal d’un juge constitutionnel,” September 14, 2015. https://www.iwacu-burundi.org/journaldun-juge-constitutionnel/

14 In the Thirteenth Emergency Summit of the East African Community on May 13, 2015, the summit
directed the secretariat to convene a meeting of attorneys general and ministers of justice and constitutional affairs
of EAC partner states to advise it on the issue pertaining to term limits within the laws of Burundi. This meeting was
held in Arusha on May 15, 2015.

III. CIVIL SPACE IN BURUNDI BEFORE THE PROTESTS
At the same time that the debate over a third term for President Nkurunziza was playing
out, civil space in Burundi was beginning to shrink. It is important to recall that the ruling party’s
attempts to amend the constitution began in the aftermath of the controversial 2010 elections.
Since that time, opposition parties and rights groups had regularly been denied the right to
assemble. For example, according to the 2014 human rights report of the U.S. Embassy in
Burundi (quoting an Amnesty International report), the authorities regularly and arbitrarily
denied groups authorization to hold meetings and demonstrations aimed at raising concerns
about political developments or the state’s accountability on human rights. The report states that
between January and September 2014, the Office of High Commissioner for Human Rights
(OHCHR) documented forty-two cases in which the government restricted the rights of peaceful
assembly and association, with opposition political parties restricted in thirty-five instances, civil
society in four, the Burundian Bar Association in two, and the journalists’ union in one.15
A further sign of shrinking civil space in Burundi was the adoption of two new laws: an
oppressive press law, which was signed by the president in June 2013; and a new law on
assemblies and public demonstrations, adopted in December 2013. These two laws created an
environment of increasingly restricted freedoms and provided the backdrop against which the
2013 amendments to the constitution were proposed.

1. New Laws on the Press and Assemblies and Public Demonstrations
In June 2013, the parliament approved Law No.1/11, amending Law No.1/025 of
November 27, 2003, which regulates the press in Burundi. The new press law was widely
criticized as regressive by several groups, including the UN, EU, Reporters Without Borders, and
journalists’ organizations.16 It included a provision likely to exclude some journalists from
working in the profession, as they were required to have special degrees in journalism.
Moreover, the law specified certain areas of public life that the media were prohibited from
covering, including issues related to national defense, public safety, state security, the local
currency, personal privacy, pretrial investigations, libel, and disparagements of the head of state.
The press law also contained a requirement for journalists to disclose their sources of
information, which is regarded by journalists’ professional organizations as the worst possible
infringement of the principle of a free press. In addition, the press law imposed huge fines on
journalists and media employers if they were found to infringe the law. In the lead-up to the
peaceful protests of 2015, some journalists were prosecuted for providing protected information
when commenting on speeches made by the ruling party.

The press law was challenged in the Constitutional Court by the CSO Maison de la
Presse (Press House).17 The court ruled that some provisions were unconstitutional.18 Another

15 United States Department of State, “Burundi 2014 Human Rights Report.”
https://photos.state.gov/libraries/burundi/323250/english/burundi-2014-hrr.pdf
16 See UN News Centre, “UN Chief ‘Regrets’ New Burundi Media Law Which May Curb Press Freedom,”
June 5, 2013. https://www.un.org/apps/news/story.asp?NewsID=45094#
17 Maison de la Presse’s mission is to strengthen the capacity of the media, professional organizations of
Burundi press; to meet the training needs; promote the flow of information and exchange between journalists and
communication professionals, promote freedom of the press, professional solidarity, pluralism and media
independence. https://www.maisondelapresse-burundi.org/presentation/

case against the law was filed with the East African Court of Justice (EACJ) by the Burundian
Journalists Union, challenging provisions left untouched by the ruling of the Constitutional
Court.19 The EACJ ruled that provisions restricting the dissemination of information on such
topics as the stability of the currency, diplomacy, and the reports of state commissions of inquiry,
as well as the obligation for journalists to reveal sources of information, violated the principles of
democracy, good governance, and the rule of law enshrined in Articles 6(d) and 7(2) of the treaty
establishing the EAC.20 The law has been amended by parliament to comply with these two
judicial decisions.

The second new law, Law No. 1/28 on Demonstrations and Assemblies, was passed in
December 2013 despite a global outcry.21 This law provides that public demonstrations and
assemblies are subject to prior declaration, including identification of members of the organizing
office, the time and date of the demonstration, its purpose, any foreseeable involvement by
others, and the intended itinerary of the procession or parade (Articles 4 and 7). In practice, the
administration uses the requirement for prior declaration to demand prior authorization for
planned events. Moreover, the law de facto bans any spontaneous assembly by making prior
declaration compulsory for any form of assembly or meeting.

Other restrictive provisions of the law include allowing the administration to use its
discretion to ban any peaceful assembly on vague grounds and making the organizers responsible
for maintaining public order during peaceful assemblies, with the threat of criminal and
administrative sanctions if they fail to do so.

2. Peaceful Protests Before April 2015
Despite the constraints imposed by the new laws on the press and assemblies and public
demonstrations, before April 2015 Burundian CSOs had gained considerable experience
mobilizing the population when human rights and public freedoms were threatened. An
important instance was civil society’s response to the arrest of veteran human rights defender
Pierre Claver Mbonimpa in May 2014. CSOs mobilized hundreds of thousands of people in the
“Vendredi vert” (“Green Friday”) campaign, which called for Mbonimpa’s release. Twenty
Vendredi vert demonstrations were organized around the country from May to September 2014.
A similar effort took place in September 2014, after the assassination of three Italian nuns
serving at the Parish Mario Guido Comforti in the Kamenge neighborhood of Bujumbura.22
News of the nuns’ deaths resulted in nationwide unrest, especially after journalists identified
senior police and intelligence officers as having organized the killings. The private radio station
African Public Radio (RPA) investigated the crime, and in an effort to silence the station’s
director, Bob Rugurika, the authorities jailed him on wrongful charges of complicity.

18 See Reporters Without Borders, “Constitutional Court Quashes Some Articles, But Not Enough,”
January 8, 2014. https://en.rsf.org/burundi-new-law-s-promulgation-sets-04-06-2013,44574.html
19 For the judgment in this case, see East Africa Court of Justice, First Instance Division at Arusha,
Reference n° 7 of 2013. https://eacj.org/wp-content/uploads/2015/05/Reference-No.7-of-2013-Final-15th-May-2c2015-Very-Final1.pdf
20 East Africa Court of Justice Burundi, Reference No. 7 of 2013.
21 For the text of the law, see https://www.justice.gov.bi/IMG/pdf/LOI.pdf
22 South World, “Burundi. Three Lives for Africa: Olga, Lucia, Bernadette.” October 1, 2014.
https://www.southworld.net/burundi-three-lives-for-africa-olga-lucia-bernadette/

The day after Rugurika was arrested, journalists and human rights activists organized the
“Mardi vert” (“Green Tuesday”) campaign, named for the color that Rugurika was wearing when
he went to prison. The campaign organizers informed the mayor of Bujumbura that they planned
to demonstrate in Rugurika’s support, but the mayor rejected the demonstration, arguing that the
demonstrators would be in contempt of court. The organizers decided to demonstrate anyway,
despite the mayor’s ban on the gathering, and several hundred people attended the demonstration
in heavy rain.

When Rugurika was released on bail on February 19, 2015, a huge spontaneous
demonstration by hundreds of thousands of people, mainly youths, took place and drew
international attention. The demonstration was widely regarded as a measure of extreme public
discontent.23

Many observers noted that from January to April 2015, the ruling party held several of its
own demonstrations while routinely prohibiting meetings and demonstrations by civil society
and the opposition and even arresting a number of people for illegally gathering. For example,
the government organized a “Hundred-Day Demonstration for Peace” after an armed attack took
place in the province of Cibitoke, northwest of Burundi, in late December 2014. In the attack,
forty-seven people were killed by the army working in partnership with Imbonerakure, the youth
group affiliated with the ruling party.24 Events under the banner of the Hundred-Day
Demonstration for Peace were supposed to take place on the last Saturday of every month, with
the first rally organized in Bujumbura on March 1, 2015. With the president, senior government
officials, and MPs participating,25 these demonstrations in effect turned into rallies for the ruling
party, the CNDD-FDD.

During the March 1, 2015, demonstration, the president and the mayor of Bujumbura
made it clear that they believed that the attack in Cibitoke was sponsored by a nonprofit
association. CSOs rejected these allegations and argued that the ruling party was merely
politicking. Other politicians made similar hate speeches, and the head of the ruling party in the
western province of Bubanza issued a document identifying the independent media and CSOs as
enemies of the ruling party and the country.

3. Civil Society Initiative “Halte au troisième mandat”
In recent times Burundian CSOs have demonstrated their commitment to engaging
peacefully with public authorities on critical issues, including good governance, human rights,
democracy, peace building, transparency, accountability, and the rule of law. CSOs typically
prioritize their areas of engagement according to key events happening on the ground. Starting in
2012, two of the most important issues for CSOs were the 2015 general elections and the
amendment of the constitution.

In 2012 the UN mission in Burundi facilitated a meeting of political stakeholders,
including the government, opposition parties, civil society, and the electoral commission, to

23 BBC News, “Burundians Celebrate as Journalist Bob Rugurika Freed.” February 19, 2015.
https://www.bbc.com/news/world-africa-31535621
24 Human Rights Watch, “Burundi: Summary Executions by Army, Police.” February 12, 2015.
https://www.hrw.org/news/2015/02/12/burundi-summary-executions-army-police
25 Iwacu, “Bujumbura: Petite grande manifestation ‘pour la paix.’” March 1, 2015. https://www.iwacuburundi.org/bujumbura-petite-grande-marche-manifestation-pour-la-paix/

develop a roadmap for the 2015 general elections.26 Like the Arusha Peace Agreement, the
roadmap emphasizes security and open dialogue. Principles 13 and 14 of the roadmap require the
head of state to make public all proposed initiatives, motions, and bills, so that stakeholders can
review them and engage in ongoing dialogue about them.

After the announcement of the plans to amend the constitution in 2013, CSOs undertook
a collective advocacy effort called “Ne touchez pas au consensus d’Arusha”(“Don’t Break the
Arusha Consensus”). This initiative aimed at monitoring and making constructive suggestions
about the amendment process. The advocacy against the constitutional amendments brought
together 519 CSOs, which developed strategies for closely watching the process and engaging
public authorities every step of the way.27 A sign of the success of this campaign was the
government’s failure to pass the amendments in the National Assembly because of the lack of
the required quorum.28

When the president, backed by the ruling party, began to offer biased interpretations of
existing provisions of the constitution after the failure to amend the constitution, CSOs again
responded. Aware of the important role they can play in the electoral process, in January 2015
CSOs decided to advocate against these biased interpretations of the constitution, as they saw
them as an indication that the president intended to run for the third term of office. Early in 2015,
CSOs sent the president an open letter demanding that he step aside, because his continuation in
office would constitute a breach of the constitution and the Arusha Peace Agreement. Then, on
January 26, CSOs went a step further and launched the Halte au troisième mandat campaign.29
One of the core strategies of the campaign was to present accurate legal interpretations of
the Arusha Peace Agreement and Articles 96 and 302 of the constitution. The campaign
contended that if the president stayed in office beyond two terms, it would amount to a coup
d’état and would violate the constitution of Burundi. The campaign urged the sponsors of the
Arusha Peace Agreement, including neighboring countries, the EU, the African Union, and the
United States, to voice their support for the agreement.

During the campaign CSOs were asked why they had already positioned themselves
against a third term for the president before he had even announced his decision to run. CSOs
asserted that it was a matter of fact that Nkurunziza wanted to run again, since in various venues,
whenever asked whether he was planning a third term, he said that he would respect the party’s

26 United Nations Office in Burundi, “‘The Electoral Process in Burundi: Lessons and Prospects,’
Bujumbura, 11-13 March 2013, Elements of the roadmap towards 2015.”
https://bnub.unmissions.org/Portals/bnub/3%20-%20ELL%20Workshop%20-
%20Elements%20for%20a%20Roadmap-%20English.pdf
27 Following this CSO advocacy effort, the speaker of the parliament called several stakeholders, including
members of political parties, CSOs, faith-based organizations, religious groups, and parliament, to a hearing on
December 19-20, 2013. The final communiqué of the meeting made it clear that the constitutional amendment
should not undermine the letter and spirit of the Arusha Peace Agreement.
28 Reuters UK, “Burundi’s Ruling Party Fails in First Bid to Change Constitution,” March 21, 2014.
https://uk.reuters.com/article/2014/03/21/uk-burundi-politics-idUKBREA2K1MO20140321
29 To galvanize public awareness, the organizers publicized moving teachings by Archbishop Evariste
Ntamwana. While addressing 2,000 young people in Gitega, the archbishop made clear that seeking an illegal term
is equal to a willingness to bring people back into slavery. Following the archbishop’s teachings, hundreds of
thousands of young people referred to the Halte au troisième mandat movement as “SINDUMUJA” (“I am not a
slave”).

choice. On February 6, 2015, the campaign leaders submitted a letter to the president arguing
that he should not run for the third term, as he was already serving his second and last term of
office and another candidacy by him would promote instability. In this letter, CSOs recalled a
speech made by the venerated Pastor Myles Monroe, who had visited Burundi some days before
his death. At the time Monroe stated that “Politicians think about elections, while the leaders are
interested in the future…. Politicians have projects, while leaders have a vision…. Politicians run
after power and strength, but leaders seek the development of citizens…. Politicians protect their
seats, but leaders protect future generations…. Politicians are afraid of competition, but leaders
share power…. Politicians jealously guard their place, but leaders prepare their successors.”30
Again, at a press conference on February 26, 2015, 304 CSOs participating in the
campaign issued a call to the president and the ruling party for the president to step aside after he
completed his second term of office in August 2015.

As the campaign got under way, media coverage drew domestic and international public
attention to the debate over the president’s desire to seek a third term. A month after the launch
of the campaign, dozens of shows and articles dealing with the controversy appeared in the
media, and the campaign escalated as it called on the public to demonstrate after Nkurunziza
declared his candidacy.31

4. Opposition Arusha Movement
Opposition figures also contributed to the effort to prevent a third term. In recent years,
opposition parties have been largely unable to build a common strategy to challenge the ruling
party. Several coalitions were created following the boycott of the general elections in 2010, and
by March 2015, two months ahead the general elections, four unstable coalitions existed.32
Starting in February 2015, several top members of the CNDD-FDD, including the spokespersons
of the president and the party, defected and joined opposition parties and independent
presidential candidates to form an initiative they called the Arusha Movement. The objective of
the movement was to prevent Nkurunziza from running for an illegal third presidential term.
The Arusha Movement released a number of statements and organized a peaceful
demonstration in the center of Bujumbura on April 17, 2015. About one thousand persons joined
the rally, and more than one hundred protesters were arrested.33

A few days before Nkurunziza was nominated the presidential candidate of the CNDDFDD, CSOs from Halte au troisième mandat and the Arusha Movement, along with other key
political players, began to work together to prepare for a peaceful demonstration on April 26,
2015.

30 Iwacu, “Leader ou politicien?”, November 5, 2014. https://www.iwacu-burundi.org/leader-ou-politicien/
31 During a press conference of February 26, Halte au troisième mandat clearly stated that it was calling on
people peacefully to protest the violation of the pillars on which Burundi institutions are built—namely, the Arusha
Peace Agreement and the constitution. The announcement was a highlight of the news in the following days.
32 These coalitions included the Coalition Renaissance National du Changement (RANAC), l’Alliance des
Démocrates pour le Changement (ADC-IKIBIRI), Amizero y’Abarundi, and la Coalition des partis politiques pour
une opposition participative (COPA).
33 Al Jazeera English, “Burundi Police Class with Opposition Protestors,” April 17, 2105.
https://www.aljazeera.com/news/2015/04/burundi-police-clash-opposition-protesters-150417203444978.html

IV. CIVIL SPACE IN BURUNDI DURING THE PROTESTS
On April 26, the day after the president announced his decision to run for a third term,
demonstrations broke out in Bujumbura and spread to several other parts of the country.
Protesters gathered in several neighborhoods of Bujumbura, including Musaga, Kanyosha,
Kinindo, Nyakabiga, Bwiza, Jabe, Buyenzi, Kamenge, Kinama, Ngagara, Cibitoke, Buterere, and
Mutakura. Gatherings in each neighborhood ranged from one to three thousand people daily. The
protests continued for several weeks, and participation was especially heavy from May 10 to 13,
following statements by the National Security Council criticizing the protests. During this time,
protesters wanted to demonstrate their opposition to the president’s third term, since an
emergency summit of East African heads of states to address the political unrest in Burundi was
to convene in Dar es Salaam on May 13.

Two days before the protests began, on April 24, 2015, the minister of the interior had
declared a blanket ban on all kinds of demonstrations. This ban was put into effect despite a
directive issued in 2014 on the “negotiated management of public space,” with guidelines for
policing demonstrations. In place of the traditional policing approach, which “resulted in worstcase scenarios often becoming a reality” and was “based on military principles characterized by
an indifferent approach to the demonstrators, reactive management in case of incidents
(dispersing demonstrators), [and] a dominating attitude, with the ostentatious display of force
against demonstrators seen as ‘adversaries,’” the directive articulated a new approach based on
the “acknowledgement of the right to demonstrate … the need to communicate, and the discreet
and gradual use of force and constraint (dispersion, arrests).” From the end of 2014 until mid2015, the entire police force, some 16,200 individuals, received training on “the role, ethic, and
responsibility of the police in the context of the electoral process,” with support from the
governments of the Netherlands and Belgium.34 Despite these efforts to reform policing
approaches, the April 24 ban on peaceful protests ended any effort to arrive at a negotiated
agreement between the authorities and event organizers about managing public demonstrations.
Overall, the government’s response to the protests severely violated citizens’ rights to
freedom of assembly, association, and expression, which are guaranteed by the constitution. A
report by Amnesty International released in July 2015 concluded that the police response to the
demonstrations in Burundi was marked by a pattern of serious violations, including the
suppression of the right to life and the use of excessive and disproportionate police force against
the protesters. This excessive force included lethal force, as the police shot at unarmed protesters
as they tried to run away, used tear gas and live ammunition, and failed to exercise restraint, even
when children were present.35 Each of these violations is looked at in greater detail below.

1. Violations of Freedom of Assembly
a. Peaceful Protests Portrayed as “Insurrections”
In early 2015, when Nkurunziza began to hint at his intention to run in the 2015
presidential elections, CSOs warned that they would call for protests, because they viewed his

34 Amnesty International, “Braving Bullets. Excessive Force in Policing Demonstrations in Burundi.”
https://www.amnestyusa.org/research/reports/braving-bullets-excessive-force-in-policing-demonstrations-in-burundi
35 Amnesty International, “Braving Bullets. Excessive Force in Policing Demonstrations in Burundi.”

candidacy as a violation of the presidential term limits defined by the constitution and the 2000
Arusha Peace Agreement.
At that time, government officials began to label any kind of demonstration an
insurrection. On February 17, 2015, a media and communications adviser for the president,
Willy Nyamitwe, stated that a civil society leader who was against the third mandate was
“calling for demonstrations and insurrection.” When Amnesty International asked Nyamitwe
why the government had decided even before demonstrations had taken place that they
constituted an insurrection, he said that the government’s position was that the demonstrations
would be insurrections because they would not be peaceful.36
However, according to the Guidelines on Freedom of Peace Assemblies issued by the
Organization for Security and Cooperation in Europe (OSCE), an assembly should be deemed
peaceful if its organizers have professed peaceful intentions, which should be presumed unless
there is compelling and demonstrable evidence that those organizing or participating in a
particular event intend to use, advocate, or incite imminent violence. Moreover, an assembly
should be deemed peaceful if its organizers have professed peaceful intentions and the conduct
of the assembly is non-violent, even when demonstrations include conduct that may annoy or
give offense or temporarily hinder, impede, or obstruct the activities of third parties.37
In Burundi, CSOs’ call for protests clearly showed their intention for the gatherings to be
peaceful. The leaders of the Halte au troisième 24andate campaign emphasized in numerous
public declarations that the protesters must remain peaceful, and if they encountered police
resistance they should raise their hands, sit down, and sing the Burundi anthem. Various reports
released by Human Rights Watch (HRW) affirm that the protests were peaceful except for some
minor instances of violence by protesters, such as throwing stones at police when they were
attacked.

In addition, a communiqué issued by a group of UN experts in Geneva on April 30, 2015,
stressed that Burundi suffered a wave of killings, arbitrary arrests, intimidation, closures of
media outlets, and targeting of human rights defenders in the context of peaceful protests against
the ruling party’s decision to nominate President Nkurunziza for a third term. That communiqué
noted that in response to the peaceful protests, security forces cracked down violently on the
protesters with live ammunition, grenades, and tear gas.38

It is important to stress that the right to peaceful assembly is protected by Article 32 of
the Constitution of the Republic of Burundi, which states: “Freedom of assembly and association
shall be guaranteed, as well as the right to form non-profit associations or organizations in
conformity with the law.”

36 Amnesty International, “Braving Bullets. Excessive Force in Policing Demonstrations in Burundi.”
37 Organization for Security and Cooperation in Europe (OSCE), Office for Democratic Institutions and
Human Rights, Guidelines on Freedom of Peaceful Assembly, second edition, 2010, p. 33.
https://www.osce.org/odihr/73405?download=true
38 United Nations Office at Geneva, “Pre-Election Violence Endangers Burundi’s Young Democracy,
United Nations Rights Experts Warn,” April 30, 2105.
https://www.unog.ch/unog/website/news_media.nsf/(httpNewsByYear_en)/32B3AC80146499BCC1257E37004E696
7.

The constitution also incorporates international legal instruments ratified into domestic
law through Article 19, which states: “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.”

Among these international instruments is the International Covenant on Civil and
Political Rights (ICCPR), which articulates the right to freedom of peaceful assembly in the
following terms (Article 21):

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.

It is therefore clear that CSOs had a full right to call for peaceful protests and that a statement by
a government official is insufficient legally to ban citizens’ enjoyment of such a fundamental
right. An assembly is peaceful if the intention of the organizers is peaceful and shall not be
banned because of assumptions that violence is likely to break out.

The government also attempted to manipulate events in contending that the
demonstrators were involved in plotting a coup. On May 13, 2015, a group of military officers
attempted a coup and announced that President Nkurunziza had been dismissed. Following
heavy fighting between their supporters and members of the army loyal to the president, the coup
leaders announced on May 14 that their coup attempt had failed and they would surrender.
Several officers allegedly involved in the coup attempt were arrested, and the whereabouts of
their leader, Godefroid Niyombare, remain unknown.39

Following the failed coup, demonstrators resumed their protests in Bujumbura on May
18, 2015, defying government orders to stop and ignoring warnings that the demonstrators would
be treated as supporters of the coup attempt. In a May 18 statement, the External Relations and
International Cooperation Ministry said that “the demonstrators will be treated as accomplices of
the coup plotters, as they are obstructing investigations into the putsch attempt and deliberately
disturbing public order.”40 In his address to the nation after the failed coup attempt, President
Nkurunziza stated, “It is obvious that these insurrections were prepared a long time ago, last
year, and even before. Their goal was to overthrow national institutions that have been elected by
the people.”41

39 Amnesty International, “Braving Bullets—Excessive Force in Policing Demonstrations in Burundi.”
40 Ministry of Foreign Affairs and International Cooperation, Republic of Burundi, “Communique de
Presse sur les menace a la paix au Burundi.” https://www.burundigov.bi/IMG/pdf/communique_sur_les_menaces_a_la_paix.pdf See also
https://www.hrw.org/news/2015/05/29/burundi-deadly-police-response-protests
41 Presidency of the Republic of Burundi, “Message à la Nation par le Chef de l’Etat,” May 20, 2015.
https://presidence.gov.bi/spip.php?article5534

While CSOs were denied the right peacefully to assemble, certain demonstrations were
protected and facilitated by the police, in particular those organized by public authorities under
the label “peace support demonstrations.”

This kind of management of assemblies by the government of Burundi violates the
principle of non-discrimination, which states that the freedom of peaceful assembly is to be
enjoyed equally by everyone. In regulating freedom of assembly, the authorities must not
discriminate against any individual or group on any grounds.

The freedom to organize and participate in public assemblies must be guaranteed to
individuals, groups, unregistered associations, legal entities, and corporate bodies; to members of
minority ethnic, national, sexual, and religious groups; to nationals and non-nationals, to
children, women, and men; to law-enforcement personnel; and to persons without full legal
capacity, including persons with mental illnesses.42

The authorities’ attitude that all demonstrations organized by CSOs were illegal and part
of an insurrection belied their respect for national, regional, and international human rights
obligations. Treating largely peaceful demonstrations and entire residential areas as part of an
insurrection escalated rather than defused the protests, and prompted some demonstrators to
resort to violence in response to the excessive use of force by the police.

b. Excessive Use of Force and Lethal Weapons
Jean Nepomucène Komezamahoro was a 15-year-old boy living in the Cibitoke
neighborhood of Bujumbura when, on April 26, 2015, he was caught in a confrontation between
police and demonstrators. As the police were shooting, the child fled to a nearby home but could
not get inside because the gate was closed. The police shot him in the head and run away. The
death certificate seen by Amnesty International stated that Jean Nepomusene died in a “shootout.”
Pascal Hakizimana was injured in Mutakura, a northern neighborhood of Bujumbura, on
the first day of the demonstrations on April 26. A policeman shot him in his abdomen and right
arm. “The bullet came through my stomach; all my intestines were spilling out,” he told the
IBTimes. “How can a policeman shoot at someone? I’m scared of going back [he currently lives
in hiding in Rwanda] because the policeman is still in the forces and he knows me. How are we
going to return to our country? Even if we can eat six times a day here, we’re never well. There
needs to be justice.”43

Jean-Bosco Nkurunziza, a secondary school student, was in a group of demonstrators
protesting the candidacy of President Nkurunziza for a third term on May 7 in Gisozi, Mwaro
Province, a rural area. He had just joined the crowd, which was loudly chanting slogans, when
the police opened fire to disperse them. A bullet hit him and died on the spot.44
These three examples show how the police used excessive and disproportionate force,
including lethal force, against protestors and even children. International standards give detailed

42 OSCE, Guidelines on Freedom of Peaceful Assembly, p. 16.
43 Elsa Buchanan, “Burundi: Catholic Church Youth Group Helps Refugees ‘Hunted Down’ by Police.”
International Business Times, August 3, 2015. https://www.ibtimes.co.uk/burundi-catholic-church-youth-groupevacuates-refugees-hunted-down-by-police-1513838
44 Amnesty International, “Braving Bullets. Excessive Force in Policing Demonstrations in Burundi.”

guidance regarding the use of force to disperse both unlawful non-violent and unlawful violent
assemblies. The UN’s Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials provide that “in the dispersal of assemblies that are unlawful but nonviolent, law
enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict
such force to the minimum extent necessary.” The Basic Principles also stipulate that “law
enforcement officials shall not use firearms against persons except in self-defense or defense of
others against the imminent threat of death or serious injury, to prevent the perpetration of a
particularly serious crime involving grave threat to life, to arrest a person presenting such a
danger and resisting their authority, or to prevent his or her escape, and only when less extreme
means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms
may only be made when strictly unavoidable in order to protect life.”45
To manage public assemblies in case of violence, the OSCE’s Guidelines on Freedom of
Peaceful Assembly suggest that governments develop a range of responses that allow for a
differentiated and proportional use of force. These responses should include the development of
non-lethal incapacitating weapons for use in appropriate situations. Law enforcement officers
should also be provided with self-defense equipment, such as shields, helmets, fire-retardant
clothing, bulletproof vests, and transport, to decrease their need to use weapons of any kind.46
Despite these standards, the police response to the protests repeatedly went well beyond
acceptable limits. Although in some instances the protests became violent, in many cases police
shot with live bullets into the mass of demonstrators, killing some people and injuring others.
According to a May 26, 2015, HRW report, the police responded aggressively to protests, with
repeated clashes in several suburbs of Bujumbura.47 Witnesses told HRW that the police shot
demonstrators indiscriminately—sometimes at point-blank range—in the head, neck, and chest,
and medical personnel, witnesses, and a victim of a shooting said that some people were shot in
the back as they fled. Medical staff in Bujumbura had treated more than a hundred people with
serious injuries by August 2015.48

In a press briefing note in Burundi on August 14, 2015, the spokesperson for the UN
High Commissioner for Human Rights, Ravina Shamdasani, said that the human rights situation
in Burundi was deteriorating, with at least ninety-six people killed, mostly in the opposition,
since the beginning of election-related violence in late April.49
This inappropriate, excessive, and unlawful use of force by law enforcement authorities is
recognized by the OSCE as violating fundamental freedoms and protected rights, undermining

45 United Nations Office of the High Commissioner for Human Rights, Basic Principles on the Use of
Force and Firearms by Law Enforcement Officials, provision 9.
https://www.ohchr.org/Documents/ProfessionalInterest/firearms.pdf
46 OSCE, Guidelines on Freedom of Peaceful Assembly, p. 84.
47 Human Rights Watch, “Police Abuses Exposed During Burundi Protests,” YouTube video.

48 Human Rights Watch, “Burundi: Deadly Police Response to Protests.”
49 United Nation Office of the High Commissioner for Human Rights, “Press Briefing Note on Burundi and
Iraq,” August 14, 2015.
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16320&LangID=E#sthash.yech8sUs.dpu
f

police-community relationships, and causing widespread tension and unrest.50 This is exactly
what happened in Burundi after the police resorted to force as a means of silencing citizens’
voices. A journalist told Amnesty International: “I witnessed an interesting example of how the
police can create problems for itself. The police were trying to overtake demonstrators and every
time, the demonstrators would push forward. After a while, the policeman in charge realized
what was happening. He decided to let the police stay on the side and no longer try to overtake
the demonstrators. The demonstration stopped by itself five minutes later and people just went
back home.”51

c. Targeted Killings After Protests
Selective killings during the night became another means of cracking down on the
protests in Burundi. During the night after protests, Imbonerakure, the youth wing of the ruling
party, supported by the police, targeted and attacked protestors’ homes. In many cases these
night attacks were reported in neighborhoods where protests had taken place. A report by HRW
indicates that some of those killed or injured were taking part in protests while others were
targeted in or near their homes after the protests.52
For example, on the evening of April 26, 2015, after the first day of the protests, a group
of men in civilian clothes and spotted blue uniforms killed at least four people and injured
several others on Ninth Avenue in the Mutakura area of Bujumbura. The next day, in the same
neighborhood, a group of policemen entered the home of 32-year-old Fabrice Nahimana and shot
him.53

Unlawful and deliberate killings ordered by government officials or carried out with their
complicity or acquiescence amount to extrajudicial executions, which constitute crimes under
international law and are prohibited at all times. Amnesty International documented several
killings by police working for Support for the Protection of Institutions (API), a government
agency.

In several venues and at certain times, national police operated as if it were wartime. The
normal and legally admissible way of dealing with demonstrators is for the police to disperse
them for the purpose of restoring order, using means such as tear gas, nightsticks, or shooting in
the air. However, during the 2015 demonstrations in Burundi, policemen shot with live
ammunitions into masses of demonstrators, utilizing the AK-47 machine guns normally reserved
for wartime.

d. Arbitrary Arrests, Detention, and Torture
Starting on the first day of the protests, the police arrested hundreds of protesters as a
way of silencing the voices of Bujumbura citizens. The arrested protestors were beaten and
tortured, and some even disappeared. The May 29, 2015, HRW report states that a Burundian
police spokesperson and Burundian human rights organizations confirmed that the police
arrested hundreds of people after the beginning of protests in late April. They also beat detainees,

50 OSCE, Guidelines on Freedom of Peaceful Assembly, p. 83.
51Amnesty International, “Braving Bullets—Excessive Force in Policing Demonstrations in Burundi.”
52 Human Rights Watch, “Burundi: Deadly Police Response to Protests.”
53 Recounted in Amnesty International, “Braving Bullets—Excessive Force in Policing Demonstrations in
Burundi.”

witnesses and lawyers told HRW. The Imbonerakure were implicated in the beatings and
threats.54

According to UNHRC spokesperson Shamdasani, at least 600 people were arrested and
detained during the period of protests, although many of them have since been released. There
were at least sixty cases of torture and many more cases of other ill treatment in police and
National Intelligence Service (SNR) detention facilities. Many of the detainees have been in
pretrial detention well beyond the time limits stipulated by law. Some detainees, particularly
those in SNR custody, have said they have not been allowed to receive visits from their families
and have not had access to legal counsel during their interrogations. The actual numbers of
persons killed, detained, or tortured may be much higher.55
It is important to note that after the protests, a review of police figures was difficult to
perform because of political tensions, which caused many rights organizations to close their
doors.
2. Violations of Freedom of Association
Stated simply, the right to freedom of association is the right to form or join a group of
like-minded people to pursue common interests. The group may be formal or informal, and there
is no requirement that the association be registered for the right to freedom of association to
apply.

The right to freedom of association ranges from the creation to the termination of an
association and includes the right to form and to join an association, to operate freely and be
protected from undue interference, to access funding and resources, and to take part in the
conduct of public affairs.56

The government of Burundi has an obligation to take positive measures to establish and
maintain an enabling environment for the exercise of this right. It is crucial that individuals
exercising this right be able to operate freely without fearing that they will be subjected to
threats, intimidation, or violence, including summary or arbitrary execution, enforced or
involuntary disappearance, arbitrary arrest or detention, torture or cruel, inhuman, or degrading
treatment or punishment, a media smear campaign, a travel ban, or arbitrary dismissal (especially
in the case of trade unionists).57

However, since April 2015, most civil society leaders have been threatened with death,
faced criminal prosecution, or have been physically assaulted. For their own security, many have
fled to neighboring countries, where they work as best they can. This situation has dramatically
affected the work of CSOs in Burundi. Human rights organizations and those focused on

54 Human Rights Watch, “Burundi: Deadly Police Response to Protests.”
55 United Nation Office of the High Commissioner for Human Rights, “Press Briefing Note on Burundi and
Iraq.”
56 United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association,
“Report: Best Practices in Promoting Freedoms of Assembly and Association,” June 20, 2012. (A/HRC/20/27).
https://freeassembly.net/rapporteurreports/report-best-practices-in-promoting-freedoms-of-assembly-and-associationahrc2027/
57 United Nations Human Rights Council, “Report of the Special Rapporteur on the Rights to Freedom of
Peaceful Assembly and of Association, Maina Kiai,” May 12, 2012. https://freeassembly.net/wpcontent/uploads/2013/10/A-HRC-20-27_en-annual-report-May-2012.pdf

accountability have been most targeted by the government and its militia, Imbonerakure. The
lack of credible information on the human rights situation in Burundi has been one of serious
consequences of the crackdown on rights groups during the period covered by this report.
On April 27, 2015, one day after the outbreak of protests, police again arrested human
rights defender Pierre Claver Mbonimpa, who had gone to give an interview at Maison de la
Presse, a gathering place for local media. The police kicked and roughed up Mbonimpa,
journalists at the scene told HRW. Mbonimpa, who is the president of the Burundi Association
for the Protection of Human Rights and Detained Persons (APRODH) and among the few
activists who remained in Burundi after the failed military coup d’état, has been an outspoken
critic of abuses by the government, including during the protests.58 On August 3, 2015,
Mbonimpa was victim of a brutal attack and assassination attempt. He survived his injuries and
has been transferred to a Belgium hospital for specialized care.
The UN Special Rapporteur on the Situation of Human Rights Defenders, Michel Forst,
in a declaration endorsed by Maina Kiai, the UN Special Rapporteur on the Rights to Freedom of
Peaceful Assembly and of Association, made this observation: “The attempted killing of such a
highly respected activist as Mr. Mbonimpa sends a very chilling message to all members of civil
society and also the entire population. During this period of turmoil and insecurity in the country,
I am gravely concerned for the safety of all persons advocating for human rights in Burundi and
call for an immediate end to violence.”59

3. Violations of Freedom of Expression
Freedom of expression in Burundi began to face challenges in June 2013, when the
government enacted the new Press Law. The law contains significant restrictions on the freedom
of the press, which is a cornerstone of the principles of democracy, rule of law, accountability,
transparency, and good governance.

In addition to these legal constraints, the media have been victims of various attacks,
ranging from threats to journalists, criminal proceedings, and closures of radio stations to the
literal destruction of facilities. On April 26, 2015, the government banned live reporting from
demonstration sites by three popular radio stations (Radio publique africaine [RPA], Radio
Isanganiro, and Radio Bonesha FM), suspended their broadcasts outside the capital, and cut their
telephone landlines. The next afternoon, the government shut down all RPA broadcasts,
including in the capital, and closed Maison de la Presse.60 The main accusation against the media
was that they were supporting and encouraging the “insurrection.”
Shortly after the beginning of the protests, the government blocked mobile access to
social media, including Facebook, WhatsApp, and Viber, contending that protesters were

58 Human Rights Watch, “Burundi: Crackdown on Protesters,” April 27, 2015.
https://www.hrw.org/news/2015/04/27/burundi-crackdown-protesters
59 United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association,
“Burundi: UN Expert Calls for Protection of All Rights Defenders After Attempted Killing of Top Activist,” August
7, 2015. https://freeassembly.net/rapporteurpressnews/burundi-attempted-killing-activist/
60 Human Rights Watch, “Burundi: Crackdown on Protesters.”

coordinating the protests using the Internet.61 Daniel Bekele, Africa director at HRW, said that
the “government’s restrictions on communications not only violate basic media freedom but
deprive many Burundians of the right to information about events that affect them directly.”62
On May 14, 2015, after the failed coup d’état, the police attacked independent media in
Bujumbura and destroyed all of their facilities. The government accused them of having allowed
coup plotters to disseminate the message that they had dismissed the president. By late 2015
these radio stations and televisions had yet to resume broadcasting. More than one hundred
journalists live in exile and those who are still in Burundi are victims of daily police harassment.

V. CONCLUSION
The demonstrations that started in April 2015 and were brutally repressed by security
forces were the cry of a desperate citizenry experiencing irresponsible leadership. Despite their
brutal treatment, which ranged from arrests and beatings to the use of lethal force, the protesters
proved to be highly motivated and disciplined. Apart some minor incidents, no looting or
burning was reported.

The demonstrations were peaceful and successful because they addressed a genuine and
objective cause and were the result of active mobilization by several key stakeholders, whose
expression of national unity was their core strength. In particular, the Halte au troisième mandat
campaign was successful for the following reasons:
 The cause of the campaign was very clear. CSOs organized the campaign on the basis
of democratic principles laid down in core national instruments, such as the Arusha Peace
Agreement and the constitution, and constructed a freedom-based narrative.
 Key CSOs had extensive experience campaigning collectively. Leading human rights
defenders widely known for their endeavors to advance the cause of justice, good
governance, human rights, democracy, and the rule of law joined the campaign and
guaranteed public trust in the movement.

 The campaign was launched in a state of widespread unrest. Reasons for the unrest
included ongoing human rights abuses, including the paramilitary training of youth in the
Democratic Republic of the Congo in 2014, the imprisonment of senior human rights
defenders Pierre Claver Mbonimpa in May 2014, the assassination of three Italian nuns in
September 2014, and the imprisonment of Bob Rugurika in January 2015, as well as the
defection of key members from the ruling CNDD-FDD party.

 The public became aware of their right to freedom of assembly, including peaceful
demonstrations. This awareness was a key tool for engaging the authorities when human
rights and public liberties were at stake. In exercising this freedom, the public also
became aware that peaceful demonstrations are effective.

61 International Business Times, “Burundi Elections 2015: President Blocks Twitter, Facebook, WhatsApp,
Tango Mobile Access in Protest Crackdown,” April 29, 2015. https://www.ibtimes.com/burundi-elections-2015-
president-blocks-twitter-facebook-whatsapp-tango-mobile-access-1901246
62 Human Rights Watch, “Burundi: Crackdown on Protesters.”

 The media played a tremendous role in mobilizing citizens. In particular, the media
provided opportunities for organizers to engage publicly. Several shows were presented
from a pluralistic perspective, and broadcast conversations convinced many people to
join the cause of protesters, especially as the latter announced that their efforts would be
peaceful and would aim at defending core national instruments, such as the Arusha Peace
Agreement and the constitution. It is worth mentioning that Burundians access
information mainly through independent media and form their opinions by following
shows63 and engaging in music.64
 The police themselves fueled the movement through their brutality. Their extreme
violations of basic civil rights included illegal and arbitrary imprisonments and
disappearances, politically motivated killings, and threats to human rights defenders.
Other issues that mobilized demonstrators included increasing poverty and corruption in
public services. When thousands of people demonstrated following the release from jail
of Bob Rugurika on January 19, 2015, many observers noticed that in addition to their
joy, people wanted to express that they were upset with the current state of injustice.65
 Burundians from all backgrounds participated in the protests. Over the years,
conflict in Burundi had been presented as an ethnic conflict, but during the peaceful
demonstrations protesters proved that this was not true. Despite hate speech coming from
top government officials, who argued repeatedly that the demonstrations were organized
only in neighborhoods populated by the minority Tutsi, people from all backgrounds—
ethnic, religious, regional, and gender—participated in the gatherings. This fact
challenged the government, since it could not find an effective strategy to stop people
from mobilizing.
Defending democratic principles and values is regarded by many as the highest duty that a
citizen can perform. Mobilizing for the supreme national interest has consistently been the
primary calling of Burundi’s human rights activists, and their dedication—and the dedication of
the Burundian people—was clear to the world during the protests in spring 2015.

63 Several shows were organized by independent media to engage different stakeholders on the issue of the
third term. Key supporters of the third term, including members of the ruling party, the CNDD-FDD, and their allies
(among them some government-sponsored CSOs) met often with the opposition, senior analysts and
constitutionalists, and representatives of Halte au troisième mandat in very engaging debates about the third term.
Each side took the opportunity to convince the public that their arguments were correct.
64 Several groups, including Lion Story, Prophète Voice, Inkebuzo, and Mkombozi, released engaging
music exposing injustice, poverty, human rights abuses, political struggle, and corruption. In the clip “Revolution,”
Lion Story argues that the time for revolution has come and exposes, among other things, police abuse of citizens.
65 See BBC News, “Burundians Celebrate as Journalist Bob is Freed,” February 19, 2015.
https://www.bbc.com/news/world-africa-31535621

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
governments.” 121
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, https://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, https://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, https://www.gl obalpost.com/dispatch/news/afp/131220/bolivia -expels -danish -ngo –
meddling -1.
120 Eric Lipton, Brooke Williams, & Nicholas Confessore, “Foreign Powers Buy Influence at Think Tanks,”
New York Times , September 6, 2014, accessed September 17, 2014,
https://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
work.” 122
 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
Zealand.” 127
 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, https://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,
https://www.bbc.com/news/world -europe -18732949 .
124 Darin Christensen & Jeremy M. Weinstein, “Defunding Dissent,” Journal of Democracy 24(2) (April
2013): 80.
125Pascal Kwesiga, “Govt gets tough on NGOs,” New Vision , June 19, 2012, accessed Septembe r 9, 2014,
https://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, https://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,
https://www.newzimbabwe.com/news -7189 -29+NGOs+banned+in+crackdown/new s.aspx .

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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
manner.” 131
 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, https://slovo.kg/?p=35019 .
129 Simon Denyer , “China taking the Putin approach to democracy,” Washington Post, October 1, 2014,
A7.
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,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Azerbaijan_12.pdf .

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,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/Ethiopia%20on%20b
ehalf%20of%20African%20Group_PD_21.pdf .
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,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/India_on%20behalf
%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,
https ://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/Pakistan%20on%20b
ehalf%20of%20OIC_PD_21.pdf .
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).

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 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
effectiveness.” 140
 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,
https://www.mof.gov.np/uploads/document/file/DCP_English_20140707120230_20140721083326.pdf .
138 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, Article 2.2, acces sed September 9, 2014,
https://www.mof.gov.np/uploads/document/file/DCP_English_20140707120230_20140721083326.pdf .
139 “No foreign funds without approva l: Ministry,” Daily Mirror , July 22, 2014, accessed September 9,
2014, https://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, https://timesofindia.indiatimes.com/india/Foreign -funded -NGOs -stalling -development -IB –
report/articleshow/36411169.cms .

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 –
laundering.” 146
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,
https://in.rbth.com/blogs/2014/06/15/why_india_should_follow_vladimir_putins_lead_on_ngos_35945.html .
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,
https://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, https://www.fatf -gafi.org/media/fatf/documents/reports/Risk -of-terrorist -abuse -in-non -profit –
organisations.pdf .
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, https://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,
https://www.charityandsecurity.org/analysis/Restrictive_Laws_How_FATF_Used_to_Justify_Laws_That_Harm_Civ
il_Society .

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 –
terrorism.” 150
 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, https://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,
https://www.charityandsecurity.org/analysis/Restrictiv e_Laws_How_FATF_Used_to_Justify_Laws_That_Harm_Civ
il_Society
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,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Gabon%20on%20be
half%20ofAG_10_1.pdf .
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,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/Pages/OralStatement.aspx?MeetingN
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,
https://www.defence.lk/new.asp?fname=Sri_Lankas_National_Security_20140819_02 .

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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
transparency:
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,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/India_on%20behalf
%20of%20LMG_PD_21.pdf .
153 Ibid.
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,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/Pakistan%20on%20b
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
rights.”

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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
UNSR: 157
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,
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx .
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,
https://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
https://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, https://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,
https://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Declaration.aspx .

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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, https://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), https://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,
https://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
https://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
entities.” 174
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,
https://wcd.coe.int/ViewDoc.jsp?id=1194609 .
171 Inter -American Commission on Human Rights, Report on the Situation of Human Rights Defenders in
the Americas , March 7, 2006, Recommendation 19, https://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,
https://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,
https://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:
https://www.state.gov/documents/organization/43566.pdf and
https://www.state.gov/documents/organization/4 3567.pdf .

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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
Article 22(2):
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
restriction is:
(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),
https://www.icnl.org/research/journal/vol10iss1/art_1.htm .
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),
https://www.icnl.org/research/journal/vol14iss3/art2.html .
178 United Nations International Covenant on Civil and Political Rights, Article 22, December 16, 1966,
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx . Article 22, ICCPR

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(3) “necessary in a democratic society to achieve those aims.” 179
Moreover :
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
threat. 182
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,
https://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),
https://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,
https://www.ohchr.org/Documents/Publications/FactSheet15rev.1en.pdf .
182 United Nations Human Rights Committee, General Comment No. 34, para. 35, UN Doc.
CCPR/C/GC/34 (September 12, 2011), https://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,
https://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.”

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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;
 public order;
 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),
https://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,
https://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
https://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: https://graduateinstitute.ch/f aculty/clapham/hrdoc/docs/siracusa.html .
190 Ibid.
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
https://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
stressed that:
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
purpose. 197
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