International Journal of Not -for -Profit Law / vol. 1 6, no. 2, December 2014 / 34
Civil Society in Africa
Politics, Power, and Accountability: Addressing the Elephant in the Room in the Quest for Civil Society Organizations’ Right to Freedom of Association
DR. MARIA NASSALI *
The right to freedom of association is increasingly being illuminated in the international
human rights arena, as demonstrated by the adoption of the Human Rights Defenders Declaration
by the General Assembly in 1998 and the establishment of the mandate of Special Rapporteur on
the same issue in 2010. 1 Simultaneously, there is an alarming global trend of clamping down on
independent civil society spaces under the guise of combating terrorism, defending government’s
sovereignty, and safeguarding the public from bad governance of civil society organizations
In the East African region, since September 11, 2001, there is an apprehension that CSOs
can facilitate terrorism. Further, following the Arab and North Africa springs of 2012, East
African governments have become intolerant to social protests. 3 Government perceives CSOs as
partners, appendages of government, foreign stooges, economic saboteurs, inciters of violence,
or watchdogs, depending on the nature of their activities. Ugandan President Yoweri Museveni
has publicly castigated CSOs with alternative views as “internal saboteurs and acting on behalf
of foreign interests.” 4 Given that participation in associational life promotes political
consciousness and encourages more involvement in politics, through voting, campaigning, and
willingness to stand for elective office, it is one of the most restricted rights because it threatens
those in power. 5 As articulated by the former Chief Justice of Australia, Justice Gleeson, because
government claim to represent the will of the people, it does not like to be checked and balanced
which it deems as a threat or challenge to its power. 6
* Maria Nassali has a Doctorate in Law from the University of Pretoria. She majored in Human Rights and
Governance. She is currently working as a Lecturer at the School of Law, Makerere University. She is also t he Chief
Executive Officer of International Governance Alliance. Email: firstname.lastname@example.org ; mnassali@int -gov –
1 ICNL & WMD, Defending Civ il Society Report , 2d ed. (June 2012) at 3, 9.
2 ICNL & WMD, International Principles Protecting Civil Society ,
3 The EAC Deputy Secretary General in charge of Political Federation, http://www.eac.int/about –
eac/eacnews/981 -2nd -political -dialogue.html
4 Halima Abdalla, Under Siege, M useveni Seeks Support on Oil Law, Aid Cuts, EAST AFRICAN (15 -21
December 2012) at 5.
5 M. EDWARDS , CIVIL SOCIETY 102 (2004).
6 Justice Nkabinde, keynote address, Judicial Symposium Chobe, 30 September 2014.
This article argues that in a democratic society, the state and a vibrant civil society are
“two sides of the same coin and are complementary in improving society.” 7 Civil society and the
state are interdependent, with states expected to provide the legal and regulatory framework for
civil society to independently function in order to play an oversight role over government’s
accountability to its citizens. 8
The article begins with the conceptual framework for the right to freedom of association
in part 2. In part 3 it examines the legal and regulatory framework in Uganda to assess whether it
supports the rights to freedom of association of CSOs. It proceeds with an analysis of the root
cause of tension between CSOs and government as the struggle of power, resources, and
influence in part 4. In part 5 it recommends the strengthening of CSOs’ political consciousness.
Part 6 concludes.
2. The Conceptual Framework
Civil society has a right to autonomous existence as guaranteed under international
human rights and the Uganda Constitution. 9 This article is premised on the intersection of human
rights and democracy discourses as mutually reinforcing, because democracy cannot exist
without full respect for human rights. Conceptualized as a normative principle to constrain the
abuse of power, human rights form the cornerstone of democratic governance in order to expand
space for strengthening the rights and obligations of the citizens to participate in decisions that
affect their lives and to hold the leadership accountable. The formation of associations provides
an important beginning to organize and advocate for rights as well as engage governments in
pursuit of common interests. 10 In fact, only organized people can effectively struggle against
oppression and repression by governments. 11
The article applies the three concepts of civil society identified by Edwards: civil society
as associational life, as good society and public sphere, and as mutually reinforcing. 12 The first
and dominant view of civil society is that of voluntary associations or organizations situated
between the family and the state, which, though autonomous from the state, interact with it to
advance their interests. 13
7 C.E. WELCH , PROTECTING HUMAN RIGHTS IN AFRICA : ROLES AND STRATEGIES OF NON -GOVERNMENTAL
ORGANIZATIONS 44 (1995).
8 EDWARDS , supra note 5, at 24 .
9 ICCPR (1966), Art. 22; African Charter, Art.10; Constitution of Uganda (1995), Art. 29.
10 AFRICAN COMMISSIO N, REPORT OF THE AFRICAN COMMISSION ’S WORKING GROUPS OF EXPERTS ON
INDIGENOUS POPULATIONS /COMMUNITIES 57 (2005).
11 C.M. PETER , HUMAN RIGHTS IN TANZANIA : SELECTED CASES AND MATERIALS 650 (2007).
12 EDWARDS , supra note 5.
13 Id. ; P. UVIN , HUMAN RIGHTS AND DEVELOPMENT (2004); NYANGABYAKI , CONTEMPORARY CIVIL
SOCIETY AND DEMOCRATISATION PROCESS IN UGANDA : A PRELIMINARY EXPLORATION (2000) ; J. OLOKA –
ONYANGO , CIVIL SOCIETY , DEMOCRATISATION AND FOREIGN DONORS IN CONTEMPO RARY UGANDA : A
CONCEPTUAL AND LITERATURE REVIEW 23 (2000); J. J. BARYA , THE STATE OF CIVIL SOCIETY IN UGANDA : AN
ANALYSIS OF THE LEGAL AND POLITICO -ECONOMIC ASPECTS (2000) ; M. SWILLING & B. RUSSELL , THE SIZE AND
SCOPE OF THE NON -PROFIT SECTOR IN SOUTH AFRI CA (2002); M.G. Ngunyi, Building Democracy in a Polarised
Civil Society: The Transition to Multi -Party Democracy in Kenya, in LAW AND THE STRUGGLE FOR DEMOCRACY IN
EAST AFRICA (J. Oloka -Onyango, K. Kibwana, & C.M. Peter eds .) (1996).
The second school of thought conceptualizes civil society as “good
society”: a desirable social order in which all institutions operate in ways that nurture positive
social norms, such as tolerance, nondiscrimination, nonviolence, trust, cooperation , and rights. 14
In its social role, civil society is seen as the reservoir of social capital and positive social norms
that foster community -building, bonds of trust, cooperation, and reciprocity, and enriches the
human condition. 15 The third school of thought perceives civil society as part of the public
sphere: an arena for argument and deliberation as well as for associational and institutional
collaboration. 16 The public sphere is an arena where societal differences, social problems, public
policy, government action, and cultural and common identities are debated and developed. In this
political role, civil society serves as a crucial counterweight to state and corporate power and as
an essential pillar in promoting good governance. 17 Civil society also provides channels through
which people can have their voices hear d in government decision -making and sharpens skills for
political leadership. 18 Thus, civil society has influenced, altered, and shaped the political
discourse and the human rights terrain. Ostensibly, an integrated approach of the concept of civil
society is useful in attacking all forms of inequities and promoting democratic spaces. 19
The expectation that civil society serves as a countervailing force against government’s
abuse of power is a source of disharmony in the state -CSO relationship. The Oxford Dictionary
defines power as the authority to do something, influence people or events, and strength.
According to Lips, power is not a commodity but a process underpinning human relationships. 20
Power is related to human rights, such that whenever human right s violations occur, negative
power relations are often prevalent. While activism is about challenging existing power
structures and imbalances, unfortunately within the human rights corpus, power is largely
ignored 21 or treated as negative or corrupting. Inadvertently, the ambivalence about overtly
challenging the abuse of power is constraining CSOs’ capacity to collectively challenge
government’s intrusion into their independent organizing.
Building on this conceptual framework, the next section asks wheth er or not government
should interfere in the internal functioning of CSOs by regulating their internal governance.
3. The Legal Framework for the Operations of CSOs
In Uganda, the Constitution provides for freedom of association 22 and the right to freely
participate in peaceful activities and to influence the policies of government through civic
action. 23 Further, the National Objectives and Directive Principles of State Policy provide for the
autonomy of civic organizations and their participation in public affairs, 24 and commit the state
to respect the independence of institutions and NGOs working on protecting and promoting
human rights. 25
14 EDWARDS , supra note 5, at 39.
15 Id. at 14; L. M. SALAMON ET AL ., GLOBAL CIVIL SOCIETY : DIMENSIONS OF THE NON -PROFIT SECTOR 23
16 EDWARDS , supra note 5, at 55.
17 Id. at 14 -15.
18 Id. at 15.
19 Id. at 96.
20 H.M. LIPS , WOMEN , MEN AND POWER 3-4 (1991) .
21 M. MUTUA , HUMAN RIGHTS : A POLITICAL AND CULTURAL CRITIQUE 13 (2002) .
22 Id., Art. 29(e).
23 Id., Art. 38(2).
24 Id., Principle II (vi).
25 Id., Principle V (ii).
Before 1989, CSOs registered either as Companies limited by guarantee under the
Companies Act or as Trusts under the Trustees Incorporation Act. 26 Today, a majority of
organizations are registered under the NGO Act. The NGO Act acknowledges the right of any
organization to choose alternative registration and stresses that the Act only applies to NGOs
registered under it. 27 However, given that organizations registered under the Companies Act or
the Trustees Act are not subjected to the same stringent regulations as those under the NGO Act,
this section focuses on the NGO Act to highlight the assault to freedom of association.
The first NGO law was enacted in 1989 28 to provide for the registration of NGOs and
establish the NGO Board. The NGO law was amended in 2006 to strengthen government’s
monitoring role. 29 The 2006 law introduced some progressive provisions. The amendment
incorporated gender representation by providing that a third of the NGO Board must be
women. 30 An NGO automatically acquires legal personality on registration instead of having to
undergo double registration under the Companies Act, as was originally the case. 31 Lastly, it
exempts Community Based Organizations (CBOs) from registering with the NGO Board and
instead provides for registration with the District authorities, which takes the service closer to the
On the negative side, the law expands the function of the Board beyond registration to
include the monitoring of NGOs. 33 Further, it retains provisions from the 1989 law, such as the
representation of security organs on the NGO Board; the criminalization of non -registration 34;
and the discretionary powers of the NGO Board to revoke a license in the public interest. 35
Although the law purports to include NGOs on the National NGO Board, there is no guarantee
that the three public representatives will be NGO representatives, 36 because they are nominated
by the government. Worse still, the law introduces a permit, 37 whose duration and conditions are
to be prescribed by the Minister, 38 making the existence of NGOs precarious.
26 Companies Act Cap 85, Trusteeship Act Cap 147, Partnership and Associations Act Cap 87.
27 NGO Amendment Act (2006) § 2(1)a.
28 Uganda NGO Act, Cap 113, formerly Statute 5 of 1989.
29 NGO Amendment Act No. 25/2006.
30 NGO Amendment Act (2006) § 4 (2).
31 NGO Amendment Act (2 006) § 2 (3).
32 NGO Amendment Act (2006) §7(2).
33 NGO Amendment Act (2006) § 7.
34 NGO Amendment Act (2006) §§ 2(5), 2(6).
35 NGO Amendment Act (2006) §10 (c).
36 NGO Amendment Act (2006) § 4 (1).
37 NGO Amendment Act (2006) § 2.
38 NGO Amendment Act (2006) § 13.
The 2009 NGO Registration Regulations made the registration process more
cumbersome. In addition to the constitution as a common registration requirement, a prospective
NGO is supposed to specify the geographical area, field of operation, organizational structure,
work plan, and a one -year budget, and provide written recommendations from the two sureties,
two sub-county chiefs or Resident District Commissioners (RDCs). 39 While originally the
government had proposed to have the NGO permit annually renewable, the NGO Regulations
maintained the original position of having the permit renewable initially for twelve months and
subsequently for thirty -six months and thereafter sixty months. 40 Further, the regulations retain
the provision that recognizes that an NGO can engage in gainful activities for the economic
interest of the organization. 41 An NGO is supposed to give a seven days’ notice to the Local
Council and Resident District Commissioner before contacting the local communities. 42
The NGO Policy of 2010 was enacted after the Act, yet it is policy that guides the legal
framework. Nonetheless, it has some positive attributes. Its vision of a “vibrant and accountable
NGO sector enabling citizens’ advancement and self -transformation” 43 is human -rights oriented.
It commits government to respecting the autonomy of NGOs and is guided by the principles of
respect for human rights, freedom of association, voluntarism, diversity, NGO autonomy, self –
governance, self -regulation, dignity, mutual respect, trust, gender equity, and equality. 44 It
clarifies that the District leadership does not have power to deregister an NGO but rather should
refer the case to the NGO Board. 45 Adversely, the NGO Policy narrowly defines NGOs by
placing emphasis on augmenting government’s work, 46 with NGOs deemed as appendages of
government. Further, it creates an NGO monitoring infrastructure at the District and Sub -County
levels and subjects the self -regulation mechanism to the approval of the Board. The local
governments are mandated to coordinate, monitor, and supervise the activities of NGOs, 47 which
exposes NGOs to government arbitrariness. Furthermore, it does not provide for tax incentives to
stimulate the development of local philanthropy.
Besides the specific NGO law, other laws and policies curtail the right to freedom of
association. In 2007, the Ministry of Internal Affairs enacted the Police Declaration of Gazetted
Areas Instrument, which among others compels 25 or more people to assemble in only
specifically gazetted areas and to secure a permit for holding an assembly, demonstration, or
procession, from the Inspector General of Police (IGP). 48
39 NGO Registration Regulations (2009) 156 -157.
40 Uganda NGO Registration Regulations (2009) r.7.
41 Uganda NGO Registration Regulations (2009) r. 15.
42 Uganda NGO Registration Regulations (2009) r.13.
43 NGO Policy (2010), at 19.
45 NGO Policy (201 0), at 43 -45.
46 NGO Policy (2010), at 12.
47 Local Government Act (2006) §§ 18(b), 27, 50(f).
48 Police (Declaration of Gazetted Areas) Statutory Instrument No. 53 of 2007, r. 2, 3, 4 & 5.
Further, the Public Order and Management Act of 2013 purports to bestow the same
powers on the IGP which powers were challenged in the Constitutional Court in Muwanga
Kivumbi. 49 Specifically, the police have powers to regulate the conduct of the public meetings in
accordance with the law. 50 Moreover, a public meeting is broadly defined as any “gathering,
assembly, procession or demonstration in a public space or premises held for purposes of
discussing, acting upon, petitioning or express ing views on a matter of public interest.” 51 The
organizers are required to provide notice of between three and fifteen days to the Police,
outlining the consent of the owner of the venue, the site of the meeting, the estimated number of
persons expected; further, the meeting must be held between 7 a.m. and 7 p.m. 52 If the organizers
fail to comply with the notice requirement or if they hold the meeting at different time, date, or
route than is specified in the notice, 53 they are criminally liable for the offense of disobedience to
statutory duty. 54
The government is also relying on criminal law to frustrate the use of civil disobedience
as an accountability mechanism, through such laws as unlawful society, where three or more
people associate for purposes of subverting of government, committing or inciting violence, or
interfering with the administration of law; 55 unlawful assembly, where three or more people
assemble to cause fear or breach of peace; 56 and inciting violence. 57
Progressively, to mitigate the erosion of the rights to freedom of expression and
association, in 2011 the UHRC issued guidelines on public demonstrations, 58 underlining the
Police’s duty to intervene only in cases of criminal behavior, breach of peace, anticipated
imminent violent situation s, or sight of dangerous weapons; to make arrests only where deemed
appropriate; to disperse demonstrations in an orderly manner; and at all times to guarantee free
and unrestricted media coverage. 59 The organizers are required to give written notification to the
police, designate an officer to coordinate the activity, not violate the rights of others, and not
disrupt the right of passage. 60
As observed by the National Development Plan, the current law constrains productive
engagement between NGOs and the government. 61 Thus the flourishing of NGOs in Uganda has
not been due to a favorable legal environment.
49 Muwanga Kivumbi v. AG, Constitutional Petition No. 9/2005.
50 Public Order and Management Act (2013) § 3.
51 Id. § 4 (1).
52 Id. § 5.
53 Id. § 5(5).
54 Id. § 5(8).
55 Uganda Penal Code Act, § 56.
56 Uganda Penal Code Act, § 65.
57 Uganda Penal Code Act, § 83.
58 UHRC GUIDELINES ON PUBLIC DEMONSTRATIONS AND PROCESSIONS IN UGANDA 76 -77 (2011) .
59 UHRC Annual Report (2011) 76 -77.
60 UHRC GUIDELINES , supra note 58 , at 76 -77 .
61 National Development Plan (2010) at 28.
As propounded by Fisher, NGOs flourish when
demand for services is not met, irrespective of whether the government is democratic or not,
particularly in light of government incapacity to enforce repressive registration. 62 Luckily, the
NGO Board hardly has the capacity to enforce the law.
To mitigate the negative repercussions of the law, the NGO Forum and DENIVA have
worked with the National NGO Board to develop the NGO regulations and Policy as well as
strengthen the capacity of the NGO Board to understand its roles and responsibilities. 63
Having analyzed the law and highlighted the fact that it is aimed at controlling CSOs, the
following discussion analyzes the underlying reasons for controlling CSOs’ spaces.
4. The Struggle for Power, Resources, and Influence
Any organization or actor with influence and power must be subjected to pressure for
accountability. 64 The increasing power and influence of CSOs has triggered public scrutiny of
their own accountability for organizational resources. Unfortunately at the time of drafting the
NGO Act in 2006, there was ambivalence about growing public cynicism over the CSO sector,
particularly in the aftermath of the misappropriation of Global Alliance for Vaccine and
Immunisation (GAVI) Fund, where Government NGOs (GONGOs) tainted the image of the
sector. During the advocacy call-in radio programs organized by the sector, most callers attacked
CSOs as thieves and commended government for streamlining the sector.
The scramble for scarce resources is a source of tension between CSOs and government.
For example, the fact that in 2009 NGOs spent about US $200 million, which is comparable to
the World Bank Poverty Support Credit (PRSP) budget, has ignited antagonism. 65 Consequently,
the Ministry of Finance Survey on the NGOs’ revenue 66 recommended coordinating donor aid
flows by the Ministry of Finance; monitoring by the Local Governments; revoking an NGO’s
license for failure to disclose the financial information; and making the registration and renewal
of the NGO license stricter. 67
Worse still, the suspension of direct budgetary support to government for 2013, while
maintaining support to projects, agencies, and civil society, 68 has aggravated state -civil society
62 J. FISHER , NGO S AND THE POLITICAL DEVELOPMENT OF THE THIRD WORLD 2 (1998) at 68.
63 R. Sewakiryanga, Statement by Civil Society Representative at the Launch of the National NGO Policy ,
27 July 2012 at the Golf Course Hotel, Kampala, Uganda.
64 EDWARDS , supra note 5, at 17; M. Robins on, What Rights Can Add to Good Development Practice, in
HUMAN RIGHTS AND DEVELOPMENT : TOWARDS MUTUAL REINFORCEMENT (P. Alston & M. Robinson eds.) (2005)
65 UGANDA GOVERNMENT , MINISTRY OF FINANCE , PLANNING AND ECONOMIC DEVELOPMENT (M OFPED )
AND BELGI AN TECHNICAL COOPERATION (BTC) DATA COLLECTION ON DONOR SUPPORT IN LOCAL GOVERNMENT
AND THE DEVELOPMENT OF A TOOL FOR TRACKING DONOR SUPPORT AT THE MICRO LEVEL 33, 37 (2009) .
66 Uganda NGO Board Records (2005) ADM/79/158/02, 11 April 2007.
67 Id. at 9,13 -14.
68 Mark Lowcock, Ugandan Citizens and Donors Must Not Tolerate Stealing of Public Funds , DAILY
MONITOR , 7 Dec. 2012, at 2; Samuel Sanya & Anne Mugisa, Government to Cut Budget to Fund Critical Sectors,
NEW VISION , 5 Dec 2012, at 1.
69 Abdalla, supra note 4, at 5.
For example, the President during the Oil Bill debate questioned how ACODE could
expend more Parliamentary allowances than government could provide and instructed the IGG to
investigate the asset base of NGO officials. 70 Moreover, the government’s accusation that NGOs
are promoting foreign interests is absurd given that both government and NGOs receive
resources from the same donors.
Consequently, the future of independent organizations lies not only with government
respect of rights, but also with civil society’s coherence in defending its rights. 71 In strengthening
CSOs’ voice, it is imperative that they strengthen their internal governance through self –
regulation. However, while the NGO Forum and DENIVA have introduced the Quality
Assurance Management (QuAM) as a peer -review mechanism to enhance good governance, it is
voluntary and casually enforced. Consequently, on failure to self -regulate, the CSO sector is
prone to being besieged by government with the legitimate excuse that it is filling the void
created by the inability of the sector to self -regulate.
NGO operations are shaped and regulated within the frameworks that are determined by
the state’s political interests. 72 Currently, the National Development Plan (NDP) predominantly
perceives CSOs as “appendages of government whose programmes and financing should be
integrated in the government plans.” 73 Yet, successful partnership should be premised on the
independence and autonomy of the parties. Thus the desire to align CSOs’ work with
government’s priorities contradicts the very essence of advocacy work because it is the
controversy which warrants alternative voices.
Given the vulnerability of CSOs when power fights back, there is preference for non –
confrontational and non -contentious strategies that keep organizations apolitical, such as
engaging issues that the state does not contest. This explains the weak coherent voice in
constructively engaging government to safeguard their autonomy. In spite of the major coalitions
such as the Human Rights Network (HURINET), Uganda Women’s Network (UWONET), and
NGO Forum and Development Network of Indigenous Associations (DENIVA) advocating
against the 2006 law, only eight organizations 74 petitioned the President not to sign it.
Expectedly, the President did not acknowledge the petition but instead summoned the NGOs
working in Northern Uganda to his private home in Rwakitura, and warned against meddling in
the internal security and political affairs. 75
70 Monitor Team, Museveni Hits Back at MPs in the Oil Bill Row, DAILY MONITOR, 14 Dec 2012, at 1;
Henry Mulindwa & Dalton Kaweesa, Bribery Claims Dog Debates, Ministers Go into Hiding, RED PEPPER, 9 Dec.
2012, at 5; Vision Reporter, NGOs React to President’s Accusation, NEW VISION, 15 Dec. 2012, at 5.
71 C.M. Peter, The State and Independent Civil Society Organisations: The Case of Tanzania Women
Council (BAWATA), in CIVIL SOCIETY AND DEMOCRATIC DEVELOPMENT IN TANZANIA (A.S. Kiondo & J.E.
Nyang’oro eds. 2006b) at 117.
72 M.K. Juma, The Compromised Brokers: NGOs and Displaced Populations in East Africa, in HUMAN
RIGHTS , THE RULE OF LAW , AND DEVELOPMENT IN AFRICA (Zeleza & McConnaughay eds.) (2004) at 236.
73 NDP 2010, at 28.
74 NGO Forum, DENIVA, HURINET, Advocates Coalition for Development and Environment (ACODE),
Uganda Child Rights Network, the African Network for Prevention and Protection Against Child Abuse and Neglect
(ANPPCAN), Environmental Alert and Ant i-Corruption Coalition of Uganda.
75 HURINET notes from meeting with President Museveni’s meeting with NGO working in Northern
Uganda, 13 April 2006, 4:20 -9:00 p.m.
By comparison, to underscore the importance of a
collective voice, the charismatic churches through the National Fellowship of Born Again
Pentecostal Churches (NFBAPC) held high -powered meetings with government and attended in
large numbers of over a hundred. 76 Consequently, faith-based organizations were excluded from
the ambit of the NGO Policy except those engaged in NGO -type activities. 77
Women’s organizations are most notorious for implementing the NRM agenda without
challenging the regime. At the 50th Anniversary dinner hosted by the Uganda Women’s Network
(UWONET) and the Uganda Women’s Parliamentary Association (UWOPA), the President
paternalistically cited the Biblical fourth commandment of “honor and obey your parents,”
equating the NRM under his leadership to the parent of the women’s movement. 78
A comparative study of Ghana, Uganda, and South Africa established that close
proximity to government can facilitate access to opportunities and information while
simultaneously compromising a CSO’s independent influence on legal and policy frameworks in
situations of competing interests. 79 For example, the fact that the Ministry of Defense 80 presented
the same NGO Amendment Bill of 2001 and 2004 in 2006 created the illusion of a long
participatory process. However, the Act was passed in 2006, in less than three hours and without
the NGOs’ knowledge. 81 Likewise, during the Petroleum Exploration and Development Bill of
2012 ( Oil Bill) debates, two Coalitions, Oil Watch Coalition and the Civil Society Budget
Advocacy Groups worked with Parliamentarians to contest the Minister’s unilateral powers to
negotiate, grant, and revoke licenses, but it was passed on account of the NRM’s numerical
strength. 82 Similarly, while the collaboration between UWOPA and the women’s movement
resulted in the enactment of the Domestic Violence Act, the Anti -Female Cutting Act, and the
Anti -Human Trafficking Act, the Marriage and Divorce Bill was withdrawn on the initiation of
the NRM itself.
It is noteworthy that the NDP acknowledges that its relationship with CSOs is
characterized by mutual suspicion and hostility. 83 CSOs perceived to be acting against
government agendas or seeking accountability of government are stigmatized as partisan. This
situation is exacerbated by the President’s dominance of all aspects of government, policy, and
political appointments, as well as ability to dictate the Parliamentarians’ resolutions.
Inadvertently, there is shrinking space for critical alternative organizing, owing to public political
apathy and self -censorship of CSOs ’ watchdog role. For example, the Walk to Work (W2W) 84
against the high cost of living and the Black Monday campaigns against corruption have been
criminalized as inciting violence.
76 National NGO Board, ADM/79/158/02, 11 April 2007, Min.01.04.07.
77 NGO Policy (2010) 11.
78 Interview with Rita Aciro, Executive Director, UWONET, 19 Nov. 2012 .
79 B. Nyangabyaki, S. Friedman & M. Robinson, CIVIL SOCIETY , DEMOCRACY ASSISTANCE AND PUBLIC
POLICY IN AFRICA (unpublished), Sussex: Institute of Development Studies, 24 (2001).
80 Althou gh NGOs are under the Ministry of Internal Affairs, the NGO Bill was presented by the Ministry
of Defence under the guise that some NGOs are a security threat.
81 Uganda Hansards, 4 April 2006, 10:34 a.m to 12:13 p.m.
82 Mulindwa & Kaweesa, supra note 70 , at 5; Mercy Nalugo, MPs Support Kadaga in Bid to Reject Bill,
DAILY MONITOR , 5 Dec. 2012, at 7; Henry Sekanjako, Civil Society Present Petition to Kadaga, NEW VISION , 6
Dec. 2012, at 6; Sheila Naturinda, Govern ment Insists on Oil Law Powers, DAILY MONITOR , 7 Dec. 2012, at 1.
83 GOU, THE NATIONAL DEVELOPMENT PLAN 28 (2010).
84 This was a protest against the high cost of living spearheaded by the For God and My Country pressure
group led by the opposition.
In 2013, when a military man was appointed to head the
Ministry of Internal Affairs, his inaugural address to Parliament unsurprisingly listed among his
top priorities “restraining NGOs from engaging in activities different from what they registered
for and enforcing stricter media regulations.” 85 Such obsessive surveillance is likely to stifle the
CSO’s watchdog role.
Threats of deregistration have been targeted at NGOs that engage in issues considered
political or contrary to the government’s positions. In 2011, a Uganda Land Alliance publication,
Impact of Land -Grabbing on Food Security and Wellbeing, was perceived to be defaming the
President and inciting economic sabotage. 86 In 2012, the Ministry of Ethics threatened to
deregister NGOs contesting the Anti-homosexuality Bill. 87 Similarly, some District leaderships
have misinterpreted their monitoring role of CSOs to include powers to shut down organizations
in cases of disagreement, particularly those accused of interfering in local politics and criticizing
government. 88 For their advocacy on the Oil Bill, ACODE, NAPE, and African Institute for
Energy Governance were castigated as political, subversive, or engaged in economic sabotage.
A few NGOs have served as a “critical allies” of the state, capable of holding government
accountable to its human rights obligations. The Black Mon day Campaign stands out as an overt,
well -organized campaign involving major Coalitions and Networks, NGO Forum, DENIVA,
HURINET, and UWONET to challenge government over its political impunity for corruption. In
the wake of the Office of the Prime Minister (OPM) scandal where over USD 160 million was
stolen, 11 November 2011 was declared Black Monday with the closure of the NGO offices and
wearing of black. However, although the Black Monday campaign was held within the law, and
the Inspector General of Police, the Minister of Internal Affairs, and the President were duly
notified, the police blocked the organizers from accessing the premises. The Police believe that
the duty to “prevent and detect crime” 89 entitles them to disperse gatherings suspected of
disrupting law and order, 90 particularly those seen as antithetical to government. Moreover,
Black Monday activists continue to be apprehended by Police and their materials confiscated,
though without any charges filed against them. 91
In sum, CSOs have not consistently and effectively held government accountable to its
human rights obligations, but rather work mainly as its pliant servant in an apolitical manner.
Conceptualizing governance as a social contract warrants more dynamism of CSO political
consciousness, which is the subject of the next section.
85 http://www.monitor.co.ug/News/National/Aronda -vows -to-deal -with -activists –NGOs/ –
/688334/1925558/ -/oe0otq/ -/index.html .
86 Int erview with Obaikol, Executive Director, Uganda Land Alliance, 10 Nov. 2012.
87 Interview with Ambassador Kangwagye, Chairperson NGO Board, 29 Nov. 2012.
88 Mudangha Kolyangha, NGOs in Budaka Face Expulsion, SUNDAY MONITOR , 6 Jan. 2013, at 7.
89 UGANDA CONST ., Art 212 (c).
90 Andrew Kawesi, Assistant Inspector General of Police, Makerere University Public Dialogue, HUMAN
RIGHTS SITUATIONS IN THE COUNTRY , IN THE CONTEXT OF THE RULE OF LAW AND KEEPING LAW AND ORDER BY
SECURITY AGENCIES , 16 Nov. 2012.
91 Solomon Arinaitwe, Richard Wanambwa, & Ismail Musal Ladu, Activists Held Over Graft Flyers,
DAILY MONITOR , 8 Jan. 2013, at 7; NTV Tonight News Bulletin, Aired the arrests of Arthur Larok, Country
Director of Action Aid, Leonard Okello, Executive Chairman of Uhuru Institute, and Rtd. Bishop of Kampala, Zac
5. Strengthening CSO’s Political Consciousness
In order for CSOs to effectively engage the state, they must appreciate that human rights
struggles are political struggles. The linkages between civil and political society are “natural,
useful and should be encouraged,” without necessarily being partisan. 92 Yet while it is important
that CSOs are not partisan, they need not be ideologically neutral. Promoting human rights entails
addressing the power relations in the political and social struggle for societal transformation. 93
The UDHR acknowledgment that “it is essential, if man is not to be compelled to have recourse,
as a last resort, to rebellion against tyranny and oppression, that human rights should be protected
by the rule of law,” makes human rights integral to the political realm. 94 Because democracy
means a government of the people, by the people, and for the people, democracy is about people,
and it is only good governance that can deliver development. 95
This article argues that any successful struggle for social justice is first and foremost a
political struggle “to redefine the subjects and their entitlements.” 96 Even human rights
education is political education because it enables citizens to participate from an informed point
of view. 97 Boulie argues that being apolitical is a façade: 98
As educationists, CSOs provide training ground for democratic citizenship;
develop political skills and new leaders; stimulate political participation and
educate the broader citizenry on a wide range of public interest issues. As
watchdogs, they act as a check on the State’s inclination towards centralising
power and evading civic accountability. As service deliverers, they supplement
government programmes by providing goods and services directly to the
people who need them. Often, overlooked are their political role –
supplementing political parties as varied and flexible mechanisms through
which citizens define and articulate a broad range of interests and exert their
demands on government.
CSOs deepen democracy through such actions as championing the cause of the
marginalized, operating as interest groups, influencing policies, educating and mobilizing
citizens to hold power accountable, and contributing to political and human rights consciousness.
92 Edwards, supra note 5, at 26.
93 S. GUTTO , HUMAN AND PEOPLE ’S RIGHTS FOR THE OPPRESSED : CRITICAL ESSAYS THEORY AND PRACTICE
FROM THE SOCIOLOGY OF LAW PERS PECTIVES 134 (1993) ; S. DICKLITCH , THE ELUSIVE PROMISE OF NGO S 18, 24
94 M.K. Bromley, The International Human Rights Law Group: Human Rights and Access to Justice in
Post -Conflict Environments, in NGO S AND HUMAN RIGHTS : PROMISE AND PERFORMANCE (We lch Jr. ed.) ( 2001) at
95 Julius Ihonvbere, Good Governance and Economic Bliss, http://julius.ihonvbere.com/2009/10/good –
governance -and -economic -bliss/2/ .
96 Ma mdani (2002), 59, www.africaaction.org/rtable/rtb2.pdf .
97 S. Koenig, Human Rights Education, Human Rights, Culture and the Community of Non -Governmental
Organisations: The Birth of a Political I deology for the 21 st Century , in HUMAN RIGHTS EDUCATION :
ACHIEVEMENTS AND CHALLENGES , INSTITUTE FOR HUMAN RIGHTS 125 (Akermark et al. eds.) (1998) [Abo Akademi
University in collaboration with the Finnish National Commission for UNESCO and UNESCO].
98 J. B oulie, Putting the Voluntary Sector Back on Map in the Development Agenda and the Voluntary
Sector, 1 QUARTERLY JOURNAL OF THE SOUTH AFRICAN NGO COALITION AND INTERFUND 22 (1997).
Yet human rights organizations claim to be neutral and nonpolitical in order to appease donors
and governments. 99
Evidently, the line drawn between political and nonpolitical is just a nuance, for
obviously the struggle for political participation must be fought in the political arena. 100 Politics
means who gets what, when, and how, or the distribution of power in terms of resources and
influence for the common good. 101 In effect, being apolitical amounts to being political in the
face of rampant corruption, violations of rights, and exclusion of the majority of the populace
from decision -making. Inadvertently, by accepting the myth of being nonpolitical or apolitical,
CSOs side with the status quo. However, in Uganda, an honest discussion that interrogates
CSOs’ stand in negotiating the political discourse is yet to evolve. 102
The UDHR underlines the idea that respect of human rights counters rebellion 103 by
reassuring the public that government will ensure the enjoyment of rights, be a neutral arbiter in
disputes, and serve as a mechanism to access public resources. Government is expected to
provide the legal and regulatory framework for civil society to accomplish its watchdog role. In
reality, government is paternalistic in engaging CSOs. Consequently, the law is geared more
towards controlling CSO actions to restrain them from participating in politics than towards
facilitating CSOs’ democratic organizing and independent space. Government is antagonistic
towards CSOs’ oversight role, particularly in contested strategies and priorities. Further, the
competition over donor resources has conflicted the government and CSOs’ relationship, with
the President publicly accusing CSOs of being economic saboteurs and foreign pawns.
Cognizant that human rights and struggle are two sides of the same coin, because human
rights is not a favor but an entitlement that must be claimed even when the law denies those
rights, 104 it is incumbent on CSOs to organize and struggle for their rights to freedom of
association. The right to participate in the governance of one’s country is not reserved for
politicians but it is a right equally applicable to all citizens. 105 The right to freedom of association
is the inherent cornerstone of all African social relationships, with each person having a right and
duty to contribute, argue, disagree, and agree for their mutual benefit. CSOs do not render the
state irrelevant, but complement government by expanding pluralism and diversity of opinions
and holding it accountable to its human rights obligations. Hence, the need for CSOs’ collective
voice and identity coupled with the imperative to self -regulate in order to circumvent
government’s undue interference in the internal functions of CSOs.
99 C.A. Odinkalu, Why More Africans Don’t Speak the Human Rights Language, Carnegie Council on
Ethics and International Affairs Human Rights Dialogue: Human Rights in Times of Conflict —Humanitarian
Interventions, Series 2, Number 5, 3 (2001).100 K. Kibwana, The Right to Civil Disobedience, in SEARCH FOR FREEDOM AND PROSPERITY
CONSTI TUTIONAL REFORM IN EAST AFRICA 194 (K. Kibwana, C.M. Peter & J. Oloka -Onyango eds.) (1996).
101 K. Umar and J.O. Kuye, Rationalism and the Problematique in Policy Making and Analysis: The Case
of Public Policy Targeting in Africa , 41 JOURNAL OF PUBLIC ADMINI STRATION 807, 817 (2006).
102 W. Mutua, Introduction: Human rights NGOs in East Africa: Defining the Challenges, in HUMAN
RIGHTS NGO S IN EAST AFRICA : POLITICAL AND NORMATIVE TENSIONS 9 (M. Mutua ed .) (2009).
103 UDHR (1948), Preamble.
104 C. Heyns, Struggle App roach to Human Rights, in HUMAN RIGHTS , PEACE AND JUSTICE IN AFRICA : A
READER 15 -16 (C. Heyns & K. Stefiszyn eds.) (2006).
105 Christopher Mtikila v. AG , High Court of Dodoma, Civil Case No. 5 of 1993, discussing the
constitutionality of § 40 of the Police Force ordinance 1953, in Peter, supra note 11 , at 694.
The work of civil society is essentially political, albeit not necessarily partisan, because
social justice entails challenging the status quo of unequal power relations. CSOs strengthen
political pluralism, enhance citizens’ political consciousness for informed engagement, and serve
as watchdogs of government. Being apolitical is complicit in fostering inequity and abuse of
power. It is incumbent on CSOs to ensure that they act coherently in order to protect their
autonomy and legitimacy so that they can advance a human rights culture. Conversely, CSOs are
vulnerable to being dominated as mere inputs into the government ’s agenda.
e are tired of tolerating IBIS’ political
interference in Bolivia.” 119
A September 2014 article in the New York Times asserted that foreign “money is
increasingly transforming the once -staid think -tank world into a muscular arm of foreign
governments’ lobbying in Washington.” 120 The following week, United States
Representative Frank Wolf wrote a letter to the Brookings Institution, in which he urged
them to “end this practice of accepting money from … foreign governments” so that its
work is not “compromised by the influence, whether real or perceived, of foreign
Some governments assert that foreigners are not only seeking to meddle in domestic
political affairs, but also seeking to destabilize the country or otherwise engage in “regime
change.” Accor dingly, they argue that foreign funding restrictions are necessary to thwart efforts
to destabilize or overthrow the government currently in power.
In 2013 in Sri Lanka , the government justified a recent registration requirement for all
CSOs on the grounds that it was necessary to “thwart certain NGOs from hatching
117 Jonathan Lis, “Draft bill: NGOs with foreign funding to be defined ‘foreign agents,’” Haaretz , May 26,
2013, accessed September 8, 2014, http://www.haaretz.com/news/national/.premium -1.592754 .
118 “Some Azerbaijani NGOs Cooperated with Armenian Special Services Under ‘People’s Diplomacy,’”
Trend, August 15, 2014, accessed September 8, 2014, http://en.trend.az/news/politics/230 3147.html .
119 Agence France -Presse, “Bolivia expels Danish NGO for meddling,” Global Post , December 20, 2013,
accessed September 16, 2014, http://www.gl obalpost.com/dispatch/news/afp/131220/bolivia -expels -danish -ngo –
120 Eric Lipton, Brooke Williams, & Nicholas Confessore, “Foreign Powers Buy Influence at Think Tanks,”
New York Times , September 6, 2014, accessed September 17, 2014,
http://www.nytimes.com/2014/09/07/us/politics/foreign -powers -buy -influence -at-think -tanks.html?_r=0 .
121 Letter from Representative Frank Wolf to Strobe Talbott of the Brookings Institution, September 9,
2014, accessed September 17, 2014, https://s3.amazonaws.com/s3.documentcloud. org/documents/1301186/rep –
frank -wolfs -letter -to-strobe -talbott -at.pdf .
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 23
conspiracies to effect regime change by engaging in politics in the guise of doing social
A drafter of the Russian “foreign agents” law justified the initiative when it was pending
in pa rliament, stating, “There is so much evidence about regime change in Yugoslavia,
now in Libya, Egypt, Tunisia, in Kosovo — that’s what happens in the world, some
governments are working to change regimes in other countries. Russian democracy needs
to be prot ected from outside influences.” 123
In 2005, the Prime Minister of Ethiopia expelled civil society organizations, explaining,
“there is not going to be a ‘Rose Revolution’ or a ‘Green Revolution’ in Ethiopia after the
election” 124 — a reference to the so -called “color revolutions” that had recently occurred
in Georgia and elsewhere.
In June 2012, Uganda’s Minister for Internal Affairs justified the government’s threats to
deregister certain CSOs, stating that CSOs “want to destabilize the country because that
is what they are paid to do…. They are busy stabbing the government in its back yet they
are supposed to do humanitarian work.” 125
In the process of driving civil society organizations out of Zimbabwe , President Mugabe
justified his policies by claiming that the CSOs were fronts for Western “colonial
masters” to undermine the Zimbabwean government. 126 Similarly, the central committee
of Mugabe’s party claimed, “Some of these NGOs are working day and night to remove
President Mugabe and ZANU PF from power. They are being funded by Britain and
some European Union countries, the United States, Australia, Canada and New
In a March 2014 interview justifying a draft “foreign agents” law, Kyrgyzstan’s
President Atembaev argued, “Activities conducted by CSOs are obviously aimed at
destabilization of the situation in the Kyrgyz Republic…. Some CSOs do not care about
how they get income, whose orders to fulfill, which kind of work to execute…. There are
122 Xinhua, “Sri Lanka to Investigate NGOs Operating in Country,” Herald , June 13, 2013, accessed
September 8, 2014, http://www.herald.co.zw/sri -lanka -to-investigate -ngos -operating -in-country/ .
123 “Russian parliament gives first approval to NGO bill,” BBC , July 6, 2012, accessed September 8, 2014,
http://www.bbc.com/news/world -europe -18732949 .
124 Darin Christensen & Jeremy M. Weinstein, “Defunding Dissent,” Journal of Democracy 24(2) (April
125Pascal Kwesiga, “Govt gets tough on NGOs,” New Vision , June 19, 2012, accessed Septembe r 9, 2014,
http://www.newvision.co.ug/news/632123 -govt -gets -tough -on-ngos.html .
126 Thomas Carothers, “The Backlash Against Democracy Promotion,” Foreign Affairs , March/April 2006,
accessed September 9, 2014, http://www.foreignaffairs.com/articles/61509/thomas -carothers/the -backlash -against –
democracy -promotion .
127 “29 NGOs banned in crackdown,” New Zimbabwe , February 14, 2012, accessed September 9, 2014,
http://www.newzimbabwe.com/news -7189 -29+NGOs+banned+in+crackdown/new s.aspx .
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 24
forces interested in destabilizing the situation in Kyrgyzs tan and spreading chaos across
Central Asia and parts of China.” 128
In July 2014, the vice chairman of the China Research Institute of China -Russia Relations
argued that China should “learn from Russia” and enact a foreign agents law “so as to
block the way for the infiltration of external forces and eliminate the possibilities of a
Color Revolution.” 129
2. Transparency and Accountability
Another justification commonly invoked by governments to regulate and restrict the flow
of foreign funds is the importance of upholding the integrity of CSOs by promoting transparency
and accountability through government regulation. Consider, for example, the following
responses by government delegations to the UNSR’s Resource Report:
Egypt : “We agree with the principles of accountability, transparency, and integrity of the
activities of civil society organisations and NGOs. However, this should not be l imited to
accountability to donors. National mechanisms to follow -up on activities of such entities,
while respecting their independence have to be established and respected.” 130
Maldives : “While civil societies should have access to financing for effective operation
within the human rights framework, it is of equal importance that the organizations must
also ensure that they work with utmost integrity and in an ethical and responsible
Azerbaijan : “The changes and amendments to the national legisl ation on NGOs have
been made with a view of increasing transparency in this field…. In that regard, these
amendments should only disturb the associations operating in our country on a non –
transparent basis.” 132
Similarly, in response to a United Nations Hum an Rights Council panel on the promotion
and protection of civil society space in March 2014, the following government delegations
responded with justifications invoking transparency and accountability:
128 “Алмазбек Атамбаев: “Хочу максимально успеть,” Slovo.kg , March 23, 2014, accessed September
9, 2014, translated by Aida Rustemova, http://slovo.kg/?p=35019 .
129 Simon Denyer , “China taking the Putin approach to democracy,” Washington Post, October 1, 2014,
130 UN Office of the High Commissioner for Human Rights, “Clustered ID with the WG on HR and
Transnational Corporations and the SR on The Rights to Freedom of Assembly an d Association: Intervention
delivered by the Permanent Delegation of Egypt,” May 30, 2013, accessed September 9, 2014,
https://extran et.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Egypt_10_1.pdf .
131 UN Office of the High Commissioner for Human Rights, “Interactive Dialogue with the Special
Rapporteur on the Rights to Peaceful Assembly and of Association, M aldives Oral Statement,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/ 23rdSession/OralStatements/Maldives_12.pdf .
132 UN Office of the High Commissioner for Human Rights, “Remarks by Azerbaijan,” May 31, 2013,
accessed September 9, 2014,
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 25
Ethiopia , on behalf of the African Group: “Domestic l aw regulation consistent with the
international obligations of States should be put in place to ensure that the exercise of the
right to freedom of expression, assembly and association fully respects the rights of
others and ensures the independence, accou ntability and transparency of civil society.” 133
India, on behalf of the “Like Minded Group”: “The advocacy for civil society should be
tempered by the need for responsibility, openness and transparency and accountability of
civil society organizations.” 134
Pa kistan , on behalf of the Organisation of Islamic Cooperation members : “It may be
underscored that securing funding for its crucial work is the right of civil society,
maintaining transparency and necessary regulation of funding is the responsibility of
sta tes.” 135
Kyrgyzstan has also employed this argument to justify a draft “foreign agents” law. The
explanatory note to the draft law claims that it “has been developed for purposes of ensuring
openness, publicity, transparency for non -profit organizations, inc luding units of foreign non –
profit organizations, as well as non -profit organizations acting as foreign agents and receiving
their funds from foreign sources, such as foreign countries, their government agencies,
international and foreign organizations, fo reign citizens, stateless persons or their authorized
representatives, receiving monetary funds or other assets from the said sources.”
3. Aid Effectiveness and Coordination
A global movement has increasingly advocated for greater aid effectiveness, including
through concepts of “host country ownership” and the harmonization of development
assistance. 136 However, some states have interpreted “host country ownership” to be
synonymous with “host government ownership” and have otherwise co -opted the aid
effectivene ss debate to justify constraints on international funding. For example:
133 UN Office of the High Commissioner for Human Rights, “Statement by Ethiopia on behalf of the
African Grou p at the 25th session of the Human Rights Council On the Panel Discussion on the Importance of the
Promotion and Protection of Civil Society Space,” March 11, 2014, accessed September 9, 2014,
134 UN Office of the High Commissioner for Human Rights, “Joint Statement: India on behalf of like –
minded countries,” March 11, 2014, accessed September 9, 2014,
%20of%20LMG_PD_21.pdf . The “Like Minded Group” consists of Algeria, Bahrain, Bangladesh, Belarus,
Chi na, Cuba, Egypt, India, Indonesia, Malaysia, Pakistan, Russia, Saudi Arabia, Singapore, South Africa, Sri
Lanka, Sudan, Uganda, United Arab Emirates, Vietnam , and Zimbabwe .
135 UN Office of the High Commissioner for Human Rights, “Statement by Pakistan on be half of OIC:
Panel Discussion on Civil Society Space,” March 11, 2014, accessed September 9, 2014,
136 See the Aid Effectiveness Agenda of the Paris Declaration (2005), the Accra Agenda for Action (2008),
and the Busan Partn ership for Effective Development Cooperation (2011).
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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
At the recent Africa Leaders Summit, the Foreign Minister of Benin s poke a t a workshop
on closing space for civil society. He asserted that CSOs “don’t think they are
accountable to government but only to development partners. This is a problem.” He said
Benin needs “a regulation to create transparency on resources coming from a broad and
the management of resources,” stating that the space for civil society is “too wide.” 141
The Intelligence Bureau of India released a report in June 2014 claiming that foreign –
funded CSOs stall economic development and negatively impact India’s GDP growth by
2 to 3 percent. 142 The report stated, “a significant number of Indian NGOs, funded by
some donors based in the US, the UK, Germany, the Netherlands and Scandinavian
137 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, accessed September 9, 2014,
138 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, Article 2.2, acces sed September 9, 2014,
139 “No foreign funds without approva l: Ministry,” Daily Mirror , July 22, 2014, accessed September 9,
2014, http://www.dailymirror.lk/news/50038 -no -foreign -funds -without -approval -ministry.html .
140 UN Office of the High Commissioner for Human Rights, “Clustered ID with the WG on HR and
Transnational Corporations and the SR on The Rights to Freedom of Assembly and Association: Intervention
delivered by the Permanent Delegation of Egypt,” May 30, 2013, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Egypt_1 0_1.pdf .
141 Personal notes of author.
142 “Foreign -funded NGOs stalling development: IB report,” Times of India , June 12, 2014, accessed
September 9, 2014, http://timesofindia.indiatimes.com/india/Foreign -funded -NGOs -stalling -development -IB –
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 27
countries, have been noticed to be using people centric issues to create an enviro nment
which lends itself to stalling development projects.” 143
4. National Security, Counterterrorism, and Anti -Money Laundering
As discussed above, governments also invoke national security, counterterrorism, and
anti -money laundering policies to justify restr ictions on international funding, including cross –
border philanthropy. For example, the Financial Action Task Force (FATF), an
intergovernmental body that seeks to combat money laundering and terrorist financing, stated:
The ongoing international campaign against terrorist financing has unfortunately
demonstrated however that terrorists and terrorist organisations exploit the NPO
sector to raise and move funds, provide logistical support, encourage terrorist
recruitment or otherwise support terrorist organi sations and operations. This
misuse not only facilitates terrorist activity but also undermines donor confidence
and jeopardises the very integrity of NPOs. Therefore, protecting the NPO sector
from terrorist abuse is both a critical component of the globa l fight against
terrorism and a necessary step to preserve the integrity of NPOs. 144
Governments have leveraged concerns about counterterrorism and money laundering to
justify restricting both the inflow and outflow of philanthropy. For example: 145
The governm ent of Azerbaijan justified amendments relating to the registration of
foreign grants, stating that the purpose of the amendments was, in part, “ to enforce
international obligations of the Republic of Azerbaijan in the area of combating money –
143 Rake sh Krishnan Simha, “Why India Should Follow Vladimir Putin’s Lead on NGOs,” Russia & India
Report, June 15, 2014, accessed September 9, 2014,
144 Financial Action Task Force, “International Standards on Combating Money Laundering and the
Financing of Terrorism & Proliferation: The FATF Recommendations,” Financial Action Task Force Report, 2013,
54, accessed September 9, 2014,
http://www.fatfgafi.org/media/fa tf/documents/recommendations/pdfs/FATF_Recommendations.pdf . See also
Financial Action Task Force, “Risk of Terrorist Abuse in Non -Profit Organisations,” Financial Action Task Force
Report, June 2014, http://www.fatf -gafi.org/media/fatf/documents/reports/Risk -of-terrorist -abuse -in-non -profit –
145 Constraints by donor governments on the outflow of cross -border donation s, albeit beyond the scope of
this article, similarly present significant barriers to cross -border philanthropy. These states assert that they have an
international responsibility to regulate the outflow of cross -border donations in order to ensure that fu nding destined
for other countries will not support criminal or terrorist activities in those foreign jurisdictions. For more information
about the justifications employed and the implications for civil society, please see: Ben Hayes, “Counter -Terrorism,
‘Policy Laundering’ and the FATF: Legalizing Surveillance, Regulating Civil Society,” Transnational
Institute/Statewatch Report, February 2012, http://www.statewatch.org/analyses/no -171 -fafp -report.pdf .
146 Charity & Security Network, “How the FATF Is Used to Justify Laws That Harm Civil Society,
Freedom of Association and Expression,” Charity & Security Network , May 16, 2013, accessed September 9, 2014,
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 28
The British Virgin Islands (BVI) enacted a law requiring that CSOs with more than five
employees appoint a designated Anti -Money Laundering Compliance Officer. 147 The
law also imposes audit requirements for CSOs that are not required of businesses. These
burdens were justified with explicit reference to FATF’s recommendation on nonprofit
organizations and counterterrorism. 148
In response to the UNSR’s Resource Report, a group of thirteen African states responded,
“It is the responsibility of governments to ensure that the origin and destination of
associations’ funds are not used for terrorist purposes or directed towards activities which
encourage incitement to hatred and violence.” 149
In 2013, a Sri Lankan government representative similarly stated, “While w e agree that
access to resources is important for the vibrant functioning of civil society, we observe
that Mr. Kiai does not seem to adequately take into account the negative impact of lack of
or insufficient regulation of funding of associations on natio nal security and counter –
In a National Security Analysis released in August 2014, Sri Lanka’s Ministry of
Defence claimed that some civil society actors have links with the Liberation Tigers of
Tamil Eelam, a group with “extremist separatist i deology,” and that these CSOs thereby
pose “a major national security threat.” 151 During the same period, the Sri Lankan
government announced that it was drafting a law requiring CSOs to register with the
Ministry of Defence in order to have a bank account and receive international funding.
5. Hybrid Justifications
While these categories and examples represent the types of justifications offered by
governments for restricting foreign funding, in practice, official statements often combine
multiple justifications. A recent example is the statement made at the UN Human Rights Council
by India on behalf of itself and twenty other “like minded” states, including Cuba, Saudi
147 “Non -Profit Organisations,” British Virg in Islands Financial Investigation Agency, accessed September
9, 2014, http://www.bvifia.org/non -profit -organisations .
148 Charity & Security Network, “How the FATF Is Used to Justify Laws That H arm Civil Society,
Freedom of Association and Expression,” May 16, 2013,
149 UN Office of the High Commissioner for Human Rights, “Oral Statement — Gabon on behalf of the
African Group,” 30 May 2013, accessed September 9, 2014,
150 UN Office of the High Co mmissioner for Human Rights, “23rd Session of the HRC Statement by Sri
Lanka —Item 3: Clustered ID with the SR on the rights to peaceful assembly & of association,” May 31, 2013,
accessed September 9, 2014,
umber=12.0&MeetingDat e=Friday,%2031%20May%202013 .
151 Gotabaya Rajapaksa, “Sri Lanka’s National Security,” Ministry of Defence and Urban Development of
Sri Lanka, August 19, 2014, accessed September 9, 2014,
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Arabia , Belarus, China, and Vietnam ,152 which weaves together a number of different
justifications, including foreign interference, accountability, and national security:
[C]ivil society cannot function effectively and efficiently without defined
limits…. Civil society must also learn to protect its own space by guarding against
machinations of donor groups guided by extreme ideologies laden with hidden
politicized motives, which if allowed could potentially bring disrepute to the civil
society space…. There have also been those civil society organizations, who have
digressed from their original purpose and indulged in the pursuit of donor -driven
agendas. It is important to ensure accountability and responsibility for their
actions and the consequences thereof and also guard against compromising
national and international security. 153
Similarly, Ethiopia, in its statement in response to the UNSR’s Resource R eport,
referenced justifications relating to state sovereignty, aid coordination, and accountability and
It is our firm belief that associations will play their role in the overall
development of the country and advance their objectives, if a nd only if an
environment for the growth of transparent, members based and members driven
civil society groups in Ethiopia providing for accountability and predictability is
put in place. We are concerned that the abovementioned assertion [about
lightening the burdens to receive donor funding] by the special rapporteur
undermines the principle of sovereignty which we have always been guided by. 154
Similarly constructed statements have also been put forward by Pakistan and other states. 155
152 The “Like Minded Group” consisted of Algeria, Bahrain, Bangladesh, Belarus, China, Cuba, Egypt,
India, Indonesia, Malaysia, Pakistan, Russia, Saudi Arabia, Singapore, South Africa, Sri Lanka, Sudan, Uganda,
UAE, Vietnam, and Zimbabwe. UN Office of the Hig h Commissioner for Human Rights, “Joint Statement: India on
behalf of like -minded countries,” March 11, 2014, accessed September 9, 2014,
154 UN Office of the High Commissioner for Human Rights, “Oral Statement: Ethiopia,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Et hiopia_12.pdf .
155 See, e.g., UN Office of the High Commissioner for Human Rights, “Statement by Pakistan on Behalf of
OIC: Panel Discussion on Civil Society Space,” March 11, 2014, accessed September 9, 2014,
ehalf%20of%20OIC_PD_21.pdf : “By virtue of its dynamic role civil society is well poised to build convergences
with the view to develop synergies between state institutions and their own networks. These synergies would
facilitate proper utilization of resources at the disposal state institutions an d civil society actors. In this regard, it
may be underscored that securing funding for its crucial work is the right of civil society, maintaining transparency
and necessary regulation of funding is the responsibility of states…. Within this social space, the civil society can
play its optimal role by working in collaboration with state institutions. Better coordination between civil society
actors and state institution [sic] would also facilitate enhancement of international cooperation in the field of hu man
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 30
In this section, the a rticle briefly surveyed justifications presented by governments to
constrain the inflow of international funding, including philanthropy. In the following section,
we analyze constraints and their justifications under international law.
International Legal Framework
1. International Norms Protecting Access to Resources and Cross -Border Philanthropy
Article 22 of the International Covenant on Civil and Political Rights (ICCPR) states,
“Everyone shall have the right to freedom of association with others….” 156 Acco rding to the
The right to freedom of association not only includes the ability of individuals or legal
entities to form and join an association 158 but also to seek, receive and use resources 159 —
human, material and financial — from domestic, foreign and in ternational sources. 160
The United Nations Declaration on Human Rights Defenders 161 similarly states that
access to resources is a self -standing right:
“[E]veryone has the right, individually and in association with others, to solicit, receive
and utilize reso urces for the express purpose of promoting and protecting human rights
and fundamental freedoms through peaceful means….” 162
According to the Office of the United Nations High Commissioner for Human Rights, this right
specifically encompasses “the receipt of funds from abroad.” 163
156 United Nations International Covenant on Civil and Political Rights, Article 22, December 16, 1966,
157 While reports of the UNSR are not binding international law, his reports are referenced here because
they provide a comprehensive articulation and explanation of international law.
158 International law generally recognizes the freedom of association, and t his section follows that
formulation. Addressing the applicability of international law to non -membership organizations is beyond the scope
of this article, but for more information, please see: International Center for Not -for -Profit Law & World Movement
for Democracy Secretariat, “Defending Civil Society Report, Second Edition,” June 2012, 35,
http://www.icnl.org/research/resources/dcs/DCS_Report_Second_Editi on_English.pdf .
159 The UNSR defines “resources” as a broad concept that includes financial transfers (e.g., donations,
grants, contracts, sponsorship, and social investments), loan guarantees, in -kind donations, and other forms of
support. See United Nation s Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 10, UN Doc. A/HRC/23/39 (April 24, 2013) at
http://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
160 Ibid., para. 8.
161 The UNSR notes that while “the Declaration is not a binding instrument, it must be recalled tha t it was
adopted by consensus of the General Assembly and contains a series of principles and rights that are based on
human rights standards enshrined in other international instruments which are legally binding. Ibid., para. 17.
162 United Nations General Assembly, Declaration on the Right and Responsibility of Individuals, Groups
and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms ,
UN Res. 53/144, Article 13, http://www.un.org/Docs/asp/ws.asp?m=A/RES/53/144 .
163 United Nations Office of the High Commissioner for Human Rights, “Declaration on Human Rights
Defenders,” UN OHCHR, accessed September 9, 2014,
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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, http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC /RES/22/6 .
166 United Nations General Assembly, Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief , November 25, 1981, UN General Assembly Resolution A/RES/36/55,
Article 6(f), http://www.un.org/documents/ga/res/36/a36r055.htm .
167 In similar fashion, the UN Committee on Economic, Social and Cultural Rights recognized the link
between access to resources and economic, social and cultural rights, when it expressed “deep concern” about an
Egyptian law that “gives the Government control over the right of NGOs to manage their own activities, including
seeking external funding.” See Egypt, ICESCR, E/2001/22 (2000) 38 at paras. 161, 176,
http://www.bayefsky.com/themes/public_general_concluding -observations.php .
168 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 9, UN Doc. A/HRC/23/39 (April 24, 2013) at
http://freeassembly.net/wp -content/uploa ds/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
169 Human Rights Committee, communication No. 1274/2004, Korneenko et al. v. Belarus, Views adopted
on October 31, 2006, para. 7.2.
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While this article is focused on global norms, cross -border philanthropy is also
protected at the regional level. For example:
The Council of Europe Recommendation on the Legal Status of NGOs states:
“NGOs should be free to s olicit and receive funding — cash or in -kind donations —
not only from public bodies in their own state but also from institutional or
individual donors, another state or multilateral agencies ….” 170
According to the Inter -American Commission on Human Rights, “states should allow and
facilitate human rights organizations’ access to foreign funds in the context of
international cooperation, in transparent conditions.” 171
In May 2014, the African Commission on Human and Peoples’ Rights (ACHPR)
adopted, in draft for m, a report of the ACHPR Study Group on Freedom of Association
and Peaceful Assembly, with a specific recommendation that States’ legal regimes should
codify that associations have the right to seek and receive funds. This includes the right to
seek and re ceive funds from their own government, foreign governments, international
organizations and other entities as a part of international cooperation to which civil
society is entitled, to the same extent as governments.
The European Court of Justice (ECJ) has issued a series of important decisions about the
free flow of philanthropic capital within the European Union. 172
In addition, many jurisdictions have concluded bilateral investment treaties, which help
protect the free flow of capital across borders. Some treaties, such as the U.S. treaties with
Kazakhstan and Kyrgyzstan, expressly extend investment treaty protections to organizations not
“organized for pecuniary gain.” 173 Indeed, the letters of transmittal submitted by the White
House to the U.S. Senate sta te that these treaties are drafted to cover “charitable and non -profit
170 Council of Europe, “Recommendation CM/Rec (2007)145 of the Committ ee of Ministers to member
states on the legal status of non -governmental organisations in Europe,” adopted October 10, 2007, Article 50,
171 Inter -American Commission on Human Rights, Report on the Situation of Human Rights Defenders in
the Americas , March 7, 2006, Recommendation 19, http://www.icnl.org /research/resources/assembly/oas -human –
rights -report.pdf .
172 For more information on these decisions, see: European Foundation Center and Transnational Giving
Europe, “Taxation of Cross -Border Philanthropy in Europe After Persche and Stauffer: From landloc k to free
movement?”, European Foundation Center Report, 2014,
http://www.efc.be/programmes_services/resources/Documents/TGE -web.pdf ; European Foundation Centre, “ECJ
rules in favour of cross -border giving ,” EFC briefing, January 27, 2009, accessed September 9, 2014,
http://www.efc.be/programmes_services/resources/Documents/befc09 08.pdf .
173 U.S. -Kyrgyz Bilateral Investment Treaty, Article 1(b); U.S. -Kazakh Bilateral Investment Treaty, Article
1(b). See also Article 1(2) of the China – Germany BIT: “the term ‘investor’ means … any juridical person as well
as any commercial or other c ompany or association with or without legal personality having its seat in the territory
of the Federal Republic of Germany, irrespective of whether or not its activities are directed at profit.”
174 Letters of Transmittal available at the U.S. State Departm ent website:
http://www.state.gov/documents/organization/4 3567.pdf .
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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
No restrictions may be placed on the exercise of this right other than those wh ich are
prescribed by law and which are necessary in a democratic society in the interests of
national security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others. 178
In other words, international law allows a government to restrict access to resources if the
(1) prescribed by law;
(2) in pursuance of one or more legitimate aims, specifically:
o national security or public safety;
o public order;
o the protection of public health or morals; or
o the protection of the rights and freedoms of others; and
175 In addition, the European Court of Human Rights has held that Article 1 of the First Protocol of the
European Convention on Human Rights protects the right to peaceful enjoyment of one’s possessions. (Article 1 of
the First Protocol of the Euro pean Convention reads: “Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to
the conditions provided for by law and by the general p rinciples of international law. The preceding provisions shall
not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure the payment o f taxes or other contributions or
penalties.” In addition, the right to property includes the right to dispose of one’s property (Clare Ovey & Robin
White, The European Convention on Human Rights , 3rd edition (Oxford: Oxford University Press, 2002)), which
would seem to embrace the right to make contributions to CSOs for lawful purposes.
176 Luke Eric Peterson & Nick Gallus, “International Investment Treaty Protection of Not -for -Profit
Organizations,” International Journal of Not -for -Profit Law 10(1) (December 2007),
177 Nick Gallus, “Protection of U.S. Non -Governmental Organizations in Egypt under the Egypt -U.S.
Bilat eral Investment Treaty,” International Journal of Not -for -Profit Law 14(3) (September 2012),
178 United Nations International Covenant on Civil and Political Rights, Article 22, December 16, 1966,
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx . Article 22, ICCPR
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(3) “necessary in a democratic society to achieve those aims.” 179
States should always be guided by the principle that the restrictions must not im pair the
essence of the right … the relations between right and restriction, between norm and
exception, must not be reversed. 180
The burden of proof is on the government. 181 In addition:
When a State party invokes a legitimate ground for restriction of freed om of expression,
it must demonstrate in specific and individualized fashion the precise nature of the threat,
and the necessity and proportionality of the specific action taken, in particular by
establishing a direct and immediate connection between the [ activity at issue] and the
The following section amplifies this three -part test contained in Article 22(2).
A. Prescribed by law
The first prong requires a restriction to have a formal basis in law. This means that:
restrictions on the right to free dom of association are only valid if they had been
introduced by law (through an act of Parliament or an equivalent unwritten norm of
common law), and are not permissible if introduced through Government decrees or other
similar administrative orders. 183
As discussed above, in July 2014, the Sri Lankan Department of External Resources of
the Ministry of Finance and Planning disseminated a notice to the public, declaring that any
organization or individual undertaking a project with foreign aid must have appro val from
relevant government agencies. Similarly, in July 2014, Nepal’s government released a new
Development Cooperation Policy that will require development partners to channel all
development cooperation through the Ministry of Finance, rather than directly to civil society. In
both cases, the restriction s were based on executive action and not “introduced by law (through
179 Case of Vona v. Hungary (A pp no 35943/10) (2013) ECHR para. 50,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -122183 .
180 United Nations Human Rights Council, Report of the Special Rappo rteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 16, UN Doc. A/HRC/20/27 (May 21, 2012),
http://www.ohchr .org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A -HRC -20 -27_en.pdf .
181 UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 15, Civil and
Political Rights: The Human Rights Committee, May 2005,
182 United Nations Human Rights Committee, General Comment No. 34, para. 35, UN Doc.
CCPR/C/GC/34 (September 12, 2011), http://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf .
183 See UN Special Rapporteur on the situation of human rights defenders, Commentary to the Declaration
on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Fre edoms, July 2011, 44,
http://www.ohchr.org/Documents/Issues/Defenders/CommentarytoDeclarationondefendersJuly2011.pdf : “It would
seem reasonable t o presume that an interference is only “prescribed by law” if it derives from any duly promulgated
law, regulation, order, or decision of an adjudicative body. By contrast, acts by governmental officials that are ultra
vires would seem not to be ‘prescribe d by law,’ at least if they are invalid as a result.”
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 35
an act of Parliament or an equivalent unwritten norm of common law).” Accordingly, they
appear to violate the “prescribed by law” standard required under Article 22(2) of the ICCPR.
This prong of Article 22(2) also requires that a provision be sufficiently precise for an
individual or NGO to understand whether or not intended conduct would constitute a violation of
law. 184 As stated in the Johannesburg Principles, “The law must be accessible , unambiguous,
drawn narrowly and with precision so as to enable individuals to foresee whether a particular
action is unlawful.” 185
This prong helps limit the scope of permissible restrictions. As discussed above, certain
laws ban funding of organizations that cause “social anxiety,” have a “political nature,” or have
“implied ideological conditions.” These terms are undefined and provide little guidance to
individuals or organizations about prohibited conduct. Since they are not “unambiguous, drawn
narrowl y and with precision so as to enable individuals to foresee whether a particular action is
unlawful,” there is a reasonable argument that these sorts of vague restrictions fail the
“prescribed by law” requirements of international law.
B. Legitimate aim
The second prong of Article 22(2) requires that a restriction advance one or more
“legitimate aims,” 186 namely:
national security or public safety;
the protection of public health or morals; or
the protection of the rights and freedoms of others.
This prong provides a useful lens to analyze various justifications for constraint. For
example, governments have justified constraints to promote “aid effectiveness.” As the UNSR
notes, aid effectiveness “is not listed as a legitimate ground for restricti ons.” 187 Similarly, “[t]he
protection of State sovereignty is not listed as a legitimate interest in the [ICCPR],” and “States
cannot refer to additional grounds … to restrict the right to freedom of association.” 188
Of course, assertions of national security or public safety may, in certain circumstances,
constitute a legitimate interest. Under the Siracusa Principles, however, assertions of national
security must be construed restrictively “to justify measures limiting certain rights only when
184 Though not a fully precise comparison, this concept is somewhat similar to the “void for vagueness”
doctrine in U.S. constitutional law.
185 Article 19, Johannesburg Principles on National Security, Fre edom of Expression and Access to
Information (London: Article 19, 1996), Principle 1.1(a),
http://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf . The Johannesburg Principles were
developed by a meeting of international experts at a consultation in South Africa in October 1995.
186 Case of Vona v. Hungary (App no 35943/10) (2013) ECHR para. 50,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -122183 .
187 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 40, UN Doc . A/HRC/23/39 (April 24, 2013) at
http://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
188 Ibid., pa ra. 30.
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they are taken to protect the existence of the nation or its territorial integrity or political
independence against force or threat of force.” 189 In addition, a state may not use “ national
security as a justification for measures aimed at suppressing opposition … or at perpetrating
repressive practices against its population.” 190 This includes defaming or stigmatizing foreign
funded groups by accusing them of “treason” or “promoting regime change.” 191
Accordingly, under international law, governments cannot rely on generalized claims of
“state sovereignty” to justify constraints on global philanthropy. In the words of the UNSR:
Affirming that national security is threatened when an association receives funding from
foreign sources is not only spurious and distorted, but also in contradiction with
international human rights law. 192
This brief analysis is not intended to explore the details of the aid effectiveness and
sovereignty justifications. Rather, the goal is to illustrate how the “legitimate aim” requirement
of in ternational law can help inform the analysis of certain justifications presented by
governments, such as arguments based on “aid effectiveness” and “sovereignty.”
C. Necessary in a Democratic Society
Even if a government is able to articulate a legitimate aim , a restriction violates
international law unless it is “necessary in a democratic society.” As stated by the Organization
for Security and Co -operation in Europe, the reference to necessity does not have “the flexibility
of terms such as ‘useful’ or ‘conv enient’: instead, the term means that there must be a ‘pressing
social need’ for the interference.” 193 Specifically, “where such restrictions are made, States must
demonstrate their necessity and only take such measures as are proportionate to the pursuance of
legitimate aims in order to ensure continuous and effective protection of Covenant rights.” 194
As stated by the UNSR:
In order to meet the proportionality and necessity test, restrictive measures must be the
least intrusive means to achieve the desired ob jective and be limited to the associations
189 See the “Siracusa Principles” [United Nations, Economic and Social Council, U.N. Sub -Commission on
Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of
Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1985/4 (1984)],
which were adopted in May 1984 by a group of international human rights experts convened by the International
Commission of Jurists, the International Association of Penal Law, th e American Association for the International
Commission of Jurists, the Urban Morgan Institute for Human Rights, and the International Institute of Higher
Studies in Criminal Sciences. Though not legally binding, these principles provide an authoritative s ource of
interpretation of the ICCPR with regard to limitations clauses and issue of derogation in a public emergency. They
are available at: http://graduateinstitute.ch/f aculty/clapham/hrdoc/docs/siracusa.html .
191 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 27, UN Doc. A/HRC/23/39 (April 24, 2013) at
http://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
192 Ibid., para. 30
193 OSCE/Office for Democratic Institutions and Human Rights (ODIHR), Key Guiding Principles of
Freedom of Association with an Emphasis on Non -Governmental Organizations , para. 5
194 United Nations Human Rights Committee, General Comment No. 31 (2004), para. 6, UN Doc.
CCPR/C/21/Rev.1/Ad d. 13, May 26, 2004.
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falling within the clearly identified aspects characterizing terrorism only. They must not
target all civil society associations…. 195
Consider, for example, Ethiopian legislation imposing a 10 percent cap on the for eign
funding of all CSOs promoting a variety of objectives, including women’s rights and disability
rights. As discussed above, Ethiopia has asserted a counterterrorism rationale to justify foreign
funding constraints. Ethiopia does not establish a “ direct and immediate connection between the
[activity at issue] and the threat.” 196 In addition, the cap is not the “least intrusive means to
achieve the desired objective and … limited to the associations falling within the clearly
identified aspects characterizi ng terrorism.” Accordingly, the counterterrorism objective fails to
justify the Ethiopian cap on foreign funding.
The UNSR also applied this test to the “aid effectiveness” justification. In response, he
even if the restriction were to purs ue a legitimate objective, it would not comply with the
requirements of “a democratic society.” In particular, deliberate misinterpretations by
Governments of ownership or harmonization principles to require associations to align
themselves with Government s’ priorities contradict one of the most important aspects of
freedom of association, namely that individuals can freely associate for any legal
In addition, “longstanding jurisprudence asserts that democratic societies only exist
where ‘pluralis m, tolerance and broadmindedness’ are in place,” 198 and “minority or dissenting
views or beliefs are respected.” 199
Applying this test, the UNSR has note