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DEFEATING THE DEFENDERS1: FORIEN FUND RESTRICTION

UNDER CHARTIES AND SOCIETIES PROCLAMATION

Mankind cannot survive but in groups.

Adam Ferguson.

Henok Abeb

Abstract

The FDRE Constitution guaranteed the right to freedom of association, and pursuant to this

right plethora of charities and societies are organized and rendering their services to the

Ethiopian society. The right to freedom of association constitutes the right of the association to

secure resources. The Federal legislature of Ethiopia promulgated Charities and Societies

Proclamation to ensure the realization of the constitutionally protected right of forming an

association. The proclamation categorized civil societies in to three, based on their source of

fund, law of formation and nationality of members. Ethiopian charities or societies cannot solicit

more than 10% of their budget from abroad, and Ethiopian resident charities and societies, and

foreign charities are not allowed to engage in certain selected activities. So much so that the

proclamation is restrained the full exercise of the right to freedom of association. The Siracusa

principles, which are interpretative guidelines of limitations and derogations of rights enshrined

under International Covenant on Civil and Political Rights, stipulate that certain requirements

must be satisfied while restricting the exercise of rights. The proclamation fulfills some of these

requirements and fails to satisfy some others.

The author holds his LL.B from Addis Ababa University and he is now working in Haramaya University as an

Assistant Lecturer. 1 The UN Defenders Declaration defined defenders under article 1 as “anyone who, individually or in

association with others, promotes and strives for the protection and realization of human rights and

fundamental freedoms.” But the term is used here broadly than what is provided by the Declaration.

Charities and societies (civil societies) stand to render services and to defend the interests of their members or

the society at large. Therefore, for the sake of this article ‘defenders’ equated with civil societies. Declaration

on the right and responsibility of individuals, Groups and Organs of society to promote and protect

universally recognized Human rights and Fundamental freedoms. GA Res. 53/144 (9 December, 1998)

Available at http://www.ohchr.org/Documents/Issues/Defenders/Declaration/declaration.pdf. Accessed on 20,

January 2014 at 9:31 am

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Key words: charities and societies, foreign fund restriction, freedom of association, in a

democratic society, legitimate national interest, limitation of rights, necessity, prescribed by law,

Siracusa principles,

I. Introduction

Association of people is natural. As Adam Ferguson said “mankind can’t survive but in

Groups”2, Ethiopians has a long tradition of organizing themselves in to community based self-

help organizations like iquib, idir and debbo, which are formed to alleviate socio-economic

problems.3 Modern civil society organizations start their operation during the reign of King

Haile-Selassie as faith based organization4 as a result of urbanization and economic

development. The course of development of civil societies was slow during the imperial and the

military period than the current regime. However, as a result of the famine that a country

experienced during the former two regimes many more civil societies emerged to render relief

and humanitarian services so as to minimize the plight of the society. The number and area of

participation diversified considerably after the downfall of Derg.5

Non-profit organizations used to be governed by the Imperial Civil Code and Directive issued by

the Ministry of Interior, the present day of Ministry of Justice. However, the provisions in the

code and directive become obsolete due to the passage of time and can’t step together with the

contemporary development of charities and societies in number and activities. Cognizant of the

inadequacies of the previous laws the current government promulgated the Charities and

2 FIDH-AIHR-Freedom of Association in the Arabian Gulf: The Case of Bahrain, Kuwait and Yemen, (undated),P.1 3 The International Center for Not-for-Profit Law, NGO Law Monitor: Ethiopia, 2013.available at

http://www.icnl.org/research/monitor/ethiopia.html. Accessed on January 20, 2014 at 9:28 Pm 4 Ibid. 5 Mary kay gugery, Patterns and Structures of NGO Self-Regulation in Africa, International Journal of Civil Society

Law, Volume VII, Issue I, 2009,p.1 as cited by Abiy Chelkeba, Impact Assessment of Charities and Societies Law

on the Perception, Growth and Programs of Non-Governmental Organizations, LLM Thesis, 2011, p. 13, Available

at www.acadamia.edu Accessed on January 17, 2014, at 10:28 am.

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Societies Proclamation.6 The Proclamation is “one of the most controversial Non-Governmental

Organizations (NGOs) laws in the world.”7 This is because of many reasons that hamper the

activities of charities and societies, and more strongly the restriction of foreign fund and tapered

the playing field for associations that solicit more than 10% of their budget from abroad.

Diversity of area of operation and structure of civil societies in addition to range of requirements

in different countries makes it hard to have a clear-cut definition for civil societies.8 As the

World Bank defined, the term “civil society refers to the wide array of non-governmental and

not-for-profit organizations that have a presence in public life, expressing the interests and values

of their members or others based on ethical, cultural, political, scientific, religious or

philanthropic considerations.”9 Civil societies are non-profit organizations created for

philanthropic purposes and to render services to their members or third parties.

The Ethiopian proclamation incorporated the terms ‘charity’ and ‘society’. The proclamation

defined charity as “an institution, which is established exclusively for charitable purposes and

gives benefit to the public,” (article 14(1)) and the next sub article includes an illustrative list of

charitable purposes. The proclamation further classified charities in to four under article 15 as

charitable endowment, charitable institution, charitable trust and charitable society. Society, as

stipulated in the proclamation, “is an associations of persons organized on non-profit basis for

the promotion of the rights and interests of its members to undertake other similar lawful

purposes as well as to coordinate with institutions of similar objectives.” (article 56(1)). So a

charity is an association of persons aiming to provide service to the public, but the ultimate

beneficiaries of societies are their members.

For the sake of this article and to be compatible with the wordings of the Proclamation, the writer

preferred to use the term ‘charity and society’, and adopts the following definition. Charities and

societies are a not-for profit associations or institutions established to render services for their

members or the public at large independently from the government.

This article focuses on foreign fund restriction of charities and societies vis a vis the right to

freedom of association. Accordingly, it is structured in to six relatively short sections. In the

6 The Charities and Societies Proclamation, Proclamation No.621/2009, FED.NEGARIT GAZZETA 15th Year

No.25, Addis Ababa, 13th February 2009. ( herein after ‘the proclamation’ or ‘CSO Proclamation’) 7 Supra note 2. 8 Abiy Chelkeba, Supra note 5, pp. 9-10. 9 Ibid.

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subsequent section an attempt is made to examine some issues about freedom of association in

international human right instruments and Ethiopian constitution and section three is devoted to

related but different issues. Limitations of freedom of association are discussed under this

section. Under section four, fund restrictions is dealt with and in section five a modest attempt is

made to evaluate limitations that are imposed up on right to freedom of association vis a vis

Siracusa principles. Finally the work will be culminated by a brief conclusion.

II. Freedom of Association

Forming an association is not uncommon as evidenced from the past records of mankind. Being

in group is vital to cope up with natural and man-made troubles. In the contemporary world also

“associations are indispensable to the very survival of democracy and societal progress.”10

UN

Declaration on the Rights and Responsibilities of Individuals, Groups and Organs of Society to

Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms defined

right to freedom of association as “the right to persons, individually and in association with

others, to promote and to strive for the protection and realization of human rights and

fundamental freedoms at the national and international level.”11

This definition is not

comprehensive enough to include all types of alliance of peoples. Since the area of focus of UN

Defenders Declaration is human rights and freedoms, it defined the right to freedom of

association from the vantage point associations organized for the advancement of human rights

and freedoms. Freedom of association refers to the right to form a group with other fellows in

order to accomplish legal activities for the sake of the members or for third parties.

Freedom of association is strongly linked to other rights like freedom of expression and

opinion, freedom of peaceful assembly and freedom of movement. The members shall have

freedom to express what they feel for the well-being of the association and to accomplish acts

stipulated under the enabling act of the association. Unless freedom of assembly and movement

is guaranteed the association will be handicapped to realize what it was meant to accomplish.

Right to freedom of association encompasses many rights without which the right is futile. These

are:

10 Kristina Kausch, Defenders in Retreat: Freedom of Association in Egypt, 2009, p.1 11

Supra note 1.

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The right to associate and form associations, the right to join or not to

join an association, the right of associations to freely carryout their

statutory activities[these are functions which are stipulated in the

constitution of the association], the right of association to raise funds and

to affiliate with national and international organizations, the right of

individuals not to be penalized for belonging to an association and the

right to non-discrimination between nationals and non-nationals[

discrimination is inevitable but may not be arbitrary.]12

In addition to those rights, members of the association shall have the right to dissolve their

association. If the members agree they can dismantle their group, and no one may be obliged to

persist as member of an association. So, the laws should not hamper the formed association not

to be dissolved and impede an individual to leave an association.

The right to freedom of association is enshrined in plenty of human right instruments, like

Universal Declaration of Human Rights (UDHR13

, article 20), International Covenant of Civil And

Political Rights (ICCPR14

, article 22), International Covenant on Economic, Social and Cultural

Rights (ICESCR 15

,article 8), African Charter of Human and People’s Right16

(article 10). And

more importantly the FDRE constitution clearly stipulates that “every person has the right to

freedom of association for any cause and purpose.’’17

Article 20 of UDHR stipulated that “everyone has the right to freedom of peaceful assembly and

association” and pursuant to sub article two of the same article anyone may not be forced to be

member of an association. The right not to be compelled to form an association or not to be a

12

Supra note 1, p.6 13 Universal Declaration of Human Rights (1948), General Assembly Resolution 217 A (III), 1948, Available at

http://www.ohchr.org/EN/UDHR/Documents/60UDHR/bookleten.pdf. accessed on 20 January 20, 2014 at 9:35 am 14 International Covenant on Civil and Political Rights (1976), General Assembly Resolution No 14668, available at

https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf, accessed on 20

January 2014 at 10:50 am 15 International Covenant on Economic, Social and Cultural Rights (1976), General Assemble Resolution 2200A

(XXI), 1966. Available at https://www.law.georgetown.edu/rossrights/chapters/documents/originalICCPROP.pdf,

accessed on 16 January at 3:15 pm 16 African Charter of Human and People’s Rights (1986), available at http://www.humanrights.se/wp-

content/uploads/2012/01/African-Charter-on-Human-and-Peoples-Rights.pdf, accessed on January 1, 2014 at 5:16 17 The Constitution of Federal Democratic Republic of Ethiopia, Proclamation No. 1/1995, FED. NEGARIT

GASETTE, 1st Year No. 1, 1995 (here in after FDRE Constitution or the Constitution

), article 31

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member of an association is one constitutive element of the right to freedom of association but

the declaration singled out it as a distinct right. Needless to mention, if someone has the right to

form an association, he/she has also a right not to form an association.

The International Covenant on Civil and Political Rights under article 22 states that “everyone

shall have the right to freedom of associations with others, including the right to form and join

trade unions for the protection of his [her] interests.”

The right to freedom of association is also enshrined in ICESCR. Article 8 of the covenant states

that State Parties of the treaty shall ensure “the right of everyone to form trade unions and join

the trade union of his [her] choice subject only to the rules of the organizations concerned, for

the promotion and protection of his [her] economic and social interests.” The covenant gives the

recognition of the right to freedom of association under trade unions. If someone wants to form

an association and is prohibited by the government, he can invoke this article of the covenant as

the instrument bestowed the right only if the association at issue is a trade union. Furthermore,

the covenant clarified that the right to freedom of association is not only an individual right, but

the right can also be exercised as a group. Trade unions have the right to form confederations or

federations at national level or they can join international unions.18

The African Charter of Human and People’s Right under article 10 prescribes that everyone has

the right to freedom of association and cannot be compelled to join an association except article

29 of the charter. Africans owe a duty towards their community and for the sake of preserving a

communal life an individual may be forced to be a member of an association. This is the peculiar

feature of the African Charter which inscribed the duty of individuals towards their society.

III. Limitations on the right to freedom of association

Limitation of rights refers to justifiable and acceptable infringement of the exercise of human

and democratic rights.19

Many fundamental rights have limitation clause either embraced in the

same provision that grants the right (known as specific limitation clause) or in a specific and

18 ICCPR, Article 8(1)(B) 19 Iain Currie and Johan De Wall, The Bill of Rights Handbook, at 165(2005) as Cited by Abdi Jibril Ali,

Distinguishing Limitation on Constitutional Rights From Their suspension, Haramaya law review,p.5

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distinct provision to be applicable to all rights in the document (known as general limitation

clause).

The right to freedom of association is not an exception. Alike so many fundamental rights it is

backed by limitations. One of the internationally accepted human right documents, UDHR, under

article 29 prescribes a general limitation clause applicable to all rights recognized in the

declaration. Pursuant to 29 (2) of the declaration, legally prescribed restrictions on the right to

freedom of association can be imposed “for the purpose of securing due recognition and respect

for the rights and freedoms of others and of meeting the just requirements of morality, public

order and the general welfare in a democratic society.” For the interest of the mass, the interest

of an individual to form an association may be sacrificed.

With the same token ICCPR comprises specific limitation clause under article 22 that dictates

how and when the exercise of such right may be restricted.

Article 22 (1) - Everyone shall have the right to freedom of associations

with others, including the right to form and join trade unions for the

protection of his [her] interests.

(2)- no restriction may be placed on the exercise of this right other than

those which are prescribed by law and which are necessary in a

democratic society in the interest of national security or public safety,

public order(order public), the protection of public health or morals or

the protection of the rights and freedoms of others…

As it can be inferred from the above cited provision, the right to freedom of

association can be restricted if three cumulative conditions are fulfilled. These are

first the limitation shall be prescribed by law. Second, the limitation may only be

imposed for the protection of national security, public safety, public order, public

health, public morals or the right and freedoms of others. Third, the limitation

must be necessary in a democratic society. The specific limitation clause of

ICESCR under article 8(1) (a) proscribe restrictions almost in a similar fashion of

ICCPR. A legally prescribed restriction which is necessary in a democratic

society can be imposed for the interest of the public order or national security or

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to protect the rights of other fellow citizens. For the above cited reasons the right

of a trade union to function freely may also be curbed.

The limitation clause that meant to restrict the right to freedom of association in the African

Charter is the phrase “abiding by law.” Abiding by law means persons can form association

when they fulfill the requirements that are provided by the law. So, anyone can exercise his/her

right to form an association as long as he/she is in line with the laws of the country.

Indirectly, it can be inferred that each state can lay down a legal requirements to

form an association. But what type of law is envisaged by the Charter? We can

resort to other instruments like Siracusa principles which place requirements that

a certain law shall fulfill when it restrains a right. So, the law shall be generally

applicable, reasonable, accessible, unambiguous, non discriminatory and

promulgated by the body that has the legal jurisdiction to do so.

At this juncture, it is enough to say this much and each condition will be dealt

with under section five with Siracusa Principles, since the latter largely dwell up

on limitations and derogations of rights enshrined under ICCPR. Though the

principles are not binding, they can play an interpretative role for human right

instruments, especially they are paramount as interpretative guidelines of

limitation and derogation clauses in the International Covenant on Civil and

Political Rights.

The FDRE Constitution gives double protection by rendering all treaties ratified

by Ethiopia the status of “integral part of the law of the land,”20

and incorporating

the right to freedom of association under article 31. Any one, Ethiopian national

or not, can form an association for any cause or purpose. However, the association

formed should be in line with appropriate laws and may not aim or promote to

illegally subvert the constitutional order. These two requirements can be

considered as specific limitation clauses of the right. But what do appropriate

laws mean? Laws which are promulgated by the Federal law making body21

, State

20 Supra not 17, article 9 21

Id, article 55(1)

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councils22

or other delegated organs23

and which are compatible with the

constitution may be considered as appropriate laws.

Everyone has the right to freedom of association as far as the association is

formed pursuant to appropriate laws and not to illegally subvert the constitutional

order or to promote such activities. This indicates that the law maker can come up

with laws that can restrict the right to freedom of association which must be

observed during the formation of the association or after its formation. However,

how can we barometer the legality of that law? Obviously the law should not try

to shrink the rights prescribed in international human right instruments and the

constitution. The constitution and international human right instruments always

inscribe minimum standards and other subsidiary laws can go beyond the

minimum line to protect the rights but not below. So, the laws should be tested

against the constitution and international human right instruments.

The constitution describes the requirements that should be fulfilled during the

formation stage of association. But one may wonder what if an association is

legally formed for peaceful mission but later twisted to illegally subvert the

constitutional order or try to support such types of activities? Needless to

mention, the association contravenes the constitution and which ultimately

become illegal and face closure or some other legal measures.

Since the ambit of this piece of work is limited only in scrutinizing the impact of

foreign fund restriction of charities and societies on the right to freedom of

association, the writer will not step further to evaluate all restrictions vis a vis the

Constitution or other international human right instruments.

IV. Foreign Fund restriction

22 Id, article 50(5) 23

Id, article 77(3)

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Civil societies play a pivotal role for the overall improvement of the society. They mainly strive

to ameliorate the lives of the public and involve in development and good governance,

agricultural and rural development, human development (like health sector, education, child

welfare, institution building and empowerment) and so on.24

However, this doesn’t mean that

charities and societies are always playing a constructive role. Despite the valuable contributions,

governments undermined and constrained civil societies by using legal and regulatory measures.

Oftentimes governments employ five legal constraints. These are barriers to entry, to operational

activity, to speech and advocacy, to contact and communication, to resource.25

Albeit the

charities and societies proclamation of Ethiopia employed all types of barriers, the paper focuses

only on resource barriers especially foreign fund restriction.

As depicted under section two the right of association to raise and solicit fund is one constitutive

element of freedom of association. Civil societies shall secure resources lest they can’t undertake

the activities they meant to do. The UN Defenders Declaration underpinned the idea under article

13. The Declaration declares that “everyone has the right, individually and in association with

others, to solicit, to receive and utilize resources for the express purpose of promoting and

protecting human rights and fundamental freedoms through peaceful means…..”(Emphasis

added). Though traditionally the right to solicit financial resource construed as an implied right

under the right to freedom of association, this article clearly prescribed it as “a self-standing

right” for the first time.26

Although the right to freedom of association encompasses the right of association to secure

resources, fund restriction “have become increasingly common in recent years, targeting foreign

funding in particular,”27

and “restrictions on resources are a direct threat to their ability to

operate.”28

Barriers to resources may take different forms. Countries like Eritrea adopted a law

24 Generally for area of contribution of civil societies in Ethiopia, see Dessalegn Rahemato, Akalewold Bantirgu and

Yoseph Endeshaw, CSOs/NGOs in Ethiopia: Partners in development and Good governance, 2008. 25 International Center for not-for-Profit Law (ICNL) and National Endowment for Democracy (NED), Defending

civil society: A Report of the World Movement for Democracy, 2008, p.10. 26 International Service for Human Rights, Defending human rights Defenders (undated), p.10. Available at

http://olddoc.ishr.ch/hrdo/publications/WHRDbooklet_EN.pdf, accessed on 6 January 2014, at 4:43

27 supra note 25, p.18 28

Id, p.35

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that absolutely prohibit fund.29

Certain countries (Algeria and Egypt) require advance

governmental approval or routing funding through the government, i.e. the money shall be

channeled through the government in Eritrea and Uzbekistan.30

There are also countries which

require prior government authorization or obligation to regularly report to government

authorities on how the fund is utilized or tax regulation.

The charities and societies proclamation of Ethiopia categorized charities and societies in to

three groups as ‘Ethiopian Charities and Ethiopian societies’, ‘Ethiopian Resident charities and

Ethiopian resident Societies’ and ‘foreign charities.’31

This taxonomy is based on the law of

formation of the charity or the society, nationality of members and source of fund. Accordingly,

Ethiopian charities and societies cannot solicit more than 10% of their money from foreign

sources, should be formed under Ethiopian law, their members can’t be non-Ethiopian and must

be wholly controlled by Ethiopians. If charities and societies accessed more than 10% of their

fund from abroad they will become Ethiopian resident charities or societies and ultimately

denied the opportunity of engaging in the advancement of human and democratic rights, the

promotion of equality of nations, nationalities and peoples, the promotion of the right of the

disabled and children’s right, the promotion of conflict resolution and reconciliation and the

promotion of the efficiency of justice and the law enforcement services.32

Therefore, only

Ethiopian charities or societies are allowed to operate in human right and democratization areas.

Other types of associations are dispensed with engaging in those types of activities because

either they secure more than 10% of their money from abroad or/and they embrace foreigners as

member.

The FDRE constitution guaranteed freedom of association under article 31 and via article 9(4).

As indicated above, the right to freedom of association impliedly constitutes the right to access

money from any legal source. This is because if the association face dearth of money, being in

association is non-sense. So, allowing the right to freedom of association and at the same time

restricting source of money amounts to giving by right hand and snatching it by the left hand.

Ethiopian charities and societies can only secure substantial amount of their budget domestically

29 UN and bilateral agencies are barred at funding NGOs in Eretria. Id, p.18 30 Ibid 31 Supra note 6, article 2(3),(4),(5) 32

Id, Article 14(5)

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however given the lack of financial capacity of Ethiopians the law is requiring them to make

possible the impossible one.

“The vast majority of domestic human rights NGOs in Ethiopia receive the bulk of their funds

from foreign sources.33

So, the “… CSO law….force them to either close their doors or

drastically alter the scope of their work.”34

“Considering the financial capacity of Ethiopian

citizens and lack of culture of voluntarism and practice of funding formal CSOs among the

public, it would be very difficult for local CSOs to raise more than 90% of their funding

[domestically]”35

Hence, the restriction of resources forced the closure of many organizations

since local source of finance is very limited and make others to reduce their staff and area of

operation. Ethiopians may give to beggars who oftentimes seat around religious institutions and

along streets but has no developed custom of supporting charities and societies.

The Ethiopian charities and societies proclamation does not prohibit foreign fund directly. It

rather restricts area of activities to charities and societies that solicit 10% and above of their fund

out of Ethiopia. A NGO can secure money from abroad but if that money goes beyond the

required amount, which is 10%, the association will be labeled as foreign or Ethiopian resident

charities and societies and deprived of involving in human right and democratization related

activities. However, once an institution is registered as Ethiopian charity or society, it could

never secure more than 10% of its fund from abroad. If it wants to get substantial amount of its

money from abroad, it can convert its type and it shall apply for re-registration (article 108).

What makes the situation worse is the proclamation also puts restriction on domestic funds.

Charities and societies are restricted from soliciting money and property that exceeds 50,000

Ethiopian Birr before they are legally formed36

, public collection is not allowed unless permitted

by the agency37

, and charities or societies can only engage in income generating activities that

33 World Organization Against Torture, Law On Charities And Societies: Freedom Of Association In Jeopardy!

http://www.omct.org/index.php?id=&lang=end&articld=8283, as cited by Center For International Human Rights,

Northwestern University School Of Law, Sounding The Horn: Ethiopia’s Civil Society Law Threatens Human Right

Defenders,2009, page 4 34 Ibid. 35 Dessalegn Rahmato, Akalewold Bantirigu, Yoseph Endeshaw, Csos/Ngos In Ethiopia: Partners In Development

And Good Governance,2008 36 Supra note 6, article 65(3) 37

Id, article 98

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are incidental to the achievements of their purpose.38

The proclamation would have opened the

opportunity of collecting domestic fund since it already restricted foreign sourced fund. So, both

kinds of restrictions make the proclamation double-edged sword that chopped down the charities

and societies and ultimately force them to thwart their engagement.

The other restriction focuses on the area of engagement. Once a charity or society is labeled as

‘Ethiopian resident’ or ‘foreign’ it cannot take part in certain activities listed under article 14(2)

(j), (k), (l), (m), (n). These areas are reserved for what is so called Ethiopian charities or

societies. But the constitution under article 31 enshrined that “every person has the right to

freedom of association for any cause or purpose.”[Emphasis added] So, any association whether

it has foreigners as member or no matter how much money it receives from abroad can

participate in every area as long as it is formed in line with “appropriate laws and not to illegally

subvert the constitutional order or to promote such activity.” 39

Could we say that the

Proclamation is an appropriate law that an association shall observe it? It will be discussed later.

Therefore, first it is possible to safely conclude that prohibiting Ethiopian charities or societies

not to obtain more than 10% of their budget from foreign source is unconstitutional and even

goes against international human right instruments that enshrined the right to freedom of

association, since this right also constitutes the right to solicit money to advance one’s activity.

Second, banning Ethiopian resident and foreign charities or societies not to take part under

human right and democratization areas constrain the constitutionally guaranteed right and it

clearly contravenes the constitution. It seems that the government recognized the right to

freedom of association half-heartedly.

V. Siracusa principles40

38 Id, article 103 39 Supra note 17, Article 31 second limb 40 Siracusa Principles on Limitation and Derogation of Provisions in the International Covenant on Civil and

Political Rights, UN Doc E/CN.4/1984/4 (1984), Available at

http://www.uio.no/studier/emner/jus/humanrights/HUMR5503/h09/undervisningsmateriale/SiracusaPrinciple

s.pdf, accessed on 2 January 2014 at 6:00 pm

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As reiterated somewhere else above fundamental rights and freedoms are oftentimes not

absolute. They might be restricted for the survival of the nation or for the interest of the mass by

applying utilitarian approach. Governments, whether they are democratic or not, are always

involve in restricting the exercise of rights and freedoms. This limitation should be regulated so

as not to finally eliminate rights that are sentry for the survival of mankind. For this reason, the

Siracusa principles come to the scene. “The Siracusa principles were drafted in response to

concerns about the violation of individual human rights that may occur when a state act to

protect the public good by limiting the rights of an individual.”41

These principles, though they

are not binding, are paramount in interpreting human rights, derogations and restrictions of rights

inscribed under the ICCPR.

The Siracusa principles direct that careful considerations must be taken while striking a balance

between the two conflicting interests. i.e. the individual interest to freely exercise his/her right

and the societal interest to be intact. Accordingly, limitation imposed up on the exercise of rights

and freedoms enshrined under ICCPR shall be a legally prescribed restriction necessary in a

democratic society to protect legitimate national interest and proportional with the end to be

achieved, and applicable with no discrimination.

A. Prescribed by law

The limitation shall be made by national law of a general application which is clear, accessible,

not arbitrary and unreasonable.42

The law that holds the limitation clause “must be accessible,

unambiguous, drawn narrowly and with precision so as to enable individuals to foresee whether

a particular action is unlawful.”43

When we look at the Charities and Societies Proclamation that

constrains the right to freedom of association, it has general application for all civil societies that

are engaged throughout the nation. “Ethiopian laws [also] may fulfill the requirements of

41 Sara Abiola, JD, Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR: History and

interpretation in Public Health Context, 2011, p.6

42 Supra note 40, para.16, 17, 18 43 The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, London,

1996, principle 1.1http://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf, accessed on December

2013, at 3:30 pm These principles are done for specific rights but it has also relevancy of interpreting and clarifying

similar terms in another principles.

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reasonability and clarity, but they are not accessible in general”44

However, the writer opined

that the CSO proclamation is clear and also presumed as accessible to all. When the law states

ignorance of law has no excuse45

it presumes that everybody has access and knows the law. The

proclamation is promulgated and published by the Federal Negarit Gazzete that can circulate

over the nation and even accessible in internet. So, anyone who wants to form a charity or

society can have the Proclamation by searching the soft copy out or obtain the hard copy from

Brihan Ena Selam Printing Press and its branches.

Furthermore, the principle describes that the legally prescribed limitation shall provide adequate

safeguards and effective remedies against illegal imposition of limitations.46

The proclamation under article 104 clearly shows that any person aggrieved by an

administrative decision can appeal hierarchically to Director General and the Board that are

established by the Proclamation. Any person who think that the restrictions in the proclamation

goes against the constitutionally guaranteed right of freedom of association can request the

nullification of the law.47

Despite what the constitution says “everyone has the right to bring a

justifiable matter to and to obtain a decision or judgment by, a court of law or any other

competent body with judicial power” (article 37) the proclamation limits this right only to

national charities or societies which clearly contravenes the constitution. So, the proclamation

failed to satisfy the ‘prescribed by law’ requirements.

B. Legitimate National Interest

The principle does not define what national interest constitutes; however, it might mean the

interest of the public at large or the interest of the government as representing the people. Any

threat on the public at large or the territorial integrity of the nation can be considered as actions

against the national interest of a state. “Protection of national security, public safety, economic

44 Abdi Jibril, supra not19, p.9 45 The Criminal Code of the FDRE 2004, proclamation number 414, FED. NEGARIT GAZZETA (2005) /2004, and

2035 of the Civil Code of the Empire of Ethiopia No.165/1960, NEGARIT GAZZETA (1960) 46 Principle 1.1 of the Johannesburg Principles states that “the law should provide for adequate safeguards against

abuse, including prompt, full and effective judicial scrutiny of the validity of the restriction by an independent court

or tribunal.” Supra note 43.

47

Supra note 17, article 62, article84 and article (9)(1)

16

wellbeing of a country, public health, public moral, and the right and freedom of others, and

prevention of crime and disorder are some examples of legitimate state [national] interest.48

Therefore, an exercise of a right can be restricted in order to protect one of the above listed

national interests. The Siracusa principles defined what each interest constitutes. Generally, the

limitation must have “genuine purpose and demonstrable effect of protecting a legitimate

national security interest.”49

It is not indicated under the Charities and Societies Proclamation

why the legislator/the government introduced provisions that restricts foreign fund and area of

operation. But it is meant to thwart the involvement of Westerners who attempt to impose their

ideology under the guise of philanthropic activities. The government repeatedly alleged that

Western countries are infringing the sovereignty of the nation and tries to impose their ideology,

and for the protection of the country’s sovereignty their involvement on certain areas should be

restricted.50

……The Ethiopian minister of foreign affairs has stated that the primary

objective of foreign NGOs that comes to work in Ethiopia is “the

promotion of the agenda of their country. According to the Ministry of

Foreign Affairs, foreign NGOs work at [Ethiopia] bidding to provide

“every kind of information ranging from political to economics and

others. And only by default do foreign NGOs provide aid to Ethiopia,

which they [will] sometimes try to use….for political influence……51

That is why the provision that restricts area of operation for Ethiopian resident charities or

societies and foreign societies interleaved. Area of human right and democratizations are

susceptible to abuse by the campaigning group. It may lead the population to stand against the

incumbent government. And even when they are applied legally, they have the capacity of

raising awareness of the society and make it uncomfortable for the government. The 2005

election underpins this idea. The civil societies were highly involved in different activities

48 Abdi Jibril, supra note 19, p.7 49 Supra note 43, principle1.2

50 Debebe Hailegebrail, Restrictions on Foreign Funding of civil society, the international journal of not-for-profit law, volume 12, issue 3(2010), available at http://www.icnl.org/research/journal/vol12iss3/special_3.htm, accessed on 20 January 2014 at 10:33 am 51 Center for International Human Rights, Sounding the Horn; Ethiopia’s Civil Society Law

Threatens Human Right Defenders 5 (2009)

17

relating to the election52

and the government was on the verge of losing its power, if not

vanquished.

So, the government may claim that it restricts the flow of foreign fund and area of operation of

Ethiopian resident charities and societies and foreign societies for the protection of unsolicited

external influences albeit it is not accepted by civil societies and opposition political parties.53

The writer opined that though foreigners are not allowed to involve in human right and

democratization areas they can do what the government suspects them under the guise of other

permitted areas. Moreover, when the government restricts foreign fund it banned only the money

not the idea of spying Ethiopia, their ideology or infringement of the sovereignty of the country.

So, the government’s strategy does not seem well fitted with its arguments and ultimately

indicates the treachery nature of its explanation. Hence, the limitation imposed on foreign fund

and area of engagement does not satisfy the legitimate national interest requirement.

C. Necessity

Necessity refers to the limitation pursues a legitimate aim and respond to a pressing public social

need.54

There should not be lesser evils to achieve the same end in the options stock. If there are

less restrictive routes the government shall prefer that one. This means if the government could

have achieved the required social or national need by less intrusive means, the intervention failed

to fulfill the necessity requirement. “In applying the limitation, a state shall use no more

restrictive means than are required for the achievement of the purpose of the limitation” 55

If the government wants to circumvent the involvement of foreigners to protect the country’s

sovereignty, it can do it by prohibiting their involvement only without blocking the money. As it

is articulated above, the government’s reason can’t be deemed as legitimate national interest but

if we consider it as legitimate national interest for the sake of evaluating it by necessity

requirement, the government should have used other lesser evils to achieve its purpose. The

government could have employed other less intrusive constraints like putting foreigners and their

52 Generally see the report cited supra note 35. 53 Supra note 33, Page 5&6

54 Supra note 40, Para. 10 (a) 55

Ibid, Para. 11

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fund under tight supervision, requiring foreign funds to be channeled through government

controlled banks, prior governmental authorization or regular report to it how the resource is

utilized, and even the government could have allowed the civil societies to solicit 25%-50% of

their budget.

With similar tone, rather than completely banning from all activities indicated under article 14(5)

of the proclamation, the government could have permitted the Ethiopian resident charities or

societies and foreign societies to engage and put them under strict supervision.

D. Proportionality

The limitation shall be proportional to the aim achieved by it.56

The restricted interest should not

outweigh the protected interest in terms of importance and relevancy. A balance should be

stricken between the two conflicting interests. This standard entails “that a balance be struck

between the requirements of the interest sought to be protected and the essential elements of the

recognized right”57

Necessarily, the protected interest shall be more important than the restricted

interest.

The CSO proclamation aimed to protect national interest and the rights of the mass when it puts

restriction on foreign resource and area of operations. It is obvious that the national interest

(sovereignty) outweighs the interests of those who want to solicit money from abroad and to

participate in human right and democratization areas.

E. In a democratic society

The restrictions must be “compatible with democratic principles”58

and “do not impair the

democratic functioning of the society.”59

Though civil societies can play a pivotal role for

building a democratic system, they are not the only means to build the system. Countries can be

democratic whether there are civil societies or not under their jurisdiction. Fund restriction and

narrowing the area of operation of civil societies contravenes the right to freedom of association,

56 Ibid, Para. 10(d) 57 Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International

Jurisprudence,(2002),p.189, as cited by Abdi Jibril , Supra Note 19 at 7. 58 Supra note 43, principle 1.3 (c) 59

Supra note 40, Para. 20

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and respect of human rights is one of the democratic principles. So, the restriction is not

compatible with democratic principles. But does it impair the democratic function of the society?

The partial violation of certain rights does not impair the democratic functioning of the society. It

is partial because there are charities and societies who are operating in the country and involving

in the restricted areas. Providing that the government is practicing other democratic principles,

foreign fund restriction and proscribing certain associations from some areas could not spoil the

democratic functioning of the society.

F. Non-discrimination

Limitations should not be arbitrary60

and discriminatory.61

Discrimination is inevitable but may

not be arbitrary. Limitations “should not involve discrimination based on race, color,

sex….nationality… or other status”62

the CSO proclamation prohibited the so called Ethiopian

charity or society from soliciting resource from abroad but the other two categories are allowed.

The discrimination is based on nationality of the association which is a corollary of the

nationality of members, and the law of formation, and it clearly contravenes the principle.

Moreover, article 2 of ICCPR obliges each state to ensure all rights prescribed under it with no

discrimination. But the Ethiopian charities or societies does not have full right of freedom of

association (the right lacks the right to secure money), and also Ethiopian resident charities and

societies and Foreign charities have restricted right to freedom of association (it lacks the right to

form association for any purpose and cause as enshrined in the constitution).

The Ethiopian resident charities and societies and foreign charities deprived the right to

participate on human right and democratization area as a result of their fund source or nationality

of members. This discrimination again is incompatible with the requirement of ‘non-

discriminatory limitation.” Generally, the degree of the right to freedom of association of the two

groups of charities and societies is asymmetrical which indicates the existence of discrimination.

Therefore, the limitations envisaged by the CSO proclamation are not with no discrimination.

60 Ibid, Para 17 61 Supra note 13, principle 4 62

Ibid.

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V. Conclusion

Freedom of association is a right inscribed under international, regional and national human right

documents. This right constitutes other rights like the right of association to secure fund, and the

right not to be obliged to persist as a member and so on. Organizing a civil societ ies and

rendering services are some aspects of exercising this right. Despite the right enshrined in human

right instruments, it is also backed by limitations alike many human rights. A state party can

restrict the exercise of the right in order to protect national security or diversified interests of the

public.

The main legal regimes in Ethiopia that regulate civil societies are the FDRE Constitution, the

Charities and Societies Proclamation and Council of Ministers Regulation promulgated pursuant

to the proclamation. The constitution stipulates that anyone can organize an institution for any

purpose or cause as long as it is in line with the constitution and not to illegally subvert the

constitutional order. However, the CSOs proclamation reserved certain areas only to Ethiopian

charities and societies. This restriction is not compatible with the constitution that renders the

right to every one for every purpose without discrimination based on nationality.

As it is said above the right to freedom of association includes the right to secure fund to run the

statutory activities of the association. Again the proclamation limits the opportunity of soliciting

resources from abroad for Ethiopian charities and societies, and which is again against the

constitution.

Rights can be restricted for the sake of the mass, but the restrictions may not be arbitrary but

shall satisfy certain requirements. These prerequisites are out lined under Siracusa principles.

The restrictions imposed by the charities and societies proclamation cannot pass the test

requirements of the principles. Therefore one of the Ethiopian law, ICCPR (by virtue of article

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9(4) of the constitution), is breached by the CSOs proclamation. But rights under chapter three of

the FDRE Constitution shall be interpreted in line with international human right laws like

ICCPR.