By Maina Kiai, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association

17 June 2013

By Maina Kiai, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association

17 June 2013

Since my last report to the Human Rights Council in June 2012, there have been many developments negatively affecting the ability of civil society organisations to operate independently. It is with this background that I decided to focus my second thematic report to the Council (A/HRC/23/39) on access to funding for civil society organizations. It should be read in conjunction with Council’s resolution 22/6 on the protection of human rights defenders (A/HRC/RES/22/6) through which this body took a solemn stand on the issue of access to funding. In my report I also discuss the ability to hold peaceful assemblies as an integral component of the right to freedom of peaceful assembly, but in this piece I will only focus on the question of funding.

Access to financial resources is of contemporary significance for many civil society organisations. Governments are increasingly constraining the ability of associations to seek, receive and use funding to the point of threatening their very existence. We cannot underestimate the central role that resources in general, and financial resources in particular, play in the ability of associations to carry out their activities and meet their objectives. It does not matter how commonplace the objectives of an association, for example, a chess club, materials (chessboards) are necessary and financial resources will most likely be used to acquire these materials.  Similarly, many other incidental activities such as transportation and communications require the use of funding. Some activities will require few resources, others may need more substantive support. It is important to note in this regard, that the determination of where associations should seek resources should be made by the organisation not the government.

Unfortunately, in far too many instances governments have seized control of the role of deciding how and from where organisations should seek and receive funding and eventually how they should use this funding. As a result, we see a variety of restrictions in law and in practice ranging from failing to facilitate access to funding for civil society organisations  such as by making the process burdensome (for example, requiring government approvals to receive foreign funding, or transfer of foreign funds through government approved funds) to outright prohibitions to access funding. Harassment, intimidation, stigmatisation and de-legitimisation of foreign-funded civil society organisations are also common tactics employed by Governments. They claim that the restrictions they impose are necessary to counter terrorism, to preserve sovereignty, to ensure accountability and transparency of associations and to streamline development aid, but these justifications often do not meet international human rights norms and standards.

The core principle I seek to establish in my report in relation to funding is that the ability to seek, receive and use funding, including foreign funding, is an integral part of the right to freedom of association. All restrictions, including those carried out for the reasons mentioned above, that do not meet the test of necessity in a democratic society or proportionality constitute a violation of the right to freedom of association. I therefore urge States to meet their obligations to respect and facilitate access to funding for all associations.

While the report received strong support from a number of States during the Council session, there is evidently resistance from various governments to recognising the above key principle. Some of these governments seek to make false distinctions between registered and unregistered associations, whereas the right to freedom of association should be enjoyed by everyone, without any discrimination. Another false distinction that governments sought to defend was that States’ receipt of development co-operation is inherently different from and incomparable to foreign funding of civil society organisations and as such the principle cannot be used to advocate for equal treatment for associations.  Several States insisted that restrictions imposed on civil society organisations are necessary in order to enforce accountability and transparency of organisations to their beneficiaries. However, it is clear that this excuse is used by these States to justify draconian measures that suppress the independence of civil society, and ultimately the voice of those who express minority or dissenting views, and that interfere with the privacy and internal operations of these associations.

It is evident that there is still much work to be done in holding governments accountable to the principles and standards that they have voluntarily accepted. My second thematic report lays the framework through which civil society and human rights defenders can engage with States and draw attention to violations of their rights. It is through reinforcing and building on this framework that associations can defend their civic space.

Finally, I wish to take this opportunity to thank ISHR for its continuous support to my mandate since its inception.

For more information about the mandate of the Special Rapporteur on the rights to freedom of peaceful assembly and of association: http://www.ohchr.org/EN/Issues/AssemblyAssociation/Pages/SRFreedomAssemb...