A good indicator of the human rights record of any state is the treatment of human rights defenders. It may come as little surprise that countries such as Egypt, the Russian Federation and Zimbabwe are some of the worst violators of the freedom of association. This league, however, also includes countries like India, a longstanding democracy, but one that subtly but firmly clamps down on the rights of human rights defenders.

A comparison of the situation of human rights defenders in these four countries is illuminating.

Registration restrictions

The compulsory registration requirement allows governments to restrict the operation of non-governmental organisations (NGOs), particularly those seen to be ‘political’ in nature.

In Russia, ‘representative bodies or chapters of foreign NGOs’ are required to register. In Egypt, any NGO with more than ten members is required to register. Zimbabwe’s planned amendments in the form of the Non-governmental Organisations Bill 2004 are the most restrictive, requiring any NGO covered by the Bill to register or otherwise face the possibility of criminal penalties. Many NGOs will fall under the Bill’s purview as it seeks to be applied to any NGO promoting or protecting “human rights and good governance” or with “such other objects” as the government prescribes. Under proposed changes to India’s laws, any NGO that has a “definite cultural, economic, educational, religious or social programme” cannot receive foreign funding unless it obtains a registration certificate. The present law restricting international funding to NGOs does not have an explicit requirement that the NGO be a registered legal entity.

All four countries are party to the International Covenant on Civil and Political Rights (ICCPR), which states that “everyone shall have the right to freedom of association with others”. This right can only be derogated from by restrictions “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.” The reasons for denying registration to an NGO, then, must fall under the exceptions and a state must show that the limitation is “necessary in a democratic society” by showing it is required specifically for one of the purposes listed above in pursuit of a legitimate aim. Further, the laws should be proportionate and adequately adapted to meeting these goals.

In Egypt, the government has the power to dissolve NGOs whose goals “[threaten] national unity [or violate] public order or morals.” Similarly, the Ministry of Insurance and Social Affairs retains the right to deny registration if it has an objection to the NGO’s bylaws or its founders. In practice, as pointed out by Human Rights Watch, the denial of registration to human rights NGOs like the Civil Observatory for Human Rights on account of “security issues” shows that that the “government’s application of these concepts is broad and excessive in ways that are grossly inconsistent with international standards.” What constitutes ‘security issues’ has not been elaborated upon, even after a statement of reasons was requested by the administrative courts.

There are similar concerns about India’s proposed Foreign Contribution (Management and Control) Bill, 2005. Registration can be denied for many reasons including, where in the opinion of the Registration Authority, the NGO has not “undertaken meaningful activity in its chosen field” or that the acceptance of foreign funding would damage India’s sovereignty, public interest or social harmony. The definition of ‘meaningful activity’ would be decided by the Authority.

Under Zimbabwe’s proposed laws, the Zimbabwe NGO Council, a body comprising mostly governmental officials appointed by the Minister of Public Service, Labour and Social Welfare, must deny registration to any foreign NGO whose principal objects “involve or include issues of governance”. A foreign NGO is defined narrowly as any organisation that “does not consist exclusively of permanent residents or citizens of Zimbabwe”. Given that no criteria are listed other than the broad term of “issue of governance”, it is hard to see how the restriction on the right to freedom of association will be used only in circumstances “which are necessary in a democratic society in the interests of national security”.

Similarly, Russia’s new laws extend the grounds for refusing registration where the “status of organisation is in contravention of” Russian laws, where “the name of the organisation is an offence to morality or to the national and religious feelings of citizens” or where foreign NGOs “create a threat to sovereignty, political independence, territorial inviolability, national unity and uniqueness…and national interests.” The European Court of Human Rights has stated that limitations of this kind must be supported by “convincing and compelling reasons” which are relevant and sufficient and “proportionate to the legitimate aim pursued.” (See, for example, Sidiropoulos and others v. Greece, 10 July 1998, European Court of Human Rights, Reports 1998-IV, paragraph 40). Russia’s justification for the new laws was the need to make all political activity “transparent to the maximum extent”, and the fear that NGOs may be used as “a foreign policy instrument” by other states. Even if this concern was proved to be a legitimate one, the laws are disproportionate to meeting this aim. For example, the laws do not sufficiently define key terms such as “extremism” and “undesirable”, which are grounds upon which NGOs can be dissolved or foreigners denied membership.

Control of NGO activities

The control of funding and activities is another key concern. In Egypt, all foreign sources must be approved before receipt and there are no listed criteria upon which approval of funding is decided. Further, NGOs cannot participate in any political activity. Decisions made by the NGO can be scrutinised by the Ministry of Insurance and Social Affairs, which can also determine their legality.

In India, under the Foreign Contribution (Regulation) Act 1976, the permission of the Ministry of Home Affairs is required before any NGO can receive foreign funding. Similarly, if the Foreign Contribution Management and Control Bill passes into law, then the government will have the power to completely prohibit organisations of a “political nature” from receiving foreign funding, whereby the government will determine what constitutes “political nature”. There is concern that this wide discretion, which has already resulted in a clampdown on NGOs that have been critical of the government, will continue to be used to support the interests of the government of the day. In addition, all NGOs wishing to hold international conferences in the country need prior permission from relevant ministries including the Ministry of Home Affairs and the Ministry of External Affairs. Furthermore, the clearance forms issued by the Ministry of External Affairs state that the ministry takes note of the “political angle” in deciding whether to grant permission for the holding of an international conference and the participation of foreign delegates.

In Zimbabwe, the 2004 Bill makes it illegal for a local NGO to “receive any foreign funding or donation to carry out activities involving or including issues of governance” and or raise funds from the public outside the terms of the Bill. Under the current laws in Zimbabwe, “probe teams” set up by the Minister of Public Service Labour and Social Welfare have the power to investigate documents relating to an NGO’s activities. Under the proposed changes, all NGO activities must be reported and the minister has the power to call for the production of documents.

In Russia, all NGO activities are monitored. The State Registration Board can conduct audits to check whether the activities are commensurate with the organisation’s aims.

Procedural fairness

In some cases, politically unaccountable parties have the power to regulate NGOs. In Egypt, any interested party can request that a particular candidate not be nominated for board elections. Allegations of extrajudicial parties such as the ‘probe teams’ or security forces regulating NGO activity in Egypt and Zimbabwe are also a cause for concern.

The laws due to take effect in Russia in April 2006, the current laws operating in Zimbabwe, India and Egypt, and the suggested amendments currently being considered by Zimbabwe and India, are of great concern to NGOs in these countries.

While the first three countries cannot credibly claim to be upholders of human rights, India can, and does. India’s claim, however, is belied by the paranoia it displays when it comes to allowing NGOs to function freely. This applies, in particular, to NGOs that monitor, and often challenge, State behaviour.

Will these countries stand by the domestic and international standards they adopted and pledged to uphold? And will the rest of the international community take note of the implications for human rights protection if individuals and organisations working towards the same objective are constrained in their activities? As a new United Nations Human Rights Council comes into being, aimed at better promoting and protecting human rights, all States must reflect on these crucial questions.

 Human Rights Features