By Victor Eboh Esq, Reproductive Right Officer
Sometime in 2018, one PAMELA ADIE, a citizen of the Federal Republic of Nigeria, approached the Corporate Affairs Commission of Nigeria, for the registration of an organization with the name, (LESBIAN EQUALITY AND EMPOWERMENT INITIATIVE), whose goal was to advocate for the rights of female sexual minorities. The Corporate Affairs Commission contended that the name could not be approved because it was misleading, offensive, contrary to public policy and violates an existing law that prohibits same sex unions and associations in Nigeria.
Many adherents and sympathizers have wondered and questioned the veracity and otherwise behind the sentiments of the commission.
This piece, seeks to draw a line of contrast and spell out the parody between the constitutionally guaranteed right of freedom of Association, and the plight of the LGBTIQ community in Nigeria. But before we get down to brass tacks, let us first consider a general overview of the concept….. Freedom of Association.
CONCEPT OF FREEDOM
The word Freedom, has been succinctly rendered by Oxford Advanced Dictionary, as ‘the condition of being free, the power to Act or Speak or Think, without externally imposed restraints.’
FREEDOM OF ASSOCIATION on the other hand, encompasses both an individual’s right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interest of it’s members and the right of an association to accept or decline membership based on certain criteria.
According to the Human Rights House Foundation, Freedom of Association is one of the most basic rights enjoyed by humans. It ensures that every individual is free to organize and to form and participate in groups, either formally or informally.
Freedom of association involves an individual’s right to come together with other individuals to collectively express, promote, pursue and/or defend common interests without interference, and the right of the group to take collective action to pursue the interests of its members. The right to freedom of association protects associations formed to undertake any activity or pursue any objective that an individual can undertake or pursue alone, provided that those activities or objectives are lawful. Freedom of association is a fundamental human right that is crucial to the functioning of a democracy and an essential condition for the exercise of other human rights. It provides space for the development of civil and political society, an arena for people to express different views, values or interests and a platform for such views, values or interests to be heard. Freedom of association complements and consolidates other individual freedoms and without it, individuals may not express themselves as a group, defend their common interests and positively contribute to the development of their societies.
BACKGROUND TO THE PRINCIPLE OF FREEDOM OF ASSOCIATION
The principle of freedom of association constitutes one of the basic tenets of the International Labor Organization (ILO) that was established by the TREATY Of VERSAILLES Of 1919, (source: Initiative for Strategic Litigation in Africa) in the wake of the first world war to improve the condition of workers and achieve universal peace through social justice. The ILO conventions on freedom of association were, and continue to be, primarily focused on the protection of the right to organize and bargain collectively.
Freedom of association is closely linked with the freedom of assembly and both are protected by Article 20 of the Universal Declaration of Human Rights (UDHR). The right is interrelated with other human rights and freedoms, such as the rights to freedom of expression and opinion and freedom of thought, conscience and religion. Giving the freedom of association protection in national and international law was not primarily to protect individual interests, but rather to seek to secure a more equitable distribution of power within the working environment and society as a whole. But individuals do deserve legal protection in this as other contexts so that their conscience, religious beliefs, freedom of expression, bodily integrity and so forth are safeguarded.
Consequently, freedom of association is both an individual and a collective human right.
LEGAL FRAMEWORK GOVERNING THE CONSTITUTIONALITY OF FREEDOM OF ASSOCIATION
The combined efforts of both the Domestic, Regional and International frameworks, all ensure equality of all persons regardless of their sexual orientation and gender identity.
DOMESTIC LEGAL FRAMEWORK
The Constitution of the Federal Republic of Nigeria(1999) as amended, remains the ground norm of the land, and it is sacrosanct. The extent of its supremacy is spelt out in Section 1(3) to wit: ‘if any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void’
Of specific interest to the subject matter are the unambiguous provisions of Sections 38, 39 & 40
Section 38(1) ‘ Every person shall be entitled to freedom of thought, conscience and religion…..”
Section39(1) “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impact ideas and information without interference.”
Section 40 “ Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest”
REGIONAL LEGAL FRAMEWORK
Article 10(1) of the African Charter on Human and Peoples’ Rights provides that “everyone shall have the right to free association provided that he abides by the law.”
Articles 12(3), 27(2) and 28 of the African Charter on Democracy, Elections and Governance guarantee the right to freedom of association.
ACHPR/Res. 5(XI)92: Resolution on the Right to Freedom of Association (1992)
The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the Constitution and international standards;
In regulating the use of this right, the competent authorities should not enact provisions which would limit the exercise of this freedom;
The regulation of the exercise of the right to freedom of association should be consistent with state’s obligations under the African Charter on Human and People’s Rights.
INTERNATIONAL LEGAL FRAMEWORK
Article 20(1) of the Universal Declaration of Human Rights provides that “everyone has the right to peaceful assembly and association.”
Similarly Article 22(1) of the International Covenant on Civil and Political Rights (ICCPR) states that “everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”
The second paragraph of Article 22 of the ICCPR states that no restrictions 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.”
Article 5(ix) of the International Convention on the Elimination of All forms of Racial Discrimination also provides for the right to freedom of peaceful assembly and association.
Article 7(c) of the International Convention on the Elimination of All forms of Discrimination Against Women obligates states to ensure participation, by women, in non-governmental organisations and associations concerned with the public and political life of the country.
Article 29 of the Convention on the Rights of Persons with Disabilities has similar provisions to the ICEDAW.
“States have an obligation to respect and fully protect the rights of all individuals to assemble peacefully and associate freely, including persons espousing minority or dissenting views or beliefs and human rights defenders… seeking to exercise or to promote their rights and to take all necessary measures to ensure that any restrictions on the free exercise of the rights to freedom of peaceful assembly and of association are in accordance with their obligations under international human rights law.”
– UN Human Rights Council Resolution 21/26 (2012)
Article 11(1) of the European Convention for the Protection of Human Rights provides that “everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”
Article 11(2) of the European Convention states that “no restriction shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protections of the rights and freedoms of others.”
The European Convention no. 124 on the Recognition of the Legal Personality of International Non-Governmental Organisations gives recognition to the formation of associations, foundations and other private institutions
The American Convention on Human Rights Art 16(1) states that “everyone has the right to associate freely for ideological, religious, political, economic, labour, social, cultural, sports, or other purposes.”
DUTIES AND OBLIGATIONS OF THE STATE IN ENSURING FREEDOM OF ASSOCIATION
It is the responsibility of the state to respect, protect and facilitate the exercise of the right to freedom of association.
States have a negative obligation to refrain from any interference with the right to freedom of association. It is responsible for violations of this right when the infringement occurs as a result of state interference or its failure to secure the right in domestic law and practice.
In Civil Liberties Organization v. Nigeria, Comm. No. 101/93 (1995), ACHPR, the Commission held that “freedom of association is enunciated as an individual right and it is first and foremost a duty for the state to abstain from interfering with the free formation of associations. There must always be a general capacity for citizens to join, without state interference, in associations in order to attain various ends.”
In International Pen and Others (on behalf of Ken Saro-Wira) v. Nigeria, ACHPR Comm. No 154/96 (1998), the African Commission found a violation of the right to freedom of association where the government took action against an association due to disapproval of its actions. “Communication 154/96 alleges that Article 10.1 was violated because the victims were tried and convicted for their opinions, as expressed through their work in MOSOP. In its judgment, the Tribunal held that by their membership in MOSOP, the condemned persons were responsible for the murders, guilt by association, it would seem furthermore that, government officials at different times during the trial declared MOSOP and the accused guilty of the charges, without waiting for the official judgment. This demonstrates a clear prejudice against the organization MOSOP, which the government has done nothing to defend or justify. Therefore the Commission finds a violation of Article 10.1.” (at para 108).
The state has a positive obligation to ensure respect for the right to freedom of association. This includes an obligation to protect associations from interference by third parties and non-state actors.
Further, the state has a positive obligation to enact legislation an/or implement practices to protect the right to freedom of association from the interference of non-state actors, in addition to refraining from interference itself. The principle extends to cases of infringement committed by private individuals that the state could or should have prevented.
The positive obligation of the state to facilitate the exercise of the right includes creating an enabling environment in which formal and informal associations can be established and operate. This may include an obligation to take positive measures to overcome specific challenges that confront certain persons or groups such as minorities, people living with disabilities, women and youth etc. in their efforts to form associations.
States have an obligation to respect and fully protect the rights of all individuals to assemble peacefully and associate freely, including persons espousing minority or dissenting views or beliefs and human rights defenders, seeking to exercise or to promote their rights.
It is first and foremost a duty for the state to abstain from interfering with the free formation of associations. There must always be a general capacity for citizens to join, without state interference, in associations in order to attain various ends.
Freedom of association also protects the right to refuse to join an association. There is no right for any individual to join a particular association if other members of the group decide not to include them or to expel them on the basis that their membership was not compatible with the aim and interests of the association. However, in relation to trade unions, if a decision not to include a person has adverse employment consequences, any such decision must not be unreasonable or arbitrary.
The right to freedom of association protects against the interference of the State in both the right to form an association and the right to join or remain a member of an existing one. The state is also obligated to guard against interference with the right by non-state actors and facilitate the exercise of freedom of association by creating an enabling environment in which associations can operate.
IT SHOULD FURTHER BE NOTED THAT Associations have the right to participate in matters of political and public debate, regardless of whether the position taken is in accord with government policy or advocates for a change in law.
“There is nothing…to suggest that it is immoral or unlawful to persuade those in power to change certain laws as long as that is done lawfully and peacefully. If the change advocated for is in the views of the lawmakers, likely to lead to or promote unlawfulness or any other undesirable situation or consequences, they are perfectly entitled to refuse to accede to such suggested changes. To refuse the applicants an opportunity to come together and register an organization to carry out peaceful and lawful advocacy for legal reforms…clearly violates their rights under the [Constitution]”
–Thuto Rammoge v. Attorney General of Botswana, case no. MAHGB-000175-13 (High Court).
Legislation and policy concerning associations must be uniformly applied and must not discriminate against any person or group of persons on any grounds such as age, gender, gender identity, health condition, religion or belief, sexual orientation or other status. Membership or non-membership in an association shall not constitute grounds for the discriminatory treatment of persons.
Although an ‘association’ must have some degree of continuity, it need not have any formal or legal status (including legal personality) in order to be protected by international law.
The state cannot effectively negate the freedom of association by generally declaring the objectives of associations to be unlawful.
LEGAL EXCEPTIONS THAT NEGATES THE FULL ENJOYMENT OF FREEDOM OF ASSOCIATION
International human rights law allows restrictions to be imposed on rights where those restrictions are;
Provided by law,
Serve as a legitimate aim; and
Are necessary in a democratic society.
Prescribed by law– This implies that any restriction should have a basis in domestic law. Furthermore, the law itself should be of a certain quality; foreseeable as to its effect and accessible to the person concerned.
Legitimate aim– The interference in question should be necessary in a democratic society, in the interests of national security or public safety, for the prevention of disorder and crime, for the protection of health and morals or for the protection of rights and freedoms of others.
In Monim Elgak, Osman Hummeida & Amir Suliman (represented by International Federation for Human Rights & World Organisation Against Torture) v. Sudan, ACHPR Comm. No. 379/09 (2014), para 119, the ACHPR found that “the only reason that KCHRED and its director were targeted was on account of their perceived links with the ICC. The Respondent State has not provided any information showing that the activities of the organization endangered national security, morality, or the rights of other people in Sudan. In the circumstances, the Commission considers that the State’s interference with the activities of the organization and its staff was unjustifiable and arbitrary and finds a violation of Article 10 of the Charter.”
Necessary in a democratic society– This implies two conditions;
There has to be a pressing social need for the interference, and in particular,
The interference should be proportionate to the legitimate aims pursued. They must be proportionate to achieve their protective function; they must be the least intrusive instrument amongst those which achieve their protective function; they must be proportionate to the interest to be protected.
In Attorney General of Botswana v. Thuto Rammoge [2016] Civil Appeal No. CACGB-128-14, Botswana Court of Appeal held the Registrar violation of the LGBT group’s right to association was not a proportional restriction. “In my judgment the refusal of registration of a society to further address that social ill could only be justified if it could be shown clearly that the society proposed to actively participate in or to encourage the commission of crimes against those sections. That is not the case. Nor can it be said to be proportional if a society formed to pursue a number of honourable objectives, including advocacy, public health and education, was refused registration purely because, in the subjective view of the Registrar (or of the Minister), it was suspected of being likely to promote unlawful activities. There must, as I have said, be some evidential basis for such a conclusion. Here there was none.”
JUDICIAL DECISIONS VIS-À-VIS FREEDOM OF ASSOCIATION OF LGBTIQ MEMBERS
In 2013 in Kenya, the NGO Co-ordination Board refused to register an organization under the name Gay and Lesbian Human Rights Council. The Board defended its rejection on the basis that the proposed names were inconsistent with laws criminalizing same sex conduct. The High Court in Nairobi held that the Kenyan Constitution guarantees every person the right to freely associate and form an association of any kind. As the judiciary is enjoined to apply the Constitution without prejudice, the right to freedom of association must be realized for all persons regardless of sexual identity or gender. The Board, as a state entity, is required to act in accordance with the Constitution regardless of the personal views of its members and public opinion holding that homosexuality is reprehensible.
The Court found that limiting the petitioners’ right to freedom or association was not justifiable under Article 24 of the Kenyan Constitution, since can only be limited if it is reasonable and justifiable in a “democratic society based on human dignity, equality and freedom.” The criminal ban on same sex conduct does not prohibit LBGT persons from existing or associating and thus is not reasonable nor justifiable.
–Eric Gitari v Non-Governmental Organizations Co-Ordination Board [2015] eKLR, Petition No. 440 of 2013 (at paras 73-99).
In Jacqueline Kasha Nabagesera v Attorney-General Misc. Cause 33 of 2012, Freedom and Roam Uganda and Sexual Minorities of Uganda organized a workshop in order to train LGBTI activists. The Minister of Ethics and Integrity ordered the forcible closure of the workshop, alleging that it was an illegal gathering of homosexuals prohibited by section 145 of the Ugandan Penal Code, which criminalizes same sex conduct. The workshop organizers challenged the actions of the Minister as a violation of their constitutional rights to freedom of expression, political participation, freedom of association and assembly, and equality before the law.
The Ugandan High Court accepted that the applicants were exercising their rights to freedom of expression, association, and assembly. Yet, it also found that Article 43 of the Ugandan Constitution, which allows justifiable limitations of human rights in the public interest, was applicable in this circumstance. The Court found that the workshop promoted prohibited and illegal same sex acts and such promotion was prejudicial to the public interest, thus the Minister was justified and did not violate the applicants’ aforementioned rights. The Ugandan High Court declared that the “promotion of morals is widely recognized as a legitimate aspect of public interest which can justify restrictions”.
In Pamela Adie v Corporate Affairs Commission (2018) Federal High Court of Abuja, the CAC refused the registration of an organization named Lesbian Equality and Empowerment Initiatives whose goal was to advocate for the rights of female sexual minorities. The CAC contended that the name could not be approved because it was misleading, offensive, contrary to public policy and violates an existing law that prohibits same-sex marriage in Nigeria.
The Court held that in so far as the Same Sex Marriage (Prohibition) Act is still operative in Nigeria and has not been repealed, the right to form same sex and gay unions and associations is prohibited and CAC was justified to have rejected the application for being in contravention of public policy and morality.
RECOMMENDATION
The right to freedom of Association is core to any society, it is an indispensable right in enabling citizens to monitor the Human rights situations in a country and to support the implementation of Human Rights policies. It is key for the work of Human Right defenders.
Registration should never serve as a tool to control the establishment of organizations, but rather as a tool to provide them with a legal status in jurisdictions that require such a measure.
Denying registration to NGOs that challenge or criticize the government is a violation of the right to freedom of association which forces civil action underground and delegitimizes NGO work. Registration as a form of repression also hinders the formation of an open and pluralistic society, by excluding civil society from public dialogue.
In many countries with a high level of civil society engagement and indeed an enabling environment, prior registration is not mandatory. If such regulations are in place, the UN has underlined that principles guiding the rule of law also apply to these regulations, meaning that they should be determinable, non-retroactive, lawful, proportional, non-discriminatory, and necessary. Furthermore, registration procedures should be expeditious, and not be used as a tool to slow down the establishment of organizations.
The possibility to appeal a decision should be included in the regulation, to provide civil society organizations with fair access to obtaining legal status. Provisions should not require re-registration, enabling organizations to be sustainable and look to the long-term.
Procedures governing the registration of civil society organizations play an important role in the control of civil society space. With this in mind, the power to limit the right to freedom of association must be appropriately framed. States should not impose lengthy, burdensome or overly bureaucratic registration processes, as this would undermine the effective functioning of NGOs.
In some countries, registration applications filed by associations can take up to a month to be considered for approval, while business registration is considered complete, the moment the application is filed.
Burdensome re-registration and reporting requirements usually do not meet the criterion of necessity, as they are solely used to control the activities of NGOs. Nor do they follow the principle of non-discrimination, as often more requirements are placed on civil society than on businesses. There are also doubts that such requirements are proportional, given the heavy requirements with regard to the budget of NGOs, in comparison to businesses for example.
CONCLUSION
FROM All The ABOVE CONSIDERATION, then comes the parody,… can the express provision of the Same Sex Marriage Prohibition Act 2014, negate, subjugate and undermine the express provision of the Constitution of the Federal republic of Nigeria?
Section 4(1) SSMPA “The registration of gay clubs, societies and organizations, their sustenance, processions and meetings, is prohibited”
Section 40, 1999 constitution “ Every person SHALL be entitled to ASSEMBLE freely and ASSOCIATE with other persons and in particular he may FORM or BELONG to ANY political party, trade union or ANY OTHER ASSOCIATION for the protection of his interest”
THERE LIES THE PARODY, WHERE LIES THE SUPREMACY?
CAVEAT
Lawyers Alert hereby puts our readers on notice that this article is based on the writers opinion and do not necessarily represent the views of the organization except otherwise stated.