Legal Restrictions to Freedom of Association in the Americas

Petitioners argue before the Commission in a thematic hearing on Legal Restrictions to Freedom of Association in the Americas on March 28, 2012. (Courtesy of OAS, Flickr)

Commissioners: Jose de Jesus Orozco Henriquez (President), Rosa Maria Ortiz, Felipe Gonzalez, Rodrigo Escobar Gil, Santiago Canton (Executive Secretary)

Petitioners: Alianza Ciudadana Pro Justicia, Fundación para el Debido Proceso Legal (DPLF), Fundación Andina para la Observación y Estudio de Medios (Fundamedios), Fundación Construir, Perú Equidad, Red Latinoamericana y del Caribe para la Democracia

State: N/A

Freedom of association is a right that the Inter-American Commission for Human Rights (IACHR) has solidified across Central and South America through the work of its Special Rapporteur on Freedom of Expression and Association and the publishing of annual reports detailing the progress and remaining barriers to true participatory democracy. In recent years, governments have erected additional obstacles to the work of human rights NGOs by attacking sources of funding and restructuring the process for legally chartering such organizations.

On March 28, 2012, a group of affected civil society organizations—including Alianza Ciudadana Pro Justicia, Fundación para el Debido Proceso Legal (DPLF), Fundación Andina para la Observación y Estudio de Medios (Fundamedios), Fundación Construir, Perú Equidad, and Red Latinoamericana y del Caribe para la Democracia—petitioned the IACHR for further investigation into the restrictions placed on NGO activity in their respective countries.  Many of these measures create substantial entry costs for organizations at the outset of their work in the community. For example, in Nicaragua, a sponsor from the National Assembly is required for each new NGO requesting a charter from the central government. Although it is only one requirement, the costs of travelling to the capital city and risk of potential changes in the political climate within the legislature can be burdensome. While some NGOs choose to operate without license, the cost of doing so can include government raids of local offices, and in 2008, even led to the arrest of NGO personnel and the seizure of computers and other office files.

In addition to direct licensure restrictions and police action, governments across Latin America have taken legal action to stagnate the flow of money to civil society organizations. DPLF reported that a partner organization was sued by the Nicaraguan government for failing to pay Social Security benefits to its volunteers. Ecuador has gone a step further, and Fundamedios reported to the Commission that legislation proposed in December 2010 gives the government the right to request the name, identification number, and address of every member, and if the government is not satisfied, it can dissolve the organization in just fifteen days.

The administrative difficulties NGOs face does not apply equally to the government bureaucratic decisions included in the two-way exchange between the organizations and the government. Appeals that are still ongoing after four years are contrasted with administrative requests for records or information that are answered in no more than a few days. To comply with IACHR reporting on this issue, Bolivia passed a law vesting the authority to grant NGO charters to local department mayors, decreasing pressure on the central government. However, courts have interpreted this provision narrowly so that the central government still retains control of licenses for NGOs that operate in multiple states within Bolivia, so only a small number of highly localized groups end up actually taking advantage of the newly opened system.

IACHR President Jose de Jesus Orozco Henriquez responded to the petitioners’ claims with a request for written accounts of any criminal penalties for receiving international funding such as what occurred in the wake of the 2008 raid in Nicaragua, as well as any other evidence of stigmatization of NGOs by national governments contrary to the Special Rapporteur’s recent findings. Commissioner Felipe Gonzalez asked for confirmation of any barriers to international observation of NGO activities. Commissioner Rodrigo Escobar Gil stressed that some limitation of NGO activity by the government can be lawful, and requested information about good practices to go along with the testimony about recent failures by governments to help balance and inform any future report. Finally, Commissioner Rosa Maria Ortiz asked specifically for information about how the aforementioned restrictions are affecting NGO-sponsored grassroots activity.

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