The legal existences of CSOs come to an end through dissolution. CSOs could be dissolved voluntarily by the decision of CSOs governing body; and involuntarily by the decision of the CSOs regulating Agency or court order. The founders of charities should be allowed to voluntarily dissolve the organisation on the basis of their bylaws. On the other hand, the protection for the legal existence and autonomy of CSOs entails their protection not to be unwarrantedly dissolved without due process, since otherwise the right to exist would be a hollow right. The European Court of Human Rights underscores this when it decides that if the right to form did not include the right not to be dissolved, then freedom of association would be in vain.111
Hence the dissolution of CSOs or their restriction in any form can be justified when the following three grounds are fulfilled simultaneously: (i) when the restriction is prescribed by law; (ii) in the interest of national security, public safety, public order,
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public health, morals or the protection of the rights and freedoms of others and (iii) necessary in a democratic society. 112
Thus, to begin with, any legitimate restriction on CSOs should have a legal basis and accountability measures should be in conformity with a law duly promulgated in advance. The law should also have specific substantive and procedural qualities. From the statutory law perspective, the law that restricts the freedom of CSOs should pass the test that by limiting CSOs autonomy it will attain a greater good of protecting the safety and security of the public and/ or the nation. The test validates the setting of the necessary equilibrium between CSOs autonomy and their accountability.
Also from the legal drafting perspective, the law that puts the restriction measures should have a quality of sufficient precision in order to enable CSOs and their members assess whether or not their intended action could amount to a breach of the law and thereby ensure them with certainty and foreseeability. 113 The certainty and foreseeability of the law will likely reduce the transaction cost for the formation and operation of CSOs. It thus encourages the formation of CSOs as their incorporation would not be placed at the mercy of authorities as long as they fulfil the minimum legal requirements. It also gives CSOs confidence that they will be free from undue and arbitrary intrusion in their governance and operation; and free from unwarranted dissolution on the grounds that have not been specifically prescribed by law. On the other hand, laws that are precisely defined will give the government a valid authority to check on the accountability of CSOs.
112 ICCPR, Article 22; ECHR, Article 11.
113 Organisation for Security and Cooperation in Europe/Office for democratic Institutions and Human Rights Office (OSCE/ODIHR), ‘Key Guiding Principles of Freedom of Association with an Emphasis on Non-Governmental Organisations’4 <http://www.un.org.kg/en/publications/document- database/article/Document%20Database/UN%20System%20in%20Kyrgyzstan/Human%20Rights%2 0and%20Human%20Rights%20Based%20Approach/115-Governace/2129-osce-odihr-note-outlining- key-guiding-principles-of-freedom-of-association-with-an-emphasis-on-non-governmental-
organisationorganisations-eng> accessed on 11 March.2013; N.F. v. Italy, App no37119/97(ECtHR 2August2001).In this case, a judge against whom disciplinary measure was taken for being a member of an association, ‘Freemason lodge’ based on two laws which read: ‘any judge who fails to fulfil his duties or behaves, in or outside the office, in a manner unworthy of a trust and consideration which he must enjoy will incur a disciplinary sanction’ AND ‘judges’ membership of associations imposing a particularly strong hierarchical and mutual bond through the establishment, by solemn oath, of bonds such as those required by Masonic lodges, raises delicate problems as regards observance of the values enshrined in the Italian Constitution.’ The ECHR highlighting the vagueness of the term ‘raises delicate problem’ to indicate prohibition of membership in such association and the fact that it is not adequately foreseeable to enable the applicant to adjust his conduct ruled that the applicant’s right to freedom of association had been violated.
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Secondly, the enforcement of laws that restrict the freedom of CSOs is justified only when there is a legitimate showing114of an imminent and serious threat that warrants the need to protect the rights of individuals, the safety of the public and the security of the nation.115 Certainly, the government as one of its oldest and notable mandate should protect the public from any perils. The actions of CSOs should not be an exception to this rule. Thus the government may take any legal action including dissolution in response to illegitimate actions of CSOs that jeopardizes the rights and securities of individuals, the public or the nation.
However, government should not abuse such mandate to arbitrarily control CSOs or to silence those that challenge the government under the pretext of protecting the public. Hence the freedom of association sanctions that the state action against the autonomous operation of CSOs will be justified only when the threat posed by CSOs against the public is ‘serious and imminent.’ It therefore is necessary that the government will not restrict the freedom of association for a merely ‘local or relatively isolated threat of law and order.’116 Unsystematic and incidental threats posed by
CSOs should thus not cause a limitation on the freedom of CSOs.
The third criterion that must be present, in concert with the foregoing ones, is the
absolute necessity of the restriction for a democratic society. This implies that any measure that limits freedom of CSOs should be not only proportionate to the legitimate purpose of protecting the public but also necessary for a democratic society. For example, a group of individuals who want to form a charity or society that promotes the change of government from secular to a religion state led by a religious leader may not pass the test of ‘necessity for a democratic society’ as democracy requires plurality
114Izmir Savas Karsitlari Dernegi and Others v Turkey, App no.46257/99 (ECtHR, 02 March 2006) 115 ICCPR, Article 22 (2); ECHR, Article 11 (2)
116 The ‘Siracusa Principles’ [United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1985/4 (1985) <http://www1.umn.edu/humanrts/instree/siracusaprinciples.html>accessed 20 April 2015. This principle was adopted in May 1984 by a group of international human rights experts convened by the International Commission of Jurists, the International Association of Penal Law, and the American Association for the International Commission of Jurists, the Urban Morgan Institute for Human rights, and the International Institute of Higher Studies in Criminal Sciences. Though not legally binding, these principles provide an authoritative source of interpretation of the ICCPR with regard to limitations clauses and issues of derogation in a public emergency.
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of ideas and interests, the tolerance and acceptance of others and their ideas and for this reason, a country like Ethiopia whose constitution clearly provide to follow a democratic form of government may refuse to register such kind of CSOs. The restriction of the autonomy of CSOs should thus pass the strict test of both legality and necessity.
The imposition of strict requirements against the infringement of the freedom is necessary as ‘freedom of association would be largely theoretical and illusory if it were limited to the establishment of CSOs’, but if state authorities could unwarrantedly dissolve CSOs without having to comply with the guarantees CSOs and their member are entitled to.117 Such guarantees help CSOs to maintain their autonomy – an essential ingredient for their role in democratization.