(1) Every individual shall have the right to free association provided that he abides by the law.
(2) Subject to the obligation of solidarity provided for in Article 29 no one may be compelled to join an association.
The right to freedom of association describes the right of a person or persons to join or come together with other individuals to collectively express, promote, pursue or defend a common interest. It is both an individual and collective right guaranteed by relevant international and regional human rights instruments or laws.
Some of the key international human rights instruments that cater for the protection of the right to freedom of association include the Universal Declaration of Human Rights (articles 20 & 23), the ICCPR (article 22) and the ILO Declaration on Fundamental Principles and Rights at Work.
The African Commission’s Study Group on Freedom of Association and Assembly has developed Guidelines on Freedom of Association and Assembly which were adopted at the Commission’s 60th Ordinary Session held in Niamey, Niger, from 8 to 22 May 2017. The guidelines aimed at, inter alia, crystallizing human rights standards, and strengthening the obligations under article 10 and 11 of the Charter.
‘Association’ is defined under the Guidelines as “an organized, independent, not-for-profit body based on the voluntary grouping of persons with a common interest, activity or purpose. Such an association may be formal (de jure) or informal (de facto). A formal (de jure) association is an association that has legal personality, while an informal (de facto) association is an association that does not have legal personality, but that nonetheless has some institutional form or structure.
The African Commission on Human and People’s Rights has interpreted this provision in its Communication 101/93, in the case of Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria. The Commission held that there is a duty on states to abstain from interfering with the free formation of associations. That there must always be a general capacity for citizens to join, without state interference, in associations in order to attain various ends.
The Commission’s Communication above was brought to challenge a decree which established a new governing body (The Body of Benchers) of the Nigerian Bar Association. According to the decree, the government appointed 97 of its 128 members and only 31 are nominees of the Bar Association. The Body was empowered to determine the prescription of practising fees, and the disciplining of legal practitioners and the decree excluded recourse to the court on matters relating to the Body. The Commission held that the interference with the self-governance of the Nigerian Bar Association by a Body dominated by representatives of the government with wide discretionary powers violated the right to association under article 10 of the Charter.
While freedom of association is closely related to freedom of assembly, the former however means that no one may be deprived of the right of associating with a group of his choice and that no one may be obliged to belong to a group.
Additionally, the Commission at its 11th ordinary session in 1992 adopted a resolution on the right to freedom of association strengthening article 10 of the Charter. It provides amongst others that competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the Constitution and international human rights standards. That in regulating the use of the right to association, the competent authorities should not enact provisions which limit or aim at limiting the exercise of freedom and such a regulation should be consistent with states’ obligations under the Charter.
