4. Associations may freely determine membership

The right to freedom of association applies also to associations themselves, implying that those within the association have the right to choose with whom to associate. The African Commission corroborates this principle^[1] in its Draft Guidelines on Freedom of Association and Assembly in Africa, explaining that

[those] founding and belonging to an association may choose whom to admit as members, subject to the prohibition on discrimination.^[2]

Similarly, the ECtHR has held that the right to freedom of association entails the right for a private association to choose its own members:

Article 11 cannot be interpreted as imposing an obligation on associations or organisations to admit whosoever wishes to join. Where associations are formed by people, who, espousing particular values or ideals, intend to pursue common goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership.^[3]

At times a balance needs to be struck between the rights of the collective and the rights of the individual. In Arenz et al v Germany, the UN Human Rights Committee ruled in favor of the freedom of a political party not to associate with Scientologists over the rights of the latter’s desire to associate with them. The applicants in the case were Scientologists who were expelled from one of Germany’s major political parties, the Christian Democratic Union (CDU) on the basis of their religion. The expulsions arose after the CDU adopted a resolution, which determined that Scientology was incompatible with CDU membership. The authors challenged their expulsions in court without success. The German courts had found that the CDU’s decision was not arbitrary, and that they would not interfere with the political party’s autonomy over its membership. The Human Rights Committee ultimately took the position that it could not interfere with the German courts’ findings regarding the balance of interests between the authors and the members of the party.^[4]

The OSCE/ODIHR and Venice Commission Joint Guidelines on Freedom of Association stipulate that associations shall be free to determine their rules for membership, subject only to the principle of non-discrimination.^[5]

4.1 No criminalization of membership in an association

States cannot criminalize mere membership in an organization. In addition to the requirements that the State must meet before banning, dissolving or suspending an association (see Association Section 12), it must prove additional, individualized assertions of criminal intent and acts on the part of any members to comply with international legal standards of due process and the individual right to a fair trial and to be free from the arbitrary deprivation of liberty.

The UN Human Rights Committee has indicated that a State must demonstrate that any measure entailing the sanctioning of membership in an association is strictly necessary to avert a real danger to one of the legitimate aims a State may protect^[6] .

The State Party must further demonstrate that the prohibition of the association and the criminal prosecution of individuals for membership in such organizations are in fact necessary to avert a real, and not only hypothetical danger to the national security or democratic order and that less intrusive measures would be insufficient to achieve this purpose.^[7]

According to the AComHPR Study Group on Freedom of Association & Assembly in Africa,

In no cases should membership in an association alone be taken as grounds for criminal charges; in practice, this is generally linked to ungrounded prosecution by authorities of associations they disapprove of for political reasons.^[8]

The case of International PEN, et al. v. Nigeria arose after a set of murders that followed a rally of the Movement for the Survival of the Ogoni Peoples (MOSOP) for the protection of those who lived in oil-producing areas of Ogoni land. Certain association members were detained for murder on the basis they had incited members of MOSOP to murder four rival Ogoni leaders. They were eventually sentenced to death and executed, before their case was submitted to the ACtHPR by non-governmental organizations. The ACtHPR found that Article 10 of the African Charter had been violated as they were essentially found guilty by the Nigerian court on the basis that they were part of an association, rather than for their individual behavior:

Article 10.1 was violated because the victims were tried and convicted for their opinions, as expressed through their work in MOSOP. In its judgement, 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 judgement. This demonstrates a clear prejudice against the organisation MOSOP, which the government has done nothing to defend or justify.^[9]

In addition, association members should not be penalized even when a member of an association has committed an offense, if they themselves were not involved in the offense in question. The AComHPR Draft Guidelines confirm this basic principle of law with regard to the freedom of association:

Offenses committed by particular members of associations shall not be taken as grounds to penalize the association itself, where the official decision-making structure of the association was not employed to pursue those offenses. Similarly, offenses committed by an association, i.e. through its officers, shall not be imputed to members of the association who did not take part in the offenses in question.^[10]

For the principle, see: UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, at para. 55. ↑
AComHPR, Draft Guidelines on Freedom of Association and Assembly in Africa, 22 September 2016, art. I.2.2. ↑
Associated Society of Locomotive Engineers & Firemen (ASLEF) v. the United Kingdom, ECtHR, Judgment of 27 February 2007, para. 39. ↑
Arenz, Paul; Röder, Thomas and Dagmar v. Germany, Human Rights Committee, UN Doc. CCPR/C/80/D/1138/2002, 24 March 2004. ↑
OSCE/ODIHR and Venice Commission, Joint Guidelines on Freedom of Association, 2015, para. 28 (principle 3). ↑
Mr. Jeong-Eun Lee v. Republic of Korea, Human Rights Committee, UN Doc. CCPR/C/84/D/1119/2002, Views of 20 July 2005, para. 7.2 ↑
Mr. Jeong-Eun Lee v. Republic of Korea, Human Rights Committee, UN Doc. CCPR/C/84/D/1119/2002, Views of 20 July 2005, para. 7.2. ↑
AComHPR , Report of the Study Group on Freedom of Association & Assembly in Africa, 2014, III.C.1. (36). ↑
International Pen and Others v. Nigeria, ACtHPR, 1998, para 108; see also Malawi Africa Association and others v. Mauritania, AComHPR, Communication of 27 April – 11 May 2000, para. 107: “some presumed supporters of the Ba’ath Arab Socialist Party were imprisoned for belonging to a criminal association. … The government did not provide any argument to establish the criminal nature or character of these groups.” ↑
AComHPR, Draft Guidelines on Freedom of Association and Assembly in Africa, 22 September 2016, para 51.1. ↑