Article 7 of the Afghan Constitution binds the government to respect International Human Rights Law, and to preserve the rights enshrined by it. These rights include, but are not limited to, the right to life, liberty, privacy, freedom of opinion and freedom of association. Non-governmental organizations (NGOs) have historically played a worthwhile role in safeguarding these basic human rights. The United Nations Declaration on Human Rights Defenders recognizes NGOs as key agents of protection against abuse and violation of human rights.
In 2019, the Law Committee of the Afghan Cabinet proposed a draft amendment to the NGOs Law enacted in 2005, to revise conditions pertaining to salaries and registration of NGOs. The law is currently before the Cabinet, and is soon to be approved. Notwithstanding the new improvements provided by the draft law, it has raised concerns among NGOs in Afghanistan, as it creates serious impediments to the functioning of civil society and NGOs. According to Amnesty International, the law “represents a serious threat to the existence of civil society organizations in Afghanistan, as it imposes unnecessary and disproportionate restrictions on associations.”
The provisions of the law contradict the requirements of international legal instruments which award freedom of expression and association to individuals and associations such as the International Covenant on Civil and Political Rights (ICCPR).
As mandated under Article 17 of ICCPR: “no one shall be subjected to arbitrary or unlawful interference with his privacy.” The draft law, on the other hand, has armed the government agencies with the authority to interfere with the professional and financial issues of the NGOs. Article 43 of the draft law permits the Ministry of Economy to “evaluate the structure, management, modus operandi and financial accounts of organizations.”
The draft law also stipulates that “all domestic and foreign organizations” should be registered with the Ministry of Economy. Article 17 of the law then warns that “application for establishment of NGOs might be rejected in case it contradicts the provisions of this law about the association and registration of NGOs.” The ramifications of this sentence are too broad and can be perverted by governmental authorities against the right of association, recognized under Article 21 of the ICCPR. Under the draft law, the Ministry of Economy has unlimited authority to interpret the implications of the NGOs law, and accordingly decide whether an organization can be formed or not. The authority of the Ministry of Economy is unguided by parameters laid down by the competent legislative authorities. The draft law prohibits the registration of NGOs whose charters are contrary to the law, and names appear similar to the names of currently acting organizations. Beyond this, the law does not lay down any specific parameters on the basis of which the Ministry of Economy may reject applications.
Based on Article 5 of ICCPR, any limitation to fundamental human rights should be proportionate, democratically justifiable and permitted by the law. Article 23 of the draft law prohibits NGOs from “using equipment against national interests and religious rituals”. The law has not further elaborated on the specific cases against national and religious rituals which would require limitations to the right of using equipment by NGOs. Interpreting the implications of this sentence in specific cases leaves too much discretion to the State. Therefore, any limitation to the rights specified by any authority other than the law, does not meet the requirements of the ‘legality’ principle.
Under International Human Rights Law, the Afghan government is obliged to protect the rights of individuals and associations. NGOs provide the public with humanitarian assistance, advocacy and healthcare services. Considering Afghanistan’s fragile economic conditions amidst the COVID-19 pandemic, the essential services of NGOs and humanitarian projects to patients and to people susceptible to the virus, is significant. In consequence, undue restrictions proposed under the draft law may serve to impede the timely dissemination of services and information to people in need.
In a nutshell, in view of Article 7 of the Afghan Constitution, which entrenches the necessity to respect International Human Rights Law, the Afghan Cabinet should refrain from approving the draft law. Any further amendments to the NGOs Law should be compatible with international legal documents protecting human rights and freedoms.