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27. In the instant case, since Mr Mtikila, whose rights have allegedly
been violated. is party to the case, the issue at stake is one of
ascertaining if a non-governmental organization is also allowed to file
an Application based on the same allegations. it would have been a
different situation if Mr Mtikila had not initiated an action before the
Court and that both non-governmental organizations had acted for Mr
Mtikila and initiated action on his behalf.
Ill.
Merits
28. I am of the view that barring independent candidates from certain
elections and the correlative obligation to belong to a political party are
not in themselves violations of Articles 10 and 13(I) of the African
Charter; they can only be violations of those provisions if they are
considered as unreasonable or illegitimate limitations to the exercise of
the rights enshrined in the said provisions (see, on a similar matter, the
findings of the Inter-American Court of Human Rights in paragraphs
193 and 205 of its judgment of 6 August 2008 in the case Castaneda
Gutman v Mexico).
29. Unlike Articles 22 and 25 of the International Covenant on Civil and
Political Rights, Articles 10 and 13(1) of the African Charter do not
provide in a satisfactorily manner for the freedom of association and the
right of the citizen to freely participate in the government of his or her
country.
30. The main weakness of these two provisions of the Charter lies in
the claw-back clause they contain. Both articles indeed provide that the
freedom of association and the right of the citizen to freely participate in
the public life of his or her country must be exercised “in conformity with
the rules laid down by law”. That clause does not appear in Article 25
of the Second Covenant which, for its part, provides that the
guaranteed rights should be exercised “without discrimination and
unreasonable restrictions”. This provision consequently allows for
“reasonable” restrictions, such as those based on the age of the person
for instance. lt is our view that Articles 10 and 13(1) of the Charter
should be interpreted in the same spirit. The limitations that the
lawmaker could provide to the exercise of those guaranteed rights must
be reasonable or legitimate, that is, they would need to comply with a
number of objective criteria. Since Articles 10 and 13(1) are silent, one
could usefully refer to the criteria set out in the second Paragraph of
Article 27 of the Charter even though this provision is a priori intended
to prevent the abuse that the individual might likely commit in the
exercise of his or her rights and freedoms rather than to protect the
individual from abusive limitations to his or her rights and freedoms by
the State, as it is emphatically suggested in the formulation of this
Article and its location in the Chapter relating to the duties of the
individual.
31. At any rate, in the final analysis, and as stated by the African
Commission and confirmed by the Court in Paragraph 112 of the
Judgment, this provision may be viewed as a general clause which
restricts the margin of maneuver of States Parties as far as limitations
are concerned. The only limitations to the exercise of the freedom of