MADLANGA J
Sigurjónsson63 and Chassagnou64 on that Article particularly offer useful guidance on
interpreting section 18. I can conceive of no cogent reason why we too should not come
to the conclusion that section 18, in fact, protects the negative right not to be compelled
to associate.65 We do not have the apparent hurdle of the travaux préparatoires that
appears to have informed the circumspect approach of the ECHR in Young. If the
ECHR could reach the conclusion that it did notwithstanding that evidentiary material
which seemed to point in the opposite direction, it follows more strongly that we too
must come to the same conclusion.
On the other hand, paragraph 2 of Article 10 of the African Charter specifically
provides that “no one may be compelled to join an association”.66 Does that mean the
decision of the ACHPR in Tanganyika Law Society does not assist us? Of course, it
does assist. When the Court says “freedom of association is negated if an individual is
forced to associate with others”, that means exactly that.
When the Court says
“[f]reedom of association is also negated if other people are forced to join up with the
individual”, that too means exactly that. You associate or do not associate as you wish.
It is a free exercise of choice. It makes sense that that must be so either way. Crucially,
the ACHPR said “freedom of association implies freedom to associate and freedom not
to associate”. (Emphasis added.) In context, this is plainly an implication the ACHPR
sees from the notion of “freedom of association” without recourse to paragraph 2 of
Article 10.
It seems to me – perhaps with the benefit of hindsight provided by the ECHR
interpretation – that paragraph 2 of Article 10 of the African Charter and the equivalent
paragraph 2 of Article 20 of the UDHR specifically proscribe coerced association ex
63
Sigurjónsson above n 46.
64
Chassagnou above n 54.
65
I am not unmindful of the ECHR’s unique reliance on what individual states had done post Young.
66
This is comparable to paragraph 2 of Article 20 of the UDHR. Article 20 provides:
“(1)
Everyone has the right to freedom of peaceful assembly and association.
(2)
No one may be compelled to belong to an association.”
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