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The International Journal
of Not-for-Profit Law

Volume 13, Issue 3, June 2011

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Democracy and Civil Society

Civil Society and the Duty to Dissent
Helen James

The Abandonment of Democracy Promotion
Tara McKelvey

"When We Raise the Issue of the Corruption of Local Authorities, It's the Rebels Who Descend on Us"
Frank van Lierde

Interview: Civil Society Organizations Respond to Government Regulations in Ecuador
Susan Appe

Articles

The Financial Crisis and the Nonprofit Sector: Can Philanthropic Foundations Support the Creation of a Civic Watchdog of International Finance
Lorenzo Fioramonti and Ekkehard Thumler

The NGO Law: Azerbaijan Loses Another Case in the European Court
Mahammad Guluzade and Natalia Bourjaily

A Reflection on the Legal Framework for Civil Society in Nepal
Uttam Uprety

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Editorial Board

Interview: Civil Society Organizations Respond to Government Regulations in Ecuador

Susan Appe[1]

Ecuadorian social entrepreneur and policy expert Orazio Bellettini Cedeño talks about civil society/state relations in Ecuador of recent. While the focus is on Ecuador, the interview illuminates concerns that are relevant across borders and in various regions, specifically about regulation of civil society and organizations within the sector.

In 2008, the Presidential Executive Decree No. 982 (Presidencia de la República del Ecuador, 2008) in Ecuador reformed the legal formation process of civil society organizations and created a new government-driven database of civil society organizations. The Ecuadorian state seeks to standardize and centralize information on civil society organizations for better regulation and coordination through the implementation of its Registry of Civil Society Organizations included in the Decree No. 982. Since the Decree No. 982, public discourse on civil society is seeing an all-time high in Ecuador with President Rafael Correa and other officials publicly discrediting nongovernmental and nonprofit organizations in public statements and several press conferences—targeting both national and international organizations. In May 2010 President Correa denounced the fact that there are more than 50,000 organizations with legal status in Ecuador, citing vast corruption among civil society in general (Flores, 2010; La Prensa Latina, 2010). In the last two years, civil society organizations in response have organized themselves in order to analyze and debate the role of civil society and its regulation in Ecuador. On February 10, 2011, a recognized leader in civil society who has emerged in the last several years, Orazio Bellettini Cedeño, was interview in his office in Quito, Ecuador.

Orazio Bellettini Cedeño is a social entrepreneur, public policy expert, and a think tank manager. He is co-founder and currently the Executive Director of Grupo FARO (FARO Group), a “think-and-do tank” that promotes the participation of citizens in the strengthening of the state and civil society in Ecuador through the design, promotion, and implementation of public policies that encourage equity and growth. Orazio graduated from the Escuela Agrícola Panamericana in Honduras with a degree in Agricultural Economy and has two Master Degrees in Political Science and Business Administration from the Pontifical Catholic University of Ecuador. In addition, he has a Master in Public Administration and Public Policy (2004) from the Kennedy School of Government in the United States. Orazio has worked with several national and international organizations building public-private partnerships for the provision of public services and the promotion of social and economic public policies in Ecuador, Mexico, Guatemala, Spain, and Paraguay, among others.

Here, he talks about civil society/state relations in Ecuador of recent. While the focus is on Ecuador, the interview illuminates concerns that are relevant across borders and in various regions, specifically about regulation of civil society and organization within the sector.

Let’s start with what the role of civil society has been and what it is in Ecuador.

Historically, Ecuador has been a country with a rich civil society and citizen participation. Indeed, it has been characterized by a culture of participation, and many factors could help explain this. It is a country where we have had—like many countries in Latin America—relatively weak states; therefore, communities have looked for other mechanisms to solve collective problems. Actually, Ecuador is one of the Latin American countries with the greatest density of civil society organizations.

The Ecuadorian civil society sector has had a long history, very dynamic and creative, in the sense that it has proposed ideas and new knowledge, often on the frontier of important debates. In the last twenty years, civil society organizations had provided several of the proposals for reform and institutional changes that were reached in Ecuador’s new 2008 Constitution of Montecristi. Civil society organizations generated and constructed the social base for new ideas, so that today Ecuador has rights for nature and is very progressive in the realm of other rights—rights for women, rights to political participation, et cetera.

And what about some of the challenges for civil society in Ecuador?

I would say within the challenges, the sector reflects a characteristic of Ecuador that I consider, and FARO Group considers, one of the principal obstacles for Ecuador’s development: the fragmentation of the country. It is a sector very fragmented with little cohesion, with little coordination, and this has definitely diminished its space. It has diminished its impact and its public presence. Because every organization, formal or informal, works from its own environment, while it might think about the sector, there is difficulty working in a cohesive, more unified way. This is a principal challenge for the sector, but this also occurs in the country elsewhere. Fragmentation is found among actors in the market and also within the state. Unfortunately, in Ecuador everyone still goes his or her own way.

In Ecuador, there is a lot happening now in the realm of civil society and civil society’s relations with the state and other government entities. What changes are directly impacting civil society organizations in Ecuador?

Let’s start with the recent Constitution. I would say that in the 2008 Constitution of Montecristi exists a strong tension. On one side it incorporates institutions that are quite democratized, in the sense that the Constitution recognizes citizen participation within public management. The democratized institutions found in the 2008 Constitution of Montecristi seem only conceptual but they have very concrete implications. That is, it suggests that “the public” is not only the state, but rather that there is a public space beyond the state. It is to say, “Hey, public decisions are not only up to the state. They do not only come top down. Rather, movements and citizens’ participation are active in governance from below. The citizenry also forms the public.” But on the other hand, in the same 2008 Constitution of Montecristi, there are institutions with concentrated power. They give a lot of power to the central government and more concretely, the executive branch.

Can you give an example of such concentrated power?

Yes, this is something that FARO Group works on. Under the Constitution of Montecristi, the period of time for the general public budget to be sent to the legislature from the executive is reduced from three months which we had before, and which exists in almost all Latin American countries, to now one month. It can be said that this reduced period of time for public deliberation does not only limit the time for the National Assembly but also reduces it for Ecuadorian society in general. It limits the time civil society has to question, “Will this budget really reflect political priorities, the preferences that we have as a society?” There is a concentration of power, as it gives less space for public deliberation.

There are other examples in the 2008 Constitution where concentrated power exists. For example, it prohibits the importation of transgenic products, but with an exception that the president can authorize it; it prohibits exploiting petroleum in protected areas, except when the president authorizes it. Why am I telling you this? Because the guidelines that regulate civil society organizations, the Presidential Executive Decree No. 982 of 2008, and the draft regulation proposed in December of 2010 by the Secretariat of People also reflect this tension between democratized institutions and institutions of concentrated power in very visible way.

Let’s talk about these regulations for the sector.

When you read the introductions of these Executive Decrees, they talk about the respect and the promotion of participation, et cetera, but then in many other parts of the actual bodies of the regulations, there exists significant discretion, even a bit of authoritarianism in regard to the power to dissolve an organization when the organization is not aligned to the political project of the serving government. How is it possible that there is a regulatory project like this, while we have the 2008 Constitution? It is because the Constitution has within it a schizophrenic tension: democratization on one side, and extreme concentration of power on the other side.

The content of the regulations reflects this tension. On the one hand, it says we believe in the promotion of civil society but on the other hand, it demonstrates unchecked power to establish the “field of play” of civil society organizations in general, particularly to place organizations only within the realm of the national development plan. The regulations reduce the margin of important projects, infringe on and put in danger the right to associate and the right to expression which are fundamental in any democracy and more so for a country that has a Constitution like we have.

Today in Ecuador, regulations and laws are important. Ecuador has been a country with very weak obedience to the law, but I believe that this is changing. There is a very clear intention in the current Administration to implement regulations and public policies more effectively, and this is positive, definitely, because there is now more enforcement, respect for the law—the state has made rule of law a priority. Because there is this intention to enforce the laws and public policies, we have to be careful of regulations. Ten years ago, we might have said that regulations do not matter, no one adheres to them. But today we see changes. Civil society organizations are telling us that when they reform their statutes, they are told by government officials that they have to incorporate the requirements of the Decree No. 982. For example, the organizations need to recognize in writing that they cannot participate in politics or the organizations will be shut down. The regulations are actually being applied. Therefore, these regulations need to be of good quality and democratic. Regulations and rules that respect the Constitution and international agreements are essential.

Neither the Decree No. 982 nor the new regulation proposed satisfy what is laid out in the Constitution and in international agreements. This puts us in a position and in the right to demand better regulation, not to defend NGOs, it is not only about this, but rather it is in the defense of democracy, it is in the defense of the Constitution. Therefore, we have initiated the formation of a Collective of Civil Society Organizations that in the last year and a half has come to meet, to propose, and to demand—every time with, I would say, more public visibility—a quality regulation that the Ecuadorian democracy deserves.

The Collective of Civil Society Organizations, as it is informally now called, has assumed with the support of FARO Group and other organizations a role within the current discussion of the regulation of civil society organizations in Ecuador. Can you talk a little bit about the process that has been going on for the last two years or so? How has the Collective developed and strengthened?

Yes, to start, I believe that as I mentioned, because of the characteristic of fragmentation, it has been difficult in Ecuador to find an element that has unified civil society organizations, an element around which to form a Collective. From this perspective, the current regulation generated an enormous window of opportunity, because it affects all of us. Indifferent to the political left or right, whether environmental or human rights organizations or economic development organizations, it affects us all.

Another element that has been very important to the formation of the Collective is the need for multiple leadership. I believe that if there had not been multiple leaders driving the Collective, it would have been hard to maintain and strengthen it without a risk of monopoly by a single organization. Because of this, we have decided as a concrete strategy to rotate the location of the Collective’s meetings. This seems to me to be very important. It is a small detail, but it shows the Collective as having multiple nodes and not only a single node. The organizations have been empowered, because the duty to host a meeting of the Collective signifies a responsibility, signifies a promise. I would say that this has been an important concrete strategy.

In the beginning, there was the challenge of getting to know each other, really, because as a sector we did not know each other well. I believe that these two years have been a time to generate trust. We have established that this is not a Collective where one organization tries to benefit or particular persons with interests only benefit. Rather, we are trying to think about the interests of the Collective, of the sector. This is easy to say and difficult to verify; the verification has unfolded in the process of getting to know ourselves. In the beginning, we felt that we were not ready to go out to the public, that we did not have a level of organizational maturity or a level of cohesion and trust. We met with each other quietly and with government officials on occasion. But this initial strategy—to meet behind closed doors with each other and government officials—had limitations.

So we have made a conscious decision to go more public. On January 7, 2011, we published a sector Manifest (OSC Ecuador, 2011). It was a political act in the sense that it said that organizations involved in the Collective know each other, they trust each other, and that they have four clear principles. Granted, the organizations are not in agreement of everything, but we are in agreement of these four things. I believe that this showed a common front towards the public and the government, but also toward the media. Editorialists realize that now, while not a formal Collective, at least we have shown a strong organizational presence. I believe that this decision to go public was the proper strategy, the proper sequence, given the times. Maybe we took a bit of time, maybe we could have gone public earlier, but the situation unfolded like this.

The Collective is working on two objectives: accountability within the sector and regulations for civil society organizations in Ecuador. In the next several months, how do you see these two objectives developing?

First, I believe that we are going to meet around accountability mechanisms, and this is going to be another moment to make the Collective more visible. We are ready to say to the public: “Here we are, a group of organizations, and we are conscious of our responsibility. We command a space in the public sphere but we are conscious of the responsibility that this brings. We practice ethics, we have to show what we are, with whom we work, how much of a budget we manage.” We are now planning more public events to share our accountability efforts—more public acts that say, “Look, we are here to be accountable because we believe we are important to society. We are not embarrassed by our work. Rather, we feel proud of what and who we are.”

But also, more visibility will be an opportunity to transmit to the public our concerns about and our proposals for better regulation for the sector. The Collective believes that Ecuador deserves a regulation of the sector of the best quality possible. This is a second objective for us. We believe that such a regulation needs to be generated with extensive participation from civil society. For this, we, as a Collective, are going to assume the responsibility and promote a process of a collective construction of a draft regulation.

In the next several months, I see a process generating the draft regulation for the sector. It is not going to be easy, because we want to include the entire country. We want to do a number of public forums, hopefully, in all of the Ecuadorian provinces in order that the organizations across the country participate, that they see the importance to having a good regulation. Then after we have a proposal that we have discussed at length, we will converse with other actors such as the state and the private sector, in order to be sure that the proposal is solid. After this, we will initiate a process to collect signatures—25,000 signatures are required by the Constitution—in order to present the project of a regulatory law for the sector to the National Assembly. If we achieve this, I believe that the Collective will be at a new and different level, a level of maturity, proactivity, organization, and responsibility that until now we have not had the opportunity to show.

Let’s finish with a more abstract question. You have mentioned the importance of civil society in Ecuador, including its strengths and challenges. But as many reading this might not be familiar with Ecuador or Latin America in general, why do you think we should pay attention to what is happening in Ecuador now?

I believe that Ecuador is a country with an enormous richness in participation. It is a country where one can see clearly, let’s say, the public goods that have been generated by civil society. You could construct a case study of the importance of civil society within democracies like Ecuador, to show that civil society is not only an abstraction. Rather in Ecuador there is a very concrete story to tell about these organizations and their important role in public wellbeing. Specifically, Ecuador in the last few years tells a story of how an adverse environment, an invasive regulatory system that violates rights, can be broken. There are different ways to react, and here civil society has found that in the political and legal moment we are living right now, there is an opportunity to achieve something that we had not been able to achieve previously. Even with the rich history of civil society participation in Ecuador, we were not able to achieve unity, we were not able to achieve cohesion. Therefore I believe one can see in Ecuador that civil society can develop strategies of survival and more importantly means to strengthen itself even within adverse environments.

Notes

1 Department of Management, Andean University "Simón Bolívar," Quito, Ecuador; The Rockefeller College of Public Affairs & Policy, University at Albany, SUNY, Albany, NY. appesusan@gmail.com

References

Presidencia de la República del Ecuador [The Office of the President] (2008, March 25). Executive Decree No. 982. Accessed on July 27, 2009

Flores, R. (2010, May 29). Gobierno anuncia depuracion de Organizaciones no Gubernamentales. Hoy. Retrieved on December 20, 2010

La Prensa Latina (2010, May 30). Denuncia Rafael Correa la existencia de unas 50 mil ONG en Ecuador. Retrieved on November 20, 2010

OSC Ecuador (2011, January 7). Manifesto del Colectivo de Organizaciones de la Sociedad Civil (OSC) sobre el Proyecto de Reglamento para Personas Jurídicas de Derecho Privado con Finalidad Social y Sin Fines de Lucro. Universo. Quito, Ecuador.

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