ICNL logo

The International Journal
of Not-for-Profit Law

Volume 7, Issue 2, February 2005

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

Table of Contents

Letter from the Editor

Latin America

The Promise and Peril of Democracy (Full Text of Speech)
Jimmy Carter

The Promise and Peril of Democracy (Summary)
Joseph Proietti

Threat Resurges for Venezuelan NGOs [Spanish Translation]
Antonio L. Itriago and Miguel Ángel Itriago

Transparency Versus Government Supervision in Peru [Spanish Translation]
Beatriz Parodi Luna

Federal Law for the Promotion of Civil Society Organizations in Mexico
Consuelo Castro

Active Without Recognition: Obstacles to Development of the Colombian Third Sector
Adriana Ruiz-Restrepo

The Role of the Media in the Consolidation of Democracy in Latin America
The Latin American Program of the Woodrow Wilson Center for International Scholars

Articles

Philanthropy and Law in South Asia: Key Themes and Key Choices
Mark Sidel and Iftekhar Zaman

The Role of a National Donor Association: A U.S. Perspective
Robert Buchanan

California’s Nonprofit Integrity Act of 2004
Thomas Silk and Rosemary Fei

Progress on Civil Society Legislation in Turkey
Filiz Bikmen

Taxation of Grants in Russia
Yulia Checkmaryova

Reviews

Civil Society
By Michael Edwards
Reviewed by Stephan Klingelhofer

The Law of Charities
By Peter Luxton
Reviewed by Richard Fries

Does Civil Society Matter?: Governance in Contemporary India
Edited by Rajesh Tandon & Ranjita Mohanty
Reviewed by Bindu Sharma

Governing Nonprofit Organizations: Federal and State Law and Regulation
By Marion R. Fremont-Smith
Reviewed by Michael Bisesi

Balkan Identities: Nation and Memory
Edited by Maria Todorova
Reviewed by Gerald M. Easter

Something to Believe In: Politics, Professionalism and Cause Lawyering
By Stuart A. Scheingold and Austin Sarat
Reviewed by Patricia Lyons

- - - - - - - - - -

Download this issue (PDF) | Editorial Board

Active Without Recognition: Obstacles to Development of the Colombian Third Sector

By Adriana Ruiz-Restrepo*

Introduction

Polo, an Afro-Colombian born to a rural family of sugarcane cutters, near the city of Cali in the southwestern part of Colombia, was hit by a wayward bullet at the age of seven and permanently blinded. No longer could he help his parents with the landowner’s farm animals, or fish by the river. The options for a poor, black, blind boy, as he says, were few. A human trafficker urged the family to let him have Polo as a beggar, a hideous alternative not even considered by his loving parents. An uncle gave Polo a guitar so that he might survive as a pity-evoking blind musician on Cali’s buses, but the boy smashed the instrument to pieces, ending any potential it might have had for predicting his future. 

Instead, Apolinar Salcedo earned a law degree and an MPA, was elected deputy to the municipal council three times, and then was elected to the position he now holds: mayor of Cali, Colombia’s third-largest city, with more than two million residents. Many politicians never imagined that a handicapped person belonging to a minority race could possibly become mayor, but the people trusted Polo. The result was one of those progressive changes that reflect the kind of democracy we Colombians are proud of. 

Polo defines himself as a solidarity product. Beyond his family, he credits a great deal of assistance that helped him advance: a doctor who voluntarily provided care beyond the State level; women who housed and looked after him in Cali; teachers at an NGO who taught him Braille; a not-for-profit soccer club for the blind that gave him a chance to became a star; and a privately funded scholarship that enabled him to attend law school. 

Every day, such citizens supplement the efforts of the State and the market by undertaking organized activities through juridical not-for-profit persons. In this way, Polo represents the promise of the Colombian Third Sector. Yet it's only a promise. The results fall short of their potential, for two main reasons. First, organizations are atomized; they don’t network or collaborate through horizontal sub-networks in ways that might allow them (a) to achieve greater impact or (b) to earn greater public trust. Second, not-for-profit law has not developed adequately to frame and rule the Third Sector’s interactions with business, community, and the State.  

Definitions

Co-ops, mutual benefit organizations, community organizations, foundations, not-for-profit associations and corporations (better known as NGOs), voluntary entities, neighborhood committees, and other groups together constitute what I call the Solidarity Sector. In order to become subjects of rights and obligations, any such organization must be recognized by law, constituted by a private agreement as a not-for-profit juridical person, and registered. This process grants the organization full legal capacity; it can undertake activities of general interest or public utility without further authorization.  

By my classification, these organizations fall into two types, which reflect the activities determining their legal structures:  

(a) Solidarity Economic Organizations (SEOs) primarily produce goods and services, like other units of economic exploitation, but their members do not pursuit personal profit; instead, the profits are reinvested in the organization. Examples include farmer and recycler co-ops and mutual benefit organizations of employees. 

(b) Solidarity Development Organizations (SDOs) primarily deliver sociopolitical opportunities and benefits to society. Examples include foundations promoting cultural heritage or entrepreneurial activities, associations for helping internally displaced persons, neighborhood committees, not-for-profit corporations for the defense of human rights, and anti-corruption watchdog organizations. 

(I) The Absence of Networking  

(a) Magnifying Impacts 

When it exists at all, integration in the Solidarity Sector tends to be vertical, bringing together organizations of a single type, such as the Colombian Confederation of NGOs (CCONG) and the National Confederation of Cooperatives (CONFECOOP). Horizontal interaction is relatively rare. Solidarity Economic Organizations customarily identify with the capitalistic investment sector, on the ground that they share the same “enterprise” operating mode. For instance, in the current negotiations to establish an Andean Free Trade Area with the United States, Solidarity Economic Organizations have allied with small and medium-sized enterprises based on similarity of economic size. They did not ally with the Solidarity Development Organizations, which have insisted that the Free Trade Area would have noxious effects on the peasant economy and the vulnerable-population economy, types of economies that usually develop under SEOs. It is an irony that SEOs and SDOs have not teamed up, given that they share the same legal nature, the same obligations to devote resources to social ends, and the same tax benefits. 

Although SEOs and SDOs sometimes attend the same forums, they almost never collaborate. This holds true even when their needs are identical. For example, when the Colombian Congress deliberated legal changes that would affect these organizations, the different types of organizations submitted separate comments despite their common concerns. 

In public, Solidarity Organizations of both types have low visibility. Though this is improving, they do not frequently appear in the news. Because they are not perceived to be a key sector in society, the media do not give their news and opinions the same attention that corporate and State voices get. 

Solidarity Organizations have virtually no presence in academic life. With the exception of very few universities and schools, the perspectives of this complementary way of development are not taught or researched, even by the organizations themselves. Recently, the trend of Corporate Social Responsibility linked with these kinds of organizations has begun to attract research. Around five labs have started working on developing this market’s civic initiative, but the sector as such is not particularly attractive to academia.  

In addition, the SDOs devoted to generating opportunity for Colombians concentrate their efforts on two main areas: (a) grassroots and community development, such as microcredit, entrepreneurship, culture, education, and health; and (b) aspects of the Colombian situation of “conflicterrorism,”[1] such as human rights law and international humanitarian law, emphasizing due process, victim’s rights, and the crisis of the internally displaced population. 

(b) Protecting Reputations 

The greatest attention to organized civil society in Colombian public space has resulted from the human rights (HR) NGOs. They strongly criticized the governmental strategy of democratic security, mostly regarding the antiterrorism statute (finally declared unconstitutional) and the legal framework for the reincorporation of members of the guerrilla (left) and the paramilitary (right) outlaw groups into civil life. In response, President Uribe charged that certain NGOs were aiding the cause of Colombian terrorist groups. This accusation brought immediate and vast media attention, which suggested an intense fight between the President and Colombian NGOs. The NGOs--already little known or appreciated by Colombians--fell under suspicions of backing terrorism, whether they concentrated on human rights or on some other area. 

Nineteen HR NGOs presented a writ of protection to the Colombian Constitutional Court. The Court ruled that the President had not focused his condemnation on any particular organization, but had referred ambiguously to a category; consequently, the NGOs were not harmed.[2] Nevertheless, the Court gave the President a reminder of the limits of his constitutional right of opinion. It explained that when conveying information in a presidential address, he is subject to a strict burden of proof. When conveying his personal opinion, he is nevertheless obliged to have some level of factual justification and reasonableness, because of the potential impact his statements may have on public opinion; this responsibility increases if the address is broadcast. The Court also reminded him that any address must reflect the defense of human rights of all Colombians, and that he and other authorities must refrain from creating any additional risks to HR NGOs. These organizations are constitutionally protected, as their members already incur extraordinarily high risks through reporting individual or collective violations of human rights; they thereby occupy a fundamental role in Colombian democracy, according to the Constitutional Court. 

But other scandals, such as a Venezuelan “ghost” foundation and a Danish NGO found to have made grants to armed outlaw groups, have also fueled the generalized suspicion of NGOs. In some instances, health SEOs' funds have been diverted from displaced populations to outlaw groups, and outlaw groups have used SEOs as intermediate contractors. Significant corruption was found in the late 1990s in co-op banking and financing. Accountability and transparency usually are lacking. SDOs and SEOs alike are affected by the sector's tarnished reputation. 

These factors help explain why many Colombians harbor doubts, but the doubts are misplaced. There is no justification for the perceptions of an untrustworthy Third Sector (beyond the isolated cases that should be duly prosecuted) or an undemocratic government (as the judicial decision attests). The civic solidarity organization is simply a neutral juridical person; such organizations should no more be the object of suspicion than for-profit corporations or any other legal institution. Indeed, both private corruption and the funding of outlaws are present in the for-profit corporate sector, but no one has ever seriously suggested that, for instance, the limited-liability company as a juridical person endangers society or democracy. At the same time, our democratic regime has constitutional provisions favorable to the existence of a Colombian Third Sector or System (under the European perspective).[3] In addition, the current government of President Uribe has included several objectives for strengthening this domain in the National Development Plan “Towards a Community State, 2002-2006,” under the chapter titled “Building Social Equity.”[4]  

If Solidarity Organizations would do more to network with one another in order to form a unified sector and together fashion regular processes for interacting with business, community, and the State, they would raise their profiles, enhance their reputations, and increase their effectiveness. 

(II) The Lack of Third Sector Law  

But there is also another problem in the Colombian Third Sector: the lack of law, by which I mean not only law as a set of precepts but law as a dynamic discipline in which operating rules evolve.  

In Colombia, almost no one cares about not-for-profit law. The Solidarity Organizations pursue their social objectives and the necessary funding, while public authorities concentrate on Colombia's abundant problems. For instance, a longstanding inspection and vigilance statute exists, which addresses both SDOs and SEOs that violate the law through their creation, grant making, or operation. But it seems to have been forgotten. There has been no in-depth study, no follow up and measurement of responsibility vs. autonomy, and, above all, no amendment to adjust the law to contemporary needs. In the last ten years, at least three law drafts and several congressional studies have been undertaken, but none has made it onto the Colombian agenda.  

The reason is simple: as everyone says in Colombia, urgent matters precede important ones. Unfortunately, however, the failure to tackle the important matters is fueling the urgent ones. Amending the Third Sector laws would allow development and strengthening of the solidarity vehicles that create and redistribute wealth and opportunities in the country. Or, reformulated into a human security perspective, it would help to diminish the hunger, victimization, and criminal recidivism in the most vulnerable population, complementing the efforts of the State and the market.  

Improved terms and enforcement of NPO law, or in a positive sense Solidarity Organizations Law, in my definition, is urgently needed to bring order to this domain. It would help the government detect illegal organizations and activities, and at the same time help legitimate organizations flourish.[5] Creating a state liaison office for SDOs[6] and taking seriously the SEOs’ Administrative Department and Superintendence would represent definite steps toward achieving this goal.  

In addition, it is necessary to breed a new generation of lawyers, politicians, and journalists capable of understanding the importance of civic Solidarity Organizations, including their interactions with the State, the market, and the community, as well as dealing with the newly broadened public sphere in democratic regimes. Recent initiatives elsewhere demonstrate this need. The U.S. Senate Finance Committee created a Panel on the Nonprofit Sector to prepare recommendations for Congress on how to improve the oversight and governance of charitable organizations, and the UN’s Secretary General assembled a Panel of Eminent Persons on United Nations-Civil Society Relations, which reflects the needs of our contemporary world. As Kofi Annan recently stated, “The United Nations once dealt with Governments. By now we know that peace and prosperity cannot be achieved without partnerships involving governments, international organizations, the business community, and civil society. In today’s world we depend on each other.”[7]  

Effective, efficient not-for-profit law has thus become a worldwide necessity, especially in developing countries. In a country like mine, where in addition violence menaces the society’s development and the individual’s security, failing to develop the law to encourage solidarity and organized citizenship is a grave mistake. 

In the acceptance speech upon his election to the Academie Française, the respected doyen Georges Vedel said that after all of his years practicing law, he still couldn't rigorously define law, but he was pretty sure of what a world without law would look like. Unfortunately, Colombia’s current Third Sector offers a good picture of such a world: plenty of good intentions, precepts, isolated acts, equivoques, and mistrust. 

Vedel’s words helped me refine my conception of law. Years of studying in Colombia and abroad, learning norms, rule, exceptions, and criteria for balancing and distinguishing tend to make you forget what law is all about. At the end of the day, just as Vedel indicated and as Colombian Justice Cepeda showed me through his work, law is about shaping and tailoring a community through a normative system of incentives and limits that, with time, will chart a path for society's advance. 

Where to advance--that is an intricate political problem of law, but I believe it has been answered for a few of us. The solution, to paraphrase Civicus World Assembly, is a matter of fueling civic energy into contemporary democracy and development--or in my terms, shaping and tailoring a community that welcomes and protects all, the powerful and the powerless alike.

Notes

* Adriana Ruiz-Restrepo, derechosol@hotmail.com, has been involved in the Third Sector since the age of 12. A lawyer and political scientist, she is currently researching a Ph.D. in comparative not-for-profit public law in Paris. Founder of STRATEGICO (Law & Development), a legal consultancy firm in public law and social innovation, she has been a  member of the Advisory Council of the International Center for Not-for-Profit Law since 2004. She also coordinates the National Anti-Trafficking in Human Beings Project of the United Nations Office on Drugs and Crime, UNODC Colombia. The content of the article is the sole responsibility of the author; it does not necessarily represent the opinion of the United Nations.  

[1] Unwilling to describe my country’s violence exclusively as the exclusive result of internal conflict or terrorism, and believing they are not mutually exclusive, I characterize the Colombian violence as "conflicterrorism." Whatever its nature, in any event, it generates poverty and fear.

[2] Colombian Constitutional Court, Sentence T-1191 de 2004.

[3] Liberty of assembly (art. 37) and liberty of association (art. 38); private property (art. 58) and donations for social interest (art. 62); protection and promotion of associative and solidarity forms of property (art. 58); citizens' duty of responding with humanitarian actions to situations where life and health are in danger according to the principle of social solidarity (art. 95, #2); participating in political life as well as in the civic and community life of the country (art. 95, #5 ); the State shall contribute to the organization, promotion, and capacity-building of professional, civic, union, community, youth, beneficial, and nongovernmental common utility associations without affecting their autonomy, as they constitute democratic mechanisms of representation in the different established areas of participation, consultation, control, and vigilance of public administration (art. 103); public subventions to individuals or private juridical persons are forbidden but the government may enter into contracts with not-for-profit organizations known to be suitable in order to advance programs and activities of public interest according to the national and local development plans, as regulated by government (art. 355).

[4] Among others, the creation of an institutional and legal framework with clear rules favorable to the development of the private solidarity sector; the promotion of the socioeconomic development of smaller organizations; the creation of organized forms for the inclusion of independent and informal economy workers; and the promotion of social and solidarity pacts of transparency and conviviality as a formula for achieving public trust in the sector.

[5] The Constitution assigns to the President of the Republic the inspection, vigilance, and control of cooperative entities (art. 189, #24) and the inspection and vigilance of common utility institutions so that funds will be conserved and properly applied toward accomplishing the will of the founders (art. 189, #26).

[6] The National Administrative Department of Solidarity Economy is responsible for directing and coordinating state policy for the promotion, planning, protection, strengthening, and entrepreneurial development of Solidarity Economy organizations.

[7] http://www.un.org/issues/civilsociety/.

 

Copyright © 2012 The International Center for Not-for-Profit Law (ICNL)
ISSN: 1556-5157