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The International Journal
of Not-for-Profit Law

Volume 8, Issue 1, November 2005

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

Table of Contents

Letter from the Editor

Helping Civil Society Flourish

Toward an Enabling Legal Environment for Civil Society
Statement of the Sixteenth Annual Johns Hopkins International Fellows in Philanthropy Conference, Nairobi, East Africa

Implementation of NGO-Government Cooperation Policy Documents: Lessons Learned
Radost Toftisova

Strengthening Civil Society in the South: Challenges and Constraints - A Case Study of Tanzania
Jared Duhu
Response
Emeka Iheme

Articles

Civil Society Law Reform in Afghanistan
David Moore

Rational Exuberance: An Exploration of the Adaptation by California's Charitable Sector to Changing Governance Standards - Notes from the Field
Thomas Silk

A Common, Global Framework of Nonprofits as Players in Civil Society
Herrington J. Bryce

Forum - Looking Ahead: What is the Future for the Nonprofit World?
Pablo Eisenberg
Responses
Diana Aviv
H. Peter Karoff
Arthur Drache
Susan Raymond
Bill Landsberg

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Toward an Enabling Legal Environment for Civil Society

Statement of the Sixteenth Annual Johns Hopkins International Fellows in Philanthropy Conference Nairobi, Kenya 1

Preamble

Though they pursue public purposes, civil society organizations are fundamentally private organizations. Yet, the ability of these organizations to carry out their special functions depends importantly on the legal environment within which they operate, and this, in turn, depends on actions by the state. Indeed, establishment of an enabling legal environment is one of the most important contributions governments can make to the development of civil society organizations.

In many parts of the world, however, the legal framework for civil society activity is uncertain and incomplete at best, burdened with contradictions or out of date in light of current civil society needs. While some organizations have managed to thrive despite an unfavorable legal environment, improvement of the legal environment for civil society has become a growing priority around the world.

Clearly, there is no single “right” way to design civil society laws and regulations. Legal traditions, as well as traditions of civil society activity, differ widely among countries. Significant variations can thus be expected in how legal systems handle the crucial issues that civil society operations entail.

Despite such variations, however, it is possible to identify some general principles or rules of good practice that can usefully guide the development of civil society law around the world. The purpose of this Statement is to articulate these general principles or guidelines. The Statement emerged from the work of the Sixteenth Annual Johns Hopkins International Fellows in Philanthropy Conference held in Nairobi, Kenya, in July 2004. Over 100 civil society activists and experts from East Africa and more than 30 other countries around the world took part in the deliberations that led to this Statement. The present Statement represents a synthesis of their work. More specifically, after articulating some fundamental caveats and assumptions, the Statement addresses four issues that are especially critical to the development of civil society organizations: first, the basic legal standing of civil society organizations and the registration procedures that help to define it; second, the tax treatment of civil society organizations and philanthropy; third, transparency, disclosure, and accountability standards for civil society organizations; and fourth, the involvement of civil society in advocacy and civic engagement.

I. Caveats and Assumptions

Certain fundamental convictions and assumptions have guided the thinking embodied in this Statement. Among these are the following:

II. Formation and Legal Status

The right to form civil society organizations is a fundamental human right that belongs to individuals and is not bestowed by government. This right derives from the basic rights to free speech and association, which should be enshrined in the fundamental law of a country. As such, this right cannot be conditioned on the consent of a public authority and cannot be subject to undue restrictions, such as restrictive asset or membership requirements.

While civil society organizations have an inherent right to exist and operate as informal organizations, however, a crucial part of the enabling legal environment for civil society organizations involves arrangements for such organizations to incorporate and thus acquire formal “legal personality.” Such incorporation and its resulting grant of “legal personality” status to civil society organizations protects the principals of such organizations from personal liability for the affairs of the organizations and allows the organizations to enter into contracts, incur debt, sue and be sued, and engage in other transactions in the name of the organization without putting the personal assets of their trustees, directors, or officers at risk.

Governmental action is crucial to the extension of legal personality status to civil society organizations and is often accompanied by some form of registration and regulation. A number of crucial principles should govern the design and execution of these incorporation and registration procedures. Most important among these are the following:

III. Tax Privileges

Because of the contributions civil society organizations often make to community life, to the resolution of public problems, and to the strengthening of democratic processes, it is in the government’s interest to encourage such organizations. One efficient way to do this is through special tax concessions made available to the organizations themselves and to those who make voluntary contributions to them. The following principles can usefully apply to the design and operation of such tax concessions.

IV. Transparency, Reporting, and Accountability

To retain public trust, civil society organizations must be transparent in their operations. Such transparency can be achieved voluntarily by organizations through regular reports and communication with their various stakeholders. However, public authorities may legitimately mandate such transparency by requiring regular reports from registered civil society organizations. Several principles should apply to the design of such public reporting requirements, however:

V. Advocacy and Civic Engagement

Civil society organizations are not simply service providers. They are also, very critically, vehicles for advocacy and civic engagement. This function derives from the fundamental right of association and free speech and as such should be enshrined in the fundamental law of a country. The advocacy and civic engagement functions of civil society organizations raise particularly sensitive legal and political issues, however. The following principles should guide the resolution of these issues:

Conclusion

Civil society organizations perform important public services by responding to human needs and promoting the health of communities. Regrettably, however, the legal position of such organizations is often highly precarious or unclear. Too often, government perceives civil society as a threat and acts to limit its discretion and role. But government has an important responsibility to create the legal conditions that enable civil society organizations to perform their important missions. This requires a balance between equipping civil society organizations with privileges and burdening them with responsibilities. It is our hope that the principles outlined here will help governments strike this balance in a responsible yet enabling way.

Agreed to this 8th day of July 2004, Nairobi, Kenya

Signatories

The following individuals took part in the deliberations that led to the development of this Statement and generally concur with its observations and conclusions. They do so in their individual capacities and not as the representatives of any organizations with which they may be associated or that may have supported their work.

Australia
Neilma Gantner, The Myer Foundation
Helen Morris, Civil Society Consultant
Genevieve Timmons, Genevieve Timmons & Associates

Chile
Marcela Jimenez De La Jara, Ministry of Planning

India
Pankaja Kulabkar, Researcher

Italy
Elena De Palma, ISTAT: Italian National Institute of Statistics

Kenya
Dr. Pius S. Achola, NGO Council
Elijah Agevi, IDG
Francis Angila, NGO Council
Erika Anttila, Chambers of Justice
Donald Deya, East Africa Law Society (EALS)
Dennis Kabaara, Independent Consultant
Karuti Kanyinga, IDS
Wangui Kibe, Consultant
Sophie Kiguta, Kenya Youth Group
Leah Wambura Kimathi, Africa Peace Point
Alice Kirambi, Christian Partners Development
Faith Kisinga, Ufadhili—Centre for Philanthropy and Social Responsibility
Mwalimu Mati, Transparency International
Dorothy McCormick, IDS-- University of Nairobi
W. Milan, WOWESOK
Winnie V. Mitullah, IDS (Institute for Development Studies)
Abby Muricho, NGO Council
Wangombe Muthoga, Pana Press
Njeri Mwangi-Kinyoho, Action Aid Kenya
Mwenda Mwongeda, Kenya National Commission for Human Rights (KNCHR)
Mavis Nathoo, CIDA
Philip Ndeta, Learning and Development Kenya
Haron M. Ndubi, Kituo Cha Sheria
Elkanah Odembo, Ufadhili Trust
Hilda A. Orimba, WOWESOK
Janet Ondieki, African Institute for Health and Development
Jonathan Ondieki, African Institute for Health and Development
George Onyango, Slums Information Development and Resource Center (SIDAREC)
Aloys Opiyo, UNDUGU Society
Lernard Ouidei, UNDUGU Society of Kenya
Ambassador Orie Rogo-Manduli, NGO Council Acting Chairperson
Abdul Hamid Slatch, Young Muslim Association
Richard Wamai, University of Helsinki

Poland
Leslaw Werpachowski, Marshal Office of the Province of Silesia

Netherlands
Wino J.M. Van Veen, Amserdam Baker & McKenzie

Mexico
Paula Parra Rosales, Bradford University, UK
Rosa Maria Fernandez, Corporate Social Responsibility Consultant

Romania
Mihai Lisetchi, Agency for Information and Development of Non-governmental Organizations (AID-ONG)
Cristina Nicolescu, Pro Vobis National Volunteer Center
Dana Nicolescu, Opportunity Associates Romania

Russia
Elena Abrosimova, TACIS Corporate Governance Facility Project
Alexei Bodungen, Golubka Training Center
Oleg Kazakov, Nonprofit Sector Research Laboratory
Marina Nikitina, Aids Foundation East and West (AFEW)

Tanzania
Olive Luena, Tanzania Gatsby Trust
Dennis Muchunguzi, AFREDA
Ruta Mutakyahwa, Romme Centre
Mary J. Mwingira, TANGO
Veronica Shao, Kilimanjaro NGO Cluster on HIV/AIDS and RH Interventions

Turkey
Ayla Goksel, Mother Child Education Foundation

Uganda
Nakirya Roselyn Etyono, ICSW
Cannon Grace Kaiso, Uganda Joint Christian Council
Professor Kwesiga, DENIVA
Peace T. Kyamureku, The National Association of Women Organisations in Uganda (NAWOU)
Enock Mugabi, Uganda National NGO Form
Jane Nabunnya, DENIVA

United Kingdom
Tony and Frances Myer, The Myer Foundation
Samuel Obeng-Dokyi, Fullemploy
Judy Wilson, Consultant

United States
Joyce Moody, Johns Hopkins University
Lester Salamon, Johns Hopkins University
Howard Schoenfeld, PricewaterhouseCoopers
Sandra Schoenfeld
Carol Wessner, Johns Hopkins University 

 

International Fellows in Philanthropy Program: Other Conference Action Statements  

Bridging Social Divides: The Role of the Third Sector
Sao Paulo, Brazil, 2003

Building the Organizational Infrastructure of Civil Society
Istanbul, Turkey, 2002

The Nonprofit Sector and the Reduction of Poverty
Santiago, Chile, 2001

Strengthening Communities: The Role of the Third Sector
Melbourne, Australia, 2000

Building Civil Society: A Guide to Action
Bangalore, India, 1999

The Nonprofit Sector and the Transformation of the Welfare State
Rome, Italy, 1997

Nonprofits and Development: The Challenge and the Opportunity
Mexico City, 1996

Toward a Vital Voluntary Sector II: The Challenge of Permanence – An Action Statement
Tallin, Estonia, 1995

Toward a Vital Voluntary Sector I: An International Statement of Principles
Lille, France, 1991; Jerusalem, Israel, 1992; Accra, Ghana, 1993

Notes

1 Copyright 2005 by Lester M. Salamon, Director of the Center for Civil Society Studies, Institute for Policy Studies, Johns Hopkins University.

2 Political parties are also often considered to be civil society organizations, especially when they embody social movements and are not simply campaign organizations seeking political office. Such organizations are not covered by this statement, however.

 

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