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The International Journal
of Not-for-Profit Law

Volume 8, Issue 4, August 2006

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

Table of Contents

Letter from the Editor

Accountability, Effectiveness, and Independence — Striking the Proper Balance

Where Do Your Pennies Go? Disclosing Commissions for Charitable Fundraising
Haim Sandberg

Government Financing of NGOs in Kazakhstan: Overview of a Controversial Experience
Vsevolod Ovcharenko

Tax Incentives and Transparency of NGOs in Indonesia
Pahala Nainggolan

Tracking the Implementation of Voluntary Sector-Government Policy Agreements: Is the Voluntary and Community Sector in the Frame?
Peter R. Elson

Democratization and the Dilemmas of Media Independence
Craig LaMay

Articles

Recent Laws and Legislative Proposals to Restrict Civil Society and Civil Society Organizations
International Center for Not-for-Profit Law

Curbing State Interference in Workers' Freedom of Association in Nigeria
Ovunda V.C. Okene

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Recent Laws and Legislative Proposals to Restrict Civil Society and Civil Society Organizations

By the International Center for Not-for-Profit Law

The 2005 Forum for the Future, hosted by President Bush, brought together leaders from dozens of nations, including 22 Arab countries and members of the G-8 industrialized countries, with the aim of fostering nongovernmental organizations and civil society. Although many of the other nations present at the Forum supported fostering civil society, the forum ended without a formal declaration. The Egyptian government demanded inclusion of language that would have given to Arab governments significant control over which pro-democracy groups would receive aid, scuttling any possibility of agreement.

Just days earlier, the Russian Duma passed on first reading a law that would have barred the participation of foreigners in Russian civil society organizations, prohibited foreign organizations from operating branches in Russia, and given the government unchecked powers to intrude in the affairs of civil society organizations, including a requirement that it be notified of the existence of informal groups such as neighborhood associations. Efforts by Russian civil society leaders, with support from international organizations, coupled with diplomatic approaches from the United States, European Commission, and others, led to the elimination of some of the more restrictive features of the draft. Nonetheless, the law ultimately adopted on January 17, 2006, gave the Russian government significantly greater control over NGO activity.

These are not isolated events. Over the past year, nineteen countries have introduced restrictive legislation aimed at weakening civil society. These countries join the more than 30 with existing laws, policies, and practices that stifle the work of civil society organizations (CSOs).

The International Center for Not-for-Profit Law (ICNL), an organization dedicated to the promotion of the freedom of association, civil society, and citizen participation worldwide, presents this study of recent laws and proposed laws aimed at restricting the operations of civil society organizations. The study identifies both recent and existing restrictive laws and proposed laws. It offers a typology of the legal barriers used by governments to constrain civil society and describes the challenges that these pose to civil society organizations. Lastly, it describes strategies that civil society organizations in various countries have used to counter restrictive measures and how the United States government can provide support.

I. Recent Laws and Proposals to Restrict Civil Society

The study reveals that nineteen countries have enacted or proposed laws that would in some way restrict the activities of civil society over the past five years. Although these types of laws can be found in almost any region of the world, they tend to be concentrated in Africa, the Middle East, and the Newly Independent States of the former Soviet Union. Countries with restrictive laws generally exhibit the following characteristics:

  1. The country is either governed through a dictatorship or, if elections are held, they are deemed not to be free and fair (e.g., Egypt, Azerbaijan, Eritrea)
  2. The country is a theocracy or has a strong politico-religious contingent (e.g., either where a particular religion's tenets/values are perceived as inconsistent with or threatened by the human rights agenda, or where a particular religious group seeks to use such legislation to suppress another group) (e.g., Nepal)
  3. The country operates in a "closed" or command economy (e.g., China, Cuba)
  4. There is political unrest in the country or neighboring country threatening the current government regime or incumbent party (e.g., Zambia, Sudan, Ethiopia, Russia)
  5. Similar legislation or practices have been enacted or introduced in sister regimes (e.g., Belarus, Russia, Middle East)
  6. The country controls, restricts, or monitors media (e.g., Cuba)
  7. The country has a history of human rights abuses (e.g., Belarus, Zimbabwe)

The reasons given for the proposal and enactment of these laws vary depending on the situation. Oftentimes, the government will provide an "official" rationalization for a proposed law that does not match the reasons perceived by the international community and local NGOs. For example, in Russia, the government has described the law described above as necessary to counter terrorism and money laundering. Similarly, both the governments of Kazakhstan and India claimed that their recent attempts to enact laws restricting NGO financing were necessary security measures for their countries. Other governments insist that the laws are needed to encourage greater transparency and accountability among CSOs.

In some cases, the restrictive legislation may in fact simply be a misguided attempt to achieve the stated goal. However, in virtually all of the cases cited, the means deployed are far more harsh and restrictive than necessary to fight abusive CSO practices, and often are contrary to obligations to protect the right to free association imposed either by the country's constitution or by international conventions to which it is a party. In some countries, the restrictive laws are a continuation of longstanding patterns of repressive government tactics (e.g., Belarus). In others, the recent initiatives appear to be motivated by a desire to forestall political opposition. In the Newly Independent States, for example, it has been postulated that governments are wary of civil society in the wake of the Rose Revolution in Georgia and the Orange Revolution in Ukraine in which CSOs played prominent roles in elections that swept authoritarian leaders from power.

II. Common Legal Barrier Constraining Civil Society and the Challenges They Pose to Democracy Assistance Groups

The use of restrictions by foreign governments on NGO formation, operation, and financing is increasing. Several trends have emerged with respect to authoritarian governments' use of such restrictions. We summarize below some of the more common legal barriers included in restrictive legislation.

These restrictions have posed obstacles to the ability of both foreign and domestic civil society groups to form, operate, and sustain themselves. Examples of the challenges faced by domestic groups are included in the summaries below.

A. Limited Rights to Associate and Form NGOs

In the most restrictive environments, governments do not grant the right to associate or form organizations.

1. Inability to register and secure the benefits of legal personality

Repressive governments often closely guard the process by which an organization can register, i.e., become a legal person with all of the rights attending that status. On one hand, governments may insist that all groups, however small or informal (a neighborhood association, a babysitting coop, a poker club), must register, thus ensuring that they can keep watch on the groups' activities. On the other, governments may make registration difficult, limiting the ability of civil society groups, and particularly advocacy groups, to exist. Tactics include retaining excessive government discretion over the registration process, making registration expensive, inconvenient, or burdensome in terms of the type or amount of information required; excessive delays in making registration decisions, and requiring re-registration every few years, thus giving government the right to periodically revisit the issue of whether an organization should be allowed to exist.

Illustrations of restrictive registration practices and their consequences for civil society include the following.

B. Inability To Obtain Foreign Funding or To Raise Domestic Funding

Perhaps the most common tactic used by governments to restrain civil society is to restrict the access of CSOs to foreign funding, apparently as a means to reduce foreign influence. Legislative provisions used to restrict foreign funding have included requirements that

  1. CSOs re-register or receive a special license to receive foreign funding;
  2. all CSOs be granted prior government permission to receive foreign funding (on a donation-by-donation basis);
  3. all foreign funding be channeled via government or designated, monitored bank accounts;
  4. foreign aid be subject to tax;
  5. a CSO's total funding from foreign sources be limited to a stated percentage; and
  6. foreigners' participation in domestic associations be limited, or that a person be a citizen in order to be a member of an association.

Examples of recent attempts to restrict foreign financing of domestic organizations include the following:

C. Arbitrary or Discretionary Termination and Dissolution

Some countries retain substantial discretion to shut down CSOs and use that discretion to quash opposition groups.

D. Inability To Advocate for Particular Causes or Get Its Message Out to Constituents

E. Arbitrary and Stringent Oversight and Control

Once a NGO has been formed and registered with the proper authorities, governments may continue to restrict its activities through unchecked oversight authority and interfering in the activities. An organization's failure to comply with government demands may lead to daunting sanctions and penalties.

F. Harassment from Government Officials

G. Establishment of "Parallel" Organizations

Restrictive governments have sometimes sought to undermine the CSO sector by establishing captive CSOs, or GONGOs. Governments can use these organizations to channel government funding to preferred causes and away from opposition groups, to discredit opposition groups by claiming that its captive organizations are the only "legitimate" civil society, or to appear supportive of at least some portion of civil society.

H. Criminal Penalties Against Individuals Associated with an Organization

Individuals who are found responsible for certain NGO activities can be held criminally liable and fined or imprisoned. This has an obvious chilling effect on individuals seeking to exercise their right to associate, and discourages active participation in NGOs.

III. The United States' Response

There can be little question that the repressive tactics outlined above have hindered the development of civil society and thwarted the ability of individuals to associate. Nonetheless, civil society organizations have devised a number of strategies to counter these tactics. While not every strategy is effective in every country or circumstance, in combination they constitute a useful array of tools to protect basic rights against government incursion.

The United States can highlight and address harassment and constraints on civil society by its support for a number of these strategies. Some – such as diplomacy – our government can undertake directly. Others will require financial or other support for the initiatives of civil society groups and others.

Another potentially effective response is sponsorship of research, toolkits, sourcebooks, trainings, and other tools to raise the awareness of civil society about options for dealing with repressive CSO laws and policies.

The following are among the strategies that have proved effective in addressing government constraints on CSOs.

A. Domestic Litigation

In some countries, NGOs have resorted to domestic litigation challenging provisions of law that have been used, e.g., to deny them registration or terminate their registrations. In some instances, where the courts are reasonably independent and fair, domestic litigation has proved effective in securing a just resolution for the affected civil society organization. In Egypt, for example, the NGO laws are vague, arbitrary, and unnecessarily severe, and the Ministry of Social Affairs uses them selectively to dissolve NGOs that are "threatening national unity" or "violating public order or morals." However, the laws permit appeal to the administrative courts. In one prominent example, the Egyptian Organization for Human Rights fought a ministry in court for more than ten years and ultimately prevailed. On the one hand, this example demonstrates that the right of appeal to domestic courts can provide relief. On the other hand, the litigation consumed more that ten years in Egypt's backlogged court system, draining the time and resources of the well-respected human rights group in its fight for legal recognition.

Direct challenges under a country's constitution have succeeded in blocking restrictive provisions, at least temporarily. Again, in the Kazakhstan example cited above, consideration by the Constitutional Council resulted in a finding that restrictive laws were not constitutional. In Egypt, a challenge in the constitutional court led to the invalidation on procedural grounds of Law 153, the precursor to the 2002 NGO Law discussed above.

In other circumstances, resort to domestic courts is simply a means of exhausting domestic avenues of relief, which is frequently a prerequisite for petitioning an international tribunal. In Venezuela, for example, the judiciary is not considered to be independent of the Chavez regime, and CSOs do not believe they are likely to prevail in court on any challenge to a government action. Nonetheless, they bring domestic suits as a means of exhausting their remedies, as required in order to reach international tribunals such as the Inter-American Court of Human Rights.

B. Litigation Before International Tribunals

There are a number of international tribunals whose mandate is to protect basic human rights guaranteed by international conventions by adjudicating claims of affected groups and individuals against member states. Perhaps the best known of these tribunals, at least with respect to the protection of the right of free association, is the European Court of Human Rights. In a series of cases before the Court, Greek and Turkish association members, political parties, and others managed not only to obtain judgments against their governments requiring the registration of their organizations, but also to set important precedents interpreting the right of free association granted by the European Convention on Human Rights.

C. Legal Triage

One strategy that has provided much-needed legal resources to civil society organizations under legal threat is "legal triage" or providing legal defense. In one program, ICNL makes available legal consultants through resource centers in five Central Asian countries to assist organizations in registering and in addressing other legal requirements applicable to them. In many instances this program has proved very effective. It was successful in assisting in the registration of the only public association to become registered. However, one downside should be noted as well. This type of assistance can draw the ire of a repressive government, which may target the legal assistance providers in a further attempt to discourage CSO activities. In Uzbekistan, for example, programs and individuals responsible for providing legal assistance to NGOs are currently the subject of a criminal investigation (see above.)

D. Law Reform Campaigns

CSOs and their partners can work to sponsor progressive legislation governing their formation, operation, and sustainability. Experience has shown that law reform initiatives can be effective in securing basic rights to form and operate a organization if they are championed by those governed and inclusive of the government and civil society. However, a state that is actively oppressing civil society is not likely to countenance a progressive law reform initiative. This strategy is perhaps best employed in countries that have shown a trend towards liberalization. For example, in Jordan, the government responded to complaints that a repressive draft law on social development had been drafted by a Ministry without consultation with affected civil society groups by sending the law back to the Ministry for revision after solicitation of public comment. It is hoped that the ongoing public participation campaign will lead to a draft law that enables civil society.

E. Awareness Raising

Civil society and its partners can work to raise international awareness of threats to the right to association and harassment of civil society groups. Awareness-raising mechanisms can assist civil society groups isolated in a restrictive country in garnering support, and can lead to effective international pressure on states that harass or constrain civil society. One such program is Civil Society Watch, operated by CIVICUS, an international organization dedicated to citizen participation. Civil Society Watch "aims to mobilise quick, principled and effective responses to those events that threaten civil society's fundamental rights to collectively express, associate and organise throughout the world."

F. Diplomacy

Diplomacy is an effective tool in some situations. Leaders of other nations and international institutions can open discussions with a government to dissuade it from pursuing repressive legislation, and offer political room for maneuver to allow a government the ability to change course publicly. Secretary of State Rice urged Russia to revise its restrictive draft legislation, saying that democracy is "built on the ability of citizens to associate themselves freely and to work to bring their government into a particular direction," and that nongovernmental organizations in Russia are "simply trying to help citizens to organize themselves better, to petition their government to make changes in the policies that affect their very lives. That's the essence of democracy." The Secretary's public statements supplemented weeks of diplomatic approaches to the Russians by the Department of State as well as by representatives of the European Commission. As discussed, while the law ultimately passed remains problematic, a number of the more restrictive provisions that appeared in the initial draft were eliminated.

G. Public Action

Public action – citizens organizing against repressive measures – can take a wide variety of forms, including demonstrations, letter-writing campaigns, public comment, and media campaigns. It can be initiated domestically, or, where domestic CSOs and citizens are too severely constrained or isolated to take effective action, internationally.

1. Domestic action

CSOs have organized against draft laws with restrictive provisions, rallying expert and international support, distributing analyses of the provisions among a wide range of stakeholders, holding meetings, and generating media attention. In Kazakhstan, these types of activities were successful in convincing the government to withdraw some of the offending provisions of a recent restrictive draft law even before the drafts were submitted to the Constitutional Council. In Slovakia, CSO leaders – many of them veterans of a campaign to defeat an undesirable Law on Foundations – initiated a campaign to spur public participation and voter turnout that ultimately led, in the 1998 elections, to the downfall of the authoritarian Meciar regime.

2. International pressure

The international community can publicly apply pressure to repressive regimes in an attempt to reverse obnoxious behavior toward civil society groups. International pressure can also give hope to threatened groups, which may feel abandoned in their struggle. On December 10, 2004, United Nations Human Rights Day, Amnesty International organized demonstrations against widespread human rights abuses by Zimbabwe at the border crossings from South Africa, Mozambique, Botswana, and Zambia. According to Amnesty officials, the concept was "to march to the borders and register our concern about the situation in Zimbabwe and the plight of Zimbabweans in the diaspora" and ultimately to pressure the neighboring countries to take greater action to stem the crisis in Zimbabwe and the flow of refugees across the border. Amnesty and other groups have continued to target their public grassroots campaign at the leaders of other African countries in hopes that they will exert influence over Zimbabwe to change its policies.

 

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