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The International Journal
of Not-for-Profit Law

Volume 9, Issue 2, April 2007

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

Table of Contents

Letter from the Editor

The Middle East: Senior Research Fellow Papers

Civil Society in the Arab Region: Its Necessary Role and the Obstacles to Fulfillment
Ziad Abdel Samad

Civil Society in the Arab World: The Missing Concept
Sa'ed Karajah

The Algerian Law on Associations Within Its Historical Context
Chafika Kahina Bouagache

Undermining Standards of Good Governance: Egypt's NGO Law and Its Impact on the Transparency and Accountability of CSOs
Mohamed Agati

Articles

Association Law in Finland
Matti Muukkonen

Social Change and the Connected Age
Allison H. Fine

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Civil Society in the Arab Region: Its Necessary Role and the Obstacles to Fulfillment

By Ziad Abdel Samad 1

Preface

Civil society in the Arab region today is weak. Can this weakness be attributed to badly formulated laws governing the civil society sector, or is it due to structural flaws in Arab civil society organizations (CSOs)? If it is the latter, have these flaws resulted in poor strategies and insufficient capacities to respond to the challenges facing the region?

A culture of charity prevails in Arab societies, in part because charitable giving to the poor is one of the five pillars of Islam. Charitable giving is placed at the same level as the other four pillars: faith, prayer, fasting for self-purification during Ramadan, and, for those who are able, pilgrimage to Mecca. Given the social importance of charitable donation, why is civil society as weak as it is in Arab countries?

This article seeks to explore the reasons that civil society in the Arab region has not fulfilled its potential. It analyzes the objective barriers limiting CSOs’ abilities to increase their impact and improve their roles in society.

The culturally embedded value of charitable giving may not suffice to create a thriving CSO sector, just as lack of development in the region is not the only reason for the sector's weakness. This article considers other objective barriers limiting CSOs’ abilities to increase their impact and improve society. These other factors may be external, such as lack of democracy, inadequate legal framework, or other restrictions imposed by the ruling regimes. Similarly, there may be rel evant restrictions stemming from cultural and social realities. Or there may be internal limitations that result from poor organizational vision, policies, and strategies, as well as from the lack of human and financial resources, sustainable or reliable funding, and access to information.

This article incorporates new research that evaluates the results and effectiveness of CSOs in eight Arab countries. Section I establishes the definitions and CSO sector classifications used throughout the article; Section II provides an overview of external and internal issues pertinent to CSOs in the Arab region; Section III focuses on the results of the survey; Section IV presents case studies of Lebanon and Palestine to illustrate how the obstacles identified here have shaped civil society in each country; and Section V offers proposed solutions.

Although more in-depth analysis and follow up are needed, the research gives a clearer picture of the factors affecting CSOs in Arab countries. The research therefore may prove useful in setting priorities for interventions aimed at empowering CSOs and increasing their effectiveness and efficiency. These priorities necessarily vary somewhat from one country to another, according to local factors and challenges.

I. The Definition, Classification, and Role of Civil Society in the Arab Region

A definition of the CSO sector is important in order to find the commonalities in the sector. The definition should be flexible enough to encompass the changing nature of a non-profit sector that is linked to changing market and state forces, with the goal of increasing popular understanding of this sector and its role in enhancing democratization. Similarly, a classification is needed in order to shed light on the differences among CSOs. Together, definition and classification can improve our understanding of the types and roles of Third Sector entities and the challenges they face. This task is necessary for an evaluation of the role of the sector and the legal systems that govern it.

Structures that do not belong to the state or to the market are commonly considered CSOs. These structures include non-governmental non-profit organizations, including welfare, charitable, developmental, and environmental organizations. They may be professional and worker’s trade unions, farmer and peasant groups, or social movements that reflect the needs of groups such as youth, students, and women. According to some researchers, they may include political organizations and parties as well. The CSO sector historically provided social services; it now also contributes to societal development, and sometimes to national strategies and structures. 2

Consider, first, the question of a definition. In the cross-national analysis presented in the Johns Hopkins University Non-Profit Sector Series, Salamon and Anheier (2004) take on the challenge of clearly defining the non-profit sector. They consider definitions from four perspectives: legal, economic, functional, and structural/operational. Salamon and Anheier (1997) argue convincingly for an approach based on considerations of structure and operation, and encompassing indicators related to the organization’s relation to government, distribution of profit, governance, and participation. Specifically, this definition looks at the level of institutionalization of the organization, either through the formal incorporation charter or through the regularity of the organization's structured work. It looks at the separation of the organization from government, although government support, funding, and participation are permitted. It also looks at the distribution of profits of the organization, its governance structure (particularly its ability to control its own activities), and whether participation is voluntary.

The structural-operational definition of civil society serves well across nations, including developing societies where the state and the private sector are unstable and the surrounding context is highly politicized, as in many Arab countries. This definition, unlike a narrow legal definition, can encompass the diversity and continuously changing nature of the Third Sector, as well as the changing roles of the state and the private sector.

Civil society is situated between state and market, monitoring the powers and roles of each to assure a balance between them. However, especially in developing countries, it is important to consider the family as a third border to civil society (Anheier 2004), distinguishing between civil society and tribal or religious society. This issue raises additional challenges as we seek to define civil society in developing countries such as those of the Arab region. Structures built on family relations, including tribal, clan, and religious considerations, are not deemed civil society. Accordingly, just as civil society monitors the powers of the state and the market, it also has the potential to monitor tribal and clan relations in order to assure a balance among market, state, and family.

Within the Arab region, civil society is referred to as the “indigenous sector” (Kandil 1994). This terminology reflects the intertwining of the CSO sector and societal relations, which are dominated by tribal, clan, family, and religious ties. In several Arab countries, societal relations are more important than citizen-state relations. This stems from the weak notion of citizenship in Arab societies.

Moreover, the CSO sector in the Arab region is dominated by welfare and charitable goals, and is primarily involved in service provision and social assistance and welfare. The structural-operational definition includes the indigenous sector as well as other “borderline” civil society groups, which are abundant in developing countries due to factors such as vague relations with the government or unclear fundraising systems and funding sources.

Regrettably, no law governing CSOs in the Arab region takes these elements into consideration. All organizations, even purely ad hoc and temporary ones, are the same under the law when applying for registration; currently, for example, no distinction is made between grant-making foundations and charities that provide services. In short, governments in the Arab region have created legal structures without taking into account an analytical point of view, which has been an obstacle to the CSO sector’s development.

In the study of civil society organizations, a definition alone cannot adequately explain the role and development of the sector. Civil society organizations are not homogeneous, and countries often enact different laws for different types of organizations, with different oversight in public administration. 3 Along with an appropriate definition, accordingly, a classification system is essential. The classification system can go beyond the legal framework, which may fail to recognize some CSOs. For example, human rights organizations in Egypt are not now allowed to freely register as NGOs. Thus, identifying the various classes of organizations may help determine the appropriate legal framework to regulate their relations with the state and the market. Other relevant factors include the structure of an organization, its relationship to the government, its financial structure, its governance and operation, and its contribution to enhancing social capital.

The role of civil society is growing internationally as a result of the decreasing ability of the state to provide services and assure social justice. In addition, contemporary societies are witnessing the development of social capital, increased interaction between people internationally, and increased awareness of human rights and tools for protecting them. The CSO sector often steps in to fill the gaps in these areas, and is often paid to do so by governments. This is a privatization of welfare, developmental, and environmental services of sorts; it promotes public-private partnership and may serve as a middle ground between relying mainly on the market or mainly on the state (Anheier 2004). For a variety of reasons, civil society in the Arab region has not realized this potential. However, Arab CSO leaders have debated the relationship between civil society and the state. Different activists question such a relationship in terms of its value, its relevance, and, especially, its appropriateness. The propriety factor often varies according to the type of CSO. For example, a service-delivery CSO might find coordination with government agencies a necessary part of doing business, while an advocacy CSO might believe that cooperation with the state would undermine the organization's goals.

We are now equipped with the structural/operational definition of CSOs, with a sense of the scope of organizations that should be included in a classification system, and with a general concept of the role of civil society in the Arab region. Other issues specific to the region have been highlighted, particularly the strength of family, tribe, and clan, and cultural and religious dimensions as possible reasons for the weakness of the CSO sector in contemporary Arab countries. Next, we turn to an overview of the key external and internal obstacles that CSOs in the region face.

II. Civil Society in the Arab World: External and Internal Obstacles

The obstacles faced by the CSO sector in the Arab region can be divided into two categories: external obstacles, some of which affect society as a whole, while others are more specific to the CSO sector; and internal obstacles, challenges arising from within the organizations themselves.

External Obstacles Facing the Arab Region

Many challenges affect the developmental process in the Arab region. These challenges are political, economic, and social in nature. Globalization, a complicated phenomenon, has various consequences in the region – militarization in all its forms; economic, social, and environmental challenges; and challenges resulting from cultural and religious diversity and extremism.

Additional external obstacles are specific to individual Arab countries. Some problems stem from legal systems in societies with little or no rule of law. These problems go beyond deficiencies in the laws themselves. In drafting laws for the CSO sector, one must take into account the complexity of societal relations, the political environment, the level of development, the concentration of power, the regime's behavior in dealing with CSOs, and other such factors. Many dimensions beyond the legal system can help or hinder efforts to foster an enabling environment for civil society.

In order to have a comprehensive picture of the regional context, we next consider both types of external obstacles – the general political, economic, and social obstacles; and the obstacles connected to a given country’s legal system.

Political, Economic, and Social Obstacles

  1. Militarization – Problems of Peace and Security

The Middle East has become a synonym for crisis and conflict. The causes are diverse, but a lack of security and societal instability is the common result. Militarization is primarily a result of foreign occupation in violation of international laws and conventions. An example is Palestine, where many United Nations resolutions have been violated for decades, and the international community is unable to end the conflict. More recently, we have seen this problem in Iraq, where the 2003 invasion undermined decisions of the UN Security Council as well as principles of international law. Moreover, the so-called “war on terror” is not a war but a doctrine with unforeseen consequences: it is spurring extremism and violence instead of achieving stability and tolerance.

Problems of militarization also result from various internal conflicts, as in Sudan, Algeria, and Western Sahara. A prominent example is the growing tension in countries of the Arabian Gulf, particularly Yemen, Bahrain, and Saudi Arabia. There, radical Islamic movements and sympathies are on the rise, largely in response to the humiliation caused by the double standards in enforcing international law, the foreign military occupation, and the military bases established in the region. These tensions of course are added to the societies' socioeconomic and political challenges.

2. The Political Context – The Need to Introduce Radical Political Reforms

Most Arab regimes are undemocratic, and some are totalitarian. Principal characteristics shaping the regional political context are the lack of sound public institutions, the absence of legislatures, recurring violations of constitutions where they exist, and judicial systems weakened by interfering political branches. The absence of the rule of law is another major problem. In most Arab countries, the state controls civil and political rights, and political and civil society organizations are heavily restricted. Further, the state manipulates elections through undemocratic electoral laws and regulations. Moreover, reform agendas are creating high levels of internal tension, because of what is seen as external interference.

3. The Socioeconomic Context – Low Human Development Indicators

A society's level of development correlates with its civil society's level of activity (Salamon and Anheier 1997). Development enlarges the middle class, which supports voluntary initiatives and civil society organizations. Urbanization may also promote the non-profit sector, because of the prominent role played by middle-class professionals. Communications technology can also be a key factor: for example, as rural and poor urban populations are exposed to telecommunications, they may loosen their traditional ties and relations and instead affiliate with new groups, such as civil society organizations. Through such ways, the communications sector can foster the non-profit sector (Salamon and Anheier 1997).

Human, economic, and social indicators depict the Arab region as one of the worst in the world for development. According to the Millennium Development Goals Reportfor the Arab Region (MDGR), issued by the UN Economic and Social Commission for Western Asia in 2005, 31.5 percent of people in the Middle East and North Africa subsist on less than $2 per day; moreover, 23.6 percent of them lack basic health and education services and a decent standard of living. The 2002 Arab Human Development Report (AHDR), issued by the United Nations Development Program, lists three major contributing factors: deficits in women’s empowerment, insufficient freedom in general, and shortfalls of human capacities and knowledge relative to income. Illiteracy is another major challenge highlighted by the AHDR. Arab countries embark upon the twenty-first century burdened by more than 60 million illiterate adults, mostly women, and the number continues to increase.

In addition, the AHDR found scant information technology, and scant use of what does exist. Few people, further, have access to communications. This is due to many factors, the most important of which is the underdeveloped infrastructure. Moreover, Arab states have restricted individual freedoms, including the rights to free expression and to access to information.

Underdevelopment in the Arab region has thus led to a small middle class and poor access to communications and information. Without these two key underpinnings, civil society in the Arab region is understandably weak.

4. Culture and Religion

In societies with high levels of instability and insecurity, individuals tend to rely on their clans, tribes, religions, and other types of indigenous or ethnic structures. Clan, tribal, and religious affiliations strengthen when the state fails to provide security. These relations impede the formation of civil society, and hijack the concept of citizenship. Instead of strengthening social capital, a kind of clan and ethnic group mentality prevents coordinated action. Indeed, in many Arab countries, these tribal, ethnic, or confessional relations are stronger than state and local authorities.

Moreover, there is a pressing need for cultural reforms, particularly related to religious discourse. Reforms should tackle, among other issues, educational systems and the relations between religion and the state.

Many democratization initiatives have in fact been launched. The European Union initiated the first of these in 1995: the “Euro-Mediterranean Partnership.” In 2004, during the G8 summit in Sea Island, Georgia, another initiative was launched – the “Broader Middle East Partnership for the Future.” These two efforts join the many regional Arab reform initiatives launched in recent years, the most important of which is the declaration issued by the Summit of the League of the Arab States held in 2004 in Tunisia. Such initiatives stress the role of civil society and its participation in societal reform and democratization.

We face a crucial moment in the evolution of civil society in the Arab region. One hopes that civil society can grow to become a real partner in democratization, which in turn will promote the Third Sector's own achievement and sustainability.

Obstacles Related to Legal Systems

5. The Legal System and Governance Structures

Enhancing the effectiveness of the Third Sector depends on several interrelated factors. The most important is the legal system, a set of rules and regulations that protect individual and public freedoms. Ideally, legislation should accord with international declarations of human rights, and be developed in dialogue with local civil society. In relation to CSOs, the legal system's principal goal should be to regulate relations between organizations and the state.

CSO law, like any other law, should clarify the rights and the obligations of all concerned parties. However, in Arab countries across the board, legal structures governing CSOs are often poorly crafted or administered. For example, the same law may rule different forms of registered associations, without being tailored to their variety of objectives. Effective laws for CSOs provide a framework for good governance, systems of accountability, and public transparency.

As discussed earlier, in many Arab countries, tribal, ethnic, or confessional relations are stronger than the structures of state and local authorities. In practice, the relevant law is tribal or communitarian. It is difficult to envision the implementation and respect of a non-profit law under these circumstances, given the nature of the ruling power and the cultural constraints. Before it can help form an independent non-profit sphere, the legal system requires an adequate political and developmental environment. All discussion of a theoretical legal framework must take account of these considerations.

With regard to their non-profit legal systems, Arab countries can be divided into three main categories:

  1. Countries that highly restrict civil society; these countries are characterized by the absence of a law governing non-profit types of organizations.
  2. Countries with such a law, but one that serves principally as a tool for public authorities to pressure and restrict civil society organizations.
  3. Countries with relatively liberal laws that create space for civil society to be freely active, but with problems in implementing the law that hinder civil society.

Despite the numerous initiatives for modernization and democratization in the region, most Arab governments still heavily restrict, through law and procedure, the establishment and activities of civil society associations. Laws in most of these countries prevent any group of people from conducting public activities unless they are registered as an association. In some cases, associations are subject to excessively cumbersome registration procedures. An association’s activities are restricted to those set forth in its founding documents, which cannot easily be altered. Moreover, the types of organizations are often defined by their activities as perceived by the state, regardless of the perceptions and objectives of a given association’s members and constituency. In many countries, the government demands that the association obtain advance permission each time it organizes any public activities. Permission is also required if the association wishes to join any regional or global network or to receive funding from foreign donors. The government also has the right to monitor the financial status, public activities, and private activities of the association’s members, and it may dissolve the association for any reason.

6. Government Policies

Governmental policies to control CSOs have many other aspects, three of which deserve mention. First, ruling elites are “defensive and jealous” of other potential powers, and therefore limit the scope of the non-profit sector (Anheier 2004). Monarchs and ruling elites also create their own organizations in order to enhance their political influence and power among the population, a phenomenon well known in Arab countries.

Second, states exert pressure to limit the influence of the religious non-profit sector. This situation is encountered with religious organizations in many Arab countries, such as the Muslim Brotherhood in Egypt, Tunisia, Syria, Libya, Algeria, and Jordan.

Third, the state sometimes finds it necessary to fund the non-profit sector so that it can provide essential social services. This may contribute to conceptual confusion, with the risk that government funding can transform the sector into an agent of the state (Salamon and Anheier 1997). This is not common in Arab countries, though it exists in a limited way in Lebanon, where the state contracts with philanthropic and religious institutions to serve orphans, people with disabilities, and the elderly. To a lesser degree, similar contracting occurs with some semi-private schools in Kuwait and in Tunisia.

7. Level of Centralization

Most Arab countries are ruled by monarchies or totalitarian regimes. Only Lebanon has living former presidents. 4 In all the other Arab countries, the head of state stays in power until death or exile through coup d’état.

Moreover, in most of these countries, elections can be manipulated. Further, the regimes can dissolve elected parliaments that become uncontrollable. Where constitutions exist, they can often be easily modified to benefit the ruling party. The judiciary is not independent; rather, it is restricted by the political branches, nominated by the executive body, and under the direct control of the ruling elites. 5

In sum, the potential for a healthy and independent Third Sector is currently limited by highly centralized power structures, combined with ongoing tension between ruling elites and the main religious groups (e.g., the Islamic Brotherhood).

Internal Obstacles Facing Arab Civil Society Organizations

Internal obstacles that challenge Arab CSOs fall into three main categories:

1. Vision and Mission

First, many CSOs have weak visions and missions, along with inadequate strategies for accomplishing them. This obstacle has several causes. Across the Arab region, we find inconsistent understanding of civil society's role and potential, which may contribute to the organizations' difficulties developing clear mission statements. Moreover, countries of the Arab region often lack comprehensive development plans. Though ultimate responsibility for a national development plan should rest with the state, the plan should reflect a dialogue with civil society. The Third Sector's trouble developing visions and missions that reflect the priorities of their constituencies thus stems in part from the absence of a shared national vision, one capable of addressing national challenges and pointing toward strategies for advancing development.

2. Capacities

Civil society in most Arab countries faces systematic oppression by the state. In the last three or four decades, dictatorships and authoritarian and one-party regimes have flourished. These regimes have destroyed existing societal structures and prevented the rise of new independent ones. This context goes a long way toward explaining the weakness of civil society in the region. Although positive change is underway, building a strong and effective civil society in Arab countries will take time, strategies for raising awareness and building capacity, and practical resources.

3. Weak Internal Governance Structures

Finally, weak internal governance structures often prevent Arab CSOs from being more effective. One potential cause is the exploitation of civil society organizations by ruling elites, politicians, and even individuals seeking a public role in society. Civil society also can be abused by sectarian factions working to spread extremist ideologies. As discussed more fully below, CSOs often have a weak understanding of the main elements of effective internal governance.

III. Research Results

This section discusses the results of a survey of a limited sample of CSOs. The survey is designed to identify and summarize the main challenges facing CSOs in the Arab region. Questions seek to elicit information on the degree to which the obstacles described above – particularly the external obstacles at the country level and the obstacles internal to CSOs – affect the organizations in different environments. We aimed to gather a sampling of information about the sector in various countries, not to build a comprehensive database.

Questionnaires were sent to 104 CSOs in eleven Arab countries that are members of the Arab NGO Network for Development. Responses came from 25 CSOs in eight countries, a response rate of 24 percent of CSOs overall, which included CSOs in 73 percent of the surveyed countries.

Responses were grouped by the nature of the country's CSO legal framework. The framework in those countries dubbed conservative is generally more restrictive and would be expected to pose more obstacles; the legal framework in those countries deemed liberal often reflects a laissez-faire attitude on the part of regulators. For example, in Lebanon, which is considered to have a liberal legal framework, the CSO sector is governed by a 1909 Ottoman Law, which refers to government agencies that have not existed for decades; in practice, the law is simply ignored. Although the small sample size does not allow broad conclusions, it does suggest preliminary ideas about the challenges facing CSOs in each country, and it reveals issues ripe for further research.

The 66 questions on the survey are divided into four sections. The first section deals with general information on the organization, including its type, vision, breadth and scope of activities and constituency, internal governance, and financial reporting. The second section asks about the legal framework in which the CSO operates. The third section focuses on the CSO’s understanding of the role of civil society. The last section addresses the social and political environment in which the CSO operates.

Survey responses to the first section indicate that the respondents work in various fields, including human rights (either broadly or in defense of specific groups, such as women, children, and the disabled), environmental protection, social or sustainable development, and capacity building. Three are registered as foundations, three are civil companies, and the others are associations. Twenty-three identify themselves as non-governmental organizations, and two identify themselves as networks.

Lack of Good Internal Governance Mechanisms as an Obstacle to CSO Development

Mission and vision. Responses suggest that the lack of good internal governance practices is a principal obstacle to greater CSO effectiveness in the region. Answers reflect a weak understanding of key components of internal governance, including such matters as a vision and mission statement, an organizational strategy, an organizational structure, and the appropriate divisions in governance and management structures.

Most respondents do not clearly articulate a vision statement. Of the CSOs, 36 percent leave the question blank, and only 17 percent provide a clear vision statement. This problem is especially pronounced in countries with more restrictive laws (see Chart 1). In the three countries with relatively liberal legal environments, 25 percent of respondents state an articulate vision, whereas in the more conservative countries, only 8 percent do so. It appears that a restrictive legal framework can inhibit a CSO’s ability to clearly define its vision.

Governing Structures. Inconsistencies appear in replies related to hierarchical relations within the organization – that is, relations among the governing bodies, the executive level and staff, and representatives of constituencies. 6 These inconsistencies may stem from an organization’s failure to have an effective organizational chart, or from a failure to understand the questions on the survey. It is also likely that responses to questions about decision-making within the organization depend on who answers the questionnaire; a member of the governing board may give a different answer than a member of the staff would. In one case, two people in a single organization returned surveys, and many of their answers differ.

Chart 1: What is Your Organization’s Vision?

Internal financial systems. All but one of the respondents have financial auditing systems in place, and the majority issue annual financial reports (84 percent). Of these, 40 percent use external auditing, and 32 percent use both internal and external auditing. The use of external auditing is markedly higher in liberal countries than in conservative ones, 92 percent versus 54 percent (see Chart 2). A possible explanation is that CSOs in more restrictive countries rely on internal audit systems to avoid state interference in their finances.

External Obstacles – CSO Relationships with Governments

Three-fifths of responding CSOs express positive views of their relationship with the government, while one fifth report a bad relationship and another fifth report an average one. At the same time, 36 percent of CSOs state that the government has restricted their operations, and a slight majority, 52%, say that the legal framework is an obstacle to their operations. CSOs in conservative countries are slightly likelier to report unfavorable relationships with government than CSOs in liberal countries. More starkly, 69 percent of CSOs in conservative countries view the legal framework as an obstacle, and 62 percent report that the government has restricted their activities.

 Chart 2: What Type of Auditing System Does Your CSO Use?

Different answers come from a given country about relations with regulators and experience with government restrictions. The questions are subjective. Moreover, answers are influenced by the type of organization and its strategy. Often, for example, human rights organizations face the heaviest restrictions. Moreover, relations with government for advocacy organizations differ from those of service providers.

In countries with liberal laws, the body that regulates CSO operations is reported as the Ministry of Interior in 75 percent of cases. Countries with more conservative laws generally use a different ministry, such as the Ministry of Social Affairs (54 percent), the Ministry of Justice, or the Ministry of NGOs or its equivalent (see Chart 3). This is surprising, because regulation and oversight by the Ministry of Justice is generally considered more transparent than processes controlled by the Ministry of the Interior; the latter is typically more concerned with security issues (UNDP 2006). These responses suggest that even in liberal countries, the government sees civil society as raising security issues.

External Obstacles – Relationships with Other CSOs

Most respondents depict their relations with other CSOs as positive (88 percent). This result is encouraging; it suggests that CSOs recognize the importance of networking and coordination. It also suggests potential for further formation of social capital – i.e., an aggregate of those features of social organization, such as trust, norms, and networks, that can improve the efficiency of society by facilitating coordinated actions (Putnam, 1993). Increased social capital promises to contribute to the CSO sector’s ability to meet many challenges it faces.

Chart 3: Principal Government Regulator

Responses are also positive with regard to CSO relations with the United Nations; 67 percent of the CSOs believe that UN agencies support their work. This reflects the level of coordination and the potential role of the partnership between the UN agencies and civil society. Support provided by the UN can be not only financial, but also technical and political. Accordingly, UN support appears to be more important to CSOs in conservative countries than to those in liberal countries. In conservative countries, 69 percent of CSOs report a beneficial relationship with the UN, whereas only 58 percent in liberal countries express that view. Thus, UN support can perhaps be considered a source of both protection and legitimacy for CSOs operating in hostile environments.

Overall, 16 percent of the organizations report that they do not refer to international human rights conventions in their work, including all of the CSOs in restrictive countries. This result partly reflects the impact of local culture, as may be seen in the fact that 76 percent of all respondents say that tribal and traditional relations affect their ability to accomplish their work.

Financial Restrictions on CSOs and Donor Relations

When it comes to financial restrictions, 52 percent of respondents overall report no problems. 7 In conservative countries, however, 64 percent report financial restrictions. Such interference may explain why CSOs in conservative countries generally prefer not to hire external auditors.

Most CSOs, 55 percent, report good relations with donors, while 20 percent report average relations and another 20 percent report poor relations. In setting work plans and agendas, 64 percent report strong donor support, while only 8 percent report poor donor support.

Chart 4: Is the Legal Framework an Obstacle to Your CSO’s Development?

These data raise questions about whether CSOs with inadequate visions and weak strategies are building their agendas around local needs as opposed to donors’ viewpoints. Many in the Arab region believe foreign donors have a negative impact on the work of civil society because they are thought to impose a foreign agenda and leave organizations unable to respond to local priorities. Under this view, CSOs that receive grants from foreign donors are considered collaborators. Combined with poor visions and weak strategies, this factor raises a danger that CSO agendas may diverge dramatically from local needs. One wonders whether sudden withdrawal of foreign funding, further, would leave these weak CSOs with no strategies or agendas at all.

Legal Obstacles to CSO Development

In restrictive countries, 70 percent of CSOs consider the legal framework to be an obstacle to their work, while only 33 percent of CSOs in liberal countries express that view (see Chart 4).

Most respondents, 76 percent, state that tribal and traditional relations affect their ability to accomplish their work. A closer look at these responses reveals some interesting characteristics: 17 of 25 respondents say that traditions (e.g., cultural ties) directly affect women’s participation; 10 state that cultural factors hurt the values of civil society; and 11 claim that cultural factors hinder public understanding of the difference between rights and charity (see Chart 5).

Chart 5: How Does Tradition Negatively Impact the Work of Your CSO?

Regardless of whether an Arab CSO is in a conservative or liberal country, the external obstacles of political, socioeconomic, cultural, and financial factors are problematic to similar degrees (see Chart 6). Socioeconomic obstacles are reported somewhat less frequently in conservative countries; however, human resources are proportionately less a problem in liberal countries. Although legal factors represent an obstacle in both types of countries, they are much more widespread in conservative countries, which is no surprise but does invite further dialogue.

Chart 6: Summary of Self-Identified Obstacles

IV. Case Studies – Lebanon and Palestine

To place the survey findings in context, this article will now examine two case studies – Lebanon and Palestine. Both countries can be considered “liberal” for our purposes. Data and analysis are drawn from the Civil Society Index (also called the Civil Society Diamond, or CSD) developed by CIVICUS and Dr. Helmut Anheier of the University of California, Los Angeles. The CSD measures four dimensions: structure, impact, environment, and ethics (values and culture). 8

Surveys on the CSD were implemented in Lebanon and Palestine. In Lebanon, the survey was conducted by the International Management and Training Institute, and in Palestine it was conducted by the Bisan Center for Research and Development. 9

Lebanon

The Lebanese experience reflects many of the obstacles to the development of civil society, both internal and external, that have been examined in this article.

The legal framework is considered fairly good, and is not for the most part considered an obstacle, despite issues with its implementation by the Ministry of the Interior. Nonprofits in Lebanon are still governed by the Ottoman Law of 1909, which was inspired by the 1901 French Law of Associations. The Lebanese Third Sector faces problems with the governmental body charged with regulating it, the Ministry of the Interior. The Ministry exerts substantial pressure on CSOs, violating the rights secured by the Law of Associations. The law, for example, stipulates that the founders need only provide the Ministry (or regional authority) with a "notification of establishment," containing copies of the constitution, bylaws, and founders' identification. Consecutive Interior Ministers, however, have imposed a registration procedure requiring, among other things, a template version of bylaws, 10 contrary to the law, under the pretext that the requirements are merely "administrative procedures." The Ministry cannot exert pressure on an existing association, though, except through the articles in the association's bylaws. For this reason, the Lebanese environment for CSOs is considered the best in the region.

Although this legal framework is fairly good, civil society in Lebanon faces many challenges that shape its character and impede its effectiveness. One is conflict. The most recent example is the July 2006 war and the political developments that followed. Earlier, Lebanon endured fifteen years of civil war, which ended only in 1990. 11 During the civil war, religious groups fought one another, creating mistrust and threatening national unity. The civil war continues to haunt Lebanon. The CSD survey reports that 86 percent of respondents have a negative perception of the social and cultural fabric of society, and shows distrust between various groups. Lebanese civil society, like Lebanese society as a whole, is thus highly polarized and affected by the political structure based on the confessional distribution of power and wealth.

Similarly, respondents report high mistrust toward government. Corruption in Lebanon impinges on the performance of the public sector. For example, several public institutions in Lebanon still lack transparent financial procedures, suggesting that they may pose a significant fiduciary risk to the government (CFAA 2006).

By ten to one, respondents prefer to receive services from the nonprofit sector rather than the public sector. Such findings reflect widespread acknowledgment of the effectiveness of Lebanese CSOs. The organizations have been particularly successful in implementing poverty eradication policies, providing health and education services, and protecting the environment. Nevertheless, most respondents, 73 percent, deem the nonprofit sector corrupt, demonstrating that mistrust extends beyond the public sector to society as a whole.

The CSD survey also identifies limited public participation in Third Sector activities. Moreover, the effectiveness of that participation is debatable. This is due to the obstacles cited above, especially lack of participation due to political, economic, and social obstacles; lack of good governance; and inability to participate in the decision-making process.

The Lebanese case also illustrates how internal obstacles, particularly those relating to the organizational and structural aspects of CSOs, can undermine development of the sector. CSD survey respondents express mistrust toward organizational charts as well as administration and financial performance of CSOs. The lack of proper organizational structures and internal governance also affect networking and coordination among CSOs, for networking requires clear visions and mission statements on the part of involved groups, as well as mutual trust among them. The CSD survey concluded that umbrella organizations and networks fall short in efficiency and internal governance. Finally, the CSD survey concludes that Lebanese CSOs lack the human, financial, and technical resources needed in order to fulfill their objectives.

Palestine

The legal system in Palestine is also considered among the best in the region, and civil society there enjoys a fairly large degree of independence. It is worth noting that the law adopted in Palestine resulted from a campaign conducted by Palestinian CSOs seeking greater space and recognition. Although Palestine has one of the most active civil societies in the Arab region, the Palestinian Authority restricts CSOs with regard to both interpretation and implementation of the law.

Palestinian CSOs provide what are essentially public services in many sectors, due to the absence of the state – particularly in health, education, rural development, and agriculture. Even so, the results of the survey show that civil society in Palestine faces many challenges and obstacles.

Two issues in particular have a strong impact on CSOs in Palestine. First, the foreign occupation of the society strongly affects the role, the objectives, and the performance of civil society organizations. Second, Palestine is a state under construction, with limited sovereignty, independence, capacity for social services.

Moreover, recent legislative elections show widespread mistrust in the Palestinian Authority as well as in other political parties. This is the result of the pr evalent corruption and the lack of meaningful democratic and participatory processes in ruling the country. This environment affects the role and the performance of CSOs. 12

Palestinian civil society also faces funding constraints. It is difficult to estimate the volume of charitable donations, since most of them go directly to philanthropic associations. Furthermore, the socioeconomic reality in Palestine limits the capacity for organizations to solicit local donations and affects the ability of individuals to volunteer or to join CSOs. At the same time, the sanctions imposed on the nation create a shortage in funding.

Available data make it difficult to reach detailed conclusions, particularly concerning the extent of CSO membership and voluntarism, and the effectiveness and impact of civil society. However, data from the CSO survey does highlight the challenges facing Palestinian CSOs. For example, more than 90 percent of respondents indicate that they do not volunteer for a CSO, with little difference between the West Bank and Gaza Strip. As in Lebanon, finally, internal obstacles confront Palestinian NGOs, including weak governing bodies, poor control over finances, and limited participation in organizational decision-making.

As for the internal governance of NGOs, a study of more than 60 Palestinian NGOs found that beside the marginal role played by their boards, most of their employees do not participate in the decision-making due to “their passivity or their lack of competence” (Shalabi, 2001: 152). The ‘target’ groups do not participate in decision-making or drawing up policy either. In many women’s NGOs, the staff had nothing to do with the general budget of their organisation, and do not know how it is distributed. According to Shalabi, the internal governance of the surveyed NGOs was “a mirror reflection of the Palestinian political system based on individual decision-making, patronage and clientelism,” and the lack of rules organising internal relations in the organisation. In some cases a union dispute erupted, and was settled in a “way very far away from the rule of law” (Shalabi 2001: 154).

Islah Jad; 2006

These two case studies confirm what the survey results reported above suggest – namely, that reforming the legal system alone will not adequately strengthen CSOs in the Arab world. Even though Lebanon and Palestine have laws of associations that rank among the best in the region, the CSD study does not depict a healthy and independent nonprofit sector. On the contrary, the results reflect weaknesses and challenges that CSOs face apart from to the legal framework.

V. Recommendations

Strengthening the CSO sector and improving its effectiveness depends on several interrelated factors: legal systems, national reforms, and tools for overcoming internal obstacles.

Legal systems should be developed in accordance with international declarations of human rights and in dialogue with local civil society. The legal system’s primary goal should be to regulate the relation of CSOs with the state. When drafting a law and lobbying for a better legal framework, reformers must take into consideration external factors affecting the sector, such as those described here. The law should protect the Third Sector from the tendencies of the state to seek to control CSOs, while restraining CSOs from abusing any advantages of their status, such as access to power or, where applicable, tax-exemption. The nonprofit legal framework should also take account of the varieties among CSOs. For example, laws governing registration should consider the structural definition, including the five characteristics: voluntary, self-governing, private, institutional, and non-profit. Additional elements meriting consideration when designing civil society's legal framework are the structure of a typical organization, its relationship to the government, its financial structure, its governance and operation, and its contribution to enhancing social capital. The “Arab Initiative for the Freedom of Association,” for example, was launched by a group of CSO leaders from various Arab countries to promote adequate legal frameworks and laws of associations in the region. It is now supported by many institutions, including the World Bank’s Department of Social Development in the MENA Region, Banian, and the Association for the Defense of Rights and Freedom in Lebanon.

Although legal systems governing the CSO sector need reform, reform alone will not sufficiently strengthen CSOs in the Arab region. This is particularly evidenced by the CSD reports in Lebanon and Palestine. In spite of the fact that the laws of associations in both nations are the best among the region, the results of the surveys do not reflect healthy and independent nonprofit sectors. On the contrary, the results reflect weaknesses and challenges unrelated to the legal framework.

For CSOs to face external challenges, comprehensive national strategies and policies are important. These should result from a participatory process in which the various stakeholders (the state, the business sector, and the Third Sector) take part. The strategies should focus on two dimensions: the need to reform political institutions, and the introduction of serious economic, social, and cultural reforms. Any national plan must take all of these into consideration.

Confronting internal challenges strengthens civil society organizations; enhancing their capacities, accountability, and transparency helps them influence external factors and create change. The following recommendations would support the sector's efforts to overcome its internal obstacles:

Conclusion

Over the past two decades, the number of civil society actors at local, national and global levels has grown significantly, as has their influence in public life. Many scholars and policy-makers now see civil society as an important factor in consolidating and sustaining democracy, fostering poverty-reduction development policies, achieving gender equality and fighting corruption. Consequently, the interest in the topic is burgeoning. Interestingly, civil society is praised by proponents of very different ideologies, ranging from neo-liberal thinkers to radical democrats, communitarians, and neo-Marxists (Cohen/Arato 1992; Chandhoke 1995; Etzioni 1995; Gellner 1994; Putnam 2000).

Volkhart Finn Heinrich; 2004

This article provides an overview of the obstacles faced by CSOs, both external and internal. Research helped provide an understanding of Arab CSOs’ legal status, governance, and self-identified obstacles. These results were followed by a discussion of legal frameworks of Arab countries, both as they are and as they might be. Finally, specific recommendations were made for legal frameworks governing CSOs, for responding to external obstacles, and for overcoming internal ones.

The results of the survey provide some interesting insights about the experiences of real-world CSOs in the Arab region, their strengths and weaknesses, and their perspectives on the obstacles that they face. The research reported here can prove useful in setting priorities for interventions aimed at empowering CSOs and increasing their effectiveness and efficiency. However, this survey is only one step and should provide inspiration for additional research. Further research might increase the number of surveys sent, send surveys to more of the states in the 22-member Arab League, conduct follow-up surveys, survey by phone as well as mail, and compare groups of survey responses from Western, Asian, and African regions. An expanded evaluation, such as a broader scope or the inclusion of time-series data, would permit a more precise understanding of the CSO sector in the Arab region, as well as more finely tuned recommendations to support the growth and efficiency of the sector.

To answer the question posed at the beginning of the article, there are several reasons why civil society is not stronger than it is in Arab society today. External obstacles such as repressive regimes, militarization, international pressures, and occupations conspire to create a response where family, clan, and tribal relations strengthen as people protect themselves. Another result is that CSOs and individuals lack access to information and do not proactively create a clear, strong vision about the transformative role that they can play.

In sum, legal reform is essential to develop a CSO sector that can respond creatively to contemporary challenges – but even the optimal legal framework will not, by itself, address all the challenges facing the Third Sector.

REFERENCES

Lester M. Salamon and Helmut K. Anheier, Defining the Nonprofit Sector: A Cross National Analysis; John Hopkins Nonprofit Sector Series 4, 2004.

Lester M. Salamon , Helmut K. Anheier, et al., Global Civil Society: Dimensions of the Nonprofit Sector; John Hopkins Comparative Nonprofit Sector Project, 1999

Citizens, Strengthening Global Civil Society: CIVICUS, 1997

Helmut Anheier: Civil Society: Measurement, Evaluation, Policy; Earth scan UK and USA, 2004

Civil society 2004/2005, Sage publications, Center for Study of Global Civil Society, London School of Economy.

The World Bank: Executive summary of the Country Financial Accountability Assessment (CFAA); Beirut on 25th of June 2006

Assessing and Strengthening Civil Society Worldwide; A Project Description of CIVICUS civil society index: A Participatory Needs Assessment & Action Planning Tool for Civil Society; Volkart Finn Heinrich. CIVICUS civil society index paper series, Volume 2, Issue 1; March 2004

CSI index country report: Bisan Center for research and development, Palestine (Draft not for distribution)

http://www.undp-pogar.org/themes/civil.asp, accessed October 4, 2006.

دليل قانوني مقارن، عبد الله خليل: 2004

حق تكوين الجمعيات، عبد االله خليل، 2004

تنظيم الجمعيات في الدول العربية، جمعية الدفاع عن الحقوق والحريات (عدل)، لبنان (لا تاريخ، الا ان الكتاب هو نتاج اعمال اربعة ورش عمل عقدت بين العامين 1997- 1998

الجمعيات في لبنان بين الحرية والقانون والممارسة، جمعية الدفاع عن الحقوق والحريات (عدل)، لبنان (لا تاريخ، الا ان الكتاب هو نتاج اعمال ورشه عمل عقدت في بيروت في العام 1999

دليل قياس حالة المجتمع المدني في لبنان، ملخص تنفيذي عن تقرير حالة المجتمع المدني في لبنان، المعهد الدولي للتدريب، سيفكوس، 2006 : مسودة اولى غير قابلة للتوزيع

Notes

1 Ziad Abdel Samad is Executive Director of the Arab NGO Network for Development (ANND). Mr. Abdel Samad was a Middle East Senior Research Fellow during summer 2006 at the International Center for Not-for-Profit Law (ICNL). This article was edited by ICNL staff.

This research was mainly supported by the International Center for Not-for-Profit Law. While the author was a fellow in Washington, DC, President Douglas Rutzen and Program Director Catherine Shea provided extensive support. The author wishes to give special thanks to Kareem Elbayar, Civil Society Legal Intern at ICNL, who served as a research assistant during the period of my work at the ICNL offices; and to Office Manager Sylvia Staggs for her logistical support. Thanks also to Wafa Yassir, to Ziad Majed, to Natasha Shawarib who provided great support. I would also like to thank Program Manager Kinda Mohamadieh, Program Coordinator Cynthia Abi Rashed and Executive Secretary Hanan Younis of the Arab NGO Network for Development. They helped in conducting the survey and analyzing the data. Finally, special thanks to all our colleagues from the twenty-five NGOs that completed the questionnaires and sent them back on time.

2 In the study of civil society, the levels of interaction among institutions, among organizations, and among individuals are strongly related (Anheier 2004). These levels reflect the relationships between four main elements: state power, political and individual freedoms, economic functions, and social capital. They underlie individual participation in institutions and organizations, and indicate the level of citizenship in a country. Institutions are structural patterns that address and regulate specific areas or tasks; the rule of law is an example. Organizations include voluntary organizations, NGOs, non-profits, foundations, charities, social movements, networks, and informal groups that make up the infrastructure of civil society. Individuals are participants in civil society through membership, volunteering, organizing events, or supporting causes (Anheier 2004). This research focuses on the organizational level of interaction.

3 There should be no such administrative oversight. Oversight of CSOs comes from members, courts for all matters, financial auditors when public funds are involved, and so forth. An administrative authority is needed only as a registrar, to allow transparency and publicity of all matters related to CSOs. (Ghassan Mokheibir, Lebanese MP, expert in non-profit law, and the coordinator of the Arab initiative for the freedom of association.)

4 Even in Lebanon, the constitution was modified twice in order to extend the term of the president, in 1995 and 2004.

5 See the UNDP regional program on governance in the Arab region (POGAR), especially the democratic governance and the rule of law program, http://www.undp-pogar.org/governance/judiciary.asp (accessed April 15, 2007).

6 Constituency can be beneficiaries as well as supporters and volunteers.

7 Financial restrictions vary from restrictions on accepting donations from foreign donors to restrictions on dealing with foreign currency. CSOs are also seeking tax exemption and reduction of charges for social security in order to release more funding for social services.

8 The CSD is a tool for many tasks, starting with the assessment of core facets of civil society; it thus can help identify strengths and weaknesses in order to develop and implement an optimal policy. It can also assess the impact and the potential contributions of civil society on the wellbeing of the society, economically, socially, and even in terms of human rights. In addition, the CSD can evaluate performance in selected fields, such as health care, education, and the environment. The four dimensions, when clearly defined in a systematic and structured way, can help in creating or amending a legal system. This will produce a law that better responds to the needs of CSOs and protects them from threats and challenges.

9 A third survey was conducted in Egypt by Center for Developmental Studies (CDS), but the results were not available at the time this article was written.

10 The State Shoura Council ruled that the procedures imposed by the ministry are illegal (ADDL vs. State of Lebanon, 2004).

11 The Civil Society Diamond report unfortunately begins with the false assertion that Lebanon has not witnessed ethnic or religious conflicts or political or social troubles. While Lebanon did not experience major conflict when the CSD was applied, 1993 to 2003, violent conflict has shaped the political environment. The CSD draft report was also prepared before the July 2006 conflict in Lebanon.

12 A quarter of respondents indicate administrative obstacles. “Obstacles include several issues and matters such as: weakness in good governance principles especially the absence of a clear and agreed upon vision within the organization, the absence of a clear and agreed upon vision within the organization, the absence of clear administrative and financial regulations, the absence of a clear organizational and administrative structure for decision making process, the weak relationship between the governing recourses (general assemblies, board of trustees and board of directors) and the executive administration, and finally the absence of clear and transparent working rules and regulations.” (Abdul-Hadi, Izzat. August 2000, p. 40.)

 

 

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