NGO Law Monitor: Afghanistan
Introduction | At a Glance | Key Indicators | International Rankings
Legal Snapshot | Legal Analysis | Reports | News and Additional Resources
Download PDF Version
Last updated 9 April 2012
Update: Initiatives are underway in both the Ministry of Economy and the Ministry of Justice to revise the Law on Non-Governmental Organizations and the Law on Social Organizations, respectively.
Introduction
Civil society in Afghanistan has deep roots, with traditional local councils called shuras or jirgas operating at the village or tribal level on an informal (unregistered) basis, usually to represent a community’s interests to other parts of society. Based on its national-level legislation, Afghanistan has two main categories of registered, nongovernmental, not-for-profit organizations with legal entity status: non-governmental organizations (NGOs), which currently number 1550, and social organizations (SOs), which number more than 1700. According to the Ministry of Economy, approximately 72,000 Afghans are working with NGOs in Afghanistan.
As an Islamic republic with a civil law tradition, Afghanistan has a hybrid legal system, based on both civil and Sharia law. Afghanistan's legal system has undergone several dramatic changes since 2002, with profound consequences for civil society and not-for-profit organizations (NPOs). First, in November 2002, the Transitional Government of Afghanistan adopted the Law on Social Organizations, enacted in light of Afghanistan's 1964 Constitution. Second, in January 2004, a new Afghan Constitution was adopted, with provisions recognizing fundamental rights and freedoms. Third, in June 2005, President Karzai signed a new Law on Non-Governmental Organizations (NGOs), which replaced the Taliban-era regulation on NGOs.
Both the Law on NGOs and the Law on Social Organizations remain pending before the Afghan National Assembly, as part of the process by which all laws enacted before the seating of the Afghan National Assembly must be reviewed and approved by the Assembly. Currently, there is no indication as to when either of the two laws will be reviewed by the Assembly. In the absence of review by the National Assembly, however, both laws remain in full force and effect.
At a Glance
| Organizational Forms | Non-Governmental Organizations | Social Organizations |
| Registration Body | Ministry of Economy | Ministry of Justice |
| Approximate Number | 1550 | 1700 |
| Barriers to Entry | Domestic NGOs: two-tiered registration process by Technical Commission and High Evaluation Commission. Foreign NGOs: two-tiered registration process by Ministry of Foreign Affairs and Ministry of Economy. |
Ten founding members required. Foreign citizens prohibited from serving as founders. |
| Barriers to Activities | Prohibited from participating in construction projects. Required to submit “committed project documents” to Ministry of Economy for approval, prior to starting work. |
Potentially restricted from carrying out any financial business activity (although this restriction may not be enforced in practice). |
| Barriers to Speech and/or Advocacy | Restrictions against participation in “political” activities | No legal barriers; law is silent on political activities |
| Barriers to International Contact | No legal barriers | No legal barriers |
| Barriers to Resources | No legal barriers | Prohibited from receiving funding from foreign governments or international organizations, but prohibition not enforced |
Key Indicators
| Population | 32,738,376 (July 2008 est.) |
| Capital | Kabul |
| Type of Government | Islamic Republic |
| Life Expectancy at Birth | 44.21 years |
| Literacy Rate | 28.1% |
| Religious Groups | Sunni Muslim 80%, Shia Muslim 19%, other 1% |
| Ethnic Groups | Pashtun 42%, Tajik 27%, Hazara 9%, Uzbek 9%, Aimak 4%, Turkmen 3%, Baloch 2%, other 4% |
| GDP per capita | $800 (2008 est.) |
Source: The World Factbook 2009. Washington, DC: Central Intelligence Agency, 2009. https://www.cia.gov/library/publications/the-world-factbook/index.html
International Rankings
| Ranking Body | Rank | Ranking Scale (best – worst possible) |
| UN Human Development Index | 181 | 1 – 182 |
| World Bank Rule of Law Index | 0.5 (2007) | 100 – 0 |
| World Bank Voice & Accountability Index | 13.9 (2007) | 100 – 0 |
| Transparency International | 176 (2008) | 1 – 180 |
| Freedom House: Freedom in the World | Status: Partly Free Political Rights: 5 Civil Liberties: 5 |
Free/Partly Free/Not Free 1 – 7 1 – 7 |
| Foreign Policy: Failed States Index |
7 | 177 – 1 |
Legal Snapshot
International and Regional Human Rights Agreements
| Key International Agreements | Ratification* | Year |
| International Covenant on Civil and Political Rights (ICCPR) | Yes | 1983 |
| Optional Protocol to ICCPR (ICCPR-OP1) | No | -- |
| International Covenant on Economic, Social, and Cultural Rights (ICESCR) | Yes | 1983 |
| Optional Protocol to ICESCR (OP-ICESCR) | No | -- |
| International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) | Yes | 1983 |
| Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) | Yes | 2003 |
| Optional Protocol to the Convention on the Elimination of Discrimination Against Women | No | -- |
| Convention on the Rights of the Child (CRC) | Yes | 1994 |
| International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) | No | -- |
| Convention on the Rights of Persons with Disabilities (CRPD) | No | -- |
| Regional Treaties | ||
| None known |
* Category includes ratification, accession, or succession to the treaty
Constitutional Framework
The Constitution of the Islamic Republic of Afghanistan was adopted in January 2004. (The Constitution of the Islamic Republic of Afghanistan, Official Gazette no. 818/2004).
Relevant constitutional provisions include:
- Article 34 [Expression, Press, Media] (1) Freedom of expression is inviolable. (2) Every Afghan has the right to express his thought through speech, writing, or illustration or other means, by observing the provisions stated in this Constitution. (3) Every Afghan has the right to print or publish topics without prior submission to the state authorities in accordance with the law. (4) Directives related to printing house, radio, television, press, and other mass media, will be regulated by the law.
- Article 35 [Organizations, Parties] (1) The citizens of Afghanistan have the right to form social organizations for the purpose of securing material or spiritual aims in accordance with the provisions of the law. (2) The citizens of Afghanistan have the right to form political parties in accordance with the provisions of the law, provided that: …
- Article 36 [Demonstration] The citizens of Afghanistan have the right to un-armed demonstrations, for legitimate peaceful purposes.
National Laws and Regulations Affecting Sector
Relevant national-level laws and regulations affecting civil society include:
- Law on Social Organizations, Official Gazette no. 804/2002
- Decision of the Cabinet of Ministers, issued 24 January 2005
- Ministry of Justice Proposal, issued 28 October 2006
- Law on Non-Governmental Organizations, Official Gazette no. 857/2005
- Implementing Regulations for the Law on Non-Governmental Organizations (2005)
- Income Tax Law, Official Gazette no. 867/2005
- Customs Law, Official Gazette no. 848/2005
- Labor Law, Official Gazette no. 790/1999
- Civil Code of 1977, Madani Qanun Decree no. 1458 of 05/01/1977
Pending NGO Legislative / Regulatory Initiatives
Two legislative initiatives are worthy of note.
First, the Ministry of Economy (MoE) recently proposed amendments to the Law on Non-Governmental Organizations (NGOs) and shared the proposed amendments with the legislative department of the Ministry of Justice (MoJ). Interestingly, the MoJ did not approve the amendments and, through an official letter to the MoE, requested that the MoE develop a new NGO law. The MoJ position is based on Article 94 of the Afghanistan Constitution, which requires that laws be approved by the National Assembly. The Law on NGOs was enacted by presidential decree in 2005 and has never been reviewed and approved by the National Assembly. No official decision has yet been made by the Ministry of Economy regarding how to proceed.
Second, the Ministry of Justice (the department responsible for social organizations) is currently preparingamendments to the Law on Social Organizations. The proposed amendments have not yet been released for public comment.
We are unaware of any other pending legislative/regulatory initiatives affecting NGOs. Please help keep us informed; if you are aware of pending initiatives, write to ICNL at ngomonitor@icnl.org.
Legal Analysis
Organizational Forms
There are two primary forms of registered, not-for-profit organizations in Afghanistan: Non-Governmental Organizations (NGOs) and Social Organizations (SOs).
NGOs are defined broadly in the 2005 Law on Non-Governmental Organizations (NGO Law) to include both domestic and foreign non-governmental organizations. A domestic NGO is simply "a domestic non-governmental organization which is established to pursue specific objectives." (Article 5(2)) A foreign organization is a “non-governmental organization which is established outside Afghanistan according to the laws of a foreign government and which accepts the terms of this law.” (Article 5(3))
The Law on Social Organizations (November 2002) addresses a more specific category of organization. "Social organizations (communities and associations)" are defined as "the voluntary unions of natural or legal persons, organized for ensuring social, cultural, educational, legal, artistic and vocational objectives" (Article 2(1)
Public Benefit Status
Both NGOs and SOs are able to pursue both public benefit and mutual benefit activities, although the range of permissible activities is narrower for SOs.
Afghanistan follows the U.S. approach by creating a category of "tax exempt organizations" in the Income Tax Law. Article 10 of the Tax Law restricts "exempt organization" status to those organizations "organized and operated exclusively for educational, cultural, literary, scientific, or charitable purposes." Organizations dedicated to these public benefit purposes and meeting other mandatory criteria are exempt from taxation on "contributions received and income from the necessary operations." (Income Tax Law, Article 10)
Barriers to Entry
The Law on NGOs generally creates an enabling framework for the formation of NGOs. To establish a domestic NGO, the Law requires at least two founders, who may be domestic or foreign, natural or legal persons, at least one of whom has a residence and exact address in Afghanistan. (Article 11(1)) To become registered, NGOs must apply to the Ministry of Economy. (Article 4) The registration process, however, is a two-tiered, overly bureaucratic process, with review of applications required by both the Technical Commission and the High Evaluation Commission; the High Evaluation Commission is composed of representatives from no fewer than 5 government ministries. We have not received reports of registration being denied on arbitrary grounds.
Social organizations must seek registration with the Ministry of Justice and consist of no fewer than 10 founding members (Article 6(1). Unlike in the case of NGOs, foreign citizens are restricted from serving as founders of SOs (Article 2(2)), although they can obtain honorary membership after receiving permission from the Ministry of Justice (Article 18).
Barriers to Operational Activity
The Law on NGOs includes barriers to NGOs’ operational activity, in the form of a direct prohibition, and through invasive supervisory oversight.
First, NGOs are prohibited from participating in construction projects and contracts, but for those exceptional cases where granted special permission by the Minister of Economy.
Second, NGOs are required -- prior to the commencement of work, and after the examination and assessment of the line department – to submit committed project documents to the Ministry of Economy for verification and registration. The real impact of this legal barrier depends, of course, upon implementation; compliance is likely to be low. In addition, NGOs are required to submit semi-annual reports, with a separate reporting form required for each project of the NGO.
Furthermore, the Ministry of Economy has repeatedly terminated NGOs for the failure to submit reports. Article 35(1) include the grounds for dissolution, which include "Where the organization does not provide the Ministry of Economy with its annual report within one year of the end of the fiscal year." In January 2012, for example, Economy Minister Abdul Hadi Arghandiwal announced that 600 Afghan and 195 foreign NGOs were closed because they failed to send biannual reports to the Economy Ministry detailing their activities, progress, and budgets. "These NGOs either didn’t send us their work reports or committed other violations," he said. "If NGOs don’t send us their reports every six months and if we continue not to receive them for two years, these NGOs are considered to be inactive."
Barriers to Speech / Advocacy
There are no legal barriers targeting the expressive activities of either NGOs or SOs.
There are, however, restrictions against NGO participation in “political activities.” Among the illegal activities listed in Article 8 of the NGO Law are "(1) Participation in political activities and campaigns" and "(2) Payment to and fundraising for political parties and candidates." Although the Law nowhere defines "political activities," the context suggests that the phrase refers to campaigning and electioneering, as opposed to public advocacy. The Law on Social Organizations does not specifically mention political activities.
Barriers to International Contact
There are no legal barriers to international communication or contact.
Barriers to Resources
Foreign Funding
There are no legal barriers against foreign funding for NGOs.
Social organizations, however, are subject to a 2005 Cabinet of Ministers' decision on foreign funding, which provides that social organizations (and political parties) cannot receive foreign funding ("funding from foreign governments or international organizations"). In practice, according to the Ministry of Justice, the prohibition is not being routinely applied against social organizations.
Domestic Funding
We are unaware of any legal barriers being applied to restrict domestic funding of civil society organizations.
NGOs are permitted to conduct economic activities “to reach the statutory not-for-profit goals of the organization” and provided that the income is used only “to carry out the specified goals of the organization." (NGO Law, Article 22.2)
The Law on Social Organizations neither specifically allows nor prohibits the carrying out of economic activities. The Civil Code, however, specifies that an association “may not carry on any financial business” (Civil Code, Article 418), which could be interpreted to restrict economic activity for social organizations. We have received no information that such a restriction is being enforced.
Reports
| UN Universal Periodic Review Reports | Country Report |
| Reports of UN Special Rapporteurs | 2001 Report on the situation of human rights in Afghanistan |
| USIG (United States International Grantmaking) Country Notes | |
| U.S. State Department | 2008 Freedom and Democracy Report: Afghanistan |
| Failed States Index Reports | Foreign Policy 2008 Failed States Index |
| IMF Country Reports | Islamic Republic of Afghanistan: Fourth Review Under the Three-Year Arrangement: 2008 |
| International Commission of Jurists | Afghanistan's Legal System and its Compatibility with International Human Rights Standards (2003) |
| International Center for Not-for-Profit Law Online Library |
News and Additional Resources
While we aim to maintain information that is as current as possible, we realize that situations can rapidly change. If you are aware of any additional information or inaccuracies on this page, please keep us informed; write to ICNL atngomonitor@icnl.org.
General News
NGOs remain committed to Afghanistan for the long-haul (April 2012)
As international politicians supporting the military intervention in Afghanistan struggle to find an orderly exit strategy for troops, many committed NGO workers are clearly in it for the long-haul. NGOs are working on community projects aimed at supporting democratic awareness as well as helping to provide economic opportunities through support for agricultural workers, social cooperatives and local councils promoting equality rights. (Read more)
Attack near UN offices in southern Afghanistan kills 4 (October 2011)
Afghan officials say a suicide attack near United Nations offices in southern Afghanistan has killed at least four people. Authorities say one attacker detonated a vehicle full of explosives near buildings used by the United Nations refugee agency and the U.S.-based International Relief and Development organization. (Read more)
"Pay your taxes," government tells NGOs (February 2011)
The Ministry of Finance (MoF) has called on all local and international NGOs to pay their taxes promptly or face legal consequences, including fines and a revocation of their operating licenses.Over 2,400 local and international NGOs are present in Afghanistan and MoF says all but a few are liable to pay tax. (Read more)
Afghan government control of women's shelters worries advocates (February 2011)
The Afghan government says it plans to take control of women's shelters -- a move strongly opposed by international human rights groups.This week, the Afghan Women's Affairs Minister said the government found problems in the operation of the shelters, including corruption and misuse of funds in the 11 registered safe houses run by non-governmental organizations.VOA's Sarah Williams spoke with Rachel Reid, the Afghan researcher at Human Rights Watch in Kabul, who says a government shelter is "far more likely" to cave-in to pressure from families and tribes to hand back victims of domestic violence, putting women's lives at risk. (Read the interview)
Dangerous aid in Afghanistan (January 2011)
As dissection of the Obama administration's Afghanistan strategy review from last year continues, lost in the debate is the reality for Afghans trapped in the middle of this nine-year war. For them, seeking assistance provided by either side in the conflict has become almost as dangerous as going without it. It's largely taken as a given that all players in the Afghan theater are "humanitarian." The U.S. Army, NATO allies, the Afghan government, and even armed opposition groups all highlight their so-called humanitarian activities as they vie for the hearts and minds of the civilian population. (Read more)
Afghanistan: Donor funding missing mark (December 2010)
Aid workers in Afghanistan say the expanding scope of the Islamic radical insurgency is fueling a humanitarian crisis. Emergency aid agencies say they need several hundred million dollars to address the threat of widespread hunger. But foreign donors who have troops in Afghanistan are reluctant to admit the situation continues to deteriorate, aid workers complain, leaving the humanitarian needs consistently under-funded. (Read more)
How much development aid will leave with the troops? (December 2010)
The planned withdrawal of foreign forces from Afghanistan over the next four years will also reduce development aid, particularly for so-called “hearts and minds” projects aimed at social upliftment, experts say. “Because development assistance is attached to stability objectives there is a fear that as the international military leaves, the world will forget Afghanistan once again,” Ashley Jackson, head of advocacy and communication at Oxfam International in the capital, Kabul, told IRIN.During the next four years, forces from 48 countries led by the North Atlantic Treaty Organization (NATO) will gradually leave Afghanistan and transfer combat responsibilities to the fledging Afghan security forces, in terms of a Transition Process approved by NATO and the Afghan government. (Read more)
Aid groups seek safety pacts with taliban (November 2010)
Independent aid groups operating in Afghanistan are increasingly distancing themselves from the U.S.-led coalition and trying to forge safe-passage agreements with insurgents, betting that a show of neutrality will protect their work amid an intensifying war.The Taliban are reciprocating with a more moderate approach to some aid workers, while continuing attacks on those seen as affiliated with the coalition. Mullah Mohammed Omar, the Taliban's supreme leader, recently issued formal instructions to help nongovernment organizations that register with them, Taliban officials say. (Read more)
"Civil society is almost non-existent in Afghanistan" (November 2010)
James C Dabhi is country director of Afghanistan Research and Development Institute in Kabul and visiting professor at universities in Bamiyan and Herat. Dabhi, a former executive director with New Delhi-based Indian Social Institute, spoke to Humra Quraishi about the challenges of working in Afghanistan. (Read more)
NGOs under pressure in government anti-corruption drive (November 2010)
The recent ban on around 150 NGOs - almost all of them local NGOs - for flouting reporting procedures is believed to be an Afghan government attempt to demonstrate it is taking action against corruption, aid workers say.Laurent Sailard, director of ACBAR, an umbrella body for over 100 local and international NGOs, said NGOs must not be used as scapegoats: "NGOs have only spent about 10 percent of the foreign assistance to Afghanistan." (Read more)
Afghanistan shuts down 150 aid groups (November 2010)
Afghanistan has ordered around 150 aid groups, including four foreign organisations, to shut down for failing to submit reports on their projects and finances, a government official said on Tuesday.The ruling by a government-backed commission which monitors aid groups includes 145 domestic organisations and has immediate effect, said a spokesman for the Economy Ministry, which heads the commission.The commission was established as part of an anti-corruption drive by President Hamid Karzai, who has long been critical of foreign organisations in Afghanistan and says they have been involved in widespread graft. (Read more)
Karzai makes concession on security firm ban (October 2010)
Afghan President Hamid Karzai offered a small concession over the timing of a ban on private security firms, which strained ties with Washington, but some aid groups said on Wednesday the ban would not affect them much. Karzai has stressed his commitment to a decree disbanding private security companies, spurring concern in Washington that aid work in Afghanistan may already be starting to suffer over security fears, but on Wednesday said the original December deadline could be extended up to two months. Some U.S.-funded development companies have said they have started scaling back projects. On Saturday, U.S. Secretary of State Hillary Clinton called Karzai to recommend a joint plan to replace the guard firms gradually rather than enforce a ban that could threaten millions of dollars in aid work. The Agency Coordinating Body for Afghan Relief (ACBAR), an umbrella group for non-government organizations (NGOs) in Afghanistan, said the ban would not affect aid work by its members because most operated without armed protection. (Read more)
Foreign Policy: The plight of Afghan women (July 2010)
A recent report by Human Rights Watch calls on the government of Afghanistan to "ensure that all those who agree to the reconciliation process have made explicit their acceptance of the constitutional guarantees of equality for men and women." (Read more)
Kabul wants to change the way foreign aid is spent (July 2010)
With the Afghan government and its international partners meeting in Kabul, there is likely to be a dramatic change in their relationship. For the first time, the Afghan government is presenting its more than 70 foreign partners with its own plans for how to spend the bulk of foreign aid the country is receiving. Specifically, Afghan ministers are offering 23 programs and asking donors to direct funding that now goes to NGOs and contractors to these programs instead. (Read more)
The foregoing information was collected by ICNL and the ICNL, LLC Legal Advisor based in Kabul.