Afghanistan FlagNGO Law Monitor: Afghanistan

Introduction | At a Glance | Key Indicators | International Rankings
Legal Snapshot | Legal Analysis | Reports | News and Additional Resources
Last updated: 4 November 2013

Update: Afghanistan's Law on Associations, which was prepared by the Ministry of Justice (MoJ), was signed by President Karzai and published in the Official Gazette on September 1, 2013. This is seen as a great opportunity to expand associational rights in Afghanistan.

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) and associations.

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, which was enacted in accord with 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. Most recently, in September 2013, the President Karzai signed a new Law on Associations, which supersedes the 2002 Law on Social Organizations.

Several legislative initiatives are pending, including proposed amendments to the Law on NGOs; a draft Law on Foundations; a draft Law on Volunteerism; and proposed amendments to the tax code, which, if enacted, would introduce tax incentives for donors giving to tax-exempt organizations.

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At a Glance

Organizational Forms Non-Governmental Organizations Associations
Registration Body Ministry of Economy Ministry of Justice
Approximate Number

1911 local NGOs; 287 foreign NGOs

4000+ associations
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.

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 Restrictions against participation in “political” activities
Barriers to International Contact No legal barriers No legal barriers
Barriers to Resources No legal barriers No legal barriers

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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: CIA World Factbook

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International Rankings

Ranking Body Rank Ranking Scale 
(best – worst possible)
UN Human Development Index 172 1 – 182
World Bank Rule of Law Index 0.5 (2010) 100 – 0
World Bank Voice & Accountability Index 8.1 (2010) 100 – 0
Transparency International 180 (2011) 1 – 180
Freedom House: Freedom in the World Status: Not free
Political Rights: 6
Civil Liberties: 6
Free/Partly Free/Not Free
1 – 7
1 – 7
Foreign Policy: Failed States Index 2012 6 (2012) 177 – 1

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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:

Pending NGO Legislative / Regulatory Initiatives

At least four law reform initiatives affecting civil society are pending in Afghanistan:

  1. The Ministry of Economy (MoE) has 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). The proposed amendments would burden the formation, activities and funding of NGOs.
  2. The Ministry of Justice is supporting the development of a draft Law on Foundations, which has been prepared with input from civil society organizations through a task force on private giving.
  3. A civil society supported task force on private giving has developed proposed amendments to the tax code affecting tax-exempt organizations.  The amendments would introduce tax incentives for donors giving to tax-exempt organizations.
  4. The Ministry of Labor is supporting the development of a draft Law on Volunteerism, which has been prepared with input from civil society organizations.

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.    

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Legal Analysis

Organizational Forms

There are two primary forms of registered, not-for-profit organizations in Afghanistan: Non-Governmental Organizations (NGOs) and Associations.

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 Associations (September 2013) addresses a more specific category of organization. "Associations refer to communities, unions, councils, assemblies and organizations which are voluntarily established by a group of real or legal persons as non-profit, non-political entities, in accordance with this law.” (Article 2(1))

Public Benefit Status

Both NGOs and Associations are able to pursue both public benefit and mutual benefit activities. 

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.

Associations must seek registration with the Ministry of Justice. While the Law on Associations includes no requirement for minimum membership, the Ministry, in practice, may require that associations consist of no fewer than 10 founding members, since this was the prior rule under the Law on Social Organizations.  Foreign citizens, stateless persons, and youth under the age of 18 are restricted from serving as founders of Associations (Article 7).  The Law on Associations requires first-time applicants to pay a registration fee of 10,000 AFD.  (Article 13(3)) Finally, the Law on Associations implies that registration is mandatory – that is, that associations cannot carry out activities as an unregistered group; specifically, Article 14 expressly states that “An association initiates its work after receiving a registration certificate.”

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."

The Law on Associations, in Article 13(3), limits the validity of an association’s registration certificate to just three years, at which time it must be extended. There is concern that upon extension, the association must pay another 10,000 AFG fee for the renewed registration certificate; such a requirement would pose an imposing burden on an association’s continuing operations.

Barriers to Speech / Advocacy

There are no legal barriers targeting the expressive activities of either NGOs or associations.
  
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.  

Similarly, Article 5(2) of the Law on Associations restricts associations from performing “political activities” without defining what is meant by “political activities.”  The expectation is that the phrase is intended to limit campaigning and electioneering and not public advocacy.

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 or associations.

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 Associations 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 associations.  We have, however, received no information that such a restriction is being enforced; indeed, in practice, associations are performing economic activities without interference from government.

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Reports

UN Universal Periodic Review Reports

Country Report
Compilation of UN Information
Summary of Stakeholders’ Information

Reports of UN Special Rapporteurs

2001 Report on the situation of human rights in Afghanistan
2005 Report of the independent expert on the situation of human rights in Afghanistan

2011 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Country Recommendations: Afghanistan

USIG (United States International Grantmaking) Country Notes

2012 Report on Afghanistan

U.S. State Department

2008 Freedom and Democracy Report: Afghanistan
2010 Human Rights Report: Afghanistan

Failed States Index Reports

2013 Foreign Policy Failed States Index
Fund for Peace Country Profile: Afghanistan 2012

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

Afghanistan

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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 at ngomonitor@icnl.org.

General News

Afghanistan gets first nonviolence training manual (September 2013)
While civic groups in Afghanistan practice nonviolent tactics from time to time, that practice takes precedent over actually understanding the dynamics at play. Without that understanding, Afghans are missing the opportunity to increase the size and effectiveness of their campaigns, as well as prevent the proliferation of destructive agents who might incite violence, cause the loss of human life and ultimately destroy the campaign. This is why the Organization for Social, Cultural, Awareness, and Rehabilitation, or OSCAR, started teaching courses on nonviolent civic mobilization to a large number of Afghan youths and members of civil society — including women — in the Kunduz and Kunar provinces in 2011. Over time, however, it became clear that OSCAR needed to develop a teaching manual of its own — one specifically for Afghanistan and in the Pashtu language. That manual, called Nonviolent Civic Mobilization Guide, was published in September 2013 and contains information on how to organize a nonviolent campaign within Afghan society.

List of NGOs Dissolved in Afghanistan (April 2013)
More than 130 national NGOs and 10 international NGOs have been dissolved, according to government reports. The majority of the NGOs were dissolved because of a lack of reporting to the Ministry of Economy; some others reportedly asked to be dissolved.

Top UN envoy praises role of government, civil society and election commission ahead of 2014 presidential elections (October 2012)
The international community will continue supporting Afghanistan after US and NATO combat forces leave the country by the end of 2014, the top UN envoy Jan Kubis said. Kubis said he was encouraged by the work being done by the Afghan government, the election commission, civil society institutions and political forces to ensure the 2014 presidential election is free and fair.

Can civil society save Afghanistan? (August 2012)
In a speech earlier this year to commemorate the reign of King Amanullah, Afghanistan's reformist king during the 1920's, Afghan President Hamid Karzai focused on the younger generation's contribution to the country's future: ‘'This is a steady wheel that is progressively moving toward more development, and it will not turn back," he said. "This is a young man's engine with a power that does not know cold or any other obstacles"

NGO's funding axed after critical Afghan report (July 2012)
AusAID, the agency responsible for Australia's overseas aid program, asked the Liaison Office to prepare the report to evaluate Australia's efforts as the lead nation in a certain province until the end of 2011. While the report noted some gains in health and education, it was also critical, painting a picture of a sharp rise in opium poppy cultivation and little if any advancement for women in the justice system.

Aid alone cannot solve Afghanistan’s problems (July 2012)
Afghan officials returned from a conference in Tokyo on July 8th relieved that the world had promised another $16 billion in aid over the next four years. The sum corresponds roughly to what the nation’s leaders and the World Bank think is needed to bridge the chasm between public revenue and expenditure. The money comes on top of separate promises to finance the Afghan police and army. But will this cure Afghanistan’s problems?

As foreign aid dries up, Afghan NGOs fight to survive (July 2012)
Working at her NGO in Kabul alongside landmine victims, Makai Sawash laments the cash vacuum that has hurt many aid organizations in Afghanistan. "Day by day, donor funds are getting weaker. NGOs are looking to the government for help, but it doesn't have the capacity," she said at the Kabul Orthopaedic Organisation.

EU urges Afghan government to hold credible elections, guarantee human rights (May 2012)
The European Union Foreign Affairs Council has called on the Afghan authorities to reassure the international community regarding the implementation of its commitments to improve political and economic governance in the country.

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.

News archive

Attack near UN offices in southern Afghanistan kills 4 (October 2011)

"Pay your taxes," government tells NGOs (February 2011)

Afghan government control of women's shelters worries advocates (February 2011)

Dangerous aid in Afghanistan (January 2011) 

Afghanistan: Donor funding missing mark (December 2010)

How much development aid will leave with the troops? (December 2010)

Aid groups seek safety pacts with taliban (November 2010)

"Civil society is almost non-existent in Afghanistan" (November 2010)

NGOs under pressure in government anti-corruption drive (November 2010)

Karzai makes concession on security firm ban (October 2010) 

Foreign Policy: The plight of Afghan women (July 2010)

Kabul wants to change the way foreign aid is spent (July 2010)

The foregoing information was collected by ICNL and the ICNL, LLC Legal Advisor based in Kabul.

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