NGO Law Monitor: Ecuador
Introduction | At a Glance | Key Indicators | International Rankings
Legal Snapshot | Legal Analysis | Reports | News and Additional Resources
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Last updated 6 June 2013
Introduction
Civil Society in Ecuador has its origins in charitable and voluntary organizations that provided services to the poor and vulnerable mainly in Quito and Guayaquil in the beginning of the twentieth century. In the 1950s these organizations evolved into developmental CSOs that provided assistance to the disabled, family planning, and educational programs. During the 1960s and 1970s, CSOs emerged to focus on urban development, environmental protection, and women’s issues emerged. The expansion of public services (education, health, water, and irrigation) during this period also led to the formation of users’ associations such as parents', teachers', and students' associations; housing, water, and irrigation associations; as well as neighborhood associations. In the 80s and 90s, new CSOs dedicated to protecting civil, political, cultural or indigenous people’s rights, gender equity and the environment were created. It was during this period when organizations like the CONAIE (Confederation of Indigenous Nationalities in Ecuador) were established; and civil society actors actively engaged government and ultimately played a key role in drafting the 1998 Constitution.
Today, Ecuador has an active and diverse civil society comprised of corporations, foundations, private and public sector unions, professional and business organizations, and numerous informal organizations such as church groups, sports clubs, and youth groups. Although Ecuador has a high level of CSO affiliation, the level of civic engagement and citizen participation is low. Notably, since the Constitutional Court declared unconstitutional the obligatory affiliation to chambers of commerce and professional associations on May 14, 2008, the number of affiliates to these types of CSOs has diminished. On the other hand, the government on February 26, 2007 created the Secretary of People, Social Movements and Citizen Participation, which is in charge of maintaining communication with CSOs, and encouraging citizen participation with matters related to them. This Secretary is also in charge of CSO registration.
At a Glance
| Organizational Forms | Corporations and Foundations |
| Registration Body | State Ministries |
| Approximate Number | 45, 722 |
| Barriers to Entry | Second and third degree CSOs may not attain legal status without possessing USD 4,000; identifying individual members on an internet-accessible Registry in order for the CSO to legally exist. |
| Barriers to Activities | Limited political activity |
| Barriers to Speech and/or Advocacy | CSOs and media outlets that are critical of the government may be subject to disproportionately burdensome financial penalties and unfair court proceedings. |
| Barriers to International Contact | No legal barriers |
| Barriers to Resources | No legal barriers |
Key Indicators
| Population | 14,790,608 (July 2010 est.) |
| Capital | Quito |
| Type of Government | Republic |
| Life Expectancy at Birth | Male: 72.58 years Female: 78.6 years (2010 est.) |
| Literacy Rate | Male: 92.3% Female: 89.7% (2001 census) |
| Religious Groups | Roman Catholic: 95%; other: 5% |
| Ethnic Groups | Mestizo: 65%; Amerindian: 25%; Spanish and other: 7%; black: 3%. |
| GDP per capita | $7,800 (2010 est.) |
Source: The World Factbook. Washington, DC: Central Intelligence Agency, 2010.
International Rankings
| Ranking Body | Rank | Ranking Scale (best – worst possible) |
| UN Human Development Index | 83 (2011) | 1 – 182 |
| World Bank Rule of Law Index | 11.8 (2010) | 100 – 0 |
| World Bank Voice & Accountability Index | 37.9 (2010) | 100 – 0 |
| Transparency International | 120 (2011) | 1 – 180 |
| Freedom House: Freedom in the World | Status: Partly Free Political Rights: 3 Civil Liberties:3 |
Free/Partly Free/Not Free 1 – 7 1 – 7 |
| Foreign Policy: Failed States Index |
67 (2012) | 177 – 1 |
Legal Snapshot
International and Regional Human Rights Agreements
| Key International Agreements | Ratification* | Year |
| International Covenant on Civil and Political Rights (ICCPR) | Yes | 1969 |
| Optional Protocol to ICCPR (ICCPR-OP1) | Yes | 1969 |
| International Covenant on Economic, Social, and Cultural Rights (ICESCR) | Yes | 1969 |
| Optional Protocol to ICESCR (OP-ICESCR) | Yes | 2009 |
| International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) | Yes | 1966 |
| Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) | Yes | 1981 |
| Optional Protocol to the Convention on the Elimination of Discrimination Against Women | Yes | 2002 |
| Convention on the Rights of the Child (CRC) | Yes | 1990 |
| International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) | Yes | 2002 |
| Convention on the Rights of Persons with Disabilities (CRPD) | Yes | 2008 |
| Regional Treaties | ||
| American Convention on Human Rights | Yes | 1977 |
| Additional Protocol to the Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador” | Yes | 1993 |
* Category includes ratification, accession, or succession to the treaty
Constitutional Framework
The current Constitution of the Republic of Ecuador was approved by referendum on September 28, 2008, and was published in the Official Registry number 449, on October 20, 2008.
According to the Constitution, all organizations in society are recognized to be an expression of popular sovereignty, and may therefore carry out processes of self –determination, and influence decisions, public policy and exercise social control of public bodies at all levels of government (Article 96). These organizations may be structured in any manner to enforce the popular power and its expression. They must adhere to internal democratic practices, and ensure the accountability of the organization (Article 96).
The Constitution creates the “Council of Citizen Participation and Social Control” as a fourth branch of the State that is in charge of designating authorities such as the General Attorney, the General Prosecutor, the members of the Judicial Administrative Council, among others. The constitution provides that all the candidates will be nominated by CSOs and the citizens.
The Constitution also contains a considerable number of articles relating to the protection of human rights, including:
- Article 66.13: Freedom of association - The State recognizes and guarantees the people the right to associate, meet and speak freely and voluntarily.
- Article 66.11: The right to maintain the privacy about one's convictions. No one can be compelled to testify about them. No one can require or use, without authorization of the holder of his legitimate representative, the personal information on religious beliefs, affiliation or political thinking, or data concerning his health and sex life, except for medical needs.
- Article 66.19: The right to personal data protection, which includes the access and the decision about the information and data related, and its correspondent protection. The data gathering, filing, processing, distribution, and spreading shall require the owner's authorization or a legal mandate.
- Article 66.6: Freedom of expression - The State recognizes and guarantees the people the right to the free development of personality, with no more limitations than the rights of others, and the right to think and express one's thoughts freely and in all its forms and manifestations.
The Constitution guarantees the full exercise of these rights by stating the following:
- Article 11.1: Rights should be exercised, promoted and claimed either individually or collectively before the competent authorities, these authorities shall ensure compliance.
- Article 11.3: The rights set out in the Constitution and international human rights instruments are self executing by and before any servant or Server public, administrative or judicial, ex officio or at the request of a party.
- Article 10: The recognition of the rights and guarantees set out in the Constitution and international instruments on human rights shall not preclude other rights arising from the dignity of individuals, communities, peoples and nationalities, necessary for their full development.
National Laws and Regulations Affecting Sector
There is no comprehensive law in Ecuador regarding CSOs. The basis of the sector's legal treatment is the Civil Code, effective since 1861. The Civil Code provides the President of the Republic the authority under the Regulation for Approval of the Statutes, Reforms and Codifications, Liquidation and Dissolution, and Registration of Members and Directives, of the Organizations under the Civil Code and Special Laws ("The Regulations") to establish and dissolve CSOs. [1] Thus, CSOs are governed by Executive Decrees, which have been issued to address issues of operations, organization, and oversight. The most recent, Presidential Decree No. 982, was signed by President Rafael Correa Delgado on March 25, 2008, and substantially revises the Regulations' provisions governing CSOs. It provides additional requirements, controls, and causes for dissolution of CSOs that did not previously exist.
Other relevant national laws and regulations include the following:
- Código Civil (Civil Code).
- Delegación para aprobación de fundaciones y corporaciones (Delegation for the approval of Foundations and Corporations) November 30, 1998.
- Estatuto del Régimen Jurídico Administrativo de la Función Ejecutiva (Statute for the Juridical-Administrative Regime of the Executive Branch) March 18, 2002.
- Reglamento para la aprobación, control y extinción de personas jurídicas de derecho privado, con finalidad social y sin fines de lucro, que se constituyen al amparo de lo dispuesto en el Título XXIX del Libro I del Código Civil, aplicable a todos los Ministerios de Estado. (The Regulation for Approval or the Statutes, Reforms and Codification, Liquidation and Dissolution and Registration of Members and Directives of the Organizations under the Civil Code and Special Laws). Enacted on September 11, 2002 reformed on February 6, 2007; September 17, 2007; April 8, 2008; and on October 27, 2008.
- Reglamento a la Ley de Extranjería (Regulation of the Foreigners Law) July 7, 1986.
- Registro Electrónico de Fundaciones y Corporaciones (Electronic registration of Foundations and Corporations) March 31, 2009.
- Instructivo para estandarizar los trámites y procedimientos para la aplicación del Reglamento para la aprobación, control y extinción de personas jurídicas de derecho privado, con finalidad social y sin fines de lucro, que se constituyen al amparo de lo dispuesto en el Título XXIX del Libro I del Código Civil, aplicable a todos los Ministerios de Estado. (Special administrative rules to standardize the procedures for the execution of the Regulation for Approval or the Statutes, Reforms and Codification, Liquidation and Dissolution and Registration of Members and Directives of the Organizations under the Civil Code and Special Law) May 4, 2009.
- Código Tributario (Tax Code) June 14, 2005.
- Ley reformatoria para la Equidad Tributaria en el Ecuador (Reformatory law for tax equity in Ecuador) December 29,2007.
- Ley de Régimen Tributario Interno (Law of internal regime of taxation) November 17, 2004.
- Ley de Control Tributario y Financiero (Law for finance and tax control) December 29, 1988.
- Ley de Registro Único de Contribuyentes (Law for the Unique Contributor Registry) August, 12, 2004.
- Reglamento para la aplicación de la Ley Orgánica de Régimen Tributario Interno (Regulation for the application of the Law of internal regime of taxation).
- Ley Orgánica de la Contraloría General del Estado (Law of the Estate Control) June 12, 2002.
- Reglamento a la Ley Orgánica de la contraloría General del Estado (Regulation of the Law of the Estate Control) July 7, 2003.
- Control Externo de las Entidades de Derecho Privado (External Control of the Private Entities) January 13, 2003.
- Ley Orgánica del Sistema Nacional de Contratación Pública (Law for the Public National Contractual System) August 4, 2008.
- Contratación de Asociaciones de Primero y Segundo Grado (Regulations for contracts with Social Organizations of first and second degree) May 12, 2009.
- Ley de Modernización del Estado (Law for the Modernization of the State) December 31, 1993.
- Ley para la Reforma de las Finanzas Públicas (Law for the reform of the public finances) April 30, 1999.
- Ley que regula las declaraciones patrimoniales juramentadas (Law that regulates the patrimony declaration) May 16, 2003
- Ley Orgánica de Transparencia y Acceso a la Información Pública (Law of transparency and Access to public information) May 18, 2004.
- Código del Trabajo (Labour Code) December 16, 2005.
[1] Enacted on September 11, 2002, amended on February 6, 2007; September 17, 2007; April 8, 2008; and October 27, 2008.
Pending NGO Legislative / Regulatory Initiatives
In March 2008, President Rafael Correa issued Decree No. 982, which tightened Ecuador’s already restrictive law governing NGOs. Among other restrictions, the decree authorized the Government to dissolve an NGO on discretionary grounds such as “compromising … the interests of the State;” to demand virtually unlimited information from an NGO; and to post the names of every member of all registered NGOs on a publicly accessible website. Since that time, Ecuadoran NGOs have lobbied for changes to the laws and regulations governing their activities. They have developed a united statement asserting their rights to engage on matters of public policy and stating their concerns about the Decree along with recommendations for reform.
On December 1, 2010, the Government presented to Ecuadoran NGOs a draft law that it proposes to enact in the near future. The draft law incorporates some of the changes recommended by the NGOs in their statement. However, it retains several of the Decree’s most restrictive features and introduces problematic new provisions. Key issues include:
- The law allows for excessive government discretion to dissolve NGOs. Grounds for dissolution of an NGO include “political proselytizing,” “compromising … the interests of the State,” and non-compliance with accountability requirement of by-laws. These terms are largely undefined, leaving the government with broad discretion to determine what constitutes prohibited conduct. As a result, NGOs may be deterred from speaking out on particular public policy matters for fear of being accused of “political proselytizing.” In addition, the law permits dissolution if an organization’s board of directors lacks gender balance – the only exceptions allowed are for NGO’s with membership that is exclusively of one gender. NGOs with objectives that are of particular interest to one gender, such as support for breast cancer survivors or domestic violence, may find their continued survival threatened by requirement of gender balance among their leadership.
- The law gives the government and the public access to the internal information of NGOs. Citizens may demand “accountability” – undefined -- from any NGO that carries out public interest activities – also undefined -- or public services, or that utilizes public resources. NGOs must also hand over to government officials any information related to their activities, and must make their premises available for inspection so long as the officials provide advance notice. Without limits on these accountability obligations, the need to present documentation in response to repeated citizen or State demands could threaten the privacy rights of NGO members and inappropriately burden an NGO’s financial and human resources.
- The law creates a “permanent plan” for purging NGOs. All Government Ministries charged with NGO oversight are required to promptly develop plans for removing organizations from the NGO Registry. Purging is permitted for even slight technical infractions, if the response is not received in very short order, and the information demanded may itself be improper, given international standards. For example, NGOs are required to report the names, ID numbers, nationality, and addresses of every member – a substantial undertaking for NGOs with large memberships. If the government is dissatisfied with an NGO’s response to a request for this list, it can dissolve the NGO in as little as 15 days.
Legal Analysis
Organizational Forms
Ecuadorian law recognizes two types of non-profit organizations: The public benefit corporation and foundation. These organizations that constitute civil society in Ecuador may be divided into two main groups:
- Membership organizations (including indigenous, professional, business, women´s, neighborhood, community, peasant, youth, church, sports and parent-teacher associations) represent or provide services to members, who are united by shared interests or characteristics.
- Public interest organizations or CSOs (including corporations and foundations) provide services to third parties and advocate for issues of public interest.
Public Benefit Status
The tax law and its corresponding regulations exempt CSOs dedicated to public benefit, religious activities, women, children and family development, culture, arts, education, research, health, sports, professional, unions, indigenous people, cooperatives, federations, confederations and other associations of peasants from paying the annual income tax. To receive this exemption the CSOs must satisfy the following requirements: (i) income from donations must be less than 15% of total income; (ii) the organization must be a nonprofit organization; (iii) all income must be dedicated to the object of the organization; and (iv) any excess income should be re-invested in the organization. There is no special tax treatment for income from foreign sources.
Barriers to Entry
The Regulations, as modified by Decree No. 982, include several provisions that establish or increase barriers to entry into legal status for CSOs. First, CSOs may not attain legal status without possessing at least $USD4000, in the case of second and third degree organizations, and $USD400 for first degree organizations. Second, the Decree mandates that all of a CSO's members be individually identified on an internet-accessible registry in order for the CSO to legally exist.
Dissolution
The Regulations, as modified by Decree No. 982, expands the permissible reasons for dissolving a CSO to include the extremely vague grounds of "compromising … the interests of the State," vastly increasing the discretion of government officials to shut down CSOs. This would potentially allow the government to shut down a CSO for advocating against the government’s natural resource extraction policies on the grounds that this activity contravenes a State “interest” in promoting the extraction and export of oil. CSOs are also subject to dissolution for many other reasons, including any act of non-compliance with their objective(s) or non-compliance with the Regulations.
Barriers to Operational Activity
The Regulations, as modified by Decree No. 982, provides that CSOs are controlled by the registration authority, and includes requirements that grant the government virtually unlimited discretion to demand information at any time from any registered CSO.
Barriers to Speech / Advocacy
President Correa has continually criticized and verbally attacked CSOs for being out of control and political pawns that are being used against him and his government. His statements have helped create a hostile atmosphere for civil society, and may have resulted in chilling advocacy activities of CSOs. Similarly, President Correa has cracked down on media outlets that criticize his policies and decision-making. For example, he sued a media outlet that criticized his handling of a protest in 2011 and deployed his lawyers to pressure the judges to rule in his favor.
Barriers to International Contact
A July 5, 2011 decree issued by Ecuadoran President Rafael Correa Delgado may pose a serious threat to development activities carried out in that country with support from international cooperation agencies. Presidential Decree No. 812, which became effective immediately, amends existing regulations governing international non-governmental organizations (NGOs). Most significantly, Decree 812 amends existing law to prohibit international NGOs registered with the Ecuadoran Government from “intermediating, implementing, or executing plans, programs or projects” that are funded with resources from bilateral or multilateral cooperation entities. Moreover, international NGOs that already hold agreements to operate in Ecuador must sign new agreements that conform to the Constitution and guidelines of the national development plan.
Decree 812 could be interpreted to restrict all international NGOs – including many with long-term commitments to furthering Ecuadoran development – from collaborating with Ecuadoran partners if their engagements in the country are funded by governments or multilateral organizations. The Decree could have devastating consequences for Ecuadorans in civil society, the Government, private industry, universities, and other sectors that rely on such international NGOs for technical and financial support. International NGO activities should be consistent with the country’s Constitution, and the guidelines in the national development plan appear to be quite broad. Nevertheless, the requirement that international NGOs reapply for agreements to operate in Ecuador could open the door to denials based on abuses of discretion, as well as bureaucratic obstacles creating uncertainty and costly delays in development assistance.
Barriers to Resources
There are no legal barriers to seek and secure resources.
Reports
| UN Universal Periodic Review Reports | Universal Periodic Review: Ecuador (2008) |
| Reports of UN Special Rapporteurs | |
| USIG (United States International Grantmaking) Country Notes | Not available |
| U.S. State Department | 2010 Country Reports on Human Rights Practices: Ecuador Advancing Freedom and Democracy Reports, 2010: Ecuador |
| Failed States Index Reports | |
| IMF Country Reports | Ecuador and the IMF |
| International Commission of Jurists | Not available |
| 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 at ngomonitor@icnl.org.
General News
Defenders of Pachamama Protest Breach of the Mining Mandate (May 2013)
On May 2, 2013, the National Coordinator for the Defense of Life and Sovereignty, the Front of Women Defenders of Pachamama, and the Coordinator in Defense of Molleturo, conducted a demonstration before the Town of Ecuador Defense to denounce the inaction taken by its employees in regards to a complaint they had filed two years ago. The complaint was filed in September 2011, reprehending a breach of the Mining Mandate, established in 2008 by the Constituent Assembly, which had ordered the cancellation of mining concessions that were not compliant with the established regulations, and demanded its application to the International Mineral Corporation Rio Blanco project, which had not made prior community consultation among other irregularities.
Ecuador the latest ‘XXIst Century Dictatorship’? (February 2013)
“Unlike the dictatorships of the past, which took power with a coup d’état, closed down the Congress and replaced the president, the dictatorships of the XXI Century ignore the constitutional order under which they were elected and create a new constitutional order that allows them to stay in power,” according to a former Latin American leader.
NGO petition yields results for Amazon (January 2013)
A global campaign to stop oil exploration in a pristine corner of the Ecuadorean Amazon has collected more than a million online signatures in little more than a week. The petition, which was organised by the campaign group Avaaz, calls on President Correa to stop oil exploration in the Amazon and uphold the Ecuadorean constitution, which is the only one in the world to recognise the rights of nature. It follows an appeal for help by the 400-strong community of Sani – first reported in October in the Guardian – amid fears that the state oil company would use the army to secure land for a seismic study.
Ecuador's president proposes freedom of expression as a function of the State (November 2012)
Ecuador's president, Rafael Correa, proposed increasing "democratic controls" over information to transition freedom of expression into a "function of the State" during a press conference, according to the news agency EFE.
UNHCR chief highlights role of CSOs on World Refugee Day (June 2012)
UN High Commissioner for Refugees chief António Guterres returned to Ecuador and pledged to continue working to ensure the rights of the largest refugee population in South America. Guterres stressed: "We must join forces – politicians, responsible media and civil society organizations and all the people – to make a firm stand against xenophobia and racism." "To ensure protection for women, it is important to work with governmental and civil society institutions, and also to empower refugee women," said Guterres.
Ecuador's indigenous peoples reach Quito after 600km March for Water, Life and Dignity (March 2012)
Thousands of indigenous peoples led by Confederation of Indigenous Nationalities of Ecuador (CONAIE) converged on Quito, culminating a fifteen-day march demanding a new water law, land reform, and an end to open-pit mining and new oil concessions. The march, timed to arrive with World Water Day, was the first major indigenous mobilization in recent years, and it was considered to be an indictment of President Correa's environmental and social policies.
Ecuadorean Court of National Justice accepts President Correa's pardons in libel cases involving the media (February 2012)
The IACHR issued a preliminary injunction against President Correa on February 22 to suspend the sentence in the criminal libel case against newspaper "El Universo" until a hearing between the two parties can be held on March 28. Five days later, on February 27, President Correa announced at the Government Palace in Quito that he would pardon "El Universo". Correa also said he was forgiving the three-year prison terms against three executives and the former opinion page editor of the newspaper. In addition, Correa said that he was dropping a libel case against two other journalists who were ordered to pay Correa $1 million each in February.
News archive
Civil society organizations respond to government regulations in Ecuador (June 2011)
NGOs to publish manifesto on proposed draft regulations (January 2011)
Human Rights Watch calls for Ecuador to withdraw proposed Presidential Decree on civil society (December 2010)
Ecuador: Modify proposed Communications Law (August 2010)
Ecuador agrees to keep Amazon Eco-Treasure free of oil drilling (August 2010)
Ecuador holds big drive to register Colombian refugees (March 2010)
The foregoing information was collected by the ICNL NGO Law Monitor partner in Ecuador.