NGO Law Monitor: Peru

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Last updated 19 March 2012

Introduction

NGOs in Peru have had an important role to play because of its history of military rule, democratic instability and corruption. Although NGOs existed in Peru previously, an NGO boom only began in the 1970s under the Velasco government. This expansion of the NGO sector was able to occur originally because of the supportive atmosphere of reform in the country. There was a second boom of NGOs in the 1980 with the re-emergence of a democratic regime, which had a heavy focus on grassroots issues. Because of the political sphere in which many of these organizations emerged, they were heavily committed to the idea of development that did not originate in a top-down approach. High levels of corruption, particularly under the Fujimori regime, coupled with a very politically-left NGO community, has led to tensions with the government, and a crack-down on NGO activities.

At a Glance

Organizational Forms	Associations	Foundations	NGOs
Registration Body	Public Registry	Public Registry and Supervisory Council on Foundations	Peruvian Agency for International Cooperation
Approximate Number	Unknown
Barriers to Entry	Lack of uniform registration criteria	N/A	N/A
Barriers to Activities	Excessive government control under International Cooperation Laws
Barriers to Speech and/or Advocacy	Government is hostile to unpopular groups
Barriers to International Contact	Excessive government control under International Cooperation Laws
Barriers to Resources	Excessive government control under International Cooperation Laws

Key Indicators

Population	29,248,943 (July 2011 est.)
Capital	Lima
Type of Government	Constitutional Republic
Life Expectancy at Birth	Male: 70.55 years Female: 74.48 years (2011 est.)
Literacy Rate	Male: 96.4% Female: 89.4% (2007 Census)
Religious Groups	Roman Catholic: 81.3%; Evangelical: 12.5%; other: 3.3%; unspecified or none: 2.9% (2007 census)
Ethnic Groups	Amerindian: 45%; Mestizo (mixed Amerindian and White): 37%; White: 15%; black, Japanese, Chinese, and other: 3%
GDP per capita	$9,200 (2010 est.)

Source: The World Factbook. Washington, DC: Central Intelligence Agency, 2011.

International Rankings

Ranking Body	Rank	Ranking Scale (best – worst possible)
UN Human Development Index	63	1 – 169
World Bank Rule of Law Index	30.2	100 – 0
World Bank Voice & Accountability Index	50.2	100 – 0
Transparency International	78	1 – 178
Freedom House: Freedom in the World	Status: Free Political Rights: 2 Civil Liberties: 3	Free/Partly Free/Not Free 1 – 7 1 – 7
Foreign Policy: Failed States Index	92	177 - 1

Legal Snapshot

International and Regional Human Rights Agreements

Key International Agreements	Ratification*	Year
International Covenant on Civil and Political Rights (ICCPR)	Yes	1978
Optional Protocol to ICCPR (ICCPR-OP1)	Yes	1980
International Covenant on Economic, Social, and Cultural Rights (ICESCR)	Yes	1978
Optional Protocol to ICESCR (OP-ICESCR)	No	--
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)	Yes	1971
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)	Yes	1982
Optional Protocol to the Convention on the Elimination of Discrimination Against Women	Yes	2001
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	2005
Convention on the Rights of Persons with Disabilities (CRPD)	Yes	2008
Regional Treaties
American Convention on Human Rights	Yes	1978
Additional Protocol to the Convention on Human Rights in the Area of Economic, Social, and Cultural Rights "Protocol of San Salvador"	Yes	1995

* Category includes ratification, accession, or succession to the treaty

Constitutional Framework

Article 2 ¶13 of the Constitution of Peru recognizes the right of every person to join and establish foundations and various forms of legally recognized non-profit organizations, without prior authorization in accordance with the law. In addition, the Constitution stipulates that these organizations cannot be dissolved by administrative decision.

Peru’s Constitution also recognizes, among other internationally recognized rights:

the right to equality before the law, no person should be discriminated against because of origin, race, sex, language, religion, opinion, economic status or any other (Article 2 ¶2);
freedom of conscience and religion, individually or collectively, no one may be persecuted for their ideas or beliefs, or opinion (Article 2 ¶3);
freedom of information, opinion, expression and dissemination of ideas through spoken or written word or image, by any media, without prior authorization or censorship or impediment (Article 2 ¶4);
the right to privacy, and the inviolability of one’s communications and documents (Article 2 ¶¶ 7 and 10);
freedom of contract (Article 62);
property rights (Articles 70-73); and
the right to participate, individually or collectively, in the political, economic, social and culture of the Nation (Article 2 ¶17).

National Laws and Regulations Affecting Sector

As a unitary State, Peru has a national legal framework that follows civil law (not the common law legal tradition). Civil Society Organizations (CSOs) are primarily regulated by the Civil Code.

Civil Code. Section I: Law of Persons, Section Two: Legal Persons. Articles 76 through 139.

There are additional national regulations that govern International Technical Cooperation organizations, which apply to non-governmental Organizations (NGOs) in Peru, as well as International Technical Cooperation Foreign Entities (ENIEX) established abroad.

The Law of Technical Cooperation (Legislative Decree Nº 719 and its Regulations) and the Law for the Creation of the Peruvian Agency for International Cooperation (Law Nº 27692 as modified by Law Nº 28925).

Other relevant laws include:

Income Tax Law.
General Sales Tax Law
Refund of General Sales Tax and Municipal Promotion Tax
Law on Facilitation of the Dispatch of Goods Donated from Overseas
Regulation on the Inapplicability of VAT/GST and Excise Tax to Donations

Pending NGO Legislative / Regulatory Initiatives

In July 2009, after violent clashes between civil society groups and the army occurred in the north of the country, Fujimori supporters in Congress, who on many issues ally with the current Garcia administration once more proposed legislation that, would again expand the powers of APCI. It remains unclear whether there is enough support to see the legislation passed in Congress, if and when it is presented to the full Congress for a vote. However, there is a widespread belief in government, that civil society must be more tightly supervised and controlled by the State.

Legal Analysis

Organizational Forms

The legal types of CSOs, or non-profit legal entities, regulated by the Civil Code in Peru are the association, the foundation, and the committee. The most common classification is the association, and the committee is the least used classification due to its specific and temporary duration.

According to the Civil Code, an association is legally defined as “an organization established by two people or legal entities or both, that through a common activity pursue a nonprofit objective,” and may define a public or social purpose. Thus, an association could be a beach club, or cultural group, or philanthropic entity.

A foundation, on the other hand, is defined in the Civil Code as a “non-profit organization established by the assignment of one or more legal or natural personalities to accomplish objectives that are of religious, cultural, welfare, or other social interest.” In addition, an initial contribution of money or property is a prerequisite to establishing a foundation. Since the purpose of a foundation must be social in nature, private interest groups seeking to obtain benefits for themselves are not allowed to form this legal entity. Foundations are established less often than associations because there are many drawbacks, including being subject to more state control and supervision.

A non-governmental organization or NGO is a not-for-profit organization receives a special designation as an NGO because it engages in “international technical cooperation” activities. However, there is no legal identification for NGOs, so they are considered de facto civil associations.

Public Benefit Status

As noted above, associations in Peru are free to pursue any lawful mutual or public benefit purpose. Foundations, on the other hand, must pursue religious, aid-based, or cultural objectives, or other objectives of social interest. The Civil Code does not define the term “social interest.”

There are very few benefits for CSOs:

Associations and Foundations do not have a blanket exemption from Income Tax payment. They must apply to the Peruvian Tax Agency (Superintendencia Nacional de Administración Tributaria-SUNAT) and register with the Register for Income Tax Exempt Entities. (Registro de Entidades Exoneradas del Impuesto a la Renta). In practice, this tax exemption is quite restrictive and difficult to obtain.

However, qualifying CSOs can get benefits from income tax in the following ways:

a.1 Immunity.- Foundations the following exclusive purposes are not subject to Income Tax: culture, advanced research, charity, social and medical assistance and social benefits for company employees (Article 18 Subsection “c” of the Income Tax Law).

a.2 Exoneration. - For associations and other types of foundations (not eligible for the above immunity) a temporary exoneration is established (which currently extends to December 31st, 2011), if they comply with the following requirements: (i) exclusive pursuit of the following purposes: charity; social assistance, education; cultural, science, art, literature, athletics, politics, union/trade-unions or housing; (ii) the qualifying activities are carried out within Peru; (iii) no distribution, directly or indirectly, among the associates or members; and (iv) the organization’s governing documents must state that, in the event of dissolution, assets must be directed to any of the purposes included in this article. Foreign CSOs-ENIEX are not eligible (Article 19, subsection b of the Income Tax Law).

For associations and foundations that do not qualify for either immunity or exoneration of Income Tax, are taxed at a rate of 30% of their net income, which is the rate for corporations.

Barriers to Entry

The Civil Code offers very little regulation associations. As a result, there is a tremendous amount of discretion given to jurisdictional Public Registries. In fact, criteria for registration vary between each Registrar. To address this problem mandatory precedents adopted by the Full Court of Registration are published in the Official Diary “El Peruano”. However, not every registration issue has been nationalized.

Barriers to Operational Activity

The most important legal barrier that CSOs have recently faced is the excessive control and execution of the resources administered by APCI. Under this legal framework, NGOs, or any other group subject to the supervision and control of APCI must, among other things, provide extensive reporting about planned activities, source of funding and other financial details.

Barriers to Speech / Advocacy

Although Peruvian law does not prohibit CSOs from engaging in activities linked to politics or lobbying, or other activities that might influence public policy, there has been a continuous effort by state and non-state actors to silence unpopular groups.

Former president Fujimori's supporters in Congress, as well as some top government officials, have aggressively sought to discredit CSOs that advocate for human rights accountability. [1]

[1] See Human Rights Watch, World Report: Peru.

Barriers to International Contact

There are no legal restrictions on international contact. However, see sections on barriers to resources below.

Barriers to Resources

As previously mentioned, the most debated issue in Peru between civil society and government is about the scope of supervision and control by the state (through APCI) of domestic and foreign organizations that finance and / or implement projects using international technical cooperation resources.

Before the issuance of a 2006 law modifying the law for the Creation of APCI, Law No. 28925, it was understood that registration with APCI was mandatory only for organizations that engaged in international technical cooperation that was channeled through state agencies, in exchange for access to certain tax benefits arising from the scheme. Law No. 28925 expanded APCI’s power to those organizations that manage international cooperation, without state involvement, but enjoy any privilege, benefit or tax exemption, or use in some form state resources, or where the original cooperating entity is from a country that is a party to a bilateral or multilateral agreement with the State of Peru. In addition, Law No. 28925 provides that registration with APCI "is mandatory to implement international technical cooperation, regardless of the legal nature of the cooperating source."

Law No. 28925 drew wide criticism domestically and internationally. Critics charged that the law violated basic fundamental rights: namely freedom of association, contracts, and privacy, equal to law, among others. As a result, two groups, one comprised of civil society representatives, and one comprised of legislators lodged two separate constitutional lawsuits in 2007. The combined lawsuits were settled by the Constitutional Court of Peru where it struck down several provisions of the law, but upheld the majority. The most important part of the ruling for civil society was the Court’s finding that registration with APCI is not obligatory in order for an organization to carry out international technical cooperation. However, the Court also explained that an organization may opt out of registration by not excepting any state benefits or using any state resources. In practice, opting out may not be that simple where nearly every organization utilizes state resources in some manner. The law fails to define this important term, and as a result, provides the government with infinite discretion to apply its control over countless organizations.

Reports

UN Universal Periodic Review Reports	UPR Peru National report Compilation of UN information Summary of stakeholders' information Report of the Working Group Decision on the Outcome Draft Report on the eighth sesion of the Human Rights Council
Reports of UN Special Rapporteurs	Peru
USIG (United States International Grantmaking) Country Notes	USIG: Peru
U.S. State Department	2010 Country Reports on Human Rights Practices: Peru 2009 Advancing Freedom and Democracy Reports: Peru
Failed States Index Reports	Foreign Policy: Failed States Index 2010
IMF Country Reports	Peru and the IMF
International Commission of Jurists	Not available
International Center for Not-for-Profit Law Online Library	Peru

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

Peru Challenges the power of Inter-American Commission on Human Rights (December 2011)
The Peruvian government is seeking a review of the powers of the Inter-American Commission on Human Rights (IACHR) by the Organization of American States. It is seeking the support of Brazil, Colombia, Ecuador and Venezuela. The move is thought to be a reaction against a recent lawsuit brought against Peru by the IACHR. (Read more in English)

Peru Elections: Ollanta Humala and Keiko Fujimori to the second round (April 2011)
Peru will face a polarized second round during the Presidential Elections to be held in June between the left-wing Mr Humala and conservative Keiko Fujimori. (Read more)

Government declares mining project null in Islay after two weeks of protests (April 2011)
After two weeks of protests between civil society, indigenous leaders and the police, that left three persons dead and 44 injured, the Peruvian Government declared inadmissible the Environmental Impact Study for the Southern Cooper mining project Tía María. (Read more in Spanish)

About 2.000 workers marched in Lima against Emergency Decrees (February 2011)
The General Workers Confederation in Peru (CGTP) and other unions called for a rally to demand the derogation of two emergency decrees that according to the workers, if implemented, would privatize Estate’s property. (Read more in Spanish)

Statement by AIDESEP on the rights and consultation of indigenous peoples (November 2010)
In a public statement directed at the Peruvian State, the World Bank, UNDP and UNFCCC, the Inter-ethnic Association for the Development of the Peruvian Forest (AIDESEP) denounces plans of the government and its political and corporate allies to grant mining, logging and tourism concessions, as well as approve REDD and environmental services initiatives after blocking the Indigenous Consultation Law. They insist: without territory, rights and consultation for indigenous peoples, such concessions must not move forward. (Read more)

USAID to begin second phase of poverty-reduction project in Peru (October 2010)
The Peru Poverty Reduction and Alleviation Project will begin its second phase with an investment of $20 million. USAID will provide $15 million and the private sector will invest $5 million to spur sustainable employment opportunities and open economic corridors in Peru. (Read more)

Peru: Amend Decrees for Prosecuting Military and Police Abuses (September 2010)
Peru should amend recently adopted presidential decrees that regulate the prosecution and trials of military and police personnel accused of committing human rights violations. (Read more)

Police Repress Protest (August 2010)
Peruvian police shot rubber bullets at protesters in the town of Kitena in La Convencion Provence. A 14-year old boy was killed and 18 others were injured by rubber bullets. The demonstrators were protesting plans by the Camisea LNG consortium to export natural gas. Other protests by grassroots organizations against Camisea LNG have included general strikes and roadblocks. (Read more)

Fujimori 25-year sentence upheld by Peru Supreme Court (January 2010)
Peru's Supreme Court has upheld a 25-year jail sentence imposed on former President Alberto Fujimori. The term was handed down last April for ordering the security forces to carry out killings and kidnappings. (Read more)

Peru army and navy continue with war memorial plans (December 2009)
Retired military and their supporters are going ahead with plans to build a monument to the ‘Defenders of Democracy’, in honor of those who fought against Sendero Luminoso and the MRTA rebels during the 20 years of internal war (1980-2000). (Read more)

Human Rights Watch

Peru: Investigate threats against rights defender (September 2009)
Peruvian law enforcement authorities should take immediate action to investigate threats against the former president of the Truth and Reconciliation Commission, Dr. Salomón Lerner Febres, and ensure his safety. (Read more)

Peru: Radio closure could undermine press freedom (June 2009)
The Peruvian government’s decision this month to revoke the broadcast license of a local radio station could have a chilling effect on community broadcasting in Peru. The timing and circumstances of the revocation suggest that it may have been an act of censorship, or punishment, in response to coverage of anti-government protests on June 5, 2009. (Read more)

The foregoing information was collected by ICNL's NGO Law Monitor partner in Peru.