Source: CIA World Factbook

International and Regional Human Rights Agreements

* 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:

• The Constitution of the Islamic Republic of Afghanistan, Official Gazette no. 818/2004
• Law on Associations, Official Gazette no. 1114/2013 (amended in December 2017)
• Law on Non-Governmental Organizations, Official Gazette no. 857/2005  
• Regulation on Procedure of Establishment and Registration of Associations, Official Gazette no. 1138/2014
• Income Tax Law, Official Gazette no. 976/2009
• Customs Law, Official Gazette no. 847/2005
• Labor Law, Official Gazette no. 966/2008
• Civil Code of 1977, Madani Qanun Decree no. 1458/1977

Pending NGO Legislative / Regulatory Initiatives

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

1. On September 15, 2019, the Ministry of Economy held a consultation meeting in Kabul in which representatives of 500 NGOs were invited to comment and give feedback on 8 guidelines developed by the Ministry. The guidelines are: (1) Guidelines for Registration and Dissolution of NGOs; (2) Guidelines for Reporting, Accountability and Cash Penalties of NGOs; (3) Guidelines for Monitoring & Evaluation of NGOs; (4) Guidelines for Facilities to NGOs; (5) Guidelines for Monitoring of Banking Affairs of NGOs; (6) Guidelines of Audit; (7) Guidelines for Coordination of Projects with Line Ministries and Directorates; and (8) Guidelines for Coordination of NGOs Activities at the Provincial Level. As a follow-up step, the Ministry of Economy will review the comments and feedback received from the NGOs and prepare a final draft to send to the Council of Ministers for approval in 2020.
2. On May 31, 2016, the Minister of Economy established an NGO Law Amendment Committee to amend the Law on Non-governmental Organizations (NGOs). The Committee included government representatives (the NGO Department of the Ministry of Economy, the Ministry of Labor, and the Ministry of Finance); NGO coordination bodies (the Afghan Coordination Body for Afghan Relief and Development (ACBAR), the Afghan Women’s Network (AWN), and the Afghan NGOs’ Coordination Bureau (ANCB)); and ICNL. The working group of the Committee met between June and October 2016 to review and propose amendments to the Law on NGOs, which were finalized in late October 2016. To make sure all Committee members’ recommendations were incorporated into the draft NGO Law, the Committee met again in February 2017. The proposed amendments were sent to the Ministry of Justice in March 2017. The most recent update is that in May 2019, the NGO Department of the Ministry of Economy created a working group to amend the Law on NGOs. The group was comprised of representatives from coordination bodies, Civil Society Joint Working Group (CS-JWG), and the NGO Department. The group finalized the amendments and submitted them to the Ministry of Economy in May 2019. The amendments werethen sent to the Ministry of Justice for review in September 2019. NGOs are now working to make sure that all the new amendments will improve the legal framework for NGOs.
3. The Ministry of Justice is supporting the development of a draft Law on Foundations, which has been prepared with input from NGOs through a task force on private giving. The Ministry of Justice had agreed that there was a gap in the Afghan legal framework regarding foundations because neither the NGO Law nor Law on Associations had defined foundations. The new amendments to the Law on Associations that were endorsed in December 2017, however, defined foundations as “membership entities,” which still presented a problem , because there was still a need for a law to regulate the affairs of “non-membership organizations.” Therefore, the draft Law on Foundations went under the review of the Ministry of Justice, which agreed to review the draft and support the law. The draft Law remains under the review of the Ministry of Justice as of November 2019. As a temporary solution, the Ministry of Justice amended the Law on Associations in 2017 and considered foundations as associations and started registering them under that law.
4. A civil society-supported task force on private giving has recommended three amendments to the Income Tax Law that will regulate the tax- exempt status of NGOs in Afghanistan. The amendments include (1) the replacement of the previous term “charity” with the new term “not-for-profit” for NGOs to receive tax exemption because NGOs are “not-for-profit”; (2) the exemption of economic activities of NGOs from any kind of taxes; and (3) the removal of associations registered with the Ministry of Justice from the Income Tax Law because, in contrast with NGOs, they are not engaged in economic activities or large donor projects. Although the amendments were expected to be approved by parliament and endorsed by the president by the end of 2019, the amendments were still in Parliament as of November 2019.
5. The Ministry of Labor has been supporting the development of a draft Regulation on Volunteerism, which was prepared with input from NGOs. The draft Regulation was reviewed and finally approved by the Ministry of Labor, Social Affairs, and Martyrs and Disabled (MoLSAMD) in 2017 and sent to the Ministry of Justice for review. As of November 2019, the regulation is under Ministry of Justice review and it will be sent to the Council of Ministers for approval in 2020.

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.

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) addressed 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))

In December 2017, the Ministry of Justice published the amendments to the Law on Associations in the Official Gazette. The amendments addressed issues related to the establishment, registration, monitoring and evaluation, reporting and sources of income of associations. The amendments also provided that both real persons and corporate entities can establish associations and defined an association as a social non-political and not-for-profit organization of real persons and/or corporate entities. In addition, several categories of associations were introduced in Article 2.1:
1. A “community” is a voluntary gathering of real persons and/or corporate entities, established to ensure material and spiritual goals including scientific, literary and vocational goals.
2. A “union” is a voluntary union of corporate entities organized to ensure common and lawful professional, corporate and vocational goals.
3. A “council” is a voluntary union of real persons established to ensure common ethnic, corporate and regional goals.
4. An “assembly” is a gathering of real persons and/or corporate entities for a common and determined goal.
5. An “organization” is a voluntary gathering of real persons established to pursue lawful professional, scientific, literature, vocational and/or charity purposes.
6. A “foundation” is a voluntary gathering of real persons established to pursue scholarly, literary, technical and charity-related purposes.
7. An “entity” is an association established in accordance with the law to pursue social activities. This is a catch-all category that addresses lawful registration of all types of associations not indicated in the law.
8. A “federation” is a voluntary alliance of associations that are established under the law on associations.
9. A “confederation” is an alliance of federations established to pursue joint purposes. (Article 2)

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, and at least one founder must a residence and exact address in Afghanistan. (Article 11(1)) To register, NGOs must apply to the Ministry of Economy. (Article 4) The registration process, however, is a two-tiered, overly bureaucratic process, with both the Technical Commission and the High Evaluation Commission required to review applications. The High Evaluation Commission is composed of representatives from no fewer than 5 government ministries.

Associations, by contrast, must seek registration with the Ministry of Justice (MoJ). The Law on Associations does not specify the required minimum number of founders for an association, but the Regulation on Procedure of Establishment and Registration of Associations requires at least 10 founding members to establish an association. (Article 6.2 of Regulation on Procedure of Establishment and Registration of Associations) 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 (about 150 USD). (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.”

Under the Law on Associations, organizations calling themselves “foundations” were initially not able to register because the law only allows associations to register with the MoJ. However, association representatives, including members of the advocacy group on the Law on Associations, recommended to the MoJ to register foundations temporarily until the Law on Foundations enters into force. The MoJ sent an official letter to the Supreme Court of Afghanistan in late 2014 to ask for an advisory interpretation of the current Law on Associations. The Supreme Court interpreted the Law on Associations to allow for the registration of so-called “foundations,” provided that the foundation have at least 10 founding members. In effect, therefore, foundations that meet the definition of association (as a membership organization) are able to seek registration under the Law on Associations. Subsequently, the 2017 amendments to the Law on Associations expressly embraced foundations by defining them as a type of association: a “foundation” is a voluntary gathering of real persons in order to pursue scholarly, literary, technical and charity-related purposes.

The December 2017 amendments to the Law on Associations expressly allowed for associations with common and similar objectives and activities to join and merge together by forming federations or confederations. (Article 9) However, the amendments also introduced a new restriction on associations established for professional/scholarly purposes: the founders of associations, unions, councils, assemblies, foundations, organizations and entities that are established for professional/scholarly purposes must have bachelor degrees. Otherwise, they will not be registered under the law. (Article 7) For example, an association of surgical doctors can only be formed by founders with medical degrees.

Barriers to Operational Activity

The Law on NGOs includes barriers to NGOs’ operational activity, through direct prohibition as well as invasive supervisory oversight.

First, NGOs are prohibited from participating in construction projects and contracts, unless they receive special permission from 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 MoE for verification and registration. The real impact of this legal barrier depends of course upon implementation, and currently compliance is low. In addition, NGOs are required to submit semi-annual reports, with a separate reporting form required for each project. The MoE has repeatedly terminated NGOs for failing to submit reports. Article 35(1) provides the grounds for dissolution, which include “Where the organization does not provide the MoE with its annual report within one year of the end of the fiscal year.”  In January 2012, for example, Minister of Economy Abdul Hadi Arghandiwal announced that 600 Afghan and 195 foreign NGOs were closed because they failed to send biannual reports to the MoE 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.” More recently, in March 2015, the MoE terminated 119 NGOs, including 113 local and 6 international NGOs.

In addition, on March 5, 2019, the President endorsed more amendments to Law on Associations, which are very restrictive. The new amendments force associations to keep their offices open during official hours and assign a person to be present in the office. Associations also have to submit a report on their performance, revenue and expenditure, and moveable and immovable properties three months after their fiscal year to the MoJ. The report from tribal councils also has to be verified by the people of the locale and aldermen and has to be approved by “relevant authorities”, which is vague. The name of an association will be removed from the registration list and its registration license revoked if: a) the association fails to submit its report within three months after the end of the fiscal year; b) it is determined during monitoring and evaluation by MoJ teams that the performance of an association contradicts provisions of the law and its approved statute by MoJ; or c) its office does not have an specific address (Article 18). To terminate an association or revoke its registration license occurs once the Department of Coordination, Assessment, and Registration of Associations and Political Parties suggests the termination of the association to Minister of Justice and the Minister agrees to terminate it. Lastly, associations with extensive and inclusive goals have to indicate a geographical area of operations in their statute and charity associations must have two million AFN (about 25,000 USD) at their bank account prior to having their registration licensed.

Overall, as of October 2019, the Ministry of Economy had terminated 3,051 local NGOs since 2005, which includes the 284 local NGOs terminated in 2019 due to failure in reporting. Also as of October 2019, the Ministry of Economy had terminated 188 INGOs since 2005, which includes 18 INGOs terminated in 2019 due to failure in reporting. The Ministry of Justice has also terminated 1,600 associations since 2013.

Article 13(3) of the Law on Associations limits an association’s registration certificate to three years, at which point it must be extended. Under Article 9.3 of an affiliated regulation, an association must pay another 5,000 AFG fee (about 75 USD) for the renewed registration certificate. This requirement is a significant burden on an association’s continuing operations. The Law on Associations also gives the Ministry of Justice (MoJ) the authority to supervise the activities of associations and the conformity of their activities with their governing statute and enacted laws. The December 2017 amendments, however, provide that if the MoJ observes that the association’s conduct is not in conformity with its statute and enacted laws, or that its office does not have a specific location, then the Department of Coordination, Assessment and Registration of Social Organizations and Political Parties of MoJ must remove the name of association from the registration list and revoke its registration license. (Article 23)

Barriers to Speech / Advocacy

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

There are, however, restrictions that prohibit 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 does not define “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

The Law on Associations, as enacted in 2013, refers to permissible funding sources and specifies that associations can seek and secure the financial and technical assistance of foreign organizations and associations, provided that they inform the Ministry of Justice.

Domestic Funding

NGOs are permitted to conduct economic activities “to reach the statutory not-for-profit goals of the organization” so long as 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 associations from carrying out 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.

The 2017 amendments to the Law on Associations restrict government ministries and other government entities from transferring movable and immovable government properties to associations. In practice, this restriction will prevent donations of all movable and immovable properties to associations. (This restriction does not appear intended to impede the provision of government grants or contracts to associations.) In addition, the amendments require that the movable and immovable properties of an association must be registered under the associational name in order to guard against private inurement. (Article 16)

Barriers to Assembly

The Afghan Constitution protects the freedom of assembly. The citizens of Afghanistan have the right to participate in unarmed demonstrations for legitimate peaceful purposes in accordance with the law. (Afghan Constitution 2004, Article 36) The Afghan President endorsed a new law, The Law on Gatherings, Strikes and Demonstrations, on March 13, 2003 (Official Gazette 805). The Law identifies three types of assemblies:

– A “gathering” is a regular and public assembly of more than 30 persons in a static mode at a public place to attract public opinion, in order to support or oppose specific goals, in which people can participate voluntarily. (Article 3.1)
– A “strike” is the refusal to perform work or carry out legal obligations and duties, in order to achieve specific goals. (Article 3.2)
– A “demonstration” is the regular and public gathering in which people demonstrate their specific goals through a procession on designated routes.  (Article 3.3)
Notably, however, only Afghan citizens have the right to participate in these assemblies. (Article 16)

Advance Notification
According to the Law on Gathering, Strikes and Demonstrations, the organizers of a gathering, strike, or demonstration must inform the police in writing 24 hours ahead of the event. (Article 7.1)

To “inform” the local police does not imply receiving approval of an assembly. In practice, the organizers inform the police in writing about the assembly. If there is any kind of security concern, the police will immediately or subsequently (within 24 hours ahead of the event) tell the organizers not to hold the assembly. (Article 7.1)

Dispersal of Assemblies
The police may disperse the gatherings, strikes and demonstrations through (1) issuance of warnings; (2) surrounding participants and demonstrators and moving them to a safe place; (3) water spray; and (4) technical obstacles. (Article 9) However there are no guidelines for the police on these matters.

Under Article 10 of the Law on Gathering, Strikes and Demonstrations, if the local police cannot terminate and disperse gatherings and demonstrations through the aforementioned means, they will take action in accordance with the Police Law. Article 22 of the Police Law allows the police to announce the decision to use weapons or explosives against participants through a loud speaker and the firing of three gunshots in the air. Weapons and explosives shall not be used if bystanders may be injured.

Time, Place and Manner Restrictions
The participants, organizers, and leaders of gatherings, demonstrations, and strikes may not broadcast baseless propaganda that creates terror among people. (Article 13)
Gatherings, strikes, and demonstrations may not be organized between sunset and sunrise or 48 hours prior to the presidential and parliamentarian elections and Great Assembly elections and referenda. (Article 8.4-5)

Afghan citizens may organize demonstrations and gatherings to promote the political, economic and social goals of foreign countries and their citizens, unless they contradict the national interest and national unity of Afghanistan. (Article 15)

Excessive Force
In response to a peaceful assembly, the police do not usually use excessive force. But in response to violent protests, the police have killed and wounded protesters. On November 12, 2002, for example, Afghan police fired on student protesters who were angered about a lack of food and electricity in their dormitory; the police killed at least four students and wounded 30 others. On May 18, 2011, 12 people were also killed and 80 injured after protests over a NATO-led raid in the northern Afghan city of Taloqan. On June 21, 2013 during a demonstration in the Behsood district of Maidan Wardak Province, protesters began storming the police headquarters. Police opened fire, resulting in injury to six protesters. On April 22, 2015 police dispersal of a youth unemployment demonstration before the Afghan parliament resulted in some minor injuries to the protesters.

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

Participation of Afghan Women in Peace Efforts the Focus of ‘Open Days’ Events (October 2019)
With a special focus in 2019 on the meaningful participation of women in peace efforts, this year’s nationwide ‘Global Open Days’ events commenced in Afghanistan with a UN-backed symposium in Kabul. The Kabul event is the first in a series of meetings scheduled to take place across the country in the coming weeks, bringing together hundreds of women with representatives from government offices, religious institutions, academia and civil society.

Officials Attend Sustainable Development Goals Workshop in Jalalabad (May 2018)
Over 30 government officials from the eastern Afghan provinces of Kunar, Laghman, Nuristan and Nangarhar attended a two-day multi-stakeholder Sustainable Development Goals (SDGs) on Agriculture and Natural Resources Management workshop from 14 to 15 May 2018 in Jalalabad, the provincial capital of Nangarhar province. Officials from the Food and Agriculture Organization of the United Nations (FAO), the World Food Program (WFP) and civil society also participated in the workshop.

List of NGOs Dissolved in Afghanistan (April 2016)
More than 113 national NGOs and 6 international NGOs were dissolved in March 2016, according to government reports. Most of the organizations were dissolved due to lack of reporting to the Ministry of Economy. However, some international NGOs also voluntarily terminated operations when their projects ended, while some others reportedly requested to be dissolved.

Threats Build Against Journalists In Afghanistan (January 2015)
A new report by Human Rights Watch detailed the dangers Afghan journalists face from the Taliban. NPR’s Rachel Martin talked to Najib Sharifi about the government’s failure to protect journalists. 2014 was the most violent year on record for Afghan journalists according to one media advocacy group.

Afghanistan gets first non-violence 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.

Archive

Top UN envoy praises role of government, civil society and election commission ahead of 2014 presidential elections (October 2012)

Can civil society save Afghanistan? (August 2012)

NGO’s funding axed after critical Afghan report (July 2012)

Aid alone cannot solve Afghanistan’s problems (July 2012)

As foreign aid dries up, Afghan NGOs fight to survive (July 2012)

EU urges Afghan government to hold credible elections, guarantee human rights (May 2012)

NGOs remain committed to Afghanistan for the long-haul (April 2012)

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.