International Journal
of Not-for-Profit Law
Volume 16, Number 2
December 2014
A Publication of
The International Center for Not-for-Profit Law
www.icnl.org
Publisher
International Center for Not-for-Profit Law
1126 16th St., NW, Suite 400
Washington, DC 20036
(202) 452-8600
www.icnl.org
Editor: Stephen Bates
Senior Editor: Douglas Rutzen
Contributing Editor: Stephan Klingelhofer
The International Journal of Not-for-Profit Law, ISSN 1556-5157, www.ijnl.org, is a forum for the discussion of
civil society, philanthropy, nongovernmental organizations, and the law, published by the International Center for
Not-for-Profit Law, www.icnl.org. Based in Washington, D.C., the International Center for Not-for-Profit Law
promotes an enabling environment for civil society and public participation around the world. Views expressed here
do not necessarily reflect those of the International Center for Not-for-Profit Law, its affiliates, or its funders.
The International Journal of Not-for-Profit Law is featured in the EBSCO research database.
Except where otherwise noted, all contents copyright 2014 by the International Center for Not-for-Profit Law.
International Journal of Not-for-Profit Law
Volume 16, Number 2
December 2014
Letter from the Editor ………………………………….………….………………………….. 4
Civil Society in Africa
Toward an Autonomous Civil Society:
Rethinking State-Civil Society Relations in Zambia
Matildah Kaliba ………………………………………………………………………………………………….. 5
Analysis of the Legal Framework for Civil Society in Burundi:
Case of the December 2013 Law on Public Demonstrations and Assemblies
Audace Gatavu ………………………………………………………………………………………………….. 16
Politics, Power, and Accountability:
Addressing the Elephant in the Room in the Quest
for Civil Society Organizations’ Right to Freedom of Association
Dr. Maria Nassali ………………………………………………………………………………………………. 34
The Roles of Civil Society Organizations
in the Extractive Industries Transparency Initiative in Nigeria
Eghosa Osa Ekhator …………………………………………………………………………………………… 47
The Impact of Charities and Societies Proclamation No. 621/2009
on Addressing HIV/AIDS Issues in Ethiopia
Daniel Messele Balcha ……………………………………………………………………………………….. 53
Articles
Framework of NGO Labor Law in Argentina
Ignacio Uresandi ……………………………………………………………………………………………….. 63
Civil Society Organizations Respond to New Regulation in Ecuador:
An Interview with Orazio Bellettini Cedeño
Susan Appe ………………………………………………………………………………………………………. 66
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 4
Letter from the Editor
In this issue, the International Journal of Not-for-Profit Law devotes a special section to
the challenges facing civil society in Africa. Matildah Kaliba, Lecturer and Researcher at the
University of Zambia’s Department of Developmental Studies, examines the relationship
between the government and civil society organizations (CSOs) in Zambia. Audace Gatavu, an
Attorney at Nibitegeka & Associates in Bujumbura, Burundi, analyzes Burundian law on
assemblies and public demonstrations: its origins, its requirements, and its potential reform. Dr.
Maria Nassali, a Lecturer at the School of Law at Uganda’s Makerere University, provides an
overview of the regulatory framework governing CSOs in Uganda. Eghosa Osa Ekhator, a
Ph.D. candidate at the University of Hull in England, explains the role of CSOs in the Extractive
Industries Transparency Initiative in Nigeria. Daniel Messele Balcha, a Ph.D. student at Charles
University in Prague, assesses the impact of CSO regulations on organizations addressing
HIV/AIDS issues in Ethiopia.
We feature two other articles as well. Ignacio Uresandi, Law Professor and Researcher
at Universidad Argentina de la Empresa Investigation Institute in Buenos Aires, highlights
provisions of labor law that diminish the effectiveness of CSOs in Argentina. Finally, a
prominent social entrepreneur and policy expert discusses regulation of CSOs in Ecuador, in an
interview with Susan Appe, assistant professor of Public Administration at the College of
Community and Public Affairs, Binghamton University, part of the State University of New
York system.
We thank Emerson Sykes, legal associate for Africa programs at the International Center
for Not-for-Profit Law, for his help assembling the special section on Africa. We also gratefully
acknowledge USAID for supporting the research behind two articles in this issue. As always, we
thank our authors for sharing their expertise, too. And we invite readers to share their own
expertise: We welcome manuscripts addressing legal aspects of civil society, philanthropy, and
not-for-profit organizations around the world.
Stephen Bates
Editor
International Journal of Not-for-Profit Law
sbates@icnl.org
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 5
Civil Society in Africa
TOWARD AN AUTONOMOUS CIVIL SOCIETY:
RETHINKING STATE-CIVIL SOCIETY RELATIONS IN ZAMBIA
MATILDAH KALIBA1
It has been said that the postcolonial state in much of Africa has failed to
emancipate its people from mass suffering while the markets have not ensured that
economic benefits trickle down to the poor. Due to the limitation of these two actors, civil
society has become a sine-qua-non to development by mediating the failures of the state
and the market. Ironically, though, the effectiveness of civil society in much of Africa is
dependent on its relations with the state.
This article looks at state-civil society relations in Zambia. While there is a
plethora of issues, the article analyzes the relations using a legal lens to understand the
environment within which civil society operates as well as the other cultural and political
issues that impede civil society organizations (CSOs) from being independent and
effective in Zambia. The study shows that the current relations between the two
development actors hamper the effectiveness of CSOs. As such, civil society in Zambia
lacks a sustained engagement with the government; instead it takes a reactionary
approach to issues.
The policy goal of this study is that the government, civil society organizations
and other stakeholders will take action to improve state-civil society relations on the
basis of the findings and recommendations. One way would be to reform the legislative
framework for civil society and thus provide a basis for enhancing people’s participation
in decision-making at all levels.
Introduction
Zambia has been making strides to develop in order to improve the living standards of its
people and lift the poor out of poverty. The government has endeavored to improve the basic
conditions of living through various infrastructure and social service delivery projects. However,
development in its multidimensional sense goes beyond physical infrastructure and the delivery

1 Matildah Kaliba is a Lecturer and Researcher at the University of Zambia, Department of Development
Studies. This article came out of a study which was made possible through the support of USAID and ICNL under
the LEEP program, in which the author was a research Fellow.
This study is made possible by the generous support of the American people through the United States
Agency for International Development (USAID). The contents are the responsibility of the author and do not
necessarily reflect the views of USAID or the United States Government.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 6
of social services to include the opening up of society to plurality of views in order to enhance
development outcomes (Mutesa, 2010). At present, the vicious cycle of poverty threatens
citizens’ participation, leading to unequal development and distribution of wealth and thereby
reinforcing a lack of platforms to facilitate participation. This paves the way for the emergence
of authoritarian populists who threaten to reverse the strides made in the country’s young
democracy.
This situation shows the need for an effective civil society to play a complementary role
to the state in the development process. However, it remains to be seen whether the nature of
interaction between the state and civil society promotes the growth of a vibrant civil society and
enhances development.
The first section of the article provides a brief overview of the concept of civil society
and the importance of this sector in development. It then gives an analysis of current state-civil
society relations, including a discussion of the NGO Act and how it compares to international
instruments on freedom of expression, association, and assembly, as well as international
principles that govern CSOs. Next, the article discusses the cultural and political factors that
shape state-civil society relations and the challenges that hinder the robust participation of CSOs.
This is followed by action points for civil society to reform the current legal framework. The
final section offers recommendations and identifies new directions for research and analysis.
The Concept of Civil Society
To begin with, it is imperative to understand that civil society is a highly contested
concept that is open to a myriad of definitions. Some scholars define it in terms of values and
norms, as a collective noun, a space for action, and an antidote to the state. Despite these
divergences, a common thread in the definitions is that civil society constitutes a dimension of
society different from and sometimes antagonistic to the state. Most definitions also recognize
the voluntary nature of civil society and its importance as a forum for independent public
expression. Bratton (1994: 2) perceives the concept of civil society as a theoretical concept rather
than an empirical one, in the sense that it is a “synthetic conceptual construct” that is not
necessarily embodied in a single, identifiable structure. However, he distinguishes civil society
from the family, the state, the market, and the political society. The distinction from political
society implies that civil society does not include groups interested in acquiring political power,
such as political parties. In other words, it is seen as presenting a critical path toward Aristotle’s
“good society” aimed at thwarting the hegemonic advances of the state from a Habermas point of
view or thwarting unfettered market forces from Polanyi’s perspective (Mitlin et al., 2007). The
two views represent the theoretical or ideological considerations of civil society within
development studies which lean toward either the post-Marxist approach or the neo-liberal
school of thought.
At a conceptual level, civil society is said to be a historically bound concept that varies
from one society to another. As used in development circles, civil society encompasses a larger
population beyond relief NGOs, including groups such as social movement agents, human rights
organizations and advocacy groups (Van Rooy, 2008).
Civil society has been referred to as “our last best hope” and a “key to good governance”
by some scholars.2
It has a unique role of expanding and promoting civic space by bringing

2
See Michael Edwards’s keynote address at his book launch of Civil Society (London: Polity).
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 7
citizens into the political sphere and mobilizing a range of popular voices to address the
government on issues of interest. However, this role can be achieved only when civil society is
given the space to act. State-civil society relations are central in defining the role CSOs can play
in national development, because it is governments that must give civil society the space and
autonomy to organize through the law (Desai, 2008).
State-Civil Society Relations in Zambia
Despite the general stability associated with Zambia, the space for civil society has been
shrinking. As in much of Africa, there has been a backlash against civil society and democracy
as a result of the postcolonial state’s retention of excessive power, which in some cases has been
used to silence opposing voices (Elone, 2009). The state has been known to use underhanded
methods to reconquer the political arena and criminalize dissent, as if control of a country’s
government was a birthright for the ruling elites.3
While a wave of democracy has swept Zambia over the years (evidenced by the smooth
transition of power through multiparty elections), the nature of this democracy still does not
allow for the emergence of a vibrant civil society (Mutesa, 2009). CSOs remain sidelined and
undermined. They do not enjoy the freedom and space to act freely and independently. It has
been observed through history that Zambian CSOs have had to constantly negotiate for civic
space whenever there has been a change in government4
(the presidency, to be precise). In this
view, Diamond (1996) distinguishes between electoral democracy and liberal democracy. The
former is concerned with electoral competition and calls for minimal levels of civic freedom,
while the latter provides for a wide range of political and civic pluralism as well as individual
and group freedoms. Political freedom of speech, free and independent media, and freedom of
association are clearly being undermined in Zambia through the laws. This then casts Zambia’s
democracy within the “electoral democracy” tradition. Ironically, it takes an independent and
effective civil society to transition the country’s democracy from its current “electoral” status
into a liberal democracy.
According to some CSOs interviewed, the relationship between the Zambian government
and civil society organizations is laden “with suspicion, hostility and conflict.”5
The government
views CSOs involved in service provision as partners, whereas it finds those involved in
advocacy and governance work to be unsettling and somewhat provocative. In like manner,
CSOs involved in service provision get positive public media coverage, while the CSOs dealing
with governance issues that may be critical of the government are rarely covered by the state
media.6
The suspicious relationship between the two actors could be attributed to the fact that
most CSOs are tied to their funders ideologically and financially, which poses a threat of external
influence on state operations (Mweshi, 2009). As such, these groups are considered to be in a
hurry to access political power while advancing foreign interests rather than the interest of the
societies they purport to serve. It can also be argued that since the country exhibits electoral

3
See “Public Sphere Under Threat in Zambia as Press Freedom Violations Mount,” Freedom House, June
2, 2014, https://www.ifex.org/zambia/2014/06/02/public_sphere/.
4
See historical analysis of civil society in Mutesa (2009).
5 Transcribed verbatim from respondent.
6
See CSO sustainability index, USAID.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 8
democracy tendencies, the state lacks a strong sense of legitimacy and is therefore threatened by
civic organizations. Liberal democracy governments welcome pluralistic views from different
advocacy groups in society as these are seen to enhance their democratic societies. Nonetheless,
the state has a vital role of shaping the relations between the two actors and devising effective
rules of engagement so that they work as partners and not as adversaries.
State-Civil Society Relations Through the Legal Framework Lens
State-civil society relations in Zambia can be observed through the laws that the
government makes to govern civil society and generally through the interactions of the two
parties on a daily basis. The framework of laws and regulations governing the formation and
operation of civic organizations often indicates whether the state and civil society have a positive
relationship. An ideal framework is one that is fully enabling while encouraging some discipline.
Governments around the world have justified the adoption of restrictive laws against civil society
as necessary to defend national sovereignty against foreign influences in domestic affairs, citing
cases were CSOs have been used as conduits of foreign influences; and even to protect citizens
against terrorism and unscrupulous individuals masquerading as NGO leaders. However, these
justifications should not undermine the fundamental human rights enshrined in national and
international instruments (Clark, 2008).
In the case of Zambia, the legal framework governing the operations of CSOs is the
controversial7 NGO Act of 2009. According to the ministry in charge of NGO registration, the
Act came about to address the multiplicity of legislation for NGOs. Previously, five distinct
pieces of legislation dealt with registration, organization, and regulations of NGO activities: the
Companies Act (Cap. 388); the Lands and Deeds Registry Act (Cap. 185); the Trustee Act, 1898
of the United Kingdom; the Societies Act (Cap. 119); and the Adoptions Act (Cap. 54).
To put this discussion into context, it is important to understand that the NGO Act was
first presented as a draft bill in 2007, when the Movement for Multi-party Democracy (MMD)
was in power, but it was withdrawn following criticism. The bill was finally presented in 2009
and enacted by Parliament as NGO Act No. 16 of 2009 on August 28, 2009. At that time, it was
reported in private media that the MMD was using the Act to hold onto the reins of power,
8
due
to its provisions seen as limiting civic space. Since presidential elections were looming two years
from enactment of this Act, the then-opposition political party Patriotic Front (PF) assured NGOs
that once it was voted into government, the NGO Act would be repealed, and the government
and CSOs together would come up with a framework acceptable to all stakeholders. The PF had
it enshrined in their manifesto that the relationship between
Civil society organisations and the State is essentially fraught with suspicion,
antagonism and conflict due to lack of appreciation by the MMD government of the role
of the civil society as a partner in national development. Consequently the civil society
has found it difficult to play its meaningful role in the area of social justice, good
governance and national development.
In order to enhance the role of the civil society and its relationship with the State
the PF government shall:

7
I call it controversial due to the conflict that has emerged around it between some CSOs and the
Government.
8
See The Post, November 10, 2009, https://www.postzambia.com/post-read_article.php?articleId=1646.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 9
 Recognize the State and civil society as mutually interdependent and
complementary partners in national development;
 Guarantee the active participation of civil society in matters of social justice
and good governance;
 Promote constant dialogue between the State and the civil society;
 Review the Non-Governmental Organizations Act of 2009 so as to promote
the above
After the 2011 general elections ushered the PF into government, civil society
organizations were expectant. Despite its enactment in 2009, the NGO Act had never been
implemented under the MMD regime. A clause within the Act states that it would come into
effect on the day the minister in charge of NGOs deemed fit. It was not until July 15, 2013, that
NGOs were called upon to register under the Act, during the reign of the Patriotic Front, which
had not yet reviewed the Act as promised during the campaign. The PF government argued that
it was just acting on laws put in place by the previous regime. However, this may also be
construed as a case of finding “convenient laws” in place, making it difficult to keep their
campaign promises to civil society.
A significant number of CSOs have declined to register under the new Act and have been
issuing statements and petitions which, among other issues, remind the PF government to deliver
on its campaign and manifesto promises. The current impasse surrounding this piece of
legislation signals the need for a regulatory framework that is acceptable not only to the state but
to all stakeholders.
This Act is fraught not just by its practical implications for NGOs, as discussed above,
but also by the process in which it came to be. There was a lack of proper consultation with
primary stakeholders, the NGOs themselves. In fact, submissions by NGOs when the bill was
presented to Parliament were ignored (Mzyece, 2009). Among the contentious issues within the
Act is the call for compulsory or mandatory registration of NGOs within 30 days of their
formation or adoption of their constitutions, and the subsequent re-registration every five years,
contained in sections 11 to 14. The concern here from organizations spoken to is that the law
does not specify the time of processing the application, which can keep organizations in a state
of uncertainty regarding their legal status even though they are allowed to operate until a
decision is communicated to them. Further, the Act states that organizations can be denied
registration on “public interest” grounds; however, the Act is not clear about what constitutes
public interest, leaving it to the interpretation of the government officials responsible for
reviewing applications. Further, calling for NGOs to re-register every five years is a potentially
threat to NGOs critical of government policies, and it gives the state an opportunity to harass
such organizations. This has further implications in limiting the extent to which an organization
can be independent and act freely. For the government, it also imposes a great administrative
workload on an already burdened Administration.
Further, sections 5 to 7 of the NGO Act provide for the establishment of three tiers of
bureaucracy, with the NGO board at the top, followed by an NGO council comprised of NGO
representatives voted in by the NGOs themselves, and finally an NGO congress. There are three
issues of controversy here. First, the composition of the board is seen to be more governmentdominated. The members need to be approved by the minister of community development. In
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 10
addition, only seven out of 15 members of the board are to be elected by the NGO congress
subject to the minister’s approval, with the other seven appointed by the minister—which could
have serious negative implications for the independence of NGO sector. Only one member is an
independent member of the board. The minister is also given the power to appoint the
chairperson and vice chairperson from among the board members. Given such a composition of
the board, its functions then become challenging in the following ways:
1) Approving the area of work of NGOs: This function gives the governmentdominated board the power to determine NGOs’ thematic and geographic areas of
operation and in a way control their activities, which goes against the fundamental
principles of freedom of expression, association, and assembly.
2) The power to provide policy guidelines to harmonize the activities of NGOs with
the national development plan: This aspect co-opts NGOs into assisting in the
fulfillment of the political priorities of the government reflected in the plan. It has
the potential to impact upon the independence of the civil society sector. It also
goes against the right of CSOs to operate free from unwarranted state
interference.
3) The power to advise on strategies for efficient planning and coordination of
activities of NGOs: This aspect treats NGOs as government subsidiaries, as
opposed to independent entities free to formulate and execute action plans in line
with identified priorities.
Furthermore, the Act in a way imposes regulations on NGOs by compelling them to draw
up a code of conduct, requiring approval by the government-dominated NGO board and
monitoring by a 12-member NGO council. Although members of the council are to be elected by
NGOs themselves, its overstretching mandate could have serious repercussions on the autonomy
of individual NGOs, which may not subscribe to the majority position adopted by the council.
Overall, the implementation of this Act not only interferes with and hampers the work of
NGOs but also violates fundamental rights guaranteed in the Constitution of Zambia as well as
some of Zambia’s legal obligations under binding human rights instruments.
Despite all the weaknesses and problems posed by the Act, the PF government has
maintained that the Act is intended to bring internal democracy and accountability to CSOs.
They have argued that the democracy, transparency, and accountability that CSOs usually expect
from other entities (government and private sector) should in fact begin with CSOs and that
CSOs should operate in accordance with the values and principles they espouse.9
The
government has called on organizations to register, but due to widespread defiance they have had
to keep extending the deadline. In a bid to force organizations to register, the Ministry of
Community Development is reported to have written to diplomatic missions and aid agencies in
June 2014, cautioning them to work with only those NGOs registered under the NGO Act;
however, the letter did not state the consequences for donors who did not comply. On the other
hand, the “big” civil society organizations argue that they are willing to dialogue without the
condition to “register first then discuss.”10

9
See comments from former Justice Minister Wynter Kabimba, https://www.postzambia.com/postread_article.php?articleId=35586.
10 This is according to one of the CSOs that has yet to register.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 11
Effective Civil Society Engagement with State
While having a good legal framework for civil society is important, there are other
cultural and political issues that interfere with maintaining positive state-civil society relations
and ensuring that CSOs are independent and effective in Zambia. One such issue is the political
orientation of the country, which is such that government can clamp down on their “enemies”
using state apparatus. To start with, no clear or distinct political ideologies inform the different
political parties in the country, so it is common to see politicians moving from one political party
to another (usually the direction of these defections is towards the ruling party) in the name of
“exercising one’s democratic right.” As a result, when a party gets into power, it is at liberty to
change its course or adopt policies that differ from what was stated in the earlier manifesto that
ushered it into power. When this happens, no one can hold government accountable and pressure
them to deliver on their promises. This could explain why the PF government (which is currently
a transition government following the demise of President Sata) was not in a hurry to deliver on
its campaign promise of repealing the NGO Act when they ascended into power.
On the other hand, CSOs in Zambia have been exhibiting more of a reactionary approach
to engaging with government. While Zambian CSOs easily mobilize into coalitions and social
movements in times of crisis and always play a role at the defining moments of the country’s
political history,11 there is lack of a long-term engagement with the government. However, the
level of engagement with the government has been characterized as reactive or crisis-mode
rather than rigorous and sustained. For instance, after the transition from one-party state to
multiparty politics in 1991, there was an observed decline in the visibility of civil society. The
main reason advanced was that, with democracy in place, civil society had achieved their main
aim of political mobilization.
12 Civil society was later seen more visibly toward the end of the
10-year rule of President Chiluba, when he wanted to amend the constitution to provide for a
third-term clause. Once that battle was won, CSOs again went into hibernation.
With the development agenda of the early 2000s calling for more stakeholder
participation in national development plans, the government introduced coordinating committees
at the community, district, provincial, and national levels in order to strengthen and
institutionalize CSO-government communication and engagement. Government officials, civil
society groups, and, in some cases private-sector companies meet every three months to discuss
vision, direction, and strategies for development. Other forums for CSO participation are the
parliamentary portfolio committees, which examine how government is being run and how it is
spending money. Committees working on different thematic areas each invite members of the
public, CSOs, and other stakeholders to make submissions. The extent to which these
submissions are taken on board is beyond the scope of this paper; however, in terms of effective
participation, it has been observed that CSOs are given only short notice to participate in these
committee meetings, which results in their either not being able to attend or if they do, lacking
adequate preparations to make effective submissions (USAID, 2011).

11 See Mutesa (2008).
12 Mumba (2008), in Mutesa F. (ed.) State Civil Society and Donor Relations in Zambia. UNZA Press.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 12
Other factors impede robust participation of local CSOs in the everyday running of
government. Key factors highlighted by organizations interviewed as well as scholars in this
field13 include the following:
 Citizens’ participation in governance issues is limited to elections and political
parties. There is a lack of institutionalized mechanisms for citizens’ participation
in decision-making, and government administrative structures are highly
centralized.
 There is an observed lack of dialogue between the government and CSOs dealing
with governance issues.
 According to Mweshi (2009), CSOs are greatly reliant on foreign donors for
funding, and to some extent they compete with each other for donors. This has
implications for the independence of the organizations’ agendas and ideologies,
and it places serious constraints on home-grown strategies for development. It is
common for NGOs to change their strategies and missions to align with those of
their foreign funders, and they promote a rhetoric that validates their existence
only by compromising their character. This could also explain why the
government wants to be kept abreast of any such changes, as is indicated in the
controversial NGO Act.
 CSOs also suffer the effects of lacking representation at grassroots level. It is
common to find NGOs at national level without constituencies at local level.
 Another factor that reinforces this reactionary approach is the lack of proper
coordination and collaborations among CSOs. It is common to see a duplication
of efforts in NGOs’ areas of work.
 The Zambian media, which is a vehicle through which citizens can remain
informed, has often had clashes with the government, evidenced by the arrest of
some private journalists and the blocking of online papers that report negatively
about the government.
14 Private online media editors and contributors are forced
to work anonymously for their own safety, while private radio stations have faced
instances of program interruption by either governmental officials or ruling party
cadres with a threat to revoke their operating licenses. Other factors such as
literacy levels, poverty, and lack of electricity have affected access to electronic
media, too.
In addition, there is no appropriate incentive system in place for Zambian CSOs, due to
the high dependence on foreign funding noted above. This strikingly differs from most of their
Western Europe and American counterparts, which are mainly founded and funded by people
within society; as such, they are compelled to be effective in their own societies, because it
matters what the public thinks about them. It then follows that the governments in such societies
cannot easily attack CSOs; to do so would be akin to an attack on their its citizens. While the
perception of CSOs in Zambia is positive and the public is generally supportive of CSOs’ work

13 See CIVICUS Civil Society Index Analytical Report for Zambia (2010).
14 “Zambia Blocks Another Website, Re-arrests Reporter,” Committee to Protect Journalists, July 30, 2013,
https://www.cpj.org/2013/07/zambia-blocks-another-website-re-arrests-reporter.php.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 13
(based on 2011 CSO sustainability index), this does not mean that the public perception of CSOs
has a bearing on CSOs’ effectiveness comparable to donor perceptions.
Way Forward: Practical Action Points Based on International Best Practices
In order to move forward on the NGO Act impasse, CSOs need to be unified and show a
united front before questions of legitimacy arise in terms of representation. Already a good
number of NGOs are reported to have registered under the Act, according to the Ministry of
Community Development, Mother and Child Health. Civil society organizations therefore need
to identify or map their pressure points and what can be done to position government officials to
use their power effectively. The government and parliamentarians are ultimately responsible for
developing and reforming legal frameworks for civil society. Therefore, it is important for
advocacy efforts to be directed toward ensuring that the government and Parliament understand
and address their concerns in amending legal provisions while accommodating government
interests. To do so, CSOs discontented with the current Act should communicate and negotiate
effectively with government officials and parliamentarians to develop mutual understanding
(ICNL, 2008).
Further, calling on government to repeal the Act is not enough and may take time. To
speed up the processes and quickly engage decision makers, civil society organizations need to
develop an alternative model or law and use it as a basis for dialogue. This strategy is similar to
the one adopted by Kenyan civil society organizations, who drafted a Public Benefit
Organisation Bill in 2011 that was shared by the government agency responsible for registering
NGOs, the Kenyan Law Reform Commission, and various members of Parliament. The bill was
drafted following a consultative process with a number of civic organizations throughout the
country. With the draft bill in place, the coalition was able to engage the Law Reform
Commission and parliamentarians. Eventually the bill was accepted by a Parliament committee
responsible for legal affairs in December 2011 and was submitted to the full Parliament. To date,
Zambian civil society has been calling for the current Act to be repealed without providing an
alternative. The Minister overseeing the registration of NGOs was quoted in local media saying
that civil society organizations are pushing an already open door: “We have already told them
[NGOs] to bring fresh amendments to us and we will consider them. For now we cannot operate
in a vacuum, something has to be in put in place to guide their operations.”15
In case there is lack of capacity among organizations to draft an alternative law, CSOs
can always seek the help of both national and international experts on civil society law such as
Law Association of Zambia (LAZ), International Center for Not for Profit Law (ICNL),
American Bar Association, and Freedom House, among others.
Finally, CSOs should avoid politicizing issues related to developing an enabling legal
framework. A key observation in the calls for reform of the NGO Act is that they are somewhat
politicized. When the current Act was introduced in 2009 under the MMD regime, CSOs tended
to seek sympathy from opposition political parties, and it was somehow looked at as an “MMD
law.” This could have influenced the Patriotic Front to include a clause in their manifesto on
reviewing the NGO Act once they came into power, as a way of soliciting support from CSOs.

15 See “Government Willing to Make Amendments to the Controversial NGO Act—Katema,” Lusaka
Times, July 31, 2013, https://www.lusakatimes.com/2013/07/31/government-willing-to-make-amendments-to-thecontroversial-ngo-act-katema/
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 14
Now that the Act has come into force under the PF regime, the messages from CSOs are framed
with a political inclination. The leader of NGOCC speaking on behalf of 24 other CSOs was
quoted in local media saying that “the PF is the most unresponsive government.” Alternatively,
CSOs can move away from politicizing their messages to developing a message that speaks to
the needs of the entire citizenry or society, showing how changing the legal framework will
affect those needs. “An effective message should highlight how the legal framework for CSOs is
linked to the development and prosperity of the country. It should include examples of how civil
society’s work contributes to the government’s goal of social development and delivery of social
services” (ICNL, 2012). This helps prevent the reform initiative from being politicized. An
example from Iraq shows that during the advocacy efforts that led to the successful passage of
the progressive Law 12 of 2010, civil society groups highlighted how a strong civil society sector
could contribute to rebuilding the country and attracting foreign funding to support local
development.
Conclusion
A vibrant civil society is a necessary ingredient for economic, social, and political
development. It is the duty of every state to protect these civic liberties and promote the growth
of an effective civil society. As has been noted, the Zambian NGO Act is fraught with clauses
that are subject to discretionary application of the government of the day, leaving CSOs without
any legal recourse. The implementation of the Act in its current form risks making CSOs a mere
extension of state apparatus rather than effective and independent partners in development. The
state-civil society relations are also shaped by the cultural and political issues.
In order to have positive relations, the state and civil society must hold open and honest
dialogue, based on the understanding that there is a shared vision while respecting basic
differences in approaches. Consultative mechanisms must be put in place to ensure that the stateCSO dialogue is not incidental but is one of strategic mutuality.
References
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Politics 46(4), 453-489.
CIVICUS (2010). The Status of Civil Society in Zambia: Challenges and Future Prospects. CIVICUS.
Constitution of the Republic of Zambia. Lusaka, www.parliament.gov.zm/downloads/VOLUME%201.pdf.
Desai, V. (2008). “The Role of Non-Governmental Organisations (NGOs).” In Desai Vandana & Potter Robert
(eds.), The Companion to Development Studies. Hodder Education, London.
Diamond, L. J. (1996). “Is the Third Wave Over?” Journal of Democracy 7(3), 20-37.
Edwards, M. (2011). The Oxford Handbook of Civil Society. Oxford University Press, New York.
Elone, J. (2009). “Backlash Against Democracy: The Regulation of Civil Society in Africa.” Democracy and Society
7(2), 1-10.
International Center for Not-for-Profit Law (ICNL) (2009). “Global Philanthropy in a Time of Crisis.” Global
Trends in NGO Law 1(2), https://www.icnl.org/knowledge/globaltrends/GloTrends1-2.htm.
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International Center for Not-for-Profit Law (ICNL) (2012). Defending Civil Society Report. ICNL & NED,
Washington.
Irish, L., Kushen, R., & Simon, K. (2004). “Guidelines for Laws Affecting Civic Organizations.” Open Society
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Mitlin, D., Hickey, S., & Bebbington, A. (2007). “Reclaiming Development? NGOs and the Challenge of
Alternatives.” World Development 35(10), 1699-1720.
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MA Thesis. Hague: Institute of Social Studies.
Mutesa, F. (2009). State, Civil Society and Donor Relations in Zambia. University of Zambia Press, Lusaka.
Mweshi, J. (2009). “The Potential and Capacity of Civil Society in Zambia: Challenges and Future Prospects.” In
Mutesa, F. (ed.), State, Civil Society and Donor Relations in Zambia. University of Zambia Press, Lusaka.
Mzyece, M. (2009). The NGO INSAKA: NGO Accountability and Regulation Project. GTZ, Lusaka.
Patriotic Front Party Manifesto. PF, Lusaka.
Reddel, T. (2006). “Governing the Social: Reconfiguring the State-Civil Society Relations.” Social Policy Working
Paper No. 6, University of Melbourne Centre for Public Policy, Melbourne.
Sims, B., Eaglestone, A., & Yezi, A. (2013) (eds.). A Revolutionary Revisited: The State of Democracy in Zambia
Since 1991. IDASA Democracy Index, Pretoria.
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United States Agency for International Development (USAID) (2011). “The 2011 CSO Sustainability Index for SubSaharan Africa.” USAID, Washington.
Van Rooy, A. (2008). “Strengthening Civil Society in Developing Countries.” In Desai, V. & Potter, R. (eds.), The
Companion to Development Studies. Hodder Education, London.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 16
Civil Society in Africa
ANALYSIS OF THE LEGAL FRAMEWORK
FOR CIVIL SOCIETY IN BURUNDI:
CASE OF THE DECEMBER 2013 LAW
ON PUBLIC DEMONSTRATIONS AND ASSEMBLIES
AUDACE GATAVU1
Introduction
Freedom of peaceful assembly is a fundamental right provided by international
instruments relating to human rights, and is present in the constitutions of nearly every country in
the world.
The enjoyment of freedom of peaceful assembly must be guaranteed to individuals and
groups of individuals, associations – informal or those with legal personality. This right has been
recognized as one of the pillars of a healthy and functional democracy. Its exercise allows all
persons living in a country to have the opportunity to express their opinions.
2
Being able to hold peaceful assemblies is of crucial importance for the work of civil
society actors, including those working to promote the fulfillment of economic, social, and
cultural rights, for it allows them to publicly convey their message in order to achieve their goals.
In several countries, however, the right to hold peaceful assemblies has been denied or restrained
by state authorities in violation of international human rights standards. As a result, the right to
take part in the conduct of public affairs, as ratified by Article 25 of the International Covenant
on Civil and Political Rights (ICCPR), is restrained.
3

1 Audace Gatavu is an Attorney at Nibitegeka & Associates in Bujumbura, Burundi. He was a Research
Fellow at ICNL in 2014.
Acknowledgments: We would like to cordially thank everyone who has contributed directly or indirectly to
this project. We extend special thanks to the ICNL staff who spared no efforts for the success of this project and to
make our stay in Washington, DC, unforgettable. We want to thank Emerson Sykes for overseeing the project and
Brittany Grabel for coordinating its completion. We also thank the Burundi civil society actors who sacrificed their
time to answer our questions. We extend our gratitude to USAID as well for the financial support.
This study is made possible by the generous support of the American people through the United States
Agency for International Development (USAID). The contents are the responsibility of the author and do not
necessarily reflect the views of USAID or the United States Government.
2 OSCE/ODIHR, Guidelines on Freedom of Peaceful Assembly, second edition, Warsaw/Strasbourg, 2010,
p. 23.
3 United Nations, General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful
assembly and association, MainaKiai, A/HRC/23/39, § 43.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 17
The right to freedom of assembly in Burundi has been provided by different constitutions.
However, the enjoyment of this right has always been restrained by public authorities through
laws regulating public assemblies, laws that were extremely restrictive relative to positive
provisions given by international legal instruments relating to human rights. The most recent one
is the December 5, 2013, law 1/28 regulating public demonstrations and assemblies.
In our project, we provide an in-depth analysis of the provisions of that law with respect
to fundamental principles espoused by international instruments and with regards to the law’s
practice.
The paper is divided into two chapters. The first is dedicated to general aspects of the
right to freedom of assembly in Burundi and includes a historical overview (section 1) and the
legal framework (section 2). The second chapter, consisting of the analysis of the law itself,
includes a global analysis of the December 5, 2013, law (section 1) and various restrictions on
freedom of assembly (section 2).
Throughout this analysis, we provide proposals for recommendations that support the
reform of the present law.
Context
This project was achieved in the framework of a research scholarship granted by the
American non-governmental legal organization International Center for Not-for-Profit Law
(ICNL) based in Washington, DC, in collaboration with United States Agency for International
Development (USAID). ICNL is an international organization that facilitates and supports the
development of a favorable legal framework for the civil society sector. ICNL provides technical
assistance through research and education to support the development of a favorable legal
framework for civil society in many countries around the world.
It is in this context that ICNL supports legal practitioners through research grants so that
they may contribute to law reform with the goal of creating an environment that allows the
enjoyment of fundamental rights and freedoms. The organization has been working for a long
time on the freedom of association and is extending its involvement on the freedom of peaceful
assembly.
The project was conducted partly in Burundi on topics concerning Burundian legislation
and practices, and then in Washington, DC on matters concerning international human rights
law.
Methodology
The project was conducted following the documentary method that involves using
publications, articles, and reports, as well as national and international legal tools: international
conventions, the Constitution of the Republic of Burundi, the Arusha Peace and Reconciliation
Agreement, and legislative texts.
In addition, we have consulted Burundian civil society organization leaders who sat with
us and provided data on matters regarding freedom of peaceful assembly practices.
Finally, the project relies on information provided by the ICNL and the European Center
for Not-for-Profit Law (ECNL) staff members, who shared experiences and good practices in the
countries in which they operate.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 18
I. Freedom of Assembly in Burundi
1. Historical overview
The evolution of the right to freedom of assembly has been strongly influenced by
Burundi’s political path since its independence from Belgian colonization. Although the various
constitutions4
that governed the country have all provided for the right to freedom of assembly,
there has always been a gap between the text and the people’s actual enjoyment of the right.
After gaining independence in 1962,
5 Burundi adopted a constitutional monarchy regime
with a constitution greatly inspired by the Universal Declaration of Human Rights. The
monarchy was ended after four years by a military coup d’état on November 28, 1966. The
country has since known various military regimes
6
deeply rooted in the ideology of the single
party in power, UPRONA.
7
The party outlined the overall political orientation of the nation and
inspired state action. In this political context, all the principles governing a democratic society
were completely nonexistent.
The democratization process in Burundi started around 1989, following the political
transformations happening in Europe after the fall of the Berlin wall. During the La Baule
conference in 1990, former French President François Mitterrand called for African heads of
state to follow the example set by western countries and begin the democratization process lest
they suffer economic and political sanctions from the international community.
8
A constitutional commission was put in place in March 1991, its main function being the
democratization of political life in the country. A new constitution was enacted in March 1992
recognizing political pluralism and the separation of powers, while proclaiming civil rights and
public freedoms. Article 28 of this constitution declares: “freedom of peaceful assembly and
association is guaranteed under the condition set by law.”
9
Burundi did not enjoy the benefits of democracy for long, for in October 1993, an
unprecedented civil war struck the country following the assassination of the first democratically
elected president, Melchior Ndadaye.
On July 25, 1996, a military coup suspended the 1992 Constitution, and subsequently
banned the exercise of public freedoms, including in particular the right to freedom of peaceful
assembly.

4
See the various constitutions that governed Burundi: www.uantwerpen.be/en/faculties/iob/research-andservice/centre-great-lakes/dpp-burundi/constitution/aper-u-hist-const/.
5 Burundi was under German rule prior to World War I, and under Belgian rule from 1918 to 1962.
6 Lieutenant Général Michel Micombero, 1966-1976 ; Colonel Jean Baptiste Bagaza, 1976- 1987; Major
Pierre Buyoya, 1987-1993.
7 UPRONA: Union pour le Progrès National (Union for National Progress), the party that led the country to
its independence.
8
François Mitterrand, speech at the La Baule conference,
https://www1.rfi.fr/actufr/articles/037/article_20103.asp.
9 Article 28 of the Constitution of the Republic of Burundi of March 12, 1992,
https://confinder.richmond.edu/admin/docs/localburundi2.pdf.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 19
On August 28, 2000,
10 after long periods of negotiations mediated first by Mwalimu
Julius Nyerere, then by Nelson Mandela, the Arusha Peace and Reconciliation Agreement in
Burundi was signed by Burundian political actors. The Arusha Agreement advocated the
enactment of an inclusive constitution recognizing people’s rights and freedoms.
Thus, the March 18, 2005, Constitution still in effect today was born. These two
fundamental texts recognize the right to freedom of peaceful assembly as one that all persons
must fully enjoy in Burundi.
2. Legal framework of the right to freedom of peaceful assembly
In this section we will consider legal texts, including international legal instruments, the
Arusha Peace and Reconciliation Agreement in Burundi, and the March 18, 2005, Constitution
of the Republic of Burundi.
A. Regional and international legal instruments
Burundi is party to relevant international legal instruments concerning human rights such
as the Universal Declaration of Human Rights, the International Covenant on Civil and Political
Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention
on the Rights of the Child.
In terms of regional obligations, Burundi is party to the African Charter on Human and
Peoples’ Rights and the Protocol Establishing the African Court on Human and Peoples’ Rights.
Furthermore, Burundi has recently joined the East African Community, whose basic principles,
among others, are good governance, respect of the principles of democracy, rule of law,
responsibility, transparency, social justice, equal opportunity, gender equality, as well as the
recognition, promotion, and protection of human and peoples’ rights in accordance with the
provisions of the African Charter on Human and Peoples’ Rights.
The table below contains legal instruments, provisions relevant to the right to freedom
assembly, and Burundi’s dates of accession to the treaties.
TREATY PROVISIONS RELATING TO
FREEDOM OF ASSEMBLY
DATE OF ACCESSION
INTERNATIONAL INSTRUMENTS
Universal Declaration
of Human Rights
Article 20 (1): Everyone has the
right to freedom of peaceful
assembly and association.
December 10, 1948

10Arusha Peace and Reconciliation Agreement in Burundi,
https://www.issafrica.org/AF/profiles/Burundi/arusha.pdf
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 20
International Covenant
on Civil and Political
Rights
Article 21: The right to peaceful
assembly shall be recognized. No
restrictions may be placed on the
exercise of this right other than
those imposed in conformity with
the law and which are necessary in
a democratic society in the
interests of national security or
public safety, public order, the
protection of public health or
morals or the protection of the
rights and freedoms of others.
May 9, 1990
International Covenant
on Economic, Social
and Cultural Rights
Article 8: The States Parties to the
present Covenant undertake to
ensure: d) The right to strike,
provided that it is exercised in
conformity with the laws of the
particular country.
May 9, 1990
Convention on the
Rights of the Child
Article 15: 1. States Parties
recognize the rights of the child to
freedom of association and to
freedom of peaceful assembly.
2. No restrictions may be placed
on the exercise of these rights
other than those imposed in
conformity with the law and which
are necessary in a democratic
society in the interests of national
security or public safety, public
order, the protection of public
health or morals or the protection
of the rights and freedoms of
others.
October 19, 1990
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 21
REGIONAL INSTRUMENTS
African Charter on
Human and Peoples’
Rights
Article 11: Every individual shall
have the right to assemble freely
with others. The exercise of this
right shall be subject only to
necessary restrictions provided for
by law, in particular those enacted
in the interest of national security,
the safety, health, ethics and rights
and freedoms of others.
July 28, 1989
Treaty Establishing the
East African
Community
Article 6: The fundamental
principles that shall govern the
achievement of the objectives of
the Community shall include: d)
…the recognition, promotion and
protection of human and peoples’
rights in accordance with the
provisions of the African Charter
on Human and Peoples’ Rights;
Article 7, 2. The Member States
undertake to abide by the
principles of good governance,
including adherence to the
principles of democracy, the rule
of law, social justice and the
maintenance of universally
accepted standards of human
rights.
July 1, 2007
B. The Arusha Peace and Reconciliation Agreement in Burundi
Seven years after the outbreak of civil war, political actors, with the help of the
international community, reached a historic agreement that lead to the end of the conflict in
Burundi: the Arusha Peace and Reconciliation Agreement in Burundi.
In the chapter entitled “Nature and Historical Causes of the Conflict,” the agreement
states that since independence and throughout the different regimes, a number of constant
phenomena have given rise to conflict in Burundi: deliberate killings, widespread violence, and
exclusion.
11

11 Arusha Peace and Reconciliation Agreement in Burundi: Protocol I, Chapter I, Article 3, 1
https://www.issafrica.org/AF/profiles/Burundi/arusha.pdf.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 22
In order to end these phenomena, parties to the agreement committed to adhere to the
principles of rule of law, democracy, good governance, pluralism, respect of fundamental rights
and freedoms of the individual, unity, solidarity, gender equality, mutual understanding, and
tolerance between the various political and ethnic components of the Burundian people.
Thus, the Arusha agreement emphasizes that:
The rights and duties proclaimed and guaranteed inter alia by the Universal Declaration
of Human Rights, the International Covenants on Human Rights, the African Charter on
Human and Peoples’ Rights, the Convention on the Elimination of All Forms of
Discrimination against Women and the Convention on the Rights of the Child shall form
an integral part of the Constitution of the Republic of Burundi. These fundamental rights
shall not be limited or derogated from, except in justifiable circumstances acceptable in
international law and set forth in the Constitution.
12
Moreover, point 14 of the previously cited article of the Agreement provides for freedom
of assembly under the following terms: “Freedom of assembly and association shall be
guaranteed, as shall freedom to form non-profit-making associations or organizations in
conformity with the law.”
13
In light of the above, it is clear that the Arusha Agreement has viewed the rights and
freedoms proclaimed by international legal instruments, including the right to freedom of
peaceful assembly, as one of the solutions to preventing recurrence of the Burundian conflict.
The Arusha agreement remains a form of social contract that inspires political life in the country.
C. Constitution on the Republic of Burundi (March 18, 2005 Law No. 1/010)
The Constitution of the Republic of Burundi as enacted on March 18, 2005, embodies the
implementation of recommendations stated in the Arusha Peace and Reconciliation Agreement.
The provisions concerning the rights to freedom of assembly provided by the Agreement
have been integrated verbatim in the Constitution. Articles 19 and 32 of the Constitution pick up
the dispositions provided above, respectively. The major innovation of the current constitution of
the Republic of Burundi is the incorporation of international legal instruments into domestic law,
facilitating their applicability without any other implementing measure.
D. Previous legislation on freedom of assembly
Freedom of assembly has been regulated by specific laws since the colonial period.
However, rather than protecting and promoting the right to freedom of assembly, these texts have
had the common goal of controlling and in a number of cases preventing individuals from fully
enjoying this freedom. Their wording speaks volumes. Rather than regulating peaceful
assemblies and gatherings, they regulate “demonstrations and public meetings.”
These texts include Order No. 111/29 of Rwanda-Urundi, dated January 31, 1959,
regulating public demonstrations and meetings; Order No. 111/6 of Rwanda-Urundi, dated

12Arusha Peace and Reconciliation Agreement in Burundi, Protocol II, Chapter I, Article 3, 1,
https://www.issafrica.org/AF/profiles/Burundi/arusha.pdf.
13 Arusha Peace and Reconciliation Agreement in Burundi, Protocol II, Chapter I, Article 3, 14,
https://www.issafrica.org/AF/profiles/Burundi/arusha.pdf.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 23
January 18, 1962, regulating public gatherings; Decree No. 100/187/91, dated December 31,
1991, regulating public demonstrations and meetings.
The first chapter provides only a broad picture of the regulation of the right to freedom of
assembly in Burundi. The remainder of the work focuses mainly on the current law on
assemblies and public demonstrations. The objective is to show the extent to which this law
complies with international standards regarding peaceful assemblies, both in regulation and in
practice.
II. Analysis of the December 5, 2013, Law
on Assemblies and Public Demonstrations
The root of the right to freedom of assembly can be found in regional and international
legal instruments, as well as in the case law of the supervisory bodies of these treaties. The other
root is in the constitution, which contains positive and protective provisions for the right to
freedom of assembly.
However, the provisions in the constitution are often too broad to allow a just and
effective implementation of the right to freedom of assembly. The vagueness of these provisions
can easily lead to abuses of power by the authorities responsible for implementing this right. A
law specifically regulating the exercise of freedom of assembly could be a solution to this
problem.
Although nothing in the international legal instruments requires States to enact specific
laws on freedom of assembly, such legislation can tremendously help protect the right against
arbitrary administrative interference. Such legislation can in particular serve as a guide in the
decision process by the administrative authorities and point out the circumstances in which this
right may be hindered.
This research project therefore assesses whether the December 5, 2013, law on public
assemblies and demonstrations is consistent with the special purpose of such a law, according to
the international standards applicable concerning regulation of the right to freedom of assembly.
1. Protection or restriction of the right to peaceful assembly? Overall analysis of the text
This section is devoted to the form and content of the text in terms of principle,
procedure, restrictions, and sanctions. This introductory analysis seeks to comprehensively deal
with the content of the law and its tendency to protect or restrict the right to freedom of peaceful
assembly in Burundi.
A. Title of the law
The law is entitled “The December 5 law No 1/28 regulating public demonstrations and
assemblies.” The law clearly targets specific categories of gatherings of people, namely public
demonstrations and assemblies. We believe that the law should have a title that encompasses all
possible forms of gathering to comply with international standards on the right to freedom of
assembly.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 24
B. Architecture of the legal text
The text contains five chapters in total: a chapter on principles and definitions (3 articles);
two chapters on procedure and restrictions (12 articles); one chapter on criminal and
administrative sanctions (13 articles); and a chapter relating to final provisions (2 articles).
Where principles are concerned, it should be noted that the law only discusses one
principle. Article 1 provides that: “public assemblies and demonstrations are free in Burundi.”
Other than this lone statement in favor of the right to freedom of assembly, the remainder of the
text consists of restrictions, administrative procedures governing these restrictions, and criminal
and administrative sanctions.
In view of the above, and generally speaking, it is apparent that the law restricts the right
to freedom of assembly more than it protects it.
C. General recommendations
 The law should be entitled: “The December 5, 2013 law on peaceful assemblies and
gatherings in Burundi.”
 The law should provide principles ensuring the protection of the right to freedom of
assembly articulated in the international instruments relating to human rights.
 The law should contain more protective provisions and fewer restrictions and
sanctions.
2. Restrictions on the right to hold a peaceful assembly
Article 21 of the International Covenant on Civil and Political Rights guarantees the right
to freedom of peaceful assembly under the following terms:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the
exercise of this right other than those imposed in conformity with the law and which are
necessary in a democratic society in the interests of national security or public safety,
public order, the protection of public health or morals or the protection of the rights and
freedoms of others.
Burundi is party to the ICCPR. Moreover, Article 19 of its Constitution provides that all
the international instruments relating to human rights are integral parts of the Constitution of the
Republic of Burundi, and that the fundamental rights proclaimed by these instruments must not
be subjected to any restriction or exemption, except in certain circumstances justifiable by public
interest or the protection of a fundamental right.
The International Covenant on Civil and Political Rights, the African Charter on Human
and Peoples’ Rights, and the Convention on the Rights of the Child provide legitimate reasons
for restriction of a peaceful assembly. No restriction other than those stipulated in these
provisions shall be prescribed by national law. Indeed, these restrictions themselves should be
interpreted more restrictively to avoid abuses.
The Special Rapporteur on the right to peaceful assembly and the freedom of association
reminds in his A/HRC/23/39/report that whenever authorities decide to restrict an assembly, they
should provide assembly organizers, in writing, with “timely and fulsome reasons” which should
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 25
satisfy the strict test of necessity and proportionality of the restrictions imposed on the assembly
pursuant to legitimate aims.
14
The December 5, 2013, law provides a number of restrictions on the right to freedom of
peaceful assembly:
 Prior declaration: Articles 4 and 7
 De facto ban on spontaneous gatherings: Articles 4 and 7 read in conjunction with
Article 9
 Discretion on the part of the administration to ban any peaceful assembly: Articles 5
and 8
 Restrictions on recourse mechanisms: Article 5
 Time constraint: Article 11
 Responsibility of organizers to maintain public order during peaceful assemblies:
Article 13
 Criminal and administrative sanctions: Articles 14 to 26
 Repression of counter-demonstrations: Article 18 paragraph 2
A. Prior declaration
Problem: Articles 4 and 7 provide that public demonstrations and assemblies must be
subject to prior declaration. The declaration must include the identification of the members of the
organizing office, the time and date of the demonstration, its purpose, its foreseeable
involvement, and the intended itinerary of the procession or parade.
Analysis: The Special Rapporteur on the right to peaceful assembly and freedom of
association believes that the exercise of fundamental freedoms should not be subject to prior
declaration to the authorities, but rather to a process of prior notification in order to allow public
authorities to facilitate the exercise of the right to peaceful assembly, to ensure public safety and
order, and to protect the rights and freedoms of the rest of the population. This notification
should undergo an assessment of proportionality that is not unduly bureaucratic, and be
submitted within a period of time (48 hours, for example) determined prior to the scheduled date
of the assembly.
15
The law being analyzed does not explicitly state the need for the declaration. Although
the idea of protecting the right to peaceful assembly cannot entirely be excluded, it is apparent
that the law seeks to control and restrict the right to freedom of assembly. This claim can be
made from the fact that, by law, the requirement of a prior declaration is directly linked to the

14 United Nations, General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful
assembly and of association, MainaKiai, A/HRC/23/39,§ 48,
https://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/23/39&referer=/english/&Lang=F.
15 United Nations, General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful
assembly and of association, MainaKiai, A/HRC/23/39, § 47,
https://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/23/39&referer=/english/&Lang=F.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 26
ability of the competent authority notified to either defer the assembly or ban it altogether.
Furthermore, a prior declaration leading to a possible ban on the assembly becomes an
authorization. Indeed, the law does not indicate the benefit of the information contained in the
declaration. It can therefore be used to ban a peaceful assembly on the basis of its purpose, its
organizers, its location, or the people planning to attend.
According to the Special Rapporteur, a notification should be considered overly
bureaucratic if one of the following points is imposed on the organizers: that more than one
organizer’s name be mentioned; that only registered organizations be considered capable of
organizing a gathering; that official identification documents such as passports or ID cards be
presented; that details concerning the identity of other participating persons (members of security
services, for example) be provided; that reasons for the gathering be specified, with respect to the
principle of non-discrimination; and that the number of participants be stated, which is difficult
to predict.
16
Practice: Prior declaration operates as a prior authorization in the practice of the
administration in Burundi.
In his June 18, 2014, letter, the Minister of the Interior wrote, in response to an
administrative appeal of a demonstration banned by the Mayor of the town of Bujumbura: “…
and therefore, the procession that you intend to hold on June 20, 2014 cannot be permitted under
any circumstances”
17 (emphasis added).
In response to a prior declaration by the president of OLUCOME,
18 the Mayor of
Bujumbura wrote: “…I regret to inform you that, following the animated press conference by the
Attorney General of the Republic on April 4, 2014 regarding the Ernest MANIRUMVA file,
which exposes the sentiment of certain civil society organizations, including OLUCOME to seek
to confuse justice, this authorization cannot be granted”
19 (emphasis added).
Furthermore, prior declaration (authorization) is required to exercise the right to freedom
of assembly and all other forms of peaceful assembly. It must contain all the information
provided by Articles 4 and 7 lest it be deemed inadmissible by the administrative authorities.
20
Recommendation: Prior declaration as provided by law and interpreted by the
administration goes against Articles 19 and 32 of the Constitution of the Republic of Burundi
and Article 21 of the ICCPR. Reform is necessary to differentiate gatherings that may pertain to
the declaration and those that may not.
 A prior declaration must be required only for demonstrations of a great scale. Above
all, it must serve the legitimate reason of ensuring public safety and order for peaceful
assemblies.

16 Likewise, par. 54.
17 Letter from the Minister of the Interior No. 530/1161/CAB/2014 to Mr. Vice President of FORSC.
18 The Observatory for the Fight against Corruption and Economic Embezzlement (OLUCOME) planned to
hold a demonstration for the commemoration of the fifth anniversary of Ernest Manirumva’s assassination, former
vice-president of the organization.
19 Letter from the Mayor of Bujumbura No. 531.17/618/CAB/2014 dated April 4, 2014, to Gabriel Rufyiri,
President of OLUCOME.
20 See FORSC’s letter No. Ref 121/7/FORSC/2014 dated July 26, 2014, to the Mayor of Bujumbura.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 27
 It should be a simple letter indicating intent to exercise the right to freedom of
peaceful assembly and requesting protection of the assembly by the administration
and the police.
 Where a declaration is required, it must not be interpreted as an authorization.
B. Spontaneous gathering
Problem: The requirement of a prior declaration provided by Articles 4 and 7 leaves no
place for a spontaneous gathering. Indeed, Article 9 underlines that any assembly or gathering
that does not comply with the law is unlawful and susceptible to sanction.
Analysis: The requirement of a prior declaration should not be so strict as to prohibit a
demonstration or a spontaneous assembly. Spontaneous gatherings are generally considered as
those occurring in response to an event, an incident, another gathering, or even when an
organizer (if there is one) cannot meet the legal deadline for prior notification or when there are
no organizers at all. These assemblies often occur at the same time as the triggering event, and
the capacity to keep them spontaneous is crucial, for any lateness would weaken their message.
21
Freedom of association is an intrinsic right to human beings, and its exercise can only be
conditioned by an administrative procedure in the event of special circumstances specifically
defined by legal provisions.
Practice: Spontaneous assemblies are not possible in Burundi because a prior declaration
is required.
Recommendation: We propose reforming the law to provide the possibility for
spontaneous gatherings to be conducted.
C. Discretion of the administration to ban a peaceful assembly
Problem: Articles 5 and 8 give discretionary power to the administrative authority
notified to defer or ban an assembly if maintaining public order absolutely demands it.
Analysis: Maintaining public order is one of the legitimate reasons provided by Article
21 of the ICCPR to restrict freedom of peaceful assembly. However, this notion should not be
interpreted so broadly as to allow restrictions when a disturbance of peace is merely
hypothetical. The authority should produce material evidence demonstrating an imminent public
disturbance.
According to international standards, restriction of the right to freedom of assembly on
grounds of maintenance of public order should only be invoked when there is irrefutable and
verifiable proof that the participants themselves will resort to violence.
22
The Special Rapporteur reminds in his report on the right to freedom of peaceful
assembly and association that the exercise of the right to freedom of peaceful assembly can only
be subject to restrictions “that are in conformity with the law and which are necessary in a
democratic society in the interest of national security or public safety, public order, the
protection of public health or morals or the protection of the rights and freedoms of others.” In

21 OSCE/ODIHR, op. cit., 67.
22 Likewise, 51.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 28
this context, he emphasizes once again that freedom must be the rule and restriction the
exception.
23
Practice: The administration often violates the exercise of the right to freedom of
peaceful assembly. Although Burundian law provides only public order as a basis for restricting
freedom of assembly, in practice the administration invents reasons to ban even a properly
registered assembly. This practice violates three principles: the principles of legality,
proportionality, and good governance.
According to the principle of legality, all restrictions imposed must have a legal basis and
comply with international legal instruments on human rights. Administrative authorities should
not invoke justifications other than those explicitly provided by law. Moreover, the law must be
specific enough to allow individuals to assess what conduct may constitute a violation as well as
the consequences.
24
Where the principle of proportionality is concerned, any restriction imposed on freedom
of assembly must be proportional to the legitimate goal sought by the administration.
25
As to the principle of good governance, restrictions imposed on an assembly should be
promptly communicated in writing to the organizers to allow them to appeal the decision to an
independent court that would give a ruling before the date of the event.
26
A few examples illustrate the practice:
On February 4, 2014, police prevented the Bar Association of Burundi from holding its
general assembly with a verbal notice that was as unfounded as it was illegal, stating that the
assembly was not permitted by the Mayor of Bujumbura.
27 Yet, statutory assemblies of
organizations are explicitly excluded from the scope of application of the law on public
assemblies and demonstrations, as per Article 2.
On February 18, 2014, police once again denied the Bar Association of Burundi to jointly
hold a training seminar with the French Bar Associations without a written basis, because the
police simply prohibited those lawyers from gaining access to the training room. Although the
law does not require any form of statement for trainings that are scientific in nature, the Bar had
notified the Mayor of Bujumbura about the training in writing as a courtesy.
28
In his response to the administrative appeal filed by the Forum for the Strengthening of
Civil Society (FORSC) for the march in support of Pierre Claver Mbonimpa,
29 the Minister of

23United Nations, General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful
assembly and of association, MainaKiai, A/HRC/23/39, § 43,
https://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/23/39&referer=/english/&Lang=F.
24 OSCE/ODIHR, op. cit., 16.
25 Id.
26 Id.
27 For a reminder of the day’s event (including the interview of President of the Lawyers’ Association of
Burundi), see https://www.youtube.com/watch?v=T3P_7wxGLkg.
28 Amnesty International, Rapport sur le Burundi, Le vérrouillage,lorsque l’espace politique se retrécit, 15,
https://reliefweb.int/sites/reliefweb.int/files/resources/Burundi%20-%20le%20verrouillage.pdf.
29 Pierre Claver Mbonimpa is a human rights defender in prison at the time this project was drafted, and
president of the Association for the protection of prisoners’ human rights.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 29
the Interior invoked the pending criminal case (Public Prosecutor C/Pierre Mbonimpa) to ban the
demonstration under the following terms: “Indeed, you claim to support Mr. Pierre Claver
MBONIMPA in an ongoing judicial case before the court. It would therefore be wise to show
patience and to allow the court time to render its ruling instead of distracting the public;
consequently, the procession you intend to hold on June 20, 2014 cannot be permitted under any
circumstances.”
30
The Mayor of Bujumbura recalled a press conference of the Attorney General of the
Republic to deny a demonstration declared in good order: “…I regret to inform you that
following the animated press conference by the Attorney General of the Republic on April 4,
2014 regarding the Ernest MANIRUMVA case, which exposes the attitude of certain civil
society organizations as well as that of the head of OLUCOME to seek to confuse justice, this
authorization cannot be allowed.”
31
All the cases mentioned constitute serious violations of international human rights law
(Article 21 of the ICCPR, Article 11 of the African Charter on Human and Peoples’ Rights,
Article 15 of the Convention on the Rights of the Child), of the Constitution of the Republic of
Burundi (Article 32), and of that same law citing Articles 4 (4), 5(2), 10(2), which stipulate that a
decision of refusal must be duly justified.
Recommendation: Certain recommendations are relevant concerning the legitimate
justification for restricting a peaceful assembly:
 The law must be reformed to provide only those restrictions allowed by Article 21 of
the ICCPR.
 Legitimate restrictions must be interpreted in a restrictive manner and in conformity
with international standards.
 The administration must keep from invoking justifications not provided by law to
prohibit a peaceful assembly, as per Article 32 of the Constitution.
32
 The administration must address peaceful assembly organizers in writing, with
appropriate justification.
D. Recourse mechanisms
Problem: According to Article 5, assembly organizers possess both a hierarchic and a
judicial recourse to appeal an unfavorable decision concerning a peaceful assembly. However,
the law is not specific as to time period within which the administrative court must render its
ruling. The law merely states that the court shall rule according to the emergency procedure.
Analysis: Article 14 of the ICCPR provides that everyone has the right for his/her case to
be fairly and publicly heard by a competent, independent, and impartial court established by law,
which will rule without undue delay.

30 Letter from the Minister of the Interior No. 530/1161/CAB/2014 dated June 18, 2014, to Vice President
of FORSC.
31 Letter from the Mayor of Bujumura, No. 531.17/618?CAB/2014, dated April 4, 2014, to Gabriel Rufyiri,
President of OLUCOME.
32 Article 32: “Freedom of assembly and association is guaranteed, as well as the right to establish
associations or organizations in accordance with the law.”
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 30
The Constitution of the Republic of Burundi similarly provides that every person has the
right, in a judicial or administrative procedure, for his/her case to be heard equitably and to be
judged within a reasonable time period.
33
Indeed, the terms “without undue delay” and “reasonable time period” seek to protect
those who resort to courts and tribunals, and whose interests can be compromised by an unjustly
lengthy judicial procedure. In the present context, the interest in question is the legitimate
exercise of the right to freedom of peaceful assembly.
Thus, organizers should have effective and efficient mechanisms to appeal a decision that
they deem arbitrary. Such decisions should be communicated to the organizers within a
reasonable time frame to allow organizers to hold a peaceful assembly that was previously
banned.
34
Consequently, when the law uses vague terms for such a sensitive subject matter, it can
constitute a breach for violations of the right to freedom of assembly.
Practice: Practice shows that not establishing time constraints on the Administrative
Court process jeopardizes freedom of peaceful assembly. On June 26, 2014, the Forum for
Strengthening Civil Society filed an appeal before the Administrative Court against the June 12
decision No. 531.17/1015/CAB/2014 by the Mayor of Bujumbura. Although the law provides
that the Administrative Court adjudicate such a case according to the emergency procedure, the
first public hearing was planned for over two months after the case was filed.
This delay is undue (Article 14 of the ICCPR) and in no way constitutes a reasonable
time period (Article 38 of the Constitution) to rule on the illegality of a decision prohibiting a
public demonstration.
Recommendation: The law should specify the deadline by which the Administrative
Court should render its judgment. We recommend a 48-hour time period for the administrative
appeal.
E. Time constraint
Problem: Article 11 provides that public assemblies and demonstrations cannot begin
before 6 a.m. or extend beyond 6 p.m.
Analysis: The right to freedom of assembly is admittedly not absolute. However, the
potential restrictions that it may be subjected to are limited to provisions of Article 21 of the
ICCPR. Restricting freedom of assembly at night makes sense in certain situations for public
demonstrations in poorly lit locales and for assemblies that may cause nighttime disturbances.
However, certain assemblies may be held past 6 p.m. in secure and enclosed places. As long as
assemblies are presumed peaceful where the law is concerned, there is no reason not to hold
them at night.
Moreover, restricting peaceful assemblies between the hours of 6 a.m. and 6 p.m. is
detrimental to the exercise of the right to freedom of assembly, on the basis that those are
working hours for a majority of people. Instead of allowing peaceful assemblies only during the

33 Article 38 of law No. 1/010, dated March 18, 2005, enacted from the Constitution of the Republic of
Burundi.
34 OSCE/ODIHR, op. cit., 70.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 31
day, the law should allow peaceful assemblies that pose no practical problem to be held at night,
as well as alternative means of control and security for potentially dangerous assemblies.
Practice: Nighttime peaceful gatherings are nonexistent in Burundi.
Recommendation: The law should make distinctions between assemblies being held in
enclosed spaces and public demonstrations. For the latter, the answer is not to ban them outright,
but to regulate them on a case-by-case basis.
F. Maintaining public order in peaceful assemblies
Problem: Article 13: coordinating and monitoring assemblies and demonstrations falls to
the organizing office, which is also responsible for policing the assembly and maintaining public
order.
Analysis: It is the duty of the State and its agents to maintain public order, in this case,
the police and local administration.
It is understandable that organizers collaborate with police and administrative authorities
to maintain public order in an assembly or a demonstration. However, it is inconceivable in both
national and international law that the primary responsibility for maintaining public order in this
type of event should fall on people who lack the position, the training, and the means to achieve
it.
It is an extremely important legal gap and an impediment to the exercise of the right to
freedom of assembly. In a framework where a spontaneous assembly is not permitted, and where
all assemblies are subject to prior declaration identifying three official organizers, it is difficult to
find people who will commit to bear the responsibility of acting as administration and police and
suffer the consequences in case of failure to control the crowd.
The law in South Africa on the regulation of assemblies is a good alternative. It states
that the peaceful exercise of the right to assemble is the joint responsibility of event organizers,
police, and local administration leaders. Together, these three groups form a “security triangle”
with the joint responsibility to ensure order and safety during public events. The success of the
security triangle is due to collective planning, cooperation between the three groups, and a
willingness to negotiate a compromise when conflicts arise.
Practice: There is no available data regarding practice in this area.
Recommendation: The law should be clear on the responsibility of each of the relevant
actors: the administration, the police, and the peaceful assembly organizers. Contrary to current
law, the lead role should fall on the police and the administration, since they are responsible for
law enforcement.
G. Criminal and civil responsibility
Problem: The last paragraph of Article 13 states that members of the organizing office
may incur civil action for damages caused and criminal action for offenses committed during
assembly activities, if assembly or demonstration organizers turn out to be at fault.
Analysis: Organizers have a responsibility to provide all possible efforts to uphold the
law and maintain the peaceful nature of the assembly. They should not, however, be held liable
for failing that responsibility if it is shown that they have provided reasonable efforts to do so.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 32
Likewise, organizers should not be held liable for unlawful acts committed by
participants. Individual liability should arise for participants or organizers who commit an
offense or fail to carry out the rules and guidelines put in place by the administration and the
police.
35
Furthermore, when an assembly escalates into public disorder, it is the State’s
responsibility to provide damage control. Organizers cannot be held liable for the actions of
others.
In this respect, the law is not in accordance with international standards and national laws
on individual criminal liability.
Practice: There is no data concerning practice in this area.
Recommendation: All provisions that bestow shared liability on the organizers for the
actions of a few must be removed and replaced with a system of individual criminal liability.
The law should not include criminal dispositions since all potential offenses in assemblies
are provided for in the Burundian penal code.
H. Ban on counterdemonstrations
Problem: Article 18, par. 2, imposes a fine of 100,000 to 500,000 Burundi francs on
counterdemonstrators.
Analysis: Not only are counterdemonstrations banned, they are criminally punishable by
a fine. Yet, everyone has the right to assemble as a counterdemonstrators to express
disagreement with another demonstration. What is crucial in such circumstances is to protect the
rights of each group to enjoy freedom of peaceful assembly. Instead of banning this type of
demonstration, an emphasis should be placed on the State’s duty to take measures to prevent the
disruption of the original demonstration while also protecting the rights of the
counterdemonstrator.
36
Practice: Practice is nonexistent, since this type of demonstration is strictly prohibited
and punishable by law.
Recommendation: We recommend decriminalizing counterdemonstrations and
regulating them in accordance with universally applicable guidelines.
Conclusion
Despite the existence of the right to freedom of assembly in Burundian legislation, its
exercise has never fully been realized. Depending on the political climate, the exercise of the
right to freedom of assembly has been subject to either de facto restrictions or restrictions based
on text, legislation, or regulation.
The democratization process of the 1990s and the Arusha peace negotiations have
brought about a renewed importance of the fundamental human rights principles, which have
been integrated in national texts.

35 Id., 93.
36 Likewise, 66.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 33
However, there is a tendency to pass increasingly restrictive laws. The law regulating
public demonstrations and assemblies is an example. The text contains a good number of
restrictions to the exercise of the right to freedom of peaceful assembly.
We have analyzed these restrictions in the scope of international human rights law and of
basic principles that stem from international practice. For each analysis, we have put forth
recommendations aiming to reform the legal text.
Ultimately, we recommend a revision of the law paired with raising the awareness of
administrative and police authorities responsible for implementing the law, thus ensuring that the
people residing on Burundi territory actually enjoy the right to freedom of assembly.
Bibliography
International legal texts
Universal Declaration of Human Rights
African Charter on Human and Peoples’ Rights
Convention on the Rights of the Child
International Covenant on Civil and Political Rights
International Covenant on Economic, Social, and Cultural Rights
Treaty Establishing the East African Community
National legal texts
Order in Ruanda-Urundi No. 111/29 of January 31, 1959, regulating public demonstrations and assemblies
Order in Ruanda-Urundi No. 111/29 of January 18, 1962, regulating public assemblies
Decree No. 100/187/91 of December 31, 1991, regulating public demonstrations and assemblies
The 2000 Arusha Peace and Reconciliation Agreement for Burundi
The March 28, 2005, Constitution of the Republic of Burundi
The December 5, 2013 law No. 1/28 regulating public demonstrations and assemblies
The various constitutions that have governed Burundi: www.uantwerpen.be/en/faculties/iob/research-andservice/centre-great-lakes/dpp-burundi/constitution/aper-u-hist-const/
Publication
OSCE/ODIHR, Guidelines on Freedom of Peaceful Assembly (2d ed.) (Warsaw/Strasbourg, 2010)
Reports and press articles
United Nations, General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful assembly
and of association, MainaKiai, A/HRC/23/39,
https://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/23/39&referer=/english/&Lang=F
Amnesty International, Rapport sur le Burundi,Le vérrouillage, lorsque l’espace politique se retrécit,
https://reliefweb.int/sites/reliefweb.int/files/resources/Burundi%20-%20le%20verrouillage.pdf
François Mitterrand’s speech at the La Baule conference. https://www1.rfi.fr/actufr/articles/037/article_20103.asp
Interview with the President of the Burundi Bar, https://www.youtube.com/watch?v=T3P_7wxGLkg
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 34
Civil Society in Africa
POLITICS, POWER, AND ACCOUNTABILITY:
ADDRESSING THE ELEPHANT IN THE ROOM
IN THE QUEST FOR CIVIL SOCIETY ORGANIZATIONS’
RIGHT TO FREEDOM OF ASSOCIATION
DR. MARIA NASSALI*
1. Introduction
The right to freedom of association is increasingly being illuminated in the international
human rights arena, as demonstrated by the adoption of the Human Rights Defenders Declaration
by the General Assembly in 1998 and the establishment of the mandate of Special Rapporteur on
the same issue in 2010.1
Simultaneously, there is an alarming global trend of clamping down on
independent civil society spaces under the guise of combating terrorism, defending government’s
sovereignty, and safeguarding the public from bad governance of civil society organizations
(CSOs).2
In the East African region, since September 11, 2001, there is an apprehension that CSOs
can facilitate terrorism. Further, following the Arab and North Africa springs of 2012, East
African governments have become intolerant to social protests.3 Government perceives CSOs as
partners, appendages of government, foreign stooges, economic saboteurs, inciters of violence,
or watchdogs, depending on the nature of their activities. Ugandan President Yoweri Museveni
has publicly castigated CSOs with alternative views as “internal saboteurs and acting on behalf
of foreign interests.”4 Given that participation in associational life promotes political
consciousness and encourages more involvement in politics, through voting, campaigning, and
willingness to stand for elective office, it is one of the most restricted rights because it threatens
those in power.5 As articulated by the former Chief Justice of Australia, Justice Gleeson, because
government claim to represent the will of the people, it does not like to be checked and balanced
which it deems as a threat or challenge to its power.6

* Maria Nassali has a Doctorate in Law from the University of Pretoria. She majored in Human Rights and
Governance. She is currently working as a Lecturer at the School of Law, Makerere University. She is also the Chief
Executive Officer of International Governance Alliance. Email: mnassali@law.mak.ac.ug; mnassali@int-govalliance.org.
1
ICNL & WMD, Defending Civil Society Report, 2d ed. (June 2012) at 3, 9.
2
ICNL & WMD, International Principles Protecting Civil Society,
https://www.defendingcivilsociety.org/en/index.php/principles
3 The EAC Deputy Secretary General in charge of Political Federation, https://www.eac.int/abouteac/eacnews/981-2nd-political-dialogue.html
4 Halima Abdalla, Under Siege, Museveni Seeks Support on Oil Law, Aid Cuts, EAST AFRICAN (15-21
December 2012) at 5.
5 M. EDWARDS, CIVIL SOCIETY 102 (2004).
6
Justice Nkabinde, keynote address, Judicial Symposium Chobe, 30 September 2014.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 35
This article argues that in a democratic society, the state and a vibrant civil society are
“two sides of the same coin and are complementary in improving society.”7 Civil society and the
state are interdependent, with states expected to provide the legal and regulatory framework for
civil society to independently function in order to play an oversight role over government’s
accountability to its citizens.8
The article begins with the conceptual framework for the right to freedom of association
in part 2. In part 3 it examines the legal and regulatory framework in Uganda to assess whether it
supports the rights to freedom of association of CSOs. It proceeds with an analysis of the root
cause of tension between CSOs and government as the struggle of power, resources, and
influence in part 4. In part 5 it recommends the strengthening of CSOs’ political consciousness.
Part 6 concludes.
2. The Conceptual Framework
Civil society has a right to autonomous existence as guaranteed under international
human rights and the Uganda Constitution.9
This article is premised on the intersection of human
rights and democracy discourses as mutually reinforcing, because democracy cannot exist
without full respect for human rights. Conceptualized as a normative principle to constrain the
abuse of power, human rights form the cornerstone of democratic governance in order to expand
space for strengthening the rights and obligations of the citizens to participate in decisions that
affect their lives and to hold the leadership accountable. The formation of associations provides
an important beginning to organize and advocate for rights as well as engage governments in
pursuit of common interests.10 In fact, only organized people can effectively struggle against
oppression and repression by governments.11
The article applies the three concepts of civil society identified by Edwards: civil society
as associational life, as good society and public sphere, and as mutually reinforcing.12 The first
and dominant view of civil society is that of voluntary associations or organizations situated
between the family and the state, which, though autonomous from the state, interact with it to
advance their interests.13 The second school of thought conceptualizes civil society as “good
society”: a desirable social order in which all institutions operate in ways that nurture positive

7 C.E. WELCH, PROTECTING HUMAN RIGHTS IN AFRICA: ROLES AND STRATEGIES OF NON-GOVERNMENTAL
ORGANIZATIONS 44 (1995).
8 EDWARDS, supra note 5, at 24.
9
ICCPR (1966), Art. 22; African Charter, Art.10; Constitution of Uganda (1995), Art. 29.
10 AFRICAN COMMISSION, REPORT OF THE AFRICAN COMMISSION’S WORKING GROUPS OF EXPERTS ON
INDIGENOUS POPULATIONS/COMMUNITIES 57 (2005).
11 C.M. PETER, HUMAN RIGHTS IN TANZANIA: SELECTED CASES AND MATERIALS 650 (2007).
12 EDWARDS, supra note 5.
13 Id.; P. UVIN, HUMAN RIGHTS AND DEVELOPMENT (2004); NYANGABYAKI, CONTEMPORARY CIVIL
SOCIETY AND DEMOCRATISATION PROCESS IN UGANDA: A PRELIMINARY EXPLORATION (2000); J. OLOKAONYANGO, CIVIL SOCIETY, DEMOCRATISATION AND FOREIGN DONORS IN CONTEMPORARY UGANDA: A
CONCEPTUAL AND LITERATURE REVIEW 23 (2000); J. J. BARYA, THE STATE OF CIVIL SOCIETY IN UGANDA: AN
ANALYSIS OF THE LEGAL AND POLITICO-ECONOMIC ASPECTS (2000); M. SWILLING & B. RUSSELL, THE SIZE AND
SCOPE OF THE NON-PROFIT SECTOR IN SOUTH AFRICA (2002); M.G. Ngunyi, Building Democracy in a Polarised
Civil Society: The Transition to Multi-Party Democracy in Kenya, in LAW AND THE STRUGGLE FOR DEMOCRACY IN
EAST AFRICA (J. Oloka-Onyango, K. Kibwana, & C.M. Peter eds.) (1996).
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 36
social norms, such as tolerance, nondiscrimination, nonviolence, trust, cooperation, and rights.14
In its social role, civil society is seen as the reservoir of social capital and positive social norms
that foster community-building, bonds of trust, cooperation, and reciprocity, and enriches the
human condition.15 The third school of thought perceives civil society as part of the public
sphere: an arena for argument and deliberation as well as for associational and institutional
collaboration.16 The public sphere is an arena where societal differences, social problems, public
policy, government action, and cultural and common identities are debated and developed. In this
political role, civil society serves as a crucial counterweight to state and corporate power and as
an essential pillar in promoting good governance.17 Civil society also provides channels through
which people can have their voices heard in government decision-making and sharpens skills for
political leadership.18 Thus, civil society has influenced, altered, and shaped the political
discourse and the human rights terrain. Ostensibly, an integrated approach of the concept of civil
society is useful in attacking all forms of inequities and promoting democratic spaces.19
The expectation that civil society serves as a countervailing force against government’s
abuse of power is a source of disharmony in the state-CSO relationship. The Oxford Dictionary
defines power as the authority to do something, influence people or events, and strength.
According to Lips, power is not a commodity but a process underpinning human relationships.20
Power is related to human rights, such that whenever human rights violations occur, negative
power relations are often prevalent. While activism is about challenging existing power
structures and imbalances, unfortunately within the human rights corpus, power is largely
ignored21 or treated as negative or corrupting. Inadvertently, the ambivalence about overtly
challenging the abuse of power is constraining CSOs’ capacity to collectively challenge
government’s intrusion into their independent organizing.
Building on this conceptual framework, the next section asks whether or not government
should interfere in the internal functioning of CSOs by regulating their internal governance.
3. The Legal Framework for the Operations of CSOs
In Uganda, the Constitution provides for freedom of association22 and the right to freely
participate in peaceful activities and to influence the policies of government through civic
action.23 Further, the National Objectives and Directive Principles of State Policy provide for the
autonomy of civic organizations and their participation in public affairs,24 and commit the state

14 EDWARDS, supra note 5, at 39.
15 Id. at 14; L. M. SALAMON ET AL., GLOBAL CIVIL SOCIETY: DIMENSIONS OF THE NON-PROFIT SECTOR 23
(2004).
16 EDWARDS, supra note 5, at 55.
17 Id. at 14-15.
18 Id. at 15.
19 Id. at 96.
20 H.M. LIPS, WOMEN, MEN AND POWER 3-4 (1991).
21 M. MUTUA, HUMAN RIGHTS: A POLITICAL AND CULTURAL CRITIQUE 13 (2002).
22 Id., Art. 29(e).
23 Id., Art. 38(2).
24 Id., Principle II (vi).
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to respect the independence of institutions and NGOs working on protecting and promoting
human rights.25
Before 1989, CSOs registered either as Companies limited by guarantee under the
Companies Act or as Trusts under the Trustees Incorporation Act.26 Today, a majority of
organizations are registered under the NGO Act. The NGO Act acknowledges the right of any
organization to choose alternative registration and stresses that the Act only applies to NGOs
registered under it.27 However, given that organizations registered under the Companies Act or
the Trustees Act are not subjected to the same stringent regulations as those under the NGO Act,
this section focuses on the NGO Act to highlight the assault to freedom of association.
The first NGO law was enacted in 198928 to provide for the registration of NGOs and
establish the NGO Board. The NGO law was amended in 2006 to strengthen government’s
monitoring role.29 The 2006 law introduced some progressive provisions. The amendment
incorporated gender representation by providing that a third of the NGO Board must be
women.30 An NGO automatically acquires legal personality on registration instead of having to
undergo double registration under the Companies Act, as was originally the case.31 Lastly, it
exempts Community Based Organizations (CBOs) from registering with the NGO Board and
instead provides for registration with the District authorities, which takes the service closer to the
people.32
On the negative side, the law expands the function of the Board beyond registration to
include the monitoring of NGOs.33 Further, it retains provisions from the 1989 law, such as the
representation of security organs on the NGO Board; the criminalization of non-registration34;
and the discretionary powers of the NGO Board to revoke a license in the public interest.35
Although the law purports to include NGOs on the National NGO Board, there is no guarantee
that the three public representatives will be NGO representatives,36 because they are nominated
by the government. Worse still, the law introduces a permit,37 whose duration and conditions are
to be prescribed by the Minister,38 making the existence of NGOs precarious.

25 Id., Principle V (ii).
26 Companies Act Cap 85, Trusteeship Act Cap 147, Partnership and Associations Act Cap 87.
27 NGO Amendment Act (2006) § 2(1)a.
28 Uganda NGO Act, Cap 113, formerly Statute 5 of 1989.
29 NGO Amendment Act No. 25/2006.
30 NGO Amendment Act (2006) § 4 (2).
31 NGO Amendment Act (2006) § 2 (3).
32 NGO Amendment Act (2006) §7(2).
33 NGO Amendment Act (2006) § 7.
34 NGO Amendment Act (2006) §§ 2(5), 2(6).
35 NGO Amendment Act (2006) §10 (c).
36 NGO Amendment Act (2006) § 4 (1).
37 NGO Amendment Act (2006) § 2.
38 NGO Amendment Act (2006) § 13.
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The 2009 NGO Registration Regulations made the registration process more
cumbersome. In addition to the constitution as a common registration requirement, a prospective
NGO is supposed to specify the geographical area, field of operation, organizational structure,
work plan, and a one-year budget, and provide written recommendations from the two sureties,
two sub-county chiefs or Resident District Commissioners (RDCs).39 While originally the
government had proposed to have the NGO permit annually renewable, the NGO Regulations
maintained the original position of having the permit renewable initially for twelve months and
subsequently for thirty-six months and thereafter sixty months.40 Further, the regulations retain
the provision that recognizes that an NGO can engage in gainful activities for the economic
interest of the organization.41 An NGO is supposed to give a seven days’ notice to the Local
Council and Resident District Commissioner before contacting the local communities.42
The NGO Policy of 2010 was enacted after the Act, yet it is policy that guides the legal
framework. Nonetheless, it has some positive attributes. Its vision of a “vibrant and accountable
NGO sector enabling citizens’ advancement and self-transformation”43 is human-rights oriented.
It commits government to respecting the autonomy of NGOs and is guided by the principles of
respect for human rights, freedom of association, voluntarism, diversity, NGO autonomy, selfgovernance, self-regulation, dignity, mutual respect, trust, gender equity, and equality.44 It
clarifies that the District leadership does not have power to deregister an NGO but rather should
refer the case to the NGO Board.45 Adversely, the NGO Policy narrowly defines NGOs by
placing emphasis on augmenting government’s work,46 with NGOs deemed as appendages of
government. Further, it creates an NGO monitoring infrastructure at the District and Sub-County
levels and subjects the self-regulation mechanism to the approval of the Board. The local
governments are mandated to coordinate, monitor, and supervise the activities of NGOs,47 which
exposes NGOs to government arbitrariness. Furthermore, it does not provide for tax incentives to
stimulate the development of local philanthropy.
Besides the specific NGO law, other laws and policies curtail the right to freedom of
association. In 2007, the Ministry of Internal Affairs enacted the Police Declaration of Gazetted
Areas Instrument, which among others compels 25 or more people to assemble in only
specifically gazetted areas and to secure a permit for holding an assembly, demonstration, or
procession, from the Inspector General of Police (IGP).48
Further, the Public Order and Management Act of 2013 purports to bestow the same
powers on the IGP which powers were challenged in the Constitutional Court in Muwanga

39 NGO Registration Regulations (2009) 156-157.
40 Uganda NGO Registration Regulations (2009) r.7.
41 Uganda NGO Registration Regulations (2009) r. 15.
42 Uganda NGO Registration Regulations (2009) r.13.
43 NGO Policy (2010), at 19.
44 Id.
45 NGO Policy (2010), at 43-45.
46 NGO Policy (2010), at 12.
47 Local Government Act (2006) §§ 18(b), 27, 50(f).
48 Police (Declaration of Gazetted Areas) Statutory Instrument No. 53 of 2007, r. 2, 3, 4 & 5.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 39
Kivumbi.49 Specifically, the police have powers to regulate the conduct of the public meetings in
accordance with the law.50 Moreover, a public meeting is broadly defined as any “gathering,
assembly, procession or demonstration in a public space or premises held for purposes of
discussing, acting upon, petitioning or expressing views on a matter of public interest.”51 The
organizers are required to provide notice of between three and fifteen days to the Police,
outlining the consent of the owner of the venue, the site of the meeting, the estimated number of
persons expected; further, the meeting must be held between 7 a.m. and 7 p.m.52 If the organizers
fail to comply with the notice requirement or if they hold the meeting at different time, date, or
route than is specified in the notice,53 they are criminally liable for the offense of disobedience to
statutory duty.54
The government is also relying on criminal law to frustrate the use of civil disobedience
as an accountability mechanism, through such laws as unlawful society, where three or more
people associate for purposes of subverting of government, committing or inciting violence, or
interfering with the administration of law;55 unlawful assembly, where three or more people
assemble to cause fear or breach of peace;56 and inciting violence.57
Progressively, to mitigate the erosion of the rights to freedom of expression and
association, in 2011 the UHRC issued guidelines on public demonstrations,58 underlining the
Police’s duty to intervene only in cases of criminal behavior, breach of peace, anticipated
imminent violent situations, or sight of dangerous weapons; to make arrests only where deemed
appropriate; to disperse demonstrations in an orderly manner; and at all times to guarantee free
and unrestricted media coverage.59 The organizers are required to give written notification to the
police, designate an officer to coordinate the activity, not violate the rights of others, and not
disrupt the right of passage.60
As observed by the National Development Plan, the current law constrains productive
engagement between NGOs and the government.61 Thus the flourishing of NGOs in Uganda has
not been due to a favorable legal environment. As propounded by Fisher, NGOs flourish when
demand for services is not met, irrespective of whether the government is democratic or not,

49 Muwanga Kivumbi v. AG, Constitutional Petition No. 9/2005.
50 Public Order and Management Act (2013) § 3.
51 Id. § 4 (1).
52 Id. § 5.
53 Id. § 5(5).
54 Id. § 5(8).
55 Uganda Penal Code Act, § 56.
56 Uganda Penal Code Act, § 65.
57 Uganda Penal Code Act, § 83.
58 UHRC GUIDELINES ON PUBLIC DEMONSTRATIONS AND PROCESSIONS IN UGANDA 76-77 (2011).
59 UHRC Annual Report (2011) 76-77.
60 UHRC GUIDELINES, supra note 58, at 76-77.
61 National Development Plan (2010) at 28.
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particularly in light of government incapacity to enforce repressive registration.62 Luckily, the
NGO Board hardly has the capacity to enforce the law.
To mitigate the negative repercussions of the law, the NGO Forum and DENIVA have
worked with the National NGO Board to develop the NGO regulations and Policy as well as
strengthen the capacity of the NGO Board to understand its roles and responsibilities.63
Having analyzed the law and highlighted the fact that it is aimed at controlling CSOs, the
following discussion analyzes the underlying reasons for controlling CSOs’ spaces.
4. The Struggle for Power, Resources, and Influence
Any organization or actor with influence and power must be subjected to pressure for
accountability.64 The increasing power and influence of CSOs has triggered public scrutiny of
their own accountability for organizational resources. Unfortunately at the time of drafting the
NGO Act in 2006, there was ambivalence about growing public cynicism over the CSO sector,
particularly in the aftermath of the misappropriation of Global Alliance for Vaccine and
Immunisation (GAVI) Fund, where Government NGOs (GONGOs) tainted the image of the
sector. During the advocacy call-in radio programs organized by the sector, most callers attacked
CSOs as thieves and commended government for streamlining the sector.
The scramble for scarce resources is a source of tension between CSOs and government.
For example, the fact that in 2009 NGOs spent about US $200 million, which is comparable to
the World Bank Poverty Support Credit (PRSP) budget, has ignited antagonism.65 Consequently,
the Ministry of Finance Survey on the NGOs’ revenue66 recommended coordinating donor aid
flows by the Ministry of Finance; monitoring by the Local Governments; revoking an NGO’s
license for failure to disclose the financial information; and making the registration and renewal
of the NGO license stricter.67
Worse still, the suspension of direct budgetary support to government for 2013, while
maintaining support to projects, agencies, and civil society,68 has aggravated state-civil society
relations.69 For example, the President during the Oil Bill debate questioned how ACODE could
expend more Parliamentary allowances than government could provide and instructed the IGG to

62 J. FISHER, NGOS AND THE POLITICAL DEVELOPMENT OF THE THIRD WORLD 2 (1998) at 68.
63 R. Sewakiryanga, Statement by Civil Society Representative at the Launch of the National NGO Policy,
27 July 2012 at the Golf Course Hotel, Kampala, Uganda.
64 EDWARDS, supra note 5, at 17; M. Robinson, What Rights Can Add to Good Development Practice, in
HUMAN RIGHTS AND DEVELOPMENT: TOWARDS MUTUAL REINFORCEMENT (P. Alston & M. Robinson eds.) (2005)
at 36.
65 UGANDA GOVERNMENT, MINISTRY OF FINANCE, PLANNING AND ECONOMIC DEVELOPMENT (MOFPED)
AND BELGIAN TECHNICAL COOPERATION (BTC) DATA COLLECTION ON DONOR SUPPORT IN LOCAL GOVERNMENT
AND THE DEVELOPMENT OF A TOOL FOR TRACKING DONOR SUPPORT AT THE MICRO LEVEL 33, 37 (2009).
66 Uganda NGO Board Records (2005) ADM/79/158/02, 11 April 2007.
67 Id. at 9,13-14.
68 Mark Lowcock, Ugandan Citizens and Donors Must Not Tolerate Stealing of Public Funds, DAILY
MONITOR, 7 Dec. 2012, at 2; Samuel Sanya & Anne Mugisa, Government to Cut Budget to Fund Critical Sectors,
NEW VISION, 5 Dec 2012, at 1.
69 Abdalla, supra note 4, at 5.
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investigate the asset base of NGO officials.70 Moreover, the government’s accusation that NGOs
are promoting foreign interests is absurd given that both government and NGOs receive
resources from the same donors.
Consequently, the future of independent organizations lies not only with government
respect of rights, but also with civil society’s coherence in defending its rights.71 In strengthening
CSOs’ voice, it is imperative that they strengthen their internal governance through selfregulation. However, while the NGO Forum and DENIVA have introduced the Quality
Assurance Management (QuAM) as a peer-review mechanism to enhance good governance, it is
voluntary and casually enforced. Consequently, on failure to self-regulate, the CSO sector is
prone to being besieged by government with the legitimate excuse that it is filling the void
created by the inability of the sector to self-regulate.
NGO operations are shaped and regulated within the frameworks that are determined by
the state’s political interests.72 Currently, the National Development Plan (NDP) predominantly
perceives CSOs as “appendages of government whose programmes and financing should be
integrated in the government plans.”73 Yet, successful partnership should be premised on the
independence and autonomy of the parties. Thus the desire to align CSOs’ work with
government’s priorities contradicts the very essence of advocacy work because it is the
controversy which warrants alternative voices.
Given the vulnerability of CSOs when power fights back, there is preference for nonconfrontational and non-contentious strategies that keep organizations apolitical, such as
engaging issues that the state does not contest. This explains the weak coherent voice in
constructively engaging government to safeguard their autonomy. In spite of the major coalitions
such as the Human Rights Network (HURINET), Uganda Women’s Network (UWONET), and
NGO Forum and Development Network of Indigenous Associations (DENIVA) advocating
against the 2006 law, only eight organizations74 petitioned the President not to sign it.
Expectedly, the President did not acknowledge the petition but instead summoned the NGOs
working in Northern Uganda to his private home in Rwakitura, and warned against meddling in
the internal security and political affairs.75 By comparison, to underscore the importance of a
collective voice, the charismatic churches through the National Fellowship of Born Again
Pentecostal Churches (NFBAPC) held high-powered meetings with government and attended in

70 Monitor Team, Museveni Hits Back at MPs in the Oil Bill Row, DAILY MONITOR, 14 Dec 2012, at 1;
Henry Mulindwa & Dalton Kaweesa, Bribery Claims Dog Debates, Ministers Go into Hiding, RED PEPPER, 9 Dec.
2012, at 5; Vision Reporter, NGOs React to President’s Accusation, NEW VISION, 15 Dec. 2012, at 5.
71 C.M. Peter, The State and Independent Civil Society Organisations: The Case of Tanzania Women
Council (BAWATA), in CIVIL SOCIETY AND DEMOCRATIC DEVELOPMENT IN TANZANIA (A.S. Kiondo & J.E.
Nyang’oro eds. 2006b) at 117.
72 M.K. Juma, The Compromised Brokers: NGOs and Displaced Populations in East Africa, in HUMAN
RIGHTS, THE RULE OF LAW, AND DEVELOPMENT IN AFRICA (Zeleza & McConnaughay eds.) (2004) at 236.
73 NDP 2010, at 28.
74 NGO Forum, DENIVA, HURINET, Advocates Coalition for Development and Environment (ACODE),
Uganda Child Rights Network, the African Network for Prevention and Protection Against Child Abuse and Neglect
(ANPPCAN), Environmental Alert and Anti-Corruption Coalition of Uganda.
75 HURINET notes from meeting with President Museveni’s meeting with NGO working in Northern
Uganda, 13 April 2006, 4:20-9:00 p.m.
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large numbers of over a hundred.76 Consequently, faith-based organizations were excluded from
the ambit of the NGO Policy except those engaged in NGO-type activities.77
Women’s organizations are most notorious for implementing the NRM agenda without
challenging the regime. At the 50th Anniversary dinner hosted by the Uganda Women’s Network
(UWONET) and the Uganda Women’s Parliamentary Association (UWOPA), the President
paternalistically cited the Biblical fourth commandment of “honor and obey your parents,”
equating the NRM under his leadership to the parent of the women’s movement.78
A comparative study of Ghana, Uganda, and South Africa established that close
proximity to government can facilitate access to opportunities and information while
simultaneously compromising a CSO’s independent influence on legal and policy frameworks in
situations of competing interests.79 For example, the fact that the Ministry of Defense80 presented
the same NGO Amendment Bill of 2001 and 2004 in 2006 created the illusion of a long
participatory process. However, the Act was passed in 2006, in less than three hours and without
the NGOs’ knowledge.81 Likewise, during the Petroleum Exploration and Development Bill of
2012 (Oil Bill) debates, two Coalitions, Oil Watch Coalition and the Civil Society Budget
Advocacy Groups worked with Parliamentarians to contest the Minister’s unilateral powers to
negotiate, grant, and revoke licenses, but it was passed on account of the NRM’s numerical
strength. 82 Similarly, while the collaboration between UWOPA and the women’s movement
resulted in the enactment of the Domestic Violence Act, the Anti-Female Cutting Act, and the
Anti-Human Trafficking Act, the Marriage and Divorce Bill was withdrawn on the initiation of
the NRM itself.
It is noteworthy that the NDP acknowledges that its relationship with CSOs is
characterized by mutual suspicion and hostility.83 CSOs perceived to be acting against
government agendas or seeking accountability of government are stigmatized as partisan. This
situation is exacerbated by the President’s dominance of all aspects of government, policy, and
political appointments, as well as ability to dictate the Parliamentarians’ resolutions.
Inadvertently, there is shrinking space for critical alternative organizing, owing to public political
apathy and self-censorship of CSOs’ watchdog role. For example, the Walk to Work (W2W)84
against the high cost of living and the Black Monday campaigns against corruption have been

76 National NGO Board, ADM/79/158/02, 11 April 2007, Min.01.04.07.
77 NGO Policy (2010) 11.
78 Interview with Rita Aciro, Executive Director, UWONET, 19 Nov. 2012.
79 B. Nyangabyaki, S. Friedman & M. Robinson, CIVIL SOCIETY, DEMOCRACY ASSISTANCE AND PUBLIC
POLICY IN AFRICA (unpublished), Sussex: Institute of Development Studies, 24 (2001).
80 Although NGOs are under the Ministry of Internal Affairs, the NGO Bill was presented by the Ministry
of Defence under the guise that some NGOs are a security threat.
81 Uganda Hansards, 4 April 2006, 10:34 a.m to 12:13 p.m.
82 Mulindwa & Kaweesa, supra note 70, at 5; Mercy Nalugo, MPs Support Kadaga in Bid to Reject Bill,
DAILY MONITOR, 5 Dec. 2012, at 7; Henry Sekanjako, Civil Society Present Petition to Kadaga, NEW VISION, 6
Dec. 2012, at 6; Sheila Naturinda, Government Insists on Oil Law Powers, DAILY MONITOR, 7 Dec. 2012, at 1.
83 GOU, THE NATIONAL DEVELOPMENT PLAN 28 (2010).
84 This was a protest against the high cost of living spearheaded by the For God and My Country pressure
group led by the opposition.
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criminalized as inciting violence. In 2013, when a military man was appointed to head the
Ministry of Internal Affairs, his inaugural address to Parliament unsurprisingly listed among his
top priorities “restraining NGOs from engaging in activities different from what they registered
for and enforcing stricter media regulations.”85 Such obsessive surveillance is likely to stifle the
CSO’s watchdog role.
Threats of deregistration have been targeted at NGOs that engage in issues considered
political or contrary to the government’s positions. In 2011, a Uganda Land Alliance publication,
Impact of Land-Grabbing on Food Security and Wellbeing, was perceived to be defaming the
President and inciting economic sabotage.86 In 2012, the Ministry of Ethics threatened to
deregister NGOs contesting the Anti-homosexuality Bill.87 Similarly, some District leaderships
have misinterpreted their monitoring role of CSOs to include powers to shut down organizations
in cases of disagreement, particularly those accused of interfering in local politics and criticizing
government.88 For their advocacy on the Oil Bill, ACODE, NAPE, and African Institute for
Energy Governance were castigated as political, subversive, or engaged in economic sabotage.
A few NGOs have served as a “critical allies” of the state, capable of holding government
accountable to its human rights obligations. The Black Monday Campaign stands out as an overt,
well-organized campaign involving major Coalitions and Networks, NGO Forum, DENIVA,
HURINET, and UWONET to challenge government over its political impunity for corruption. In
the wake of the Office of the Prime Minister (OPM) scandal where over USD 160 million was
stolen, 11 November 2011 was declared Black Monday with the closure of the NGO offices and
wearing of black. However, although the Black Monday campaign was held within the law, and
the Inspector General of Police, the Minister of Internal Affairs, and the President were duly
notified, the police blocked the organizers from accessing the premises. The Police believe that
the duty to “prevent and detect crime”89 entitles them to disperse gatherings suspected of
disrupting law and order,90 particularly those seen as antithetical to government. Moreover,
Black Monday activists continue to be apprehended by Police and their materials confiscated,
though without any charges filed against them.91
In sum, CSOs have not consistently and effectively held government accountable to its
human rights obligations, but rather work mainly as its pliant servant in an apolitical manner.
Conceptualizing governance as a social contract warrants more dynamism of CSO political
consciousness, which is the subject of the next section.

85 https://www.monitor.co.ug/News/National/Aronda-vows-to-deal-with-activists–NGOs/-
/688334/1925558/-/oe0otq/-/index.html.
86 Interview with Obaikol, Executive Director, Uganda Land Alliance, 10 Nov. 2012.
87 Interview with Ambassador Kangwagye, Chairperson NGO Board, 29 Nov. 2012.
88 Mudangha Kolyangha, NGOs in Budaka Face Expulsion, SUNDAY MONITOR, 6 Jan. 2013, at 7.
89 UGANDA CONST., Art 212 (c).
90 Andrew Kawesi, Assistant Inspector General of Police, Makerere University Public Dialogue, HUMAN
RIGHTS SITUATIONS IN THE COUNTRY, IN THE CONTEXT OF THE RULE OF LAW AND KEEPING LAW AND ORDER BY
SECURITY AGENCIES, 16 Nov. 2012.
91 Solomon Arinaitwe, Richard Wanambwa, & Ismail Musal Ladu, Activists Held Over Graft Flyers,
DAILY MONITOR, 8 Jan. 2013, at 7; NTV Tonight News Bulletin, Aired the arrests of Arthur Larok, Country
Director of Action Aid, Leonard Okello, Executive Chairman of Uhuru Institute, and Rtd. Bishop of Kampala, Zac
Niringiye.
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5. Strengthening CSO’s Political Consciousness
In order for CSOs to effectively engage the state, they must appreciate that human rights
struggles are political struggles. The linkages between civil and political society are “natural,
useful and should be encouraged,” without necessarily being partisan.92 Yet while it is important
that CSOs are not partisan, they need not be ideologically neutral. Promoting human rights entails
addressing the power relations in the political and social struggle for societal transformation.93
The UDHR acknowledgment that “it is essential, if man is not to be compelled to have recourse,
as a last resort, to rebellion against tyranny and oppression, that human rights should be protected
by the rule of law,” makes human rights integral to the political realm.94 Because democracy
means a government of the people, by the people, and for the people, democracy is about people,
and it is only good governance that can deliver development.95
This article argues that any successful struggle for social justice is first and foremost a
political struggle “to redefine the subjects and their entitlements.”96 Even human rights
education is political education because it enables citizens to participate from an informed point
of view.97 Boulie argues that being apolitical is a façade: 98
As educationists, CSOs provide training ground for democratic citizenship;
develop political skills and new leaders; stimulate political participation and
educate the broader citizenry on a wide range of public interest issues. As
watch dogs, they act as a check on the State’s inclination towards centralising
power and evading civic accountability. As service deliverers, they supplement
government programmes by providing goods and services directly to the
people who need them. Often, overlooked are their political rolesupplementing political parties as varied and flexible mechanisms through
which citizens define and articulate a broad range of interests and exert their
demands on government.
CSOs deepen democracy through such actions as championing the cause of the
marginalized, operating as interest groups, influencing policies, educating and mobilizing
citizens to hold power accountable, and contributing to political and human rights consciousness.

92 Edwards, supra note 5, at 26.
93 S. GUTTO, HUMAN AND PEOPLE’S RIGHTS FOR THE OPPRESSED: CRITICAL ESSAYS THEORY AND PRACTICE
FROM THE SOCIOLOGY OF LAW PERSPECTIVES 134 (1993); S. DICKLITCH, THE ELUSIVE PROMISE OF NGOS 18, 24
(1988).
94 M.K. Bromley, The International Human Rights Law Group: Human Rights and Access to Justice in
Post-Conflict Environments, in NGOS AND HUMAN RIGHTS: PROMISE AND PERFORMANCE (Welch Jr. ed.) (2001) at
149.
95 Julius Ihonvbere, Good Governance and Economic Bliss, https://julius.ihonvbere.com/2009/10/goodgovernance-and-economic-bliss/2/.
96 Mamdani (2002), 59, www.africaaction.org/rtable/rtb2.pdf.
97 S. Koenig, Human Rights Education, Human Rights, Culture and the Community of Non-Governmental
Organisations: The Birth of a Political Ideology for the 21st Century, in HUMAN RIGHTS EDUCATION:
ACHIEVEMENTS AND CHALLENGES, INSTITUTE FOR HUMAN RIGHTS 125 (Akermark et al. eds.) (1998) [Abo Akademi
University in collaboration with the Finnish National Commission for UNESCO and UNESCO].
98 J. Boulie, Putting the Voluntary Sector Back on Map in the Development Agenda and the Voluntary
Sector, 1 QUARTERLY JOURNAL OF THE SOUTH AFRICAN NGO COALITION AND INTERFUND 22 (1997).
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 45
Yet human rights organizations claim to be neutral and nonpolitical in order to appease donors
and governments.99
Evidently, the line drawn between political and nonpolitical is just a nuance, for
obviously the struggle for political participation must be fought in the political arena.100 Politics
means who gets what, when, and how, or the distribution of power in terms of resources and
influence for the common good.101 In effect, being apolitical amounts to being political in the
face of rampant corruption, violations of rights, and exclusion of the majority of the populace
from decision-making. Inadvertently, by accepting the myth of being nonpolitical or apolitical,
CSOs side with the status quo. However, in Uganda, an honest discussion that interrogates
CSOs’ stand in negotiating the political discourse is yet to evolve.102
6. Conclusion
The UDHR underlines the idea that respect of human rights counters rebellion103 by
reassuring the public that government will ensure the enjoyment of rights, be a neutral arbiter in
disputes, and serve as a mechanism to access public resources. Government is expected to
provide the legal and regulatory framework for civil society to accomplish its watchdog role. In
reality, government is paternalistic in engaging CSOs. Consequently, the law is geared more
towards controlling CSO actions to restrain them from participating in politics than towards
facilitating CSOs’ democratic organizing and independent space. Government is antagonistic
towards CSOs’ oversight role, particularly in contested strategies and priorities. Further, the
competition over donor resources has conflicted the government and CSOs’ relationship, with
the President publicly accusing CSOs of being economic saboteurs and foreign pawns.
Cognizant that human rights and struggle are two sides of the same coin, because human
rights is not a favor but an entitlement that must be claimed even when the law denies those
rights,104 it is incumbent on CSOs to organize and struggle for their rights to freedom of
association. The right to participate in the governance of one’s country is not reserved for
politicians but it is a right equally applicable to all citizens.105 The right to freedom of association
is the inherent cornerstone of all African social relationships, with each person having a right and
duty to contribute, argue, disagree, and agree for their mutual benefit. CSOs do not render the
state irrelevant, but complement government by expanding pluralism and diversity of opinions
and holding it accountable to its human rights obligations. Hence, the need for CSOs’ collective

99 C.A. Odinkalu, Why More Africans Don’t Speak the Human Rights Language, Carnegie Council on
Ethics and International Affairs Human Rights Dialogue: Human Rights in Times of Conflict—Humanitarian
Interventions, Series 2, Number 5, 3 (2001).
100 K. Kibwana, The Right to Civil Disobedience, in SEARCH FOR FREEDOM AND PROSPERITY
CONSTITUTIONAL REFORM IN EAST AFRICA 194 (K. Kibwana, C.M. Peter & J. Oloka-Onyango eds.) (1996).
101 K. Umar and J.O. Kuye, Rationalism and the Problematique in Policy Making and Analysis: The Case
of Public Policy Targeting in Africa, 41 JOURNAL OF PUBLIC ADMINISTRATION 807, 817 (2006).
102 W. Mutua, Introduction: Human rights NGOs in East Africa: Defining the Challenges, in HUMAN
RIGHTS NGOS IN EAST AFRICA: POLITICAL AND NORMATIVE TENSIONS 9 (M. Mutua ed.) (2009).
103 UDHR (1948), Preamble.
104 C. Heyns, Struggle Approach to Human Rights, in HUMAN RIGHTS, PEACE AND JUSTICE IN AFRICA: A
READER 15-16 (C. Heyns & K. Stefiszyn eds.) (2006).
105 Christopher Mtikila v. AG, High Court of Dodoma, Civil Case No. 5 of 1993, discussing the
constitutionality of § 40 of the Police Force ordinance 1953, in Peter, supra note 11, at 694.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 46
voice and identity coupled with the imperative to self-regulate in order to circumvent
government’s undue interference in the internal functions of CSOs.
The work of civil society is essentially political, albeit not necessarily partisan, because
social justice entails challenging the status quo of unequal power relations. CSOs strengthen
political pluralism, enhance citizens’ political consciousness for informed engagement, and serve
as watchdogs of government. Being apolitical is complicit in fostering inequity and abuse of
power. It is incumbent on CSOs to ensure that they act coherently in order to protect their
autonomy and legitimacy so that they can advance a human rights culture. Conversely, CSOs are
vulnerable to being dominated as mere inputs into the government’s agenda.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 47
Civil Society in Africa
THE ROLES OF CIVIL SOCIETY ORGANIZATIONS
IN THE EXTRACTIVE INDUSTRIES
TRANSPARENCY INITIATIVE IN NIGERIA
EGHOSA OSA EKHATOR1
Due to the failings of the regulatory framework in the oil and gas sector in Nigeria, Civil
Society Organizations (CSOs) tend to act as watchdogs over the activities of government.
This article focuses on the Extractive Industries Transparency Initiative (EITI), which
has been localized in the oil and gas sector and domesticated as a law in Nigeria. The
article highlights the roles of CSOs in the initiative.
Introduction
Civil Society Organizations (CSOs) have played major roles in the development of
international multi-stakeholder codes. Multi-stakeholder codes result from collaboration among a
diverse range of actors, including states, CSOs, multinational corporations (MNCs), and even
scholars.2
For example, the Voluntary Principles on Security and Human Rights in the Extractive
Sector (VPSHR), which was initiated by the governments of the United States and the United
Kingdom, was the product of collaboration and negotiations among governments, MNCs, CSOs,
and others.3
CSOs played major roles in the development of the Extractive Industries Transparency
Initiative (EITI). The EITI, launched in 2002, has been described as
a coalition of governments, companies, civil-society groups, investors and
international organisations, and is conceived of as a standard for monitoring
compliance with contract disclosure and revenue-transparency criteria to
ensure that companies publish what they pay and governments disclose
what they receive from the extraction and export of natural resources.
Member countries voluntarily adopt the standard, and seek “validation”
status through compliance.4
Currently, there are 31 compliant countries and 17 candidate countries; 36 countries have
produced EITI reports.5

1 Eghosa Osa Ekhator is a Ph.D. candidate at the Law School, University of Hull.
2 Oshionebo, E., Regulating Transnational Corporations in Domestic and International Regimes: An
African Case Study (2009).
3 Mujih, E., Regulating Multinationals in Developing Countries: A Case Study of the Chad- Cameroon
Oil and Pipeline Project (2012)
4 Acosta, A. M. “The Impact and Effectiveness of Accountability and Transparency Initiatives: The
Governance of Natural Resources,” 31 (§ 1) Development Policy Review §§ 89-105, at § 92 (2013).
5 EITI website, https://eiti.org/countries.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 48
Nigeria signed on to the EITI in 2003, and its application commenced in February 2004
as part of the economic reforms of the Obasanjo administration.6
Section 1(1) of the Nigerian
Extractive Industries Transparency Initiative (NEITI) Act7
establishes the EITI in Nigeria. The
overarching objective of the NEITI Act is to promote and ensure due process in the payments
made by extractive companies8
to the federal government of Nigeria.9
The NEITI is one of the
few laws regulating Nigeria’s oil and gas industry that expressly provides for the participation of
CSOs in its activities.10 The law provides for the inclusion of members of CSOs in the National
Stakeholders Working Group (NSWG)—the governing body of the NEITI—to promote
transparency and accountability in revenue payments in the oil and gas industry. Section 6 states:
S.6 (2)(a) In making the appointment into the NSWG, the President shall include:
(i) representative of the extractive industry companies,
(ii) representative of Civil Society,
(iii) representative of Labour Unions in the extractive industries
(iv) experts in the extractive industry and
(v) one member from each of the six geographical zones.

6 Civil Society Legislative Advocacy Centre (CISLAC), “Implementing Nigeria Extractive Industries
Transparency Initiative for Impact: Some Policy Options,” https://www.cislacnigeria.net/posts/publications/briefs/.
Mr Obasanjo was one of the major drivers of the localization of EITI in Nigeria. To buttress this assertion, prior to
the localization of EITI in Nigeria, “the Obasanjo administration took certain practical steps to implement the EITI
process in Nigeria by creating a NEITI secretariat headed by Obiageli Ezekwesili, well regarded within the
presidency and donor community for her excellent bureaucratic skills and commitment to due process in budgetary
matters.” Abutudu, M. & Garuba, D., “Natural Resource Governance and EITI Implementation in Nigeria,” 47
Current African Issues 12 (2011). Simply, the EITI “is a global coalition of governments, companies and civil
society working together to improve openness and accountable management of revenues from natural resources.”
https://eiti.org/eiti.
7 Nigeria Extractive Industries Transparency Initiative Act (NEITI) (2007).
8
Section 21 of the NEITI Act defines an extractive industry company as “any company in Nigeria that is
engaged in the business of prospecting, mining, extracting, processing and distributing minerals and gas, including
oil, gold, cola, bitumen, diamonds, precious stones and such like; and includes any agency or body responsible for
the payment of extractive industry proceeds to the Federal Government or its Statutory Recipient.” In addition to the
audits conducted for the oil and gas sector, the NEITI has also conducted audits for the solid minerals industry in
Nigeria. See the NEITI website for the copies of audits on the solid minerals industry in Nigeria,
https://neiti.org.ng/index.php?q=documents/neiti-audit-reports-solid-minerals.
9 Generally see section 2 of the NEITI Act which enunciates the primary objectives of the Act.
10 Professor Asobie, a former chairman of the NSWG, has argued that CSOs are an integral constituent of
the EITI multi-stakeholder group (MSG) which comprises the government, private sector, and civil society. He
states thus “[o]ne of the six EITI criteria is that civil society is actively engaged as a participant in the design,
monitoring and evaluation of the whole process of EITI and contributes effectively towards public debate on the
outcome. This has indeed been borne out by the Nigerian experience, since 2004.” Asobie, A., “Foreword,” in Civil
Society in the NEITI Process 6-7 (2012), https://www.neiti.org.ng/index.php?q=pages/civil-society-neiti-process.
Also, the NEITI Act has been argued to have introduced “compulsory regulation of CSR into corporate governance”
in the oil and gas industry in Nigeria. See Ihugba, B.U., “Compulsory Regulation of CSR: A Case Study of Nigeria,”
5(2) Journal of Politics and Law 68-81 at 61 (2012),
https://www.ccsenet.org/journal/index.php/jpl/article/view/15639/0
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 49
Furthermore, the NEITI has always engaged CSOs in its activities as a means of
improving transparency and opening the process to the Nigerian public. This deliberate strategy
of NEITI’s involvement with NGOs can be traced to the onset of the EITI implementation or
localization in Nigeria, when a coalition of CSOs led by Publish What You Pay through its
different activities sensitized the Nigerian public to the inherent benefits accruing from the
implementation of the EITI to the extractive companies, government, and the public.11
Furthermore, a host of other CSOs have been active in the EITI localization by providing input,
and the NIETI board (management) has provided training and support to enhance the capacity of
CSOs’ effective participation in the NEITI in Nigeria.12
CSO Participation in NEITI Process in Nigeria
As part of the structure of the NEITI process, CSOs are on the governing board, NSWG.
The NEITI also has a Civil Society Steering Committee, in which CSOs and the NEITI board are
partners in the various outreach programs and activities organized by the NEITI.13 Furthermore,
the NEITI employs a permanent, full-time Civil Society Liaison Officer.14 Many CSOs, both
local and international have been at the forefront of publicizing the activities of the NEITI and
EITI. To further accentuate the symbiotic relationship between the NEITI and CSOs in Nigeria, a
Memorandum of Understanding (MOU) was developed in 2006 to promote the CSO contribution
to the NEITI process.15
CSOs play major roles in the NEITI process in Nigeria. However, in comparison with the
other stakeholders (government and oil multinational corporations) in the NEITI process whose
roles appear to be “clearly defined and streamlined, that of the civil society still remain unclear”
in Nigeria.16 To remedy this anomaly, the NEITI has organized a series of activities and engaged
in consultation with CSOs in different parts of the country to determine the roles of CSOs in the
NEITI process.17 The consultation has entailed meetings with a plethora of CSOs in Nigeria, and
from these deliberations some consensus has emerged. The consensus can be broken into the
general and specific roles expected to be played by CSOs in the NEITI.18 The general roles of
CSOs in the NEITI process include the following:
(a) Identification: Here, CSOs averred that part of their duties or aims is to ensure that
major issues of public interest central to the NEITI process are brought to the fore so that
members of the public can also engage in its debate.19 Some of the major issues highlighted by
CSOs include the various oil and mining license issuance procedures and the environment. The

11 Asobie, supra note 10; Ewere, A.O., NEITI and Good Governance in Nigerian Oil Industry (2011).
12 Asobie, supra note 10.
13 NEITI Handbook (2013), https://www.neiti.org.ng/index.php?q=publications/neiti-handbook,
14 Id.
15 Id.
16 Civil Society in the NEITI Process, supra note 10, at 10.
17 Id.
18 Id.
19 Id.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 50
consensus of the CSOs is that governance will improve in Nigeria only if these major issues are
identifiable focal points of advocacy.20
(b) Agenda Setting: Agenda setting is one of the core responsibilities of CSOs. CSOs
averred that one of their roles in the NEITI process is to ascertain issues pertaining to the NEITI
mandate and use them as premises for the national and international engagement with oil
multinational corporations (MNCs) and the government on means to improve transparency and
accountability via the NEITI.21
(c) Public Education and Enlightenment: CSOs engage in many outreach programs or
activities such as workshops, conferences, road shows, and town hall meetings to inform the
public on the issues of transparency in oil revenue payment and the NEITI process in Nigeria.
This is especially paramount in Nigeria because of low literacy levels and because governmentorganized activities and events are viewed with suspicion.22 Thus, it can be argued that many
Nigerian trust CSOs more than the government.
(d) Agents of Change and Social Mobilization: CSOs in Nigeria are well known as great
mobilization agents. In respect to the NEITI process, CSOs are also “agents of change and social
mobilisation.”23 CSO activities include mobilizing public opinion to support the NEITI process,
acting as pressure groups to influence policy formulation and the legislative process, engaging in
peaceful protests, and writing petitions.24
(e) Monitoring and Oversight: CSOs are expected to monitor the policies and events in
the extractive sector and report correctly with facts in order to improve governance in the
sector.25 However, this role of CSOs has to be community-based and people-centered.26
(f) Advisory: The CSOs are supposed to provide impartial advice to the NEITI
management or board.
(g) Whistle-Blowing: CSOs are supposed to expose any problems regarding oil
transparency payments in the oil and gas sector in Nigeria. Also, whistle-blowing by CSOs can
be a means of drawing attention to areas where the NEITI is failing. CSOs engaging in whistleblowing should be equipped with adequate information, integrity, and competence.27
(h) Observation: It is within the remit of CSOs to observe some activities of the NEITI in
tandem with the secretariat of the NEITI.28 These include budget preparation, projects,
conferences, and meetings.29

20 Id.
21 Id.
22 Id.
23 Id. at 24.
24 Id.
25 Id.
26 Id.
27 Id.
28 Id.
29 Id.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 51
(i) Feedback: CSOs also engage in feedback as part of their core roles in the NEITI
process. CSOs are supposed to provide feedback on their engagement with the process to their
immediate constituency and to the public at large.
Furthermore, some specific roles are provided for CSOs under the NEITI Act. These
include membership of the NEITI governing board (NSWG), remediation issues arising from
NEITI audits, NEITI-legislative engagement, dissemination of audit reports, and community
participation.30
Weaknesses of CSO Participation in the EITI Process in Nigeria
However, CSO participation in the NEITI is not foolproof, and it has been subjected to
strident criticism by various stakeholders.31 One major pitfall of CSO participation in the NEITI
process is that some CSOs are divided and suffer from internal strife that weakens them.
32 For
example, the intractable disagreements in the Publish What You Pay coalition led to the
formation of another CSO called the Coalition for Accountability and Transparency in Extractive
Industry, Forestry and Fisheries in Nigeria.
33 Thus, it has been posited that CSOs have
difficulties in managing internal crises in Nigeria due mainly to personality clashes, and such
conflicts are exacerbated by the government’s eagerness to fan the embers of discord.34
Government and its agencies exploit such conflicts to put a lid on the activities of CSOs and
deprive the polity of quality opposition to their policies.35
Another inherent weakness of CSO participation in the NEITI process is accentuated by
Section 6(a) of the NEITI Act, which grants powers to the President of Nigeria to appoint the
members of the governing board (NSWG) including CSO representatives. This proviso is prone
to abuse by the President because such appointments may be dispensed on the basis of political
patronage, especially as the NEITI is an arm (department) of the Presidency. To redress this
anomaly, NEITI has signed on to an MOU with CSOs and consults with them before a CSO
representative is appointed to the governing board. However, the CSOs are unable to elect their
representatives directly to the NSWG, and their choice is still subject to governmental approval
or ratification. In other words, the CSO representatives are picked by the government.
Another weakness in the CSO participation in the NEITI process relates to the legitimacy
issues inherent in CSOs in Nigeria. It is argued that the NEITI focus is on Abuja- or city-based
NGOs to the detriment of local NGOs that are closer to the oil-producing communities in the
Niger Delta.36 Thus, capacity-building of CSOs is invariably skewed to the groups in the cities,
to the detriment of local CSOs. The NEITI secretariat tends to consider CSOs based in Abuja or

30 Id.
31 See generally Ewere, supra note 11; Ihugba, supra note 10; Shaxon, N., “Nigeria Extractive Industries
Transparency Initiative: Just a Glorious Audit” (Nov. 2009), https://eiti.org/document/shaxson-neiti-glorious-audit.
32 Abutudu & Garuba, supra note 6; Shaxson, supra note 31.
33 Abutudu & Garuba, supra note 6.
34 Id.
35 Id. Also see Ewere, supra note 11. Concerning the self-aggrandizement by leaders of certain CSOs, a
former Minister of Finance in Nigeria has described such CSOs as “non-governmental individuals.” Shaxon, supra
note 31, at 25.
36 Shaxon, supra note 31.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 52
Lagos (and other big cities) as the most significant in the NEITI process (and the extractive
industry).37 The implication of this is that many local and rural CSOs might be excluded from the
NEITI process. In Nigeria, local CSOs are closer to the people and the oil-producing
communities in the Niger Delta. Moreover, the NEITI Act has been criticized for its apparent
silence on environmental issues.38 The contention is that if the NEITI had taken the views of
local CSOs based in the oil-producing communities, the blatant omission of environmental issues
from the mandate of the NEITI Act could have been avoided.39 Recently, the NEITI tried to
address some of the factors militating against effective CSO participation in the NEITI process
by engaging in extensive nationwide consultations with CSOs.
Another weakness in the NEITI process is that the government and the NEITI appear be
to using the contribution of CSOs as means of achieving credibility and legitimacy in the eyes of
the international community and donors instead of achieving a high level of transparency and
accountability in the extractive sector in Nigeria.40 The contention is that the NEITI and the
government appears to be more focused on attaining international “validity” rather than
actualizing the mandate of the NEITI Act.
Conclusion
This short article has highlighted the contribution of CSOs to the NEITI process in
Nigeria. Notwithstanding the assertions about the inherent weaknesses of CSOs in NEITI
process, CSO participation has improved the transparency and accountability in the computation
of oil revenue payments in Nigeria.

37 Abutudu & Garuba, supra note 6.
38 Id.
39 Bassey, N., “The Environmental Black Hole in NEITI,” in Sofiri Joab-Peterside, Ekanem Bassey, &
Naomi Goyo (eds.), Domestication of Extractive Industries Transparency Initiative in Nigeria: Gaps Between
Commitment and Implementation – A Civil Society Assessment of the Performance of Nigeria Extractive Industries
Transparency Initiative (2010), cited in Abutudu & Garuba, supra note 6.
40 Abutudu & Garuba, supra note 6.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 53
Civil Society in Africa
THE IMPACT OF
CHARITIES AND SOCIETIES PROCLAMATION NO. 621/2009
ON ADDRESSING HIV/AIDS ISSUES IN ETHIOPIA
DANIEL MESSELE BALCHA1
This study explores the effects of the 2009 Charities and Societies Proclamation on
addressing HIV/AIDS issues in Ethiopia. The proclamation and the subsequent regulation
ratified by the council of ministers provide guidelines for registering and regulating charities
and societies. Many stakeholders maintain that the law reflects the government’s interest in
strictly controlling NGOs (nongovernmental organizations) and limiting their area of
engagement, particularly concerning human rights. The study relies on document analysis, a
partner tool survey, and semi-structured interviews with the public, private, and NGO sector
representatives at the national level and in the three regions. It concludes that the 2009 law
has significant effects on partnership endeavors to address HIV/AIDS issues.
1. Introduction
In 2009, the government of Ethiopia ratified the Charities and Societies Proclamation.
The proclamation and the regulation subsequently endorsed by the council of ministers provide
guidelines for the registration and regulation of charities and societies. The law gives the
government vast control over NGO activities. It prohibits national organizations that receive
more than 10 percent of their funding from abroad from undertaking human rights activities. It
also prohibits human rights activities by foreign NGOs, including campaigning for gender
equality, children’s rights, disabled persons’ rights, and conflict resolution.
Though the law does not explicitly refer to HIV/AIDS, work on the issues is affected by
this law. A number of human right issues are attached to HIV/AIDS (Beagle 2013; Utyasheva &
Pradichit 2013). Even the HIV/AIDS policy itself suggests combining HIV/AIDS work with
other issues (MOH 1998).
This study explores the effects of the 2009 Charities and Societies Proclamation in
addressing the HIV/AIDS issue in general and partnership forums in particular.
The Rawls principle of justice emphasizes the necessity of maximizing the advantages of
the least preferred. It underlines that fair treatment of citizens results when a society insures
equal opportunity to all to succeed and when there is equality in the eyes of the law. Rawls
suggests two principles to regulate the distribution of social and economic advantages across
society. The first principle states that “Each person is to have an equal right to the most extensive
basic liberty compatible with a similar liberty for others.” The second principle states that social

1 Daniel Messele Balcha, danielmessele@gmail.com, is an Ethiopian Ph.D. student of public and social
policy at Charles University in Prague.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 54
and economic qualities are to be arranged so that they are both reasonably expected to be to
everyone’s advantage and attached to positions and offices open to all (Rawls 1971).
Another important consideration of the normative model is that of reducing inequality.
This model draws attention to the undesirable aspects to the functioning of market relations. The
market does not concern itself with the type of resource individuals use to assert themselves or to
the needs of the individual. Under otherwise similar circumstances, some people are gifted with
large resources while others lack the resources to satisfy their basic needs. Therefore, the market
alone does not promote justice. According to the human dignity model, further, each person has
innate value, regardless of his or her contributions to society’s well-being. The concept of
dignified survival depends on concrete cultural and economic realities of a given country
(Potůček et al. 2003). Tarantola (2008) and Tarantola et al. (2008) discuss the interdependent
nature of health and human rights.
Providing equal opportunities regardless of state of health or social background is
essential when it comes to HIV/AIDS victims. The needs of HIV/AIDS-affected communities
are high. HIV/AIDS affects the fundamental human attachments of family life and exposes
children to stigma and discrimination. Stigma and discrimination prevent governments and
communities from effectively responding by intensifying violations of these children’s rights—
particularly their access to education, social services, and community and family support
(UNAIDS/WHO 2004). Because the prevalence of HIV/AIDS has resulted in high numbers of
orphans and vulnerable children, not only those who are directly affected by HIV/AIDS but also
increasing number of children face social problems.
Children orphaned or made vulnerable by AIDS are more likely to be malnourished, less
likely to be educated, and more likely to be abused and suffer severe psychosocial distress. In
many communities, traditional ways of caring for orphans and vulnerable children, such as the
extended family, are being severely strained by the impacts of HIV/AIDS. As the number of
orphans and vulnerable children increases and an ever larger number of adults is affected by
HIV/AIDS, family networks have come under severe strain (Strobbe et al. 2010).
Therefore, there needs to be a legal environment that helps communities care for the
children and families left vulnerable by HIV/AIDS. Moreover, due to the magnitude and
multifaceted nature of the HIV/AIDS problem, there is a high need for multi-sectoral ways of
addressing the problem. These can only be achieved by strong partnership relations among the
major actors involved, including the public, the for-profit sector, and the not-for-profit sector,
which is the main concern of this study.
2. Methodology
The research makes use of interviews with representatives of the major actors, a partner
tool survey,2
and document analysis. The key informants are individuals representing the three
sectors—the public sector, business (for profit), and the NGO (not-for-profit) sector—as well as
HIV/AIDS Prevention and Control Office (HAPCO) representatives both at the national level

2
PARTNER tool survey is a Social Network Analysis Tool to Collect, Analyze, & Interpret Data to
Improve Collaboration within Community Networks which is available at https://www.partnertool.net/.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 55
and at three regions: Oromia Region,3
Southern Nations, Nationalities, and Peoples’ Region4
(SNNPR), and Addis Ababa.5
Though HAPCO is a government institution, it is included among
the key informants because it is coordinating the HIV/AIDS partnership forums. A total of 13
key informants and four others who provided important information have been interviewed using
semi-structured interviews. Additionally, a partnership tool online and a paper survey were used
to collect data from the key informants representing the partnership sub-forums and HAPCO.
Both primary and secondary data are used in the research. The partner tool social-network
analysis and thematic analysis are used to identify and analyze the dominant themes. Using these
themes as categories of the analysis, the partnership practice has been compared, to understand
how partnerships among the public, business, and the NGO sectors are affected by the Charities
and Societies Proclamation No. 621/2009.
3. Result
The Charities and Societies Proclamation No. 621/2009 is the most recent NGO law,
which was adopted by the Ethiopian Parliament in January 2009. It gives the government broad,
unrestricted control over NGO activities, which allows government to interfere in the operation
and management of NGOs. This power is exercised particularly against those NGOs focusing on
human rights. Most HIV/AIDS programs are interrelated with human rights and other programs
carried out by national and international organizations, so the law has hindered efforts to address
the problem of HIV/AIDS. The following sections present a short description of the partnership
Graph 1 – HIV/AIDS Partnership Forums Map

3 The Oromia Region is selected because it is one of the nine ethnically based regions of Ethiopia. It covers
284,538 square kilometers. The 2007 census reported its population at more than 27 million, making it the largest
state in both population and area.
4
Southern Nations, Nationalities, and Peoples’ Region (SNNPR) is selected because it is one of the nine
ethnic divisions of Ethiopia. It is also referred as little Ethiopia. Nearly 50 ethnic groups live in the region. Diversity
is a the symbol of the region.
5 Addis Ababa is selected because it is the capital of Ethiopia. It is the largest city in Ethiopia, with a
population of 3,384,569, according to the 2007 census, with an annual growth rate of 3.8%.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 56
forums, the results for the major outcomes of the HIV/AIDS partnership forum, the effects of the
law in limiting financing for HIV/AIDS partnership forums, the mismatch between expectations
from partnerships and the working environment, and finally the effects of reregistering.
3.1. Description of the Partnership Forums
Before looking at the major outcomes reported of the HIV/AIDS partnership forums, it is
worth describing the HIV/AIDS partnership forums. As we can see from graph 1, the partnership
forums are mainly working in their respective areas and have no or limited connections with
partnership forums that exist in other parts of the country.
The partnership forums map shows that the Federal Government HIV/AIDS Forum
(FGF) has only the single connection with the Federal HAPCO (FH). Even if the partnership
forums are created in accordance with where they are located, there is no question about the
FGF’s strong influence over regional government sub-forums (SGF, OGF, and AAGF).
Therefore, creating new connections will be highly beneficial. This is true also for both the
federal NGO HIV/AIDS forum (FNF) as well as the federal business HIV/AIDS forum (FBF).
Even if there is no active representation of the business sector in the Oromia region or in
SNNPR, the federal business HIV/AIDS forum claims to have representatives in these regions
who work together. In the case of Addis Ababa, the same people representing FBF also represent
Addis Ababa business HIV/AIDS forum (AABF). Moreover, we see that only the FH has
established a relationship with regional HAPCOs.
3.2. Major Outcomes of the HIV/AIDS Partnership Forum
All of the stakeholders believe that the HIV/AIDS partnership forums have a number of
benefits. Principal benefits cited include improvements in knowledge-sharing, resource-sharing,
community support, public awareness, and communication. According to stakeholders, these
benefits result largely from the HIV/AIDS partnership forums’ success in bringing together
diverse stakeholders, meeting regularly, exchanging information and knowledge, fostering
informal relationships among partnership members, facilitating collective decision-making, and
enabling shared goals and efforts to achieve them.
Table 1 – Major Outcomes of the HIV/AIDS Partnership Forum
Major Outcomes of the HIV/AIDS Partnership Forum Percentage
Health education services, health literacy, educational
resources 8.6%
Improved services 8.6%
Reduction of health disparities 2.9%
Improved resource sharing 11.4%
Increased knowledge sharing 25.7%
Community support 11.4%
Public awareness 11.4%
Policy, law, and/or regulation 5.7%
Improved health outcomes 2.9%
Improved communication 11.4%
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 57
Table 2 shows the specific aspects of the HIV/AIDS partnership forum identified as
having contributed to the outcomes presented in table 1. The assumption that partnership paves
the way for resource-sharing was not reflected in the survey. But some have indicated that they
have benefitted from particular forms resource-sharing, such as sharing experts during trainings
and workshops. A large number of those surveyed also believe that exchanging information and
knowledge have contributed substantially to the success of the partnerships (33.3%).
Table 2 – Important Aspects of the HIV/AIDS Partnership Forum
Important Aspects Percentage
Bringing together diverse
stakeholders 25%
Meeting regularly 8.3%
Exchanging info/knowledge 33.3%
Sharing resources 0%
Informal relationships created 16.7%
Collective decision-making 4.2%
Having a shared mission, goals 12.5%
However, most of the respondents believe that the success of the HIV/AIDS partnership
forum is being tested due to the law. The following sections provide details.
3.3. Limitation of Finance for HIV/AIDS Partnership Forums
The major effect of the Charities and Societies Proclamation No. 621/2009 is related to
accessing finances from foreign sources. Without such funds, many NGOs could not carry out
their work.
The 30/70 percent guideline introduced in this legislation directly affects partnership
efforts. According to Article 88, No. 1, “Any charity or society shall allocate not less than 70
percent of the expenses in the budget year for the implementation of its purpose and an amount
not exceeding 30 percent for its administrative activities.” This law has affected initiatives to
form partnerships or consortiums of NGOs working to address HIV/AIDS. The 30/70 percent
limit makes running such partnerships as independently registered organizations difficult,
because they tend to incur higher administrative costs.
One effort to establish a partnership in the Oromia region failed, according to a
respondent: “We had planned to create consortium of NGOs working on HIV and health issues
and to have legal status from federal charities and society agency. We talked to them and the
reply was, because it has no program of its own, if you create consortium you can run only using
members’ contribution for admin cost. You cannot pool other funding. You cannot get funding
for this purpose because you are working on coordination and capacity-building. It has been a
year now. For this reason, we are discouraged and we left the idea of creating consortium. There
is negative effect of the new law if you want to register and operate on legal basis.”
With the 30/70 percent law as well as the government’s initiative to “confer various
incentives to a charity or society that allocate more than 80% of its total income for operational
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 58
purposes or demonstrate outstanding performance” (Article 88, No. 2 of CSP), the government
seeks to minimize administrative costs and maximize benefits for project beneficiaries. However,
because the law does not carve out exceptions for partnerships or “consortiums,” as the law calls
them, there is the unintended effect of discouraging such partnerships. One interviewee said,
“There are many rules and guideline for CSOs to follow … but in general it seems 30/70
guideline [law] affects partnership forums [because] partnership, networking, capacity building
and related activities are conducted by admin costs.”
The data from the partner tool survey also confirms how significantly the Charities and
Societies Proclamation No. 621/2009 has affected HIV/AIDS partnership forums. Even though
only 19.2% of respondents expressly cited the law’s effect on partnerships, the qualitative data
shows a substantial decrease in funding since the law came into effect. Here it is also worth
noting other causes for the limitations in funding (46.2%), which is indicated as the major factor
affecting HIV/AIDS partnership forums.
Table 3 – Major Factors Affecting HIV/AIDS Partnership Forums
Major Factors Affecting HIV/AIDS Partnership Forums Percentage
Limited funding 46.2%
Lack of trust 7.7%
Unhealthy competition for funding among members 15.4%
Lack of interest 11.5%
The new NGO law 19.2%
3.4. The Question of Survival
The principal cause of the limitations on funding is the restriction on foreign funding.
The Charities and Societies Proclamation No. 621/2009 limits the funding that NGOs can receive
from international sources. Under Article 2 of the law, “‘Ethiopian Charities’ or ‘Ethiopian
Societies’ shall mean those Charities or Societies that are formed under the laws of Ethiopia, all
of whose members are Ethiopians, generate income from Ethiopia and wholly controlled by
Ethiopians. However, they may be deemed as Ethiopian Charities or Ethiopian Societies if they
use not more than ten percent of their funds which is received from foreign sources.” This
restriction hobbles many local NGOs, which are working effectively with communities.
There are two important issues to stress here. One is the lack of local financial sources
and the significant dependence of local or Ethiopian NGOs on foreign funding, which is
discussed here. The other is the limitation on Ethiopian charities’ and societies’ areas of work,
which is discussed in section 3.5 in more detail.
The lack of local financial sources and the dependence on foreign funding has been the
practice for local and Ethiopian NGOs for quite a long period of time. Due to this fact, many
NGOs undertake income-generating activities (IGA). Moreover, some NGOs are able to cover
their training and other project-related costs by selling their products. For instance, some produce
furniture while training AIDS orphans and vulnerable children in wood and metal work, and
others produce agricultural products or cloths by training HIV/AIDS-positive people in urban
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 59
agriculture and tailoring. As a result, most favor efforts to help such products come to market
and to enable the NGOs to be self-sufficient and even expand their number of beneficiaries.
But the same law that limits NGOs’ foreign funding also sets tough criteria for
conducting income-generating activities. Article 103 of the CSP sets forth prerequisites that must
be met in order to engage in income-generating activities. Under the law, the NGO must receive
written approval of the agency; proceeds must not be distributed among members or
beneficiaries; proceeds must be used to further the purposes for which the charity or society is
established; and the work must be incidental to achieving the NGO’s purposes. Moreover, the
law makes it difficult for NGOs to engage in IGA activities. Under the CSP, charities and
societies must follow the registration and licensing requirements and procedures laid down in
other laws for activities related to trade, investment, and other profit-making activities. These
factors make it exceedingly difficult for Ethiopian NGOs to generate 90% of their funding
locally. For these reasons, the law creates a difficult environment for Ethiopian NGOs to
generate income from local sources.
Such restrictions, accordingly, are contrary to the principle that social and economic
qualities are to be arranged so that they are reasonably expected to be to everyone’s advantage
(Rawls 1971). Moreover, in reducing inequality, the law does not give adequate consideration to
the undesirable aspects of market relations. For example, the market is not concerned with the
type of resources used by individuals. Under similar circumstances, some people are gifted with
large resources while others lack the resources to satisfy their basic needs. This signifies the
importance of supplementing the market with a redistribution of resources (Potůček et al. 2003).
But the restrictions discussed above not only put the existence of some NGOs in
question. They also discourage those socially and economically disadvantaged citizens from
actively engaging in the betterment of their socioeconomic status.
3.5. Big Expectation in a Restricted Environment
In addition to all its other hindrances on NGOs, the Charities and Societies Proclamation
No. 621/2009, Article 14 limits particular fields of engagement to Ethiopian charities. It specifies
fifteen areas of work that “only Ethiopian Charities and societies” can engage in; Ethiopian
residents and foreign charities cannot take part. Those areas include “the advancement of human
and democratic rights,” “the promotion of equality of nations, nationalities and peoples and that
of gender and religion,” “the promotion of the rights of the disabled and children’s rights,” “the
promotion of conflict resolution or reconciliation,” and “the promotion of the efficiency of the
justice and law enforcement services.”
Many respondents question how Ethiopian charities can take on these big challenges,
especially in light of the financial and legal restrictions. As a result, many NGOs are abandoning
their programs addressing these issues and shifting to other areas where such restrictions do not
apply. If any areas of work are to be limited to Ethiopian charities, most respondents believe that
the law must be changed to provide a more positive environment for their work.
As was earlier discussed, there is significant interdependence between human rights and
HIV/AIDS. Most of the domains restricted to Ethiopian charities overlap with HIV/AIDS work.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 60
Table 4 shows the effects of the Charities and Societies Proclamation No. 621/2009 on
HIV/AIDS partnership forums. As we can see, the law clearly played a negative role. It
decreased the number of HIV/AIDS partnership forum members (37.5%). It discouraged
HIV/AIDS partnership forums (25%). It had some unintended negative effects on HIV/AIDS
partnership forums, such as limiting funding (18.8%).
Table 4 – Effects of the Charities and Societies Proclamation No. 621/2009
on HIV/AIDS Partnership Forums
Effects of the Charities and Societies Proclamation No. 621/2009 Percentage
Has some unintended negative effects on HIV/AIDS partnership forum (e.g., by
limiting funding) 18.8%
Has no effect at all on the HIV/AIDS partnership forum 12.5%
Encouraged/strengthened the HIV/AIDS partnership forum 6.3%
Discouraged/weakened the HIV/AIDS partnership forum 25%
Decreased the number of HIV/AIDS partnership forum/sub-forum members 37.5%
Increased the number of HIV/AIDS partnership forum/sub-forum members 0%
In sum, even though HIV/AIDS is not explicitly mentioned in the Charities and Societies
Proclamation No. 621/2009, the general restrictions in the law make it harder for HIV/AIDS
partnership forums as well as local and nationwide NGOs to fulfill what is expected of them.
3.6. Effects of Re-registration
Under Charities and Societies Council of Ministers Regulation No. 168/2009, Article 10,
No. 2, “The effects of re-registration shall commence only a year after the effective date of the
proclamation and not immediately after re-registration.” Because of this provision, most
international NGOs can no longer continue being members of consortiums with Ethiopian
charities. The effect is well presented by one of the respondents: “Soon after its establishment we
had about 107 members because we are mainly working on capacity building like proposal
writing, fund raising, fund management, and project management and the number of members
kept increasing due to these benefits …. Now there are 45 members because we are reregistered
at the national level as Ethiopian Residents’ Charity Organization6 Network. Since we have this
new registration, the institutions which can be members to us are only Ethiopian Resident
Charity Organizations.”

6 According to Charities and Societies Proclamation No. 621/2009, based on where the organization was
established, its source of income, the composition of its membership, and its membership residential status, a charity
or society is given one of three legal designations:
1. Ethiopian Charities or Societies: Charities or Societies formed under the laws of Ethiopia, whose members
are all Ethiopians, generate income from Ethiopia, and are wholly controlled by Ethiopians. These
organizations may not receive more than 10% of their resources from foreign sources (Article 2 of CSP).
2. Ethiopian Resident Charities or Societies: Ethiopian Charities or Societies that receive more than 10% of
their resources from foreign sources (Article 2 of CSP).
3. Foreign Charities: Charities formed under the laws of foreign countries, or whose membership includes
foreigners, or foreigners control the organization, or the organization receives funds from foreign sources
(Article 2 of CSP).
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 61
In the survey, 69.2% of respondents indicated that the number of HIV/AIDS forum
members is decreasing. In the process, partnership institutions have lost significant opportunities
to gain experience from well-established foreign charities. They have lost financial resources as
well, with fewer members making contributions. The major reasons for these declines are the
restrictions in the Charities and Societies Proclamation No. 621/2009.
4. Conclusion
The study concludes that the 2009 Charities and Societies Proclamation No. 621/2009
has both implicit and explicit effects on addressing HIV/AIDS issues in general and on creating
and running HIV/AIDS partnership forums in particular. Even though HIV/AIDS is not
explicitly mentioned in the law, the general restrictions make it harder for HIV/AIDS partnership
forums to fulfill what is expected of them. When organizations withdraw, the partnership forums
lose finances, in-kind resources like meeting space, community connections, paid staff,
facilitation and leadership, data resources, information and feedback, and specific expertise.
Accordingly, the law has had the unintended effect of weakening HIV/AIDS partnership forums
and, in turn, diminishing the effectiveness of NGOs’ efforts to address HIV/AIDS.
Currently, the partnership forums work mainly in their respective areas or regions, with
limited or no connections to partnership forums in other parts of the country. Only the federal
HAPCO has an established relationship with regional HAPCOs. Nurturing such links also among
similar sub-partnership forums across regions and the federal HIV/AIDS sub-partnership forums
can promote the sharing of resources and experiences .
The law must create an environment more favorable to addressing HIV/AIDS issues.
First, it should create exceptions for HIV/AIDS partnership forums, so that they can be created at
various levels. Second, understanding their unique nature, the law should let independently
created partnership forums seek funding and use it to coordinate their efforts. This could include
aiding their income-generating activities in consideration of their vulnerability to compete in the
market, as long as they use their financial gains to further their objectives. Third, in light of the
interdependence between HIV/AIDS and human rights, the law should ease the 10 percent limit
for not-for-profit organizations working exclusively on HIV/AIDS issues.
References
Beagle, J. (2013). “Linking HIV and Women’s Human Rights.” Keynote address to the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW). Palais des Nations, Geneva,
Switzerland.
FDRE (2009). Charities and Societies Proclamation No. 621/2009.
MOH (1998). Policy on HIV/AIDS of the Federal Democratic Republic of Ethiopia. FDRE Ministry of Health,
Addis Ababa.
Potůček, Martin, et al. (2003). Public Policy in Central and Eastern Europe: Theories, Methods, Practices. Network
of Institutes and Schools of Public Administration in Central and Eastern Europe. Bratislava.
Rawls, J. (1971). A Theory of Justice. Cambridge, MA: Harvard University Press.
Strobbe, F., Olivetti, C. and Jacobson, M. (2010). Breaking the Net: Family Structure and Street Children in
Zambia. Brooks World Poverty Institute, University of Manchester.
Tarantola, D. (2008). “A Perspective on the History of Health and Human Rights: From the Cold War to the Gold
War.” Journal of Public Health Policy. 29(1), 42-53.
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Tarantola, D., Byrnes, A., Johnson, M., Kemp, L., Zwi, A. and Gruskin, S. (2008). “Human Rights, Health and
Development.” Technical Series Paper #08.1. Sydney: UNSW Initiative for Health and Human Rights,
University of New South Wales.
UNAIDS/WHO (2004). Report on the Global AIDS Epidemic. New York: United Nations.
Utyasheva, L. and Pradichit, E. (2013). The Role of Human Rights in Responses to HIV, Tuberculosis and Malaria.
UNDP, New York.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 63
Article
FRAMEWORK OF NGO LABOR LAW IN ARGENTINA
IGNACIO URESANDI 1
As in most developing states, NGO activity in Argentina has increased considerably from
the middle of the 20th century. Today it covers a wide scope of social interests, such as
economic development and wealth redistribution, public health, environmental care, and human
rights protection. The size and structure of the NGOs varies extensively, from small and
unregistered grassroots organizations to company-supported foundations with administrative
bureaucracies and financial resources that municipal governments would envy. But labor law and
public policies aimed at promoting volunteering do not recognize the heterogeneous nature of the
non-profit sector or the differences between that sector and the for-profit sector. In this article,
we highlight three aspects of this unidimensional legal framework and their impact on the
workforce of NGOs—employees as well as volunteers.
I. Public Registration and Volunteer Legislation
Under the Federal Government, the National Center of Community Organizations
(hereinafter CENOC), which functions under the orbit of the Social Development Ministry in the
Capital City, is responsible for registering and promoting the work of non-profit organizations,
regardless of their size or purpose. The CENOC carries out its statutory obligations through
numerous programs and direct actions, such as funding specific projects of grassroots
organizations, tutoring and mentoring community leaders, and providing technical and
technological support to small endeavors.
Most relevantly, the CENOC is in charge of registering all social institutions and
systematizing their aims and their resources, including personnel. This task should be the
cornerstone of its work, given the opportunities to increase the efficiency of state programs
through synergy with local needs and efforts. Unfortunately, this goal is far from accomplished.
Although much progress has been made, it is estimated that the 9,010 institutions registered to
date represent less than 60 percent of the organizations in the state. In addition, only 5,023 of the
institutions have juridical personality.2
Informality, lack of organization, and geographical
dispersal are the main difficulties.
Many NGOs suffer as a consequence, because all of the incentives and benefits stipulated
by legislation apply solely to registered and juridically constituted institutions. Unregistered
grassroots NGOs perform important work using many volunteers as is, but their impact would be
greatly enhanced by the public support that registration could bring.
Legislation provides numerous incentives for volunteer service, particularly from the
volunteer’s point of view. Specifically, Law 25.855 of Social Volunteering Promotion indicates
that volunteers are entitled to receive training and coaching by both the institution and the public

1 Law Professor and Researcher at Universidad Argentina de la Empresa (UADE) Investigation Institute,
Buenos Aires, Argentina.
2
“Acerca de la Constitución del Tercer Sector en la Argentina,” Ikei Iñiguez, Lopez Burgos, Mayer y Sola
Álvarez, CENOC, 2013, in www.cenoc.gov.ar/publicaciones.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 64
office (Article 6.b); are entitled to be reimbursed for all expenses made at the service of the
organization (Article 6.e); must be granted insurance against labor illness and accidents (Article
6.g); and must be granted certification of the labor provided upon ending the relationship with
the organization, which must be considered at the moment of applying to public service (Article
6.h). All of these are available only if the NGO registers with the CENOC, which then provides
volunteers with official identification.
In sum, more NGOs ought to be registered in order to extend the application of the
volunteering law. Undoubtedly, this is a task depending more on the political and administrative
sphere than on the legal one. Nonetheless, such an effort must be made to strengthen volunteer
service for NGOs, as it is the real engine of their work.
II. Labor Law for Dependent Employees
As was noted above, most of NGOs’ manpower comes from volunteers. Of the 193,909
total NGO workers, according to the latest data published by the CENOC, 29,574 are payroll
employees and 164,335 are volunteers. The employee category mainly comprises managers and
administrative staff. As is typical outside Argentina, the positions generally entail regular to low
wages and high volatility due to variations in financial capacity.3
Lack of proper registration and
posing employees as volunteers can also be described as regular practices, although it should be
noted that these practices are common among Argentina’s small and medium for-profit
companies as well. The national informality rate has been reported at 27% of the workforce in all
fields of labor.4
The principal legal aspects of most labor relationships in Argentina—such as duration of
the work day, licenses, vacations, and termination of contract—are regulated by the Labor
Contract Law 20.744, in force since 1974. It has been interpreted by scholars to apply equally to
lucrative and non-lucrative activities, as it defines labor, first, to encompass “all lawful activity
rendered to someone capable to direct it, in return of a wage” (Article 4); and, second, as “the
instrumental organization of personal, impersonal, material and immaterial means, ordered under
a direction for the accomplishment of economical or beneficial ends.”
5
Hence, non-profits are generally treated on the same basis as private businesses. The
juridical nature of the contract is the same, and so are the circumstances surrounding the labor
relationship. However, a different solution is necessary. Legislation should be enacted in order to
provide the third sector with legal remedies suitable to their particular needs. In this light, it has
been remarked that more flexibility should be given to the duration of the contract,

3 BACCARO Lucio, “Civil Society, NGOs, and Decent Work Policies: Sorting out the Issues,”
International Institute for Labour Studies, ILO, Genève (2001), p. 12.
4 VASAN Sudha, “NGOs as Employers: Need for Accountability,” Economic and Political Weekly, Vol.
39, No 22 (2004), p. 2197; ARIAS Omar, DEMOMBYNES Gabriel, MORENO Juan Martín, ROFMAN Rafael
“Informalidad, protección social y Mercado de trabajo en Argentina,” in “Aportes a una nueva visión de la
informalidad laboral en la Argentina,” World Bank and Ministry of Labor (2008), p .86, available at
https://www.trabajo.gov.ar/downloads/biblioteca_libros/aportes_a_una_vision_de_la_informalidad_laboral.pdf
5 VAZQUEZ VIALARD Antonio, “Tratado de Derecho del Trabajo,” Editorial Astrea, 1985, Tomo I, p.
152.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 65
contemplating the possibility of determining its extension in advance, in accordance with the
duration of a project’s funding.6
III. Labor Taxation
As in other realms, tax law on labor in Argentina is identical for lucrative and nonlucrative entities. This is perhaps the most controversial element of non-profit legislation, as it
relates to NGOs’ funding difficulties. Argentinean NGOs, like other employers, commonly
complain that tax pressure on labor becomes a deterrent for contracting long-term employees.
Labor taxes include contributions and payments to the following systems: Social Security
(Law. 24.241), Healthcare (Laws 23.660 and 23.6614), Child and Family Support (Law 24.714)
and the Public Unemployment Fund (Law 24.013). In addition, employers must acquire
insurance against labor accidents and illnesses as well as life insurance for every employee. All
of these payments can total 40 percent of the gross salary.7
There is consensus that such burdens cannot be reduced or eliminated for NGOs without
jeopardizing employees’ retirement or the Social Security funding system as a whole.
Nonetheless, innovative approaches for addressing labor taxes can promote employment at
NGOs. For instance, as in other legislation, the payment rate might be capped when the gross
salaries paid by the NGO reach a certain sum.8
Although not addressed specifically to the third sector, two laws promote NGO
employment by providing valuable financial resources. The recently enacted Law 26940 seeks to
reduce informality and lack of registration. As an incentive, it cuts one-third of the labor taxes
for companies with fewer than 80 employees. In addition, Law 26.476, in force since 2008,
provides small and mid-size companies with a 50 percent reduction of labor taxes for every new
employee hired for a twelve-month period, provided that the number of workers already on the
payroll remains constant.
The long-term challenge is to adjust the tax burden in a way that recognizes the distinct
nature of NGOs, so the payroll can remain as constant as possible despite oscillating income.
Doing so may require a differential tax rate for non-profit institutions that removes time
limitations on labor taxes reduction.

6
de NIEVES NIETO Nuria, “Las relaciones de trabajo en las entidades sin ánimo de lucro (trabajadores
asalariados, cooperantes internacionales, socios-trabajadores y voluntarios),” Revista del Ministerio de Trabajo e
Inmigración Nro 83, Madrid, p. 382.
7
“Tributos vigentes en la República argentina a nivel nacional,” Dirección Nacional de Investigaciones y
Analisis Fiscal, Subsecretaria de Ingresos Públicos, Secretaria de Hacienda, Ministerio de Economía y Finanzas
Publicas (2014) at https://www.mecon.gov.ar/sip/dniaf/tributos_vigentes.pdf.
8 BATER Paul, HONDIUS Frits, KESSLER LIEBER Penina, “The tax treatment of NGOs: legal, fiscal
and ethical standards for promoting NGOs and their activities,” Kluwer Law International (2004), p. 321.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 66
Article
CIVIL SOCIETY ORGANIZATIONS RESPOND
TO NEW REGULATION IN ECUADOR:
AN INTERVIEW WITH ORAZIO BELLETTINI CEDEÑO
SUSAN APPE1
Since we talked with Ecuadorian social entrepreneur and policy expert Orazio Bellettini
Cedeño in 2011,2
the Collective of Civil Society Organizations legally formalized into the
Ecuadorian Confederation of Civil Society Organizations in 2013. During that same year, after
almost five years of no regulatory reform, the Ecuadorian Presidential Office released Executive
Decree No. 16.
3 Replacing the 2008 Decree No. 982, Decree No. 16 adds new requirements for
legal status, a new registry for civil society organizations, and further obligations for
international organizations seeking to work in Ecuador. The Confederation’s concerns about the
new Decree were widely covered in the media and have continued a public debate about the role
and the regulation of civil society organizations in Ecuador.
Under Decree No. 16, the government revoked the legal status an active environmental
civil society organization, Fundación Pachamama, in 2013 because of its involvement in
protests against mining development in Ecuador. Government officials alleged that Fundación
Pachamama was “straying from its statutory objectives” and endangering “internal security and
public peace.”4
The organization remains shut down as of late 2014. It is exploring options to
take the case to the Inter-American Court of Human Rights.
5
The broader issue of freedom of
association in Ecuador was brought to a hearing at the Inter-American Commission on Human
Rights in 2014.
6 As a legalized, formal Confederation, civil society organizations in Ecuador
responded to Decree No. 16 and Pachamama’s closing.
Bellettini sat down to talk about the developing role of the new Ecuadorian
Confederation of Civil Society Organizations, the sector’s regulation in Ecuador, the closing of

1
Susan Appe, sappe@binghamton.edu, is an assistant professor of Public Administration at the College of
Community and Public Affairs at Binghamton University, SUNY. Her research centers on government-nonprofit
relations and the evolution of the nonprofit sector in developed and developing countries. The author would like to
thank The College of Community and Public Affairs’ Latin America Partnership Fund at Binghamton University for
partial funding support to conduct the interview.
2 Appe, S. (2011). Interview: Civil Society Organizations Respond to Government Regulations in Ecuador.
International Journal of Not-for-Profit Law. 13(3), 27-32,
https://www.icnl.org/research/journal/vol13iss3/special_4.htm.
3
Presidencia de la República del Ecuador [The Office of the President] (2013, June 4). Executive Decree
No. 16, https://www.inclusion.gob.ec/wp-content/uploads/downloads/2014/11/Decreto-Ejecutivo-16.pdf.
4
Solano, G. (2013, December 5). Ecuador shuts down nonprofit environmental group. The World Post,
https://www.huffingtonpost.com/huff-wires/20131205/lt-ecuador-environmental-ngo/.
5
https://www.pachamama.org/advocacy/fundacion-pachamama.
6 Ahuja, P. (2014, March 30). Situation of the Right to Freedom of Association and Environmental
Defenders in Ecuador, https://hrbrief.org/2014/03/situation-of-the-right-to-freedom-of-association-andenvironmental-defenders-in-ecuador/.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 67
Pachamama, and opportunities for relations between civil society, the state, the universities, and
the private sector. The transcript is lightly edited for clarity and concision.
We have seen changes in Ecuador since 2011: the creation of a formal national
Confederation of Civil Society Organizations and the imposition of a new regulation, Decree No.
16. Let’s start with the Confederation.
Historically in Ecuador, there have been spaces to form civil society organizations around
themes—for example, the environment or health. There have been networks around these themes
as well as regional networks. But Ecuador differs from other Latin American countries. For
example, the Confederation of Colombian Nongovernmental Organizations and the
Communication and Development Institute in Uruguay are platforms that bring together the
sector. In Ecuador, we have not had that.
We have taken a step forward with the formation of the Confederation. We have started
by generating levels of trust and by finding goals that we could achieve better together than
alone. But we still face several challenges to consolidate a space in which organizations can
work across different sectors and regions with the aim to strengthen civil society
With the Collective, some people in 2009 said that we should create a space, legalize it,
elect a board of directors, and have a membership fee. However, we had to arrive at that point
after trust and collaboration have been built. If we had taken the other route and made the space
more formal immediately, with a board of directors and the rest, the Confederation would not
exist. I do not have any doubts about this. Part of the challenge of the sector has been creating
and generating these spaces to meet—spaces of knowledge creation and of trust that allow us to
work together.
We have important work to do. The Decree No. 982 of 2008 and now Decree No. 16, put
into place in June 2013, are contrary to our constitutional rights. This has not been a matter of
debate in the Confederation. The challenge has been agreeing on which parts of the regulation
limit fundamental rights and affect citizen organizations, no matter the size or the sector.
What did the Confederation agree on? What are its messages related to the 2013
regulation, Decree No. 16?
As the Confederation, we have taken steps forward, as outlined on the website.7 We have
met with the National Secretary of Politics Management, the new state liaison to civil society.
We have shared three overarching messages.
The first message is a continuation from our position with Decree No. 982, and it is very
important to begin the dialogue with the state around this issue. It is that organized civil society,
the Confederation specifically, agrees with a legal framework for civil society organizations. For
five years we have had this message. We believe that a good legal framework would make civil
society better, because it would assure levels of quality and transparency that would help us
recuperate the legitimacy and credibility we have lost. It would help achieve more direct and
concrete participation rights and rights to associate. Therefore, the first message is that we agree
with a legal framework.

7
See https://www.confederacionecuatorianaosc.org/.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 68
The second message around Decree No. 16 is that we acknowledge that the state has a
legal framework that not only regulates but also fosters civil society. The Decree cites three
mechanisms by which the state is going to foster the development of civil society. First, it
promises to create a competitive grant fund. This is a proposal that the Collective and the
Confederation have been making for many years. Resources are not coming in from international
cooperation. Civil society organizations produce public goods and contribute to public policy,
and we believe that it is important for the state to finance some of their activities in a transparent
and nonpartisan manner. Second, the Decree incorporates capacity-building programs, something
we have been seeking for many years. Ecuadorian universities do not offer specialized academic
programs about civil society. One school of law has a program related to nonprofit law, but there
are no masters-level or certification programs about managing nongovernmental organizations.
Recognizing this gap, Decree No. 16 promises to create training programs. Third, under the
Decree, the state is going to assume its responsibility for helping smaller, low-capacity
organizations complete the regulatory requirements. The three mechanisms come from civil
society, not from the state. In these ways, Decree No. 16 not only regulates but also fosters civil
society.
Our third message is that we remain very worried about Decree No. 16, just as we
worried about Decree No. 982. We consider some elements of the Decree unconstitutional. As
with Decree No. 982, it was difficult for the different organizations in the Confederation to agree
on which elements those are. The Confederation has an enormous diversity of organizations
working in different sectors, with different levels of institutionalization, some fifty years old and
others only five years old, some working very closely with the state and others not. It was
difficult, but we found three elements to focus on.
So what has the Confederation decided to focus on?
First, the causes for dissolution in the Decree No. 16 worry us. The state eliminated some
that were in the Decree No. 982, but Decree No. 16 now prohibits activities related to public
policy. We have told public officials and authorities from the National Secretary of Politics
Management that the right to participate in public policies is established in the constitution.
Citizens are guaranteed the right to participate in public policy formulation. How can you
prohibit this and dissolve an organization for an activity which is constitutionally guaranteed?
Also, an organization can be dissolved for activities that disrupt the “public peace.” In practice,
what does that mean? If a civil society organization goes to a march in favor of fundamental
rights is this cause for dissolution? These causes for dissolution continue to be unconstitutional.
The second thing that worries us is similar to elements of Decree No. 982. In Decree No.
16, an organization must respond to requests for information. A ministry could ask for
documentation from twenty years back. We have said to the public officials that not even the
state has the administrative capacity to maintain twenty-year old archives. Why are we going to
demand this from an organization? And why is failure to achieve it cause for dissolution? We
have said that needs to be corrected.
And third, Decree No. 16 says that an organization must open its membership to any
person who wants to join. Imagine someone opposed to the use of contraception who wants to
join an organization that promotes sexual rights with the aim of changing the organization’s
agenda. Under Decree No. 16, the organization must admit this person as a member despite the
radical philosophical differences. But this violates the right of freedom of association. You have
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 69
the right to associate with persons who you choose, persons who share values and goals. This is
the third worry that we expressed to the National Secretary of Politics Management.
The meetings were positive, and they resulted in two agreements.
First, the three mechanisms to strengthen the sector are good; the challenge is to
implement them. How should the competitive grant fund and the capacity-building programs be
designed? We told the National Secretary of Politics Management to count on the Confederation
to help design the programs, because who better knows the capacities that are needed to
strengthen civil society? They told us they would work with us.
The other agreement concerns the three things that worry us. We argued that Decree No.
16 is unconstitutional, and that this does not make the state look good. They said in response that
they do not want to dissolve an organization for working on public policy. Rather, they explained
that some organizations use their work on public policy to serve political ends. Our response was
that as written, it can be interpreted to allow a public official to close an organization for working
to enrich public policies. We agreed that this part of the Decree No. 16 needs to be to rewritten in
order to leave no room for discretion.
Unfortunately, neither of these two agreements has been completed. But we still consider
them advances. We sat at a table and said that we propose this and that we want to change this
together with you. The Collective never achieved this. I believe that the public officials and
authorities from the National Secretary of Politics Management see a stance that is more
consolidated and more formal than under the Collective.
Until now these parts of Decree No. 16 have not changed, but you are still meeting with
the National Secretary of Politics Management?
There have been changes in leadership at the National Secretary of Politics Management,
which is an enormous problem. We have sent a letter to the new Secretary. We have the
expectation that we will meet and tell the new Secretary all that we have accomplished with the
hope to continue working together.
When Decree No. 16 came out and Pachamama was closed, you were in the media
discussing the case. Talk about the role of the Confederation in these types of cases.
After the dissolution in the case of Pachamama, we made a public pronouncement and
reached out to some media outlets. What we did was so delicate. As the Confederation, we could
not defend Pachamama. We said, rather, that dissolution must be an outcome of an investigation
and a process. We argued for the right of an organization like Pachamama to present evidence
and have the opportunity to defend itself adequately. We also argued that an organization must
have reasonable guarantees that an independent body will listen to all sides and reach a decision
with reasonable levels of independence.
Ecuador is a very polarized country and society. Some said Pachamama is guilty. Others
said Pachamama is innocent. The Confederation could not say that Pachamama is innocent or
guilty. Rather, we championed the right of Pachamama to defend itself, as we would do for any
citizen or civil society organization. I believe that the Confederation achieved a balance in a
complicated debate. That is our role.
The Confederation is pushing collective accountability. It is starting the process of its
third report. How is this part of the Confederation’s vision?
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 70
When we began, there was a level of self-learning, looking at ourselves as a sector and
recognizing the reasons that the state was using in trying to justify the restrictive regulations in
Decree No. 982. The state said that no one knows what these organizations do, no one knows for
whom they are working, no one knows what interests they have. They used this argument: These
are not organizations without profits; they are organizations without objectives. No one knows
what they do with their resources. No one knows how much the directors and employees make.
The truth is that individual organizations exercise transparency, but as a sector, we have
been careless. We have not communicated to society what we do with our resources, where they
come from, how we contribute, and how many people we benefit. We have forgotten the
visibility of our role, and in doing so, we have lost our credibility and legitimacy. Now in the
face of this gigantic attack, with regulations as restrictive as the Decree No. 982 and now the
Decree No. 16, no one is defending us. There are not editorials about it. No beneficiaries are
saying, for example, How can you attack this organization that has been so helpful to my family?
We have lost credibility and legitimacy. We need to be much more proactive and tell the country
why we are here.
In its first year of collective accountability, 37 organizations came together; in its second,
102 organizations. It has been a very important process.
The second report allowed us to say that 2.6 million Ecuadorians benefit from 102
organizations—that is almost 20 percent of the population. As such, civil society makes a
significant contribution and complements the work of the state.
The process also had a political effect. The two reports allowed us to demonstrate that
civil society organizations are key to the development of Ecuador, especially for those with less
opportunity. In addition, the collective transparency process enabled us to spotlight the fact that
these organizations have a profound conviction about their ethical responsibility, and they
manage resources that benefit many people. We are signaling that important organizations are
voluntarily accountable. They tell the country where their money is coming from and what they
are doing with it.
With the reports, we are committing ourselves to ethics and transparency. This has helped
reduce pressures from the state. But it is still complicated. International cooperation traditionally
supported the process of civil society, but it has stepped back from the country and the programs
that it had financed. Because Ecuador is labeled upper middle income, these resources do not
exist anymore.
The third accountability report has had many challenges, because it has not received one
dollar of support from international funders. I met with funders from Europe and the United
States, international foundations, and they all said what a useful, valuable report this is. I told
them that with more resources, we could have a video, we could do testimonies, we could
present it in the 24 provinces of the country and invite the private sector—but we need resources.
The response was, unfortunately, we have no resources.
It is a challenge, but I think it speaks to the increased legitimacy of the process in the
Confederation. We managed to get US$6,000 from members. Sure, that is not a huge amount,
but in these times of tight resources, it allows us to bring together information, prepare the
report, and hold a public event for its presentation. Despite limited resources, organizations were
willing to give US$50, US$100, or US$200. This speaks to their commitment to accountability.
International Journal of Not-for-Profit Law / vol. 16, no. 2, December 2014 / 71
When is the third report going to be released?
The report will come out during the first quarter of 2015.
To finish up, you are president of the Confederation with a two-year term. As the first
president, what do you see as the vision for the Confederation over the next five years?
We always had the objectives of a dialogue about a legal framework and collective
accountability reporting. These two objectives remain. There is a third objective that we have
developed as a Confederation, which we did not have as the Collective. This objective, which
will be fundamental over the next few years, is to strengthen civil society organizations.
There are few financial resources for this, so we are going to have to be very creative. We
also have to be very generous among ourselves—supporting each other, collaborating more in
networks, and sharing resources, methodologies, and data. One of the Confederation’s most
important roles is enabling the organizations to collaborate and synergize.
Part of the process is opening up dialogues with other sectors in society to find win-win
relations that allow us to increase the sustainability of organizations. I will give you two concrete
examples.
The first is the most obvious: relations with universities. Universities, according the 2010
Law of Higher Education in Ecuador, are obligated to conduct research and to make links to
communities. Universities in Ecuador, and I am generalizing a bit, know little about doing
research or about making links to communities in a systematic and organized way. Their
experiences with communities have been spontaneous and rare. Civil society organizations know
very well how to link to communities. This we have already done. Some, like Grupo Faro and
others, know how to conduct research too. This is a win-win relationship. We know how to do it,
but we do not have resources. The universities do not know how to do it, but they have more
resources. It is a good match.
The second is relations with the private sector. Ecuador now has the label of upper
middle income, as I mentioned. In part because of this, the international cooperation is shrinking.
This has a positive side. The private sector is managing much greater resources than it did ten to
twenty years back, and it needs to develop socially responsible practices. Businesses do not
necessarily know how to be socially responsible. Again, we feel that this can be a win-win
relationship with civil society organizations. We know how to improve transparency and how to
be effective with interventions in communities. We believe the Confederation can help produce a
dialogue about this.
Part of the problem of not having collaborations among civil society organizations and
universities and civil society organizations and the private sector is that we do not know each
other. The Confederation can be the connector enabling the sectors to better know each other.
From there, we can find opportunities to collaborate. This is our vision for the Confederation and
civil society in Ecuador.

e are tired of tolerating IBIS’ political
interference in Bolivia.” 119
 A September 2014 article in the New York Times asserted that foreign “money is
increasingly transforming the once -staid think -tank world into a muscular arm of foreign
governments’ lobbying in Washington.” 120 The following week, United States
Representative Frank Wolf wrote a letter to the Brookings Institution, in which he urged
them to “end this practice of accepting money from … foreign governments” so that its
work is not “compromised by the influence, whether real or perceived, of foreign
governments.” 121
Some governments assert that foreigners are not only seeking to meddle in domestic
political affairs, but also seeking to destabilize the country or otherwise engage in “regime
change.” Accor dingly, they argue that foreign funding restrictions are necessary to thwart efforts
to destabilize or overthrow the government currently in power.
 In 2013 in Sri Lanka , the government justified a recent registration requirement for all
CSOs on the grounds that it was necessary to “thwart certain NGOs from hatching
117 Jonathan Lis, “Draft bill: NGOs with foreign funding to be defined ‘foreign agents,’” Haaretz , May 26,
2013, accessed September 8, 2014, https://www.haaretz.com/news/national/.premium -1.592754 .
118 “Some Azerbaijani NGOs Cooperated with Armenian Special Services Under ‘People’s Diplomacy,’”
Trend, August 15, 2014, accessed September 8, 2014, https://en.trend.az/news/politics/230 3147.html .
119 Agence France -Presse, “Bolivia expels Danish NGO for meddling,” Global Post , December 20, 2013,
accessed September 16, 2014, https://www.gl obalpost.com/dispatch/news/afp/131220/bolivia -expels -danish -ngo –
meddling -1.
120 Eric Lipton, Brooke Williams, & Nicholas Confessore, “Foreign Powers Buy Influence at Think Tanks,”
New York Times , September 6, 2014, accessed September 17, 2014,
https://www.nytimes.com/2014/09/07/us/politics/foreign -powers -buy -influence -at-think -tanks.html?_r=0 .
121 Letter from Representative Frank Wolf to Strobe Talbott of the Brookings Institution, September 9,
2014, accessed September 17, 2014, https://s3.amazonaws.com/s3.documentcloud. org/documents/1301186/rep –
frank -wolfs -letter -to-strobe -talbott -at.pdf .

International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 23

conspiracies to effect regime change by engaging in politics in the guise of doing social
work.” 122
 A drafter of the Russian “foreign agents” law justified the initiative when it was pending
in pa rliament, stating, “There is so much evidence about regime change in Yugoslavia,
now in Libya, Egypt, Tunisia, in Kosovo — that’s what happens in the world, some
governments are working to change regimes in other countries. Russian democracy needs
to be prot ected from outside influences.” 123
 In 2005, the Prime Minister of Ethiopia expelled civil society organizations, explaining,
“there is not going to be a ‘Rose Revolution’ or a ‘Green Revolution’ in Ethiopia after the
election” 124 — a reference to the so -called “color revolutions” that had recently occurred
in Georgia and elsewhere.
 In June 2012, Uganda’s Minister for Internal Affairs justified the government’s threats to
deregister certain CSOs, stating that CSOs “want to destabilize the country because that
is what they are paid to do…. They are busy stabbing the government in its back yet they
are supposed to do humanitarian work.” 125
 In the process of driving civil society organizations out of Zimbabwe , President Mugabe
justified his policies by claiming that the CSOs were fronts for Western “colonial
masters” to undermine the Zimbabwean government. 126 Similarly, the central committee
of Mugabe’s party claimed, “Some of these NGOs are working day and night to remove
President Mugabe and ZANU PF from power. They are being funded by Britain and
some European Union countries, the United States, Australia, Canada and New
Zealand.” 127
 In a March 2014 interview justifying a draft “foreign agents” law, Kyrgyzstan’s
President Atembaev argued, “Activities conducted by CSOs are obviously aimed at
destabilization of the situation in the Kyrgyz Republic…. Some CSOs do not care about
how they get income, whose orders to fulfill, which kind of work to execute…. There are
122 Xinhua, “Sri Lanka to Investigate NGOs Operating in Country,” Herald , June 13, 2013, accessed
September 8, 2014, https://www.herald.co.zw/sri -lanka -to-investigate -ngos -operating -in-country/ .
123 “Russian parliament gives first approval to NGO bill,” BBC , July 6, 2012, accessed September 8, 2014,
https://www.bbc.com/news/world -europe -18732949 .
124 Darin Christensen & Jeremy M. Weinstein, “Defunding Dissent,” Journal of Democracy 24(2) (April
2013): 80.
125Pascal Kwesiga, “Govt gets tough on NGOs,” New Vision , June 19, 2012, accessed Septembe r 9, 2014,
https://www.newvision.co.ug/news/632123 -govt -gets -tough -on-ngos.html .
126 Thomas Carothers, “The Backlash Against Democracy Promotion,” Foreign Affairs , March/April 2006,
accessed September 9, 2014, https://www.foreignaffairs.com/articles/61509/thomas -carothers/the -backlash -against –
democracy -promotion .
127 “29 NGOs banned in crackdown,” New Zimbabwe , February 14, 2012, accessed September 9, 2014,
https://www.newzimbabwe.com/news -7189 -29+NGOs+banned+in+crackdown/new s.aspx .

International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 24

forces interested in destabilizing the situation in Kyrgyzs tan and spreading chaos across
Central Asia and parts of China.” 128
 In July 2014, the vice chairman of the China Research Institute of China -Russia Relations
argued that China should “learn from Russia” and enact a foreign agents law “so as to
block the way for the infiltration of external forces and eliminate the possibilities of a
Color Revolution.” 129
2. Transparency and Accountability
Another justification commonly invoked by governments to regulate and restrict the flow
of foreign funds is the importance of upholding the integrity of CSOs by promoting transparency
and accountability through government regulation. Consider, for example, the following
responses by government delegations to the UNSR’s Resource Report:
 Egypt : “We agree with the principles of accountability, transparency, and integrity of the
activities of civil society organisations and NGOs. However, this should not be l imited to
accountability to donors. National mechanisms to follow -up on activities of such entities,
while respecting their independence have to be established and respected.” 130
 Maldives : “While civil societies should have access to financing for effective operation
within the human rights framework, it is of equal importance that the organizations must
also ensure that they work with utmost integrity and in an ethical and responsible
manner.” 131
 Azerbaijan : “The changes and amendments to the national legisl ation on NGOs have
been made with a view of increasing transparency in this field…. In that regard, these
amendments should only disturb the associations operating in our country on a non –
transparent basis.” 132
Similarly, in response to a United Nations Hum an Rights Council panel on the promotion
and protection of civil society space in March 2014, the following government delegations
responded with justifications invoking transparency and accountability:
128 “Алмазбек Атамбаев: “Хочу максимально успеть,” Slovo.kg , March 23, 2014, accessed September
9, 2014, translated by Aida Rustemova, https://slovo.kg/?p=35019 .
129 Simon Denyer , “China taking the Putin approach to democracy,” Washington Post, October 1, 2014,
A7.
130 UN Office of the High Commissioner for Human Rights, “Clustered ID with the WG on HR and
Transnational Corporations and the SR on The Rights to Freedom of Assembly an d Association: Intervention
delivered by the Permanent Delegation of Egypt,” May 30, 2013, accessed September 9, 2014,
https://extran et.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Egypt_10_1.pdf .
131 UN Office of the High Commissioner for Human Rights, “Interactive Dialogue with the Special
Rapporteur on the Rights to Peaceful Assembly and of Association, M aldives Oral Statement,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/ 23rdSession/OralStatements/Maldives_12.pdf .
132 UN Office of the High Commissioner for Human Rights, “Remarks by Azerbaijan,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Azerbaijan_12.pdf .

International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 25

 Ethiopia , on behalf of the African Group: “Domestic l aw regulation consistent with the
international obligations of States should be put in place to ensure that the exercise of the
right to freedom of expression, assembly and association fully respects the rights of
others and ensures the independence, accou ntability and transparency of civil society.” 133
 India, on behalf of the “Like Minded Group”: “The advocacy for civil society should be
tempered by the need for responsibility, openness and transparency and accountability of
civil society organizations.” 134
 Pa kistan , on behalf of the Organisation of Islamic Cooperation members : “It may be
underscored that securing funding for its crucial work is the right of civil society,
maintaining transparency and necessary regulation of funding is the responsibility of
sta tes.” 135
Kyrgyzstan has also employed this argument to justify a draft “foreign agents” law. The
explanatory note to the draft law claims that it “has been developed for purposes of ensuring
openness, publicity, transparency for non -profit organizations, inc luding units of foreign non –
profit organizations, as well as non -profit organizations acting as foreign agents and receiving
their funds from foreign sources, such as foreign countries, their government agencies,
international and foreign organizations, fo reign citizens, stateless persons or their authorized
representatives, receiving monetary funds or other assets from the said sources.”
3. Aid Effectiveness and Coordination
A global movement has increasingly advocated for greater aid effectiveness, including
through concepts of “host country ownership” and the harmonization of development
assistance. 136 However, some states have interpreted “host country ownership” to be
synonymous with “host government ownership” and have otherwise co -opted the aid
effectivene ss debate to justify constraints on international funding. For example:
133 UN Office of the High Commissioner for Human Rights, “Statement by Ethiopia on behalf of the
African Grou p at the 25th session of the Human Rights Council On the Panel Discussion on the Importance of the
Promotion and Protection of Civil Society Space,” March 11, 2014, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/Ethiopia%20on%20b
ehalf%20of%20African%20Group_PD_21.pdf .
134 UN Office of the High Commissioner for Human Rights, “Joint Statement: India on behalf of like –
minded countries,” March 11, 2014, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/India_on%20behalf
%20of%20LMG_PD_21.pdf . The “Like Minded Group” consists of Algeria, Bahrain, Bangladesh, Belarus,
Chi na, Cuba, Egypt, India, Indonesia, Malaysia, Pakistan, Russia, Saudi Arabia, Singapore, South Africa, Sri
Lanka, Sudan, Uganda, United Arab Emirates, Vietnam , and Zimbabwe .
135 UN Office of the High Commissioner for Human Rights, “Statement by Pakistan on be half of OIC:
Panel Discussion on Civil Society Space,” March 11, 2014, accessed September 9, 2014,
https ://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/Pakistan%20on%20b
ehalf%20of%20OIC_PD_21.pdf .
136 See the Aid Effectiveness Agenda of the Paris Declaration (2005), the Accra Agenda for Action (2008),
and the Busan Partn ership for Effective Development Cooperation (2011).

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 In July 2014, Nepal ’s government released a new Development Cooperation Policy 137
that will require development partners to channel all development cooperation through
the Ministry of Fi nance, rather than directly to CSOs. The government argued that this
policy is necessary for aid effectiveness and coordination: “Both the Government and the
development partners are aware of the fact that the effectiveness can only be enhanced if
the owne rship of aid funded projects lies with the recipient government.” 138
 Sri Lanka ’s Finance and Planning Ministry issued a public notice in July 2014 requiring
CSOs to receive government approval of international funding. Justifying the
requirement, the Ministry claimed that projects financed with international funding were
“outside t he government budget undermining the national development programmes.” 139
 In response to the UNSR’s Resource Report, the representative of Egypt stated, “The
diversification of the venues of international cooperation and assistance to States towards
the fund ing of civil society partners fragments and diverts the already limited resources
available for international assistance. Hence, aid coordination is crucial for aid
effectiveness.” 140
 At the recent Africa Leaders Summit, the Foreign Minister of Benin s poke a t a workshop
on closing space for civil society. He asserted that CSOs “don’t think they are
accountable to government but only to development partners. This is a problem.” He said
Benin needs “a regulation to create transparency on resources coming from a broad and
the management of resources,” stating that the space for civil society is “too wide.” 141
 The Intelligence Bureau of India released a report in June 2014 claiming that foreign –
funded CSOs stall economic development and negatively impact India’s GDP growth by
2 to 3 percent. 142 The report stated, “a significant number of Indian NGOs, funded by
some donors based in the US, the UK, Germany, the Netherlands and Scandinavian
137 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, accessed September 9, 2014,
https://www.mof.gov.np/uploads/document/file/DCP_English_20140707120230_20140721083326.pdf .
138 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, Article 2.2, acces sed September 9, 2014,
https://www.mof.gov.np/uploads/document/file/DCP_English_20140707120230_20140721083326.pdf .
139 “No foreign funds without approva l: Ministry,” Daily Mirror , July 22, 2014, accessed September 9,
2014, https://www.dailymirror.lk/news/50038 -no -foreign -funds -without -approval -ministry.html .
140 UN Office of the High Commissioner for Human Rights, “Clustered ID with the WG on HR and
Transnational Corporations and the SR on The Rights to Freedom of Assembly and Association: Intervention
delivered by the Permanent Delegation of Egypt,” May 30, 2013, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Egypt_1 0_1.pdf .
141 Personal notes of author.
142 “Foreign -funded NGOs stalling development: IB report,” Times of India , June 12, 2014, accessed
September 9, 2014, https://timesofindia.indiatimes.com/india/Foreign -funded -NGOs -stalling -development -IB –
report/articleshow/36411169.cms .

International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 27

countries, have been noticed to be using people centric issues to create an enviro nment
which lends itself to stalling development projects.” 143
4. National Security, Counterterrorism, and Anti -Money Laundering
As discussed above, governments also invoke national security, counterterrorism, and
anti -money laundering policies to justify restr ictions on international funding, including cross –
border philanthropy. For example, the Financial Action Task Force (FATF), an
intergovernmental body that seeks to combat money laundering and terrorist financing, stated:
The ongoing international campaign against terrorist financing has unfortunately
demonstrated however that terrorists and terrorist organisations exploit the NPO
sector to raise and move funds, provide logistical support, encourage terrorist
recruitment or otherwise support terrorist organi sations and operations. This
misuse not only facilitates terrorist activity but also undermines donor confidence
and jeopardises the very integrity of NPOs. Therefore, protecting the NPO sector
from terrorist abuse is both a critical component of the globa l fight against
terrorism and a necessary step to preserve the integrity of NPOs. 144
Governments have leveraged concerns about counterterrorism and money laundering to
justify restricting both the inflow and outflow of philanthropy. For example: 145
 The governm ent of Azerbaijan justified amendments relating to the registration of
foreign grants, stating that the purpose of the amendments was, in part, “ to enforce
international obligations of the Republic of Azerbaijan in the area of combating money –
laundering.” 146
143 Rake sh Krishnan Simha, “Why India Should Follow Vladimir Putin’s Lead on NGOs,” Russia & India
Report, June 15, 2014, accessed September 9, 2014,
https://in.rbth.com/blogs/2014/06/15/why_india_should_follow_vladimir_putins_lead_on_ngos_35945.html .
144 Financial Action Task Force, “International Standards on Combating Money Laundering and the
Financing of Terrorism & Proliferation: The FATF Recommendations,” Financial Action Task Force Report, 2013,
54, accessed September 9, 2014,
https://www.fatfgafi.org/media/fa tf/documents/recommendations/pdfs/FATF_Recommendations.pdf . See also
Financial Action Task Force, “Risk of Terrorist Abuse in Non -Profit Organisations,” Financial Action Task Force
Report, June 2014, https://www.fatf -gafi.org/media/fatf/documents/reports/Risk -of-terrorist -abuse -in-non -profit –
organisations.pdf .
145 Constraints by donor governments on the outflow of cross -border donation s, albeit beyond the scope of
this article, similarly present significant barriers to cross -border philanthropy. These states assert that they have an
international responsibility to regulate the outflow of cross -border donations in order to ensure that fu nding destined
for other countries will not support criminal or terrorist activities in those foreign jurisdictions. For more information
about the justifications employed and the implications for civil society, please see: Ben Hayes, “Counter -Terrorism,
‘Policy Laundering’ and the FATF: Legalizing Surveillance, Regulating Civil Society,” Transnational
Institute/Statewatch Report, February 2012, https://www.statewatch.org/analyses/no -171 -fafp -report.pdf .
146 Charity & Security Network, “How the FATF Is Used to Justify Laws That Harm Civil Society,
Freedom of Association and Expression,” Charity & Security Network , May 16, 2013, accessed September 9, 2014,
https://www.charityandsecurity.org/analysis/Restrictive_Laws_How_FATF_Used_to_Justify_Laws_That_Harm_Civ
il_Society .

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 The British Virgin Islands (BVI) enacted a law requiring that CSOs with more than five
employees appoint a designated Anti -Money Laundering Compliance Officer. 147 The
law also imposes audit requirements for CSOs that are not required of businesses. These
burdens were justified with explicit reference to FATF’s recommendation on nonprofit
organizations and counterterrorism. 148
 In response to the UNSR’s Resource Report, a group of thirteen African states responded,
“It is the responsibility of governments to ensure that the origin and destination of
associations’ funds are not used for terrorist purposes or directed towards activities which
encourage incitement to hatred and violence.” 149
 In 2013, a Sri Lankan government representative similarly stated, “While w e agree that
access to resources is important for the vibrant functioning of civil society, we observe
that Mr. Kiai does not seem to adequately take into account the negative impact of lack of
or insufficient regulation of funding of associations on natio nal security and counter –
terrorism.” 150
 In a National Security Analysis released in August 2014, Sri Lanka’s Ministry of
Defence claimed that some civil society actors have links with the Liberation Tigers of
Tamil Eelam, a group with “extremist separatist i deology,” and that these CSOs thereby
pose “a major national security threat.” 151 During the same period, the Sri Lankan
government announced that it was drafting a law requiring CSOs to register with the
Ministry of Defence in order to have a bank account and receive international funding.
5. Hybrid Justifications
While these categories and examples represent the types of justifications offered by
governments for restricting foreign funding, in practice, official statements often combine
multiple justifications. A recent example is the statement made at the UN Human Rights Council
by India on behalf of itself and twenty other “like minded” states, including Cuba, Saudi
147 “Non -Profit Organisations,” British Virg in Islands Financial Investigation Agency, accessed September
9, 2014, https://www.bvifia.org/non -profit -organisations .
148 Charity & Security Network, “How the FATF Is Used to Justify Laws That H arm Civil Society,
Freedom of Association and Expression,” May 16, 2013,
https://www.charityandsecurity.org/analysis/Restrictiv e_Laws_How_FATF_Used_to_Justify_Laws_That_Harm_Civ
il_Society
149 UN Office of the High Commissioner for Human Rights, “Oral Statement — Gabon on behalf of the
African Group,” 30 May 2013, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Gabon%20on%20be
half%20ofAG_10_1.pdf .
150 UN Office of the High Co mmissioner for Human Rights, “23rd Session of the HRC Statement by Sri
Lanka —Item 3: Clustered ID with the SR on the rights to peaceful assembly & of association,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/Pages/OralStatement.aspx?MeetingN
umber=12.0&MeetingDat e=Friday,%2031%20May%202013 .
151 Gotabaya Rajapaksa, “Sri Lanka’s National Security,” Ministry of Defence and Urban Development of
Sri Lanka, August 19, 2014, accessed September 9, 2014,
https://www.defence.lk/new.asp?fname=Sri_Lankas_National_Security_20140819_02 .

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Arabia , Belarus, China, and Vietnam ,152 which weaves together a number of different
justifications, including foreign interference, accountability, and national security:
[C]ivil society cannot function effectively and efficiently without defined
limits…. Civil society must also learn to protect its own space by guarding against
machinations of donor groups guided by extreme ideologies laden with hidden
politicized motives, which if allowed could potentially bring disrepute to the civil
society space…. There have also been those civil society organizations, who have
digressed from their original purpose and indulged in the pursuit of donor -driven
agendas. It is important to ensure accountability and responsibility for their
actions and the consequences thereof and also guard against compromising
national and international security. 153
Similarly, Ethiopia, in its statement in response to the UNSR’s Resource R eport,
referenced justifications relating to state sovereignty, aid coordination, and accountability and
transparency:
It is our firm belief that associations will play their role in the overall
development of the country and advance their objectives, if a nd only if an
environment for the growth of transparent, members based and members driven
civil society groups in Ethiopia providing for accountability and predictability is
put in place. We are concerned that the abovementioned assertion [about
lightening the burdens to receive donor funding] by the special rapporteur
undermines the principle of sovereignty which we have always been guided by. 154
Similarly constructed statements have also been put forward by Pakistan and other states. 155
152 The “Like Minded Group” consisted of Algeria, Bahrain, Bangladesh, Belarus, China, Cuba, Egypt,
India, Indonesia, Malaysia, Pakistan, Russia, Saudi Arabia, Singapore, South Africa, Sri Lanka, Sudan, Uganda,
UAE, Vietnam, and Zimbabwe. UN Office of the Hig h Commissioner for Human Rights, “Joint Statement: India on
behalf of like -minded countries,” March 11, 2014, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/India_on%20behalf
%20of%20LMG_PD_21.pdf .
153 Ibid.
154 UN Office of the High Commissioner for Human Rights, “Oral Statement: Ethiopia,” May 31, 2013,
accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/23rdSession/OralStatements/Et hiopia_12.pdf .
155 See, e.g., UN Office of the High Commissioner for Human Rights, “Statement by Pakistan on Behalf of
OIC: Panel Discussion on Civil Society Space,” March 11, 2014, accessed September 9, 2014,
https://extranet.ohchr.org/sites/hrc/HRCSessions/RegularSessions/25thSession/OralStatements/Pakistan%20on%20b
ehalf%20of%20OIC_PD_21.pdf : “By virtue of its dynamic role civil society is well poised to build convergences
with the view to develop synergies between state institutions and their own networks. These synergies would
facilitate proper utilization of resources at the disposal state institutions an d civil society actors. In this regard, it
may be underscored that securing funding for its crucial work is the right of civil society, maintaining transparency
and necessary regulation of funding is the responsibility of states…. Within this social space, the civil society can
play its optimal role by working in collaboration with state institutions. Better coordination between civil society
actors and state institution [sic] would also facilitate enhancement of international cooperation in the field of hu man
rights.”

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In this section, the a rticle briefly surveyed justifications presented by governments to
constrain the inflow of international funding, including philanthropy. In the following section,
we analyze constraints and their justifications under international law.
International Legal Framework
1. International Norms Protecting Access to Resources and Cross -Border Philanthropy
Article 22 of the International Covenant on Civil and Political Rights (ICCPR) states,
“Everyone shall have the right to freedom of association with others….” 156 Acco rding to the
UNSR: 157
The right to freedom of association not only includes the ability of individuals or legal
entities to form and join an association 158 but also to seek, receive and use resources 159 —
human, material and financial — from domestic, foreign and in ternational sources. 160
The United Nations Declaration on Human Rights Defenders 161 similarly states that
access to resources is a self -standing right:
“[E]veryone has the right, individually and in association with others, to solicit, receive
and utilize reso urces for the express purpose of promoting and protecting human rights
and fundamental freedoms through peaceful means….” 162
According to the Office of the United Nations High Commissioner for Human Rights, this right
specifically encompasses “the receipt of funds from abroad.” 163
156 United Nations International Covenant on Civil and Political Rights, Article 22, December 16, 1966,
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx .
157 While reports of the UNSR are not binding international law, his reports are referenced here because
they provide a comprehensive articulation and explanation of international law.
158 International law generally recognizes the freedom of association, and t his section follows that
formulation. Addressing the applicability of international law to non -membership organizations is beyond the scope
of this article, but for more information, please see: International Center for Not -for -Profit Law & World Movement
for Democracy Secretariat, “Defending Civil Society Report, Second Edition,” June 2012, 35,
https://www.icnl.org/research/resources/dcs/DCS_Report_Second_Editi on_English.pdf .
159 The UNSR defines “resources” as a broad concept that includes financial transfers (e.g., donations,
grants, contracts, sponsorship, and social investments), loan guarantees, in -kind donations, and other forms of
support. See United Nation s Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 10, UN Doc. A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
160 Ibid., para. 8.
161 The UNSR notes that while “the Declaration is not a binding instrument, it must be recalled tha t it was
adopted by consensus of the General Assembly and contains a series of principles and rights that are based on
human rights standards enshrined in other international instruments which are legally binding. Ibid., para. 17.
162 United Nations General Assembly, Declaration on the Right and Responsibility of Individuals, Groups
and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms ,
UN Res. 53/144, Article 13, https://www.un.org/Docs/asp/ws.asp?m=A/RES/53/144 .
163 United Nations Office of the High Commissioner for Human Rights, “Declaration on Human Rights
Defenders,” UN OHCHR, accessed September 9, 2014,
https://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Declaration.aspx .

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Reinforcing this position, 164 in 2013 the United Nations Human Rights Council passed
resolution 22/6, which calls upon on States “[t]o ensure that they do not discriminatorily impose
restrictions on potential sources of funding aimed at supporting the work of human rights
defenders,” and “no law should criminalize or delegitimize activities in defence of human rights
on account of the origin of funding thereto.” 165
The freedom to access resources extends beyond human rights defenders. For example,
the Declaration on the Elimination of A ll Forms of Intolerance and of Discrimination Based on
Religion or Belief states that the right to freedom of thought, conscience, and religion includes
the freedom to “solicit and receive voluntary financial and other contributions from individuals
and in stitutions.” 166 Access to resources is also an integral part of a number of other civil,
cultural, economic, political, and social rights. As the UNSR states: 167
For associations promoting human rights, including economic, social and cultural rights,
or those involved in service delivery (such as disaster relief, health -care provision or
environmental protection), access to resources is important, not only to the existence of
the association itself, but also to the enjoyment of other human rights by those benef itting
from the work of the association. Hence, undue restrictions on resources available to
associations impact the enjoyment of the right to freedom of association and also
undermine civil, cultural, economic, political and social rights as a whole. 168
Acc ordingly, “funding restrictions that impede the ability of associations to pursue their statutory
activities constitute an interference with article 22” of the International Covenant on Civil and
Political Rights. 169
2. Regional and Bilateral Commitments to Pro tect Cross -Border Philanthropy
164 This article briefly examines international norms governing global philanthropy. But it also recogniz es
that there are distinct limits to the impact of international law. For example, there is often an implementation gap
between international norms and country practice. In addition, there are few binding international treaties, such as
the ICCPR, and de tails are often left to “soft law,” such as the reports of the UNSR. At the same time, there is
concern that any effort to create a new global treaty on cross -border philanthropy or foreign funding would lead to a
retrenchment of existing rights.
165 United Nations General Assembly, Protecting Human Rights Defenders, March 21, 2013, UN Human
Rights Council, Resolution 22/6, para. 9, https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC /RES/22/6 .
166 United Nations General Assembly, Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief , November 25, 1981, UN General Assembly Resolution A/RES/36/55,
Article 6(f), https://www.un.org/documents/ga/res/36/a36r055.htm .
167 In similar fashion, the UN Committee on Economic, Social and Cultural Rights recognized the link
between access to resources and economic, social and cultural rights, when it expressed “deep concern” about an
Egyptian law that “gives the Government control over the right of NGOs to manage their own activities, including
seeking external funding.” See Egypt, ICESCR, E/2001/22 (2000) 38 at paras. 161, 176,
https://www.bayefsky.com/themes/public_general_concluding -observations.php .
168 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 9, UN Doc. A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploa ds/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
169 Human Rights Committee, communication No. 1274/2004, Korneenko et al. v. Belarus, Views adopted
on October 31, 2006, para. 7.2.

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While this article is focused on global norms, cross -border philanthropy is also
protected at the regional level. For example:
 The Council of Europe Recommendation on the Legal Status of NGOs states:
“NGOs should be free to s olicit and receive funding — cash or in -kind donations —
not only from public bodies in their own state but also from institutional or
individual donors, another state or multilateral agencies ….” 170
 According to the Inter -American Commission on Human Rights, “states should allow and
facilitate human rights organizations’ access to foreign funds in the context of
international cooperation, in transparent conditions.” 171
 In May 2014, the African Commission on Human and Peoples’ Rights (ACHPR)
adopted, in draft for m, a report of the ACHPR Study Group on Freedom of Association
and Peaceful Assembly, with a specific recommendation that States’ legal regimes should
codify that associations have the right to seek and receive funds. This includes the right to
seek and re ceive funds from their own government, foreign governments, international
organizations and other entities as a part of international cooperation to which civil
society is entitled, to the same extent as governments.
 The European Court of Justice (ECJ) has issued a series of important decisions about the
free flow of philanthropic capital within the European Union. 172
In addition, many jurisdictions have concluded bilateral investment treaties, which help
protect the free flow of capital across borders. Some treaties, such as the U.S. treaties with
Kazakhstan and Kyrgyzstan, expressly extend investment treaty protections to organizations not
“organized for pecuniary gain.” 173 Indeed, the letters of transmittal submitted by the White
House to the U.S. Senate sta te that these treaties are drafted to cover “charitable and non -profit
entities.” 174
170 Council of Europe, “Recommendation CM/Rec (2007)145 of the Committ ee of Ministers to member
states on the legal status of non -governmental organisations in Europe,” adopted October 10, 2007, Article 50,
https://wcd.coe.int/ViewDoc.jsp?id=1194609 .
171 Inter -American Commission on Human Rights, Report on the Situation of Human Rights Defenders in
the Americas , March 7, 2006, Recommendation 19, https://www.icnl.org /research/resources/assembly/oas -human –
rights -report.pdf .
172 For more information on these decisions, see: European Foundation Center and Transnational Giving
Europe, “Taxation of Cross -Border Philanthropy in Europe After Persche and Stauffer: From landloc k to free
movement?”, European Foundation Center Report, 2014,
https://www.efc.be/programmes_services/resources/Documents/TGE -web.pdf ; European Foundation Centre, “ECJ
rules in favour of cross -border giving ,” EFC briefing, January 27, 2009, accessed September 9, 2014,
https://www.efc.be/programmes_services/resources/Documents/befc09 08.pdf .
173 U.S. -Kyrgyz Bilateral Investment Treaty, Article 1(b); U.S. -Kazakh Bilateral Investment Treaty, Article
1(b). See also Article 1(2) of the China – Germany BIT: “the term ‘investor’ means … any juridical person as well
as any commercial or other c ompany or association with or without legal personality having its seat in the territory
of the Federal Republic of Germany, irrespective of whether or not its activities are directed at profit.”
174 Letters of Transmittal available at the U.S. State Departm ent website:
https://www.state.gov/documents/organization/43566.pdf and
https://www.state.gov/documents/organization/4 3567.pdf .

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A detailed discussion of investment treaty protection for cross -border philanthropy is
beyond the scope of this article. This issue is presented in brief form, however, beca use it is a
significant avenue for further exploration, as it expands the international legal argument beyond
human rights and implicates bilateral investment treaties with binding enforcement
mechanisms. 175 For further information on this issue, please see International Investment Treaty
Protection of Not -for -Profit Organizations 176 and Protection of U.S. Non -Governmental
Organizations in Egypt under the Egypt -U.S. Bilateral Investment Treaty. 177
3. Restrictions Permitted Under International Law
Continuing the discussion of global norms, ICCPR Article 22(2) recognizes that the
freedom of association can be restricted in certain narrowly defined conditions. According to
Article 22(2):
No restrictions may be placed on the exercise of this right other than those wh ich are
prescribed by law and which are necessary in a democratic society in the interests of
national security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others. 178
In other words, international law allows a government to restrict access to resources if the
restriction is:
(1) prescribed by law;
(2) in pursuance of one or more legitimate aims, specifically:
o national security or public safety;
o public order;
o the protection of public health or morals; or
o the protection of the rights and freedoms of others; and
175 In addition, the European Court of Human Rights has held that Article 1 of the First Protocol of the
European Convention on Human Rights protects the right to peaceful enjoyment of one’s possessions. (Article 1 of
the First Protocol of the Euro pean Convention reads: “Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to
the conditions provided for by law and by the general p rinciples of international law. The preceding provisions shall
not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure the payment o f taxes or other contributions or
penalties.” In addition, the right to property includes the right to dispose of one’s property (Clare Ovey & Robin
White, The European Convention on Human Rights , 3rd edition (Oxford: Oxford University Press, 2002)), which
would seem to embrace the right to make contributions to CSOs for lawful purposes.
176 Luke Eric Peterson & Nick Gallus, “International Investment Treaty Protection of Not -for -Profit
Organizations,” International Journal of Not -for -Profit Law 10(1) (December 2007),
https://www.icnl.org/research/journal/vol10iss1/art_1.htm .
177 Nick Gallus, “Protection of U.S. Non -Governmental Organizations in Egypt under the Egypt -U.S.
Bilat eral Investment Treaty,” International Journal of Not -for -Profit Law 14(3) (September 2012),
https://www.icnl.org/research/journal/vol14iss3/art2.html .
178 United Nations International Covenant on Civil and Political Rights, Article 22, December 16, 1966,
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx . Article 22, ICCPR

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(3) “necessary in a democratic society to achieve those aims.” 179
Moreover :
States should always be guided by the principle that the restrictions must not im pair the
essence of the right … the relations between right and restriction, between norm and
exception, must not be reversed. 180
The burden of proof is on the government. 181 In addition:
When a State party invokes a legitimate ground for restriction of freed om of expression,
it must demonstrate in specific and individualized fashion the precise nature of the threat,
and the necessity and proportionality of the specific action taken, in particular by
establishing a direct and immediate connection between the [ activity at issue] and the
threat. 182
The following section amplifies this three -part test contained in Article 22(2).
A. Prescribed by law
The first prong requires a restriction to have a formal basis in law. This means that:
restrictions on the right to free dom of association are only valid if they had been
introduced by law (through an act of Parliament or an equivalent unwritten norm of
common law), and are not permissible if introduced through Government decrees or other
similar administrative orders. 183
As discussed above, in July 2014, the Sri Lankan Department of External Resources of
the Ministry of Finance and Planning disseminated a notice to the public, declaring that any
organization or individual undertaking a project with foreign aid must have appro val from
relevant government agencies. Similarly, in July 2014, Nepal’s government released a new
Development Cooperation Policy that will require development partners to channel all
development cooperation through the Ministry of Finance, rather than directly to civil society. In
both cases, the restriction s were based on executive action and not “introduced by law (through
179 Case of Vona v. Hungary (A pp no 35943/10) (2013) ECHR para. 50,
https://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -122183 .
180 United Nations Human Rights Council, Report of the Special Rappo rteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 16, UN Doc. A/HRC/20/27 (May 21, 2012),
https://www.ohchr .org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A -HRC -20 -27_en.pdf .
181 UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 15, Civil and
Political Rights: The Human Rights Committee, May 2005,
https://www.ohchr.org/Documents/Publications/FactSheet15rev.1en.pdf .
182 United Nations Human Rights Committee, General Comment No. 34, para. 35, UN Doc.
CCPR/C/GC/34 (September 12, 2011), https://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf .
183 See UN Special Rapporteur on the situation of human rights defenders, Commentary to the Declaration
on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Fre edoms, July 2011, 44,
https://www.ohchr.org/Documents/Issues/Defenders/CommentarytoDeclarationondefendersJuly2011.pdf : “It would
seem reasonable t o presume that an interference is only “prescribed by law” if it derives from any duly promulgated
law, regulation, order, or decision of an adjudicative body. By contrast, acts by governmental officials that are ultra
vires would seem not to be ‘prescribe d by law,’ at least if they are invalid as a result.”

International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 35

an act of Parliament or an equivalent unwritten norm of common law).” Accordingly, they
appear to violate the “prescribed by law” standard required under Article 22(2) of the ICCPR.
This prong of Article 22(2) also requires that a provision be sufficiently precise for an
individual or NGO to understand whether or not intended conduct would constitute a violation of
law. 184 As stated in the Johannesburg Principles, “The law must be accessible , unambiguous,
drawn narrowly and with precision so as to enable individuals to foresee whether a particular
action is unlawful.” 185
This prong helps limit the scope of permissible restrictions. As discussed above, certain
laws ban funding of organizations that cause “social anxiety,” have a “political nature,” or have
“implied ideological conditions.” These terms are undefined and provide little guidance to
individuals or organizations about prohibited conduct. Since they are not “unambiguous, drawn
narrowl y and with precision so as to enable individuals to foresee whether a particular action is
unlawful,” there is a reasonable argument that these sorts of vague restrictions fail the
“prescribed by law” requirements of international law.
B. Legitimate aim
The second prong of Article 22(2) requires that a restriction advance one or more
“legitimate aims,” 186 namely:
 national security or public safety;
 public order;
 the protection of public health or morals; or
 the protection of the rights and freedoms of others.
This prong provides a useful lens to analyze various justifications for constraint. For
example, governments have justified constraints to promote “aid effectiveness.” As the UNSR
notes, aid effectiveness “is not listed as a legitimate ground for restricti ons.” 187 Similarly, “[t]he
protection of State sovereignty is not listed as a legitimate interest in the [ICCPR],” and “States
cannot refer to additional grounds … to restrict the right to freedom of association.” 188
Of course, assertions of national security or public safety may, in certain circumstances,
constitute a legitimate interest. Under the Siracusa Principles, however, assertions of national
security must be construed restrictively “to justify measures limiting certain rights only when
184 Though not a fully precise comparison, this concept is somewhat similar to the “void for vagueness”
doctrine in U.S. constitutional law.
185 Article 19, Johannesburg Principles on National Security, Fre edom of Expression and Access to
Information (London: Article 19, 1996), Principle 1.1(a),
https://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf . The Johannesburg Principles were
developed by a meeting of international experts at a consultation in South Africa in October 1995.
186 Case of Vona v. Hungary (App no 35943/10) (2013) ECHR para. 50,
https://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001 -122183 .
187 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 40, UN Doc . A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
188 Ibid., pa ra. 30.

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they are taken to protect the existence of the nation or its territorial integrity or political
independence against force or threat of force.” 189 In addition, a state may not use “ national
security as a justification for measures aimed at suppressing opposition … or at perpetrating
repressive practices against its population.” 190 This includes defaming or stigmatizing foreign
funded groups by accusing them of “treason” or “promoting regime change.” 191
Accordingly, under international law, governments cannot rely on generalized claims of
“state sovereignty” to justify constraints on global philanthropy. In the words of the UNSR:
Affirming that national security is threatened when an association receives funding from
foreign sources is not only spurious and distorted, but also in contradiction with
international human rights law. 192
This brief analysis is not intended to explore the details of the aid effectiveness and
sovereignty justifications. Rather, the goal is to illustrate how the “legitimate aim” requirement
of in ternational law can help inform the analysis of certain justifications presented by
governments, such as arguments based on “aid effectiveness” and “sovereignty.”
C. Necessary in a Democratic Society
Even if a government is able to articulate a legitimate aim , a restriction violates
international law unless it is “necessary in a democratic society.” As stated by the Organization
for Security and Co -operation in Europe, the reference to necessity does not have “the flexibility
of terms such as ‘useful’ or ‘conv enient’: instead, the term means that there must be a ‘pressing
social need’ for the interference.” 193 Specifically, “where such restrictions are made, States must
demonstrate their necessity and only take such measures as are proportionate to the pursuance of
legitimate aims in order to ensure continuous and effective protection of Covenant rights.” 194
As stated by the UNSR:
In order to meet the proportionality and necessity test, restrictive measures must be the
least intrusive means to achieve the desired ob jective and be limited to the associations
189 See the “Siracusa Principles” [United Nations, Economic and Social Council, U.N. Sub -Commission on
Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of
Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1985/4 (1984)],
which were adopted in May 1984 by a group of international human rights experts convened by the International
Commission of Jurists, the International Association of Penal Law, th e American Association for the International
Commission of Jurists, the Urban Morgan Institute for Human Rights, and the International Institute of Higher
Studies in Criminal Sciences. Though not legally binding, these principles provide an authoritative s ource of
interpretation of the ICCPR with regard to limitations clauses and issue of derogation in a public emergency. They
are available at: https://graduateinstitute.ch/f aculty/clapham/hrdoc/docs/siracusa.html .
190 Ibid.
191 United Nations Human Rights Council, Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, Maina Kiai, para. 27, UN Doc. A/HRC/23/39 (April 24, 2013) at
https://freeassembly.net/wp -content/uploads/2013/04/A.HRC_.23.39_EN -funding -report -April -2013.pdf .
192 Ibid., para. 30
193 OSCE/Office for Democratic Institutions and Human Rights (ODIHR), Key Guiding Principles of
Freedom of Association with an Emphasis on Non -Governmental Organizations , para. 5
194 United Nations Human Rights Committee, General Comment No. 31 (2004), para. 6, UN Doc.
CCPR/C/21/Rev.1/Ad d. 13, May 26, 2004.

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falling within the clearly identified aspects characterizing terrorism only. They must not
target all civil society associations…. 195
Consider, for example, Ethiopian legislation imposing a 10 percent cap on the for eign
funding of all CSOs promoting a variety of objectives, including women’s rights and disability
rights. As discussed above, Ethiopia has asserted a counterterrorism rationale to justify foreign
funding constraints. Ethiopia does not establish a “ direct and immediate connection between the
[activity at issue] and the threat.” 196 In addition, the cap is not the “least intrusive means to
achieve the desired objective and … limited to the associations falling within the clearly
identified aspects characterizi ng terrorism.” Accordingly, the counterterrorism objective fails to
justify the Ethiopian cap on foreign funding.
The UNSR also applied this test to the “aid effectiveness” justification. In response, he
stressed that:
even if the restriction were to purs ue a legitimate objective, it would not comply with the
requirements of “a democratic society.” In particular, deliberate misinterpretations by
Governments of ownership or harmonization principles to require associations to align
themselves with Government s’ priorities contradict one of the most important aspects of
freedom of association, namely that individuals can freely associate for any legal
purpose. 197
In addition, “longstanding jurisprudence asserts that democratic societies only exist
where ‘pluralis m, tolerance and broadmindedness’ are in place,” 198 and “minority or dissenting
views or beliefs are respected.” 199
Applying this test, the UNSR has note