The International Journal
of Not-for-Profit Law
Volume 3, Issue 4, March 2001
By Douglas Rutzen
On April 27-28, 2001 in Opatija, Croatia the International Center for Not-for-Profit Law (ICNL) organized a conference on NGO/government partnerships in Central and Eastern Europe and the former Soviet Union. The conference focused on NGO/government compacts and the legal framework for public financing of NGOs. Government officials, NGO representatives, and lawyers from twenty-eight countries participated in the conference, which was opened by the Deputy Prime Minister Antunovic of Croatia.
This article addresses the issue of NGO-government “compacts,” or agreements between the government and the NGO sector articulating shared values and principles of partnership. Among other countries, Croatia, England, Scotland, Wales, and Northern Ireland have compacts. The Estonian Parliament is currently considering a compact, and Macedonian NGO representatives recently embraced the notion of adopting a compact once the political situation is more settled. In Africa, Ghana, Tanzania, Malawi, and Botswana have gone or are going through processes toward the adoption of similar documents, generally referred to as NGO Policies.
The participants examined the circumstances under which it makes sense to pursue a compact. Among other indicators, participants stated that a compact may be appropriate when it can support the political transformation of a country or provide political legitimacy to the NGO sector. Participants noted, for example, that the Croatian Compact explicitly accepted pluralism through civil society, thereby rejecting totalitarian tendencies displayed by the Tudjman regime:
The Government of Croatia accepts pluralism as the main principle in creating a society that gives its citizens a legitimate right to shape and advocate different interests and needs of its members through various forms of organizations and free associations….. Croatian Compact at page 2.
Participants also noted that there are times when compacts do not make sense. For example, in some countries, like Latvia, the NGO sector is in need of quick legislative reform. There was a concern that a compact project might divert attention and resources from legal reform. It could also give the government an easy out – providing platitudes instead of engaging in action. In addition, some governments are hostile to the NGO sector and agreement on supportive policies would be difficult, if not impossible, to achieve. As summarized by one working group, compacts can help promote dialogue, recognition, and reform, but it is necessary to assess the needs of the NGO sector, government receptivity, and the likelihood of concrete follow-up before undertaking any such initiative.
Participants discussed representational/process issues. It was noted that many compacts are negotiated with ministries or other executive bodies. In Estonia, however, NGO representatives decided to negotiate with the Parliament, arguing that this would give the compact more political durability since all political parties would be involved. In addition, in Poland and elsewhere, NGOs have negotiated compacts with local governments, which have led to a number of concrete, collaborative projects. Participants also noted that the options are not mutually exclusive; for example, at the appropriate time, Kosovo might consider a compact at both the province-wide and local levels.
NGO representation in the compact creation process was also addressed. Ms. Plavsa-Matic of the Office for NGO/Government Cooperation in Croatia remarked that she contacted all 16,000 NGOs in Croatia to engage them in the compact process, but few were initially interested (although many more became interested over time, thanks to additional outreach efforts by Ms. Plavsa-Matic). Participants observed that the process often works best when there is an accepted, representative body empowered to negotiate on behalf the NGO sector.
The conference also revealed that while the content of a compact is country-specific, provisions tend can be grouped in five categories: (1) recognition, (2) participation, (3) service delivery, (4) funding, and (5) implementation. Hearkening back to the contractual basis of the document, these provisions are sometimes styled as “undertakings of the Government” and “undertakings of the NGO sector.”
Under “recognition,” provisions often acknowledge the independence of the NGO sector, and its role in delivering service and fostering democratic values. The Croatian and Estonian compacts contain these sorts of provisions. The “participation” provisions generally encourage the government to create a sound legal framework for civic participation, including access to information and fora for public consultation. Several participants expressed the view that these “participation” provisions should not create special rights for NGOs, but rather should enable all members of the public to participate in government decision-making.
The “service delivery” provisions tend to recognize the mutual interest of the government and certain NGOs in providing efficient and effective social services. While in some cases it might make sense to provide set-asides or preferences for service-delivery NGOs, participants noted that they should be approached with caution, as open competition often leads to more efficient and effective service delivery. On a related topic, many compacts contain general provisions calling for transparent and accountable funding of NGO activities, a topic that was addressed at greater length later in the conference.
As for “implementation,” some compacts, such as the one in Croatia, call for specific legal reform. Others, such as the one in England, call inter alia for the adoption of a code of good practice. This is designed to address principles of government funding and require an annual review of the operation of the Compact by both the government and the NGO sector. Participants remarked on the particular importance of the “implementation” provisions, noting that they should not only call for concrete action, but should also contain a mechanism for monitoring progress.
In addition to these deliberations, ICNL assembled a collection of papers and background materials on the issue of compacts and the legal framework for public financing of NGOs. Many of those are available in this issue of IJNL.
Douglas B. Rutzen
Vice President, ICNL