Accountability, Effectiveness, and Independence — Striking the Proper Balance

Recent Laws and Legislative Proposals to Restrict Civil Society and Civil Society Organizations

The International Journal
of Not-for-Profit Law

Volume 8, Issue 4, August 2006

By the International Center for Not-for-Profit Law

The 2005 Forum for the Future, hosted by President Bush, brought together leaders from dozens of nations, including 22 Arab countries and members of the G-8 industrialized countries, with the aim of fostering nongovernmental organizations and civil society. Although many of the other nations present at the Forum supported fostering civil society, the forum ended without a formal declaration. The Egyptian government demanded inclusion of language that would have given to Arab governments significant control over which pro-democracy groups would receive aid, scuttling any possibility of agreement.

Just days earlier, the Russian Duma passed on first reading a law that would have barred the participation of foreigners in Russian civil society organizations, prohibited foreign organizations from operating branches in Russia, and given the government unchecked powers to intrude in the affairs of civil society organizations, including a requirement that it be notified of the existence of informal groups such as neighborhood associations. Efforts by Russian civil society leaders, with support from international organizations, coupled with diplomatic approaches from the United States, European Commission, and others, led to the elimination of some of the more restrictive features of the draft. Nonetheless, the law ultimately adopted on January 17, 2006, gave the Russian government significantly greater control over NGO activity.

These are not isolated events. Over the past year, nineteen countries have introduced restrictive legislation aimed at weakening civil society. These countries join the more than 30 with existing laws, policies, and practices that stifle the work of civil society organizations (CSOs).

The International Center for Not-for-Profit Law (ICNL), an organization dedicated to the promotion of the freedom of association, civil society, and citizen participation worldwide, presents this study of recent laws and proposed laws aimed at restricting the operations of civil society organizations. The study identifies both recent and existing restrictive laws and proposed laws. It offers a typology of the legal barriers used by governments to constrain civil society and describes the challenges that these pose to civil society organizations. Lastly, it describes strategies that civil society organizations in various countries have used to counter restrictive measures and how the United States government can provide support.

I. Recent Laws and Proposals to Restrict Civil Society

The study reveals that nineteen countries have enacted or proposed laws that would in some way restrict the activities of civil society over the past five years. Although these types of laws can be found in almost any region of the world, they tend to be concentrated in Africa, the Middle East, and the Newly Independent States of the former Soviet Union. Countries with restrictive laws generally exhibit the following characteristics:

  1. The country is either governed through a dictatorship or, if elections are held, they are deemed not to be free and fair (e.g., Egypt, Azerbaijan, Eritrea)
  2. The country is a theocracy or has a strong politico-religious contingent (e.g., either where a particular religion’s tenets/values are perceived as inconsistent with or threatened by the human rights agenda, or where a particular religious group seeks to use such legislation to suppress another group) (e.g., Nepal)
  3. The country operates in a “closed” or command economy (e.g., China, Cuba)
  4. There is political unrest in the country or neighboring country threatening the current government regime or incumbent party (e.g., Zambia, Sudan, Ethiopia, Russia)
  5. Similar legislation or practices have been enacted or introduced in sister regimes (e.g., Belarus, Russia, Middle East)
  6. The country controls, restricts, or monitors media (e.g., Cuba)
  7. The country has a history of human rights abuses (e.g., Belarus, Zimbabwe)

The reasons given for the proposal and enactment of these laws vary depending on the situation. Oftentimes, the government will provide an “official” rationalization for a proposed law that does not match the reasons perceived by the international community and local NGOs. For example, in Russia, the government has described the law described above as necessary to counter terrorism and money laundering. Similarly, both the governments of Kazakhstan and India claimed that their recent attempts to enact laws restricting NGO financing were necessary security measures for their countries. Other governments insist that the laws are needed to encourage greater transparency and accountability among CSOs.

In some cases, the restrictive legislation may in fact simply be a misguided attempt to achieve the stated goal. However, in virtually all of the cases cited, the means deployed are far more harsh and restrictive than necessary to fight abusive CSO practices, and often are contrary to obligations to protect the right to free association imposed either by the country’s constitution or by international conventions to which it is a party. In some countries, the restrictive laws are a continuation of longstanding patterns of repressive government tactics (e.g., Belarus). In others, the recent initiatives appear to be motivated by a desire to forestall political opposition. In the Newly Independent States, for example, it has been postulated that governments are wary of civil society in the wake of the Rose Revolution in Georgia and the Orange Revolution in Ukraine in which CSOs played prominent roles in elections that swept authoritarian leaders from power.

II. Common Legal Barrier Constraining Civil Society and the Challenges They Pose to Democracy Assistance Groups

The use of restrictions by foreign governments on NGO formation, operation, and financing is increasing. Several trends have emerged with respect to authoritarian governments’ use of such restrictions. We summarize below some of the more common legal barriers included in restrictive legislation.

These restrictions have posed obstacles to the ability of both foreign and domestic civil society groups to form, operate, and sustain themselves. Examples of the challenges faced by domestic groups are included in the summaries below.

A. Limited Rights to Associate and Form NGOs

In the most restrictive environments, governments do not grant the right to associate or form organizations.

  • In Saudi Arabia, there is no law governing CSOs, and as a result only a few organizations established by royal decree or under government control exist.
  • In Libya, there is no right to associate recognized by law.
  • Cuba strictly controls CSOs, even going so far as to form its own organizations.
  • China provides no legally guaranteed “right” for a CSO to exist. However, civil society in China has been able to exist somewhat under harsh circumstances through the ingenuity of its CSOs, which, for example, often register as another form of organization.

1. Inability to register and secure the benefits of legal personality

Repressive governments often closely guard the process by which an organization can register, i.e., become a legal person with all of the rights attending that status. On one hand, governments may insist that all groups, however small or informal (a neighborhood association, a babysitting coop, a poker club), must register, thus ensuring that they can keep watch on the groups’ activities. On the other, governments may make registration difficult, limiting the ability of civil society groups, and particularly advocacy groups, to exist. Tactics include retaining excessive government discretion over the registration process, making registration expensive, inconvenient, or burdensome in terms of the type or amount of information required; excessive delays in making registration decisions, and requiring re-registration every few years, thus giving government the right to periodically revisit the issue of whether an organization should be allowed to exist.

Illustrations of restrictive registration practices and their consequences for civil society include the following.

  • The initial draft of the Russian law threatened to restrict the activities of foreign persons on the territory of Russia. Foreign citizens and persons without citizenship, if not permanently residing on the territory of the Russian Federation, would have been prohibited from establishing a public association or non-commercial organization, or from becoming a member or participant in such an organization. The provisions that appeared in the law ultimately enacted and signed into law are not as sweeping; they require only that a foreign national or person without citizenship be physically present in the Russian Federation in order to found an organization. The law does, however, give the registration authorities broad and discretionary grounds for refusing to register branches of foreign organizations.
  • In Azerbaijan, Ethiopia, and Algeria, regulations governing the registration process are vague and leave great discretion to the registration officials. As a result, CSOs have difficulty registering – they are sometimes denied registration and other times experience long delays or repeated requests for information. In Azerbaijan, for example, it is reported that registrations have been “de facto suspended” as a result of poor and overly discretionary implementation of the registration laws.
  • In Belarus, the government has adopted a series of laws restricting both public gatherings and CSO activity in recent years. Among other powers, the laws give the government substantial discretion over the registration process, vesting authority in a National Commission on Registration of Public Associations to advise the Ministry of Justice on which organizations to register, a process that is not transparent. Applicants have waited for more that a year for a response on applications to register (the law provides for one month) only to be denied registration without explanation.

B. Inability To Obtain Foreign Funding or To Raise Domestic Funding

Perhaps the most common tactic used by governments to restrain civil society is to restrict the access of CSOs to foreign funding, apparently as a means to reduce foreign influence. Legislative provisions used to restrict foreign funding have included requirements that

  1. CSOs re-register or receive a special license to receive foreign funding;
  2. all CSOs be granted prior government permission to receive foreign funding (on a donation-by-donation basis);
  3. all foreign funding be channeled via government or designated, monitored bank accounts;
  4. foreign aid be subject to tax;
  5. a CSO’s total funding from foreign sources be limited to a stated percentage; and
  6. foreigners’ participation in domestic associations be limited, or that a person be a citizen in order to be a member of an association.

Examples of recent attempts to restrict foreign financing of domestic organizations include the following:

  • On March 7, 2006, the president of the separatist government in the Transnistria region of Moldova signed a decree prohibiting foreign funding of NGOs registered in Transnistria. Under the decree, NGOs are prohibited from receiving funding directly or indirectly from any international or foreign organization, foreign government, Transnistrian organization with a foreign capital share in excess of 20 percent, foreign citizen or stateless person, or any anonymous source. The same persons cannot found or join Transnistrian NGOs.
  • Zimbabwe in 2004 enacted a “CSO Bill” that prohibits local CSOs engaged in “issues of governance” from accessing foreign funds and foreign CSOs involved in these activities from registering. The bill was decried as a direct attack on human rights groups and attempts to scrutinize Zimbabwe’s human rights record. Indeed, upon introducing the bill, Zimbabwe’s President Mugabe declared that “[w]e cannot allow [CSOs] to be conduits or instruments of foreign interference in our national affairs.” Mugabe ultimately declined to sign the controversial bill, citing “one or two issues he wanted to be addressed,” but there is concern that the bill will be revived.
  • In Eritrea, the government introduced CSO Administration Proclamation No.145/2005 that prohibited the UN and other similar organizations from funding CSOs, prohibited international agencies from directly funding local CSOs under most circumstances, and required all donor funds to flow through government ministries. The proclamation also imposed taxes on food aid and other donations, outlawed CSO work in fields other than relief and rehabilitation, and increased reporting requirements.
  • In Uzbekistan in 2004, the government took greater control of foreign funding of CSOs by requiring them to deposit funds in one of two government-controlled banks, thereby allowing monitoring and control of all money transfers. Within a short time following enactment of these provisions, the government had obstructed the transfer of over 80 percent of foreign grants to CSOs. Worse still, the system is administered according to unwritten policies and oral instructions, making it difficult for CSOs to follow the rules or appeal adverse decisions. More recently, the government has suspended the operations of some foreign democracy and governance organizations that have partnered with and funded local groups, and has refused to register others.
  • Regulations adopted in 2004 in Belarus impose among other things reporting and approval mechanisms that give the government control over donor funds and projects. In addition, these rules force many CSOs to pay up to 30 percent tax on foreign aid, “causing some donors to reconsider their support.”

C. Arbitrary or Discretionary Termination and Dissolution

Some countries retain substantial discretion to shut down CSOs and use that discretion to quash opposition groups.

  • Belarus, for example, in 2004 enacted a law providing the government with the authority to close a CSO for violating laws restricting the use of foreign funds or for demonstrating in violation of the Law on Mass Meetings. It has for some time used its powers to dissolve CSOs as a weapon against the sector. In 2003, government officials dissolved 51 leading NGOs, and in 2004 the government dissolved more than twenty organizations. Also in 2004, the government denied renewal of registration permits for two U.S. organizations implementing programs funded by the U.S. government.
  • Egypt’s Law 84/2002 permits the supervising Ministry to shut down an organization at any time on the grounds that it is “threatening national unity” or “violating public order or morals,” broad and ambiguous terms that afford the government substantial discretion to terminate CSOs.

D. Inability To Advocate for Particular Causes or Get Its Message Out to Constituents

  • In Nepal, a proposed CSO Code of Conduct would have outlawed “attempts of political influence” on others, as well as preaching religious conversion or speaking for or against religions.

E. Arbitrary and Stringent Oversight and Control

Once a NGO has been formed and registered with the proper authorities, governments may continue to restrict its activities through unchecked oversight authority and interfering in the activities. An organization’s failure to comply with government demands may lead to daunting sanctions and penalties.

  • The recently adopted amendments to Russian law strengthen the government’s control over the activities of organizations by authorizing registration authorities to audit their activities and finances. The authorities may also request any financial, operational, or other internal documents from an organization at any time and without any limitation, and even send government representatives to the organization’s events. These provisions are overbroad, lack protections for organizations, and could well have a chilling effect on an organization’s activities.

F. Harassment from Government Officials

  • In Belarus in 2003, 78 CSOs ceased operations due to harassment from government officials. In 2004, the government thoroughly inspected and issued warnings to 800 others. The national security agencies and the Office of Public Associations questioned and searched some NGOs, and in some instances, confiscated publications and print materials. These inspections made it nearly impossible for organizations to concentrate on their primary activities, and have proved to be a successful instrument for the government to control the activities of the majority of NGOs.
  • In Cuba, officials have used the provisions of the Law for the Protection of National Independence and the Economy of Cuba, which outlaws “counterrevolutionary” or “subversive” activities, to harass dissidents, human rights activists, and others.

G. Establishment of “Parallel” Organizations

Restrictive governments have sometimes sought to undermine the CSO sector by establishing captive CSOs, or GONGOs. Governments can use these organizations to channel government funding to preferred causes and away from opposition groups, to discredit opposition groups by claiming that its captive organizations are the only “legitimate” civil society, or to appear supportive of at least some portion of civil society.

  • In Slovakia under Meciar, for example, the government sponsored and funded a group of “parallel” organizations to compete with opposition CSOs. These organizations enjoyed the financial support of the state and frequently implemented state social policies.
  • In Tunisia, the government has established GONGOs with the aim of monitoring the activities of independent CSOs; representatives of the GONGOs reportedly attend conferences and other events and transmit intelligence to the government regarding other CSOs.

H. Criminal Penalties Against Individuals Associated with an Organization

Individuals who are found responsible for certain NGO activities can be held criminally liable and fined or imprisoned. This has an obvious chilling effect on individuals seeking to exercise their right to associate, and discourages active participation in NGOs.

  • In Egypt, Law 84 / 2002 imposes severe individual penalties for non-compliance with its provisions. These penalties include up to one year in prison and a fine of up to 10,000 Egyptian pounds for establishing an association that threatens “national unity” or violates “public order or morals”; up to six months in prison and a fine of up to £E 2,000 for conducting NGO activity “without following the provisions prescribed” by the law, conducting activity despite a court ruling dissolving or suspending an association, or collecting or sending funds abroad without MOSA permission; and up to three months in prison and a fine of up to £E 1,000 for conducting NGO activity without a license from MOSA, affiliating with a foreign NGO network or association without MOSA permission, or merging with another association without MOSA approval.
  • Yemen’s Law No. 1 of 2001 Concerning Associations and Foundations (which also contains a number of progressive provisions) includes a handful of draconian individual punishments, which seem out of place given the law’s overall liberal thrust. For example, individuals who are not members of an NGO but participate in the management or discussions of an NGO’s General Assembly without express approval of the NGO’s Board of Directors are subject to up to six months in prison and a fine of 50,000 Yemeni rials. Further, any violation of Law 1 / 2001, no matter how small, can be punished by three months in prison and a fine of YR 30,000.
  • In Belarus, a law signed by the president in December 2005 provides for prison sentences for those who train others to take part in street protests, engage them to act against Belarus’ sovereignty, or tell lies about Belarus.
  • In Uzbekistan, several U.S. organizations are currently under criminal investigation for alleged “violations” of law such as having an unregistered logo and failing to register specific activities (as opposed to organizations) with the government. These investigations have in some cases involved questioning of individual staff members for up to twelve hours at a time. Prosecution of individuals remains a threat.

III. The United States’ Response

There can be little question that the repressive tactics outlined above have hindered the development of civil society and thwarted the ability of individuals to associate. Nonetheless, civil society organizations have devised a number of strategies to counter these tactics. While not every strategy is effective in every country or circumstance, in combination they constitute a useful array of tools to protect basic rights against government incursion.

The United States can highlight and address harassment and constraints on civil society by its support for a number of these strategies. Some – such as diplomacy – our government can undertake directly. Others will require financial or other support for the initiatives of civil society groups and others.

Another potentially effective response is sponsorship of research, toolkits, sourcebooks, trainings, and other tools to raise the awareness of civil society about options for dealing with repressive CSO laws and policies.

The following are among the strategies that have proved effective in addressing government constraints on CSOs.

A. Domestic Litigation

In some countries, NGOs have resorted to domestic litigation challenging provisions of law that have been used, e.g., to deny them registration or terminate their registrations. In some instances, where the courts are reasonably independent and fair, domestic litigation has proved effective in securing a just resolution for the affected civil society organization. In Egypt, for example, the NGO laws are vague, arbitrary, and unnecessarily severe, and the Ministry of Social Affairs uses them selectively to dissolve NGOs that are “threatening national unity” or “violating public order or morals.” However, the laws permit appeal to the administrative courts. In one prominent example, the Egyptian Organization for Human Rights fought a ministry in court for more than ten years and ultimately prevailed. On the one hand, this example demonstrates that the right of appeal to domestic courts can provide relief. On the other hand, the litigation consumed more that ten years in Egypt’s backlogged court system, draining the time and resources of the well-respected human rights group in its fight for legal recognition.

Direct challenges under a country’s constitution have succeeded in blocking restrictive provisions, at least temporarily. Again, in the Kazakhstan example cited above, consideration by the Constitutional Council resulted in a finding that restrictive laws were not constitutional. In Egypt, a challenge in the constitutional court led to the invalidation on procedural grounds of Law 153, the precursor to the 2002 NGO Law discussed above.

In other circumstances, resort to domestic courts is simply a means of exhausting domestic avenues of relief, which is frequently a prerequisite for petitioning an international tribunal. In Venezuela, for example, the judiciary is not considered to be independent of the Chavez regime, and CSOs do not believe they are likely to prevail in court on any challenge to a government action. Nonetheless, they bring domestic suits as a means of exhausting their remedies, as required in order to reach international tribunals such as the Inter-American Court of Human Rights.

B. Litigation Before International Tribunals

There are a number of international tribunals whose mandate is to protect basic human rights guaranteed by international conventions by adjudicating claims of affected groups and individuals against member states. Perhaps the best known of these tribunals, at least with respect to the protection of the right of free association, is the European Court of Human Rights. In a series of cases before the Court, Greek and Turkish association members, political parties, and others managed not only to obtain judgments against their governments requiring the registration of their organizations, but also to set important precedents interpreting the right of free association granted by the European Convention on Human Rights.

C. Legal Triage

One strategy that has provided much-needed legal resources to civil society organizations under legal threat is “legal triage” or providing legal defense. In one program, ICNL makes available legal consultants through resource centers in five Central Asian countries to assist organizations in registering and in addressing other legal requirements applicable to them. In many instances this program has proved very effective. It was successful in assisting in the registration of the only public association to become registered. However, one downside should be noted as well. This type of assistance can draw the ire of a repressive government, which may target the legal assistance providers in a further attempt to discourage CSO activities. In Uzbekistan, for example, programs and individuals responsible for providing legal assistance to NGOs are currently the subject of a criminal investigation (see above.)

D. Law Reform Campaigns

CSOs and their partners can work to sponsor progressive legislation governing their formation, operation, and sustainability. Experience has shown that law reform initiatives can be effective in securing basic rights to form and operate a organization if they are championed by those governed and inclusive of the government and civil society. However, a state that is actively oppressing civil society is not likely to countenance a progressive law reform initiative. This strategy is perhaps best employed in countries that have shown a trend towards liberalization. For example, in Jordan, the government responded to complaints that a repressive draft law on social development had been drafted by a Ministry without consultation with affected civil society groups by sending the law back to the Ministry for revision after solicitation of public comment. It is hoped that the ongoing public participation campaign will lead to a draft law that enables civil society.

E. Awareness Raising

Civil society and its partners can work to raise international awareness of threats to the right to association and harassment of civil society groups. Awareness-raising mechanisms can assist civil society groups isolated in a restrictive country in garnering support, and can lead to effective international pressure on states that harass or constrain civil society. One such program is Civil Society Watch, operated by CIVICUS, an international organization dedicated to citizen participation. Civil Society Watch “aims to mobilise quick, principled and effective responses to those events that threaten civil society’s fundamental rights to collectively express, associate and organise throughout the world.”

F. Diplomacy

Diplomacy is an effective tool in some situations. Leaders of other nations and international institutions can open discussions with a government to dissuade it from pursuing repressive legislation, and offer political room for maneuver to allow a government the ability to change course publicly. Secretary of State Rice urged Russia to revise its restrictive draft legislation, saying that democracy is “built on the ability of citizens to associate themselves freely and to work to bring their government into a particular direction,” and that nongovernmental organizations in Russia are “simply trying to help citizens to organize themselves better, to petition their government to make changes in the policies that affect their very lives. That’s the essence of democracy.” The Secretary’s public statements supplemented weeks of diplomatic approaches to the Russians by the Department of State as well as by representatives of the European Commission. As discussed, while the law ultimately passed remains problematic, a number of the more restrictive provisions that appeared in the initial draft were eliminated.

G. Public Action

Public action – citizens organizing against repressive measures – can take a wide variety of forms, including demonstrations, letter-writing campaigns, public comment, and media campaigns. It can be initiated domestically, or, where domestic CSOs and citizens are too severely constrained or isolated to take effective action, internationally.

1. Domestic action

CSOs have organized against draft laws with restrictive provisions, rallying expert and international support, distributing analyses of the provisions among a wide range of stakeholders, holding meetings, and generating media attention. In Kazakhstan, these types of activities were successful in convincing the government to withdraw some of the offending provisions of a recent restrictive draft law even before the drafts were submitted to the Constitutional Council. In Slovakia, CSO leaders – many of them veterans of a campaign to defeat an undesirable Law on Foundations – initiated a campaign to spur public participation and voter turnout that ultimately led, in the 1998 elections, to the downfall of the authoritarian Meciar regime.

2. International pressure

The international community can publicly apply pressure to repressive regimes in an attempt to reverse obnoxious behavior toward civil society groups. International pressure can also give hope to threatened groups, which may feel abandoned in their struggle. On December 10, 2004, United Nations Human Rights Day, Amnesty International organized demonstrations against widespread human rights abuses by Zimbabwe at the border crossings from South Africa, Mozambique, Botswana, and Zambia. According to Amnesty officials, the concept was “to march to the borders and register our concern about the situation in Zimbabwe and the plight of Zimbabweans in the diaspora” and ultimately to pressure the neighboring countries to take greater action to stem the crisis in Zimbabwe and the flow of refugees across the border. Amnesty and other groups have continued to target their public grassroots campaign at the leaders of other African countries in hopes that they will exert influence over Zimbabwe to change its policies.