International Journal of Not -for -Profit Law / vol. 1 6, no. 2, December 2014 / 5
Civil Society in Africa
Toward an Autonomous Civil Society: Rethinking State-Civil Society Relations in Zambia
MATILDAH KALIBA 1
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.
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.
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 USA ID 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.
development in its multidimensional sense goes beyond physical infrastructure and the delivery 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
This situat ion 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
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 definition s 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 neoliberal
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
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).
2 See Michael Edwards’s keynote address at his book launch of Civil Society (London: Polity).
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 government 4 (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
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
democracy tendencies, the state lacks a strong sense of legitimacy and is therefore threatened by
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.
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 Le gal 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 influence s 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
controversial 7 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 Multiparty 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 on to 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.
7 I call it controversial due to the conflict that has emerged around it between some CSOs and the
8 See The Post , November 10, 2009, http://www.postzambia.com/post -read_article.php?articleId=1646 .
In order to enhance the role of the civil society and its relationship with the State
the PF government shall:
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
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 numb er 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
doe s 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 government –
dominated. The members need to be approved by the minister of community development. In
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 government –
dominated 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
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 regulation s 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 o f 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, http://www.postzambia.c om/post –
10 This is according to one of the CSOs that has yet to register.
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 forum s 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 .
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
field 13 include the following :
Citizen s’ 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
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’ agenda s and ideologies,
and it places serious constraints on homegrown 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 license s. Other factors such as
literacy levels, poverty, and lack of electricity have affected access to electronic
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
(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.
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,
http://www.cp j.org/2013/07/zambia -blocks -another -website -re-arrests -reporter.php .
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
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 operation s.” 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, http://www.lusakatimes.com/2013/07/31/government -willing -to-make -amendments -to-the –
controversial -ngo -act -katema/
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 NGO CC 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
A vibrant civ il 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 state –
CSO dialogue is not incidental but is one of strategic mutuality.
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Tiwana, M. (2009). “Analysis of the Zambia NGO Bill 2009 .” Civil Society Watch Program , CIVICUS.
United States Agency for International Development (USAID) (2011). “The 2011 CSO Sustainability Index for Sub –
Saha ran 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.
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
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, http://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, http://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, http://www.gl obalpost.com/dispatch/news/afp/131220/bolivia -expels -danish -ngo –
120 Eric Lipton, Brooke Williams, & Nicholas Confessore, “Foreign Powers Buy Influence at Think Tanks,”
New York Times , September 6, 2014, accessed September 17, 2014,
http://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
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
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, http://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,
http://www.bbc.com/news/world -europe -18732949 .
124 Darin Christensen & Jeremy M. Weinstein, “Defunding Dissent,” Journal of Democracy 24(2) (April
125Pascal Kwesiga, “Govt gets tough on NGOs,” New Vision , June 19, 2012, accessed Septembe r 9, 2014,
http://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, http://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,
http://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
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, http://slovo.kg/?p=35019 .
129 Simon Denyer , “China taking the Putin approach to democracy,” Washington Post, October 1, 2014,
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,
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,
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,
%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,
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).
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 26
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
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,
138 Government of Nepal Ministry of Finance, “Development Cooperation Policy, 2014,” unofficial
translation, Article 2.2, acces sed September 9, 2014,
139 “No foreign funds without approva l: Ministry,” Daily Mirror , July 22, 2014, accessed September 9,
2014, http://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, http://timesofindia.indiatimes.com/india/Foreign -funded -NGOs -stalling -development -IB –
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 –
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,
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,
http://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, http://www.fatf -gafi.org/media/fatf/documents/reports/Risk -of-terrorist -abuse -in-non -profit –
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, http://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,
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 28
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 –
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, http://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,
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,
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,
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,
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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
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,
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,
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
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 30
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
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,
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,
http://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
http://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, http://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,
International Journal of Not -for -Profit Law / vol. 17 , no. 1, March 2015 / 31
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, http://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), http://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,
http://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
http://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
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,
171 Inter -American Commission on Human Rights, Report on the Situation of Human Rights Defenders in
the Americas , March 7, 2006, Recommendation 19, http://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,
http://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,
http://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:
http://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
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
(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),
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),
178 United Nations International Covenant on Civil and Political Rights, Article 22, December 16, 1966,
http://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
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
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,
http://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),
http://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,
182 United Nations Human Rights Committee, General Comment No. 34, para. 35, UN Doc.
CCPR/C/GC/34 (September 12, 2011), http://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,
http://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;
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),
http://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,
http://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
http://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: http://graduateinstitute.ch/f aculty/clapham/hrdoc/docs/siracusa.html .
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
http://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
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
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