By: Yohannes. A
Tigrai Onlne - January 20, 2014
Ever since the issuance of the law on Charities and Civil Societies, proclamation No. 621/2009, we have witnessed many condemnations and criticisms against the Ethiopian Government from opposition parties, local and international NGOs, some governments and organizations and of course from personalities such as Ana Gomes, aka Hana GOBEZE.
One can categorize the main grounds of criticisms up on which the oppositions of the proclamation are based in to two broad categories, namely: Sources of finance and areas of activities reserved for local & foreign NGOs.
Before I directly look in to the criticisms forwarded by different parties and the response of the government for these criticisms, it would be faire to highlight briefly the historical and legal backgrounds of NGOs, both in Ethiopia and Internationally, experiences of the roles and functioning of NGOs in other countries and some points with regard to the importance and draw backs of NGOs.
International non-governmental organizations have a history dating back to at least 1839. It has been estimated that by 1914, there were about 1083 NGOs. International NGOs were played important roles in the ANTI SLAVERY MOVEMENT and the movement for WOMENS SUFFRAGE, and reached a peak at the time of the WORLD DISARMAMENT CONFEERENCE. However, the phrase "non-governmental organization" only came into popular use with the establishment of the United Nations Organization in 1945.
Rapid development of the non-governmental sector occurred in western countries as a result of the processes of restructuring of the welfare State. Further globalization of that process occurred after the fall of the communist system and was an important part of the Washington Consensus. NGOs and Civil Society organizations are now become main actors in many international forums such as the World Economic Forum & World Social Forums.
With regard to the legitimacy of NGOs, the United Nations Organization in 1945 recognized NGOs with provisions in Article 71 of Chapter 10 of the United Nations Charter.
On the other hand, the Council of Europe in Strasbourg drafted the European Convention on the Recognition of the legal personality of INGOs in 1986, which sets a common legal basis for the existence and work of NGOs in Europe. Article 11 of the European Convention on Human Rights protects the right to freedom of association, which is also a fundamental norm for NGOs.
The African Union [AU] also gives an observatory right in the commission’s summits and through its ECOSOCC [Economic and Social Council], an advisory organ which is established based on Article 5 of the constitutive act of AU.
Article 31 of the Ethiopian Constitution clearly envisages the right of association, which is also a basic legal frame work for the establishment of NGOs in Ethiopia.
Hence, taking in to consideration the very nature of their existence, the recognition given by the United Nations and AU, to which Ethiopia is a founding member, the constitutional right of association, and the positive roles they can play in promoting social transformations, there is no confusion on whether NGOs are allowed to operate in Ethiopia or not.
The principal argument comes however, on who does what, the roles of citizens and foreigners with regard to NGOs and the role of the government vis à vis NGOs and whether nonresident NGOs should participate in political activities of the host country.
For the sack of comparison with the activities and operating space of NGOs in Ethiopia, it would be worth mentioning the experiences of the functioning of NGOs in the most developed nations.
NGOs in different countries can be understood by their orientation and level of operation. Accordingly, NGOs can be classified based on their orientation as charitable, service, participatory, or empowering orientation. In terms of their level of operation, NGOs can be classified as community based, city wide, National or international organizations.
The World Bank on the other hand classified NGOs as operational and Advocacy, both with the same objective of supporting others, but applying different mechanisms.
It should be noted that, phrases such as third sector organizations, non for profit organizations, voluntary organizations, civil society organizations, grass roots organizations, social movement, private voluntary organizations, self help organizations and non state actors are used interchangeably to express NGOs.
With regard to the participation of NGOs in politics, the system of law in each country dictates on the level and degree of participation. Countries with a common-law tradition such as England and Wales tend to classify NGOs on the basis of charitable or public benefit purposes. For those NGOs classified as charitable, common-law countries tend to restrict their ability to engage in public policy or political activities because such activities are perceived to be inherently partisan, and thus in actual or potential conflict with the public benefit purposes of the NGO.
Civil law countries on the other hand [most European Countries], typically follow a more permissive regulatory approach regarding political activities.
Countries including France, Belgium, Holland, Finland, Italy, Spain, Germany, Switzerland, and Denmark place no restraints upon the public policy activities of NGOs.
Thus, in the European civil-law context, legislation generally recognizes NGOs as key participants in framing and debating issues of public policy, and like individuals, they have the right to speak freely on all matters of public significance, including existing or proposed legislation, and state policy and actions. They also usually have the right to carry out public policy activities, such as education, research, advocacy, and the publication of position papers.
One should note however, that all the above mentioned permissions and restrictions are applicable only to citizens and no country, by any means allows non citizens to exercise political activities, in the name of NGOs or what so ever.
In many countries around the world, government leaders are speaking out against the engagement of non-governmental organizations (NGOs) in “political activities” and thereby seeking to justify legal restrictions imposed on the NGO sector.
In the past 10-15 years, several countries [Russia, Azerbaijan, Belarus, Ecuador, Ethiopia, Kazakhstan, Uzbekistan, and Venezuela, among others] have issued new regulations with regard to NGOs.
Russian President Vladimir Putin has commented on several occasions about how inappropriate it is for NGOs to engage in political activities. Many of these statements were made in conjunction with the drafting and enactment of the Federal Law of the Russian Federation # 18-FZ “On Introducing Amendments to Certain Legislative Acts of the Russian Federation” (“Russian NGO Law”), dated January 10, 2006, which substantially expanded the Russian Government’s authority to audit NGOs, amongst other restrictions on NGOs’ activities.
President Putin has said, “I object categorically to foreign funding of political activity in the Russian Federation. I object to it categorically. Not a single self-respecting country allows that and neither will we. The ongoing funding of political activity in Russia from abroad, I think, must be on the state's radar screen, especially if this funding ... comes through the state channels of other countries, and ... organizations operating here and involved in political activity are, in essence, used as foreign policy instruments by other states.”
Besides to their positive roles played, especially in the area of social transformations, international NGOs has been criticized for their wrong doings in different occasions. NGOs like Action Aid and Christian Aid "effectively condoned the [2004 US backed] coup" against an elected in government in Haiti.
Some have noted that the civil society actors have now obtained a remarkable amount of political power without anyone directly electing or appointing them. There are other scholars who have argued that, contrary to what international NGOs are seeking to have, since the concept of civil society is closely related to democracy and representation, it should in turn be linked with ideas of nationality and nationalism.
Having looking in to the historical and legal backgrounds of NGOs and experiences of some of the most developed countries, it would be logical to look briefly in to the new Ethiopian law on Charities and Associations and raise some reflections on why the new law has been faced unremitting criticisms.
It is to be recalled that, the emergence of CSOs in Ethiopia was largely related to food aid and rehabilitation programs. NGOs started operating in Ethiopia mainly after the 1974 famine, but they had a much larger presence in Ethiopia after the 1984 drought. The intervention of NGOs at that time was limited to the provision of relief and welfare services, especially food aid. NGOs and CSOs where used to be administered by the Civil Code of 1960, and Order No.1966.
After 1991, however, many international and foreign funded local NGOs have started to actively engage in the areas of democratization, Human right and advocacy. 2005 being the year were majority of these NGOs have either promoting or financing the electoral campaign of opposition parties.
One may ask why was the new law necessary? Here are some pertinent reasons:-
According to the new law, Societies that have members in more than one region; Ethiopian resident charities and societies, as well as foreign charities working in one region only; and Charities and societies operating in Addis Ababa and Dire Dawa are termed as Charities operating in more than one region.
The new law does not apply to ; Religious organizations, Foreign and international charities which operate under an Agreement with the FDRE Government, community based organizations [CBOs] such as the Idir, Equb (traditional saving societies) and other traditional, or religious entities, Chambers of commerce and sectorial associations, trade unions, political parties and associations covered by other laws.
As compared to the previous civil code, by which Charities and Civil societies have been used to administered, the new law has introducing and creating better conducive conditions for charities and societies.
To mention some of the defining differences between the two; in the previous code, almost all CSOs/NGOs were registered as Associations. The new code on the other hand divides the CSOs in to two, society [established mainly to protect the interest of its members], and Charity [established for charitable benefit to the public at large or certain social sections, such as women, children, etc. A charity could be established as a charitable society, a charitable endowment, a charitable institution and a charitable trust. However, most of the charities are formed/re-registered as charitable societies.]
In the new law, CSOs are divided in to Ethiopian charities/societies (which get 90% and more of their income from local sources), and resident charities (which get more than 10% of their funds from foreign sources). Organizations established abroad and working in Ethiopia are called foreign charities.
With regard to adoption of names, in the previous code, an organization could freely adopt a national or federal name without any preconditions. Based on the new code, however, Charity which has a federal/national name shall, open offices and operate at least in 5 regions. Likewise a society that has a federal/national name shall have members in at least five regions.
In terms of area of operation and source of income, the previous code puts no restriction on area of operation as long as its activity and source of income are lawful. Any CSO might work on human rights, democracy and conflict. On the new code, Ethiopian resident charities (i.e., those getting more than 10% of their budget from foreign sources) and foreign charities cannot work in areas related to human rights, democracy, gender equality, child rights, disabled persons’ rights, and conflict resolution and supporting the judicial system.
With regard to cost utilization, there were no ceilings on administrative cost in the past. Now, the administrative cost of an organization should not be more than 30% of its total annual budget. [The World Association of Non-Governmental Organizations states that ideally more than 86% should be spent on programs (less than 20% on overhead). The Global Fund to Fight AIDS, Tuberculosis and Malaria has specific guidelines on how high overhead can be to receive funding based on how the money is to be spent with overhead often needing to be less than 5-7%. While the World Bank typically allows up to 37% for overhead cost.]
In the past, income generating activities were not expressly allowed. Now, Charities and societies could engage in income generating activities after getting permission from the Ethiopian charities and societies Agency. They will be eligible for permission when the activities are related to the purposes of the charity/society, and the income derived there from will be used to further its objectives.
This being the reality, why is then the new law is facing continuous criticisms?
The first possible factor for the criticism could be the communication and public relations gaps from the government side. Despite the different efforts made by the government to create awareness on the issue, due to the counter attack and dissemination of erroneous information by the dissatisfied individuals and societies, since the very beginning of the start of dialogues and brain storming sessions to craft the new law, there were confusions with regard to who is foreigner? Whether money given by an Ethiopian residing in foreign country and/or a foreigner residing in Ethiopia is considered to be a foreign fund? What does overhead cost include? Etc.
Ideological differences, neo liberal vs. developmental state paradigm, can be also taken as a source of the criticism.
Different studies held in the area of NGOs and civil societies shows that these entities have been ‘originated’ in the pro neo- liberal countries and expanded to different parts of the globe. And different researchers have associated / related NGOs and civil society organizations, notably those with an international nature, with the expansion of neo-liberal ideology. In addition to this, realities and experiences show that, many criticisms with regard to our country’s law on NGOs are boldly raised from international NGOs, Human Rights and from western countries. Hence, it could be logical to argue that, advocates of neo- liberal ideology are criticizing the new law because of their suspicion that the new law could hinder their efforts to expand and promote their ideology.
Other possible reason behind the criticism is Political parties who want to promote their interests illegally. Our country has witnessed that some political parties in the opposition have been used to exaggerated tiny issues and condemn the government on any issue that they think will upraise the people against the government. That is what they do with regard to the new law of NGOs. In reality, the new law facilitates the functioning of NGOs and resolves many hurdles with regard to their activities, but they are criticizing the new law saying that it narrows the functioning of the civil societies in the country.
Last but not least, vested interest of some associations and individuals plays critical role behind the up roaring. Many individuals and associations have been used aid money and other materials collected in the name of the needy, for their personal consumption. The loose control and follow up of the government has obviously contributed to the malfunctioning of these NGOs. To avoid related problems, all NGOs are obliged; according to the new law to present their financial report and to be audited by an independent auditor. Hence, it is natural for those who used to benefit illegally to object, criticize and condemn the new law. All the best,
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