Civil Society’s Hidden Threat

By Monica O’Hearn

Overall, 2017 was a poor year for safeguarding the rights of civil society organizations (CSOs). Several countries passed draconian legislation designed to attack and stifle civil society by delegitimizing CSOs. Restrictions on civil society, which represents the collective interests of citizens, ultimately leads to a poor enabling environment for citizen engagement, one where the linkages between civil society and the State are weak and provide little or no monitoring and advocacy functions.

In June, Hungary’s parliament passed a law that required organizations receiving more than 24,000 euros ($29,500) from foreign sources to disclose their funding sources or risk being shut down. Between March and July, Ukraine proposed a number of reforms, spearheaded by President Petro Poroshenko, demanding any organization with annual budgets over approximately $18,500 to disclose its funding sources online; the rationale for the reforms was “to ensure public transparency of the financing.” And in Egypt, President Abdel Fatah El-Sisi ratified legislation in May required pre-approval of donations above 10,000 Egyptian pounds ($550) to any non-governmental organization (NGO), and restricted donations related to “political activity.”

These reforms are part of a larger trend of restricting civil society operations under the guise of fostering transparency and accountability. Over 50 countries have legislation which restricts funding and operations of NGOs, ranging from requiring advance approval for mandatory transfers through state-controlled banks.

These measures, which are often touted as anti-corruption reforms, are often methods for the governments to control the amount of influence that the civil society organizations have in advancing political development, democratic reforms, or protecting human rights. By forcing disclosure of funding flows, authoritarian-leaning governments can discredit and render illegal many NGOs, and thus, challenge prevailing government ideology. From the Arab Spring to the Color Revolutions in eastern Europe, governments have increasingly recognized the impact that civil society can have on stimulating democratic reforms by giving the citizens an outlet to express their concerns. Therefore, by restricting CSOs ability to advocate for change, governments can help ensure the status quo. Additionally, as many of these organizations are funded at least in part by the development arms of liberal democracies, such as the United States Agency for International Development (USAID) or the United Kingdom’s Department for International Development (DfID), these restrictions can be a mechanism by which the countries can effectively keep out foreign influence.

In May 2013, Bolivian President Evo Morales ordered the expulsion of USAID, noting that there was “no lack of US institutions which continue to conspire against our people and especially the national government.” This decision came on the heels of a piece of legislation passed in March of the same year, Law 351/2013, which gave the authority to the government to revoke an organization’s operating permit if it performs activities different from those listed in its statute or if it was in violation of the law and regulatory decrees. As a controversial piece of legislation which was largely seen as a violation of associational freedoms, immediately following the expulsion of USAID, President Morales signed a regulatory decree in June 2013 which laid out the specific steps to revoke the organization’s permit and set up parameters for organizational statutes. According to Bolivian civil society leader Marco Antonio Gandarillas, due to these legal reforms, “Many organizations have decided to either close their doors or change their goals and lower their profile so as not to disturb power. In doing so, civil society has lost strength and independence.”

As a first line of defense against restriction of civil society, the international community needs to take a larger role in helping to protect civil society or risk the spread of repression and state control. Multilateral organizations have been one line of defense against these attacks on civil society; following review by the Venice Commission, which serves as the advisory body of the Council of Europe, Hungary agreed to adopt some amendments to the legislation. The Venice Commission noted that it “expressed concerns over several issues that the Draft Law raises with respect to freedom of association, freedom of expression and the right to privacy,” and also pointed to United Nations declarations, as well as the guidelines developed by the Council of Europe and the Organization for Security and Co-operation in Europe, to use those as a regulatory guide to shape their opinion.

Similar to the Venice Commission, other multilaterals can help enforce freedom of association provisions and issue judgments favoring the rights of civil society. Both the African Commission on Human and Peoples’ Rights and the Inter-American Commission reference legislation grounded in regional and United Nations declarations to defend the right of NGOs to receive foreign funding. The next step will be for these multilaterals to use the existing legislation to issue judgments that protect the rights of NGOs and impose sentences that make a tangible impact to deter future violations by the state.

As a second means of civil society assistance, the international aid community should also continue finding alternative means of financing these organizations. Programs such as the Lifeline Embattled CSO Assistance Fund and Innovation for Change (“I4C”) successfully provide needed support to CSOs facing restrictive legal environments – in Lifeline’s case, through emergency financial assistance, and in I4C’s case, through networking and training opportunities, to connect agents of change across borders. Despite being hampered by the prevailing legislation, aid and development programs can still provide opportunities to strengthen civil society.

Despite the restrictive environments, reform remains possible in the face of challenging contexts. In October 2017, Ecuador’s President Lenin Moreno issued Executive Decree 193, repealing two executive decrees issued under Rafael Correa’s highly restrictive administration which severely restricted the ability of CSOs to organize and operate by establishing grounds for organizational dissolution; Moreno’s new decree eliminated several of these causes for dissolution. While there are still several steps to take, including allowing USAID to once again operate a mission in-country, and in the opinion of many analysts, the implementation of additional reforms to further safeguard civil society’s operation rights, Ecuador has showed how, much like many of the countries noted above, a repeal of restrictive laws can open up the path to a stronger and more democratic civil society.

Monica O’Hearn is a Program Officer at Counterpart International and a 2016 graduate of the M.A. in Democracy and Governance program at Georgetown University. Her work centers primarily on issues of anti-corruption, good governance, and civil society development. She has previously held positions at the International Foundation for Electoral Systems, the National Democratic Institute, and Investigative Group International. She is a former Fulbright grantee to Morocco and holds a B.A. from the University of Notre Dame.