Operating Space for NGOs in Fragile Contexts

Operating Space for NGOs in Fragile Contexts Findings from a six-country study Brian Pratt, Angela Crack, Rachel Hayman and Joan Okitoi

Legal Frameworks and Political Space for NGOs – an overview of the projectBrian Pratt, INTRAC • Research commissioned by the German Ministry for Economic Cooperation and Development • Emerged from concern about restrictive legislation affecting international NGOs in particular countries • Wider context of contradictions between global political recognition of the value of civil society and new spaces for different forms of civil society to operate; and the reality of greater restrictions placed on the freedoms of civil society in many countries • Common framework used for desk-based study of 6 countries: Bangladesh, Ethiopia, Honduras, Kyrgyzstan, Serbia and Uganda • Key lines of enquiry: socio-political context in the country; historical background to NGOs in the country; legal framework regulating NGOs; the ‘real’ operating context including positive and negative spaces; recommendations. • Presentations draw on four of the country studies, plus overall findings

Legal frameworks that do little to protect: experiences from Honduras and SerbiaAngela Crack, University of Posrtmouth Honduras • One of the poorest countries in Latin America. • Coup d’état, June 2009. • Elections Nov 2009, derided internationally as illegitimate. • There has been a gradual re-militarization of the state, and the development of a culture of impunity for human rights abusers. • “[t]he gravity of the situation in Honduras facing human rights defenders, those in opposition to ruling authorities, trade unionists, journalists and increasingly land rights advocates cannot be overstated.” (Center for Constitutional Rights) • Democratic institutions remain weak, and the independence of the judiciary is not sufficiently safeguarded. • Atmosphere of fear and insecurity fuelled by widespread crime.

Honduras • Civil society lies in religious, labour and peasant based organisations. • Politically-oriented NGOs that are primarily funded by INGOs and European donors have reported increasing incidences of violence and intimidation, including death-threats. • Threat of NGO exodus. • The most important donors (US and EU) EU has also faced accusations that they have not taken strong enough action on human rights violations.

Honduras • The legal framework for civil society activity has improved in recent years. NGOs have been partly successful in their fight for an increased role in consultations with the executive and the legislature. • These small victories have been mitigated by the introduction of restrictions on the space for NGOs to operate, because of unfounded suspicions that certain organisations are being funded by foreign governments or terrorist groups. • The UN Special Rapporteur on human rights defenders has spoken of concerns that “the absence of a specific legal framework for the protection of human rights defenders contribute to their situation of vulnerability.”

Serbia • EU accession requirements have encouraged Serbia to make significant progress in creating a comprehensive legal framework for CSOs. • Marked improvement in Freedom House scores. • Rapid growth in GNI per capita that has only recently been stalled by the global financial crisis. • This rate of progress is threatened by pervasive corruption and criminality, by mass youth unemployment and by the unresolved conflict about the status of Kosovo.

Serbia • CSOs were key agents in the downfall of the Milošević government. • Mainly domestic CSOs operate in the country. • International donors have been the largest funders of Serbian CSOs since the end of the war (the most important donor has been USAID), but now funding is drying up. • The tough economic climate poses a significant challenge to the viability of many organisations. • OSCE has registered concerns that many CSOs have closed or are in danger of immediate closure.

Serbia • The Serbian government remains the largest source of funding for CSOs. However, there is a clear bias in the way that money is distributed: the major beneficiaries tend to be sports and religious organisations. • CSOs complain that ways to access money are not transparent. • Therefore, CSOs concerned with democratisation and human rights promotion are particularly vulnerable to the withdrawal of international donors.

Serbia • Lots of legal innovations in recent years with regard to CSOs, but there has been some concern reported amongst activists that “too many of these new laws, strategies and action plans are not being implemented, i.e. they merely allow the [government] to ‘check off a box’ relative to EU accession requirements.” • USAID has found that the complexity of legal regulations acts as a disincentive for CSOs to engage in economic activity, thus exacerbating financial problems.

CSOs across the country express fears about the threat to their independence from political parties, which is particularly acute immediately before elections. • Some CSOs may act as mere ‘fronts’ for party interests (e.g. United Regions of Serbia).

Serbia • There has been an upsurge in complaints from advocacy CSOs about the government’s rights record since the last election in July 2012, despite Serbia’s long-track record of progress in human rights protection. • Human rights activists and journalists are often jailed, and physical abuse in commonplace in Serbian prisons (PÖK, 2013). • In addition, women, senior citizens, Roma, refugees and sexual minorities are subject to high levels of discrimination.

Creating space from the grassroots up? Experiences from Ethiopia and KyrgyzstanRachel Hayman, INTRAC Ethiopia • History of voluntary organizing at local level turned to political ends under Derg and EPRDF • Influx of international NGOs around famines, and major increase in local and international NGOs after 1991 • Relationships increasingly strained with government criticizing wasteful NGOs and NGOs attaching government’s politics and human rights records • More recent tensions around elections of 2005 and 2010, marred by violence and repression

Ethiopia • Ethiopian Charities and Societies Proclamation (2009) and had wide-ranging implications • Introduced under logic of decreasing dependency on foreign funds, ensuring NGO accountability, and limiting interference from foreigners in political activities • Distinguishes between Ethiopian (90% locally-funded), Ethiopian Resident (based in Ethiopia with more than 10% external resources) and Foreign Charities and Societies (externally based and funded) • Restricts work on human and democratic rights only to Ethiopian charities and societies. • Limits budget that can be spent on administration to 30%

Ethiopia • NGOs working on human rights and governance have shrunk, particularly those in receipt of external support • Shifts by some NGOs away from human rights work towards developmental work • Most affected are Addis-based national NGOs in receipt of external resources • INGOs have been very critical and withdrawn, or adapted – over 3000 now registered under new law • Regional and local civil society less affected, although face fund-raising challenges • Aid flows remain high, including basket funding for Civil Society Support Programme

Ethiopia: CSSP • Started 2011, basket funded by Irish Aid, DFID, SIDA, Danida, Dutch Foreign Ministry, and Norway • Programme works closely with the Federal and local government to implement activities within the existing law, notably the 30/70% rule (whereby no more than 30% of a grant can be spent on the recipient NGO costs) • The more restrictive laws apply at the Federal level but not necessarily to local NGOs registered in only one of the regional states. • Regional mandates for civil society enables some flexibility at a local level, especially if CSOs can demonstrate the benefit of collaboration on issues which matter to local government • The CSSP aims to reach remote areas (geographically and socially), and manages to facilitate more borderline human rights projects through careful relationship-building • Challenging environment but is allowing grassroots civil society development

Kyrgyzstan • Influx of foreign NGOs after independence in 1991, and a mushrooming of local NGOs, which were essentially dependent on external aid funding • Increased strength over 1990s and 2000s, reasonable legal environment, but affected by waning foreign funding by mid-2000s esp. for more political activities • 2006 study concluded that of several thousand registered NGOs, only about 500 were active and sustainable; but did see growth in other areas of civil society, such as trade unions • State-civil society relations best at the sub-national level • Reasonable legal framework, although threats again in 2013 of proposed law which would enable the government to label certain NGOs as “foreign agents” if they receive financial support from abroad and engage in undefined “political activities”

Kyrgyzstan • Political turmoil of second half of 2000s (Tulip Revolution 2005; political protests April 2010; ethnic violence June 2010) • Civil society negatively affected: splits and divisions within politicised civil society; very few NGOs with real access to those in power; constant pressures for greater state control of civil society • 2010 violence affected image of civil society and confidence in it (confrontation not consensus-building) • Peaceful political transition in 2011, with strengthening legal framework, but situation remains potentially volatile esp. for civil society active on human rights issues • New, more indigenous, movements forming, although sustainability and capacity is a challenge • More operating space for constructive engagement at sub-regional levels with local authorities, but ability to influence remains limited

Politics, legislation and external influence: a summary of the key findingsJoan Okitoi, EADI • Case studies: different historical, economic, social and political contexts • *Context = conditions enabling or disenabling civil society in country cases, e.g. in Honduras political fragility has translated into a fragmented civil society • External factors such as recession, cutback on foreign aid from • OECD countries, geopolitical changes are among aspects which affect all the countries studied. Common themes and issues consist of: • Opposition politics, human rights and governance • Legal frameworks and operating contexts • External interactions

Opposition Politics, Human Rights and Governance • Service delivery – an accepted and fairly uncontested role for CSOs (Ethiopia, Bangladesh, Uganda, Kyrgyzstan) • Government cooperation with civil society on development matters (a requirement by donors); genuine participation or tokenistic consultation? • NGO activity straying into politics results in tensions with host government as in the cases of Bangladesh, Kyrgyzstan, Bangladesh, Ethiopia and Uganda. • No distinction between political activity and civil society activity • In all the countries, there were challenges for NGOs engaging on human rights (LGBT and minority rights) with explicit attacks in Honduras to closure in Ethiopia. • Problematic sustainability of civil society carrying out human rights work when funding internally or externally were limited by regulation or donor withdrawal (Bangladesh, Kyrgyzstan and Ethiopia).

Legal Frameworks and Operating Contexts • Outdated, complex or weak legislation = fertile ground for manipulation by both government and NGOs (Bangladesh and Serbia). • Blurred lines between charitable and commercial NGOs in Bangladesh and Kyrgyzstan resulted in challenges around taxation and regulation. • Kyrgyzstan, Ethiopia and Honduras, introducing new laws and regulations to clarify NGO registration, relationships with external actors, purpose and tax status. • New legislation is however not always been supportive of civil society activities as revealed in Uganda, Serbia, Ethiopia and Bangladesh. • Implementation of the legislation is a bigger concern; how it is used by political elite where there are weak institutions and judiciary is not independent as was the case in all the countries. • Weak accountability structures or legitimacy of organizations and their connectedness to the population affect their ability significantly in promoting change (Bangladesh, Ethiopia, Kyrgyzstan).

External Interactions • Sustainability is challenge for domestic NGOs dependent on external funding. • Reductions in funding are determined by legislative or operating context as well as political context (influence decisions by international agencies on funding) • Most affected according to the case studies are NGOs working on human rights, democracy and governance issues. • External pressure regarding space for civil society is contentious: peer pressure and international law are some of the measures to hold governments accountable for actions towards civil society. Ethiopia and Uganda - government impervious to diplomatic pressure. Civil society in these countries as well as Honduras are unfortunately also not vocal about human rights abuses. • Serbia’s accession to the EU spurred legislative reforms. Lately however, the narrowing NGO space raises doubts about government’s intentions to improve environment for civil society.

Opening up spaces for influence and change • Some of the case studies show there is scope for NGOs to work on advocacy, democratisation, women’s rights where there is respect for legislative and political boundaries (Bangladesh and Kyrgyzstan) • Kyrgyzstan and Ethiopia also show at the sub-national level, collaboration, consensus building between the state, civil society and private sector can happen because tangible benefits are more visible to local authorities. • Locally embedded organizations which are less dependent on external funding are key actors (Serbia – established CSOs supporting smaller CSOs even in the absence of international donors or the state.

Conclusions and Recommendations Ethiopia and Kyrgyzstan show that it is possible for donors and international NGOs to support civil society in difficult contexts; finding avenues for dialogue and collaboration between local authorities and civil society to foster constructive engagement on capacity building of local civil society. Exploring alternative models to support development of independent, sustainable, locally-embedded and accountable civil society such as working with regional civil society support networks and associations, using new technologies and encouraging stronger domestic NGOs to mentor and foster small ones. External governments play an important diplomatic role in encouraging countries to uphold their constitutional and international commitments guaranteeing right of civil society to fulfill its function. However, negative consequences can easily follow which need to be anticipated and analyzed.

Donor governments need to exert pressure on other donor countries where there are different responses on human rights abuses, for example US military assistance to Honduras impacting negatively on human rights activists. • Improving legislation with the help of legal bodies to enhance NGO accountability and thus legitimacy and credibility. • Ugandan case shows how a national constitution can be supportive of civil society action.

Phase 2 and beyond Phase 2 (starting Nov 2013): six additional country studies - Egypt, Rwanda, Vietnam, Myanmar, Peru, Kosovo Will see how findings from these additional countries support or contrast with findings from Phase 1 Then do more in depth reflection on changing roles and spaces for INGOs and local organisations And also reflect on how the findings relate to global strategies and donor policies on the Enabling Environment and civil society space

Operating Space for NGOs in Fragile Contexts