The previous Ethiopian Charities and Societies Proclamation No. 621/2009, and the extremely crude way in which it was implemented, were among the many notorious legislative frameworks with ripple negative effects on Ethiopian society. This legislation was much criticized as a draconian law specifically designed to cripple the power of COSs and their role in promoting human rights and freedoms in the country. It placed several financial and administrative restrictions on CSOs starting from formation to day-to-day operation.
The legislation used classifications for the sole purpose of discriminating between different categories of CSOs, namely: “Ethiopian”, “Ethiopian Resident”, and “Foreign”. The first category of organizations was forbidden from getting more than 10% of funding or resources from foreign sources. The second and third category could secure and utilize any amount of resources from foreign sources/funds. However, only in one condition— as long as they did not touch anything remotely related to human rights and democracy.
If you are one predisposed to think that it is fair game to prevent foreign funding to be used to promote human and democratic rights, hold on to your seat as the story is about to get a little more complicated. Ironically, although only “Ethiopian” CSOs were allowed to participate in activities that include the advancement of human and democratic rights, the law made interesting exceptions. Mass-based societies (associations known to be the “people’s” branches of the then ruling party) are permitted by the proclamation to participate in affairs of election and promotion of democratic rights. In addition, the government was also given discretion to exempt other regular, or “professionalized”, CSOs from these restrictions on a case by case basis. In the end, both theoretically and later practically, the government became the only game in town when it came to anything and everything related to human rights and democracy issues.
The 2009 law also provided for the establishment of the Charities and Societies Agency; whose purpose was to tightly regulate CSOs. The law has had achieved its ‘behind the scenes’ goal of restraining the already limited ability of Ethiopian civil society actors to criticize or act independently of the government. The Agency used various administrative pressures that forced CSOs into a position of practical incapacitation if they stepped outside the undefined whims of Agency leaders. By the end of its tenure, the Agency was functioning like an Orwellian “big brother”.
While most readers of this paper are probably aware of how the government was criticized for winning a 100% of the seats in parliament – many did not know that the 2009 law allowed the government to control a 100% of the CSO scene. The freedom of association, and other rights inextricably connected with it, were so restricted that it was almost inevitable, one could even say natural, that the public would have enough of it. It is the resulting outburst against the “me, myself, and I” system that would lead to the 2019 Civil Society Organizations Proclamation.
Righting Wrongs in CSO Regulation
“Doing the right thing” with the new law started with doing things “the right way” at an early stage of the law-making process. The previous law was preceded only by two public meetings held in Addis Ababa with the intention of “selling” the law to the public. The current law, on the other hand, went through a rigorous process of stakeholder and public consultations conducted in all the regional states. Public consultations were done thoroughly, and the making of the law centered on the civil society sector itself. Successive consultation forums with stakeholders were conducted both on the findings of the diagnostic study (evaluation and assessment based on the topic) and the draft proclamation. This was done with the Civil Society Working Group formed by the Legal and Justice Affairs Advisory Council, which was established by the Attorney General’s Office to facilitate legal reform in the country. These engagements were not just limited to leadership of CSOs and networks but also law students and teachers in universities and the public at large by actively engaging through popular social media platforms that are frequented by the youth and have many users.
The new law recognizes that the right of citizens to organize for any lawful purpose is fundamental, and premised on this, aimed at being more facilitative and less overbearing. It removes the classification of CSOs on the basis of source of income; rather categorization is made based on structure. This structure-based classification ensures that no restriction on CSOs is placed on the ground of their institutional objectives or sources of funding, as long as they are lawful. Furthermore, CSOs are allowed to operate in and outside Ethiopia, at regional or global levels.
The re-orientation of the law from restriction to enablement does not, however, mean that the sector is a free for all where anything goes. An oft cited example is the 70/30 rule has been replaced by an 80/20 rule. What this means is that under the 2009 law CSOs were allowed to spend up to 30% of their income on “administrative costs” and now that number has been reduced to 20%. The difference, however, is that the new law has also made changes to what can be included in the foyer of administrative costs. While the previous law defined administrative costs both vaguely and broadly, thus leading to much abuse by the former Agency, the new law includes a reasonably narrow understanding which includes items such as salaries of administrative employees, rent, bank fees, and attorney fees, but not items such as training and research which, for many organizations, are work products rather than administrative costs.
The new law also (re-)established the Agency, now the Agency for Civil Society Organizations (referred to as “ACSO” within the industry), to supervise the registration and reporting of CSOs. The power of the new Agency is reasonably limited and its objectives include, but are not limited to, creating a conducive environment for the full exercises of the freedom of association, assisting CSOs to meet their desired objectives, building the internal governance of organizations and facilitating self-sufficiency when it comes to matters of regulation and administration, and as for the general public, fostering philanthropy and volunteerism. Another new legal development is that CSOs can now challenge the decisions of the Agency. Its power is constrained with legal boundaries and the law aims at making it transparent in its functioning.
One of the institutional innovations of this law, the Council of Civil Society Organizations to which all registered CSOs are expected to be members, is expected to provide a democratic forum for CSOs in which they can collaboratively raise the standards of accountability, transparency and effectiveness within the sector. Thus, the notion of “self-regulation” of peers is a concept to keep an eye on going forward. The new Agency’s Board, the institution to which the director of the Agency reports, has also been made more representative of CSOs. Seven out of its eleven members of the Board are to be from the CSO sector and only four are direct appointees of the Attorney General. The Council and the Board, it is hoped, will synergize the sector’s and the government’s efforts to provide the right formula for the protection of the freedom of association while making sure that there is both internal and external regulation of the sector which is at times criticized for maladministration and the mishandling of funds.
Striking the Right regulatory Balance
What can be clearly observed in the new law is that the substantive standards regulating operational framework of the sector have been liberalized and the administrative body regulating the sector has been cut to size. While these developments have been hailed in some quarters, some have expressed anxiety and even moral panic over the liberalization. We posit that an empowering, liberating, but yet properly regulating legislation has been achieved on paper. The new law carries over many of the substantive standards of the previous law. The main difference is that the new law hinges the regulatory framework on the principle of the rule of law rather than the rule of powerful, mostly older, men.
However, anyone familiar with Ethiopian law understands that many things hinge on how properly the law is applied in practice. So far, the new leadership at the Agency seem to be doing and saying the right things. Reports from the civil society sector, especially those engaged in human rights and democracy work, and those adopting a “rights-based approach” to their work, also seem to indicate that the sector is in the early stages of revitalization. Although bumps on the road and growing pains are expected, a tentative answer to whether a balance has been struck is, therefore, a positive one. But we also caution that the answer to this question can only be tentative. The practice, the day-to-day and week-to-week, will swing and it is only over time that we will be able to tell where the median falls.
Ed.’s Note: Abadir M. Ibrahim (J.S.D.) is a human rights lawyer and an adjunct lecturer of human rights law at St. Thomas University School of Law and Addis Ababa University. He is currently the head the Secretariat of Ethiopia’s Legal and Justice Affairs Advisory Council; Zemen Mekonnen is a graduating student at Addis Ababa University’s School of Law and is interning at the Secretariat of the Legal and Justice Affairs Advisory Council. The views expressed in this article do not necessarily reflect the views of The Reporter. The writers can be reached at [email protected] and [email protected], respectively.
Contributed by Abadir M. Ibrahim and Zemen Mekonnen