Following the appointment of the new Prime Minister, Abiy Ahmed (PhD), Ethiopia has been in a fast pace of transition, particularly in the political arena. Within just few months in the office, the new administration has released a large number of political prisoners, invited exiled opposition politicians to return to the country and commenced a peace process with Eritrea ending the state of ‘no war, no peace’.
These measures have been particularly praised for opening up the political space and allowing diverse voices, although the ethnic tensions and peace and security concerns in various parts of the country are threatening the durability of the transition. Among the reform measures undertaken under the new administration is revision of the draconian laws that have been used to stifle dissenting voices in the past, including the infamous anti-terrorism and civil societies proclamations, among others.
The Charities and Societies Proclamation is one of the post-2005 repressive laws that governed the establishment and operation of civil society organizations (CSOs) in Ethiopia. The Proclamation contains various provisions that made both the formation and effective working of CSOs highly difficult, if not impossible. This clearly contravenes the human rights guarantees stipulated under the Constitution as well as the regional and international human rights frameworks the country has ratified. This has been constantly condemned by human rights groups, academics and activists over the years.
As a part of the law revision process, an expert working group has been established to draft a new proclamation, which is followed by relatively extensive consultation with academics, civil societies, activists and other stakeholders. The consultation process is already a step forward compared to the drafting process of the repealed law, which failed to adequately involve relevant stakeholders. The new civil society’s law is finally adopted by the House of Peoples Representatives on February 5, 2019.
The momentous reformative measures undertaken by the new administration so far, undoubtedly, have created high hopes and expectations on the new law. The new Proclamation is expected to create an enabling environment for CSOs to carry out their vital role, particularly in democratic building and promotion of human rights, by lifting the crippling rules of the previous law. In light of this background, this article explores whether or not this expectation is met by dealing with some of the major changes made in the new law as well as its shortcomings and their implications. It has to be noted that the article is written based on the draft as the final law is still in the process of publication.
Major changes made in the new law
The first major amendment made by the new law addresses one of the highly criticized rules of the previous law, which relates to the restriction on source of funding. The previous Proclamation envisages three types of CSOs, i.e. Ethiopian charities or societies, Ethiopian resident’s charities or societies and foreign charities, based on the laws they are established under and the nationality or residency of their members. This classification is not without any effect as it has a direct implication on the source of funding and the areas the CSOs can operate in. With regard to source of funding, Ethiopian CSOs, which are charities or societies established under Ethiopian law and consist of exclusively Ethiopian nationals, are not allowed to obtain more than 10 percent of their funds from foreign sources.
The 10 percent rule was part of the definitional element of this type of CSOs that bear the burden of raising at least 90 percent of their budget from local sources. Given the economic situation of the country, however, expecting CSOs to acquire adequate funds from domestic sources in order to do meaningful works is a far cry.
As Sisay Alemayehu righty pointed, it is ironic to put this much burden on CSOs in a country where foreign aid constitutes around one-third of the government budget. Local fundraising is further made cumbersome by other stringent requirements, such as approval by the Agency and prohibition of funding from anonymous sources.
The newly adopted Proclamation relieves domestic CSOs from this unrealistic burden. At the first place, the Proclamation narrows down the classification of CSOs into two categories, Ethiopian and foreign, merging the previously separate Ethiopian and Ethiopian resident CSOs under one category. Pursuant to the definition given under the new law, domestic CSOs are formed under Ethiopian law by Ethiopian nationals or residents who hold foreign passports.
This eliminates the nationality requirement and the basis for distinction between the two types of CSOs is largely related to the law of the country they are established under. The new law also abolishes the 10% rule on funding, which allows domestic organizations to freely determine where their funds come from. The law clearly entitles CSOs a right to solicit funding from any lawful source.
The other important amendment is related to the restriction on areas of operation of foreign CSOs, which is lifted under the new law. The repealed Proclamation provides that only Ethiopian Charities and Societies can operate in the areas of human rights protection, promotion of equality, conflict resolution and advancement of the efficiency of justice and law enforcement services.
The implication of this restriction is twofold. On the one hand, it unequivocally excludes resident and foreign CSOs from taking part in activities that fall under these areas. On the other hand, coupled with the budget restriction, it highly cripples the meaningful involvement of even Ethiopian CSOs in these areas.
Fortunately, this severely criticized provision of the Proclamation didn’t find its way into the new law. The revised Proclamation does not envisage major distinction between domestic and foreign CSOs with regard to areas of operation. Furthermore, in a provision entitled, ‘freedom of operations’, it is clearly affirmed that CSOs are at liberty to undertake any lawful activities in order to accomplish the purpose they are established for. Similar to domestic CSOs, foreign CSOs can also take part in any lawful activities save for one exception: the latter cannot engage in influencing decision making by lobbying political parties and engaging in voter education and election monitoring without prior approval.
Limitations of the new law
Even if the new Proclamation has made some commendable changes, it still grapples with certain limitations than can potentially affect the effective operation of civil societies in the country. One of these limitations is related to the rule on budget allocation, which is actually worsened in the revised law. The previous law obliges CSOs to allocate at least 70% of their budget for operational purposes and not more than 30% for administrative matters. In the new Proclamation, this rule is even tightened requiring CSOs to utilize not more than 20% of their budget for administrative activities.
Even though the intention of this rule in terms of fostering the accountability of these organizations is plausible, it puts extra hurdle on effective operation of CSOs. This emanates, first, from the difficulties associated with differentiating operational and administrative activities. The Proclamation defines administrative costs as costs for activities that arenot related with projects undertaken by the organization but are prerequisites for its existence. It further lists some costs as administrative, such as salary, office rental costs, utilities and office supplies, to mention few.
However, despite the definition and illustrative list, which is a progressive step compared to the previous law, the distinction between administrative and operational activities is still vague. Second, the nature of works of some CSOs might rightly necessitate the allocation of more budgets for administrative activities that are indispensable for their operational purposes. This is particularly true for service providing or advocacy organizations. Hence, the rule fails short of providing certainty and flexibility to accommodate the peculiarity of different CSOs. On the other hand, the Agency is endowed with a power to determine organizations that are exempted from this rule through a directive.
The other shortcoming of the new law is the registration requirement, which requires new CSOs to register and the existing CSOs to re-register with the CSOs Agency. This maintains the authorization regime where the legal status of CSOs will be contingent upon the registration process. On the contrary, the alternative process upheld by human rights organizations to be consistent with the freedom of association principles is the notification process where notification of the establishment of a CSO to the government organ concerned would suffice to accord a legal status to the former. Thus, the registration requirement coupled with the time limit for registration, which is considered unduly prolonged, opens a room for abuse.
Overall, the role of CSOs in development, democratic building and human rights protection cannot be overlooked. Particularly in a country like Ethiopia that is undergoing through a socio-political transition, these organizations play a vital role. Hence, the country should strive to create an enabling environment for CSOs to effectively operate. In light of this, the new Proclamation has come a long way in terms of amending some of the major flaws of the previous law. Nevertheless, the new law still has certain limitations that can potentially affect the operational freedom CSOs should be accorded with. These limitations should at least be offset by alleviating the administrative hurdles they face previously and clarifying some of the rules through the directive the Agency is expected to adopt until a further revision of the law is feasible.
Ed.’s Note: Roman Girma Teshome is a PhD Researcher in Public International Law at the University of Amsterdam. The views expressed in this article do not necessarily reflect the views of The Reporter. She can be reached at [email protected]
Contributed by Roman G. Teshome