Environmental Law

05/03/2019

Ethiopia’s New Civil Society Law

A few weeks ago, the Ethiopian Parliament adopted a new law governing civil society organisations (CSOs). It is hard to overstate what an important and remarkable step this is for the civil society sector, their beneficiaries and funders. It is an important step because, up until now, Ethiopian law has radically constrained and frustrated the work and political spaces of CSOs. It is a remarkable step because the adoption of a new CSO law was unforeseeable less than a year ago. In this blog post, we briefly outline some of the key features of the new law and the important ways in which this law differs from the old regulatory system.

A wave of protests in 2017, followed by the surprise resignation of the then Prime Minister, Hailemariam Desalegn, in February 2018 opened the way to what many see as a new political era in Ethiopia’s history. The new Prime Minister, Abiy Ahmed, has committed to a more democratic, transparent and accountable government and has taken some steps towards achieving this goal.

One of the first things the new Prime Minister committed to do was repeal and revise a series of repressive laws, some of which had been in force for nearly a decade. Among these was the Charities and Societies Proclamation of 2009. The 2009 Proclamation states that its purpose is to ensure the right to freedom of association, but in truth, the law largely consisted of different regulatory tactics to restrict and control the activities and funding of CSOs and to significantly increase state oversight of those operations.

Over the course of the past few months, a drafting committee was convened to revise the regulatory framework for CSOs. This committee included a number of CSO representatives. After various drafts as well as public consultations, the revised law was finalized and finally adopted by Parliament. Although the new law is awaiting publication and is not yet in force, it will soon replace the 2009 Proclamation and usher in a new era for civil society in Ethiopia.

In this blog post, we consider some of the key changes that will be introduced by the new 2018 Proclamation. We start with a brief overview of the current law before turning to a discussion of some of the important features of the new legislation.

The 2009 Charities and Societies Proclamation

Ignoring the rights and freedoms embodied in its Constitution, Ethiopia has deliberately and effectively restricted the political space for CSOs through legal measures that strictly regulate the funding, management and scope of work of these organisations. A key component of this has been the 2009 Proclamation.

The 2009 Proclamation categorises CSOs into three groups, namely Ethiopian Charities and Societies;Ethiopian Residents Charities and Societies; and Foreign Charities. Ethiopian Charities and Societies cannot raise more than 10% of their revenue from foreign sources and, as a result, many of these struggle to find funding sufficient to carry out their work or even to remain in operation. Ethiopian Residents Charities and Societies and Foreign Charities are allowed to receive funds from foreign sources but they are not allowed to engage in various kinds of work. In particular, they are prohibited from carrying out advocacy activities in relation to human rights; elections and democracy; gender and religious equality; children’s rights; or the promotion of justice and law enforcement services among other activities. These restrictions have historically been defended by the State as necessary to ensure that activities of a political nature are carried out ‘by the government in collaboration with its citizens’ and not ‘foreign agents’ or entities.

The 2009 Proclamation sought to transform large parts of civil society into a service sector. One of the ways it did this was by strictly regulating the ways in which these organisations could distribute and use their funds. Most importantly, the law required all organisations falling within the scope of its application, regardless of their classification as Ethiopian, Ethiopian Residents or foreign, to allocate an amount of not less than 70% of their budget to operational costs and to allocate not more than 30% to ‘administrative activities’. The so-called 70/30 regulation was meant to ensure that the bulk of CSO funding benefited those in need. However, the Proclamation defined ‘administrative activities’ so broadly that it included a wide range of costs that normally would have been considered part of program implementation costs.  As a result, organisations have been unable to conduct training of their staff, hire researchers or commission studies, network or collaborate, participate in workshops and other learning and sharing opportunities (among many other activities) without overspending their allocated 30%.

Perhaps the single greatest problem in the regulation of CSOs, however, is the oversight of their governance by a Charities and Societies Agency. This is a government entity that is established to oversee and administer the registration, reporting and other activities of CSOs. It has been seen by many in the CSO sector as bureaucratic, incompetent and, worst of all, generally opposed to civil society as a sector.  The Agency has had wide discretion in regard to the registration and closure of CSOs, as well as a range of decisions affecting the day-to-day operations of these organisations.

Through the Agency’s administrative acts and decisions, the restrictive regulatory regime under the 2009 Proclamation has become more cumbersome, constrained and antagonistic to CSOs.

The new 2018 Proclamation – a new era for CSOs in Ethiopia

Although the new 2018 Proclamation starts in a very similar manner to the old – by stating that it is enacted for the purpose of giving effect to the right to freedom of association – the law outlines an entirely new approach to the regulation of civil society organisations. This is unsurprising as the committee appointed to redraft the law included a number of civil society representatives and the drafting process included consultation with CSOs and members of the public.

The 2018 Proclamation departs from the previous funding and membership-based categorization system and refers only to local (or indigenous) and foreign civil society organisations. The law now explicitly provides that all organisations have the right to engage in any lawful activity to accomplish their objectives. In other words, foreign and foreign-funded organisations are no longer prohibited from engaging in activities such as advocacy and human rights work. In fact, a provision has been included to specifically encourage CSOs to engage in advocacy and lobbying in regard to laws and policies “which have a relationship with the activities they are performing”.

While the old categorization of organisations has been abandoned, along with the limits of the activities of foreign and foreign-funded organisations, a shadow of this old system is found in the limitation on “lobbying political parties.” The law states that foreign organisations and indigenous (local) organizations established by Ethiopian resident, foreign citizens may not lobby or influence political parties, nor may they engage in voter education and electoral observation unless otherwise allowed by law. (The law provides that Ethiopian resident foreign citizens could avoid this restriction by establishing CSOs jointly with Ethiopian citizens). This provision aside, the law now actively calls on all CSOs to contribute to democratization and promoting the rights of their members.

Given the role that CSOs played in the drafting of the law, one surprising development is that state control over the distribution of funds is still in place. The 70/30 rule has been replaced by an 80/20 rule – now only 20% of an organisation’s income can be spent on administrative costs. The rule applies to all organisations ‘established for the benefit of the general public or that of third parties.’ At first glance, this appears to be a setback rather than an improvement in the law. However, the law now seeks to define more precisely and unambiguously what constitutes an administrative cost. These costs include salaries of administrative employees, property rentals, bank fees, attorney fees among others. They do not include training, research, networking and other costs that fell under administrative activities in the old law. This is a significant improvement even if the degree of continued state oversight of spending seems excessive.

Under the current regulatory system, CSOs have complained that they were obliged to obtain a range of permissions from the Charities and Societies Agency. Over the past decade, the Agency has had significant power to suspend and shut down CSOs and the authority to decide whether organisations will be permitted to carry out basic activities. CSOs have reported that extraordinary bureaucratic delays, incompetence, high staff turnover and corruption has meant CSOs are forced to wait for weeks (and sometimes months) to open bank accounts, finalise contracts, purchase vehicles and so forth.

The new law also establishes a Civil Society Organisations Agency with powers to oversee the registration and reporting of CSOs. The Agency’s discretion in regard to whether or not an organization may be registered and the circumstances in which an organization can be penalized has been significantly limited. The new law sets time limits on the administrative duties of the Agency (such as requiring the agency to deliver an approval to a CSO to open a bank account within 5 days) but it is not unimaginable that incompetence, high staff turnover and corruption will impede the new Agency and render the time limits meaningless. Importantly, CSOs also now have greater recourse to justice to challenge the decisions of the Agency, something many do not have under the current 2009 Proclamation.

Under the new law, the Agency’s board will be more representative. Under the 2009 Proclamation, the Board comprises seven members all of whom are appointed by the government, including two members to be appointed from the CSO sector. The new law increases the representation of CSOs to three, and stipulates that they are to be selected by the Council of CSOs, and not by the government.

Perhaps one of the most important developments in the law is that it advances a self-regulatory system for CSOs. The new law defines this as ‘a regulatory system led by a voluntary code of conduct adopted by Organizations through the Council to govern themselves’. The Council is a new entity created under the law, to be established by CSOs, but convened by the Agency. The law seems to envision a CSO led entity but one established with the assistance of the State.

Once established, the Council’s primary tasks are to: a) Enact the code of conduct for the sector, and devise enforcement mechanisms in consultation with the Agency, donors and other stakeholders, b) advise the Agency on the registration and administration of organizations, and c) represent and coordinate the civil society sector.

This move to self-regulation marks a significant shift. In the past decade, the sector has been tightly and closely regulated by the State. The new law creates a mechanism for self-governance, and ensures state assistance in putting the mechanism into place. A number of questions remain about whether the Council can effectively represent a sector as large and diverse as the Ethiopian CSO sector, and one that will likely undergo significant changes in this new regulatory environment. Questions also arise as to whether a relationship of trust and good will can be maintained between the Council and the Agency and whether close collaboration between these entities jeopardizes the Council’s independence.

Without losing sight of the many questions that arise, however, the shift to self-regulation is an intriguing and promising one. It demonstrates a shift in the way CSOs are perceived. They are no longer seen by the State as untrustworthy and self-serving, but as an important sector, and one that is best positioned to ensure CSOs are accountable, transparent, committed to good governance and to achieving all they can for their beneficiaries.

This has been a brief introduction to some of the key developments in Ethiopia’s new CSO law. While many questions remain about the effectiveness and efficiency of the new system, the law marks an exciting and important shift in the regulation of CSOs and in the State’s attitude to the sector. With the adoption of this new law, Ethiopia appears to have bucked a global trend towards stricter regulatory controls of CSOs and shrinking political space, as it moves towards greater respect for the right to freedom of association and recognition of the value and importance of a thriving civil society sector.

EDIT: The impact of the new rules were discussed in a two day conference taking place in Mekelle, Ethiopia in May 2019 which attracted around 60 participants from various CSOs (on environment, socio-economic development, consumer protection), from legal aid centres and a legal training centre, from various government authorities and courts (the Charities and Societies Agency – now the CSOs Agency -, the Federal Environment Forest and Climate Change Commission, the Regional Environmental Protection Office, the Regional Bureau of Justice, and the Regional Supreme Court), from the media, and from various research institutes. The Forum for the Environment (FfE) made this booklet with the proceedings of the conference.