There is an increasing fear that Non-Governmental Organisations (NGOs) are facing shrinking spaces as a result of regulation, all over the world.
In July 2008 for instance, the Russian Prime Minister, Vladimir Putin removed the tax-exempt status of 89 of 101 intergovernmental organisations . In the same vain, the Ethiopian government passed a law that prevented charities who receive more than ten percent of their funding from foreign donors from engaging in certain activities. The prohibited activities included the advancement of human and democratic rights, the promotion of equality of nations, persons with disabilities and children’s rights. In addition to this, a host of other countries such as India, Zimbabwe, Eritrea, Algeria and Kenya have proscribed measures dictating how funds may be given to civil society groups.
In Nigeria, the most recent attempt to regulate NGOs has gained momentum after criticism of a Bill currently awaiting Committee report in the House of Representatives. The Bill’s long title seeks to provide for the establishment of a Non-Governmental Regulatory Commission for the supervision, coordination, and monitoring of Non-Governmental Organisations, Civil Society Organisations and related matters . From the provisions of the Bill, the objective of the proposed Commission is to ensure the transparency and accountability of NGO’s in accordance with the law.
Under the Bill, NGOs are described as “private voluntary organisation of individuals or associations not operated for profit or other commercial purposes but which have organised themselves nationally or internationally for the promotion of social welfare, development, charity or research through mobilization of resources ”. However, Civil Society Organisations (CSOs) are not defined despite being mentioned in its long title and provisions.
Some provisions in the Bill include a proposal for a Governing Board consisting of a Chairman, an Executive Secretary and 17 representatives drawn from different facets to manage the Commission . Among others, the Board will maintain the register of national and international NGOs operating in Nigeria and advise the government on their activities . It will also be responsible for providing policy guidelines to NGOs in view of harmonising their activities with Nigeria’s national development plan .
In addition, the Bill proposes compulsory registration for every NGO with the proposed Commission and the payment of fees. Certificates issued to registered NGOs/CSOs will be valid for a renewable period of 24 months . However, NGOs may lose their status of registration if they fail to renew registration after their validation period elapses . Other consequences that may follow such failure include the termination of an NGOs operations or/and its deletion from the database of registered NGOs. Sanctions for persons who operate an NGO without registration and certificate include a N500, 000 fine, imprisonment for 18months or both. They may also be barred from holding office in any NGO for a period of ten years, if convicted by a court of law. There is however, an exception to the general rule of mandatory registration in clause 13 of the Bill, which provides for the Minister of Interior to register NGOs himself in “special cases” on advice by the Board.
Nonetheless, the Bill raises some concerns. Firstly, is the argument that the Bill is unduly restrictive and that the powers given to the Board may be abused. For instance, there are fears that the provision mandating NGOs/CSOs to disclose details of anticipated programmes such as the activities to be undertaken, their target beneficiaries and their estimated duration could eventually be used as a guise by the proposed Commission’s Board to crackdown on NGOs/CSOs that criticise government activity. In addition to this are the Board’s wide powers to refuse the registration of NGOs/CSOs on the basis that its proposals are against “national interest” and its powers to cancel or suspend already issued certificates on grounds that an NGO/CSO violated the terms and conditions attached .
Secondly, there are areas that need to be clarified. It was pointed out earlier that the definition of CSOs is not defined under the Bill. Also, although the position of NGOs are defined under this Bill, this definition falls short of other groups that make up CSOs like religious groups, trade union groups etc. Without a clear definition, it is ambiguous which exact groups fall under the Commission’s regulations . The Bill will also need to illuminate on what applications suffice to meet the exception of registration in those “special cases ” where the Minister of Interior registers NGOs/CSOs himself and the proposals or activities that could justify a refusal of registration on the grounds of “national interest.”
Thirdly, there are administrative issues that should be resolved. Under extant provisions, for instance, NGOs/CSOs are already registered under Part C of the Companies and Allied Matters Act Cap C20, L.F.N. 2004. Therefore the Bill’s requirement of registration under the Bill amounts to duplicity in registration. Also, where a project is for over 24 months and the CSO/NGO is denied renewal, what happens to the life of the project? There is also no provision for a refusal of registration to be questioned by a court of law as refusal of registration under the Bill can only be questioned by an appeal to the Minister of Interior- who supervises the Commission .
Other related administrative issues include the provision for NGOs to declare their source and sum of funding. This reveals a lack of understanding of the internal mechanisms donors put in place to ensure that usage of funds is strictly complied with. Already, donor organisations approve projects according to their own objectives for intervention for which NGOs/CSOs that bid for grants must adhere with. Donor organisations are also required under extant provisions to register with the National Planning Commission.
The Bill also contains mandatory provisions that should at best be policy guidelines. For instance clause 25(2) of the Bill that mandates for administrative costs to be limited to “bare essentials” and clause 34(2)(e) of the Bill that describes the nationals of countries that should be employed in middle and junior staff positions. In addition to this are concerns over likely implications the Bill may pose to partnerships, international collaboration and the receipt of financial aid if an NGO’s altruistic objectives become subject to the Board or Commission’s approval. It is also worthy of note that the NGO Bill under consideration in the House of Representatives bears a remarkable semblance to a Bill that also sought to establish an NGO Regulatory Commission in the 7th Assembly . However, that Bill was not passed.
Looking at the international scene, it appears that some of the justifications for having restrictive regulations on NGOs and CSOs are centred on anti-terrorism measures and issues of state sovereignty. In Egypt for instance, the government has accused NGOs of representing homogenous block of Western interests seeking to dominate Egypt. The Russian government also explained the need to reduce the influence of “meddlesome” foreign charities in its affairs when removing the tax-exempt status of such organisations .
However, these restrictions appear problematic when they infringe on the ability of legitimate NGOs to receive necessary funding to carry out their activities in the pretext of protecting state sovereignty. The restrictive laws also downplay the invaluable contributions that NGOs and CSOs make to their environment and even their present status in international treaties such as the United Nations Charter, the International Covenant on Civil and Political Rights, (ICCPR) the International Covenant on the Elimination of Discrimination against Women (CEDAW) and the African Charter on Human and People’s Rights. Article 71 of the United Nations Charter for instance provides for the special status of NGOs by mandating the Economic and Social Council to make suitable arrangements for consultation with non-governmental organisations, on matters within its area of competence. Additionally, on the international human rights scene, some International Courts/Tribunal like the European Court of Human Rights and the Inter-American Court of Human Rights provide opportunities for NGOs to participate as an “amicus” (or an outside party) that can urge the Court/Tribunal to arrive at a particular decision . Furthermore, while the NGO Bill in Nigeria seeks to base the legality of NGOs on its registration status, international global practice generally gives individuals the right to associate without formal legal status.
While the analysis shows that the problem of NGO and CSO restriction in Nigeria is not an isolated case, it is arguable that any further restriction on the space of non-governmental organisations should be arrived by an inclusive process. In the 7th Assembly for instance, the convening of a public hearing on the NGO Bill provided a forum for CSOs to share their thoughts and input on the Bill. Other methods that could be explored to create a sense of participation include consultation, dialogue, information and partnership.
Lastly, it is submitted that lawmakers could achieve the objective of harmonizing and aligning aid delivery in the country through extant provisions and even strengthening of the National Planning Commission- whose mandate includes advising the Government on issues relating to national development and the overall management of the economy. This position rather than the proposal of an altogether new Commission would also help to achieve the present administration’s campaign promise of a leaner and more efficient government.