Monday, February 25, 2008
NO GOOD DEED WILL GO UNPUNISHED!
“Charity begins at home,” goes the old saying. But with the Zenawi regime, it is, “No good deed will go unpunished.” The so-called “Charities and Societies Draft Proclamation No. 00/2007” [hereinafter “Proclamation”] currently under review by the Ethiopian “parliament” is one mean-spirited and uncharitable edict masquerading as a legislative measure. It is an understatement to say the Proclamation is incredibly oppressive, intrusive and arbitrary. It is simply a travesty of law that does not pass the “smell test”, let alone any serious legal analytical scrutiny. It offers a classic case study of law making in a police state — sweeping, stealthy, harsh, heavy-handed and irrational.
Private associations, endowments and trusts have existed in Ethiopia for decades. But modern civil society institutions (that is, domestic and international non-governmental, non-profit, voluntary citizens’ groups that provide humanitarian assistance, communicate citizens’ concerns to governments, advocate and monitor policies, encourage grassroots political participation, promote human rights, environmental protection, health, education, etc.), are a relatively new phenomenon in Ethiopia. Article 31 of the “constitution” of the current regime fully embraces such civil society institutions and provides, “Everyone shall have the right to form associations for whatever purpose.”
The importance of civil society institutions in democratizing Ethiopia has been repeatedly acknowledged by the current regime leader. Zenawi has made public statements declaring his intention to facilitate the establishment and strengthening of professional and popular associations and non-governmental organizations in the country’s development efforts and institution of democratic governance: “The participation of self-organized citizens’ associations is not only the foundation of our development, but also of our democracy.” Various official documents of the ruling regime have emphasized the role of civil society institutions in “building a democratic order in Ethiopia”.
So, what is wrong with Draft Proclamation No. 00/20071? Let’s count the ways.
The Proclamation is a preemptive legal strike aimed at neutralizing and abolishing civil society institutions, and diminishing any threats that may be posed by them against the regime.
An analysis of the totality of the Proclamation shows that the regime, in the absence of a united opposition political force in the country, perceives the greatest threat to its dictatorial powers originating in civil society institutions. The apparent fear of such organizations comes from the inherent potential of civil society organizations to create mass awareness of social and political issues, cultivate a more informed citizenry, mobilize people to make informed voting choices and effectively participate in politics, and equip ordinary citizens with the democratic tools to hold government more accountable.
By imposing an extensive scheme of invasive and suffocating licensing, registration, supervision, compliance and enforcement, and draconian penalty provisions, the regime expects and intends to effectively and “legally” eliminate any potential threats that could emanate from current or future civil society institutions. It is for this reason that the Proclamation sweeps under its regulatory claws all “philanthropic and benevolent” organizations and associations established to aid in poverty and disaster relief, promote economic development and agricultural and environmental amelioration, advance the cause of education, health, art, culture science, sports, enhance access and opportunity to the handicapped, and advocate and defend human rights. Even organizations involved in animal welfare are subject to the Proclamation. In sum, the powers created in this Proclamation to “regulate” all “philanthropic and benevolent” civil society institutions is the unchecked and unlimited power to destroy them. (A partial list of civil society organizations that could be affected by this Proclamation is provided herein.2 )
The Proclamation creates powers that can be exercised arbitrarily and capriciously in the regulation of civil society institutions.
The stated objective of the Proclamation is to “maintain public trust, promote compliance and enhance accountability” as well as “strengthen” and provide “full autonomy” in the operation of civil society institutions. But even a cursory reading of the Proclamation shows that there is no rational connection between the provisions of the Proclamation and its stated objectives. The Proclamation sets no discernable standards for civil society licensing, registration, compliance, investigation and enforcement. It merely creates an elaborate bureaucracy with sweeping and unchallengeable regulatory and administrative powers. Application of the Proclamation, and development of any subsequent enforcement regulations and rules, depends entirely on the whims and fancy of the director of the agency, and any directives he may receive from above. In fact, the director of the agency is a political appointee of the prime minister; and he in turn appoints a brigade of deputy directors, registrars and other bureaucrats. He acts cooperatively with a boatload of sector administrators, charities council and others to police and keep a watchful eye on civil society institutions.
The Proclamation grants unbounded discretionary power to the agency director who has quasi-judicial authority, and the director’s decision is not subject to judicial review.
The Proclamation is unabashed in creating an agency with officials whose powers have no legal bounds or limits. The list of extravagant powers conferred upon the agency and its officials is too numerous to enumerate, but a few glaring examples serve to demonstrate the sweeping powers granted to them. For instance, the agency can deny registration to any civil society group if it feels the internal management “rules of the charity are insufficient for proper management and control”. The agency can demand the membership, financial and any other records of a civil society organization at will, and without probable cause of wrongdoing by the organization, its officers or members. The agency can summarily suspend a civil society organization, its members or officers if it suspects “misconduct and mismanagement”.
A civil society organization could be dissolved if the agency determines on its own that the organization is being “used for unlawful purposes”, or is “contrary to public or the national interest”. The agency alone determines what is “unlawful” “or “contrary to the public or national interest.” The agency has the power to determine the “details of the charitable purposes and public benefits” regardless of the stated mission or objectives of the civil society organization. No action of the agency or its director could be challenged in a court of law with independent judges. There is limited administrative review of adverse agency actions, but ultimately, the agency and its director can do whatever they want in the name of “regulating” civil society institutions. In sum, the proclamation grants such sweeping discretionary regulatory powers, the agency and its director become the policeman, the prosecutor, the judge, the jury and the executioners of civil society organizations.
The Proclamation is extremely intrusive in the affairs of civil society.
The proclamation is extremely intrusive in the internal management and operations of civil society organizations. Using its sweeping powers, for instance, the agency and its director can appoint, remove, or suspend officers of civil society organizations, manage or freeze their assets, perform intrusive audits without suspicion of wrongdoing, unduly interfere in their internal decision making processes, scrutinize their operations and work plan, review their budget, order changes in their bylaws, and even force testimonial and documentary disclosure with “respect to any matter in question”. Incredibly, a civil society organization is required to return to the agency any money it has collected but has not spent within 2 years.
The Proclamation is so intrusive that it even compels disclosure of civil society membership lists. To closely track financial support for such organizations and identify supporters, it prohibits “anonymous donations” and requires records of donors to be kept for 5 years. None of this excessive intrusiveness can be challenged in court before an independent judge. It is obvious that under such an intrusive scheme of regulation, no civil society organization could feel confident enough to perform its mission. Few individuals would dare join such organizations under these circumstances; and those who do will be forced to endure the uncertainties of potential future persecution for membership in the “wrong” civil society institution.
The Proclamation provides for no judicial or administrative appellate review.
Perhaps the most troubling aspect of this Proclamation is the complete absence of provisions for judicial or meaningful administrative appellate review. For instance, there is no way to challenge an agency determination of denial of an application to register, order of dissolution, suspension or dismissal of officers in a court of law before independent judges. There is no way for civil society members who are not suspected of wrongdoing to challenge disclosure of their private records or statements to the agency. There is an administrative review process by which the decision of the agency director could be “appealed” to the Justice Minister. But that is like appealing the decision of Tweedle Dee to Tweedle Dum. In sum, the decision of the agency director and justice minister are final in all cases.
The Proclamation micromanages civil society institutions, is extremely burdensome and demands financial accountability and ethical integrity rarely seen or required of public institutions in Ethiopia.
The Proclamation authorizes the agency and its director to micromanage civil society institutions to a point of denying them any autonomy whatsoever. The financial accounting and record keeping requirements are so burdensome, unreasonable and punitive that a civil society organization must spend as much time preparing paperwork for red tape as it must performing its mission. For instance, the Proclamation requires “accounting records” to show “all sums of money received from day to day”. Civil society organizations are prohibited from receiving anonymous donations, so that a person who just wants to make a one time donation without membership affiliation can not make a contribution. Civil society organizations “shall be examined by a certified auditor or internal auditor or an auditor designated by the agency.” Civil society institutions are not allowed to establish a branch or change their name without agency approval. They are not allowed to use an emblem, logo or badge without agency approval. There are few things, if any, that civil society institutions can do without the approval of Big Brother!
The Proclamation has a chilling effect on civil society membership and participation.
No civil society organization could be effective without membership. By definition, civil society organizations depend upon the good will, charity and generosity of ordinary people in the community. Under the intrusive regulations of this Proclamation, few people in the community or society are likely to participate. The fact that government will have ready access to their personal information, role, participation and financial support of these organizations will dissuade many from joining. There is a real possibility of government retaliation if the civil society group is on a disapproved list, or is viewed with suspicion by the regime. Potential civil society members could reasonably fear that their jobs, businesses and private lives could be at risk by the mere fact of their membership. They could be targeted for persecution, harassment or mistreatment. The ironic thing is that ordinary citizens are likely to avoid joining civil society organizations — and thereby forego the legitimate exercise their “constitutional” and human rights to free association — out of fear of government retaliation.
The Proclamation is extremely punitive.
Failure to comply with the provisions of the Proclamation entails imprisonment, fines and administrative sanctions. For instance, administering or membership in an unregistered or “unlawful” civil society organization fetches a 5 year term, and a fine of 10,000 birr. Any person who is a member of or attends a meeting of an unregistered civil society organization could be imprisoned for 2 years, and fined 5,000 birr. Anyone who donates to an unregistered civil society organization is liable to jail time and fines as an accomplice. Any person who provides a meeting place for an unregistered organization is liable for a 2 year jail sentence, and a fine of 5,000 birr. Any person who “prints, publishes, displays, transits information by any means in the interest” of an unregistered organization is exposed to the same penalties. The agency also has the power to “at any time stop or restrict” fund raising by civil society organizations. In addition to the criminal penalties, there are untold numbers of unspecified but ominous administrative sanctions and penalties that can be taken against civil society organizations, their officers, board members and regular members.
In Art. 125, the Proclamation criminalizes civil society participation or advocacy of issues considered “politically contentious”. For instance, a civil society organization could be criminally charged under this section if it took a “political position” on poverty. Similarly, a civil society organization which promotes human rights, and its officers could be charged for speaking out on the “politically contentious” issue of political prisoners, arbitrary arrests and detentions, or torture of citizens. Such a provision is just plainly mindless and absurd.
The Proclamation is manifestly “unconstitutional”. It is also manifestly silly.
Article 131 of the Proclamation makes the following silly declaration: “Any laws and practices contrary to this Proclamation are hereby repealed.” Technical rules of statutory construction (legal interpretation) instruct that “words in a statute are presumed to have their usual and ordinary meaning”. If this provision is taken at face value, the Proclamation trumps and abrogates the Ethiopian “constitution” and all other human rights conventions incorporated by reference in the “constitution”. (Art. 13 (2).)
But there are specific provisions in the Proclamation that are manifestly violative of the regime’s “constitution”. For instance, the agency has the power to “cause the production of documents and search records” of the civil society organization, and “take possession of any books, documents or papers… required as evidence in proceedings for an offense under the Proclamation” (Art. 102), in violation of the right of privacy set forth in Art. 26, inter alia, of the “constitution”. Broad powers granted to the agency to have “full and free access to all buildings, places, books, documents papers of a charity or society” (Arts. 102, 104), are in flagrant violation of Art. 26 as well. Civil society organizations are required to notify the agency of any meetings with a 7 day advance notice (Art. 103), in violation of Arts. 29-32, inter alia, of the “constitution”. The Proclamation authorizes the agency to compel oral testimony from civil society members and officers to obtain “any information which relates to any charity or society” (Art. 102) in violation of the prohibition on coerced statements in Art. 19 (5), inter alia, of the “constitution”. In Art. 125, the Proclamation criminalizes civil society participation or advocacy of issues considered “politically contentious” in violation of Art. 29 (1) (2), inter alia, of the “constitution”. The list goes on and on.
The Proclamation is mean-spirited and discriminatory.
The Proclamation treats civil society organizations, groups and members as enemies of the state, instead of partners in building democracy. It makes no sense to have such a draconian Proclamation in the absence of a demonstrated history of criminality, or convincing proof of abuse of public trust, waste of public funds or fraud in the use of publicly collected funds. In fact, the Proclamation makes no legislative findings whatsoever that civil society institutions in Ethiopia have ever presented law enforcement problems or raised issued of public integrity. In the absence of any evidence of wrongdoing by civil society institutions, one can only conclude that the Proclamation in its totality has no rational relationship to the proper objects of governmental regulation, but rather represents a “legal” assault aimed at abolishing civil society institutions.
On the other hand, the Proclamation irrationally discriminates against foreign civil society organizations, and expatriate civil society workers. It prohibits employment of expatriates in domestic civil society organizations unless justified by the nature of the work or qualification of the individual. Failure to comply with this provision will result in jail time. It is also regrettable that the Proclamation appears to have been patterned in material respects after a similar law in Singapore, a country ranked 141st out of 167 by Reporters Without Borders in the Worlwide Press Freedom Index.
A good charity law should be charitable.
A good charity law should create an environment that enables ordinary citizens to participate in collective activities in their society, and not to fear and avoid civic engagement. Draconian regulatory constraints such as the ones in the Proclamation should only be used preventively if there is a history of criminality, fraud, waste and abuse in civil society organizations. Government should encourage and support citizens who seek to exercise their constitutional rights through organized and active civil society institutions. It is unnecessary and harmful to legislatively presume that ordinary citizens who seek to establish and participate in civil society organizations are criminals intent on defrauding the public. Rather, the presumption should be well-intentioned ordinary citizens who seek to help themselves and others deserve the benefit of the doubt and governmental cooperation through a simple and easy to follow regulatory regime.
An Alternative: The Daniel Bekele Group proposal
The Daniel Bekele Proposal is a compellingly viable alternative to the Proclamation.
There is a viable alternative to the current Proclamation which facilitates “self-organized citizens” to be involved in “development and democracy.”3 It is a proposal that harmonizes constitutional and human rights with the need for accountability and transparency in the operation and management of civil society organizations. This proposal was advanced by the young and dynamic anti-poverty civil society activist Daniel Bekele (who is currently in Kality prison despite a court order to release him and his colleague Netsanet Demessie), and his NGO/CSO Legal Framework Consultative Task Force. A careful analysis of this Proposal shows that it is possible to achieve both civic engagement and effective regulatory regime of civil society organizations in a framework of partnership.
The Bekele Proposal offers numerous advantages over the Proclamation. It provides for a simple registration process unencumbered by bureaucratic red tape. There is no charge for registration, and once registration is obtained it will remain valid for an indefinite time unless good cause exists for revocation. This Proposal does not allow for excessive official interference in the daily management and operation of civil society organizations. It relies on existing Civil Code provisions for reporting and supervision. Civil society organizations will be required to file annual reports, and external audits will be ordered only if there is evidence or good cause to suspect criminal wrongdoing.
Under the Bekele Proposal, if civil society organization are to be suspended or dissolved, such actions will be taken in accordance with the bylaws of the organization, or by court order after a full hearing on the merits. Foreign civil society organizations and expatriates who seek to work in Ethiopia will not be discriminated. Rather, they will be treated equally with domestic groups with respect to rights and obligations. The Bekele proposal also provides for changes in the organization of civil society institution, allowing for expedited mergers, splits and changes from foreign to domestic groups. There are no draconian penalties for violation of the regulations. Any penalties under the Proposal are to be imposed in the sound discretion of independent judges, not political appointees who have an axe to grind. Most importantly, the Bekele Proposal provides for full administrative and judicial appellate review. (The reader can make an independent comparative analysis of the Proclamation and the Bekele Proposal in footnote 3, supra.)
In studying the Proclamation one is reminded of Mr. Bumble, the parish beadle in charge of charity, the workhouse and orphanage in Charles Dickens’ Oliver Twist. Informed that “the law supposes that your wife acts under your direction,” Mr. Bumble replied, “If the law supposes that, the law is a ass — a idiot’. Even Mr. Bumble knows a rotten law when he sees one.
1. The Proclamation in four parts is available at: http://www.ethiomedia.com/abai/highly_restrictive_law.html
3. The Bekele Legislative Proposal is available at: http://www.crdaethiopia.org/PolicyDocuments/Alternative%20Draft%20Legislation.pdf;
see also fn. 1 supra.)