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Silencing Voices, Closing Space : Assessing the Enabling Environment for Civil Society as Development Actors

Chroniques de l’Observatoire sur la coopération internationale, 20 février 2014

Silencing Voices, Closing Space : Assessing the Enabling Environment for Civil Society as Development Actors [1]

Brian Tomlinson
AidWatch Canada
Février 2014

NOTE : Pour les sources complètes (endnotes) et le tableau 1 (box 1), veuillez svp consulter le document pdf se trouvant en bas de cette page.

Canadian civil society organizations (CSOs) across the sectoral and political spectrum – development organizations, women’s rights organizations, environmental groups, students and scientific research – in the past few years have all experienced inter alia a demonization of dissenting policy points of view, government defunding, selective decertification of charitable status, and a marginalization of citizens’ rights to peaceful assembly and protest.

The situation facing Canadian CSOs unfortunately is not unique. Evidence gathered recently by the global CSO platform, Civil Society Partnership for Effective Development (CPDE), confirms a pattern of deteriorating legal and political conditions for CSOs in an increasing number of countries around the world.

A vast array of CSOs, working as development actors, have grown over the past decade, bringing together millions of citizens for highly diverse public purposes in almost all countries of the world. They work at all levels (local, national, regional and global), promoting development and poverty reduction, delivering services, educating citizens, strengthening peoples’ voices in governance and advocacy, and responding to humanitarian emergencies.

It is estimated that CSOs program annually US$50 billion to US$75 billion in support of development cooperation, mainly from CSOs in Northern countries, and often through partnerships with Southern CSO counterparts. Working as independent development actors in their own right, CSOs are collaborate across national boundaries engaging in a shared solidarity with people, especially poor and marginalized populations, to enable people to claim their human rights.

Since 2002 official aid donors and partner governments have been meeting in a series of High Level Forums (HLFs) to improve the effectiveness of aid. Starting in 2008 in Accra, Ghana, and again in 2011 in Busan, these HLFs have been very inclusive of CSOs. In the 2008 Accra Agenda for Action, for the first time, governments from all parts of the world recognized CSOs as development actors “in their own right” and committed to creating the enabling conditions that maximize their contributions to development. This commitment was reiterated in 2011 at the Busan HLF, where an enabling environment for CSOs was defined as one that is “consistent with agreed international rights.” Moreover, the Busan HLF created a multi-stakeholder Global Partnership for Effective Development Cooperation (GPEDC) to promote and actively monitor the commitments made in Busan, including the commitment to improve the enabling environment for CSOs as one of ten indicators of progress since Busan.

Monitoring an enabling environment for CSOs

In April 2014 the GPEDC will be meeting in Mexico, bringing together donor and partner government ministers and high level officials, CSOs, representatives of the private sector, local government and parliamentarians. The purpose is to assess and accelerate progress on commitments made at the Busan HLF, including on the enabling environment for CSOs. The OECD and the UNDP, functioning as the secretariat for the GPEDC, will bring a report to the Mexico HLM on progress to date, drawing from evidence submitted by donors, partner governments and CSOs.

The global CSO partnership, CPDE, has put forward a rights-based framework (see Box One) to assessing the CSO enabling environment in which there are three essential areas and five dimensions. All of these areas and dimensions are critical to creating conditions for CSOs to organize and act for development through citizens’ participation in their communities and engagement with their governments.

CSOs have welcomed the GPEDC’s attention to CSO enabling conditions as one of ten indicators of progress and the implications for government to improve this environment. However, evidence gathered to date points to a different reality for many CSOs reflected in increasingly severe restrictions in a growing number of countries on rights that affect their operations, a very mixed experience with respect to CSO spaces for policy influencing, and greater impediments in donor terms and conditions in their support for CSOs as development actors. This article summarizes some of this current evidence ; it draws on documentation and research undertaken by CPDE, some of its members (ACT Alliance, CIDSE and the International Centre for Not-for-Profit Law), and the Reality of Aid in Africa, listed in the Resources annex.

Area One : Implementing Laws and Regulations affecting Rights and Freedoms for CSOs

A recent report by CIVICUS points to 413 threats to the operations of civil society in 87 countries, in the 22-month period January 2012 to October 2013. Among some of the restrictive measures and practices in the implementation of laws and regulations governing CSOs noted in the CPDE Synthesis of Evidence are the following :

Mandatory registration of organizations, rendering illegal any activities by unregistered CSOs, including smaller community-based organizations and informal associations [identified in 3 CPDE/Reality of Aid case studies (Zambia, Zimbabwe and Tanzania) and 4 additional countries noted by ICNL in its online database (Kenya, South Sudan, Ethiopia and Uganda)] ;

Unclear and/or multiple laws, and/or expensive and complex procedures for registering and governing CSOs. As a consequence, reports observe arbitrary and selective application of laws/regulations against certain organizations, significant barriers for smaller CSOs to register, and lengthy delays for successful registration and burdensome heavy reporting requirements.

Vague grounds for refusal to register (or de-register) an organization as a not-for-profit or charity, with limited or no due process for appeal (Referenced in 7 of 12 countries reviewed in the CPDE Synthesis).

Onerous requirements for re-registration (sometimes annually), placing undue administrative burdens on CSOs and opportunities for selective denial of registration of targeted organizations (onerous procedures and/or undue discretion on the part of the government were referenced in 8 of the 12 countries under review).

Unclear legal and regulatory restrictions for CSOs in aid-providing middle-income countries to collaborate and engage in South-South Cooperation.

Measures banning public demonstrations, prohibiting non-citizens from participating in public protests, limiting numbers of participants in public picketing, and increasing penalties for violations of regulations regarding peaceful assembly.

Institution of politically motivated legal proceedings against members of CSOs critical of official policies leading to arbitrary arrests and detention.

Reprisals against members of CSOs for engaging with multilateral human rights institutions most notably, the UN Human Rights Council.

While violations are more persistent and far-reaching in highly polarized and authoritarian political environments, lesser legal and regulatory concerns were also recorded in more democratic countries such as Canada and Kenya.

An increasing body of evidence is tracking increasingly debilitating restrictions on CSOs’ access to foreign funding, which in already resource-poor countries dramatically impedes CSOs’ freedom of association to engage in legitimate activities, including human rights protection. CIVICUS (citing ICNL) sets out a growing list of 23 countries with foreign funding restrictions and points to a “contagion effect” with laws introduced in one country drawing inspiration from laws in other jurisdictions.

Restrictions often target foreign funding for CSOs engaged in policy processes, advocacy and the defense of human rights at the country level. CPDE/Reality of Aid country case studies for its Synthesis (Cameroon, Tanzania, Zimbabwe, Bolivia, Kyrgyzstan) draw attention to public demonization in some countries of particular CSOs as agents of foreign (Western) governments as a result of their receipt of foreign funding. In another example, all Russian CSOs receiving foreign funding are now required by law to register as “foreign agents,” considered to be spies, which is being challenged by Russian CSOs in international courts.

In his April 2013 report to the UN Human Rights Council, Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, draws attention of the UN system to “increased control and undue restrictions in relation to funding received [by CSOs].” In a detailed report, he calls on governments to “allow access by NGOs to foreign funding as a part of international cooperation to which civil society is entitled to the same extent as Governments.”

In most countries, the service provision and humanitarian assistance roles of CSOs are widely accepted and even promoted by other stakeholders. However, significant barriers often exist for particular groups with mandates that include the critique of and/or advocacy for policy change or for those that represent the views of marginalized and vulnerable populations. According to a recent survey of six countries (also confirmed by the CPDE/Reality of Aid Africa case studies), CSOs “working in human rights, community rights, land rights, natural resources, mineral and environmental issues are more likely to become stigmatized.”

For example, women’s rights organizations play a catalytic role in strategizing and advancing work that challenges existing gender norms and power relations. The Association of Women’s Rights in Development (AWID) has documented increased violence against Women Human Rights Defenders (WHRDs), with 24 WHRDs murdered between 2010 and 2012 in a range of countries including Guatemala, Honduras and Mexico. AWID has also pointed to the rise of religious fundamentalism across all regions, with 76% of 1600 women activists from 160 countries reporting in a survey that they have dealt with the consequences of religious fundamentalism in limiting their work over the past ten years. Finally AWID has been monitoring the financing of women’s organizations and notes shrinking funding from many of the traditional aid sources of finance.

CSOs must be free to determine their own legal statutes, structures and activities and to make decisions consistent with their mandate, without state interference. CSOs call on donors to consider flexible financing and other options to strengthen vulnerable organizations facing disabling conditions for their operations. States should also put in place policies for the protection of members of CSOs that provide for independent investigations into criminal attacks on HRDs or other vulnerable populations and should provide national human rights institutions a mandate to support and work with CSOs.

Area Two : Spaces for Policy Influencing

All stakeholders at the 2011 Busan HLF agreed that “inclusive development partnerships” are the foundation for cooperation for effective development. A more inclusive development process requires governments to “deepen, extend and operationalise the democratic ownership of development policies and processes.” [emphasis added, §12a, Busan Partnership for Effective Development Cooperation]

Operationalizing inclusive development through democratic ownership involves empowering people as beneficiaries, but also as actors in their development. In this context, CSO policy influencing is not only about inclusive participation in consultations, which often remains episodic at the discretion of governments. It is also about creating structured and permanent forums for multi-stakeholder dialogue that include a diversity of civil society actors – particularly those involving marginalized populations –in advising and monitoring development policies, plans and strategies. Restrictions affecting CSOs, particularly in their capacities to express dissenting views and represent affected populations, pose serious challenges to the realization of democratic ownership, which aims to broaden and deepen the diversity of peoples’ participation in development.

Evidence collected by the CPDE and by some of its member organizations point to varying, but usually very limited, degrees to which national development strategies have been informed by inclusive consultations. This finding is consistent with an earlier 2011 Reality of Aid Report that could point to only a few exceptions among the 32 countries examined through case studies where there was sustained multi-stakeholder involvement in government national development planning directorates.

The evidence in the Synthesis describes consultations that are mostly episodic, at the discretion of governments and involve limited numbers of CSOs, selected for their broad support of government policies. CSOs reported inter alia the following characteristics of current public policy engagement :

Consultations held to receive CSO views, but such views are based on limited or no access to documentation on relevant government draft policies or priorities ;

Superficial consultations in the final stages of policy development, designed for information sharing only, with limited opportunities to hear from stakeholders ;

A decline in previously-held inclusive consultations/dialogue based on a mutually agreed agenda, in favour of ones that target specific government determined priorities (for example in Canada) ;

Rhetorical commitments to create space for vulnerable groups in decision making and planning, but no structured mechanisms for realizing this commitment ;

Limited or non-existent opportunities for policy dialogue between governments involved in South-South Cooperation (SSC) assistance and CSOs in these countries seeking to make a contribution to SSC ; and

A general lack of accountability following consultations to determine if and how CSOs concerns were taken into account in the final policy decisions.

On the other hand, CSOs have noted an interesting engagement with CSOs through Public Watch Councils in Kyrgyzstan as a permanent forum with selected ministries, expanding numbers of participatory forums for policy dialogue in Cameroon and Kenya, and an important European Union statement on the value of CSOs in EU development cooperation. The EU Communication explicitly defines and commits to regular engagement with CSOs and “sets standards that can be used to monitor whether improvements to conditions for civil society result from EU activities.”

For CSOs there is a close relationship between transparency and conditions favourable to democratic ownership and an enabling environment for CSOs. Transparency in information is essential to hold governments to account. For the most part, access to information is either very partial or unavailable on a straightforward and timely basis.

CSOs call on governments to establish permanent institutionalized spaces for multi-stakeholder dialogue on development policies, based on principles of mutual trust, respect and shared responsibilities. These spaces should engage a diversity of civil society actors and should have access to information and transparent accountability mechanisms protected by legislation. Support should be provided for a wide range of CSOs, including women’s rights organizations, rural, indigenous, people with disabilities, and urban community organizations to participate in multi-stakeholder policy processes.

Area Three : Donor – CSO relationships in support of CSO roles in development

Most (but not all) OECD donors within the Development Assistance Committee (DAC) have written accessible policies that address their relationships with CSOs in the delivery of aid. A DAC review of good practice for donors suggests that these policies should,

“[S]et out measurable objectives including for implementing the commitments made on civil society in the Busan 4th High-Level Forum on Aid Effectiveness (para 22). These are : recognising CSOs as development actors in their own right, promoting an enabling environment (including effective donor support), and encouraging CSOs to implement practices that strengthen their accountability and contribution to development effectiveness.”

However, translating good civil society policies into donor decision-making processes and practices in headquarters and on the ground remains an ongoing challenge. Several DAC peer reviews have urged further policy development in consultation with civil society. The 2012 Peer Review of Canada (page 10) called on CIDA to “complete its civil society effectiveness strategy,” (page 20) through which it “should take a fresh look at how it can better achieve its development aims in relation to civil society.” (page 29) The latter “will need to strike a balance between respecting CSO autonomy as development actors in their own right, and steering CSOs to deliver Canada’s development co-operation objectives”(page 29).

Over the past several years, CSOs based in both donor and partner countries have identified a number of issues in donor policies that affect and constrain their effectiveness as development actors :

Non-responsive donor CSO policies : Donor directive policies (narrow donor-determined results requirements) and modalities of support for CSOs (contracting for donor-determined programming) limit CSO capacities and space for pursuing partnerships based on the principles of ownership and alignment with the priorities of their partners and constituencies. DAC donor priorities (and also INGO priorities) are often developed with little engagement with developing country CSOs and sometimes with little knowledge of conditions facing local CSOs.

Funding modalities and conditions : An inappropriate mix and choice of funding modalities weaken CSO effectiveness, alongside unpredictable timing and long delays, shrinking opportunities for financing that is responsive to CSO priorities and programs, and high transaction costs due to a lack of harmonized requirements by donors. With respect to harmonization, the evidence notes progress in a Swedish-led donor initiative to harmonize some conditions for CSOs. CSOs report that competitive funding modalities have resulted in more intensive competition among CSOs in both donor and developing countries, undermining interest in and space for constructive CSO collaboration and coordination.

Availability of institutional funding : While CSOs may be able to seek funding for projects related to their programmatic activities, the terms of donor finance often preclude (or seriously limit) support for core basic operational functions of the organization. This lack of support for these functions undermines the capacities and sustainability of CSOs, particularly those in developing countries, to maintain effective programming capacities to achieve impact over the medium and longer term.

Public awareness programming in donor countries : Building and sustaining a public constituency for development cooperation is often undermined by limited resources in donor support for public awareness programming in donor countries. There is often a lack of donor clarity about the purposes of its public awareness programming – is it communications about donor/CSO programs or is it to build citizen engagement and critical awareness of the challenges facing people living in poverty ?

Pressures for uncritical CSO alignment with government policies : CSOs in developing countries face increasing pressure to align with government development strategies for sector programming. Where strategies have not been developed through inclusive multi-stakeholder processes with different country stakeholders, CSOs may legitimately argue that their programming fills gaps in these strategies or speaks to the interests of populations whose interests have been marginalized. Similarly, without sustained access and dialogue between CSOs and government, practical collaboration and alignment with government is difficult.

Opportunities and resources for developing country policy dialogue : CSOs in developing countries are increasingly collaborating to influence their government’s development policies and hold governments to account at the national and local level. There is a need for better and more focused financial and evaluation instruments for donor support, including assessment of civil society engagement in government policy dialogue in complex developing country contexts.

Looking towards the Mexico High Level Meeting

The Mexican HLM intends not only to review progress on commitments, but also to make proposals for furthering these commitments, particularly where evidence suggests that progress is lacking. A number of bodies have made proposals for the HLM, including a core group on inclusive development from the GPEDC Steering Committee on inclusive development, the CPDE Working Group on Enabling Environment and the multi-stakeholder Task Team on CSO Development Effectiveness and Enabling Environment. Among these proposals for action for action :

All stakeholders will take actions to reverse the current trend of shrinking space for civil society organizations. This commitment includes accentuating resources and technical assistance to improve an enabling environment at the country level based on current human rights standards and ILO conventions.

All stakeholders will work together to develop framework for CSO enabling conditions at the country level, based on minimum standards that ensure democratic ownership of development processes, consistent with the existing universally adopted and accepted supervisory mechanisms on human rights, including for example on the freedom of association and assembly, freedom of expression, among other human rights and fundamental freedoms. This framework should safeguard CSO access to financial resources from domestic, foreign and international sources.

All stakeholders will work to establish multi-stakeholder mutual accountability platforms at the country level as mandated by the Busan Partnership for Effective Development Cooperation, aimed at ensuring democratic ownership in development cooperation practices and inclusive development partnerships. They will ensure that these mechanisms are institutionalized, inclusive and transparent.

Donors will collaborate with CSOs to put in place and implement donor support models for CSOs that are consistent with principles of aid and development effectiveness as they pertain to civil society, including a fully enabling environment for CSOs.

Resources

ACT Alliance/CIDSE, 2013. Strategies for enabling civil society organizations (CSOs). Forthcoming 2014. A publication based on a survey of CSOs in Malawi, Rwanda, Zimbabwe and Colombia.

Arutyunova, A and Cindy Clark 2013. Watering the Leaves, Starving the Roots : The Status of Financing for Women’s Rights Organizing and Gender Equality. Association of Women’s Rights in Development (AWID), accessed at http://www.awid.org/Library/Watering-the-Leaves-Starving-the-Roots

CIVICUS 2013a. State of Civil Society 2013 : Creating an enabling environment. Andrew Firmin, Ciana-Marie Pegus, Brian Tomlinson editors. June 2013, accessible online at http://socs.civicus.org/?page_id=4289. An annual report with contributions from more than 30 civil society organizations and actors from around the world.

CIVICUS 2013b. “Global Trends on Civil Society Restrictions : Mounting restrictions on civil society – the gap between rhetoric and reality,” A report co-authored by Tor Hodenfield and Ciana-Marie Pegus. October 2013, accessible at https://civicus.org/images/GlobalTrendsonCivilSocietyRestrictons2013.pdf.

Civil Society Partnership for Effective Development (CPDE), “An Enabling Environment for Civil Society Organizations : A Synthesis of evidence of progress since Busan,” submitted by CPDE to the monitoring process for the Global Partnership for Effective Development Cooperation (GPEDC)’s Indicator Two on CSO Enabling Environment, October 2013. This Synthesis of Evidence is based on case studies commissioned by the CPDE and the Reality of Aid for Cameroon, Malawi, Tanzania, Zambia, Zimbabwe, Kyrgyzstan, Bolivia, Honduras and Canada/United States.

International Center for Not-for-Profit Law (ICNL). “NGO Law Monitor,” accessible at http://www.icnl.org/research/monitor/index.html

International Center for Not-for-Profit Law (ICNL) 2013. “The Legal and Regulatory Framework for Civil Society : Global Trends in 2012-13”. Global Trends in NGO Law, Volume 4, Issue 2. Accessible at http://www.icnl.org/research/trends/.

International Trade Union Confederation (ITUC) Development Cooperation Network, 2012. Trade Unions’ Views on Working with Donor Governments in the Development Sector : A review of 18 donor governments’ support mechanisms. TUDCN Development Papers, 2012/4. Accessible at http://www.ituc-csi.org/IMG/pdf/tus_working_with_donors_full_study_en-2.pdf.


[1This article is based substantially on Civil Society Partnership for Effective Development (CPDE), “An Enabling Environment for Civil Society Organizations : A Synthesis of evidence of progress since Busan,” submitted by CPDE to the monitoring process for the Global Partnership for Effective Development Cooperation (GPEDC)’s Indicator Two on CSO Enabling Environment, October 2013. It is a summary of the main findings of this review of evidence. The author prepared the submission under contract with CPDE’s Working Group on CSO Enabling Environment.

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