While the last three years has witnessed an increasing recognition of the phenomenon of the closing space for civil society, less is known about which strategies are most effective in keeping civil society space open. What can civil society do to successfully push back on restrictive NGO laws? What kinds of strategies - both legal and otherwise - have proven effective? What role do community paralegals and lawyers have to play? Below, I share some suggestions from our own experience; I’m curious to hear how others have tackled this challenge.
Understandably legal remedies are often a first port of call, and have been used tactically for important wins. Greenpeace India’s challenge against the decision of the Indian authorities to prevent one of their staff travelling to address British parliamentarians, resulted in the 2015 Delhi High Court decision upholding the right to dissent. In Kenya, human rights groups, Muhuri and Haki Africa were able to use the courts to unfreeze their bank accounts and clear their names last year, after they were accused by the Kenyan government of being engaged in terrorist activities. In Hungary, courts found that the National Investigation Bureau had unlawfully carried out raids and seized property from human rights foundation, Ökotárs, after accusing it of funding the political opposition and embezzlement.
These wins are critical and highly symbolic; however legal challenges have to date been unable to reverse restrictive NGO laws. Other strategies are also required to enable civil society to act as early and rapidly to prevent damaging legislation being passed, and also to respond to the non-legal manifestations of the closing space, including smear attacks, and administrative and judicial harassment.
The Fund for Global Human Rights has sought with fellow funders and civil society actors, to identify the multiplicity of ways civil society can successfully push back. Successful strategies that have been used include:
Vigilance and awareness raising: While closing space might be a fervently discussed topic in funder and INGO circles, many grassroots activists often don’t have access to the information they need to understand how legal reforms or non-legal attacks unconnected to their core work might affect their ability to operate down the line. What this can mean in practice is that the early warnings signs of closing space are often only spotted by a handful of NGOs, and human rights groups rally to challenge proposed NGO laws too late in the day. Vigilance as a pre-requisite to awareness raising and mass mobilization of civil society is key. In Nigeria, diligent monitoring by lawyers of all bills being proposed in parliament, enabled them to spot provisions hidden in a bill on frivolous petitions intended to be used to crackdown on freedom of expression. The bill was stifled earlier this year through the efforts of social media activists who broadcast the potential impacts far and wide.
Addressing vulnerabilities through greater preparedness: Several governments have justified proposing or passing harsh NGO laws on the basis that NGOs are poorly run, corrupt and opaque. Funders and lawyers have a key role to play in supporting NGOs, particularly grassroots organizations, to ensure their financial and governance systems are compliant with local laws and international best practice. At the Fund for Global Human Rights we’ve worked with peer funders to brief activists in Mexico to navigate complex anti money laundering legislation; strengthen the organizational resilience of Moroccan women’s and migrant’s rights activists, and in India to use expert accountancy advice to strengthen the ability of groups to secure renewals of their permissions to receive foreign funding. Other kinds of preparedness also include strengthening relationships with local authorities and actors. Moroccan women’s rights organisations have been able to draw on years of experience of engaging and influencing the local police and authorities on violence against women issues, to successfully challenge the early signs of heavy handedness by the police.
Addressing isolation through building alliances, narratives and constituencies: One of the key lessons learned is that where human rights activists have pushed back against restrictive laws successfully it has been by joining forces with other civil society actors. In 2013, Kenyan activists blocked plans for the introduction of a 15% cap on the foreign funding, in alliance with development organisations who made a compelling business case for the contribution of civil society to health and education. In Nigeria, faith groups were successfully fielded on the frontline of the civil society response to a proposed NGO law in 2013. Building local constituencies is equally important, with human rights and development groups being accused of being disconnected from the priorities and needs of the communities they seek to serve. Para-legals have a particularly valuable role to play in translating strategic litigation or legal reform successes into concrete changes, but also addressing the holistic needs of communities by addressing not just access to justice but also the rights to education, health and housing and even access to basic utilities.
Recognising triggers and addressing root causes: Restrictive laws often seem to come out of nowhere, taking civil society by surprise. However, it is possible to spot the triggers that indicate a heightened risk of some form of clampdown on civil society. Elections have been identified as key moment of danger, as incumbent governments seek to silence any form of opposition or scrutiny. Civil society, including lawyers, should be prepared in the run up to elections to challenge fast track restrictive laws, or populist efforts to scapegoat NGOs. Government efforts to comply with global standards to combat terrorist financing and money laundering, have also triggered a tightening of NGO laws globally, with NGOs viewed as a weak link through which funding could be raised or passed to terrorist groups. India’s 2010 Foreign Contribution Regulation Act and Sierra Leone’s 2009 NGO Policy were both introduced after both countries were found to have fallen short in their compliance with global standards. Although largely unknown outside of the field of counter terrorism and human rights, all civil society groups should know when their government is next due to be evaluated by the Financial Action Taskforce on their performance of combatting terrorist financing.
Lawyers and para-legals have an enormously valuable role to play in taking forward these strategies in alliance with other civil society actors, as well as pioneering new approaches.