Effective Strategies for Keeping Closing Civil Society Spaces Open

Community Discussions
#1

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.

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#2

In India, the government has restricted international donor funding to NGOs by citing a stipulation of the Foreign Contributions Regulations Act (FCRA) that prohibits the use of foreign money for ‘political activities’. Last year, the government cancelled nearly 9,000 NGO licenses on this basis. There is no consensus on what defines ‘political activities’ but the government has especially targeted organizations that work on the environment and land rights. International donors are cautious of activities and organizations they fund in India today. This, of course, has constrained the overall NGO/development sector. One strategy NGOs have used is to increasingly engage Indian donors such as Corporate Social Responsibility foundations. Some key domestic foundations acknowledge the importance of development work and the potential impact on peoples’ lives if quality NGOs do not survive. That said, there has been little coordinated effort between NGOs to raise this issue publicly.

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#3

Picking up from the last sentence of the previous commentator…

A simple answer to the question of strategies to employ against government restrictions and repression of human rights work would be to build solidarities within civil societies to pushback against shrinking civic spaces. On the face of it, such strategies would include: sustained advocacy with government agencies; raising awareness of the role played by civil society organisations (CSOs) in a democracy; and when push comes to shove, taking the matter to the judiciary for its impartial intervention based on laws of the land and the country’s international human rights obligations. But as most often is the case, simple answers belie a web of complexities with divergent narratives and conflicting interests. Indeed, such is the case within the Indian civil society landscape. And therefore to comment on the successful strategies of CSOs to circumvent governmental restrictions, one must first identify its impediments; the why before the how.

It is naïve to assume that civil societies are a monolithic whole. Despite being clubbed together as the ‘third sector’, the spectrum is in fact a colour-wheel of organisations, different in their nature, scope and issues of concern. This is perhaps best highlighted in the case of successive Indian government’s clampdown on foreign-funding for CSOs. UN Special Rapporteurs have repeatedly presented serious indictments against the country’s draconian Foreign Contribution Regulation Act (FCRA) - which dictates foreign donations to a host of Indian entities - and its violation of the basic tenets of international human rights obligations, including the ICCPR. However, let alone the government, it has fallen on deaf ears of the broader civil society and the citizenry.

On one hand, the overwhelming discourse on FCRA has drawn a wedge between those who raise funds domestically and those who depend on international development agencies and foundations. It would’ve been easier to dull the lines had it been a purely procedural divide. However, there is a strong moral standing implicit on the side of the self-reliant, whose roots can be traced back more than a century to the country’s anti-colonial freedom struggle. Of course, in the independent era, the oft-repeated controversy theories of the ever-looming “foreign hand” has contributed to such suspicions. On the other hand, governments have shown discretion when tightening the financial noose and thereby splitting the sector through the middle; rights-based CSOs are facing the Goliathan wrath of the State, rather than NGOs working in areas of basic humanitarian service delivery which are equally funded by foreign entities. Another intersecting and dividing vector is the scornful dichotomy between “5 star activist” and the humble home-grown; these lines are usually drawn between research-advocacy and those working with communities at the grassroots level, respectively.

In this mosaicked and rather splintered scenario, the more pertinent question that needs to be raised is: how do we build solidarities between divergent strands of civil society in order to counter shrinking civic spaces? Because self-censorship and side-stepping the real criticisms may allow one to carry on in the short-run, but they certainly cannot be termed as successful strategies to counter governmental restrictions on the work of the civil society.

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#4

Reflecting on the non-legal strategies as well as prior preparedness to which Poonam has pointed in her comprehensive post, I would like to add to the methodologies to preserve/keep open civil society space for dissent and demand for accountability. One of the ways by which this can be done is by documenting the errors of the state systematically, be the domain environmental justice, criminal justice, dignity, legal empowerment, information rights or any other.

Continuous evidence building and a combination of selective disclosure of facts to concerned actors as well as public disclosure in the form of ‘open government data’ can send out the message to governments that their performance is under watch and over a period of time, can erode their non-compliance and non-conformism to rule of law. From the documentation of periodic meetings and minutes of significant monitoring committees, tracking commitments made in MoUs and compliance to court orders to the counting of deaths, killings, arrests, injuries, wrongful detentions and disappearances, enumeration maintains a record, a trace, openly and subversively. Above all, it creates ‘memory’ that can challenge official propaganda, false claims or secrecy.

We have seen in our work at CHRI that the mere task of enumeration and documentation, either through the use of right to information laws or targeted surveys fed back to the state institutions in the form of periodic performance reports has the power to open up closed institutions over a period of time and also constrain the negligence of the state.

This could be done on one’s own website and/or on civil society internet platforms. Here technology tools for creative commons could act as a facilitating environment for breaking secrecy and feeding public demand for accurate and dis-aggregated data on governance. This could help chip away at normative bureaucratisation, keep public informed and media alerted and amplified by creating more reliable sources of information vis-à-vis those of the government.

A more crafty way to dissuade government from silencing civil society voice would be for both donors and local partners to build a greater stake in governance and make the structural efficiency argument based on a mapping of the loss of efficiencies within the system and showing the cost to the state, to the tax payer, the poor and underprivileged wherever that is possible. The structural and financial deficiencies often lie in lack of appointments, in the incoherence of selection criteria and that between appointments and actual training of actors to perform their mandates, their supervision, reporting and monitoring systems, the uneven allocations of budget and personnel across institutions and departments. Here, civil society presents itself not as firefighter but as a think tank and oversight body vested in systemic change. I am sure we can identify some organisations in our own context who are engaged in this task of scrutinising the government’s budgets and appointments.

Another way would be to identify for each restriction the statutory provision and mechanism that would enable civil society or media to keep its foot in the door, so to say, through the provisions themselves. To give an illustration from prison reforms, and here I point to layers of restrictions beyond those concerning the FCRA, last year the Ministry of Home Affairs in India came up with an advisory on access to prisons which was actually about restrictions on civil society researchers and press to conduct interviews with prisoners. No pen and paper to be taken in, no cameras, no interviews without a deposit of a lakh of rupees and agreement on the scrutiny and censorship of your footage. In order to circumvent the restrictive advisory and to maintain civil society access to each jail it is more strategic to advocate widely for the civilian monitoring of prisons through Boards of Visitors mandated under the prison act and prison rules of every state as they include non-official visitors.

In a similar fashion, Poonam’s comments on the role of community paralegals can be taken forward to safeguard prisoners’ rights to have contact with the outside world. The legal aid bodies maintain easy access to prisons and community paralegals are their civilian appointees to visit jails under schemes intended to provide legal aid to persons in custody. If timely appointed and properly empowered, they could be the foot soldiers for a vigilant civil society willing to defend the openness of prisons and other such closed institutions.

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#5
  • Ashwin – you make an interesting observation on the corporate foundations committed to keeping open the space for development work. Underlying that is a deeper question about what constitutes development. Many of the activists we engage would argue that it is impossible to have genuine development without addressing human rights, structural inequality, environmental degradation, land displacement and issues such as transparency and accountability. As a result we’ve yet to find many corporate donors (with the odd exception) willing to champion the space for human rights in the way they might make the case for service delivery orientated development. I’d be interested to hear if you have examples of corporate foundations willing to also defend the space for human rights, or the strategies human rights groups could use to get corporate foundations on-side.
#6

Sana – you highlight the importance of a range of strategies that utilise right to information legislation and systematic documentation to not only push for accountability, but create alternative accounts to challenge government narratives. Your example of how civil society can make a compelling case by demonstrating its role in strengthening governance is one the Fund has seen used powerfully in Kenya, where devolved governance from the central to the county level, led to a growth of civil society actors holding local government to account on budgetary allocation and expenditure. It was this context of greater local accountability that enabled civil society groups to mobilize communities in their defence against central government proposals for a cap on foreign funding.

I also thought your account of how civil society can use loopholes to keep open the space even in the face of layers of bureaucracy and restrictions was fascinating. The example you gave of civilian monitoring of prisons is an important example of how critical human rights work can be sustained in almost closed or closed contexts.

#7

  • Ashwin and Tri - you both make important observations on the lack of a coordinated response by civil society groups and NGOs. A recent initiative in India that you might both find of interest is the formation of the Civil Society Organisations Support Cell – a coalition of Indian activists and organisations which seeks in a similar vein to the initiatives you mentioned to gather evidence of administrative violations under the Foreign Contributions Regulation Act and other laws, and build a common platform and unified voice in defence of organisations that are targeted and civil society space more generally.

  • The lack of solidarity and a cohesive response is something we’ve also witnessed in a number of other countries including Sierra Leone and Pakistan, where development groups have not viewed closing space as restricting their space or impact, and some have gone as far as endorsing government proposals for NGO restrictions with a view to preserving the operating space for their own work. However, given the inclusion of targets around rule of law, access to justice, transparency and good governance in the Sustainable Development Goals, there has never been a more critical moment for development and human rights actors to unite to defend an increasingly shared space. Responding to this challenge, the Fund and the Open Society Foundations has jointly commissioned the European Foundations Centre to produce a report looking at the impact of closing space on development and humanitarian actors. We hope the report, which will be out in October this year, will provide both evidence and arguments human rights groups can use to build broader civil society alliances.

#9

Poonam, Ashwin, Tri,

Even as we discuss strategies on keeping civil society spaces open, we must ask ourselves if we grasp the opportunities for those spaces when they present themselves.

In India significant sections of society have come on to the streets several times in the last few months - against the terrorisation of university youth and that of dalits and minorities. Today we are seeing a dalit uprising that is tearing at the limits of the power arrangement the government has imposed on civil society. We hope it shows that fearlessness is still possible and the moral right and collective will to disobey disrespectful laws have not been completely eroded by the fear of elimination.

With such developments, NGOs may wish to de-prioritise their legitimacy within the terms of perpetuation set by governments. (Perhaps some have already succeeded. I hope.) They could rethink their form, revisit the origin of their voluntarism, and take the risk of exercising rights against the state. But, will they? This might mean having to displease by entering the courtroom, walking out on to the streets, pouring out the truth through pen and paper or by a stealthy sting, a secret self. I remember the true story of a mass gravedigger in one of the garrison towns of Kashmir who challenged the role forced on him by the armed forces by merely continuing to do what he had always done - dig graves. Except for just a tweak. He unexpectedly memorized the number and faces of those he cremated. Unknown to the armed forces, the disappeared could be found by the bereaved.

Is challenging one’s own form an impossibility? And here I take forward Tri’s comment on self-censorship.

Civil society entities the world over have often reincarnated in order to be most effective to their constituencies or to resist silencing and co-option. Social movements have become political parties; political parties have initiated NGO outfits to reach civil society…

So, what can NGOs become when thwarted, when not just their existence but their moral agency and purpose are being undermined worldwide? What can they become in the face of not just the tyranny of constricting laws but the promise presented by such movements as the student agitation experienced some months ago in India and the dalit uprising of present times?

The thinking has to be epochal and not short term. It beckons a form that is more protean than what the NGO has shown us thus far.

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#10

We (Ann Condy, Claire Howard, Gil Long and colleagues) have worked on the issue of closing spaces for civil society on the Tracking Trends in Ethiopian Civil Society programme, for several years.

Ethiopia has perhaps the most draconian civil society legislation. The TECS project was a research project tracking the impact of the law once it was implemented.

We learned two main things: gathering the research evidence is crucial to being able to mount a coherent and reasoned response; but making that response requires civil society organisations to work together and they are generally very bad at doing this.

http://dagethiopia.org/new/working-groups/governance-technical/civil-society-sub-group

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