This note is prepared in order to shed some light on some
of the provisions of the draft Charities and Societies Proclamation and how
they would affect EHRCO if the draft becomes a law in its present form. The
note has two parts. The first part deals with the provisions of the draft that
seem to threaten the very existence of EHRCO as a human rights NGO. The second
part enumerates those provisions that will have the effect of seriously
impairing the effective functioning of EHRCO. It has to be noted here that the
two categories of provisions are not mutually exclusive. The important thing is
that one or a combined application of several provisions can either threaten
EHRCO’s existence or seriously constrain its effective functioning.
1. Provisions that threaten the continued existence of
EHRCO
Art. 2(3) and 2(4)
The draft makes a distinction between ‘foreign’ and
‘Ethiopian’ Charities and Societies. For a charity or society to be considered
‘Ethiopian’ it should not draw more than 10% of its funding from foreign
sources, among other things. EHRCO is almost entirely dependent on foreign
funding to run its activities. Its annual income from membership fees is not
more than 17,000birr, which is not enough even to cover the salary of a junior
investigator let alone cover programme costs. Moreover, there is very little
possibility of raising funds through public collection, even if one gets
permission from the Agency, in the present atmosphere of fear of harassment and
other indirect forms of retribution. Therefore, this provision is one of the
most serious threats to EHRCO’s continued existence as it cannot raise the
necessary funds from local sources to carry out its primary function of human
rights monitoring, investigation and reporting at the national level, through
its twelve branch offices and head office. It cannot even carry out a limited
human rights monitoring and investigation work with a scaled down staff and
office facilities as the task requires speedy and physical presence to gather
fresh data and report the same promptly to alert the government and other
actors and avert further damage and suffering.
Even in the unlikely event that EHRCO succeeds in
registering as a ‘foreign’ charity, there is another obstacle. The draft
expressly bars ‘foreign’ NGOs from engaging in activities that are related to
the advancement of human rights, democracy, good governance and a range of
other rights-based advocacy activities. (See Art. 16(6)). This means that even
if we manage to register as a ‘foreign’ NGO we cannot continue working as a
human rights organization.
Art. 74(1) (e) Denial of registration
This provision refers to one of the range of reasons that
the Charities and Societies Agency (CSA) can refuse to register a charity or a
society that applies for registration. According to the sub article, the Agency
can refuse to register the applying NGO if it is a ‘foreign’ NGO as defined in Art. 2(4).
Therefore, even if EHRCO applies to register as a ‘foreign’ NGO, the Agency can
refuse to register it. As an unregistered NGO cannot operate legally (see Art.
82(1), EHRCO will simply cease to exist.
2. Provisions that seriously constrain EHRCO’s
effective functioning
Art. 16(6) Exclusion from human rights work
Charities and societies deemed to be “foreign” are barred
from engaging in human rights work. Given the possibility that EHRCO will
decide to register as a ‘foreign’ NGO due to funding requirements discussed
above, it cannot work on rights advocacy.
Art. 62(6) Federal status requirement
This provision requires NGOs to have a representation (in
the form of members) and presence in at least five regional states if their
character and nomenclature have a federal nature. Currently, EHRCO has twelve
branch offices in Addis Ababa
and Dire Dawa Administrations and six regions (with exception of Benishangul
Gumuz, Afar and Harari Regions). The provision lacks clarity as to how the
Agency would define the requirement of “representation of membership and work
place” for granting federal status. Nor is it clear if the Agency would grant
permission for the existing branches to continue. In addition, this provision
should also be seen in relation to Art. 79(1), which entitles the Agency to give
a ‘direction’ requiring the name of a charity or society to be changed or it
may decide to reject its name for any number of reasons. Thus EHRCO can be
directed by the Agency to change its name on the ground that it is similar to
another organization, even if that organization was formed after EHRCO.
Art. 62(7) Participation in electoral processes
This provision singles out ‘mass based organizations’ as
those that are allowed to actively participate in strengthening
‘democratization and election, particularly in the process of conducting
educational seminars on current affairs, understanding the platforms of
candidates, observing the electoral process and cooperating with electoral
organs’. This will effectively exclude EHRCO from engaging in civic and voter’
education as well as election monitoring and observation, which are some of its
major activities. This provision can also be used to bar EHRCO from such
processes even if it is registered as an Ethiopian charity or society because
it is mass-based organizations that appear to be favored for such activities.
Art. 68(1) Particulars of members
Officers of NGOs are required by this provision to keep
the particulars of members and furnish the same to the Agency upon request.
There is no limitation indicated as to the nature of the information required
to be furnished about the members. Given the possibility of such information
being used to monitor the civic engagements of citizens and given past
experiences of harassment of human rights defenders in times of political
crisis, this provision can deter individuals from seeking membership in human
rights NGOs like EHRCO and have the effect of pushing existing members to quit
their membership. As a membership organization, EHRCO may not be effective in
carrying out its activities without having a strong membership base. See also
Art. 68(2).
Art. 77 (1) Branch offices
This provision requires NGOs to get an approval from the
Agency before they open a branch office. This might be an obstacle for EHRCO’s
branch expansion plans as the Agency may not approve the opening of a branch
for any reason or even deny permission for the already existing branches. A
branch opened or operating without the prior approval of the Agency will be
deemed an unlawful charity or society (see Art. 77(3). It is also necessary to
get the prior approval of the Agency to change the name and place of business
of the organization and amend its rules or statutes (Art. 78 (1)). Failing to
comply with this requirement entails a criminal and administrative sanction
(Art. 78(2)). Art.80 (1) requires NGOs to get approval of the Agency to use any
flag, emblem, badge or any other symbol. So EHRCO also risks losing its logo if
disapproved by the Agency during re-registration.
The effect of all these and other requirements might not
be seen immediately but it will eventually. According to the draft, all
existing charities and societies (NGOs) have to re-register with the Agency
within one year after the coming into effect of the law. (Art. 124(2)). Thus
when we go to register with the Agency, we will be required to fulfill all the
above requirements, among others as a pre-condition for registration.
Art. 87 (3) Donations from anonymous sources
This provision prohibits NGOs from receiving anonymous donations.
In light of what is said in the draft about getting not more than 10% of
funding from external sources this is a serious obstacle. For EHRCO, it might
even deprive it of the small contributions it gets from individual donors both
in and outside of Ethiopia.
This also means that even if EHRCO succeeds in getting permission from the
Agency for public collection, it means that it will face serious practical
difficulties in ensuring that those who dare to contribute have to identify
themselves, including perhaps by divulging their addresses as well. Thus
teletones, appeals on the radio or newspapers for donations to be made through
bank deposits will be extremely difficult.
Art. 94 Power to institute inquiries
The Agency can launch an inquiry into the activities of an
NGO virtually for any reason and at any time. During such an inquiry, the
Agency can order officers and employees of the NGO to
a. furnish
accounts and statements in writing on any matter in question,
b. furnish
copies of documents relating to any matter in question
c. attend
at a specified time and place and give evidence or produce documents
This sweeping power of the Agency can definitely be
detrimental to EHRCO as EHRCO officers can be ordered to provide documents such
as those related to serious human rights violations under investigation,
written complaints of victims and families, testimonies of witnesses, etc.,
which are given in confidence to EHRCO. Art. 95, which speaks about the power
of the Agency to cause the production of documents and search records, can also
have the same negative effect on EHRCO’s work. Thus, photos, original documents
of evidence of violation, sound and video recordings can be taken away by the
Agency, and this creates the risk of witnesses and even victims who previously
suffered under the hands of government officials or law enforcement agencies
being exposed to retaliatory actions.
Art. 97 Power to enter premises, attend meetings…
The Agency, a sector administrator or any police officer
authorized by the Agency can at any time enter offices, places of meetings and
attend meetings of NGOs. This is a very intrusive provision and can seriously
undermine the independence and autonomy of any NGO including EHRCO. It will be
very difficult for EHRCO members and investigators to discuss issues of human
rights violations or make plans for investigation in the presence of police
officers.
Apart from the above, there are also other provisions such
as obligation to notify dates and places of meetings to the Agency (Art. 96),
earmarking 70% percent of budget for charitable purposes (Art. 73 (2) (d)), the
obligation to pay income tax from any form of revenues except membership fees
(Art.114 (3)) etc., which have the cumulative effect of overburdening the
administrative operations of EHRCO. The extensive powers vested in the Agency
are also a serious point of concern as they can easily be abused. The Agency
can appoint, suspend and remove leaders of NGOs (Art. 104). It can also cancel
NGOs for any one of the reasons listed under Art. 105. The fact that there is
very limited chance of the decisions of the Agency being brought up for
judicial review by an independent tribunal if EHRCO is registered as a
“foreign” organization. (only ‘Ethiopian’ NGOs can submit an appeal to court against
the decisions of the Agency/Minister, and even that is limited to errors in law
) Art. 118 (3)) makes the sweeping nature of the powers of the Agency even more
alarming. As any failure to comply with the orders of the Agency entails
criminal and administrative sanctions this will definitely have the effect of
making individuals refrain from volunteering to serve in committees, management
boards and even as employees of a human rights organization such as EHRCO.
Article 110-113: Public Collections, and Article 114:
Exemptions from Income Tax
In addition, apart from the bureaucratic hurdles faced to
secure the permission of the Agency to make public collections to raise the
necessary money for its running costs (see Articles 110-112), EHRCO also may find
its request for permission to conduct public collection rejected by the Agency
for any number of subjective reasons (see Art. 113) and face penalties if it
fails to comply with the stringent requirements of the provision. Seen in light
of the fact that there is no incentive, by way of tax relief, for business
persons to make donations for charitable purposes, EHRCO therefore will not be
in a position to raise sufficient funds from local sources to register and
operate as an Ethiopian human rights organization.
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