Restricting NGOs: From Pushback to Accommodation

Abstract

Civil society organizations (CSOs), also known as non-governmental organizations (NGOs) or nonprofits, are facing difficult times. Since the mid-2000s, scholars, policy makers, and activists have been sounding alarm bells over the growing tendency of governments around the globe to restrict the ability of civil society groups to form, operate, advocate for particular causes, receive and use resources, and network with other actors. Different labels have been ascribed to this phenomenon, including ‘shrinking civic space’, ‘closing civic space’, and ‘closing civil society space’ (Brechenmacher and Carothers, 2019; Buyse, 2018; Malena, 2015; van der Borgh and Terwindt, 2012). While these labels vary in their meaning, clarity, and usefulness, what does seem to be clear is that there has been a significant and negative global shift in state-civil society relations since the turn of the millennium, with organizations increasingly unable to operate as freely as they could in earlier periods. The concept of ‘civic space’ is wide, defined differently across publications and institutions. Brechenmacher and Carothers (2019) discuss the concept as that of states restricting space for independent civil society organizations. Buyse (2018, p. 269) proposes a wider view of civic space as the ‘practical room for action and maneuver for citizens and CSOs’. Malena (2015, p. 7) sees it as a composite measure of specific capabilities: ‘the freedom and means to speak, access information, associate, organize, and participate in public decision-making’. This view is also supported by the advocacy group CIVICUS, whose measure of civic space combines the freedoms of association, assembly, and expression.1.1 https://monitor.civicus.org/whatiscivicspace/ While the concept of ‘civic space’ provides a sense of a larger trend in the decline of democratic rights and freedoms, in this special issue we narrow in on how new, state-imposed legal restrictions and other forms of repression impact organizations specifically, and how these organizations have responded to these restrictions. Arguably, the crackdown on civil society is most visible in its effects on NGOs: formal, non-profit, non-governmental organizations. It is also NGOs like Human Rights Watch and Amnesty International that have been actively raising awareness of the trend in increased restrictions on organizational freedoms. We define non-governmental organizations as private, not for profit, non-state formal organizations that are not controlled or operated by governments or the market, but which may receive funding and other resources from governments and businesses. They are organized around a common purpose such as poverty alleviation at national, local, and/or international levels in order to provide services and/or address community problems through advocacy (see Dibie, 2008; Tarrow, 2001; Vakil, 1997). Because of their formal status and nature, with brick-and-mortar offices, bank accounts, statutes and articles of incorporation, and legal status, they are arguably more easily subject to legal attacks by states than are informal, grassroots organizations and nebulous social movements. In some countries, such as Russia and even democratic Israel, NGOs with strong foreign connections and financial dependencies have been subjected to pejorative, government-imposed labels like ‘foreign agent’ that these groups are in some cases forced to display in public, a label intentionally designed by government actors to discredit and delegitimize their existence. States are restricting NGOs in particular and civil society (the third sector beyond the state and the market) more broadly through legal and extra-legal means. Most visible, and more easily counted and categorized, are legal restrictions, particularly those imposed on foreign or international NGOs (organizations with a home office in one country and branch offices in third countries) and the foreign connections of both international and national NGOs. While governments have always regulated civil society organizations, a new trend has emerged wherein increasing numbers of states around the globe are adopting new, more restrictive regulations on NGO operations (Dupuy et al., 2016). These legal measures hamper the ability of organizations to receive and use foreign-sourced material resources such as funding, and limit their ability to work on issues perceived as politically sensitive (such as human rights). Emboldened by the weaponized use of law to constrain the presence and behavior of NGOs, states are also engaging in extra-legal harassment and intimidation of CSOs in general, both violent and non-violent. This phenomenon of increased state-imposed restrictions on CSOs has captured the attention of social science scholars, who have been studying the causes, dynamics, and consequences of this shift in state-society relations. As a result, the literature on the topic is growing, and so is our understanding of the reasons that states adopt restrictive CSO regulations (Bakke et al., 2019; Bromley et al., 2019; Christensen and Weinstein, 2013; Dupuy et al., 2016; Gilbert and Mohseni, 2018; Glasius et al., 2020; Howell et al., 2008); the types of restrictions states are adopting (Buyse, 2018; Musila, 2019; Rutzen, 2015); the dynamics of NGO restrictions in particular countries like Russia (Tysiachniouk et al., 2018), Kenya (Wood, 2016), Egypt (Brechenmacher, 2017) and Ethiopia (Dupuy et al., 2015), and the implications for the advancement of human rights and democratic values (Carothers, 2016; Smidt et al., 2020). Knowledge is also growing on the efforts of foreign aid donors and civil society organizations to respond, react, and push back against the clampdown (Bossuyt and Ronceray, 2020; ICNL, 2018; Kreienkamp, 2017). The contributions in this special issue add to this growing literature, examining trends in the clampdown on CSOs, how particular types of organizations are impacted (including the ways in which restrictions impact on organizational operations), how restrictions can change the balance between civil society actors with rival ideological perspectives, how restrictions can enable the rise of new civil society actors attacking existing CSOs, and how restrictions can shape popular attitudes and donor funds. Importantly, the contributions in this issue shed light on how organizations respond to restrictions and attempt to push back against states. Finally, several papers widen the analytical lens beyond the organization and examine the impact of closing civil society space on larger social, political, and economic outcomes. The remainder of this piece introduces the contributions of the different articles in this Special Issue, situating them in literature per theme that they most significantly contribute to, and pointing to areas for further research on such themes. One of the basic questions within the academic and policy literatures on closing civil society space has been the nature of the clampdown, in terms of trends and patterns in the clampdown. Several international institutions and policy-oriented organizations have been monitoring the global rise and spread of anti-CSO regulations in particular and the closing of civic space more generally, including CIVICUS, the UN Special Rapporteur on the rights to freedom of peaceful assembly and association, Human Rights Watch, Amnesty International, the International Center for Not-for-Profit Law (ICNL), the Carnegie Endowment for International Peace, Freedom House, the Center for Strategic Studies, and a number of foreign aid donors. To date, research on this topic has focused on answering questions like: Where is the clampdown occurring, and at what points in time? What types of measures are being adopted, and by which states? What kind of activities and behaviors are restricted and why? Which types of organizations are impacted? Without good answers to these questions, it is difficult to know the severity and scope of the clampdown, whether and how restrictions may diffuse over space and time, and whether and how restrictions are fundamentally reshaping state-society relations. Amnesty International (2019) finds that as of 2019, at least 50 countries in the world have new laws in place to constrain the operations of CSOs and the individuals who support them. Musila (2019) finds that 12 African countries have adopted anti-CSO laws and six more have pending legislation. Interestingly, anti-CSO measures have been rejected by legal institutions in a further six African countries, a point we return to below. Bromley et al. (2019) find that over 60 countries had adopted laws restricting the ability of CSOs to receive foreign funding by the year 2015. In 2018, CIVUCUS reported that civil society was under attack in 111 countries, measuring this using their more expansive notion of civic space. Ultimately, trends in the increased imposition of legal restrictions on CSOs are following a larger pattern in the decade-long global decline in associational and organizational freedoms and democracy over all, as reported by Freedom House (2020). In some countries, anti-CSO regulations prohibit or constrain organizations from working on issues perceived by ruling regimes to be political – and thus sensitive – in nature. These issues include human rights, equality, gender and sexuality, anti-corruption, good governance, and elections. Legal restrictions negatively affect the rights-based organizations working on them (Buyse, 2018). Dupuy et al. (2015) found that in the case of Ethiopia, the draconian Charities and Societies Proclamation of 2009 led to the demise of the country’s independent human rights organizations, while Brechenmacher (2017) found that new legal measures in Egypt helped to crush groups working on democracy promotion. Beyond a handful of case studies, however, we lack a more systematic understanding of the ways in which restrictive CSO laws impact on particular types of organizations, including service delivery groups and groups focused on specific issues like the environment (Matejova et al., 2018). Several of the contributions in this special issue provide new insights into questions on trends and patterns in restrictions on CSOs, as well as what types of NGOs are impacted and how. Using updated data from Dupuy et al. (2016), Fransen et al. find that at least 90 countries worldwide adopted restrictive CSO regulations between 1990 and 2018. These restrictions cover entry in to the sector, operations, issue areas of work, reporting, and the receipt and use of foreign-sourced funding. The authors further examine the effects of new legal as well as extra-legal clampdowns on transnational advocacy. Transnational collaborations among CSOs have proved particularly instrumental in facilitating the growth of CSOs and their political clout as they have pushed for the recognition and spread of various types of human rights in countries around the globe. Investigating these effects on transnationally-linked organizations in Zambia and Bangladesh and on their organizational connections in the Global North, Fransen and his co-authors find that while transnational advocacy work does continue even after new restrictive regulations are adopted, they are changed in significant ways: organizations change their strategies, adjust they way in which they work, move away from explicit advocacy work, temper their transnational connections, and even disband when restrictions prohibit their activities. Roggeband and Krizsan’s contribution examines the impact of anti-CSO restrictions on women’s rights activism. These authors argue that the closure of civil society space is targeted specifically at rights-promoting groups and organizations that are perceived as being anti-government (with those two often going hand in hand). Governments instrumentally use CSOs to strategically prop up state power and target those that challenge that power, in effect fundamentally reorganizing civic space. This has been very apparent in Eastern Europe, where the governments of Hungary, Poland, and Croatia have been actively disempowering women’s rights and gender equality organizations by denying them access to funding, excluding them from policy processes, and using negative discourses to frame their work. Furthering Roggeband and Krizsan’s look at how states can enable the rise of conservative civil society groups as part of a more general clampdown on civic space, Pousadela and Perera look at how civil society groups in the form of anti-rights groups or can themselves also contribute to restricting civil society actors. Anti-rights groups are varied, and include paramilitary forces, private corporate security entities, criminal gangs, and religious fundamentalist groups. Rights-promoting civil society groups increasingly find themselves under attack by these anti-rights groups, who are in some cases even supported by states to clamp down on pro-rights groups. While the argument that ‘bad civil society’ actors (Chambers and Kopstein, 2001) exist is well known – and some of these groups have even acquired political power (see Berman, 1997 on the rise of the Nazis, and Sullivan, 2007 on the Taliban in Afghanistan) – their ability to shape and curtail pro-rights groups and spaces with the active support of the state has not been well-documented to date. While states have always regulated and shaped civic space, even in democratic states, this regulatory power is not necessarily exercised for pro-liberal outcomes. One of the primary ways that states have been restricting CSOs is by constraining their ability to access and use foreign-sourced funds. This is not coincidental, as funding from bilateral donors and multilateral financial institutions directly contributed to the growth of a liberal civil society in low- and middle-income countries, especially after the end of the Cold War. Foreign aid donors have traditionally viewed civil society – and CSOs in particular – as forces for positive change, alternatives to failed states, and the foot soldiers and catalysts of democracy and human rights. As a result of the social and political influence that foreign funding has yielded, many states have chosen to ‘strike back’ against foreign-supported civil society organizations through legal channels (Dupuy et al., 2016). If the aim of foreign funding restrictions is to reduce such inflows, then CSO-restricting governments have been granted their wish. The increase in legal constraints on foreign funding of civil society has negatively impacted on donor funds to civil society; Dupuy and Prakash (2017) find that countries with foreign fund restrictions in place experience a 32% decline in bilateral aid flows in the years after enacting such a measure. In an unpublished paper, Chaudhry and Heiss (2018) find an even greater impact on aid flows, with 45% less foreign aid channeled towards countries that restrict CSOs’ ability to engage in advocacy. Interestingly, these authors also find that donors channel their funds in countries with such legislation away from politically sensitive issues and more often through domestic rather than international CSOs. Why, exactly, donors reduce their aid to restriction-adopting countries is not well understood and merits further investigation, as does the impact of such laws on other types of global financial flows like remittances and foreign direct investment. One of the contributions to this special issue goes beyond the concern with the impact on public funding flows in the form of foreign aid allocations to civil society and looks instead at the effects of restrictive CSO legislation on individual charitable giving to international NGOs. Using a conjoint survey experiment, Chaudhry, Dotson, and Heiss find that social trust among individual charitable givers is key to understanding patterns of giving to organizations that face criticism and crackdown abroad. Specifically, donors with high levels of social trust are likely to donate to human rights INGOs that have friendly relationships with the governments of the countries in which they operate, and are less likely to support INGOs that have more hostile relations with host governments. Donors with low levels of social trust are more likely to do the opposite and support INGOs with difficult relations with host governments. These results highlight the understudied role that funders’ perceptions (including those of governments) of funding destinations can play in shaping which destinations receive what amounts of money, in what form, and from whom. Chaudhry, Dotson, and Heiss point to a larger implication of CSO restrictions: if both government donors as well as individual charitable donors reduce their giving to INGOs working in difficult countries, this will reduce the goods and services that CSOs provide in aid-receiving contexts. Hossain and Oosterom’s contribution to this issue takes up the important question of the wider consequences of CSO restrictions, a topic that has also not been widely studied. This neglect is for a number of reasons: first is the fact that the rise in, and spread of, anti-CSO legislation is a fairly recent phenomenon and the implementation of regulations uneven. Second, restrictive CSO regulations may themselves have only limited or no independent causal impact on social, political, and economic outcomes; rather, their effects might be the result of interactions with other legal restrictions and social, political, and economic variables. But we should not lose sight of the fact that we do know these restrictions are having some wider impacts. The few studies that have looked into the effects of restrictive CSO legislation beyond just the effects on organizations tell us that such restrictions can reduce citizens’ political participation in CSO-restricting countries (Dupuy and Prakash, 2020) and enable government human rights abuses by reducing the ability of CSOs to monitor and expose of such behavior (Smidt et al., 2020). Beyond that, many unanswered questions remain about how the rise of anti-CSO legislation impacts on outcomes such as the expression of political opposition (including political parties, protests, and social movements), citizen attitudes towards and engagement with civil society, the delivery of public services by CSOs, and the impact of these restrictions on other democratic freedoms and rights. Hossain and Oosterom’s contribution examines how anti-CSO restrictions and the closure of civic space more broadly are likely to shape the achievement of key development outcomes (specifically, poverty alleviation and hunger) in Ethiopia, Zimbabwe, Pakistan, and Brazil. They argue that such restrictions will limit the involvement of civil society organizations in policy processes, hamper organizations’ ability to monitor and critique policies, and reduce civil society’s role in service delivery. This will likely retard progress in achieving poverty alleviation and reducing hunger, particularly for marginalized groups in society. Roggeband and Krizsan’s contribution suggests that the larger socio-political effect of legal and extra-legal repression of civil society is the reconfiguration of civil society itself, and of state-society relations. When governments support some civil society groups, and actively deny other groups who are deemed to be in opposition to certain values and ideologies the ability to access to resources and to exert political influence, certain voices are empowered at the expense of others. States often have the upper hand when it comes to the shaping the power and influence of formal civil society organizations, since it is states that control law making. This allows states to shape political discourse and in turn mass support for regimes. Recent studies as well as the contributions to this Issue also indicate how more insight is needed on the relationship between anti-CSO restrictions and media. Selvik’s piece shows the important link between restricting CSO freedom to organize and act on the one hand and the freedom of press on the other. CIVICUS reports indicate how very often journalists are among the main targets for repression in countries with CSO restrictions in place. Other reports, in turn, indicate how media organizations can, willingly or unwillingly, enhance government efforts to constrain CSO freedom (Fransen et al., 2019; Perera et al., 2019). Ultimately, restrictive CSO regulations have demonstrated how vulnerable and even ephemeral the notion of an independent civil society is. While the rise in restrictive CSO regulations do expose the vulnerability of CSOs to state power, restrictive CSO regulations have not been proposed or adopted without a provoking a reaction from CSOs as well as foreign aid donors (Baldus et al., 2017; Brechenmacher and Carothers, 2019; ICNL, 2018; Kreienkamp, 2017). Civil society organizations have responded to and even resisted these regulations in various ways, as several contributions to this issue demonstrate. The question of how organizations respond and adapt to their regulatory environment is a growing area of inquiry (Bloodgood and Tremblay-Boire, 2011; Bloodgood et al., 2017). In early work on CSO adaption to legislative environments in Africa, Bratton (1989) argues that CSOs adopt strategies of their own to respond to government regulation and maintain their autonomy: they avoid or work around governments, engage in selective collaboration with the government, or engage in policy advocacy. CSOs operating in sensitive issue areas such as human rights are likely to adopt the first strategy, while smaller, local-level and community-based CSOs are more likely to engage in selective collaboration with the government, if they engage at all. Bloodgood and Tremblay-Boire (2010) outline five types of CSO response to counterterrorism regulations in OECD countries: hiding, shirking, vocal opposition, participating, and litigating. Civil society organizations' response and reaction to restrictive regulations starts right from the time such legislation is proposed. The contribution by Fransen et al. find that once repressive regulations are imposed, CSOs involved in transnational advocacy adopt a number of different strategies, including disbanding, continuing on informally or choosing to operate only domestically, circumventing regulations by registering as a different type of organization, giving up transnational advocacy, and switching to focus on service delivery activities to escape restrictions and scrutiny. Transnational collaboration and advocacy are made more difficult and even secretive, and its targets, issue, and language change. But the news is not all bad. In some cases, civil society is successful in pressuring states not to adopt new anti-CSO legislation at all, as Berger-Kern et al. show in their contribution. In Kenya and Kyrgyzstan, a broad alliance of local civil society organizations used the combination of targeted lobbying and a public advocacy and awareness raising campaign to persuade governments to drop proposed regulations. Rakner’s contribution shows how civil society can successfully mobilize against government threats to undermine basic democratic rules. In Benin, Malawi, Senegal, and Zambia, civil society groups mobilized popular protests that successfully pushed back against government attempts at constitutional change aimed at prolonging ruling parties’ hold on power. And Selvik’s contribution demonstrates the power of civil society to enhance basic democratic freedoms. In Ghana – one of Africa’s most robust democracies – civil society lobbied the government for over twenty years to adopt a right to information law, strategically employing the media in ways that finally pushed the government to adopt this law in 2019. An additional question about the impacts of restrictive CSO legislation is how these regulations interact with a fundamental function of civil society: the ability of organizations and social movements to facilitate collective action through active campaigning and advocacy work to promote particular causes, and to mobilize popular protests and political opposition. Several contributions in this issue highlight the agency of civil society groups in this respect. In Iran, Honari and Muis find that psychological factors help to explain why individuals increased their support of, and participation in, the Green Movement supporters in the aftermath of the 2013 elections in Iran, a country where most civil liberties (including the freedoms of association, assembly, and expression) are heavily repressed by the state. Honari’s research, but also the pieces by Berger-Kern et al., Pousadela and Perera, and Fransen et al., raise the question of how to make sense of the relationship between legal restrictions and repression in broader terms – including extra-legal repressive acts. Do such acts proliferate once legal restrictions are in place, or are they more often used by governments as an alternative tactic to legal restrictions on civil society? This is also an area where further research is most welcome. In 2020, a new window of opportunity opened for states to repress civil society in the form of the global COVID-19 pandemic. Since early 2020, governments around the world have been using the worldwide spread of the disease as a renewed excuse to clamp down on civil society groups – a trend that many of the watchdog groups listed at the beginning of this review have been actively monitoring. The International Center for Not-for-Profit Law has been monitoring government responses to the COVID-19 pandemic and finds that 44 countries have enacted measures that affect freedom of expression and 124 countries have enacted measure that affect freedom of assembly, often through the use of emergency decrees.2.2 https://www.icnl.org/covid19tracker/?location=&issue=9&date=&type= Still other countries are restricting the right to association. Government-mandated lockdowns, quarantines, and prohibitions on collective gatherings have prevented civil society groups from meeting, protesting, expressing political opposition and dissent, and engaging in transnational advocacy activities (Brechenmacher and Carothers, 2020). Contributors to this special issue as well as other researchers have also been involved in tracking government repression of civil society during the COVID-19 pandemic (Barendsen et al., 2020; Bethke and Wolff, 2020; Hayes and Joshi, 2020).3.3 See also https://www.istr.org/blogpost/1851131/Research-Networking-Covid-19-and-Third-Sector Much more research will be required in the next few years to fully understand how COVID-19 is shaping legal and extra-legal repression of civil society, and how civil society is reacting, responding, and pushing back against such repression. Kendra Dupuy is a researcher affiliated with Chr. Michelsen Institute (CMI) in Bergen, Norway, and the Peace Research Institute Oslo (PRIO). She researches civil society, development, and environmental and natural resource management. She holds a PhD in political science from the University of Washington. Luc Fransen is Associate Professor of International Relations at the University of Amsterdam, and co-editor of the European Journal of International Relations. His fields of interest include Corporate Responsibility, transnational labor governance, transnational sustainability governance, and the transnational organization of civil society. Aseem Prakash is a Professor of Political Science, the Walker Family Professor for the College of Arts and Sciences, and the Founding Director of the Center for Environmental Politics at University of Washington. He is also an International Research Fellow at the Center for Corporate Reputation, University of Oxford.