Civil society and the law

Matondo Mukulu, Guest Columnist

"Our sources of financing are well known. They are provided publicly every time we have an annual general meeting and we have one every year."

That is how the director of advocacy group, Jamaicans for Justice (JFJ), responded to the call made by Raymond Pryce, a member of parliament (MP), who posited that laws should be enacted to govern non-governmental organisations (NGOs) and civil-society groups (CSGs).

There are those who are suggesting that the call made by the first-time MP is linked to the public and unhealthy spat that is taking place between Minister of Youth Lisa Hanna and the not-for profit organisation. So the argument goes, Raymond is the attack dog in this not-too-progressive fight over a non-existent bone.

In most cases, those who are engaged in the discourse can identify a civil-society group when they see one. Nationally, groups such as the Independent Jamaica Council for Human Rights, JFJ, the Farquarson Institute, and the Jamaica Environment Trust come to mind. Internationally, we are familiar with groups such as the World Social Forum, Global Call for Action Against Poverty, Amnesty International and Greenpeace.

The World Bank has offered a definition of such groups. They "... refer to the wide array of non-governmental and not-for-profit organisations that have a presence in public life, expressing the interests and values of their members or others, based on ethical, cultural, political, scientific, religious or philanthropic considerations".

I think there is some merit in discussing Pryce's assertion. It seems to me most strange in today's world of cross-border influence that civil-society groups should think it is sufficient to suggest that, as they comply with the funding requirements of their donors and have an annual general meeting, the citizens, on whose behalf they say they speak, should not be agreeing with the MP.

The first and obvious flaw in such an anaemic argument is that the international donors are not accountable to any entity within Jamaican shores. For example, in the context of perhaps JFJ, they do receive funding from the European Commission, but as we all know, the commission cannot be made to answer any questions by our executive or our judicial system.

The commission has its own systems of accountability, which include the European Parliament, the European Anti-Fraud Office, and the Court of Auditors. These are institutions over which the Jamaican State has no influence, as they were created by the people of Europe. It is not sensible to have entities within our borders that are not regulated by the laws enacted by the people's representatives.

ROLE OF LEGISLATURE

What influences those things which become law in our country? In our system of government, the executive will promote in the legislature those policies that it had advanced in its election manifesto. Another influence on what becomes law is the existence of non-state actors in a country. In this regard the likes of the National Integrity Action, an unelected player in the process, comes to mind, which through its lobbying, advances causes or issues which require legislative enactment or reform.

A third likely determinant is, of course, events occurring, which are deemed deserving of an immediate legislative response. To this end, the Law Reform (Fraudulent Transactions) (Special Provisions) Act 2013 comes to mind.

No serious NGO or CSG can resist such a necessary regulatory framework as it is purporting to act in the interest of the citizens of our country. In the first instance, though, persons are invited to attend the public meetings of most NGOs. One suspects the real issue is that citizens, on whose behalf they act, are not involved in selecting the persons who sit on these boards, and even if we are privy to the general meetings, are we truly part of the democratic process?

Further, how do these organisations decide from which international entity they will seek and accept funding? These are matters with which we should be concerned, as the objectives of some international bodies can be far removed from our reality, and are at times out of sync with national objectives.

These are questions that are currently being asked by members of the public who see some of these groups as middle-class organisations advancing good causes, but which exist outside the scope of Jamaican oversight.

Another reason we should establish a statutory framework is the fact that globally, these entities are involved in development issues, and they have increased in number. Thus, the World Bank records that in 1990 there were 6,000 such groups, but by 2006, the numbers increased to 50,000, with increasingly large budgets such that by 2006 CSG/O had given more than US$15 billion in development assistance.

Consequently, it would appear that here in Jamaica, we cannot and should not sit by and do nothing, as this growth is bound to have an impact on our democracy and development.

MUZZLING?

The opposition leader, Andrew Holness, in a press release, or the one attributed to the usually careful leader, asserts that his party will resist any attempt by the Government to muzzle other voices. He is correct, and I would expect no less from the party of Bustamante and Seaga in pushing back against any attempt at stifling voices of opposition.

One argument which is usually deployed by those who oppose regulation of civil-society groups is that they are autonomous, and this is perhaps their strength. This is an argument that Jonathan Garton, in his book The Regulation of Organized Civil Society, carefully debunks.

There are instances where states have enacted legislation designed primarily to regulate these entities. In this regard, Kenya's Non-Governmental Organisation Coordination Act, and that of Uganda, come to mind. There are those who advance the view that such legislation, while necessary, does place barriers which are aimed at crippling, or even criminalising such organisations that heavily criticise the State.

In this regard, oftentimes, the Ethiopian experience comes to mind. The Ethiopian Proclamation on Charities and Societies (2008) imposes a fine of US$800, which can be combined with a prison term of up to five years, where a person manages an unregistered organisation.

Of course, I would be the first to concede that prospective groups (be they local or international) would be entitled to bring a judicial review claim or an appeal (if legislation confers such a right of appeal) against any decision to reject their application. However, the objective should not be to draft imprecise legislation which proves obstructive.

THE WAY FORWARD

These are real concerns in other countries, and there is a plethora of literature that informs us that even if entities are skilled enough to overcome the hurdles, they can face operational challenges created by poor or sinister laws.

In this regard, we are told of limitations on the range of activities that an entity can engage in or where, in the case of Ethiopia, the entity receives more than 10 per cent of its funding from foreign sources, they are regarded as a foreign NGO, and such NGOs are precluded from taking part in activities that are aimed at development and human-rights issues.

My view is that while these things are possible in Jamaica (as they have occurred in other states), they are highly improbable, as we have a richer history of democratic engagement and I cannot see such a bill (even admitting the flaws of the smoking ban regulations), getting past the Senate, not with the likes of a KD Knight, Imani Duncan and Kamina Johnson-Smith present. If such a bill ever makes it to Parliament, we should expect no less than a vigorous and well-informed debate filled with information and critical analysis.

Civil-society groups in Jamaica have operated above board, but I would be the first to admit that they lack a certain democratic legitimacy. For this reason, I would agree that they must be regulated, as they are operating in our name.

However, regulation must not be used as an excuse to restrict their activities. Any proposed bill should steer clear of any such restriction. The groups must ensure that their voices are heard at the parliamentary committee stage, not just at reactive press conferences, where little is ever achieved.

Matondo K. Mukulu is a practising public-law barrister and attorney-at-law. Email feedback to columns@gleanerjm.com and m.kmukulu@yahoo.co.uk.