The National Assembly is currently considering new regulation of national and international NGOs active in South Sudan. The Non-Governmental Organizations Bill, 2013, now at third reading, would replace the New Sudan-era Non-Governmental Organizations Act, 2003. The draft bill can be read here: NGO Bill Third Reading 2013. It is clearly a work in progress: handwritten annotations still mark the text.
Some concern with the bill’s provisions has been expressed, similar to almost concurrent concerns regarding the media regulation bills. However, it was only after an international diplomatic push that formal public consultation of national NGOs was possible in the Assembly on November 29. Several NGOs have issued statements over the course of deliberations (South Sudan Law Society, Civicus, Human Rights Watch), and the International Centre for Not-for-Profit Law (ICNL) has published a detailed analysis of the bill.
I consider some of the bill’s legalities below. Yet there are fundamental questions to first pose. What sort of state does South Sudan want to be? Which freedoms should be protected or expanded? Is, or should there be, room for pluralism beyond government?
The answers so far tend towards a state that is more restrictive rather than more free, with a narrow conception of what civil society is and what it ought to do. Some might argue that challenging the freedoms of the media and of other non-state actors are necessary parts of state consolidation and justifiable assertions of sovereignty. But given South Sudan’s sad history, there is also the risk that what masquerades as progress is really regressive authoritarianism.
Some in government seem to think that the NGOs are out of control. Indeed, an earlier draft of the bill has a handwritten footnote by an unknown author, presumably a national legislator: “[South Sudan is] overwhelmed by NGOs.”
There are significant ambiguities in the bill. Does the law, for example, intend to regulate the churches or church-led organizations? Or could it be used to do so, even if not by initial intent? What about trade unions or employee associations? And cultural and sporting groups? Article 4 of the proposed law states that the regulatory body formed by the legislation would “be responsible for Non-Governmental, Civil Society, Humanitarian, and faith based organizations in the Republic of South Sudan and other related matters.” Article 23 of the Transitional Constitution, 2012, guarantees religious freedoms, including an unrestricted right “to establish and maintain appropriate faith-based, charitable or humanitarian institutions.” Article 25 establishes broad protections of freedom of assembly and association, “including the right to form or join…trade or professional unions,” although it also provides that their “formation and registration…shall be regulated by law as is necessary in a democratic society.”
Other sections of the bill are problematic on practical grounds. The South Sudanization of the NGO sector is a laudable goal, and NGOs shouldn’t employ foreigners when and where nationals exist to do the job, but how exactly does the government intend to ensure, as per section 32 (c), that the “total number of South Sudanese working with the organization shall not be less than 80 percent of the total staff of the organization.” Would this be measured constantly? Monthly? Annually? If the proportion of foreigners within an NGO temporarily changes due to South Sudanese staff leaving employment, does that NGO run the risk of penalty or even the suspension of its activities?
Last year, in response to an earlier draft of the bill, the Community Empowerment for Progress Organization (CEPO) unfavourably compared South Sudan’s pending NGO legislation with that of Ethiopia. But there are parallels even closer to home. It pains me to say the 2013 bill adopts a definition of voluntary and humanitarian activity even more restrictive than that in Sudan’s equivalent legislation, the Voluntary and Humanitarian Work (Organization) Act, 2006 (VHWO) (text underlined is my emphasis):
Voluntary and humanitarian activity: means any Voluntary activity carried out by an Organization individually or in collaboration with the Government or with any state of the Republic of South Sudan or with other Organizations in the field of welfare, Social Research, health, relief, agriculture, education, industry, the supplies of amenities or similar field including reconstruction rehabilitation and resettlement.
And in Sudan:
“voluntary and humanitarian work” means any non-profit voluntary humanitarian activity carried out by any national, or foreign voluntary , or charitable organization, registered in the Sudan, rendering humanitarian aid, relief, public services, human rights services, protection of the environment or enhancement of economic and social standards of the beneficiaries, and which renders voluntary humanitarian work in the said fields.
And the bill is even more vague than the Sudanese law when talking about national sovereignty:
6 Non-Governmental Organizations shall, in discharge of their duties, observe the following principles:
(f) Non-interference with the national policies.
5 Voluntary and humanitarian work organizations in the Sudan shall operate in accordance with the following principles:
(f) Non- interference of foreign voluntary organizations in the internal affairs of the Sudan, in such a way, as may affect the sovereignty of the country.
While Sudan’s Humanitarian Aid Commission (HAC) is largely a front for the security services, South Sudan makes the link with the security sector explicit. The proposed regulatory board, already dominated by government appointees, includes two members from the security sector: representatives from Internal Security and the Ministry of the Interior (section 9).
Another example where Khartoum’s law is less onerous can be found in Section 28, which deals with the offence of an organization working without registration. The VHWO Act only permits a fine and the confiscation of funds in the event an organization fails to register. Juba’s law carries heavier penalties, threatening the possibility of a fine, six months imprisonment, or both. The VHWO Act does however allow prosecution for other unspecified contraventions of the law, which South Sudan’s bill does not.
There are other clauses one could compare. I am not suggesting that Khartoum’s law would be a better model; given the extrajudicial nature of the Sudanese state, legal limitations are hardly relevant, anyway, and repression of non-governmental actors has not been inhibited by statute. But Juba can do better. If the bill is so bad that Khartoum’s text can appear superior, the legislators should be ashamed of their efforts. In Juba, there should be no need to remind anyone of the oppression of the old Sudanese state.