By Shelagh Gastrow, Founder and former Executive Director of Inyathelo.
Civil society organisations in this country are aware that government is preparing a new legal framework for non-profit organisations, but last year it seemed to be “parked” for reconsideration. The question to be asked is whether government is thinking about aligning its new NPO legislation with that of Russia. What does this entail, and should we be worried?
Flying back from Johannesburg to Cape Town on Friday, faced with a boring two-hour flight, I whipped up one of those free New Age newspapers that you can find at the airport. Aware that it is usually the mouthpiece of the government, I was still quite startled to read the centre-page analysis by Pinky Khoabane entitled “Sinister agenda of some NGOs needs closer scrutiny.”
I read finely the wisdom therein, in which she claimed as fact that court challenges against the government were liberal elements using NGOs and untransformed courts to rewrite policy; that the courts are interfering in the functions of the executive and that somehow, civil society organisations that receive western and white money means that the role and real agenda of NGOs should be questioned. I began to feel that crawling-under-the-skin sensation that there was developing, in government circles, a sinister plot against civil society organisations. This might sound conspiratorial, but understanding that the analysis in the article was not captured from thin air, but came from the conversations and readings to which Pinky Khoabane was privy, I actually took the ideas within the article very seriously. There are many aspects of the article with which I could take issue, but I would like to focus on her recommendation that South Africa should follow Russia in regulating what she calls NGOs. In South Africa they are generally known as civil society organisations and the majority emerge from within the citizenry of the country.
Civil society organisations in this country are aware that government is preparing a new legal framework for non-profit organisations, but last year it seemed to be “parked” for reconsideration. The question to be asked is whether government is thinking about aligning its new NPO legislation with that of Russia – certainly there is talk in the corridors of power that this is something that should be done. So let us look at what this entails by exploring Russia’s legislation.
In 2006 Russia passed what is known as the Russian NCO Law. In Russia non-profits or civil society organisations are called Non-Commercial Organisations (NCOs). This law introduced onerous, costly and difficult reporting requirements for NCOs, accompanied by strict penalties for non-compliance as well as providing authorities with wide ranging powers to audit the activities of NCOs. The legislation alarmed many activists, as it allowed for very general interpretation and provided room for government officials to use their own discretion when targeting enforcement.
In 2012 further legislation was enforced, known as the “Foreign Agent Law”. The words “foreign agent” continue to be associated with cold war frameworks, and it is a sad reflection of our own leadership that this concept continues to fester within South African political circles, furthering the atmosphere of paranoia, conspiracy and plots that keep emerging from its discourse. Many of us in South Africa have heard this term, particularly popularised by our own Julius Malema when admonishing a BBC correspondent who attended one of his press conferences as a “bloody agent”.
This Russian law, which was enacted to control and regulate civil society, requires any NCO to register with the Ministry of Justice before receiving any foreign financial support, if they intend to conduct so-called political activity. Advocacy is often viewed as political activity and the legislation allows for unscheduled state audits and interference with the business of public associations and NCOs. The first organisation forced to register as a foreign agent was the Centre for Social Policy and Gender Studies in November 2013. Foreign or international grantmakers have to register on a list that is approved by the Russian government and it is clear that inclusion on this list is extremely limited.
Along with the Foreign Agent Law, other legislation has been passed to further hound independent civil society groups, including massive increases to fines for violation of rules relating to participation in, and organisation of public protests. In addition, defamation became a criminal offence, rather than a civil issue, with mandatory fines on media. At the same time laws were introduced relating to information, information technology and the protection of information which increased internet censorship and limited freedom of expression. Later in 2012, the law on amendments to the criminal code expanded the definition of treason, making it so vague that any critic could be considered a traitor.
In July 2014, amendments to legislation on public actions were passed, which affected freedom of assembly. In Russia, there are now criminal punishments for violations of public order during organised rallies and administrative penalties for violating the rules of assembly.
A few months later the clampdown continued, with changes to the Federal Law on Mass Media. This meant that a foreign state, an international organisation, a foreign entity, a Russian legal entity with foreign participation, a foreign citizen, a stateless person, or a citizen of Russia who has citizenship of another country cannot establish a media company, nor serve as a media outlet or broadcaster. They cannot own, manage or control in any way, more than 20% of the shares or capital of a media company.
Many organisations in Russia have been raided by the authorities and their documents seized. Prominent international organisations affected include Amnesty International, Human Rights Watch and Transparency International. However, these are the tip of the iceberg and all sorts of organisations have been deemed foreign agents, including the GOLOS Association which is an independent election monitoring organisation; the LGBT film festival, Side by Side, which was fined for producing a pamphlet entitled “The International LGBT movement from Local Practices to Global Politics”; the Yaroslavl Regional Hunters and Fishermen Society; the Committee of the Soldiers Mothers of Russia; the Press Development Institute and even the Assistance to Cystic Fibrosis Patients.
So to get back to Pinky Khoabane. Aren’t we lucky that the Treatment Action Campaign, which received international funds and took to the streets and went to court, did its job? I wonder how many of Pinky’s friends, relatives and acquaintances are on life-saving HIV treatment thanks to the TAC’s efforts and contrary to the wisdom of the then democratically elected ANC government.
Her assertion that some organisations are foreign agents is ironic, as the biggest foreign agent would then be our own government that has accepted billions of dollars in foreign aid from a wide range of western countries through bilateral agreements. (And, of course, the ruling party, whose own finances come from the sources we officially know nothing about. - Ed) In comparison, the amounts invested in civil society organisations by the same sources pale into insignificance.
Do we really want to follow the Russian example, Pinky Khoabane? Oh, it all reminds me of something which I am old enough to remember – it was called oppression, and we lived with it from 1948-94. Well, Pinky Khoabane thinks this would be a good thing. What do you think?