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Open Letter
5 June 2023
Mr. Clément Nyaletsossi Voule
United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association
Ms. Irene Khan
United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression
Ms. Fionnuala Ní Aoláin
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism
Ms. Mary Lawlor
United Nations Special Rapporteur on the Situation of Human Rights Defenders
Dear Madams and Sirs,
RE: ANGOLAN NON-GOVERNMENTAL ORGANISATIONS BILL
Friends of Angola (FOA) is an advocacy organization based in Washington D.C. with special consultative status at the United Nations Economic and Social Council (ECOSOC) that empowers and supports Angolan civil society in the promotion of democracy, human rights, transparency, and good governance.
We write to inform you that on 25 May 2023, the draft Law of Non-Governmental Organisations Bill was approved in general terms by the National Assembly of Angola. Angolan CSOs were not consulted in the drafting of this Bill. The Bill is currently before the specialty committee, and then it will go back for final approval in the National Assembly, before being referred to the President to sign into law.
The law is being introduced under the auspices of compliance with Financial Action Task Force (FATF) Recommendation 8 and addressing terrorism and money-laundering risks. However, in its current form, the law fails to address these risks and instead imposes arbitrarily harsh regulatory, supervisory, and disciplinary measures that will greatly restrict the independence and autonomy of Angolan civil society organisations (CSOs).
We write to request an urgent virtual meeting for Angolan CSOs to raise their concerns regarding the Bill. We also request that an urgent appeal be sent to the President of Angola urging him not to sign this Bill into law, on the basis that it violates international human rights standards.
Background
Angolan Non-Governmental Organisations (NGOs) are currently regulated under the Law of Private Associations no. 6/12 which protects the right to constitute associations freely and independently, within the confines of the law. Section 48 of the Angolan Constitution further protects citizens’ rights: to freely associate without prior administrative authorisation; not to be obliged or coerced into joining any association; for associations to pursue their purposes freely and without interference from public authorities; and for associations not to be dissolved or have their activities suspended except in terms of the law.
Presidential Decree no. 74/15 for the Regulation of Non-Governmental Organisations, was signed into law in 2015, but was subsequently declared null and void by the Constitutional Court as it had been passed unconstitutionally, by Presidential Decree. The draft Law of Non-Governmental Organisations that is currently before the Angolan Parliament is substantively the same as Presidential Decree no. 74/15. However, the law is now being passed through Parliament, not by decree.
Provisions of Concern
As with its predecessor, Presidential Decree no. 74/15, the draft Bill contains extremely concerning provisions that violate international human rights laws standards, including the following: -
· The Bill is discriminatory as it imposes a stricter regulatory regime upon NGOs, than other Private Associations that are regulated in terms of the Law of Private Associations no. 6/12. It imposes more restrictive money-laundering and terrorism measures on NGOs, stigmatising NGOs as vessels of criminal activity, even though the NGO sector poses lower risks of money-laundering and terrorism abuse than other sectors, and there are existing laws to regulate any potential abuse. The existing laws already require Angolan NGOs to report every six months and annually, to be audited, to pay taxes, and to conduct financial transactions through the regulated banking system, and the laws provide for investigation and prosecution of terrorism and money-laundering offences.
· The Bill introduces vague and excessive powers to the ‘Body responsible for monitoring NGO activities’ (the NGO Supervisory Body) to monitor, supervise and dissolve NGOs without following judicial processes (Chapter II). This affects the privacy, security, and independence of NGOs, and allows for excessive state interference and control of the sector.
· NGOs will be subjected to inspection and monitoring (Article 7(h)), and will be required to report their means of financing to the NGO Supervisory Body (Article 14). NGOs will also be obliged to provide excessive and undefined amounts of information to the Supervisory Body, in the form of interim, monthly, quarterly, half-yearly and annual reports (Article 19 (f)). In their reports, NGOs will be required to report on the origin of their funds/financial resources, to list their acquisition of imported and internally acquired goods, to provide yearly action plans, and to share evaluations of the partnerships they have established (Article 19 (2)). This amounts to over-regulation and state interference, that will affect NGOs’ financial and operational independence and effectiveness.
· Notably, the Bill will greatly restrict NGOs’ ability to make autonomous decisions regarding acquisition and disposal of assets, restricting its ability to operate in a cost-effective manner. It will oblige NGOs to only acquire goods and equipment on the national market (Article 19); to only dispose of assets from donations from abroad with prior authorization from the Public Finance ministry and the NGO Supervisory Body (Article 30(2)); and, not to re-export or resell goods and equipment acquired or imported using funds ‘donated to the Angolan people’, but to deliver these to the community through the NGO Supervisory Body (Article 30(3)).
· The Bill removes the separation between independent NGO activities and the role of the Executive to provide social services. NGOs will be required to: implement projects ‘complementary to the actions of the Executive’ (Article 7(c)-(d)); to define their activities based on ‘the social and economic policy defined by the Executive’ (Article 12); and to participate in the implementation of economic and social programs approved by the Executive (Article 19(1)(c)). This amounts to executive overreach, and compulsory association of NGOs with executive projects, restricting NGOs’ autonomy and independence.
· The Bill also imposes vague and undefined cultural norm obligations –for NGOs ‘to promote, preserve and respect the traditional customs and habits of the environment in which [they] operate[..]’ (Article 19)– which obligations may be enforced in a manner that violates the rights of marginalised communities.
· The proposed law also has vague provisions that could result in violation of freedom of association and expression, censorship, and discrimination against government critics and perceived dissidents. It prohibits funding from organizations or persons ‘involved in activities which call into question constitutionally enshrined interests’ (Article 14 (2)(j)) and requires NGOs to refrain from ‘engaging in subversive acts or acts that could be perceived as such’ (Article 19(1)(b)). These provisions may result in self-censorship by NGOs, and prevent them establishing partnerships with international organizations that are not expressly aligned with government policy, limiting freedom of thought and association.
· The registration process proposed in the Bill is also overly bureaucratic, involving multiple government offices, with the power for registrations to be implicitly refused where documents are not presented within a short 10-day period (Article 9). The process for registration should be a simple notification process.
· Finally, the Bill allows for NGOs to be arbitrarily suspended and dissolved by the NGO Supervisory Body, without any judicial process. While the Supervisory Body’s decisions may be appealed, the process is not prescribed in the Bill (Article 32(6)).
· NGOs may be suspended on vague grounds such as failure to comply with their prescribed ‘duties’ (Article 19); or committing acts ‘harmful to the sovereignty, security and integrity of the Republic of Angola’ (Article 32(1)); when an NGO’s purpose has been ‘exhausted’ or ‘made impossible’; when an NGO’s purpose is pursued by ‘immoral’ means; or when an NGO pursues activities which are not in conformity with their statutory purpose (Article 33(a)-(b)). These excessive and vague discretionary powers may lead to discriminatory decisions to close NGOs perceived to threaten the political status quo.
Violation of International Human Rights Standards
Angola is a state party to the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and People’s Rights (ACHPR), all of which protect the right to freedom of association (in Articles 20, 22 and 10 respectively). The right to freedom of association is also protected in section 48 of the Angolan Constitution. Unfortunately, the proposed Bill introduces numerous unnecessary and disproportionate restrictions to the right, as well as corresponding rights such as the right to privacy and the right to freedom of expression.
The Bill fails to comply with the clear guidance provided in the African Commission on Human and People’s Rights Guidelines on Freedom of Association and Assembly in Africa (the Guidelines) interpreting the Article 10 ACHPR right to freedom of association. In terms of these Guidelines, Angola is required to draft national legislation that facilitates and encourages the establishment of associations and NGOs and promotes their ability to pursue their objectives. The legislation should establish clear, simple, and transparent procedures for the governance of NGOs. Sanctions for violations of NGO procedural laws should be strictly proportionate to the gravity of the harm and applied only as a matter of last resort and to the least extent necessary. Sanctions such as suspension and dissolution of NGOs should only be applied only in narrow and lawfully prescribed circumstances, and in circumstances proportionate to the gravity of their misconduct, and as ordered by an impartial, independent, and regularly constituted court, following a full trial and appeal process.
Contrary to this, as highlighted above, the Bill unnecessarily restricts the establishment and operations of NGOs, and imposes excessive bureaucratic registration requirements, grants excessive monitoring and inspection powers, imposes burdensome and complex reporting requirements, and grants excessive discretionary powers on the Supervisory Body to impose sanctions and suspend NGO operations. The Supervisory body’s oversight powers are overly broad and not clearly defined. The Bill allows for inspections without court order; and for NGOs to be directed to provide excessive documentation without clear definition of what is required, and within which timeframes. Refusal of registration, suspension and dissolution of NGOs is by decision of the administrative Supervisory Body on vague grounds. Such restrictions are disproportionate and unnecessary in a democratic society. They lack sufficient precision to enable NGOs to understand their obligations, to comply with the law, and to avoid arbitrary and authoritarian misapplication of the law. As currently drafted, the broad discretionary powers of the Supervisory Body may be applied in a discriminatory manner, restricting free expression.
The Bill’s stated aim is also to address money laundering and counter-terrorism risks in the Non-Profit sector in terms of the Financial Action Task Force Recommendation 8. However, the Financial Action Task Force recommendations require that any measures to address such risks be “focused and proportionate” and adopted in terms of a risk-based approach. The restrictions to NGOs’ financial independence, including excessive monitoring of financial transactions, provided in the Bill, do not comply with this. As stated in the Guidelines, Angolan NGOs should have the right to seek, receive and use funds freely in compliance with their not-for-profit aims. They should be free to acquire resources in the form of cash as well as property, goods, services, investments, and other assets. They should not be required to obtain authorization prior to receipt of funding. Finally, NGOs should be subject to the same general laws governing money laundering, fraud, corruption, trafficking and similar offenses as individuals and for-profit enterprises.
Most critically, in its current form the Bill will severely undermine the ability of Angolan human rights defenders and civil society to organise themselves and operate freely and independently. The Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (the UN Declaration on Human Rights Defenders) obliges the Angolan state to protect, promote and implement its citizens’ rights “to form, join and participate in non- governmental organizations, associations or groups” and “to solicit, receive and utilise resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means” (A/RES/53/144, art. 5).
Recommendations
In light of the above, we urgently request a virtual meeting with your honourable mandates to present our concerns on this Bill to you in more detail, in anticipation of its imminent passing.
We further request that you send an urgent appeal calling upon the Angolan state to abandon the Bill in its current form, given that the Bill is overly restrictive and has been drafted and introduced in Parliament without consultation or notice to relevant stakeholders.
We request that you call upon the government of Angola to comply with the African Commission Guidelines, to develop less restrictive and more inclusive and enabling laws promoting the critical work of NGOs and ensuring citizens’ rights are protected. Such laws should be drafted following broad and inclusive processes, including dialogue and meaningful consultation with civil society and other interested parties. Policies and partnerships may also be developed to establish effective self-regulation frameworks to address any identified risks of money laundering or terrorism abuse within the sector.
Finally, in light of similar concerning draft legislation in Zimbabwe and Mozambique, we call upon your mandates to undertake an assessment of the manner in which the FATF recommendations may be being misapplied to restrict civic space in the region.
We thank you in advance for your urgent assistance.
Yours sincerely,
Florindo Chivucute
Executive Director
Friends of Angola
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