'Defending the Civic Space'

 

Determined to share knowledge across professional and sector boundaries, leading practitioners in the non-profit, public and private sectors came together in Lagos, on November 28, 2018, to brainstorm on knowledge-to-action techniques for confronting the rising tide of governmental actions that restrict the operational space for civic engagements and non-profit activities in Nigeria. State actors often justify restrictions on the civic space, citing national interest or national security considerations. In effect, the exercise of governmental power in ways that have considerably repressed human freedoms and contracted the spaces for civil society and civic engagement have been witnessed, resulting in many arrests, detentions and prosecutions.

 

Between May 2015 – May 2017, SPACES FOR CHANGE (S4C) tracked 103 incidents of repressive governmental behavior and restrictions, with implications for free speech, association, religious and assembly rights of citizens, groups and organizations. It was on this premise that the executives of the National Human Rights Commission, Amnesty International, Human Rights Watch, Nigerian Network of Non-governmental Organizations, Inter-governmental Action Group Against Money Laundering (GIABA), West Africa Civil Society Forum, (WASCOF), a financial institution and SPACES FOR CHANGE, came together to forge a common response to this trend.

 

Knowledge of the security-related drivers of the shrinking civic space is very limited among citizens, including non-profit organizations (NPO). In particular, security-related drivers such as the application of national and international anti-money laundering (AML) & countering financing of terrorism (CFT) regimes in Nigeria, produce certain legal and non-legal restrictions that interfere with the right to free speech, free assembly and association rights. So few national level activists and organizations are aware of AML and CFT regimes in Nigeria—mostly derived from international financial regulations like the Financial Action Task Force (FATF) Standards—the and how the enforcement of these regimes is influencing the upswing in governmental restrictions on human and corporate activities. The few organizations that are taking on these issues, sometimes work in silos, and reinventing the wheel, hence the need to engage more and learn from each other about what is working and what is not working in terms of strategy and results.

 

The meeting started with a discussion regarding the aspects of NPO operations that have been hampered by regulatory restrictions and the extent of NPO compliance with regulatory requirements. Independent studies and documentations have shown that the regular targets of governmental restrictive measures range from journalists to NGO workers to social critics, bloggers, and activists challenging official corruption, human rights abuses, environmental injustices, and so forth. While there was consensus that repression is on the rise, there was also a concurrence that many NPOs fall short of meeting regulatory requirements, especially with regard to filing of annual returns and registration with statutory bodies such as Corporate Affairs Commission (CAC), Special Control Unit Against Money Laundering (SCUML).

 

In Nigeria, NGOs are usually registered as companies limited by guarantee or incorporated trustees. CAC requires companies registered in this manner to file annual returns, providing information about their corporate structure, their assets, and financial inflows and expenditure every fiscal year. According to NNNGO, there is evidence that compliance level is low; that is, only a small percentage of NGOs satisfy these requirements. Non-compliance often stems from regulatory inefficiency, particularly CAC’s inadequate oversight on corporate governance practices generally.  Having said that, should CAC’s dereliction of its oversight obligations provide a legitimate justification for blanket restrictions on NPOs and hamper their operations? That question still begs for answers.

 

Different reasons were advanced for the Nigerian government’s adoption of blanket restrictions. One, the government has not undertaken a very in-depth risk assessment of the NPO sector as required by the revised recommendation 8 (R8) of the FATF Standards. The new R8 now requires countries to apply focused and proportionate measures, in line with the risk-based approach. Faith-based groups, including churches and mosques; humanitarian and service delivery organizations; human rights, advocacy and accountability groups, are all classified as non-profit bodies in Nigeria. However, the operations of these groups vary, same with the levels of risks and vulnerabilities that they face and pose. So, a risk that applies to faith-based groups may not necessarily apply to advocacy organizations and vice versa. Nigeria conducted a National Risk Assessment (NRA) in 2016, but the exercise did not make these distinctions and assessments, hence the blanket restrictions on NPOs as a whole. Participants considered the idea of jointly undertaking a sectoral risk assessment conducted by NPOs for the NPO sector, with a view towards ensuring that governmental measures are focused where the risks are highest.

 

Again, the government adopts blanket restrictions on all NPOs due to a limited understanding of the rigorous due diligence processes and grant-making procedures, including associated reporting requirements that NPOs are subjected to. This lack of understanding magnifies the perception that NGOs are unregulated and ‘account to nobody’. But in fact, most grant agreements contain clauses that guard against money laundering and countering financing of terrorism. The flip-side is that it is not all NGO’s that comply with these donor requirements because a large percentage of local NGOs do not access funding from the established foreign donor institutions. And some of those who depend on foreign funding may be complying with regulatory requirements because statutory compliance determines their eligibility for donor funding.

Other forms of civic space restrictions that have been noticed is the rising incidents of human rights abuses resulting from tension between citizens and security agents, especially the Nigeria Police.  It was argued that police officers need to improve their understanding of basic rights and freedoms, protected under Nigeria’s constitution.  Incidents of attacks on press freedom is also high, with many media organizations now afraid to report sensitive issues such as the counter-terrorism operations in the North-East, the situation in Internally Displaced Camps (IDPs) and some issues affecting certain members of the executive. High rates of surveillance of NGO workers and their funding sources have also been observed. Overall, governments are copying shrinking space tactics from one another. Nigeria’s proposed NGO Regulatory Commission Bill 2016, was modelled after the Sierra Leonean NGO Bill. Kenya’s NGO Law also seems to have been copied from Ethiopia. More recently, countries like Tanzania are imposing social media tax, and this trend may soon be replicated across Africa.

 

Another issue that dominated discussion is the frequency which the government invokes the term, national security. What does it actually mean? Crackdowns on the media and the civil society are characteristically justified by invoking the term, national security or national interest, as the case may be. The term is not only vague, but also an imprecise omnibus term that imbues state actors with enormous discretion to abuse executive power. This term needs to be unpacked for proper scrutiny and accountability. Related to national security are other nebulous terminologies: hate speech and terrorism.  Again, what do these terms mean? Despite being famed for their non-violent campaigns, the Nigerian government proscribed and labelled an ethnic separationist group like Indigenous Peoples Organization of Biafra (IPOB) as terrorists. What is the criteria for measuring how hateful a speech is or what constitutes a terrorist activity? And who should make this determination? The courts? The executive? Or the security agencies?

 

So, what needs to be done in light of the above complex challenges? First, there is no doubt that different NPOs—whether faith-based, advocacy or humanitarian—do not bear the level of AML and CFT risks and vulnerabilities. Bearing this in mind, NPOs should perhaps, take the initiative to undertake a self-assessment of the sector, classifying groups according to the level of risk they pose. Not only does this have the potential to culminate into the domestication of FATF classification of risk assessment, but could also provide regulatory authorities the much-needed guidance on how to target measures proportionately, instead of an overall blanket restriction. The classification of NPO risk quotients cannot be done without the cooperation of regulatory bodies like SCUML, CAC, NFIU, financial institutions and GIABA. It is instructive to note that this sort of risk classification is not new. At present, a significant differential exists in the scale of AML and CFT regulatory measures that apply to different financial institutions depending on the nature of services they render, scale of financial flows and the constituencies that they serve. Adopting this approach for the NPO sector aligns with the new R8 which requires governments to ensure that domestic AML/CFT regimes are risk-based, proportionate and do not disrupt the work of legitimate NPOs.

 

The next task participants considered is to push for an official definition of the following terminologies: national interest, national security, terrorism and hate speech etc. What a clear definition of these terms does is to ensure that codified rules set out the limits of the exercise of governmental power. Absent such legal elucidation of terms, vague terms will continue to be invoked to justify crackdowns. From that vagueness springs legal uncertainty and discretionary power so wide, and often exercised without accountability. This will require group action and engagement with state departments like the Federal Ministry of Justice, beginning with a joint session with the Attorney General of the Federation.

 

One issue that arose during a September 2018 training SPACES FOR CHANGE organized for Nigerian bloggers is the issue of legal representation for victims of governmental crackdowns. National Human Rights Commission is statutorily mandated to look into such issues. Building on the database that SPACES FOR CHANGE has developed which tracks and documents incidents of closing civic spaces in Nigeria, case referrals to NHRC for independent investigation and follow-up could be a starting point towards securing justice for victims. The push for accountability is incomplete without a corresponding capacity-building for police personnel who effect the arrests, often in violation of constitutional protections. Toolkits are necessary here to elucidate on constitutional rights and freedoms and build the capacity of police authorities to adhere strictly to legal rules in the performance of their duties.

 

So what kind of toolkits are needed? An example considered is the production of Frequently Asked Questions (FAQs) on Protests, explaining the links with assembly and association rights. Related to this is the topical issue regarding police permits prior to protests. The Nigerian courts have in a number of cases, provided some guidance. In the case of Inspector General of Police v All Nigeria Peoples Party, the Court of Appeal declared certain provisions of the Public Order Act illegal because it required persons to obtain police permits before engaging in public protests, processions or gatherings. According to the court, the requirement for police permit was antithetical to the rights protected in Section 40 (right to peaceful assembly and association) of the Constitution. In the court’s opinion, the Constitution cannot be interpreted as giving a right in one section and then taking away the right in subsequent sections.

 

Finally, creating awareness within the NPO sector is key. Many NPOs are not aware of the numerous statutory and taxation requirements that they are expected to comply with. Compliance has some advantages. Compliant organizations pushing against excessive restrictions stand on a higher moral ground to demand changes to the system. Secondly, compliance affords NPOs an opportunity to test and determine which laws, measures and legal requirements are restrictive and duplicitous.  From that compliance, evidence of the drivers of shirking civic space is generated to provide input into the FATF evaluation processes. In light of these, the awareness-raising and capacity building interventions will specifically aim to empower NPOs to understand and engage the AML and CFT national risk assessment and mutual evaluation procedures, and advocate for proper application of the existing regulations.

 

With the problems identified and the strategies for confronting these problems mapped out, the next step is action, both individually and collectively.  The group coming together to have this important conversation is neither a coalition nor a network, but instead a learning-and-sharing hub for a community of practitioners already engaging issues affecting the civil society. Members will continue to defend the civic space within their spheres of influence while providing strategic leadership to their diverse constituencies and contexts. What they are doing now is to deepen institutional cooperation and collaboration in order to build a strong online-offline support base for defending civil society through learning and sharing of information, strategies and results.  The emergence of this conversational space for joint action planning represents a fresh attempt to steer and propel evidence-informed change, and effectively respond to the threats to the civic space at all levels.