This dissertation is concerned with the legal obligations of sub-Saharan African states with regard to regulating non-governmental organizations (NGOs) that are service providers. Most states in sub-Saharan Africa do not provide adequate social services, and thereby generate service gaps. Primarily with the support of foreign aid, NGOs have flourished across the continent since the 1980s and filled such service gaps without needing to draw on the scarce financial resources of African governments. Today, NGOs continue to be prominent service providers throughout the continent. They promote the realization of social rights through social provision and advocacy. Considering that social indicators remain low in the region, the contribution of NGOs is vital for the people who seek assistance from them (“beneficiaries”). This dissertation examines whether, and to what extent, low-income sub-Saharan African countries may restrict NGOs that provide essential social services to beneficiaries when the state is unwilling or unable to ensure the provision of those essential services by other means.
Certain NGOs, such as some in South Africa, deliver complementary services whereby they serve in partnership with, and with the financial support of, the government. This study is not concerned with such arrangements because the legal obligations of the state are far more apparent since it explicitly enters into a partnership with the NGOs. Instead, the dissertation focuses on an area that is underdeveloped in legal scholarship, namely the legal relationships involved when NGO services extend (supplementary services) or step in for (substitutional services) vital, state services. In complementary relations, the NGO functions as an instrument of the government; in supplementary relations, the NGO extends the functions of the government, and in substitutional relations, the NGO takes on the role of government.
The substitutional relation is perhaps the most interesting arrangement because it is both a commonly occurring phenomenon (in sub-Saharan Africa) and the object of sparse legal analysis (in the literature). In the substitutional relation, NGOs serve as the sole providers of essential social goods to a substantial segment of the population, and do so without financial or technical assistance from the host state. This suggests that NGOs are performing, in lieu of the state, one of the state’s traditional functions. For beneficiaries of substitutional NGOs, the realization of social rights is entangled with the ability of NGOs to provide services. Depending on whether the state is capable of replacing the NGOs’ services, restricting the activities of functionally equivalent NGOs gives rise to legal problems between the state and the beneficiaries of those services. This conundrum raises two legal questions: what legal obligations, if any, do the social rights of beneficiaries impose upon African states regarding the regulation of substitutional NGOs? To what extent may NGO laws restrict the activities of substitutional NGOs that provide social services in African states?
The nature of the state’s obligations is expected to be somewhat different for the regulation of supplementary NGOs. The key distinguishing characteristic of supplemental NGOs is that their social services go above and beyond those essential levels that the state must provide. As such, it is not clear whether the state was obliged to provide those services in the first place. The legal issues are as follows: whether the social rights of beneficiaries impose upon the state any legal obligations regarding the regulation of supplemental NGOs, and what those obligations might be.
The dissertation uses international human rights law as the normative framework for its analysis. Every person is guaranteed social rights related to health, housing, education, nourishment, social security, and an adequate standard of living. According to the International Covenant on Economic, Social and Cultural Rights, states must take steps, to the maximum of available resources, toward the progressive realization of these rights. Although states retain the primary obligation to bring about the realization of social rights, they often do not do so through direct state action. Rather, private actors are involved at every stage of the realization process. NGOs are particularly important actors for the realization of social rights in African countries due to their widespread presence and the low coverage of state-sponsored service provision, even if they do not enter into contractual or otherwise formal partnerships with the state.
To analyze the regulation of NGOs in Africa, the dissertation examines empirical evidence from constitutional, legislative and jurisprudential sources. Despite the significance of NGOs in service provision, African states that seek to maintain power and ward off political interference have been developing constraining regulatory environments primarily through the enactment or proposal of restrictive NGO laws. In addition to tightly monitoring and regulating the operations of NGOs, many of these laws create entry barriers for new NGOs through complicated registration requirements, and limit operational capacity for registered NGOs by severely restricting access to foreign funding. Others forbid NGOs from engaging in human rights advocacy, and at least one state prohibits them from conducting any development work at all without prior state approval. Notably constraining laws have been enacted in Eritrea (2005), Uganda (2006, with amendments added in 2009), Ethiopia (2009), Sierra Leone (2009) and Egypt (2014). Likewise, Zimbabwe (2004), Angola (2007), Burundi (2009), Kenya (2013, 2014) and Uganda (2015) have attempted to pass similarly restrictive legislation.
Highly restrictive NGO laws will likely have the effect of substantially limiting the quantity and quality of services provided to beneficiaries. At present, Ethiopia has enacted one of the most restrictive NGO laws in Africa. Since 2009, NGOs receiving more than 10% of their funding from a foreign source may not engage in any human rights advocacy. For NGO service providers, this restriction considerably weakens the link between a human rights approach and social provisioning. If, as some jurists posit, social provisioning without a human rights approach is a less protective way to realize social rights of beneficiaries, there may be a legal problem with the Ethiopian NGO law. Many Ethiopians rely upon NGOs for the realization of their social rights. For these intended beneficiaries, the NGO law jeopardizes access to aid and social goods. The case of Ethiopia exemplifies how critical it is, when considering low income countries that depend on NGO services, to ask: how far can a state go to constrain an NGO sector that is essential for the realization of social rights in its country, when that state struggles to fulfill the basic social needs of its people?
Most analysts who evaluate the legality of these NGO laws have directed their attention to the possible infringement of the rights of NGOs. Their literature focuses predominately upon whether restrictive NGO laws violate the rights to associate and to speak freely. Considering, however, the significant role that NGOs play in providing welfare services in many African states, there ought to be a thorough and systematic legal examination into the social obligations of states. This dissertation aims to fill that gap in the literature by examining systematically how the triangular legal relations involving the state, beneficiaries, and NGOs might affect the state’s regulatory obligations toward supplemental and substitutional NGOs.