Take-aways: From ‘Rule of Law’ to ‘Rule by Law’ – to Silence Civil Society

Read our summary of the learning event on August 22nd 2018 with David Moore from International Center for Non-for-Profit Law (ICNL) and Frank Mugisha from Sexual Minorities of Uganda (SMUG) who told us how they work to improve the conditions for civil society organisations (CSOs) and citizens.  

David Moore, who is the director of ICNL, spoke about his organisations’ findings from following government policies that influence the conditions of civil society around the world. Moore was followed by Frank Mugisha, leader of SMUG, who spoke about how his organisation in Uganda has experienced government policies that obstruct their work, and how SMUG has been able to still work despite the government’s attempts to silence their work and close their organisation. 

What does ‘From ‘Rule of Law’ to ‘Rule by Law’ mean?

The transition from ‘rule of law’ to ‘rule by law’ can be described as a tendency where governments make laws that restrain civil society rather than laws to protect the rights of individuals and civil society. Moore says: 

“We have been tracking developments for more than ten years and witnessed an increase in legal restrictions on civil society and its ability to operate. We have noted that governments are converting the ‘Rule of Law’ to ‘Rule by Law’ where civic space is constrained, and laws are used as a tool for oppression.”

David Moore presents a metaphor to explain the differences of ‘rule of law’ as opposed to ‘rule by law’. According to him, ‘rule of law’ is the state where the law functions as a shield for the citizens to protect them from legislators as opposed to the opposite state, ‘rule by law’, where the law functions as a sword for government to attack citizens. The problem of the tendency of ‘rule by law’ is that governments are making laws that undermine civic freedoms, such as freedom of association, assembly and expression, which are the pillars of any healthy democratic society, to consolidate the power of the government. And thereby also making it even more difficult to express criticism against government policies and for any potential legitimate political opposition to arise. 

Political trends that harm civil society

In ICNL’s report “Effective Donor Responses to the Challenge of Closing Space” published this year, they describe the current political trend in the following way: 

“The term “closing” or “shrinking” civic space has been used with increasing frequency to describe a global trend that has been ongoing for more than a decade. Stated simply, governments are enacting laws and regulations that impede the ability of civil society actors – individuals, organizations and movements – to operate.”

David Moore highlighted some the key characteristics of what is happening around the world. It is not only NGO laws and anti-protest laws that restrain civil society and the way they operate but laws related to tax regulations, cybercrime and anti-terror legislations are also used to constrain civil society. There are also numerous examples of how governments are making it more difficult or even impossible for CSOs to receive funding from foreign donors, as well as having to apply for CSO registration where the government delays the process or completely decides not to grant registration, which obstructs the work of CSOs. 

David Moore explained that there has been a ‘copy-cat effect’ in which governments have been inspired by each others’ attempts to constrain civil society and have copied policies that have led to closing the space for civil society. However, it is not only through so-called formal means (law making) but also through practices whereby government actions have directly undermined the rights of activist to silence opposition. These practices include actions such as intimidations, defamation of civil society in the media, violent attacks and even killings of human rights defenders that are critical to government policies and practices or projects by multi-national companies.

Watch David Moore sum up what transformations from rule of law to rule by law mean for civil society:

Experiences from Uganda

Frank Mugisha shared his experiences with working for LGBTI rights in Uganda, a country with among the harshest conditions for LGBTI people in the world, and where the government has enacted multiple restrictions affecting LGBTI activists. Since SMUG was formed in 2004, the organisation has experienced measures such as freezing of bank accounts, arbitrary arrests, and the illegalisation of the organisation. Furthermore, the Ugandan government has been responsible for shutting down peaceful assemblies where police officers violently detained protesters. 

The positive message that Frank Mugisha brought was that during the many attempts to shut down SMUG and attacking LGBTI activists in recent years, SMUG has been able to form coalitions with other civil society actors to strengthen their political position in Uganda. Frank Mugisha said: 

“We mainstream LGBT rights and we get in contact with human rights organizations that are supporting us, and we try to encourage them to work on the LGBT cause, especially on the law and litigation, and the issues that have to do with the constitution. Most of the human rights organizations are happy to partner with us on these aspects - so that is how we end up forming coalitions in Uganda and are able work on LGBT issues.”

In addition, SMUG has worked with national and governmental institutions in Uganda to train public employees to respect LGBT people as citizens with equal rights as any other citizens. Police officers and judges have often treated LGBT people badly and therefore there is a great need to sensitise them to the importance of ensuring human rights for all. SMUG has had good experiences with this work clearly seeing that there are individuals and institutions within government that can act as allies.   

Based on the experiences of SMUG in Uganda, Frank Mugisha recommended that government donors and CSOs should think about the local needs and consult them about how donors can contribute to improve civic space instead of thinking that they know what is best:

”If you want to support LGBT community in opening civic spaces, you have to work directly with groups on the ground – wherever they are – and reach out to them and receive directions from them on how you can support them. It is more effective to work in that way.”

Watch Frank Mugisha sum up how one can help LGBT-activists in opening up civic space:

Recommendations

David Moore and Frank Mugisha each gave their recommendations as to how government donors and CSOs can support their civil society partners who are under attack from governments in their own country. 

David Moore:

• Government donors and CSOs should work directly with local people on the ground who are in possession of contextual knowledge about the problem that the government donors and CSOs wish to contribute to solving. David Moore said that it was important to empower locals because they have a leadership role in their communities. 
• Government donors should work to create and support an enabling environment for civil society with the aim of developing institutional norms to prevent and react to ‘shrinking space’ where it happens. 
• Governments should prioritize policy coherence in their own policies as well as in diplomatic and multilateral engagement to more effectively address human rights abuses. Now, governments give with one hand through development aid and take with the other when their trade policies, security policies etc. restrict space for civil society. We have seen examples where governments export surveillance gear to other governments, which is used to attack human rights defenders. The same human rights defenders that the development aid was supposed to protect. 
• Governments and CSOs should enter into broader coalitions and form different kinds of partnerships. David Moore emphasized the importance of forming sectorial alliances and pursuing cross-sectoral dialogue as important measures to ‘shrinking space’. 
• Government donors and CSOs should consider to put in place appropriate rapid response mechanisms to protect human rights defenders and civil society against government attacks when the funding is urgent, for example, when governments decide to persecute activists, it is important to have a funding system that is ready to act fast to ensure a solution for the persecuted activist, such as relocating the person in danger to a safe place. David Moore stressed that there needs to be more flexibility to funding directed at supporting civic society and civic space.

Frank Mugisha: 

• Government donors and CSOs should engage with local partners as they are aware of how and when to act because they have contextual knowledge which the government donors and CSOs often lack. If donors do not consult local partners their effort to contribute to solve the local problem may lead to more harm than good, therefore Frank Mugisha encourages donors to always consult local partners before any action that may affect them. 
• Investigative work and documentation of cases of human rights abuses is important to make the abusers accountable and to negotiate with the government. Researchers, journalists and academics around the world can support local partners by documenting local circumstances as well as give locals a voice. 
• Government donors and CSOs should prioritise funding local rooted projects and grassroot organisations that work to combat human rights abuses. This entails reaching out to some of them to receive some directions as to how to work more effectively together in trying to solve the problem. 
• CSOs and local activists should attempt to engage with the public in a manner where it is possible to form broader coalitions in favour of their cause, and they should consider to better document their work and the challenges that they face. ‘Mainstreaming’ or normalising one’s cause in the public could contribute to form new partnerships and gain local and national acceptance.