The New Charities and Societies Proclamation

and its Impact on the Operation of Save

the Children Sweden -Ethiopia

Save the Children Sweden-Ethiopia

December 2009

Meskerem Geset

Consultant and Attorney at Law

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Table of Contents

I. Introduction …………………………………………………………… ... 3

1.1 Organizational Background ………………………………………... 3

1.2 Relevance and Objectives of the Study …………………………... 4

1.3 Methodology and Information Sources ………………………….. 5

1.4 Limitations …………………… ……………………………………. 7

II. Basic Features of the Proclamation……………………………………. 8

III. Findings and Discussions ……………………………………………... 11

3.1 Major Areas of Concern for SCS and Partners………………….. 11

3.1.1. Working Methods…………………………………………… 11

3.1.2. Priority Areas and Thematic Programmes 15

3.1.3 Specific Projects ……………………………………………… 22

3.1.4 Administrative Operations ………………………………….. 23

3.2 Implications on Working Relations …………………………….... 27

3.3 Impact on Children’s Lives ……………………………………….. 29

IV. Conclusions and Recommendation ………………………………….. 32

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ACRONYMS

ACPF The African Child Policy Forum

CBOs Community Based Organizations

CDI Center for Development Initiative

CPU Child Protection Unit

CRP Child Rights Programming

CSA Charities and Societies Agency

CSOs Civil Society Organizations

ECAF East and Central Africa

EDA Emmanuel Development Association

JJPO Juvenile Justice Project Office

MOE Ministry of Education

MOJ Ministry of Justice

MOWA Ministry of Women Affairs

NGOs Non Government Organizations

PASDEP Plan for Accelerated and Sustained Development to End

Poverty

PHP Physical and Humiliating Punishment

SCS/E Save the Children Sweden/Ethiopia

SP Strategic Programme

TPP Thematic Programme Plan

TP Thematic Programme

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I. Introduction

1.1. Organizational Background

Save the Children Sweden is a non profit international organization that works

for a world which respects and values each child, which listens to children, and

where all children have hope and opportunity. Save the Children Sweden fights

for the rights of children and delivers immediate and lasting improvements to

children's lives worldwide.

The Ethiopia Country Program of Save the Children Sweden is part of the

Eastern and Central Africa (ECAf) regional program. It has been operational in

Ethiopia since 1965, making it one of the long operational international NGOs in

the country. SCS mainly works with local partners to achieve the goals it has set

out and focuses on building the capacity of local people, community based

structures and organizations. During the last 43 years, SCS in Ethiopia has

addressed identified needs of the different sectors of the population, with

particular focus on disadvantaged children. In the past decade, SCS was more

active in the implementation of focused child rights programmes in collaboration

with national civil society partners.

Currently, the main focus of Save the Children Sweden's work in Ethiopia is on

child protection, education, child rights and civil society. To achieve the

objectives under this programme SCS is working with identified active local

partners with a common plan of action.

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1.2. Relevance and Objectives of the Assessment

The new legislation on Charities and Societies, Proclamation No. 621/2009

promulgated in February 13, 2009 has introduced new challenges to most of the

NGOs operating in the country and thus, having apparent potential in affecting

SCS and its local partners operation in Ethiopia. It hence, appears significant for

the organization to examine its programmes and working methods in view of the

new law and identify the implications thereof in order to make appropriate

decisions and devise well calculated ways to aptly cope within the current legal

framework. Therefore, this assessment is conducted owing its significance in

providing SCS with the relevant information on the implications of the new

legislation in its operation with in the country and indicate alternative ways to fit

in the legal environment.

The general objective of the assessment is, hence, to thoroughly studying the

possible effects of the new Charities and Societies Proclamation on the

intervention programs of SCS and its partner organizations and further identify

possible future directions with in the legal limits to enable SCS continue

positively impacting the lives of children.

Under the above stated general objectives, the specific objectives of the

assessment are:

to review the possible implications of the new proclamation on SCS and

its partners’ common areas of intervention and administrative operations

to indicate possible impact of the law on the lives of children

to study alternative scenarios it will have on all aspects of SCS Ethiopia

programs.

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to identify possible future directions and recommendations for SCS and

partners in their child focused interventions

to assess the possible working relationship of SCS and partners with the

government in the implementation of their programs.

Accordingly, each of the priority areas, thematic programmes and working

methods of SCS is examined in light of the law and the possible implication of

the legislation on SCS’s relation with its different partners, government

stakeholders and children is also analyzed. Further, possible alternatives were

identified and proposed to indicate a way forward to tactically sustain the

prioritized programme areas and working methods without conflicting with the

law.

1.3. Methodology and information sources

To facilitate a comprehensive analysis of the operation of SCS in line with the

legislation, desk review has been mainly used for the assessment. Hence,

important documents of SCS such as its strategic plan, the thematic programme

plans (Ecaf TPP ) were consulted allowing a careful investigation to identify

which of SCS’s working methods , program areas and thematic priorities, and

projects might be disturbed. A close examination of the provisions of the

proclamation and relevant documents of the CSO Task Force related to the

drafting process of the proclamation were consulted to give contextual frame

work in understanding the basic features of the law.

The evaluation process has been basically qualitative, and the data was collected

mainly through interviews, questionnaires and rarely through focus group

discussions and informal discussions.

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Both structured and non-structured interviews with relevant informants were

used to gather qualitative data. Representatives and program staff of NGOs

working in partnership with SCS were interviewed on their perception of the

new proclamation in light of their programs, the possible challenges they

anticipate to face practically and alternatives they may see as coping mechanism.

Similarly, relevant officers and experts from government institutions were also

interviewed. Questionnaires were also prepared and administered in occasions

where respondents preferred it to the interview and where they are not seen as

key informant.

With regard to community, particularly children focus group discussions were

mainly adopted to gather information from them. Through focus group

discussions children in the community, the child rights club and child parliament

were given the opportunity to express their view concerning the new regulatory

framework and its impact on their rights and interests. Their effective

participation was ensured through a child friendly approach.

Informal discussions with relevant international organizations were also used to

gather information on their approach to the issue at hand with the view to learn

relevant lessons.

The diversity of the informant group involved in data collection can be generally

represented as follows;

Government stakeholders : such as the police, the judiciary, MOWA

,MOE, JJPO, Ethiopian Police University College , MOJ , Ethiopian Human

Rights Commission ,Institute of the Ombudsman, the Judicial Training

Center, the Remand Home,:

Local partners: CDI, EDA, Zemasef, Handicap National ,ACPF ,Hiwot

Ethiopia, FSCE,ANPPCAN

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Children: members of child rights clubs, child parliaments and project

beneficiary children

professional association: Alumni Association of the Law Faculty of the

A.A.U

1.4. Limitation of the assessment

The process of the assessment, of course, did not progress without limitations.

The major limitation originates from the proclamation itself as it lacks clarity and

fair details in many aspects which made the analysis hereof limited. Several of its

provisions are very general and ambiguous, which are anticipated to be clarified

by the regulation to be enacted by the Council of Ministers and following thereof

by the directives to be provided by the Agency established under the

proclamation. Such legal materials are expected to shed lights on a number of

grey areas in the proclamation, yet, such documents have not came into force

though the regulation is still promised to be officially released very soon.

One big challenge faced on the part of some partner NGOs and government

offices was the lack of clear understanding of the implications of the legislation

or the lack of proper awareness concerning the new legal environment.

Accessibility of informants in government offices and their willingness to devote

some time for either filling questionnaires or interviewing was another critical

challenge during data collection. Several key informants from highly relevant

government stakeholders, due to their work load, were not available to fill the

questionnaires or attend interviews in due time.

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II. Basic features of the proclamation

a)Purpose of the law

As clearly indicated in the preamble the proclamation has two main purposes

that necessitated its promulgation, these are:-

• ensuring the realization of citizens’ right to association enshrined in the FDRE

Constitution; and

• aiding and facilitating the role of Charities and Societies in the overall

development of Ethiopian peoples.

B) Forms of Charities or Societies

The proclamation introduced there forms of charities and societies:

1. "Ethiopian Charities" or "Ethiopian Societies“: formed under the laws of

Ethiopia, all of whose members are Ethiopians generate income from Ethiopia

and wholly controlled by Ethiopians. However, they may be deemed as

Ethiopian Charities or Ethiopian Societies if they use not more than 10% of their

funds which is received from foreign sources.

2. "Ethiopian Residents Charities" or "Ethiopian Residents Societies": formed

under the laws of Ethiopia and which consist of members who reside in Ethiopia

and who receive more than 10% of their funds from foreign country sources.

3. "Foreign Charities": formed under the laws of foreign countries or which

consist of members who are foreign nationals or are controlled by foreign

nationals or receive funds from foreign sources

A close reading of the provisions of the proclamation suggests that the grounds

for classification are place of registration nationality or residence of members,

and source of income

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c) Scope of application of the Proclamation

Art 3 of the proclamation defines the scope of application of the law by clearly

stipulating the types of organizations governed by legislation and those that are

excluded from.

Accordingly, the proclamation is applicable to:-

1) Charities or Societies that operate in more than one regional state;

2) Those who secure funds from foreign sources though they operate in one

regional state;

3) Charities or Societies operating in Addis Ababa or Dire Dawa.

On the other hand, institutions that are out of the scope of application are:-

1) Religious organizations;

2) International or foreign organizations operating in Ethiopia by virtue of an

agreement with the Government;

3) Cultural or religious associations or other similar institutions;

4) Societies governed by other laws.

d) Definitions of and Restrictions on activities

Definition of charitable activities

The proclamation hints on the definition of charitable activities by providing

an open list of activities. Hence, in general, charitable organizations are expected

to involve in one or more of the purposes identified as charitable which

includes:-

a) The prevention or alleviation of relief of poverty or disaster,

b) The advancement of the economy and environmental protection or

improvement,

c) The advancement of animal welfare,

d) The advancement of education,

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e) The advancement of health or the saving of lives,

f) The advancement of the arts, culture, heritage or science,

g) The advancement of amateur sport and the welfare of the youth,

h) The relief of those in need by reason of age, disability, financial hardship or

other disadvantage,

i) The advancement of capacity building on the basis of the country’s long term

development directions,

However, it must be noted that the list of activities is not exhaustive as stated

under the proclamation itself as it leaves room for the Agency to prescribe other

purposes by directives (Article 14(2) (o).

Further, it must be highlighted that not all of the above listed activities are open

for all types of charities and societies. The proclamation has excluded some of the

activities from the domain of non-Ethiopian Charities and Societies (i.e.

Ethiopian Resident Charities and Societies, and Foreign Charities).

Charitable Activities Reserved to Ethiopian Charities and Societies

The following charitable activities are exclusively reserved to Ethiopia Charities

and Societies.

• the advancement of human and democratic rights;

• the promotion of the equality of nations, nationalities, peoples and that of

gender and religion;

• the promotion of the rights of the disable and children’s rights;

• the promotion of conflict resolution or reconciliation;

• the promotion of the efficiency of the justice and law enforcement services.

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e) Supervisory Organs The Proclamation mandated the following supervisory organs:

• Ministry of Justice,

• Charities and Societies Agency: a special organ established to

administer the registration, operation and dissolution of charities

and societies and accountable to Ministry of Justice,

• Charity and Society Board: a Council established under the

Agency and consists of seven members nominated by the

government, two from the CSO,

• Administrators: the line ministries/the relevant federal executive

organ having similar work with the specific charity or society

assigned by the minister.

III. Findings and Discussions

3.1 Major Areas of Concern for SCS and Partners

3.1.1 Working Methods

The four SCS working methods are knowledge dissemination and capacity

building, direct support, research and analysis, and advocacy and awareness

raising. Under this section the possible implications of the legislation is analyzed

in relation to each working method.

Knowledge dissemination and Capacity building: SCS employs this method to

build the capacity of children and staff of partners in Child Rights Programming,

child participation, non-discrimination and international and regional

instruments for promotion and protection of children’s rights in the country. As

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can be safely deducted from the components of this working method, the

knowledge and capacity building embodies elements of child rights promotion.

This suggests that SCS can no longer employ this working method unaffected by

the new legislation. SCS can uphold this method so long as it complements with

the long term development program of the country as welcomed by the

proclamation (Art 14(2)(i)). Hence, SCS can engage itself in building the technical

capacity of the community, partner NGOs, local CSOs and government

stakeholders involved in the implementation of projects with in the permissible

category. This can be done through knowledge and skill transfer, better access to

information and, awareness raising and attitude change. SCS can also build the

financial capacity of government actors that may facilitate the realization of

children’s rights upon fulfillment of their basic needs that fall in with in the

thematic priorities of SCS. It is also possible for SCS to build the financial

capacity of Ethiopian resident charities and societies on common interventions

and similarly that of Ethiopian charities and societies for their activities which

are not prohibited for foreign institutions and with in the maximum limited

amount. Here it must be noted that even though CRP, child participation, non-

discrimination and other child rights components can not form the core contents

of this method, they can still be mainstreamed in project implementations as

added values.

Direct Support

This method aims at directly involving children to be part of SCS and partners

activities focusing on capacity building on child rights, and international,

regional and national monitoring mechanisms. Engaging children on child rights

focused activities is one aspect of advocating for their rights. For the same reason

discussed above, this working method also ,as the way its designed, directly falls

in promotion of the rights of children. And thus, by virtue of Art 14(5) of the

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proclamation, bearing the foreign nature of SCS it may no longer be practicable

to maintain the method without any adjustment. However, SCS can adjust its

direct support strategy to its thematic areas of education and protection so that

children may have part in the projects in the different stages of designing,

planning, implementation and monitoring and evaluation. This means ,the

direct support strategy may no longer be fashioned in a rights based approach by

promoting ‘children’s rights to participation’; it may however ensure that

children are voiced in all projects through other mechanisms that are not right

based s. The direct support approach can be geared towards providing direct

services involving children in line with the prioritized areas. Services in the

education, health, livelihood and food security, labor and other social sectors as

well as emergency interventions should be extensively designed in line with the

government’s sectoral development policies, programmes and strategies. Such

direct support interventions for the betterment of children’s socio economic

development should be integrated with broader scope throughout the thematic

priority areas.

Research and Analysis: - The other working method employed by SCS is

carrying out research activities to gain knowledge concerning the situation of

children’s rights in the country and will be used for learning by disseminating

outputs among different SCS offices, SC Alliance and civil society partners.

Though research activities are not explicitly prohibited for foreign Charities,

since the purpose of research and analysis as provided in the child rights TPP is

to inform the civil society partners and ultimately substantiate advocacy , it

should be handled with due care. It means bearing in mind that advocacy work

on areas such as human and democratic rights, conflict resolution, efficiency of

the justice and law enforcement sector, gender equality, rights of children and

people with disability is clearly prohibited for foreign charities, engagement in

any researches or policy analysis with the aim of advocacy on the prohibited

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activities may not be tolerated. Thus, SCS can uphold its research and analysis as

a working method so long as is restricted to issues falling with in the permissible

category. This also means, research and analysis on its thematic programmes on

education and protection as redesigned in line with the legislation (not crafted

from rights perspective) can be tenable. SCS can also still conduct relevant

researches and policy analysis on any issues of concern for an in-house

consumption.

Advocacy and awareness raising: SCS and local partners implement advocacy to

influence attitudes and perceptions in society as well as economic and political

decision making. The planned activities under the child rights TPP include

advocacy to be conducted on government periodic reporting on child rights

implementation to relevant international bodies.

As advocacy on the rights of children and the rights of the disabled is clearly

reserved only for Ethiopian Charities and Societies, SCS strategy to implement

advocacy to influence attitudes at society and policy level and also lobby for

adoption of relevant international instruments, reporting on the implementation

of human rights and child rights should be withdrawn. Any advocacy strategy

focusing on voicing the rights of children, influencing for the enactment or

revision of laws and policies, awareness raising activities such as training law

enforcement organs on the rights of children, public awareness through

workshops ,publications, media, promoting rights of children, the rights of

children with disabilities may no longer be viable.

3.1.2 Priority areas and thematic programmes

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The two SCS thematic priorities are children’s right to education and children’s

right to protection. The third priority is the Civil Society for the right of the child

which is intended to promote the rights of the child and to build the capacity of

CSOs to advocate for children’s rights and facilitate the goals and objectives

under the two thematic priorities.

Considering the changing regulatory environment, this section will examine how

these thematic priorities and, the goals and objectives therein stand and also

discuss the alternative scenarios.

Protection of Children

One of the thematic priorities under which SCS impacts children in Ethiopia is

the Child protection programme with two programme components ,the national

child protection system and child protection in emergency.

National Child Protection System

The National Child Protection System one of the thematic programmes in the

priority area involves setting up child protection systems at community, regional

and national levels in order to prevent and respond appropriately to

abuse/violence against children. The goal for the thematic program as indicated

in the strategic plan document is to achieve the establishment of integrated

national child protection mechanisms that effectively protect children from

violence, abuse and neglect.

In the past decade, SCS with other Save the Children members and other local

partners has been working with the criminal justice system to ensure children's

rights are respected. This is evidenced by the "Child Protection Units" made up

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of specially trained police and social workers operating in police stations in

several cities of Ethiopia. Similarly, SCS has been working with the judiciary to

establish child-friendly courts where children's cases will be tried by specially-

trained judges and in an appropriate environment for children. In addition, it has

assessed the laws and tries to advocate for change whenever necessary and

ensure proper implementation.

In this strategic period (2009-2012) SCS, through its local partners, is also

engaged in raising the awareness of children on their rights to protection,

lobbying for the revision of laws on PHP and juvenile justice, special measures

for the integration of vulnerable children in child protection structures and

coordination among civil societies and community.

The content and objectives of this thematic program understood in the context of

the law, surely fall under the restricted activities as they form part of promoting

children’s rights with is exclusively reserved for local NGOs. Especially the

activities aiming at raising awareness of children on their rights, lobbying for

change of laws, demanding for special measures overlap with the restrictions.

As a result of Art 14 (l) of the proclamation that prohibits foreign charities from

working on the rights of children, SCS will have a challenge to continue

implementing the child protection programme in part as it is related to the

advancement of child rights.

The protection programme will be tenable in view of the law only if it’s

redefined to providing service for children in need of protection with a utilitarian

approach. The proclamation, indeed, allows foreign charities to engage in

advancement of health and the saving of lives, the relief of those in need by

reason of age, disability, financial hardship or other disadvantage and other

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purposes concerning children as may be prescribed by the agency .(Art 14

(e)(h)(o)). Hence, it can strategically design projects ensuring that the special

protection rights of children under difficult circumstances are addressed in child

protection structures and services. In this regard, capacity building efforts should

be encouraged, few that can be mentioned as examples are those focusing on

skills of communicating with and counseling such children, knowledge transfer

concerning the nature of such children’s vulnerability, the magnitude of their

problem and the service they need.

SCS, recognizing that children are the most vulnerable segments of the society

can still advance its protection programme in a non –rights approach gearing it

to focus on the needs behind the rights. Hence, it needs to shape its intervention

in child protection in terms of advancing children’s health, addressing the

specific needs of disadvantaged children, OVCs, CWD, girls, abandoned or

neglected children, children who are victim of abuse or violence, children in

conflict with the law, children deprived of their liberty etc. It is also possible to

provide direct service with the view to advance the protection of victim children

by providing them psychological, medical and social services In this regard, SCS

can still continue to collaborate with the government stakeholders particularly

the police, courts, prisons, juvenile correction centers and also with local CSOs,

CBOs, community based correction and rehabilitation programmes, schools etc.

Child Protection in Emergency

The other thematic programme under child protection is protection in

emergency. Save the Children Sweden has been working with the defense forces

focusing on training the military on child protection and child rights that

recorded tremendous achievements. With the view to the interventions and

responses in a systematized and coordinated manner a sustainable capacity

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building support coupled with establishment of a child protection unit with in

the structures of the Ethiopian Ministry of Defense was set out as the core

objective of the program.

The emergency programme may not be challenges as long as it is still limited to

addressing the emergency situation of children with direct support and build the

capacity of partner organizations and the responsible state actors to enable them

address the situation. Art 14 (2) (a) of the proclamation indicates that

interventions toward the prevention or alleviation or relief of disaster are

welcomed notwithstanding of the form of the charity or society, hence creates a

good groun for SCS to advance its emergency response.

Working with partners on child protection requires that they redefine their

protection programmes in terms of service delivery instead of promoting rights.

The partner CSOs working on protection that were contacted during the

assessment, particularly FSCE,ANPPCAN, Zemasafe are engaged in revising

their working strategies and projects on protection so as to align them with the

current legal framework. The government stakeholders, in particular the CPU

Police and the A.A Remand Home have also great expectations to work with SCS

and other NGOS to provide children with services ensuring their protection.

Children’s Right to Education

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The education system in Ethiopia is reported to be characterized by inadequate

and low professional capacity. It also evidenced significant gap in educational

provision within the country. The SCS is working towards fulfilling the right of

all children to education by creating access to education for children through

supporting basic education programs in the country in various ways. It is

building the capacity of the government and other stakeholders to improve the

quality of education.

Under Article 14(2) (e) of the Charities and Societies proclamation, Foreign

Charities are allowed to be engaged in the advancement of education. However,

since foreign charities are prohibited to engage in promotion of rights, it would

be practically difficult for SCS to frame its approach from the rights perspective

or from the right based principle.

The first three objectives under access to education program; that significant

numbers of disadvantaged children have accessed primary education, free and

compulsory education is enhanced, active participation of children to enhance

free education is increased; show no risk of contravening the requirements of the

legislation. The fourth objective, however, that states CSO partners in Ethiopia

have enhanced their capacities to mobilize communities and advocate for access

to free and compulsory education should be handled carefully. Mere community

mobilization and advocacy activity emphasizing on the impact of the service in

the socio economic development of children and the community at large may not

entail any risk. It should be ensured that it does not overlap with advocating for

and promoting rights of children to education.

SCS by attaining these objectives aims to address the issue of free education for

all, particularly for disadvantaged children which is compatible with the

country’s long term development programme (the PASDED) and the MDGs.

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When we come to quality education, SCS’s endeavors to address the evidenced

gaps in quality of education in the country can also be said to be in line with the

country’s development progerammes. As the identified gaps and areas of

intervention evolve on low quality of teachers, drop out and retention rate of

students, student teacher ratios, safe school environment, and a quick visit to the

five objectives in the TP substantiates the development oriented elements.

Without engaging in advocating for the rights of children to education, the

program can simply focus in addressing their pressing needs and further

influencing relevant stakeholders on the need for such service in the education

sector in line with the sectoral strategies, policies and programs of the PASDEP.

The safe school environment component of the TP complements with

advancement of health and saving lives as provided under Art. 14(2)(e) and also

relief of those in need due to disability or other disadvantage 14 (2) (h).

Hence, it can be safely concluded that SCS may continue its endeavor towards

advancing access to education and quality of education to facilitate the socio

economic development in the country. Thus, with respect to the education

programme there is no risk of revisiting the whole programme content and its

objectives, except that elements of rights based approach should be diverted to

focus on the needs behind the rights.

In this regard, it can work with government partners mainly with MOE and

other foreign as well as local NGOs. At this point, it is worth mentioning that the

assessment disclosed that MOE education values the intervention of NGOs

including SCS and look forward to continue working together for meaningful

impact on children’s lives. The findings of the assessment also reveal that partner

NGOs working in this area advocate for the rights and work in a rights based

manner. However, it must be noted that all the local partners working on

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education revealed their decision to register as Ethiopian resident charities and

will no longer work in the same approach, thus, there is no risk of losing their

full partnership.

A Civil Society for the Rights of the Child and Human Rights

The third thematic priority is a Civil Society for the Rights of the Child and

Human Rights. SCS based on the envisaged gap in Civil Society Organizations in

Ethiopia that they rarely implement their work using a child rights based approach,

has been engaged in raising the capacity of partner CSO and encourage state

accountability in promoting and safeguarding children’s right.

The Child Rights thematic programme aims at empowering children to exercise

their rights as citizens to hold duty bearers accountable for the realization of the

rights of the child. A list of the objectives to be achieved therein includes the

achievement of educated and empowered children to claim their rights and

report on violations, harmonized domestic laws with the CRC, ACRWC and

other human right instruments ratified by Ethiopia, enhanced government

capacity to implement, monitor and report on the international instruments

ratified by Ethiopia , well aware duty bearers and stakeholders on the rights of

children with disabilities, their special needs and potentials , capacitated partners

on child rights and competent to actively take part in National Civil Society

Networks to promote and monitor the implementation of the rights of the child.

A simple look at the name, content, objective and goal of the programme

suggests that it undoubtedly falls under the restricted activities. As a result, the

child rights programme should no longer form part of the SP as an independent

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programme unless otherwise SCS manages to work under a special agreement at

government level. However, the element of the programme specially

participation and non discrimination can be integrated as values in the other

programmes and mainstreaming CRP can also be maintained in the internal

operations of SCS and partners.

3.3 Specific Projects with partners

Promotion, Monitoring and Reporting of the Rights of the Child

provided by International and Regional Instruments

This specific project aims at promoting and implementing the rights of the child

as stipulated in international and national instruments. This project is also

aiming at creating a platform for children to participate in promoting their rights

and protecting themselves from violence through child rights clubs and children

parliaments. Further, the project is expected to consolidate the efforts of child

rights promotion in Addis Ababa and Oromiya with special focus on creation of

child friendly environment for all children.

This project is implemented by SCS partner NGO named Association for

Nationwide Action for the Prevention of and Protection against Child Abuse and

Neglect (ANPPCAN-Ethiopia Chapter) with technical assistance and capacity

building support from SCS.

This specific project clearly deals with the restricted domain under the

Proclamation Art 14(2)(l) . The assessment revealed that the identified partner,

ANPPCAN ,itself has decided to register as an Ethiopian resident which in effect

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entails its withdrawal from implementing projects of such nature that involve

promoting the rights of children in any way.

The Rights of Children with Disability

This project is for the awareness rising of parents, community and concerned

government offices on the rights of children with disability and to advocate for

adoption and implementation of policy on the rights of children with disability,

and for ratification and implementation of the Convention on the Rights of

People with Disabilities. It also aims to enhance the participation of children with

disability in all areas concerning them. The project implemented by SCS’s local

partner NGOs (Handicap National Action for Children with Disability) with the

technical assistance and capacity building support from SCS.

As the proclamation clearly stipulates that the promotion of the rights of peoples

with disability is reserved only for Ethiopian charities or Societies, SCS can not

run this project as it’s intended. Hence any financial or technical assistance or

capacity building for promoting such rights will fall under the restricted

activities. An intervention in the area needs to be adjusted in terms of an act of

charity for disabled children in line with the proclamation Art. 14(2) (h). Even the

identified partner to run the project may not implement it unless registered as an

Ethiopian Charity or society. It must be, however, noted that direct support on a

need based approach is welcomed by the legislation irrespective of the type of

the organization.

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3.1.4 Administrative operations

Apart from programme related issues one other area of concern for SCS and its

local partners is the implication of the legislation in their administrative

operation. The legislation subjects all civil society groups to strict government

control and inspection bestowing the Charities and Societies Agency (CSA) with

extensive discretionary powers. The CSA has broad powers to refuse to accord

legal recognition to NGOs, to disband legally recognized NGOs, to interfere in

the management and staffing of NGOs and to monitor all activities and to audit

accounts of every NGO covered under the law.

Administrative requirements

The legislation prescribes several administrative requirements the non-

compliance of which would be accompanied by administrative sanctions in

serious cases criminal liability both against the organization and the staff. The

major administrative requirements are summarized as follows:

Accounts: the proclamation obliges officers of a charity or society to keep

accounting records that show the day to day transactions of the organization

/Article 77/. Not only keeping records but as stipulated under Art.83, they have

to notify the Agency about all their bank accounts with necessary particulars

annually or any time upon request. Further, statement of accounts must be

prepared in accordance with acceptable standards and submitted to the Agency

annually. Such statements should also be kept for at least five years as is required

by Article 78/3/. A charity or Society shall also undertake annual examination of

its accounts by a certified auditor or an internal auditor or by an auditor

designated by the agency. From the reading of the provisions, it can easily be

understood that the law burdens charities and societies with strict administrative

procedures.

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Reporting- charities and societies must furnish the Agency an annual activity

report on their major activities and other relevant information concerning the

organization. Such report needs always be attached to statement of accounts and

submitted within three months from the end of financial year or with in any

period upon the request of the Agency /Article 80/.

Administrative Cost: The other implication of the legislation on administrative

operation is the allocation of administrative and operational cost. Art 88 of the

proclamation stipulates as a mandatory requirement that in a budget year, only a

maximum of 30% of the expenses of any charity or society shall be allotted to

administrative activities and a minimum of 70% for its operational cost. Such

requirement does not have flexibility notwithstanding the nature of the

organization or the type of projects and failure to observe such requirement

would entail criminal liability that is punishable with fine against the

organization and against the officer.

Administrative cost as is defined by Article 2(14) constitutes those costs incurred

for emoluments, allowances, benefits, goods and services, traveling and

entertainments necessary for the administrative activities of a charity or society.

It means only 30% of the organization’s annual budget shall be allotted for all

such purposes. The definition of administrative cost, however, begs a question

whether it is limited to administrative staff or includes salaries of program staffs.

Many argue that expenses incurred in relation to administrative activities should

be separated from programme costs, and only those activities that are purely

administrative shall be charged from administrative cost. However, if interpreted

otherwise, it would be very difficult for SCS and partners to cope with the limit

without affecting the quality of their programme implementation. This

ambiguity is expected to be clarified by the regulation that will be enacted by the

Council of Ministers.

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Penalties

The legislation is characterized by imposing stiff criminal penalties for violation

of administrative requirements. As provided under Art 102 of the proclamation,

any Charity or Society or any officer of the same who violates the provision of

the legislation will be criminally liable under the Ethiopian Criminal code. In

particular , non-compliance with the provisions that require the duty to keep

book of accounts, submission of annual statements of accounts; preservation

such records and statements for at least five years; notification of bank accounts;

the 30% maximum administrative cost would entail criminal liability against the

organizations and their officers. The liability mainly involves pecuniary

punishment both against the officer or the organization; it may also involve

imprisonment of officers and suspension or cancellation of license of the

organization.

The management should therefore exert due diligence to observe the

abovementioned mandatory administrative requirements to avoid

administrative and criminal liability against SCS and its officers.

Lack of Judicial Review

One major bearing that the legislation levies upon non-Ethiopian charities and

societies is the denial of the right to appeal to court against the decision of the

administrative organ, while Ethiopian charities and societies are entitled to such

right. By virtue of Art 104(3) SCS and its non-Ethiopian local partners lack any

judicial recourse to take their case on appeal to a court of law on any decision

made against it by the administrative bodies. This means, administrative

decision made over matters of registration, cancellation of license, confiscation of

property, removal or assignment of officers etc. may not be subject to judicial

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review which in effect leaves SCS and its non-Ethiopian partners with the risk of

their licence being cancelled or their property confiscated without any judicial

recourse.

3.2 Implications on Working Relations

Non - government Organizations

Foreign charities, including the save group and others, apart from those who

may enter in a bilateral agreement at government level; and Ethiopian resident

charities will have the same limitation on activities that are already discussed.

Thus, they are facing the same challenge in revisiting strategies, core programs,

projects and even visions and missions when appears necessary.

The assessment revealed that the majority of SCS’s partners NGOs are

registering as Ethiopian resident charity as a result of which they are forced to

revise their visions and missions, strategies, core programs, projects. This can be

seen as advantage since their working relationship with SCS will not be

interrupted so long as they adapt their common plans of action with the new

legal environment. However, as it appears, not all of them have clear

understanding of the implication of the law and some have not even came up

with their adaptation strategic plan.

There is still a fertile ground for SCS to reinforce its partnership with Ethiopian

resident charities and societies and CBOs for technical and financial collaboration

on implementation of its projects that fall within the permitted domain both for

SCS and Ethiopian resident charities and societies. Hence, it is possible to pursue

joint projects on protection such as facilitate or provide children psycho social ,

medical and other relevant services to advance their protection etc. and those on

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education such as, building schools, building the capacity of teachers, curriculum

development, Alternative Basic Education, etc,

Partnering with Ethiopian charities and societies, on the other hand, is not

prohibited at face value but due to the restricted activities for foreign charities

and restriction on the amount of foreign fund for Ethiopian charities, any

possible collaboration will be very much limited. SCS can not continue

collaborating with them for the implementation of activities focusing on the

advancement of child rights or human rights in general or any other activity

which fall within the prohibited acts for foreign charities. Although, Ethiopian

Charities and Societies are at liberty to secure 10% of their annual budget from

foreign sources, the dilemma here is that funding may amount to engagement in

activities prohibited for Foreign Charities, thus, SCS-E may not be able to grant

even the smallest budget in such occasions. The other constraint is, even in areas

that are permissible for foreign charities, Ethiopian Charities and Societies can

only take very limited financial support. However, in this regard they can still

benefit from other capacity building efforts like trainings, knowledge

dissemination, and research outputs funded by SCS.

Government Stakeholders

The legislation has bearing not only on relationships with partner NGOs but also

with that of government stakeholders. It appears that it may not continue its

collaboration on child rights focused programmes of the government. Especially

concerning the justice sector, Art 14(3) of the proclamation provides that the

promotion of the efficiency of the justice and law enforcement services is also

exclusively reserved for Ethiopian Charities and societies. This, in effect, will

limit the relationship of SCS with the police, the judiciary, and other government

organ playing relevant role in the justice sector.

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SCS may consider entering in to a bilateral agreement with the government of

Ethiopia in order to avoid the application of the proclamation, in which case it

will have the liberty to continue its advocacy work with the government on

policy and legal reform, establishment of child friendly systems, voicing

violations of child rights. In such cases, funding child rights focused activities of

the government will also be highly welcomed.

With the view to adapt with the legislation, to advance its development

intervention SCS may pursue collaboration with key development actors with in

the government at all levels. Partnership in different sectors at regional and

federal level can be explored to collaborate with. Networking with professional

training institutions like police colleges, judges’ and prosecutors’ training

centers, academic and research institutions are highly relevant to integrate

research and capacity building activities with in the legal limit.

3.3 Impact on the lives of Children

It is evidenced that the interventions of SCS and partners focused on child rights

promotion programs and highly advocating for the participation of children.

Such interventions gave Ethiopian children the opportunity to develop their

knowledge on their rights and build their capacity to claim their rights from duty

bearers. The programmes also facilitated their association and meaningful

participation in child rights clubs and child parliaments which in effect created

forums for them to express their views, demand their rights and also push for

policy/law reforms.

Nonetheless, these programs face the risk of not continuing in the same way they

used to be implemented. As discussed earlier, as result of the new legal frame

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work, the leading child rights focused CSOs are registering as non –Ethiopian

and thus, withdraw from child rights promotion. This situation will have

unwanted bearing on the ongoing developments achieved in children’s rights

and children’s lives.

Highlighted by one child discussant in the FGDs

‘’The support of SCS and ANPPCAN and other NGOs empowered us with

knowledge of our rights and awareness to claim them from duty bearers. We have

been able to voice children’s views on matters concerning us. The great deal of

technical and material support came from the NGOs, and the governments support

was minimal in this respect. Hence, if our partner NGOs are not going to support

us in promoting our rights, all the promising practices we have set up will be

interrupted .’’

The very few Ethiopian charities will also face the challenge of raising their funds

locally. Given the realities that exist in the country where the economic

development is minimal, and the culture of donation to charitable purposes is

non existent, raising their fund will be very challenging .Thus, they may not be

able to engage in promoting the rights of children to the level of the need and

also collaborate technically and financially with children’s association for the

same purpose.There is also limited capacity, experience and expertise within the

government which hampers the full implementation of the rights of children

enshrined in the international instruments. Not only poverty but lack of

knowledge also impedes the realization of children's rights in the country where

most duty bearers are not fully aware of their obligations to respect and promote

the rights of children. In this regard, it is the civil society has been active in the

past years and playing a leading role to impact children’s lives through the

realization of their rights.

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In Ethiopia still most children's rights are not respected nor are children aware

that they are entitled to rights. There is no developed culture where children

can participate and their views be given value. Despite the fact that child rights

are still a relatively new concept in the country and much intervention effort is

needed in the area, the law is committed to limiting significant civil society

efforts on non-rights issues.

A girl child who is a member of both the child rights club and child parliament

has also stated that ‘‘many of us became properly aware of our rights and

exercised our right to participation through the child parliaments and the child

rights clubs which are strengthened by the support of NGOs, now the law is

negatively affecting us by discouraging our leading partners’’

The law seems to prefer the contribution of non Ethiopian charities and societies

on the deliverable type of programs than advocacy. Such interventions may

address the community’s immediate needs; however, they run the risk of

overlooking the empowerment of the community to demand them as rights. In

addition, the cost of service based programming might appear burdensome and

difficult to attain sustainability.

IV. Conclusions and Recommendations

Conclusions

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As SCS is not established under Ethiopian law, as a result of SCS’s categorization

among foreign charities, SCS will be prevented from engaging itself in those

activities which are exclusively given to Ethiopian Charities. These activities

include the advancement of human and democratic rights; the promotion of

equality of nations, nationalities and peoples and that of gender and religion; the

promotion of the rights of the disabled and children’s rights, the promotion of

conflict resolution or reconciliation; the promotion of the justice and law

enforcement services. As a result, it appears to be challenging for SCS-E to

continue as a child rights advocacy organization and implement its child rights

based working methods, priority programmes and specific projects focusing on

child rights just as the way it used to be.

Yet, some opportunity can still be explored under which SCS may maintain some

of its strategies and priority areas with some adjustments in order to comply

with the current legal environment. SCS may need to revise its working methods

and continue its priority areas on child protection and education by shifting from

rights based approach to a utilitarian approach focusing on development. In

other words, SCS is allowed to maintain its education programmes focusing on

quality and access as the legislation allows foreign charities and societies to

engage in the advancement of education; it can also maintain its protection

programmes in the framework of advancement of health and the saving of lives,

ensuring the welfare of the youth, helping the needy or the disadvantaged,

prevention or relief of disaster as indicated under the proclamation. Apart from

the existing programs, it’s possible for SCS to stretch forth to similar

interventions with in the domain of the law that are meaningful to children’s

lives. However, all such interventions can not be framed in the context of

promoting child rights or human rights in general.

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Otherwise, SCS can also pursue to operate in Ethiopia with a special

arrangement under with the government which in effect will lift away the

jurisdiction of the proclamation. In this case, all the limitations with activities will

no more be a concern in the operation of SCS though the details will depend on

the conditions and terms to be agreed with.

Not only SCS but its local partners that are registered as Ethiopian Residents will

also be prevented from engaging in the above mentioned prohibited charitable

activities and hence, they will not also be able to pursue their child rights based

programmes and strategies. This implies that such partners may continue their

working relationship with SCS but will not work on child rights. The ones that

may continue as Ethiopian charities will have the freedom to engage in any of

the activities but their working relation with SCS will be limited on the activities

permissible for SCS and only with in their 10% limit for foreign fund, if at all

they pursue common area of intervention. On the other scenario, as they have to

raise 90% of their fund locally, even if SCS will work on a bilateral agreement

they can not take fund from it in excess of 10% of their total budget. But one can

be hopeful that there may still be rooms for bilateral agreements to facilitate

reaching the local CSOs through the government but only if such terms are

acceptable by the government.

SCS’s and its local partners relationship with the government will also be

affected when it comes to working in the context of rights especially in the

current situation where government offices are not clear on how they may

pursue to work on child rights with NGOs. But still it’s possible to collaborate on

the fulfillment of children’s needs in a non –rights based framework.

As it appears currently, many of the active NGOs are falling under the restricted

category, which disrupts their vast interventions focusing children’s rights. The

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few that fall under the safe category will on the other hand face limited financial

capacity to continue rights based activities. This, in result, negatively impacts

children’s lives by minimizing CSOs efforts for the empowerment of children to

claim their rights, to participate and be heard.

The proclamation also affects the administrative operation of SCS and its

partners by burdening the management with administrative requirements

entailing criminal liability.

Recommendations

The restrictions imposed on foreign charities under the proclamation necessitates

to strategically come up with coping mechanisms .Based on the analysis made in

the previous sections, some major points are indicated with the view to hint on

future directions to continue serving the interest of children with out

contravening the legal framework.

Reform

It is recommended that SCS-E should consider reforming its core strategies and

key priority areas to bring them in line with the new Charities and Societies law.

It should change the focus of its child education and child protection

programmes from child rights framework to socio economic development of

children. It’s also suggested that it discard the civil society and child rights

programme area as it directly overlaps with the restriction under the law.It also

move towards reshaping its key approaches on capacity building, advocacy,

research and direct support in a non –rights based framework. It should also

limit the CRP and CP framework only in its internal program development.

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Identifying activities

To strategically revise its thematic areas to sort out activities those fall within the

permitted sphere of the legislation and its visions and missions.

SCS may also need to look into key potential strategically preparedness to

support the countries development programs. It’s strongly recommended that

SCS engage in further analysis of secotral policies, strategies, and programs of

the PASDEP to strategically sort out relevant areas of intervention that

complement the country’s development goals.

It’s further suggested that, focusing on the pressing issues of children behind

rights; SCS should engage itself in identifying and formulating needs-based

thematic areas concerning children.

Further discussions

In order to have clear view in future operation, SCS need to stretch for

discussions with relevant bodies at different levels. Some suggested measures in

this regard include:

Consultation with the government organs and find out how the

government would want to work with SCS

Consultation with the Charities and Societies Agency to clarify

government relationship as well as other relevant issues that

remained uncertain.

discussion with local partners after re-registration based on their

revised programmes, strategies, visions, missions with the view to

define the future relationship

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discussion with Save the Children Alliance members to harmonize

the unified presence with in the current legal environment

discussion with relevant international organizations to share

experiences and devise joint strategic interventions

Partnership

SCS should pursue partnership with relevant governmental, bilateral and

multilateral agencies. It should proactively expand its partnership with the

government to provide technical as well as financial support especially with

those sectors actively involved in reaching out at community level. It’s suggested

to design a mechanism that enables SCS to extensively work with regional

governments to reach the grass root level

It should also strengthen its partnership and networking both with Ethiopian

and Ethiopian resident charities and societies designing common non-rights

based interventions and targets on children’s lives within the permitted scope.

It’s further suggested that SCS should employ a participatory method to share

and consult with local partners the possible ways to strategically develop

sustainable partnership. This sort of meeting could alter uncertainty about SCS

future direction and uncover the partner’s agenda. Above all, it facilitates better

opportunity for cross-fertilizing different alternatives and strategies in sustaining

partnership along with shared values and goals.

It is also highly recommended that SCS design an effective networking system to

collaborate with CBOs in implementing community based projects. SCS should

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identify strong CBOs and consider expanding capacity building programs to

empower them own child focused projects.

Administrative Precautions

Considering the imposition of serious civil and criminal liability in the occasions

of violation of the administrative requirements under the proclamation, it is thus,

recommended that SCS should exert due diligence in observance of the

requirements. It should ensure the management and the entire staff are properly

aware of he implications of the legislation upon their day to day activities.

Bilateral agreement with government

The other alternative suggested for SCS to pursue is considering working in a

bilateral agreement basis. According to Art 3(2) the proclamation does not apply

on international or foreign organizations operating in Ethiopia by virtue of an

agreement with the government. In this case, the operation will be governed by

the terms and conditions agreed with the government and, it is possible to work

on rights issues but SCS may not be wholly accepted with all the mandates, the

SP and the TPPs. The advantage is that it will enable collaboration with

Ethiopian charities and societies that work on children’s rights but it must be

born in mind that they may not secure more than 10% of their funds from foreign

source.

Thus, SCS must find other partners; in this case the only ones without any

limitation would be government actors. Hence, SCS can extensively work with

the police, the judiciary, the parliament, MOJ, MOWA and other relevant

government offices that work on children’s rights. Its also possible to work with

Ethiopian Human Rights Commission/EHRC/ and the Institute of the

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Ombudsman which can freely work with local CSOs and one of their focus is

also to support CSOs/CBOs in their activism on rights issues.