Beating the human rights drum: Applying human rights standards to NGOs’ governance

Maria Nassali

Description

The main contention of this book is that non-governmental organisations (NGOs) have the obligation to empower themselves internally before they can champion the empowerment of others. This entails being knowledgeable in the area of work; forging linkages with broader civil society and academia; building on the positive cultural values that resonate with human rights to stimulate mass support; and balancing the different accountabilities to the law, boards, membership, self-regulatory mechanisms, public and donors.This book is based on the author’s (LLD) thesis, submitted to the University of Pretoria. The thesis was subsequently revised, based on a further peer-review process.About the editor:Maria Nassali is Chief Executive Officer of International Governance Alliance (iGA). School of Law, Makerere University, Uganda

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2015
• Nombre de lectures: 0
• EAN13: 9781920538408
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

BEATING THE HUMAN RIGHTS DRUM Applying Human Rights Standards to NGOs’ Governance

Maria Nassali School of Law, Makerere University, Uganda Chief Executive Officer of International Governance Alliance (iGA)

2015

Beating the human rights drum: Applying human rights standards to NGOs’ governance

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: BusinessPrint, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-1-920538-40-8

© 2015

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TABLE OF CONTENTS

Foreword Preface Acknowledgments About the author Dedication Cases, statutes and documents Acronyms

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Conceptualising the role of NGOs in the human rights movement 1 Introduction and overview 1 2 The concealed and unchecked power of NGOs: A background discussion 3 3 Linking rights, governance and development 8 4 Book overview 10

The human rights obligations of NGOs in the international arena 1 Introduction 13 2 NGOs’ obligations under international law 14 2.1 NGOs do not have legal obligations under international human rights law 14 2.2 NGOs legal obligations to respect and promote human rights 17 3 The rights-based approach as an instrument of good governance 25 4 Implications of the rights-based approach to NGO governance 26 4.1 Express linkage to human rights 26 4.2 Accountability and Transparency 27 4.3 Participation and inclusion 29 4.4 Equity, non-discrimination and empowerment 31 5 Conclusion 33

NGOs and the principle of express linkage to human rights 1 Introduction 35 2 Why all NGOs should apply human right principles to their governance and management 35 3 The principle of express linkage to rights and the universality of human rights 39 3.1 The universality of rights: The conceptualisation of rights amongst NNGOs and SNGOs 40 3.2 The universality of rights: African NGOs and cultural interpretation 41 4 The principle of indivisibility of rights: A case study of DNGOS and HURINGOs 47 4.1 The traditional relationship between DNGOs and HURINGOs 47

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4.2 The indivisibility of rights: HURINGOs and the development agenda Conclusion

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NGOs and the principle of accountability 1 Introduction 55 2 Accountability through the law 56 2.1 The right to exist informally as an organisation 57 2.2 The right to legal existence and the obligation to register 59 2.3 Protection from unwarranted state interference 63 3 Accountability to the sector wide mechanism for self-regulation 68 4 Accountability to the NGO Board 71 4.1 The Board as a source of accountability 71 4.2 The mechanisms of accountability by the Board 74 4 Accountability to members 81 5 Accountability to the communities 85 6 Transparency and public accountability 87 7 Accountability to donors 90 8 Conclusion 92

NGOs and the principles of participation and inclusion 1 Introduction 95 2 Founders and inclusive and participatory management 96 3 Broadening participation through transitions and succession 99 4 Participation and the management of conflicts 105 5 NGOs and community participation 108 6 Peer NGO networks and coalitions 113 7 Participation of NGOs in political society 122 7.1 Making the case for NGO’s political participation 122 7.2 Collaboration and critical engagement with government 125 7.3 Civil disobedience 130 7.4 Entering the state 133 8 NGOs and the African Commission on Human and Peoples’ Rights 135 9 NGO participation with National Human Rights Institutions (NHRIs) 139 10 Conclusion 142

Exploring the principles of empowerment, equity and non-discrimination 1 Introduction 145 2 NGOs, empowerment and human rights and governance expertise 147 2.1 NGOs and human rights and governance expertise 147 2.2 The dilemmas of volunteerism and the payment of competitive remuneration 154 2.3 Empowerment and sustaining activism 157

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Empowerment and resource mobilisation to achieve an NGO’s mission 161 3.1 NGOs and government funding 161 3.2 NGOs and foreign donor funding 163 Empowerment of marginalised groups within the NGO sector 172 4.1 NGOs and the empowerment of women 172 4.2 NGOs and the empowerment of the youth 179 4.3 NGOs and sexual minorities 181 4.4 NGOs and the empowerment of racial and ethnic minorities 183 The contemporary efforts of promoting equality and empowerment within the NNGOs/ SNGO relationship 184 Conclusion 196

Walking the talk: Holding NGOs accountable to human rights principles 1 Introduction 199 2 NGOs’ human rights obligations 200 3 NGOs’ human rights obligations elaborated 201 3.1 The principle of express linkage to rights (mainstreaming) 201 3.2 The principles of accountability and transparency 202 3.3 The principle of participation and inclusion 203 3.4 The principles of equity, non-discrimination and empowerment 204 4 Status of NGOs’ observance of human rights obligations in Kenya, Tanzania, Uganda and South Africa 205 4.1 The status of observance of the principle of linkage to rights 205 4.2 The status of observance of the principles of accountability and transparency 206 4.3 The status of observance of the principles of participation and inclusion 208 4.4 The status of observance of the principles of equity, non-discrimination and empowerment 210 5 Recommendations 212 5.1 NGO obligations under the principles of linkage to rights 213 5.2 NGO obligations under the principles of accountability and transparency 214 5.3 NGO obligations under the principles of participation and inclusion 216 5.4 Equity, Non-discrimination and Empowerment 219 6 Concluding thoughts 222

Bibliography

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FOREWORD

This book is based on the author’s doctoral thesis, which I was privileged to supervise, with Professor Joe Oloka-Onyango from Makerere University as co-supervisor. Dr Nassali was awarded the degree from the University of Pretoria for the thesis titled ‘Non-governmental organisations, governance and human rights in South Africa and selected East African countries: Conceptual and strategic questions’. The thesis has subsequently been reworked into this manuscript, after having undergone peer review.

The end result is a passionate and well-informed plea for human rights- based NGO governance. Dr Nassali’s work provides a set of yardsticks against which the operation and role of NGOs may be assessed. Also those who beat the human rights drum have to pause, to reflect on their legitimacy, efficiency and accountability. By drawing importance to and by providing substantive markers and yardsticks for this process of reflection, Dr Nassali’s work aims to improve the functioning and enhance the legitimacy of NGOs. This book infuses the human rights discourse with a new rhythm, ultimately aimed at strengthening the beating of the human rights drum.

This book appears against the background of ever-shrinking spaces for civil society in many African countries. Paradoxically, but perhaps predictably, greater prominence and impact of human rights activism in many incomplete democracies has seen governments responding with casting aspersions on civil society organisations and questioning their legitimacy, cost-effectiveness and motives. Such actions create an environment for restrictive legal regulation, for example, limiting sources of ‘foreign’ funding.Beating the human rights druminvestigates this process in a balanced way.

Frans Viljoen Director, Centre for Human Rights

Below are comments from scholars who have perused the manuscript:

Typically, non-governmental organizations (NGOs) provide the focus and critique for much that is wrong in the arena of governance and democratization in contemporary Africa. They are the proverbial ‘hunters’ and are unsparing and relentless in quest of their prey,viz., unaccountable governments, dominating multinational corporations and authoritarian social and political majorities. In this penetrating examination of the extent to which NGOs apply some of the basic principles of go od governance and human rights to themselves, Maria Nassali’sBeating the Human Rights Drumoffers a penetrating and instructive study of the issue of governance and democracy within non-governmental organizations (NGOs). Nassali provides a sharp and deeply analytical survey of the

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issues of accountability, transparency, inclusiveness and empowerment that NGOs point to in others, but are founding wanting when applied to themselves.Beating the Human Rights Druman important book with is cross-disciplinary application and is bound to influence the debate over NGO governance and accountability for decades to come.

J. Oloka-Onyango Professor of Law, Makerere University

“Before pointing the finger at others – you should point it at yourself first! Says the old adage and that is exactly what Dr. Maria Nassali’sBeating the Human Rights Drumvery successfully does. Over the years across the globe NGOs have been up in arms against States which are not accountable and violate human rights left, right and centre. However, little time is spent on self-evaluation on the part of NGOs and other members of the civil society. Founders’ syndrome – through which those establishing NGOs remain in leadership positions forever, is rampant across the globe. NGOs criticises politicians for amending constitutions to remain in office forever without posing to look at their own governance! InBeating the Human Rights Drum, Dr. Nassali confronts the bull by the horns – without fear of being ostracised and expulsion from the ‘Club’. This is a major scientific work which tremendously contributes to knowledge. The time of silence on governance and accountability in civil society is over – gone and gone forever. With the Drum beating, it is clarion call for NGOs to stand up to be counted as in accountability, rule of law and good governance there are no sacred cows!”

Chris Maina Peter Professor of Law and Member, UN International Law Commission (ILC)

Putting your own house in order, in the quest to promote and protect human rights, demands a deep level of responsiveness and openness to the gaze of outsiders. Dr. Maria Nassali turns her gaze on NGOs and asks them to look at, analyze, and reflect on their human rights practices and the legitimacy thereof, as they work at the national, regional and international levels.

The book‘Beating the Human Rights Drum’to shed light, through aspires both theoretical and empirical research, on the governance and human rights practices of NGOs. Speaking truth to power, the book makes an important contribution to debates on self-regulation and governance that is transparent, responsive, participatory and accountable on multiple levels, in order to enhance the practice of human rights internally and externally. It does so in a constructively critical way, but with empathy and acknowledgement of the value and much-needed work of NGOs, but it does demand that they must also turn their gaze inwards in order to reflect on their own practices.

Rashida Manjoo Professor of Law, University of Cape Town (South Africa) UN Special Rapporteur on Violence against Women

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PREFACE

After belabouring for hours to explain to my grandmother, Evelyn Nakitto, the subject of my doctoral studies, she summed it up in one sentence: ‘Ooh! You are going to study good manners.’ I then began to question why human rights is a concept that is almost exclusively confined to regulating state power. And yet, despite NGOs’ effort to dismantle existing power structures of especially hierarchies and patriarchies, NGOs inadvertently repeat the same structures within their organisations and relationships. I began to explore the concept of human rights based approaches.

While upholding that the state is the main human rights duty bearer and legal systems are critical to the enforcement of rights, I utilise the sociology of law discourse that conceptualises human rights as a normative principle to contain abuse of power. Drawing from the rights-based approach which is aimed at holding all actors accountable for the human rights implications of their actions, I evaluate how NGOs have applied the human rights principles and standards to their governance and operations, as they demand of others.

It is the main contention of this book that NGOs have the obligation to empower themselves internally before they can champion the empowerment of others. This entails being knowledgeable in the area of work; forging linkages with broader civil society and academia, building on the positive cultural values that resonate with human rights to stimulate mass support and balancing the different accountabilities to the law, boards, membership, self-regulatory mechanisms, public and donors. Further NGOs have the obligation to safeguard the autonomy of their mission; have transparent and participatory processes to enhance collective strength, legitimacy and ownership of consensus decisions; as well as promote and demand equal and equitable relationships based on mutual respect, shared responsibility and achievements while simultaneously enabling the weaker party to act on their own agency.

I argue that all NGOs have to mainstream human rights in their work, because they exist in the public trust and work to promote human dignity and societal wellbeing. Applying the human rights principles to NGOs enhances their moral legitimacy to measure up to the challenges of being a watchdog of the governance process and custodians of the better promotion and protection of human rights. Significantly, it advances the credibility of human rights to offer protection from any abuse of power. NGOs must lead by example by beating the human right drum for themselves.

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ACKNOWLEDGMENTS

This book emerged out of and is largely based on my LLD research at the Centre for Human Rights, Pretoria. I thank the LLD class for the collegiality and sacrifice of reading and peer reviewing the very raw and often chaotic first drafts of the chapters and for posing the hard questions; Umar Kakumba, Frederick Jjuuko and Jane Barry for reading and editing my scripts; the Founding Board of Urgent Action Fund-Africa, Hope, Vahida, Jane, Betty for your empathy and encouragement. I am also grateful to Busingye Kabumba for serving as my copy editor. Emerson Sykes and Ezra Mbogori I thank you for the critique and relevant information towards making this book up to date.

I am grateful to Chris Maina Peter for authorising Kituo Cha Katiba (KCK) to promote my PhD studies and for the books donated to me to launch my academic life. His appreciation of the need to grow the individuals within the organisation is further demonstrated by his endorsement of International Governance Alliance (iGA) to support my academic growth by enabling me to translate the academic thesis into this book.

I am also thankful to the Ford Foundation through the auspices of then Resident Representive, Tade Aina for his confidence in my capabilities and mentorship; Joseph Gitari for having introduced the concept of NGO governance to me; Willy Mutunga and Nikki Naylor for the field research grant; Alice Brown for the friendship and having bought me my first proper meal in South Africa and Maurice Makoloo and Monica Aleman for the financial resources and enthused encouragement that made this book a reality.

Prof Frans Viljoen, this is a journey walked together. I am indebted to your thorough and no-nonsense critique always given with the necessary kindness to cushion it while stretching my brain beyond imagination. Prof Oloka-Onyango, for comradeship in the struggle and for polishing up my original thesis, I am thankful. I have also learnt from my supervisors the need for a meticulous eye for detail and the importance of doing the right thing – however boring or insignificant. Your encouragement to revise the thesis to meet contemporary realities and for the solidarity demonstrated in refining the manuscript of this publication, goes beyond the call of duty and has challenged me to give the same to those who may seek my favours. Many thanks for mentoring me by example.

Both my families from Uganda, USA and Nigeria (Mr and Mrs Ihonvbere) I thank you for the fraternity, love and support. My children, Jacque, Alice, Marita and Kevin, I am indebted to your patience and understanding during my absence and importantly for cherishing me as the ‘best mum’.

To the activists, I honour your work. May you continue to beat the human rights drums for yourselves and dance to it with abandon.

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ABOUT THE AUTHOR

Maria Nassali obtained her doctorate (LLD) in Human Rights from the University of Pretoria and Master in Law and Development from the University of Warwick, UK. She currently teaches at the School of Law, Makerere University in Uganda. She is also employed as the C hief Executive Officer of International Governance Alliance (iGA), an East African think-tank that links theory to practice in governance in the thematic areas of women, media and resources.

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DEDICATION

To my parents, Esta Namayanja and Mikaili Kalimali, both ‘illiterate’ but rich in earthly wisdom who strived to academically educate me.

I am relieved that I have achieved our mutual dream of being a scholar.

I now know for sure that human rights is about good behaviour by using power in ways that treat others the way oneself would like to be treated.

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