On June 21 a new law targeting non-governmental organizations in Guatemala came into effect. Reforms to the law governing the activities of non-governmental organizations, known as the “NGO Law”, grant the government the ability to unregister an NGO without having to go through a legal procedure or provide a mechanism for defense, and allows for more control over internationally provided funds. Civil society organizations have filed motions disputing the constitutionality of the law and have called on the Guatemalan government to repeal the law and uphold, among others, the freedom of expression and association.
The reforms were first adopted on February 11, 2020 by the Guatemalan Congress with the support of the governing party and conservative lawmakers. Despite calls from civil society and international organizations to veto the bill, President Giammattei signed it into law on February 27. It’s implementation, however, was provisionally suspended by the country’s highest court four days later.
On May 12, 2021 the newly elected Constitutional Court (CC) overturned the earlier ruling giving the green light for the law to move forward. This was one of the court’s first major rulings and came shortly after the Guatemalan Congress blocked anti-graft judge Gloria Porras from being sworn in as magistrate to the court after having won re-election for another term.
More than 200 civil society organizations signed a statement rejecting the reformed law, saying that it “grants the Executive an almost absolute power to decide who can and who cannot express themselves and organize.” International organizations have also come out against the implementation of the law and called on the authorities to repeal the legislation.
The government’s insistence on moving forward with the law, despite criticism, shows a serious attempt to attack and undermine civil society. This makes it critical to understand what the NGO law purports to do, who it would affect, and the urgent need for Guatemalan civil society and international partners to remain vigilant of, and to push back against, efforts to restrict civil society.
Decree 4-2020 amends legislation commonly referred to as Guatemala’s “NGO Law,” by imposing new executive controls on the day-to-day financial and administrative activities of non-governmental organizations operating in the country. The previous Guatemalan Congress attempted to pass similar legislation on many occasions, but civil society and the international community strongly objected each time, citing concerns that the legislation violates freedoms of expression and association outlined in the Guatemalan Constitution and upheld in international standards.
The law seeks to:
1) Give the Interior Ministry the ability to unregister an NGO if it considers this organization to have violated the public order. The NGO in question is not subject to a trial and there is no mechanism to defend itself in light of the government’s accusations and actions.
2) Increase financial control of NGOs. Guatemala has various norms that ensure NGO accountability. All must register before the official tax administration and report to this institution. Non-profit organizations submit annual reports to this same tax entity. The State already has the mechanisms in place for sufficient oversight. With this law the government would have control over funds provided by international donors to support NGO efforts.
Other worrisome elements of the law give the government the authority to:
By these measures, the law opens the possibility that civil society organizations could be subjected to the government’s arbitrary interpretations of “public order.” The potential repercussions outlined in the law could have a chilling effect on citizen participation. By narrowing the space for criticism, the law could gravely impact citizen participation in Guatemala’s democratic institutions over the long term.
Another concern is that the law could be used as a tool for targeting and criminalizing specific civil society groups and leaders who do not align with the goals and priorities of the Giammattei administration and future presidencies.
Supporters of the law argue that one of the objectives is to increase supervision of NGOs, arguing that there have been irregularities in the management of public and international funds, and that in some cases these groups work to destabilize governments, obeying an international agenda. (This discourse was the same one used to remove CICIG).
However, Guatemala already has multiple legal mechanisms in place to ensure that entities receiving public funds use them accordingly. Moreover, non-governmental organizations, religious entities, unions, and other associations must complete a multi-step process to register with the country’s tax authorities. Other legal mechanisms include sophisticated criminal legislation aimed at preventing activities like money laundering to common finance laws on the books. Because the NGO law requires organizations to undergo an additional, onerous registration process, this could dissuade associations from forming in the first place. The more exacting registration process could also create situations in which powerful special interest groups could discredit or even move to abolish civil society groups for having failed to fully comply with the regulations.
Corruption is a deep-rooted, systemic problem in Guatemala. Various investigations have exposed widespread corrupt networks, made up of political and economic elites who trade in embezzled funds, public contracts, and key positions in government institutions. Over the last decade, the Guatemalan justice system, with the help of the UN-backed anti-corruption mission the International Commission Against Impunity in Guatemala (CICIG by its Spanish acronym) opened multiple investigations that helped reveal much of this systemic corruption to the general public.
The NGO law is a major threat to civil society organizations working to promote greater government accountability and defend citizens’ rights, from the right to live free from violence, the right to an accountable police force, or the right to access to basic medical and educational services. More specifically, civil society groups that strongly criticize actions that debilitate or dismantle the achievements of the fight against corruption –including organizations that have filed legal complaints against some official policies– would be particularly vulnerable if the law goes into effect.
The NGO law also represents a threat to associations working in defense of indigenous land rights and other social and/or ethnic groups, given that these organizations are already operating in particularly challenging environments, at risk for criminalization of their work and acts of violence.
Legislation that restricts civil society’s ability to organize and find support for their work is increasingly common around the globe.
In 2020, the Nicaraguan legislature passed the “Foreign Agents Law” which requires any individual or organization that receives funds from abroad to register with the Ministry of Interior as a foreign agent under penalty of sanctions. Under the law, ‘foreign agents’ must report their income and expenditures on a monthly basis and identify the foreign government, organization or individual providing the funds. Registered foreign agents are prohibited from running for public office or interfering in political matters. The law has put organizations that receive international support under intense pressure, and led to the closure of at least two prominent organizations, the Nicaraguan Chapter of PEN International, and the Violeta Barrios de Chamorro Foundation, whose director –a potential presidential challenger to incumbent Daniel Ortega– was later arrested on charges that the foundation had laundered foreign funds.
Egypt passed a law in 2017 that allows the government to dissolve NGOs on vague terms such as “harming national unity and disturbing public order,” language that is echoed in the Guatemalan NGO law. According to an NGO representing victims of torture interviewed by Amnesty International, hundreds of Egyptian associations have been shut down without evidence and are facing criminal charges. While the law was reformed last year due to international pressure, it still asserts many of the same controls.
An organization was shut down in Pakistan for providing information to the United Nations Human Rights Council, thanks to a new law that empowered the government to disband organizations on the grounds of “involvement in any activity inconsistent with Pakistan’s national interests, or contrary to government policy.” Similarly to the Guatemalan NGO law, the legislation in Pakistan also included stricter administrative and financial monitoring.
Russia has been successful in severely limiting the work of civil society through restrictive legislation. A 2012 law requires organizations involved in vaguely defined “political activities” who receive international funding to register as foreign agents. On the basis of this law, the country raided and investigated hundreds of organizations that were then placed on a “foreign agent” list. The Russian government has also passed an “undesirable organizations” law, banning international organizations’ support for local NGOs if engaged in activity that threatens Russia’s “security or constitutional order.”
As described earlier, the NGO law came into effect on June 21. The Guatemalan government has 30 days to issue the regulations required under the law and once published, non-governmental organizations have 6 months to register.
Five appeals on the basis of unconstitutionality have been filed before the Constitutional Court. The court has yet to respond and announce whether it will suspend implementation of the law or consider the appeal but allow the law to move forward. According to many analysts, the court ought to provisionally suspend implementation of the law until it conducts a thorough analysis of the inconstitutionalities and risks to fundamental rights and freedoms.
Since it was first passed, the NGO law drew strong criticism from both Guatemalan and international organizations. In a statement by the UN High Commissioner’s Office for Human Rights, a group of experts stated that the law opens the door to discretional limitation of the right to assemble, the right to peaceful process, and the right to free expression; it also could lead to the criminalization of other human rights, the group of experts said. More recently, the implementation of the law was condemned by several international actors, including the Inter-American Commission on Human Rights, the Biden administration, and U.S. Members of Congress.
This criticism was based on the recognition of the invaluable role played by civil society organizations in a democratic society. An active civil society allows for more transparent decision-making processes, more accountable institutions, and narrows the gap between the electorate and those in positions of power. All this helps fend off autocratic trends towards overly concentrated networks of power.
Given how Guatemala’s NGO law attempts to restrict important freedoms enshrined in many international human rights instruments, the international community should condemn efforts to restrict civil society and limit anti-corruption efforts in Guatemala and urge the Guatemalan government to repeal the law. Moving forward, it is critical that international partners remain vigilant to help prevent the law from being used to penalize civil society organizations, or to criminalize their leaders, that have been critical of the government’s policies or work to demand greater government accountability.
*This analysis was updated on June 29, 2021. Adeline Hite, former Program Associate for Citizen Security, contributed to the original commentary published in March 2020.