Introduction
The experience of monitoring how conflict affects fundamental rights, and research into various human rights themes such as women’s rights, child labor, food security and corruption in Afghanistan clearly shows that, without direct reference to the Universal Declaration on Human Rights (UDHR) as the criteria for monitoring indicators, and as benchmarks for an inclusive democracy, it is much more difficult for civil society to engage, and challenge, government authorities on its human rights obligations.[1]
Interactions between state and civil society about the fundamental rights of citizens, within and outside a legal framework, can be characterized by the actual and assumed mutual rights and obligations of the state and its citizens, negotiation mechanisms for allocation of public resources, and means of representation and accountability for both sides. The two extremes within which the State derives its legitimacy are governing based on broad-based consensus within a rule of law at one extreme, and fear and intimidation by use of force and terror on the other.
Depending on the positioning of the state within the bounds set by these two extremes, an organized and active civil society engages state authorities through a mix of peaceful dialogue and confrontation.
State-society relations, based on institutional qualities and principles that underpin mutual dependability and trust, amount to “good governance”. These institutional qualities are performance, adaptability, and stability while the principles are participation, rule of law, transparency, responsiveness, consensus, equity, effectiveness, efficiency, and accountability.[2] A State respectful of its commitments under the Universal Declaration of Human Rights (UDHR) is very likely to protect and abide by these principles of good governance.[3]
When the State has the will and capacity to perform its functions, meet public expectations and uphold its obligations to protect citizens’ rights and interests, the population is more likely and willing to comply with laws and regulations, pay taxes, and accept the State’s authority on the legitimate use of force to maintain stability and order.[4] Civil society’s role, in this spirit, is to ensure that the State deliver on its part of the bargain.
Democracy and Civil Society – State Relations
A mature, stable – and civil – government is open to, and seeks, criticism for informed governing. In a democracy, a substantial part of this criticism originates from a strong network of civil society organizations with stakes in different policy making processes and, by extension, the political discourse. In a democratic mode of governance, civil society has its voice, resources to sustain it, and recognition. Civil society’s right to have independent voice, and the right to disagree with government policy and approach from time to time is fundamental to maintaining democracy as a process and complying with the principles of good governance.
Some civil society organizations cooperate with governments, while others may criticize and confront. In all cases, the general understanding in a democracy is that there shall be no threat, damage, revenge, persecution or prosecution of civil society organizations by the government or its agencies while dissenters function within the rights warranted by law, including those on dissent. Registration of civil society organizations with government authorities should be merely a technical issue and not a means for the government to control or constrain legitimate activity, unless civil society organizations commit crimes or undertake illegal activities.
It is common for less democratic governments not to approve of financial assistance to civil society organizations with human rights mandates, particularly from external sources, unless persuaded or forced by international donors as a condition of receiving continued development and humanitarian aid funding. Less democratic or autocratic governments attempt, from time to time, to limit access and resources for civil society, prosecute civil society leaders, and defund and deregister civil society organizations for political reasons.
Deregistration of civil society organizations results in isolation while disallowing external funding severely undermines ability to function. Deregistration, isolation, and defunding deprive civil society organizations from having access to their constituents, government officials, and networks of other organizations, often resulting in complete collapse of the vast majority of the organizations.
Under repressive governments, members of civil society organizations with human rights mandates can be prosecuted, persecuted and in some cases incarcerated where they may be subjected to mistreatment, including torture, and even death. All this can happen because civil society dares to speak truth to power, and strive for freedom of speech and assembly, gender equality, rights of minorities and the persecuted, or rights of immigrants.
Conflict and Civil Society – State Relations
For countries emerging from conflict or dictatorship, the social relations, the structures through which they are maintained, and the power relations therein, tend to persist long after the conflict or the dictatorship has ended. These very same, and inequitable, structures and social relations tend to sustain inequality, exclusion, discrimination, exploitation, corruption, and various forms of violence.
The civil society organizations and key personalities from civil society that become parts of post-dictatorship or post-conflict democratic governments have shown a tendency or vulnerability toward being captured or coopted by the pre-democracy and conflict-generated networks, social relations and structures – to become the new autocracy. This has certainly been evident in South Africa, Myanmar and, to some degree, Afghanistan. In these countries, soon after democratization, civil society felt that the new government was out of step with the collective ideals and demands of civil society on such fundamental issues as widespread poverty and inequality, ethnic and religious tensions, and high levels of petty and grand corruption and other forms of criminal activity.
Faced with these outcomes, many of the uncaptured and un-coopted civil society organizations and activists distance themselves from the new government and resume their activities to pursue and fight for fundamental rights. This resumption of activities can be seriously constrained by an autocratic government limiting freedom of speech and assembly, not supporting civic activities, and disallowing external funding for national NGOs and other civil society organizations operating independently of the government.
Modes of Civil Society – State Engagement
A vibrant and active civil society typically reassesses its operating environment and develops new strategies for constructive engagement with government authorities. There are three related approaches that may be adopted by civil society:
- Cooperation with the government, to the degree to which this cooperation serves the constituency of civil society organizations in terms of fundamental rights and freedoms,
- Peaceful demonstrations and petitions to alert government authorities to policies or issues adversely affecting the citizens and their rights, and
- Legal contestations of government decisions and actions that undermine fundamental rights and freedoms.
Cooperation with the State requires well-established and independent civil society organizations and networks, dedicated mechanisms for structured dialogue between State authorities and civil society organizations, and clearly defined roles and responsibilities to ensure transparency and mutual accountability within the rule of law.
Cooperation also requires legal provisions for social, economic, and political rights, legitimate access to information, and semi-governmental entities with mandates on gender equality, human rights, and public accountability that would act as bridges between civil society and its organizations on the one hand and government authorities on the other. In South Africa and Afghanistan, for example, provisions are made in the constitution for the establishment of semi-governmental entities with mandates on human rights in accordance with UDHR principles.
However, it cannot be assumed that even under these conditions, the selection of civil society individuals to work with government authorities is always equitable, transparent, and representative of the population at large or that these arrangements guarantee keeping the government in check. Social audits by trained local community members of local governments’ work and performance can draw attention to specific actions of the government that undermine fundamental rights of the citizens or can form the basis for making demands for government action to address an issue of importance to the community. Included in the means employed to attract the government’s attention are evidence-based communiques, petitions, and demonstrations to express group objections or demands.
Civil society may also opt to use the formal legal system to challenge government decision or action. The success in the use of legal proceedings against the government is a function of a reasonably independent and transparent formal justice system. Using litigation against the government is, nevertheless, time-consuming, costly, and causes significant damage to mutual trust between State and civil society, making it generally more difficult for civil society to re-engage the government using less confrontational approaches.
Despite its many critiques, from being overly centered on an image of the individual in a western liberal democracy to being insufficiently attentive to a communitarian view of human rights, the UDHR remains as a powerful armor in the arsenal of civil rights and human rights activists the world over.
Efforts by civil society to contest or initiate collaborative engagement with the State on the fundamental rights of citizens are likely to carry more weight and legitimacy if linked with the fundamental rights principles as prescribed in the UDHR.
About the author
Saeed Parto was an O'Brien Fellow in Residence at the Centre for Human Rights & Legal Pluralism from September to December 2018. Saeed holds a PhD in Economic Geography from the University of Waterloo, and specializes in policy and institutional analysis.
He is co-founder and Director of Research at the Afghanistan Public Policy Research Organization, based in Kabul, Afghanistan (www.appro.org.af); the Director - Academic at the GRAD training Institute in Kabul, Afghanistan; and a partner in APPRO-Europe (Brussels, Belgium), a network organization for information sharing and dissemination on rights-related development issues in conflict environments.
[1] Afghanistan is signatory, without reservations, to most international human rights treaties, including UDHR. This blog post is based on learning from “Afghanistan Rights Monitor”, a project funded by the Dutch Ministry of Foreign Affairs, implemented by Afghanistan Public Policy Research Organizations (APPRO) in Afghanistan, 2015-2018. This post has particularly benefited from insights by Pearl Eliadis, Sarah Pugh, and Lucile Martin.
[2] See, for example, UNDP (1997) Governance for Sustainable Human Development. United Nations Development Programme.
[3] Article 21 of UDHR, for example, states that:
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
[4] Based on DFID (2010), Building Peaceful States and Societies: A DFID Practice Paper, (London: Department for International Development), available from: http://www.gsdrc.org/docs/open/CON75.pdf