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How two democratic governments are muzzling NGOs – perfectly legally

The governments of Ecuador and Canada, both sensitive to criticism and prone to silencing their opponents, are using existing legislation to clamp down on the activities of civil society – including two IFEX members

President Rafael Correa, left, shakes hands with Prime Minister Stephen Harper during the Summit of the Americas in Port of Spain, Trinidad and Tobago, 18 April 2009
President Rafael Correa, left, shakes hands with Prime Minister Stephen Harper during the Summit of the Americas in Port of Spain, Trinidad and Tobago, 18 April 2009

AP Photo/Brennan Linsley

Just last month a free expression NGO in Ecuador received an official letter from the government body tasked with controlling and regulating NGOs, threatening to shut down its operations because of alleged political activity by the group. Last year in Canada, another free expression organization faced an audit of its political activities after it voiced concerns and criticism of decisions made by the current federal government. Are the two groups victims of new laws limiting the work of NGOs in their respective countries? No. Instead, they are arguably the targets of democratically elected governments using existing legislation to crack down on their critics.


Ecuador

President Rafael Correa was elected in 2006, and under his leadership, the space for the free exchange of ideas and information, particularly the sort that questions his government's policies, has been steadily shrinking.

On his weekly Enlace Ciudadano programme the president has called out specific media outlets, and dramatically ripped up issues of newspapers carrying stories he disagrees with. He also has a history of launching legal battles against outlets he does not like, and publicly naming regular people who criticize him on social media. His campaign has even extended to civil society organisations, most recently Fundamedios, the local IFEX member in Ecuador.

Fundamedios has been singled out many times by the Correa government, including publicly questioning its funding sources. But in June of this year they faced their first official threat related to their work. Two changes in the ways that NGOs are supervised combined into a perfect storm headed straight for them. The crazy thing is—that perfect storm? It's perfectly legal.

Firstly, a Presidential Decree that came into force in June 2013 gave President Rafael Correa powers to dissolve independent organizations that, as Jose Miguel Vivanco, Americas executive director at Human Rights Watch put it, “interfere with his agenda”. The constitutionality of the decree has been questioned by numerous civil society organisations.

Secondly, in January 2014, the National Communications Secretariat (Secom) took control of the oversight of Fundamedios and three media company associations. Earlier, Secom had made no attempt to hide how it felt about the NGO's work. At the time of the switchover, Fundamedios had documented 20 instances in which Secom had used official government broadcasts to discredit them.

In its new position, Secom accused Fundamedios of both contravening its own stated purpose as an organization, as well as Presidential Decree 16, which bans organizations from “carrying out political activities reserved to parties and political movements... that interfere with public policies that undermine national or external security of the state or compromise public peace.”

On 24 June 2015 Fundamedios was told to “stop intervening in political issues”. Part of the official letter reads: “Fundamedios shows a clear intention to establish itself as a political actor that seeks to generate suspicion in public opinion on issues that are beyond its competence and without necessary verification of the information published.”

We will continue issuing alerts whether or not the Secom likes them even if it means they shut us down.
César Ricaurte, Fundamedios Executive Director

In response, Fundamedios rejected the accusations and stated its intent to continue its work as usual. César Ricaurte, the NGO's executive director, said during a press conference that, "Fundamedios is not a partisan organisation for or against any particular political movement. We do work that is in the public interest. We will continue issuing alerts whether or not the Secom likes them even if it means they shut us down. We will continue to work from our homes.”

Fundamedios is not the first organization in Ecuador to fall victim to the decree. In December 2013 an environmental group was actually shut down using the presidential decree on the grounds that several of its members had allegedly participated in a violent demonstration.


Canada

The situation for free speech in Canada has also taken a turn for the worse under the current prime minister, who has been in office since 2006. Small measures, such as limiting the number of questions journalists can ask Prime Minister Harper, excluding information that can be shared via ATI requests, and controlling communications between ministries and the public, which have been introduced during Harper's nine years in the prime minister's office, have slowly eroded the space for free speech in the nation.

One of the organisations in Canada advocating for the right to freedom of expression and information is IFEX member PEN Canada. They are an organization that practices what it preaches, criticising the administration when appropriate, and using Access to Information to shine a light on the actions of the government. Currently, Canada is ranked relatively low at number 59 out of 102 countries on the Global Right to Information Rating.

In January 2013 PEN Canada filed a freedom of information request for documents about letters that were sent to several registered charities in Canada reminding them about limitations on political activity. In Canada, organisations that have charitable status (including PEN Canada) may spend no more than 10% of their resources on political activities. If it is determined that more than 10% of their work is dedicated to political activities, these organisations can lose their charitable status, and with it, the ability to issue tax receipts to their donors. The definition of what constitutes political activity is rather nebulous, and many organisations that are warned about their activities being political are not given clear explanations of why they are being singled out. This was the basis of PEN Canada's freedom of information request.

After more than one year of communications with the Canada Revenue Agency (CRA) and complaints filed with the Information Commissioner of Canada about the way their request was being handled, on 9 April 2014, PEN Canada was told by the CRA that they too were going to be audited, and that the audit would include looking into their political activity.

PEN Canada's Executive Director Tasleem Thawar told IFEX that when she asked the CRA why they had been chosen for an audit she was told there were any number of reasons, from a public complaint to a routine audit.

For about two months before the audit, a significant amount of time was spent putting together what the CRA had asked for.
Tasleem Thawar, PEN Canada Executive Director

She added that the work to prepare for the CRA auditors was difficult and time-consuming: “We are a small organization and do not have extra capacity to do this kind of work. As a result, for about two months before the audit, a significant amount of time was spent putting together what the CRA had asked for.” She said that in the end the audit process took a toll on their ability to pursue their regular work.

In addition to this disruption to their work, the organization had to contend with the possibility that they would lose their charitable status. In this they are not alone. As the Canadian media have reported, PEN Canada is part of a growing group of organisations, including Amnesty International Canada and the Canadian Centre for Policy Alternatives, that have worked under the threat of losing their status, some of them afraid to speak out lest their words influence the outcome of their audits. In January 2015, Dying with Dignity lost its charitable status, the first group to do so since the CRA launched a series of political activity audits in 2012.

According to Thawar, they were told in July 2014 that the audit process would take between two and three months, but even into the new year, the results were not known.

So, where does this leave Fundamedios, PEN Canada, and so many other organisations in Ecuador and Canada that have felt the chill of their governments' silencing? In short, in limbo. While these groups undergo scrutiny and uncertainty, they continue their work promoting free expression, and defending their own right and the right of others to criticize the actions and policies of their governments.


This is an edited version of the article that originally appeared on 24 July 2015.

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