CIVICUS discusses Peru’s controversial anti-NGO law with Álvaro Henzler, President of Asociación Civil Transparencia, an organisation working for quality democracy and fair political representation.

The Peruvian Congress recently passed a law imposing new oversight rules on civil society organisations (CSOs). This initiative, which comes at a time of prolonged political instability, has been strongly criticised by human rights networks and international institutions for its restrictive potential. It gives the Peruvian Agency for International Cooperation (APCI) greater powers to monitor the activities and sources of funding of organisations. Civil society warns this could become a mechanism for control and reprisals.

What does the new anti-NGO law say?

In the name of transparency, the anti-NGO law seeks to silence civil society if it inconveniences those in power or has ideological positions that differ from those of the authorities. Congress approved it after several failed attempts and despite warnings from the international community and Peruvian civil society about its authoritarian, unconstitutional and risky nature.

The authoritarian nature of this law is evident in three fundamental aspects. The first is that it brings civil society into the fold of the state. From now on, only projects approved by the APCI may be implemented, violating the constitutional right to freedom of association. This was already declared unconstitutional in 2007.

Secondly, the law restricts access to justice. It prohibits CSOs from providing legal assistance to vulnerable people who wish to sue the state, effectively closing the doors of justice to them even if they have suffered state abuse. The ability to litigate against the state, in national and international courts, is an essential function of many CSOs, regardless of their political orientation, and a vital component of the democratic system of checks and balances.

Thirdly, the law imposes ambiguous and disproportionate sanctions on CSOs in order to stifle their work. It prohibits any act that is classified as disturbing public order or damaging public or private property. This is already covered and prohibited by the criminal code. It could jeopardise and criminalise the constitutional right to peaceful protest.

What was the justification for passing the law?

The law gained political support by misleadingly presenting itself as promoting transparency, when in fact it conceals an authoritarian attempt to control civil society. Public debate has been riddled with disinformation: its proponents have used distorted or false arguments, unfortunately with some political and communication success.

Several myths have been used as justification. One claims that CSOs are not monitored or held accountable. This is completely false: CSOs are subject to oversight by the APCI, the National Tax Administration and the National Labour Inspection Authority. In addition, every international donor requires detailed reports on the use of their funds.

It’s also claimed that CSO are not transparent in managing their resources, although CSOs submit annual statements with detailed information on amounts, donors and programmes. For each project they must fill in a six-page form with extremely detailed information.

There’s also a myth that misuse of funds is not punished; however, the APCI has issued over 1,400 sanctions for offences such as misuse of resources or failure to report.

Finally, it is incorrectly stated that countries such as the UK and the USA have similar legislation. However, the US legislation, which dates back to 1938, was created to register foreign agents linked to governments, not CSOs, while the British legislation only applies to organisations working directly for foreign governments. Neither is comparable to the law passed in Peru.

What impact will this law have on CSOs?

Last year, Congress approved a larger budget for the APCI. It now has more resources for oversight and auditing, which is positive and necessary. My organisation, like many other CSOs, undergoes annual audits and reports in detail on all funds received and their purpose. We publish all this information on our website, in the accountability section. So we are not against oversight. Our problem is with the authoritarian elements.

The most serious effect will be to restrict the work of CSOs in the areas of citizen oversight and fundamental rights advocacy. But no one will be safe. In the future, the law could be used against other types of organisations, as it can be politically instrumentalised against anyone who makes the government uncomfortable.

How has civil society reacted?

There is a broad consensus in civil society about the authoritarian nature of this legislation. I have spoken to representatives of CSOs working on human rights, democracy and civil liberties, as well as with social and business organisations. They all agree this is a problematic and indefensible law. Peruvian legal experts from across the ideological spectrum have pointed out multiple irregularities and its probable unconstitutionality.

Numerous CSOs, particularly those engaged in litigation against the state or defending vulnerable groups, are considering filing appeals for legal protection. There are still democratic elements in the judiciary that could stop this legislation. Communication efforts are also underway to dispel the myths it is based on. Civil society is trying to influence the law’s regulation, which will be decisive in mitigating or aggravating its effects.

What support could the international community provide?

Last year, opposition from 16 embassies of democratic countries helped delay the bill’s initial approval and remove some particularly arbitrary articles. It’s vital this support continues. In addition, the international community could work with the APCI and the Ministry of Foreign Affairs to strengthen their technical and independent role, avoiding political interference.

It’s essential to remind the Peruvian authorities that, despite their claims that they want to strengthen democracy and join the Organisation for Economic Co-operation and Development, in practice they are legislating in an authoritarian way. This law brings Peru closer to the club of authoritarian regimes than to consolidated democracies.