A thousand papercuts: the impact of NGO regulation in South Sudan

The regulatory environment in South Sudan presents significant obstacles to the effective delivery of humanitarian aid. Even before the outbreak of the civil war in December 2013, South Sudanese government authorities were tampering with hiring decisions, seizing NGOs’ assets and using intimidation and undefined or overly complex procedures to influence where, when and how assistance was delivered. Despite claims that its NGO Law enacted in February 2016 follows regional ‘best practice’, South Sudan’s evolving regulatory landscape mirrors that of its neighbours, where governments play a strong role in coordinating humanitarian aid delivery while also controlling access and using bureaucracy to restrict NGO activities. Insecurity and widespread impunity are further impediments to effective aid delivery: according to a 2016 Aid Worker Security Report, South Sudan has now surpassed Afghanistan as the country with the highest number of attacks on civilian aid operations. Humanitarian Outcomes, Aid Worker Security Database, 2016, www.aidworkersecurity.org

Impediments to access

In 2015, the UN Office for the Coordination of Humanitarian Affairs (OCHA) reported more than 900 incidents where humanitarian access was constrained – an increase of more than 55% from 2014. In July 2015 alone, 73 incidents were documented. Access is influenced not only by clear cases of looting or restrictions that hinder the free movement of aid, but also by a complex and often ambiguous system of bureaucratic and security practice. In this context, many major access issues are the result of a compounding series of smaller, often less impactful individual incidents. Most go unreported; many are linked to bureaucracy and regulatory policy that is at times applied in legitimate ways and at others seems arbitrary.

For example, in early 2016, when inflation and currency devaluation made it difficult for the government to sustain its patronage networks and pay salaries, NGOs experienced a spike in requests from local authorities for material support. Humanitarians were approached repeatedly for vehicles, fuel, cash, tyres and phone credit. Predatory rent-seeking activities used existing laws or draft legislation – or even laws that simply didn’t exist – to justify commandeering NGO assets, imposing new processes and procedures for humanitarian movement and demanding fees and taxes. As organisations are often able to decline or simply negotiate past such requests, these incidents don’t immediately restrict the ability of humanitarians to access people in need. However, as such requests increase in frequency and the intensity of the economic downturn grows, so too does the pressure and implicit risk for geographically isolated and physically vulnerable frontline staff.

The 2016 NGO Act gives the government’s Relief and Rehabilitation Commission (RRC) power to develop and set policies and procedures under the guise of regulating and monitoring NGOs. This power is not limited by any specific purpose, guideline or due process. The RRC, formerly known as the South Sudan Relief and Rehabilitation Association (SSRRA), was established by the Sudan People’s Liberation Movement/Army (SPLM/A) during the previous civil war with Sudan. It served as a liaison office between the army and humanitarians. Following South Sudan’s independence, the SSRRC became the RRC and was subsumed under the Ministry of Humanitarian Affairs, but its genesis remains deeply rooted in the political and military structures of the state. Although the RRC is mandated by the government to facilitate humanitarian aid – an obligation imposed under international law – it in fact acts as a vehicle for the continuation of the state’s politico-security objectives.

The RRC’s application of the NGO law is confusing and administratively draining. NGOs are required to submit extensive reports related to their finances, history, projects and staffing plans to be legally registered. A particularly frustrating element of the law requires NGOs to seek redundant approvals from various entities of the government before securing final permissions from the RRC. A specific component of the registration process requires individual country directors to undergo a criminal background check through the Criminal Investigation Department in the Ministry of Immigration to secure a ‘Letter of No Objection’ before being eligible to legally register their NGO and operate. Fees are also collected here. Each NGO receives different treatment. For some organisations processes are expedited with few opportunistic requests for additional fees. Others are less fortunate. Delays and requests for additional paperwork and fees can be extensive.

The political economy of regulation in conflict

NGO regulation in South Sudan cannot be divorced from the political economy of the war itself. The prioritisation of public revenue for defence spending and the collapse of other revenue streams as a result of widespread economic deterioration have only accelerated competition for control over one of the most lucrative assets remaining in the country – humanitarian assistance. According to the fee schedule outlined in the NGO regulations and based on rough numbers of both international and national NGOs operating in the country, conservative estimates suggest that the RRC netted approximately $200,000 in the registration of NGOs in August 2016. This may seem like small change in the grand scheme of the war economy in South Sudan. However, some suggest it’s only the tip of the iceberg of potential revenue. For example, many NGOs only received a registration validated against their previous year’s registration date. This meant that an NGO that had registered the previous year in October received their new registration in August 2016 and would have to undergo the process again two months later, paying an additional round of fees. This appears to be a deliberate and thinly veiled ploy to generate revenue.

The regulations also say that goods imported by NGOs under tax exemption cannot be liquidated or transferred to other projects. Instead, donor-funded assets must now be handed over to the RRC once a project closes. The registration process requires NGOs to list all of their assets in each of their field sites, meaning that the government is now in possession of a complete asset registry for the entire NGO community in South Sudan. This does not bode well for the future given the RRC’s record of confiscating NGO assets. NGOs have been coerced into paying fees to the RRC to free confiscated assets, or have been forced to simply forfeit assets or pay fines to avoid more punitive measures.

Another hallmark of the RRC’s role, though one not explicitly stated in the regulations, is its function as a gatekeeper for permissions to carry out basic activities. For example, NGOs must secure approval letters from the RRC to carry cash to field sites. With limited if any commercial banking options in the country, hand-carrying cash on flights is often the only way to move cash to pay salaries or purchase local goods. Excessive delays in securing such permissions have in some instances caused NGOs to miss flights. Flying without permission has resulted in staff being denied access to board or programme money being confiscated by airport authorities. The RRC has said that delays are caused by a lack of capacity or of fuel to run the generator and print the necessary documents, but anecdotal reports suggest that delays often appear deliberate.

The RRC is not the only government ministry involved in regulation. According to a 2014 Ministry of Transportation circular, NGOs are required to pay for accommodation, transport and a $200 per diem to designated officials meant to licence NGO vehicles. Maurice Rehan Deng, ‘Inspector for Vehicles Verifications for Licensing’, Letter to all NGOs, UN agencies and diplomatic missions, Ministry of Transport, 7 October 2014. NGOs work in multiple isolated field sites that are only accessible by air. Paying transportation fees and exorbitant per diems to government authorities to carry out their work is an added financial burden to humanitarian programmes. These fees are prohibitive but unavoidable. The only alternative would be driving with expired licence plates, which would present another set of challenges given the multiple security checkpoints and armed actors in the field.

Regulating NGOs is also linked to controlling and having greater oversight over aid to opposition areas. Essentially, aid is being used to punish opposition and reward loyalty. The RRC has said that it intends to use the law to influence which NGOs provide assistance in certain areas and to limit advocacy and NGO engagement on political issues. In August 2016, the law appeared to be used to silence civil activists when, according to an Associated Press article, the government instructed the Community Empowerment for Progress Organisation (CEPO), a national NGO, to ‘shut down within two weeks or be considered illegal’. Justin Lynch, ‘South Sudan Activists Say Intimidated for Meeting Diplomats’, Associated Press, 8 September 2016.

Conclusion

When regulation is clear and consistent it can be a powerful enabler for delivering assistance and saving lives. Unfortunately, that is not the case in South Sudan. The complicated operational reality of conflict and the regulatory landscape present serious challenges for NGOs and other stakeholders. NGO regulation is not a new development. However, thinking on its operational implications and how regulation relates to humanitarian access, programme continuity and an effective response is limited.

Some basic steps can be taken to minimise the negative impacts of NGO regulation. First, it is important to track individual incidents that threaten humanitarian principles. Such incidents may not individually meet the definition of a ‘classic’ access impediment, but in the aggregate they reflect the constraining trends within the operational environment.

Second, donors and the broader international community must, to the extent possible, aim to increase revenue transparency in any government entity that seeks to regulate the work of NGOs or other providers of humanitarian assistance. The RRC and other government partners should publicly disclose their revenues from NGOs. The RRC should introduce minimum transparency measures linked to other internationally supported transparency and accountability efforts such as those related to the management of the government’s oil and natural resources revenue. Donor countries’ taxpayers have a right to know how much of their money is not reaching beneficiaries but is being diverted to a government that is fuelling the humanitarian crisis.

Third, NGOs must drive analysis that describes different elements of political and regulatory risk throughout the lifecycle of their programmes. Specific challenges should be incorporated into risk mitigation frameworks. Regulatory events in South Sudan are just as likely as conflict-related events to negatively impact an NGO’s beneficiaries, personnel, assets, reputation or strategic objectives. Compliance with some elements of the NGO Act could put NGOs in breach of contractual commitments with donors or their own internal policies. Many of the emerging bureaucratic impediments are not necessarily laws – merely policies – and therefore compliance with new rules that are especially constraining should be creatively managed. Risk management frameworks need to include regulatory scenarios, thresholds and red lines, and alternative operational modalities. Leaders will need to evaluate these measures on an ongoing basis as the context changes and humanitarian needs deepen. Donors must go through a similar exercise to explore ways to manage regulatory risks to their partners and portfolios.

Lastly, as regulation in conflict settings becomes more restrictive, the way humanitarian access is described and the negotiation methods used to secure it must also evolve. Little practical guidance exists that could help NGOs and donors manage and navigate regulatory risk. There is a need for more visible and strategic management of complex regulatory challenges facing humanitarian operations in conflicts. Developing a stronger understanding and dedicated capacity in regulatory risk analysis can enhance communications within and between agencies, potentially reducing the likelihood of misunderstandings, arbitrary application of laws, and inconsistent compliance and messaging with host government regulators. While the coordination challenges are significant, they are not insurmountable. NGOs must learn to speak with one voice to government regulators and try to adopt common tactics for compliance and, where necessary, non-compliance.

With the passing and implementation of new NGO regulations, South Sudan can be added to the list of other countries – like Sudan and Ethiopia – where bureaucracy increasingly constrains operations and costs lives. The consequence might be a changing focus of the humanitarian response, less driven by the needs of people affected by crisis and more around compliance with inconsistent and often arbitrary policy and procedure. Solutions must be found to manage the disruptive effect of regulatory complexity, otherwise more time and money will be spent on bureaucracy rather than saving lives.

Lindsay Hamsik is a humanitarian practitioner with expertise in East Africa and Southeast Asia. She worked for two years in South Sudan with Mercy Corps and most recently as the Policy and Advocacy Advisor for the South Sudan NGO Forum. The views expressed in the article are solely those of the author and do not in any way reflect those of the organisations the author is formerly, or currently, associated with.