Some provisions of new legislation governing the activities of NGOs in Somaliland could undermine international humanitarian activity in the self-declared independent territory, say aid workers and donors.
The Non-Governmental Organization Act (National and International) is designed to establish a legal framework for NGOs, to ensure their activities are in line with the government’s development priorities and to improve accountability and transparency.
These principles are not in dispute, but the perceived ambiguity of some of the law’s wording and the practical implications of some of its articles have prompted high-level exchanges with Somaliland authorities involving not only NGOs but also donors and the UN.
"We are very concerned about the impact that this law in its present form could have on the population in need, which is largely being assisted by international NGOs,” said Tanja Schümer, the focal point of the Somalia NGO Consortium.
“We are also concerned about increased operational transaction costs for all. We hope the authorities will further legally clarify those paragraphs in the law that are vague, which opens the potential for abuse and confusion. We hope to work with the authorities to better support the development goals of Somaliland and we will continue to assist those in need of humanitarian assistance,” she added.
An official from one major bilateral donor told IRIN his government shared the concerns of NGOs and the UN as expressed in a letter sent to authorities in Somaliland.
Saad A. Shire, Somaliland's Minster of Planning and Coordination, told IRIN the law had been in the making for about two years: "It is based on a Letter of Agreement international NGOs always signed with the ministry and the best practice from neighbouring countries."
Shire said that while laws were in place in Somaliland governing the private and public sectors, "until now we did not have laws that govern the NGO sector, even though the NGO sector is bigger than the public sector".
Shire said the NGO Act had been signed into law by President Ahmed Mohamed Mahamud Siilaanyo.
Foreign agencies working in Somaliland are particularly worried about article 35 (3), which states: “International NGOs shall not become implementers for other international NGOs and UN organizations working in the country.”
Shire told IRIN the law would prohibit international NGOs from “subcontracting a project designated for the country from a UN agency present in the country.
"The aim is to encourage international NGOs and UN agencies to work with local NGOs and local businesses for implementing projects, giving them the opportunity to build their capacity and the experience to take on major projects after the international NGOs leave."
There are fears that a blanket application of the principle, rather than a case-by-case approach, could drastically reduce overall donor funding.
In some cases, according to one aid worker familiar with Somaliland, having an INGO as a UN implementing partner is essential because “some of the programmes being carried out require specific technical expertise that is not easily available in-country".
In 2010, aid agencies working in Somaliland sought US$87m for their activities for that year.
Another issue is that the Act empowers the government of Somaliland to determine where aid should go, whereas a fundamental humanitarian principle is that this should be decided solely on the basis of need. There appears to be some ambiguity in the law as to whether this provision applies to humanitarian assistance as well as development aid.
The law establishes an oversight agency, the Consultative Committee, appointed to govern and supervise activities of international NGOs and local NGOs. The committee, an advisory board, formulates policy guidelines regulating the activities of NGOs and ensures alignment of their activities to overall national development goals and plans.
"I appreciate the need for a regulatory environment,” said one aid official familiar with Somaliland, “but I am not sure this [law] is the most constructive approach or if the [Somaliland] government has thought through all the practicalities of implementing these directives."
Working with a lawyer, NGOs operating in Somaliland have asked authorities there for clarity on more than two dozen of the Act’s provisions. There is some uncertainty as to the legal validity of the responses to these queries.
Shire told IRIN: "We are planning to hold a question-and-answer session on 24 May, where we will answer all of their questions and address any lingering concerns. We are not in the business of putting obstacles in the way of the INGOs working in the country. All we want is to ensure that aid is more effective and accountable."