March 2022

To present at the Regional Consultation on the right to association and access to resources and foreign financing by the civil society, with the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and association, Clément N. Voule.

Historical background.

CSOs during the internal armed conflict

Historically, Civil Society Organizations have been seen by the State of Guatemala as a threat. During the internal armed conflict, the citizen organization was attacked, its members seen as enemies and as a result some members were disappeared, kidnapped, tortured and killed.:

Every organization had to be decapitated according to their rules. Why, who are they? Necessarily the powers and not only the political power, but the economic and military power… you will be able to see how many people killed us, university students, many indigenous people. Why? Because we have to cut off the heads that can cause us problems… the important thing was to end the organization [because] if they have been afraid of something, it is the organization… and then, of course, anything that smacks of organization for them is criminal.[1]

The Report of the Commission for Historical Clarification, Guatemala memory of silence, recounts an oscillating attitude on the part of the State of Guatemala towards CSOs, times when the repression towards organizations was less and this in turn allowed an exercise of the right to freedom association:

During the presidency of Julio César Méndez Montenegro (1966-1970) the spaces to channel political participation remained limited. However, several organizations managed to carry out low-profile work in the social field, which included reorganization activities, especially in the union sector, and some economic protest actions..[2]

Followed by days where the persecution and repression of CSOs intensified, this by virtue of maintaining control over the organizations:

During August and September [1989] ten of the leaders of the AEU became new victims of disappearances or arbitrary executions. The leaders who were not attacked had to go into exile, and in December of that same year another member of the AEU coordinator was assassinated. This new coup reminded the student organization and the social movement in general that it was not going to allow itself to be outside “the framework of action defined by the State, so, from its point of view, it was necessary to resort to repression to return them to the fold.”.[3]

The signing of the peace agreements between the Government of Guatemala and the Guatemalan National Revolutionary Unity in 1996 contemplated, among other issues, the strengthening of the right to freedom of association; Therefore, the State of Guatemala, in accordance with the Constitution and human rights treaties ratified by Guatemala, must promote and facilitate citizen organization.

Current context

In 2003, the law of non-governmental organizations for development (Decree 2-2003) came into effect. This decree establishes rules for the constitution, operation, voluntary cancellation of NGOs, as well as the ability to have their own assets from national or international resources, as well as their own legal personality different from that of their associates. This at the time of being registered in the Municipal Civil Registry.

In 2005, the law of the National Registry of Persons establishes that the Ministry of the Interior must, through the Registry of Legal Persons, be in charge of the registration of legal persons.

On April 14, 2017, the initiative to reform decree 2-2003 law of non-governmental organizations for development, initiative 5257, is presented. Due to the rejection of CSOs, its approval was postponed in 2018, but it was finally approved on February 11, 2020 decree 4-2020 by the ninth legislature that began functions on January 14, 2020. Several groups allied to the ruling party voted for this decree.

Different organizations filed amparo actions to prevent the entry into force of Decree 4-2020. This decree was sanctioned on February 27, 2020 and published on February 28 of the same year. The Constitutional Court provisionally protected the organizations that filed the amparo action and stopped its validity. The Court considered that there was a threat of violation of fundamental rights.

On April 14, 2020, the VIII magistracy of the Constitutional Court assumes. On May 12, they issued a ruling denying the protection in short, without arguing about the threat of violation of fundamental rights; His argument was that the amparo was not the correct way, the correct one being the unconstitutionality of the law.

The decree entered into force on June 21, 2021; different organizations filed an action of unconstitutionality of decree 2-2003 amended by decree 4-2020. The Constitutional Court on July 27, 2021 provisionally suspended some words and phrases of the decree. Today´s awaiting sentencing.

On the reforms to decree 2-2003

In general terms, Decree 4-2020 that reforms the Law of Non-Governmental Organizations for Development, decree 2-2003 seeks to discourage the exercise of the right of association, cancel uncomfortable organizations or that carry out protest actions and public demonstrations against the government and cause these uncomfortable organizations not to receive funding.

Discourage the right to freedom of association.

The reform seeks that all organizations that are operating in Guatemala must register.

It also exercises excessive control over organizations, even giving a list of activities that organizations can carry out, a situation that violates freedom of action. It seeks to control the financing that CSOs receive by reporting to the Ministry of Foreign Affairs the amount received and the use that will be given to the funds.

It also stipulates that the balance sheet of the organizations must be published, a situation that raises the level of vulnerability of its members in a country where human rights defenders suffer harassment, intimidation, criminalization of their activities and even acts of violence and persecution.

The funds that the organizations receive must be handled only by the banks of the national system. In turn, organizations have found it increasingly difficult to manage their funds in banks.

The State of Guatemala seeks to control the organizations that control power, that is: to control the one who controls. Situation that is not strange in this country where the organs of control of power are perceived as co-opted and that respond to a criminal structure embedded in the entire state organ.

Cancel awkward organizations.

The law stipulates that organizations that disturb public order will be canceled; but it does not stipulate the scope and limits of the alteration of public order; leaving it to the discretion of the State to arbitrarily establish this point. As an example: an organization could organize a recreational activity, but during the development of the activity, some people get into a fight. Is the organization responsible for the disturbance of public order? In addition, can the demonstration in the streets be considered a disturbance of public order?

Another way to inadvertently cancel organizations is by skipping organization updates.

The deadline to update the organizations expired on February 2, 2022. The Registry of Legal Entities -REPEJU- was consulted about the organizations that were not updated and that will be cancelled. Given this, REPEJU indicated that only the NGOs should update their data, that the total registered is 1,412 and that of these, only 199 were updated; so in the next few days 1213 organizations will be canceled.

Unfortunately, the State of Guatemala did very little to socialize the obligations that organizations have regarding the reform of the NGO law and especially in an obligation that entails the cancellation of the organization. Through social networks, the government reported on this obligation. Although there were no more than 2 messages on twitter; In order for the organizations to be aware of this obligation, they had to have social networks, internet access and follow the pages of the Ministry of the Interior.

For this reason, it is estimated that the majority of organizations that will be canceled are located in the territories of Guatemala, far from Guatemala City, where the situation is precarious and the work of these NGOs is vital for the tasks they carry out, such as in education and health.

Even though «no one can plead ignorance before the law,» it is convenient to analyze in depth the dissemination mechanisms by the State so that all Guatemalans are aware of these laws. Although the newspaper of Central America, which is where the decrees are published, is in digital format and can be consulted on the internet; it falls back into the situation that access to this service is precarious or non-existent in many parts of Guatemala. The State of Guatemala intentionally did very little to socialize this law.

Update process on REPEJU

For the 199 NGOs that were able to update their data, the process was quite complicated for them, due to the interpretation that REPEJU makes of the regulations of the NGO Law, it applies the requirements in a restrictive way and not broadly as it should be.

As an example, REPEJU interpreted that all the documents established in article 36 of the regulations, paragraph b) should be presented, when if what is sought is to reliably establish the headquarters of the NGO, one document was enough.

In addition to this, the REPEJU criteria changed constantly throughout that 6-month period. Window requirements did not allow the file to be entered. There are no unified criteria in REPEJU, the CSOs depend largely on the personal criteria of the registrar that serves them.

Actions carried out with REPEJU.

The minor and family commission of the Congress of the Republic summoned the Registrar of REPEJU, the Superintendence of Tax Administration, the Human Rights Ombudsman and the Association for Legislative Development and Democracy -LEGIS- to a work meeting. . In that meeting, the Repeju registrar was told about the inconveniences that exist.

The registrar expressed that the change of criteria responds to the fact that they constantly change personnel, being the director of REPEJU the one who is constantly being changed (he indicated that 6 months is the longest a registrar has lasted).

He was offered a series of trainings with REPEJU staff for ICNL representatives to impart international standards on the right to freedom of association. In addition, after these trainings, there could be a dialogue table to define criteria together with REPEJU and OSC.

On February 24, the first training workshop was held, where it was found that REPEJU employees are unaware of international standards and their obligation to adapt actions in relation to the Constitution and Conventions on Human Rights. The next training was to take place on March 3, but two days before that date we were notified that the registrar had been fired; the reason for his dismissal could be the openness he had towards CSOs and international standards workshops.

Protection of Human Rights in the context of peaceful protests in times of crisis

Several meetings have been held with CSOs to define strategies that allow the exercise of freedom of association. To prepare this report, the collaboration of the organizations was requested so that they express the difficulties they have had.

Guatemalan civil society organizations are in a situation of fear of reprisals that may originate from the Government towards organizations through the reforms of Decree 4-2020 to the Law of Non-Governmental Organizations, which violate human rights contemplated within the Political Constitution of the Republic of Guatemala and agreements accepted and rectified by the nation in the same matter.

The concern arises from the background in which CSOs have been victims of persecution by the State for making collective use of the right to assembly and demonstration, the right to free expression of thought and freedom of association. Next, we present statistics based on a survey carried out at the national level to different civil society organizations.

The data reflects that 1/3 of the organized civil population was violated at some point in their human rights by the State when asserting their right to demonstrate. We express our concern about threats and actions that members of various civil society organizations have received, we quote below some testimonies obtained, who for security reasons requested anonymity:

“Our discontent and/or demonstration has been through social networks and they threatened us saying that we should stop doing it because we were in the process of being investigated by the Government..”

“Members have been photographed during peaceful marches to intimidate their actions, calls have been received from unknown numbers, and they have been intimidated at work..”

“During last year’s national strikes, part of the team and the people who participated were violently evicted by police and military forces using tear gas..”

Said repression of civil society organizations reflects a strong control that the government seeks to exercise over people. The State of Guatemala seeks to discourage citizens from associating, this in order to avoid opposition or show discontent with the actions or omissions committed by the State and that result in the violation of human rights..

Critical trends and challenges affecting the ability of Civil Society Organizations to access resources.

Within the reforms made to the Law of Non-Governmental Organizations by Decree 4-2020, there is an area related to control with which a serious threat to all Non-Governmental Organizations is perceived, since the power is given for an immediate cancellation of the organization by the government and the criminalization of managers disrespecting the principle of due process. This not only implies a violation of various rights of the Guatemalan members of the various organizations, but also a greater difficulty for the creation and national and foreign financing of the organizations after the implementation of a convoluted and ambiguous bureaucratic process due to lack of clarity. in the reform that is already in force.

Next, we present a survey carried out with various civil society organizations at the national level.

Fuente: https://legis.gt/situacion-ong-guatemala

For CSOs, this situation is extremely worrying as it reflects an impediment to carrying out the tasks they carry out in order to support the development of the different communities of the nation. Being a reform that, instead of promoting, seeks to reduce the number of organizations and the support that can be obtained from national funds and international cooperation for the various purposes that end up seeking the common good of the population.

Regarding statistics, we also receive various testimonies to which we want to give voice.:

“The reforms to the NGO Law that grant discretion to the authorities which can arbitrarily cancel the registration. The difficulty of opting for international financing in the face of the harassment that the authorities carry out to donor entities from the validity of the law in question.”

“Currently the NGO’s Law that maintains in total uncertainty the legal situation of the organization and the legal certainty to operate according to its objectives. Restricts the freedom to work for people and communities by trying to limit their actions and the scope of these.”

“Promotion of actions of incidence and defense of the territory since, for being part of groups, the association has previously been included in a list held by the State as instigators of public disorder.”

The testimonies reflect the threat that this reform to the Law of Non-Governmental Organizations for Development means, being the most affected people with lack of access to basic services, since civil organizations supply that function in many places..

Other situations affecting Civil Society Organizations

Along with the problems already mentioned, the different civil organizations face different situations, on the part of the State, that make it difficult to carry out their activities. Statistics at the national level of the risk of violation of rights due to the reform of the Law of Non-Governmental Organizations for Development towards organizations and members are alarming.

Several CSOs shared concerns about the possibility of human rights violations due to these reforms:

“Due to the objectives of our organization, which is the promotion of human rights, we are exposed by the reforms of the NGO law, which limits the full exercise of our activities and also generates unnecessary expenses. Analyzing these situations, governments and businessmen pretend to dominate and control while State institutions do not comply with their powers. Thanks to private and civil organizations with their efforts they promote changes and developments in society.”

“The fear that they have installed in us so that we do not carry out a peaceful demonstration. The fact that the law said «whoever disturbs public order may be a cause for the closure of the organization» is a fact strategically designed so that we cannot express ourselves freely.”

“The threat originates from the application of the reformed NGO Law approved with the intention of eliminating the organizations that work for Human Rights.”

CSOs are constantly harassed for the work they do. Another problem is the attacks and threats that CSOs suffer in Guatemala. This again for the work they do.

Some CSOs elaborated on this point:

“To the organization, from the beginning, we had incidents such as threats. In 2010 there was an attempt to break the work in Quezaltenango. In 2011 a serious case of death threats to several members of the team. Then there has been surveillance and there has been media harassment from ****** *****. The director has suffered from defamation, harassment and threats on social networks.”

“Our legal representative was recently assassinated.”

“A few years ago, unknown assailants broke into the house of a teammate, just when a process of political strengthening was being supported. They broke into his house and only stole his laptop. Leaving all things of commercial value.”

Conclusions:

The State of Guatemala maintains policies that discourage the exercise of the right to freedom of association, which, as in times of the internal armed conflict in Guatemala, is intended to neutralize opposition, a situation that is not typical of democracies but of dictatorships.
In addition to the fact that there are violent acts against members of CSOs, the repression is focused on criminalizing their members, using the legal system to cancel the organizations and prevent access to financing.
The situation in Guatemala does not allow us to observe that the controls of power that the Constitution stipulates exist due to their co-optation. Being the CSOs the last ones that can carry out complaints and citizen control; which explains the criteria for these to be cancelled.
The State of Guatemala is not respecting its obligations to promote and encourage the right to freedom of association. Currently, 1,213 NGOs that make up 86% of the total registered in REPEJU will be cancelled.

Petitions before the Special Rapporteur:

Mr. Clément Voule, the organizations that signed this report, respectfully request from you:

You can visit Guatemala and meet with Civil Society Organizations so that in this way you can gather information on the practices and experiences of the exercise of the right to freedom of association and peaceful assembly.

Request information from the Guatemalan government on what is stated in this report and make recommendations and complaints so that the right to freedom of association and peaceful assembly is respected.

Report to the Human Rights Council on the responses received from the State of Guatemala regarding their requests.

Since it is estimated that a large percentage of the NGOs that will be canceled are indigenous peoples’ organizations, we respectfully request that you work together with the Special Rapporteur on the rights of indigenous peoples.

[1] Testigo (sacerdote católico). Comisión para el esclarecimiento histórico, 1999, tomo IV, pág. 95.

[2] Comisión para el esclarecimiento histórico, 1999, tomo IV, pág. 89.

[3] Comisión para el esclarecimiento histórico, 1999, tomo IV, pág. 99.