The Ministry of the Interior can intervene and suspend a civil society organization for up to three years; its directors can also be imprisoned.
HAVANA TIMES – The new General Law for the Regulation and Control of Non-Profit Organizations, approved by Daniel Ortega’s regime in Nicaragua, is “a confiscation” and an attempt of “robbery protected by law” against civil society organizations, says Martha Patricia Molina, an attorney and notary public, who argues that the legislation contradicts the Constitution which prohibits confiscation.
The law also opens the door to civil or criminal prosecution of the organizations’ directors, Molina points out, as the second paragraph of article 38 warns that “the sanctions referred to in this law will be applied without prejudice to those civilly and criminal responsible.”
According to Molina, a legal advisor would recommend the directors of any organization to close their operations in the country, “if they do not wish to be taken to prison as established in the second paragraph of article 38.”
However, the lawyer notes that the most affected are the beneficiaries of projects of the NGOs against which the regime has led a political witch-hunt, cancelling more than 110 legal statuses between December 2018 to February 2022, as confirmed by a Confidencial data. And in March the number continued to grow.
Manipulation of FATF requirements
In the Law’s explanatory statements, the regime justifies a new legal instrument as part of recommendation eight of the International Financial Action Task Force (FATF), which indicates that countries should review the suitability of “laws and regulations related to entities that may be misused for financing terrorism,” and the new measures should be focused on promoting transparency and fomenting greater confidence in the donor community and the general population.
However, Molina believes that this new law —as well as the Foreign Agents Regulation Law— were not created to comply with FATF recommendations, as the government pretends to have us believe, because their focus is to “criminalize” NGOs that have played a transcendental role in the country, including the participation or support of some in the social outbreak of April 2018.
Indeed, since the so-called April Rebellion, the regime lashed out against civil society organizations and, in that year, cancelled the legal status of nine NGOs, confiscating de facto their assets, including the facilities of the Confidencial and 100% Noticias media outlets. Then, in 2021, it consummated the illegality, awarding the assets of the NGOs and the media outlets to the Ministry of Health.
Article 47 of the new law, approved on an emergency basis by the National Assembly, lists nine grounds for the cancellation of the legal status of an NGO and the transfer of its assets to the state, which is clearly a confiscation, according to Nicaraguan lawyers.
Among the new reasons cited in the law, the regime included the failure to submit financial statements and update their board of directors to the Ministry of the Interior (MIGOB) requirements that have been instrumentalized by MIGOB as an argument to liquidate a good part of the 143 organizations from 2018 to March 2022.
The most recent cancellation of NGOs occurred on March 17, when the National Assembly, under the regime’s control, closed social service, development, and democracy organizations. In February of this year, it also intervened in five private universities, which it had previously deprived of their legal status, and with their assets created three new state-run educational institutions, under the direction of operators loyal to the Ortega regime.
Another form of “confiscation”
The regime also did not leave out the destination of the assets of the NGOs and placed them between the “devil and the deep blue sea,” Molina points out.
“It establishes that ‘the destination of the remainder of the liquidation of assets, rights and equities of the non-profit organizations, will be carried out according to what is established in its articles of incorporation or bylaws,’ but at the same time it obliges it not to be “distributed among its members’ and if nothing is done, it will become property of the State of Nicaragua,” he emphasizes according to article 46.
“The NGOs promote human rights and with this new law they will be formally accused when they try to carry out activities for which they were created and everything will be considered “violating public order,” added Molina.
Amaru Ruiz, president of the confiscated Fundación del Río (which denounced official negligence over the fire in the Indio Maíz Reserve, in 2018), considers that the underlying motive of the law is to “sweep away” civil society organizations that do not have any link with the regime of Daniel Ortega and Rosario Murillo.
In the last four years, the ruling party has disbanded 143 organizations, foundations or associations that promoted social, political, environmental, and economic development, human rights, democracy, education, and health in Nicaragua, among other organizations with different aims. The beneficiaries of these NGOs have lamented the government’s decision, which results in the stagnation of several projects that sought to improve their quality of life, with projects for access to safe drinking water, local financing, and training on various topics, or promotion and defense of human rights and public freedoms.
MIGOB may suspend and intervene an NGO
On March 31, the National Assembly approved on an emergency basis the new law which prohibits direct or indirect political activity and prohibits organizations from using their structure “to violate public order” or promote “destabilization campaigns” in Nicaragua.
The law presented by the president of the Assembly and pro-Ortega deputy, Gustavo Porras, was approved with 77 votes in favor by the ruling party caucus, none opposed and 12 abstentions. The document consists of 12 chapters and 57 articles and repeals Law 147, General Law on Non-Profit Legal Entities.
They cannot carry out direct or indirect activities that imply political proselytism. The non-profits cannot intervene in party political matters, nor violate their objectives for which they were created and registered in this country.” Likewise, they are prohibited to “use the organizational framework to violate public order, promote destabilization campaigns in the country, supporting, facilitating and encouraging the disruption of citizen security and the legitimate exercise of human rights of Nicaraguan families,” reads the document.
The law confers new powers to the Ministry of the Interior, among these to intervene and suspend an organization for a period of up to three years for non-compliance of an obligation or performance of actions prohibited in the new law, according to article 41. These provisions allow MIGOB, an institution aligned to the regime, to act discretionally against non-profits.
According to lawyer Juan Diego Barberena, the law should have specified the specific grounds for MIGOB to intervene an NGO; an authority that, he adds, is questionable. The only authority to order an intervention of a legal or mercantile person is a judge, clarifies the specialist, since the procedure is a precautionary measure prior to a civil or criminal judicial process. “It is the judge who must authorize the intervention,” he stresses.
The law indicates in article 40 that the MIGOB may “intervene the non-profits for the time it deems necessary” and this “may result in the suspension or to the issuance of the legal opinion to request the cancellation of the legal status,” reads the text.
Barberena questions that “the procedure for intervention is not established, but in addition, it is the regulatory entity —MIGOB— which will dictate the intervention itself, which will intervene; that is to say, it is both judge and party.”
Article 34 also indicates among the obligations of organizations that they must “present financial statements according to the fiscal period,” but this is “something that only remains on paper in the law,” says Molina. In practice, MIGOB, which is in charge of receiving the documentation, deliberately fails to do so and then uses the supposed non-compliance of the NGO to request the cancellation of its legal status.
Some of the directors of the cancelled organizations denounced that MIGOB imposed obstacles to receive their documentation, despite the fact that on several occasion they tried to present their accounting, financial and organizational records.
Molina said MIGOB has become “an instrument to criminalize NGOs.” First was with the Law to Regulate Foreign Agents, and now with this new law, which “they will only have for decoration,” he estimates, “because when an NGO wants to formally present its documentation, they will not accept it” because this has been an established practice.” He adds: “MIGOB does not comply with the law, it is just another company of the Ortega-Murillo family. It is not a serious organization, but a persecutor of the NGOs.
MIGOB also has the power to carry out supervisory and control visits to non-profits. From Barberena’s perspective, the regime no longer must resort to another law to violate the right of association, since the new regulatory norm does so.
Regime tries to justify illegalities
The Ortega regime has “used” recommendation number eight of the International Financial Task Force (FATF) —countries should establish targeted and proportional measures, in line with the risk-based approach, to such non-profit organizations to protect them from abuse for terrorist financing— to somehow “legalize” the confiscations they have carried out with the closing of organizations, Molina stated.
“Everything the dictatorship argues—in the law—is a fallacy. And because of this it is necessary for the FATF and the international community to know that the dictatorship uses the law to give the appearance of legality to multiple illegalities and violations of rights of all kinds,” expressed this legal specialist.
Along the same lines, the Never More Human Rights Collective rejected the new law regulating non-profits and assures that it was approved with “the false argument of following the recommendations of the FATF, to which the State of Nicaragua is a signatory.”
He believes that the law is part of the “strategy of persecution and criminalization of the right of association and citizen participation” in Nicaragua. Barberena claims that it is a reflection of the State’s desire to “coercively control non-profit civil organizations” and violates the right to property.
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