On Sept. 7, the now-ruling Taliban announced the formation of an interim government and the reinstatement of the ‘Islamic Emirate of Afghanistan,’ harkening back to the group’s control of the country from 1996 to 2001. Many of the 33 named officials in the new cabinet also participated in the Taliban government during their earlier five-year rule, a period marked by drastic curtailments of civic freedoms, particularly for women and girls. “The lives of millions of Afghans will depend on how the Taliban choose to govern,” said Deborah Lyons, the Secretary-General’s Special Representative and Head of the United Nations Assistance Mission in Afghanistan (UNAMA). More specifically, the lives of millions of Afghans will depend on how the Taliban choose to regulate, cooperate with, or inhibit the activities of non-governmental organizations (NGOs) and civil society in Afghanistan.

The needs in Afghanistan are overwhelming, unprecedented, and will only become more dire as winter approaches. In addition to the 18 million people in need of humanitarian assistance, there is an urgent ongoing demand for development assistance to preserve and expand access to education, healthcare, and media. The common denominator to success in meeting these diverse needs is civil society. Hope cannot rest on the Taliban government, as its own recent actions (and inactions) demonstrate. Notably, the Taliban government has failed to meet stated commitments to girls’ education, with only boys having been allowed to return to school thus far; has introduced sweeping prohibitions on media despite initial promises to allow media ‘that respected Islamic values’ to function; and has pursued and arrested civic activists.  On Sept. 13, the High Commissioner for Human Rights Michelle Bachelet noted the disconnect between Taliban statements and actions: “Although the Taliban has issued public statements purporting to grant amnesty to former security personnel and civil servants; prohibiting house-to-house searches; and assuring women’s rights under Islamic law, information…indicates that practice on the ground has often contradicted these stated commitments.”  Despite the tumultuous and challenging environment, NGOs have continued to work with UN agencies to deliver critical aid, including food assistance to more than 3.8 million people and healthcare services to 450,000 individuals in September alone.

If past is prologue, a look back to the Taliban era of 1996 to 2001 could help us understand how the Taliban will interact with civil society organizations in the coming months and years.

NGO Regulation under Past Taliban Rule

Aid continued to flow under the Taliban throughout their first period of control but was impeded in a variety of ways. Notably, constraints were particularly severe with respect to women. The Taliban issued orders forbidding women from working and from leaving home except when necessary (e.g., medical emergencies). Multiple decrees explicitly banned the employment of Afghan women in domestic and international NGOs. In addition, the work of civil society organizations took place in a highly insecure environment, subject to arbitrary enforcement by the Taliban. For example, in 1998, 38 international NGOs suspected by the Taliban of involvement in political activity were consequently expelled from the country.

In June of 2000, the Taliban issued the Regulation on Activities of Domestic and International NGOs in Afghanistan (“NGO Regulation”). The NGO Regulation was both ambiguous and restrictive, based upon a narrow conception of NGO activity and a highly controlling regulatory approach.

Restrictive Registration Requirements

To begin with, NGOs were subject to formidable constraints with respect to their formation, and therefore their very existence. The NGO Regulation mandated registration, meaning that NGOs could not operate without being registered, and would face arrest or other repercussions for doing so. Additionally, the process of registering an NGO was highly controlled, requiring that an application be made to the Ministry of Planning, which then forwarded the application to a High Evaluation Commission. Multi-tiered registration processes inevitably lead to delay, invite arbitrary decision-making more likely to result in denial, and open the door to corruption.

Furthermore, the NGO Regulation required NGOs seeking first-time registration to deposit 30 million Afghani at a designated bank “as a guarantee.” NGOs that were previously active and wished to resume operations had to deposit 10 million Afghani in the bank. Under current exchange rates, 30 million Afghanis would total nearly $350,000 (though under exchange rates on Sept 20, 2000, when Afghanis were worth far less, this amounted to $6,315). Nonetheless, the bank deposit requirement constituted a significant barrier to the formation of NGOs.

Beyond the bank deposit, the NGO Regulation required NGOs to use the Afghan banking system, placing Afghani and foreign currency in designated Afghanistan banks. NGOs were required to exchange at least 20 percent of their foreign currency holdings into the Afghani currency at the official exchange rate and spend that amount.

NGOs as Government Instrumentalities

An NGO was defined less as an independent and autonomous entity and more as a government instrumentality – that is, as operating “in cooperation with and under the guidance of the respective Emirate administration.”

Following registration, invasive bureaucratic control continued to burden the operational life of NGOs. Prior to the implementation of individual projects, each NGO had to provide a workplan for approval to the Ministry of Planning. Moreover, NGOs had to submit “draft project documents for assessment and verification” to “the respective sectoral administration.” In the absence of standards for review and approval, this opened the door to arbitrary implementation and corruption. Similarly, domestic travel within Afghanistan by foreign staff of NGOs was highly controlled, requiring notification of travel to the Ministry of Interior Affairs and provincial authorities.

The NGO Regulation required NGOs to pay the expenses of government employees “who are busy working in the implementation of the project.” The meaning of this phrase was not clear, but in some cases, the salaries, transportation, and other expenses of government staff tasked with monitoring an NGO project were charged to the NGO. Furthermore, in cases of dissolution of an NGO, the organization was required, at least in some circumstances, to transfer materials, vehicles, machinery, equipment, and other supplies to the government.

These provisions underscored the Taliban perception of NGOs as government instrumentalities, and not independent entities.

Activity Constraints

The NGO Regulation additionally placed substantive restrictions on the activities of NGOs, resulting in some NGOs being altogether unable to operate. NGOs were required to engage in “humanitarian and economic assistance” activities, which implicitly prohibited NGO activities in other spheres, including human rights and governance, but potentially also in other areas of development assistance. Thus, the range of permissible purposes was defined both narrowly and ambiguously.

Moreover, both domestic and international NGOs were obligated under the law to “respect the religious beliefs and national and cultural traditions” of Afghan people and to “not perform any activities against the country’s national interest.” This effectively barred any activities, expressive or otherwise, that criticized the Taliban, Taliban policy, or Taliban government actions.

What law or regulation may flow from the new Taliban government is, of course, uncertain. It is possible that the new government may opt for a different regulatory approach. In light of the severe humanitarian crisis, one would hope for a more enabling approach, at least with respect to the delivery of humanitarian assistance. However, in light of reports provided to the Office of the High Commissioner for Human Rights that the Taliban are conducting raids on NGOs and civil society groups, it would seem naïve to expect a more broadly progressive regulatory course.

Supporting Civil Society in the Face of Taliban Restrictions

So, what can be done? The International Center for Not-for-Profit Law suggests three potential strategic steps that both governmental and private donors, as well as international civil society, could consider.

First, donors and international NGOs should prioritize assistance to civil society groups inside the country to enhance their resilience. While the channels of assistance may be limited, now is not the time to abandon Afghan civil society. To the extent that the regulatory and operating space inside the country is clarified in the coming months, it will be crucial to assist civil society partners to understand the regulatory environment; to adapt operations, as appropriate, to the contours of the new environment; and to reduce vulnerabilities that partners may face in navigating the operational space. Moreover, protection services for specific segments of the Afghan population, including women activists, minorities, journalists, and human rights workers, will continue to be critically important.

Second, donors and international NGOs should recognize the importance of support for groups in exile. As was the case in the 1990s, many who are engaged in human rights and governance activities will be unable to operate officially inside Afghanistan. They will need to operate ‘off-shore’. Support to these groups – including especially women’s groups – will be essential to maintaining appropriate focus on rights issues.

Third, donors and international NGOs should ensure the monitoring of legal and regulatory developments, including practical implementation and impediments, affecting civil society and civic space. A robust monitoring mechanism will be fundamental to an understanding of progress (or backsliding) on development goals and human rights abuses by the Taliban government or non-state actors in Afghanistan. The design of any monitoring system must be done in collaboration with civil society partners who will conduct the monitoring. The security of these partners must be a central concern in the design of any monitoring system.

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The new Taliban government is not truly new. The government’s early steps suggest that the Taliban attitude to civil society has not improved. We can therefore learn much from considering past regulatory approaches to NGOs, including the 2000 NGO Regulation. Should the government follow past restrictive practices, available space for civil society will be severely constrained. Donors and international civil society must be prepared to help ensure that Afghan civil society remains resilient in hostile circumstances and continues to meet the increasing needs of the Afghan people.

Image: Afghans watch the arrival of a Red Cross truck convoy carrying 120 tons of mixed food-stuffs on January 8, 1995, in Kabul. (Photo by TERENCE WHITE/AFP via Getty Images)