Bosnia and Herzegovina: Legislation Far from Satisfactory
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The history of the emergence and development of the so-called “third sector”, i.e. the mass appearance of non-governmental organizations in Bosnia and Herzegovina, as promoters and carries of civil society values, makes for a rather short story. Before the 1992-1995 war, there were the social organizations that acted under the auspices of the state, primarily in the areas of sports and culture, while NGOs as we know them today developed in the second half of the 1990s.
The number of NGOs in the country, depending on the source used, varies from several hundreds to several thousands of organizations. In an effort to get at least a general perception of the number of NGOs in B&H, ICVA conducted a survey in the institutions charged with the NGO registration procedures: the B&H Ministry of Justice (registers associations/foundations working on the whole territory of the state); Federal Ministry of Justice (associations/foundations active on the level of B&H Federation); Bureau of Statistics of the Republic of Srpska. That survey, taking into account only the registered non-governmental organizations, arrived at the numbers of 6,528 civic associations and 70 foundations in Bosnia and Herzegovina. This figure, of course, doesn’t imply that all of them are active, having in mind that when terminating their activities (usually due to lack of funds) the organizations are not legally bound to report to be deleted from the registry, which makes it hard to make a good estimate how many of them are actually active and working. Although the civil society organizations in B&H are commonly known as “non-governmental organizations”, the law doesn’t recognize that term in the registration procedure. NGOs can be registered as either “civic associations” or as “foundations”, which are the two legally allowed options that would give them legal status. The legal background for the establishment and registration of an NGO is provided in the B&H Constitution, on the basis of the international legal standard that “rights and freedoms defined in the European Convention of Human Rights and Fundamental Freedoms and its Protocols shall be directly applicable in Bosnia and Herzegovina”, with preeminence regarding all other laws and regulations. The entity constitutions carry similar provisions. In B&H, the registration and activities of non-governmental organizations is regulated in the Law on Civic Associations and Foundations of the B&H Federation and the Law on Civic Associations and Foundations of the Republic of Srpska. Most organizations in the country are registered under the provisions of these two laws, but as “associations of citizens”. The B&H Parliamentary Assembly, in its session of November 30, 2001, adopted the draft-Law on Civic Associations and Foundations of Bosnia and Herzegovina (B&H Official Journal, No. 32/01 of December 28, 2001), which entered into force on January 5, 2002. Article 2, Paragraph 1 of the Law gives the following definition for a civic association: an association is established through an agreement between a group of three or more private persons or legal entities, in all available combinations thereof, who voluntarily join efforts and assets in order to achieve a common goal or interests, during which they don’t intend to make profits. An association achieves the status of legal entity through completion of the registration process, as provided by this Law. This Law regulates the establishment, registration, internal organization, management of assets and termination of associations and foundations. This is a general Law applicable for all associations, with the exception of religious communities, political and trade associations and unions. Citizens’ associations in the B&H Federation were regulated with the Law on Civic Associations, Law on Foundations and Legacies and the Law on Humanitarian Work and Humanitarian Organizations. Before that, the Law on Associations of Citizens applied, adopted before the war, in 1990. There was great need to adopt a single law to regulate this field. Therefore, the Parliament of the B&H Federation, on its session of the House of Nations of March 5, 2002, and the session of the House of Representatives of July 17, 2002, adopted the Law on Associations and Foundations. This Law, for the first time, unified the regulation of this field previously distributed in three different laws. The three laws expired on the day of its entry into force, with the exception of a number of articles and provisions from the Law on Humanitarian Work and Humanitarian Organizations. In the Republic of Srpska, the work of associations and foundations was regulated with the 1990 Law on Legacies, Funds and Foundations and the Law on Associations of Citizens of the same year. The People’s Assembly (Narodna skupstina) of the Republic of Srpska adopted, on September 21, 2001, the Law on Associations and Foundations, and the old laws expired. In legal terms, the Law introduces a series of important novelties regarding the issue of protection of the very idea of non-profit sector, the possibility for existence of informal associations and groups of citizens, a small required number of founders (three citizens or legal persons) and regulation of liquidation of assets in cases of termination of work. Past surveys of non-governmental organizations and analyses conducted in B&H show that the existing legislation is far from satisfactory, i.e. is badly suited to the needs of civil society. The existing legislation provides equal treatment of all types of associations, with total disregard for the specific aspects of organizations and their areas of operation. This is especially confusing for the authorities when distributing funds from the state Budget and working in cooperation with NGOs, since a single category lists youth organizations, associations of women, pensioners, angler-fishermen, intellectuals, entrepreneurs, returnees, sports clubs and other associations and organizations. The lack of institutional framework for the non-governmental sector does marginalize its influence on the main routes of social development. With the goal to improve the situation in that area, the Centre for Promotion of Civil Society, together with other non-governmental organizations that completed the training for institutional building, started an initiative to create the conditions for sustainable development of non-governmental sector in B&H. The organizations that supported this initiative formed a coalition, working under the motto “Working and Succeeding Together”. In 2004, a series of round-table discussions were held within the coalition, discussing the problems faced by civil society. Almost all organizations involved in the Coalition participated in the creation of its strategic documents: “The Agreement on Cooperation between the Council of Ministers of Bosnia and Herzegovina and the Non-Governmental Sector”; “The Quality Standards for the Cooperation between the Government and the NGO Sector”; “Code of Conduct for the Non-governmental Sector in B&H”; and, “Strategic Directions for Development of Non-governmental sector in B&H”. These documents were later adopted at the December 2004 NGO Conference that took place in Sarajevo. That Conference was the most important event for all nongovernmental organizations in B&H, for it adopted all the key documents for the future development of the NGO sector. It gathered together 310 delegates and more than 100 guests from the international organizations in B&H, foundations, political parties and representatives of all levels of government. However, the Agreement on Cooperation between the B&H Council of Ministers and the nongovernmental sector has not been implemented to this day. The work and activities of nongovernmental sector in Bosnia and Herzegovina have been financed, so far, by international organizations. Over the past 15 years this support was huge and had decisive impact on the promotion of the sector in the country. Only a small percentage of activities and projects are financed by the governments at all levels. There are several reasons for such a situation, the most important being the restricted available funds and the failure to recognize the roles that NGOs could play in the society, in the sense of dealing with problems government institutions can’t deal with on their own. |
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