What to make of Decree 68/2016 (On promotion of civil society in Ukraine)?

BY NIKOLAI HOLMOV

Civil society in democratic State-society relations occupies a distinct and wide space.

Imagine four concentric circles.

In the centre circle is a reasonable/sensible sized circle – The State.  The next circle is that of “political society”.  The following circle would then be civil society – meaning the mass media, NGOs, intellectuals and cultural entities etc. 

The outer circle is that of the “parochial society” – religion and family, as well as corporations, business and trade unions.  Somewhere else in a square reinforced box segregated from the concentric circles are the “uncivil/unlawful” groups that act outside of the rule of law, only being allowed to enter the circular world having given up their unlawful ways.

(The concentric circles for an authoritarian, or totalitarian, or authoritative corporate state would look very different in their proportions to that of a democratic state society.)

Civil society has several distinctive features.  The most distinctive is that it is solely concerned with public and not private ends.  Whilst it relates and interacts with the State, unlike the concentric circle of “political society” it does not seek State power.  It inherently respects pluralism and diversity for it accepts it does not and cannot (nor does it seek to) represent all community interests.

Using a broad generalising brush, civil society seeks to provide some vertical accountability by way of checks and corrections of abuse of power.  It is usually vigilant and mobile against authoritarianism stimulating political and civil participation.  It attempts to educate toward a rights/values-centric constituency.  It aims to articulate societal interests to The State.  It builds horizontal relations and forms trust.  Invariably civil society causes have cross-cutting cleavages across societal identities.  

It produces its fair share of next generation political leaders.  It enhances and insures the effective functioning of democratic institutions, and thus has a role in policy implementation.  It can provide a vehicle for local empowerment when taking on patriarchal fiefdoms.   As Ukraine clearly shows, it promotes democratic and institutional reform.  It disseminates information and ideas, empowering society.  It can mediate political-societal conflict.  It provides a vehicle for local development.  Although it is possible to go on (and on) enough has been said.

On the dark side, civil society can simply overload The State with demands.  Civil society can have a subconscious and cynical oppositionist culture toward the The State.  It can be (potentially) corrupt and/or corrupted.  Civil society can indeed be extremely uncivil, undemocratic and intolerant – both within and without its own concentric circle.  It can also increase social mobilisation and in doing so, if not prudent, increase social conflict.  

There is the issue of financing and thus dependence upon donors which can lead to bias, a lack of integrity and the promotion of vested interests.  There can be a collective loss of interest in a particular societal issue, or the formation of “cliques” that exclude others without warrant.  Unhealthy relationships with certain political (or oligarchical) parties can form – indeed faux/poisoned civil society groups can be created by certain parties simply to cause discord and strife – something that seems quite likely to become more prominent in Ukraine fairly soon.   This list too can go on (and on), though again enough said.

The scholar Putman’s “Civic Community” provides civil society with distinctive relations between its groups based on trust, common norms, and networks that facilitate the public good – controlling corruption, monitoring and assisting in implementation of laws and rules impartially, advocates for public goods, achieves political compromise, horizontal accountability, protects liberties, seeks social and political trust and equality, generates awareness and participation and promotes the rule of law.

There is no need to continue – this is not an academic essay, nor paid piece, and the tip of the theoretical iceberg relevant to the entry has been exposed.

Ukrainian civil society since the Yanukovych departure has generally ceased to be the uncivil and ineffective society it once undoubtedly was.  Indeed it stepped into the void, as one would expect, where governance was absent – doing a far better job of getting things done than the feckless political class would have done in the aftermath.

Ukrainian civil society moved from existing in spite of Ukrainian politics (and sometimes in  spite of itself), to empowerment in the absence of governance post Yanukovych and pre Poroshenko, to (generally speaking) working with the political class – despite those political-civil interests fairly often diverging.

This brings about the 26th February signing of Presidential Decree 68/2016, which seeks to achieve a strategy for the development of Ukrainian civil society until 2020 – whilst civil society seeks the development of the political class into something other than feckless.  Given that potential conflict, some may be concerned about presidential (and governmental) feet treading upon the newly grown (and flourishing) grass within the civil society space/concentric circle – and perhaps rightly considering the Ukrainian ability to produce poorly crafted legislation, circumvent its own legislative rules, and generally try to deliberately under-regulate or over-regulate, vested interests – depending.

The Decree, readers will note, was made after (what appears to be significant) input by (certain) NGOs – although much like the Constitution of Ukraine, it appears far to “micro” and over detailed in some places and far too “macro” and lacking detail in others:

UKRAINE Presidential Decree №68 / 2016 (On the promotion of civil society in Ukraine)

Given the increasing role of civil society in various areas of state and local governments, including the implementation of reforms to support the initiatives of the public and to establish effective dialogue and partnerships of public authorities, local governments and civil society organizations, especially on the rights and freedoms of man and citizen, guided by Article 102 of the Constitution of Ukraine and in accordance with paragraph 28 of Article 106 of the Constitution of Ukraine, decrees and t n o I decree:
1. The National Strategy for Civil Society Development in Ukraine in 2016 – 2020 (attached).

2. Create a Coordinating Council for Civil Society Development (hereinafter – the Coordination Council) as an advisory body to the President of Ukraine.

3. To appoint the co-chairmen of the Coordination Council Gennady Zubkov G. – Vice Prime Minister of Ukraine – Minister of Regional Development, Construction and Housing and Communal Services of Ukraine and Pavlenko Rostislav Nikolayevich – Deputy Head of Presidential Administration of Ukraine.

4. The Co-Chairs of the Coordinating Council to bring in a three-week period in the prescribed manner agreed proposals on:
draft Regulation on the Coordinating Council for Civil Society Development;
the membership of the Coordinating Council, providing for the involvement of the representatives of the Cabinet of Ministers of Ukraine, other state agencies, local governments, academic institutions and representatives of civil society organizations, whose number should be at least half of the members of the Coordinating Council.

5. The Cabinet of Ministers of Ukraine:
1) ensure development with the participation of civil society and in the three months to approve the Action Plan for 2016 to implement the National Strategy for Civil Society Development in Ukraine in 2016 – 2020;
2) to provide annual approval by 10 January based on the results of public discussions of the action plan for the relevant year for the implementation of the National Strategy for Civil Society Development in Ukraine in 2016 – 2020, monitoring and evaluation of the involvement of civil society the implementation of the plan and disclosure 20 February report on the plan last year and anticipate when drafting laws on the State budget of Ukraine for 2017 and subsequent years, the funds needed to finance the implementation of action plans;
3) develop effective mechanisms for providing financial support to community initiatives aimed at implementing the National Strategy for Civil Society Development in Ukraine in 2016 – 2020.

6. regional, Kyiv city state administration in the prescribed manner:
1) create advisory bodies for the promotion of civil society, providing inclusion of their composition representatives of the local administrations, members of respective local councils, representatives of the territorial bodies of ministries and other central executive authorities and representatives of civil society organizations, whose numbers should be at least half of these advisory bodies;
2) develop and secure approval of regional programs to promote the development of civil society;
3) ensure the development, public discussion and approval of the annual regional action plans to implement the National Strategy for Civil Society Development in Ukraine in 2016 – 2020.

7. To declare invalid:
Decree of the President of Ukraine of March 24, 2012 № 212 “On the Strategy of State Policy to promote civil society in Ukraine and priority measures for its implementation”;
Article 2 of the Decree of the President of Ukraine from April 28, 2015 № 246 “About liquidation of some advisory bodies established by the President of Ukraine.”

8. This Decree shall take effect from the date of publication.
President of Ukraine Petro Poroshenko

Time will tell whether the road to (civil society) hell is paved with good intentions.

But what is the actual strategy?

NATIONAL STRATEGY (promote the development of civil society in Ukraine in 2016 – 2020)

1. Approval of the National Strategy for Civil Society Development in Ukraine in 2016 – 2020 (hereinafter – Strategy) due to the need to create favorable conditions for the state of civil society, various forms of participatory democracy, establishing effective cooperation of the public with the government and local authorities.

The active, influential and developed civil society is an essential element of any democratic state and plays a key role in the implementation of urgent social change and good governance in public affairs and matters of local importance, development and implementation of effective public policies in different areas the approval of the responsible person in front of law, addressing political, social, economic and humanitarian problems.

Advantages Revolution opened a new phase in the history of civil society, the public demonstrated impact on the socio-political transformation, was the impetus for updating and reformatting power.
Due to the Association Agreement between Ukraine, on one hand, and the European Union, the European Atomic Energy Community and their Member States, on the other hand, faces new challenges in relations between the state and the public, due to the need to introduce European rules and approaches such relations based on the principles enshrined in this Agreement. In addition, it is vital to the development of cooperation between civil societies of Ukraine and countries – members of the European Union.

Development of a strategy due to changes in the main trends of development of civil society, increasing its role in various spheres – from promoting reforms at the state and local level, European integration and the development of e-government to provide volunteer assistance to the Armed Forces of Ukraine, other military units, law enforcement agencies, state authority during the particular period of the anti-terrorist operation, assisting internally displaced persons. The strategy relies on the basic values ​​of the relationship between democracy and civil society, caused by the formation of such a society as the basis of democracy and the desire to create the right conditions for effective cooperation between the state, civil society and business to modernize Ukraine, welfare and equal opportunities for all.

The experience of democracies, civil society development for the system of state support makes it possible to attract additional human, organizational, financial and technical resources to provide social and other socially important services, promoting decentralization of public administration and improve its quality, and reduce public spending and prevent corruption risks.

2. The main problems of development –Civil society in Ukraine

Interaction of public authorities, local governments and the public is ineffective due to lack of transparency and bureaucratic procedures of this interaction, the low level of mutual trust.

The negative impact on the development of civil society and the rights and freedoms of man and citizen have a temporary occupation of the Russian Federation and the Autonomous Republic of Crimea and Sevastopol Russian military aggression in parts of Donetsk and Lugansk regions, existing in connection with the obstacles in the formation and activities civil society organizations in the territories.

Gaps in current legislation creates artificial barriers to the realization of civil initiatives, the formation and activity of certain types of civil society organizations, public review and consideration of proposals by state bodies, local self-government.

The level of harmonization of Ukraine with the European Union and taking into account the best international practices in the sphere of civil society is insufficient.

This situation led to the fact that:
no effective public control over the activity of state bodies, local self-government;
Practice is insufficient public participation in the formulation and implementation of public policy and issues of local importance;
philanthropists have effective incentives from the government, including tax, burdened by bureaucratic procedures, there is no effective mechanism to protect against fraud and other abuses in charity;
most civil society has no access to state financial support because of its limited scope, the non-use of transparent competitive procedures and provide undue advantages to individual types of civil society; program implementation (project management), developed by civil society organizations for execution (implementation) which provided financial support to state, complicating excessively short time during which it is given and unreasonable restrictions on the types of costs that can be financed from the budget;
capacity of civil society organizations are not fully used by the executive authorities, local governments to provide social and other socially important services; the tendency of preferences in the field of state and municipal enterprises and institutions, which is not conducive to improving the quality of services and leads to excessive growth of budget expenditures;
there are insufficient incentives to implement civil society entrepreneurship aimed at solving social problems (social entrepreneurship), adding such organizations to provide social services to promote the employment and training of socially vulnerable groups;
No single state information-education policy in the promotion of civil society.

3. The purpose and principles of the Strategy

The aim of the Strategy is to create favorable conditions for the development of civil society, establishing effective cooperation of the public with the government, local authorities on the basis of partnership, providing additional opportunities for realization and protection of the rights and freedoms of man and citizen satisfaction of social interests with various forms of participatory democracy , public initiative and self-organization.

The strategy is based on the following principles:
priority of rights and freedoms of man and citizen;
rule of law;
transparency, openness and mutual responsibility of state authorities, local authorities and civil society organizations;
political impartiality and non-discrimination against all kinds of civil society;
ensuring constructive engagement of public authorities, local governments and civil society organizations;
promoting public participation in the formulation and implementation of state and regional policy issues of local importance.

4. Strategic directions and objectives

Strategy implementation is expected to perform in the following strategic areas:
creating favorable conditions for the development and institutional development of civil society;
ensuring efficient procedures for public participation in the formulation and implementation of state and regional policy issues of local importance;
stimulate the participation of civil society in socio-economic development of Ukraine;
creating favorable conditions for intersectoral collaboration.

4.1. Creating favorable conditions for development and institutional
Development of civil society
In the framework of the strategic direction be implemented following tasks:
shortening and simplifying registration procedures for organizations of civil society, including the procedures for submission of documents in electronic form or on a “single window”; improvement of the order classifying civil society organizations to non-profit organizations;
improving the legal status, order creation, organization and termination of community organizations, expanding their powers to participate in solving local problems;
legislative regulation of the issue of mandatory planning the state budget of Ukraine and local budgets expenditures for the competitive provision of financial support for the implementation of programs (projects and measures), developed by civil society organizations;
introduction of a single competitive procedure for the selection of executive power applications (project management), developed by civil society organizations for execution (implementation) which provided financial support to the state and to ensure the legislation equal access of these organizations, including charities, to participate in this selection ;
making involving public priorities and common criteria for financial support from the budget for the program (projects, measures) developed by civil society organizations and aimed at the realization of state, regional policy, the definition of medium- and long-term indicators such financial volume rendering support;
the introduction of effective mechanisms for providing financial support to community initiatives aimed at implementing the Strategy;
establishment of best practices, taking into account the European Union’s favorable tax environment for businesses and individuals who provide charitable assistance, and individuals who receive charitable assistance;
introducing uniform approach to taxation on personal income in obtaining free social services of budgetary institutions and organizations of civil society;
introduction auxiliary (satellite) accounts for statistical accounting of civil society organizations and accounting of their activities in accordance with international standards;
activation of complex measures to improve civic education of the population on the possibility of protecting their rights and interests through the expression of various forms of participatory democracy.

4.2. Ensuring effective procedures for public participation
during the formation and implementation of state and regional policy,
Local Decision
Under this strategic direction resolved following tasks:
normalization in law:
– The order of the executive authorities, local government public consultations on the draft legal acts during their development with the establishment of an exhaustive list of cases where such consultations are not held, and a mechanism to prevent violations of mandatory requirements for such consultations;
– About initiating and conducting local referendums;
– Guarantees the right to peaceful assembly with fixing exhaustive list of grounds for restriction of peaceful assembly;
– Order initiation, the general meeting (conference) of members of the territorial community of the place of residence and implementation of their decisions;
– The compulsory approval of each local community’s charter that defines the particular order of public hearings, making local initiative and the implementation of other forms of participatory democracy;
Promote a level of local government public consultation with the public, public examination of their activities and the activities of executive bodies, officials, utility companies, organizations and institutions;
Promote a mandatory public consultation in the preparation of the State Budget of Ukraine and local budgets;
determine the procedure for public examination of administrative services and activities of budget institutions that provide social services;
creating an effective mechanism for ensuring the right to apply to local authorities with electronic petitions;
promoting the inclusion of the regulations of local councils mandatory procedures to ensure transparency and openness of information, including on public participation in the preparation of draft acts with social significance.

4.3. Encouraging the participation of civil society – Socio-economic development of Ukraine
This strategic direction involves the following tasks:
implementation of procurement practices of social and other socially important services through the social order and to ensure equal access of civil society organizations and budgetary institutions providing social and other socially important services from the budget;
encourage the development of social enterprises, including improving the mechanisms of financial support for such activities;
ensuring equal conditions for participation of civil society in public procurement procedures;
establishing a competitive basis, performers determining national, regional and local programs of civil society and equal opportunities for participation in such competitions;
ensure the right of non-profit civil society organizations carried out in accordance with the law business, if such activities are consistent with the objective (objectives), civil society organizations, contributes to its achievement and does not provide for the distribution of revenues (profits) or of the founders (participants), members of the organization;
introducing mandatory involvement of civil society organizations to assess the needs of citizens in social and other socially important services;
ensuring implementation of EU legislation regarding taxation value added tax social and other socially important services;
provide civil society organizations providing social services at the expense of budget funds, the right to use state and municipal property on favorable terms.  

 4.4. Creating favorable conditions for inter-sectoral cooperation
This strategic direction is aimed at implementing the following tasks:
providing executive bodies and local authorities access to public consultation and legal assistance (including free) on the order of creation and activity of civil society;
the introduction of mandatory monitoring and evaluation of spending funds programs and projects carried out by civil society organizations from the budget;
the introduction of mandatory reporting of CSOs that receive state financial support, public access to such records, as well as the results of mandatory monitoring, evaluation and examination results of state financial support for civil society organizations;
promoting inter-sector cooperation in preventing and combating fraud and other abuses in the field of charity, strengthen legal liability for misuse of charitable assistance;
stimulate voluntary activities, including working toward the participation of Ukraine in the European Convention on long-term volunteer service;
introducing a mechanism charitable activities by sending charity telecommunication;
expansion of the use of public-private partnership involving civil society organizations;
inclusion in the curriculum of secondary, vocational and higher education courses and topics for development of civil society;
the introduction of training in higher and further education of specialists in the management of non-governmental organizations;
provision of technical, consultative and organizational assistance to public authorities, local governments on cooperation with civil society organizations of civil society;
educational activities and social advertising on interaction with civil society organizations, development of civil society;
stimulating research, publications and educational events in the development of civil society and intersectoral cooperation.

5. Implementation, monitoring and evaluation of the Strategy
The Strategy is provided by the joint efforts of public authorities, local governments and civil society to achieve the goals and principles of the Strategy.
Supportive, monitoring and evaluation of the implementation of the Strategy rests with the Coordination Council for Civil Society Development (hereinafter – the Coordination Council). To monitor and evaluate the implementation of the Strategy Coordinating Council defines the criteria for evaluating the effectiveness of implementation strategies and indicators that are developed it with the assistance of the National Institute for Strategic Studies and other academic institutions, non-governmental think tanks and independent experts. As a result of monitoring and evaluating the implementation of the Strategy Coordination Council is subject to proposals for updating the Strategy.

The Cabinet of Ministers of Ukraine approved annually based on the results of public discussions on the action plan implementation strategy and ensure its implementation on the principles of openness and transparency, reports on its implementation.

Openness and transparency of the Strategy implementation provided by informing on the progress of its implementation on the website official website of the President of Ukraine, and by informing on the status of its implementation and fulfillment of annual action plans for implementation of the Strategy executive bodies on the official websites of the relevant authorities .

It appears appropriate to laying in the executive branch function of a Strategy for Structural units responsible for interaction with the public.

Local authorities are involved in the implementation of strategies on the basis and in the manner prescribed by the laws of Ukraine statutes of local communities and their own acts.
National Institute for Strategic Studies has scientific support implementation of the Strategy with the assistance, if necessary in the prescribed manner other academic institutions, non-governmental think tanks and independent experts.

6. Financial Strategy

The Strategy at the expense of budget funds and other sources not prohibited by law.
In order to target support on a competitive basis to finance programs, projects and activities of civil society organizations aimed at implementing the Strategy, it is advisable to study the issue of Civil Society Development Foundation.
Head of Administration
President of Ukraine B.LOZHKIN

There are many laudable sentiments and requirements within the above Decree – and there are also many areas that could infer the de facto if not de jure subordination of civil society to The State too, if due care is not taken.

Indeed some may see some financial issues as a precursory strategy that which mirrors what many perceive as the international aid “administration” – with the emergence of some very dubious civil society actors in search siphoning funding/functionary roles.

Nevertheless, the issues the Decree raises regarding what the government is “to do” with NGOs is perhaps surpassed by the opportunities the document presents to NGOs.  If you had to place you bets on the political class or civil society eventually coming out on top, right now smart money would be placed on civil society.

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