Domesticating Civil Society: How and Why Governments Use Laws to Regulate CSOs

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[Bloomington, Ind.] : Indiana University
A single topic unifies my dissertation chapters: how and why do governments regulate civil society organizations (CSOs)? Three sets of research questions engage this topic using a multi-method research design. My first set is descriptive: what exists in the range of legal provisions governments use to regulate CSOs and how often do governments enact these provisions? In the second set of questions, I examine policy adoption, asking: under what conditions do governments enact various CSO regulation? Then, to what extent are these legal institutions path dependent—meaning, shaped by current laws and institutions—and to what extent are they affected by international factors and influences? And why do nondemocratic governments enact permissive provisions more frequently than restrictive ones? Finally, the third set of questions examines enforcement, asking under what conditions do governments enforce these provisions? Do de facto rules always match de jure rules, and if not, why not? My dissertation speaks to what human rights defenders identify as a growing number of governments enacting new, restrictive CSO laws—a trend referred to as the “closing space” phenomenon. This pattern is concerning, and we cannot afford to misunderstand it. The conventional explanation is that governments use these CSO laws to maintain power by rattling social cohesion and weakening democratic opposition. Discourse within the literature suggests that democracies pass permissive laws that protect the freedom of association, while autocracies and hybrid regimes pass restrictive laws that hinder voluntary association. What is more, the traditional argument frames these laws as a relatively new phenomenon beginning in the late twentieth century. Yet closely examining primary legal sources reveals a puzzling, non-trivial number of exceptions to these rules. One type of exception is that nondemocratic regimes frequently enact permissive provisions. Another type is that CSO laws are not new and often predate a country’s independence. If these legal institutions are neither categorically restrictive nor necessarily new as we once thought, why do governments enact them, and how do they enforce them to regulate CSOs? My theory argues that a government uses both CSO laws and regulatory enforcement actions to maintain political control and to expand legitimacy among its citizenry and the international community. A government whose grip on power is secure uses legal rules to provide CSOs with greater operational space that directly and indirectly bolsters its legitimacy. When a regime’s grip on control is fragile, the government manipulates legal rules and enforcement actions to observe civil society and control CSOs. This theory applies to all regime types and levels of development. I test my theory using five methods and four datasets. Among the data analyzed is a novel dataset created by systematically and holistically coding 285 laws enacted by 17 countries between 1872 and 2019. Twelve are East African countries; the remaining cases are the Permanent Members of the UN Security Council. A single-country case study of Kenya completes my research design. Using site-intensive methods, I collected archived government records and interviewed elected officials, bureaucrats, and CSO regulators. Qualitative analysis triangulates my findings to identify causal processes. My primary findings are that the legal institutions that regulate CSOs, what I introduce as “CSO regulatory regimes,” are neither new nor categorically restrictive. Regulatory regimes are instead historically informed, rewritten at different moments in different ways, and enforced inconsistently for political expediency. In its simplest form, my argument is that governments tactically alter their regulatory regime’s contents and enforcement as part of a broader strategy to increase their legitimacy and control. Governments maintain the status quo—both written rules and enforcement actions—as long as the current regulatory regime achieves the government’s aims. When change is necessary, governments alter enforcement actions, enact new provisions and enforce them as written, or enact provisions with the intention of sabotaging their enforcement. Enacting or not enacting a particular CSO law does not guarantee civil society’s environment will open or close. To truly understand whether a law “helps” or “hinders,” we must know the law’s contents and see how the government enforces it. I consider these matters as I explore how and why governments use CSO laws to domesticate civil society.
Thesis (Ph.D.) - O’Neill School of Public and Environmental Affairs and the Department of Political Science, 2020
Civil Society, CSO, East Africa, Kenya, Laws, Regulation
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Doctoral Dissertation