There is one question that decides whether a law of this kind is a transparency measure or something else, and it is not the question anybody asks when the bill is introduced. Hold it. It comes back at the end.
Last week Uganda’s parliament passed the Protection of Sovereignty Bill, which restricts foreign involvement in the country’s affairs and attaches penalties of up to ten years’ imprisonment.
Laws of this shape have been passed in a great many countries over the last fifteen years, and they are commonly grouped together as foreign agent laws, which is a label borrowed from an American statute of 1938 and which fits some of them badly. For a reader who has not followed this, here is what the category actually contains.
The thing they all claim to do
Every law in this family is presented the same way, and the presentation is not obviously wrong.
The claim is that a country’s politics should be decided by its own citizens, that money from abroad distorts that, and that the public is entitled to know when an organization campaigning on a domestic question is funded from outside. Disclosure, not prohibition. Sunlight.
Put like that it is difficult to argue with, which is why the argument is never had on those terms. Every democracy has some version of a rule about foreign money in elections, and nobody thinks that is authoritarian.
The four variables that decide everything
What distinguishes a disclosure regime from an instrument of control is not the stated purpose. It is four technical features, and the whole character of a law sits in them.
Who counts as foreign. A narrow definition captures money from a foreign government. A wide one captures money from any source outside the country, which includes international charitable foundations, diaspora communities sending remittances to a hometown association, and a research grant from a university abroad.
What counts as involvement. A narrow law covers political campaigning. A wide one covers anything capable of influencing public opinion, which is a description of journalism, academic publication and most of what a charity does.
What the consequence of registration is. This is the one that matters most and is discussed least. If registration means filing a form, it is disclosure. If registration brings audits, reporting obligations, restrictions on activity, a label that must appear on everything published, and the possibility of deregistration, then registration is the penalty and the form is the mechanism for applying it.
Who decides. A law administered by a court with reasons and appeals is a different object from one administered by a ministry with discretion. The text can be identical.
Why they spread
The pattern of adoption is the most revealing thing about this category, and it is not a pattern of independent invention.
Russia passed a law in 2012 and has widened it repeatedly since, to the point where an individual can be designated for receiving foreign money of any kind. Versions have since appeared in Hungary, in Nicaragua, in Georgia, in Belarus, in a number of central Asian states, and elsewhere. The texts are often recognizably similar, which is unsurprizing: legislation travels, and a government facing an inconvenient civil society does not need to design a mechanism from scratch when one is available.
The American statute they are all nominally modeled on is genuinely narrow by comparison. It requires registration by people acting at the direction of a foreign principal in a political capacity, it is enforced by a justice department through courts, and its penalties attach to non-disclosure rather than to the underlying activity.
The borrowed name does a great deal of work in the defense of the copies.
What they do in practice
Two effects, and the second is larger than the first.
The direct effect is on organizations that receive money from abroad, which in a low income country is most of the ones doing anything expensive: health programs, election monitoring, legal aid, independent media. Those bodies have to decide whether to register, restructure, or stop.
The indirect effect is on everybody else, and it does not require a single prosecution. An organization that is not sure whether it falls inside the definition behaves as though it might. It declines a grant, drops a project, avoids a subject. A law with a wide definition and a severe penalty does not need to be enforced to work, and the absence of prosecutions is frequently offered as evidence that fears were overblown, when it is evidence of the opposite.
The argument that is not answered by pointing at Russia
One thing should be conceded, because the standard criticism of these laws has a weak point and it is worth naming.
Foreign funding of domestic civil society is a real phenomenon with real effects, and it is not neutral. An organization dependent on external grants answers, in practice, to the people renewing the grants. Its priorities follow their priorities, its reporting is shaped by their reporting requirements, and the domestic constituency it claims to represent is not the one paying for it.
That is a genuine problem of accountability and governments that raise it are not always acting in bad faith. Several countries with unimpeachable democratic credentials have tightened rules on foreign money in politics in the last decade.
The distinction is still the one above. A country concerned about capture writes a narrow law aimed at political activity, administered by a court. A country concerned about opposition writes a wide one aimed at influence, administered by a ministry. Both can cite the same legitimate concern in the debate, and the concern being legitimate is what makes the wide version workable.
What to watch in this case
Three things, and they will be visible within months rather than years.
The regulations. Bills of this kind almost always leave the definitions to be filled in by subsidiary legislation, and the regulations are where a law becomes narrow or wide. They attract no coverage and they decide the matter.
The first designation. Who is named first tells you what the instrument is for, and it is usually not a foreign government’s proxy. If the first organizations named are election monitors or newspapers, the question is answered.
And what happens to the health sector, which in Uganda as elsewhere is substantially externally funded. A law written to cover political influence that ends up capturing a clinic’s donor is a drafting failure. One that captures the clinic and is not amended is not a drafting failure.
The question
So, the one that decides it: what happens to an organization that registers?
If the answer is that it files a return once a year and carries on exactly as before, the law is a transparency measure and the objections to it are overstated.
If the answer is that registration brings obligations that make the work harder, a label that makes the public trust it less, and a discretionary power to remove the registration later, then the law is not asking anybody to disclose anything. It is offering them a choice between two ways of stopping, and the disclosure is the paperwork attached to it.
