Las acciones emprendidas.

A number of rationales can be mentioned why the law should create an enabling condition for CSOs formation and sustainability. Firstly, owing to their non-profit orientation and efficiency, CSOs can best provide public goods and quasi-private goods.1 Public goods by their very nature are ‘non-rivalous’2 and ‘non-excludable.’3

1_{Henry Hansman,‘The Role of Non Profit Enterprise’ (1980)Yale Law Journal 89,835-901, 863-866;} Lester Salmon, ‘Of Market Failure, Voluntary Failure, and Third-Party Government: Toward a Theory of Government- Nonprofit Relations in the Modern Welfare State’(1987) Nonprofit and Voluntary Sector Quarterly16(20)39-41; For a general discussion on CSOs provision of public goods and quasi private goods, See Jonathan Garton, The Regulation of organized Civil Society (Hart Publishing 2009) 2 _{Non-rivalous goods and services are those the consumption of which by one individual does not reduce} availability to others and have linear cost of production irrespective of quantity

3 _{Non-excludable goods and services are those, once availed that no one can be effectively excluded} from using them. For further detail on the explanation of public goods, See Henry Hansman, above n1

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Due to these features of public goods individual consumers tend to ‘free ride’, taking benefits without bearing cost, which makes public goods unprofitable thus uninviting to the market which is profit driven.4 Nor is the state more efficient in delivery of such public goods, notwithstanding its authority to control free riders through taxation system, as it is politically driven.5 Even in an established democracy, a state will only produce those public goods or services that can command the majority support leaving minority groups unsatisfied and urging the latter to turn to CSOs that are insulated from political motivations.6

Furthermore CSOs can provide public goods more efficiently, economically and sustainably because of their proximity to the community, voluntarism character and smaller size.7 _{The proximity of CSOs to the community conferring them an awareness}

of the actual needs to take informed actions, render them more efficient than government, which is often distant. The size of CSOs also offer them an advantage over government in specializing on provision of specific public goods and services with better quality;8 breaking off lengthy bureaucratic process and transaction costs.9 Government on the other hand has to seek endorsement of the electorate for its plan, notify officeholders of the decisions, enact a law, and go through other lengthy and pricey bureaucratic procedures. Volunteerism and competition among CSOs also play a role in the efficiency and economy of provision of public goods. The provision of public goods by CSOs is also more sustainable as they would be able to plan long term projects not affected by the national or regional elections.10

4 _{Burton Weisbrod, ‘Toward a Theory of the Voluntary Sector in a Three-Sector Economy’ (1986) in S} Rose-Ackerman (ed),The Economics of Nonprofit Institutions: studies in Structure and Policy ( Oxford University Press 1986)26; for detail explanation on the four theories of Market failure, contract failure, government failure and voluntary failure, See Jonathan Garton, The Regulation of organized Civil Society (Hart Publishing 2009) 49-68.

5 _{Lester Salmon, ‘Of Market Failure, Voluntary Failure, and Third-Party Government: Toward a Theory} of Government- Nonprofit Relations in the Modern Welfare State’(1987)Nonprofit and Voluntary Sector Quarterly16(20)49

6_{Ibid, 39}

7_{Ibid, 39-41; see also Jonathan Garton, The Regulation of organized Civil Society (Hart Publishing 2009)} 49

8_{Jonathan Garton,‘The future of Civil Society organizations: towards a theory of regulation for} organized civil society’ in Myles McGregor-Lowndes and Kerry O’Halloran (edn) Modernizing Charity Law 212-14

9 _{Jonathan Garton, above n7 at 57}

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Moreover the state and the market simply cannot and do not anticipate and provide all of the public goods and services that are desired by the citizenry. The extreme heterogeneity of citizens’ interests and desires in sport, music, art, politics etc. simply render the government incapable to recognize them all and to satisfy those needs in a responsive, adequate, and evenhanded manner. Those interests may not be satisfied at all if there are no economic incentives that attract the market. Enabling legal environment for CSOs can thus be justified as CSOs are best placed in delivery of public goods11 and the development of the sector is beneficial to the public at large.

Moreover, the law also needs to create an enabling condition for CSOs owing to their contribution to the democratization of a nation. By recognizing, enforcing and protecting CSOs existence, the law may possibly bring a direct or an indirect bearing in the democratization role of CSOs mainly for the following reasons. Firstly, enabling legal conditions for the formation of CSOs could encourage the formation of associations and thus boost the number of CSOs that in turn build builds the social capital. The growth of the social capital in turn assists the democratization process through community capacity enhancement in public engagement and decisions making process. Secondly, with the flourishing of diverse (in size, membership, purpose, forms of incorporation) types of CSOs, the articulation and the representation of different interests increases thus contributing to the democratization process by rectifying the at drawbacks of democracy through the principle of majority rule, minority protection. Thirdly, an enabling law that protects CSOs from unwarranted involuntary dissolution and ensures their sustainability helps CSOs to grow strong, autonomous and vibrant, which are essential attributes for their contribution in the democratization process through advocacy, lobbying, and watchdog.

Thus if CSOs should contribute to the democratization process, the law should first, recognize the right to form various types of CSOs pursuing a lawful purpose, (advocacy, developmental, recreational etc.) It would be trite to add that if CSOs should contribute to the democratization process, the law needs to ensure that the process of formation and registration as well as the protection against dissolution should not discriminate against human rights and advocacy CSOs whose main

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objective of formation is pursuing democracy promotion. Yet it is still important to underscore the non-discrimination rule against advocacy CSOs since as it is noted by the ICNL that ‘particular legal and non-legal barriers against the formation and the sustainability of advocacy CSOs has come to be the trend in a number of countries in Africa and elsewhere.’12

Second, the law should also enforce the right to form various types of CSOs by laying down clear, uncomplicated and undemanding process for their formation and acquisition of legal personality. The law also needs to grant CSOs the freedom to be incorporated either informally or formally. Where registration at the relevant government office is required for the attainment of legal personality, as in the case of Ethiopia, it is important that the registration process is easy, uncomplicated and not at the discretion of the government. Thirdly, the law should also protect the perpetual existence of formed CSOs from unwarranted involuntary dissolution by providing specific legal grounds for dissolution that are only necessary for a better cause. Fourthly, it also ought to provide them with the right to judicial appeal in the event of administrative grievance on any matter that can affect their existence. The following sections of the chapter will provide a closer look at such enabling legal conditions for CSOs formation, acquisition of legal personality and sustainable existence.