House Members Push for More NGO Access to Somalia

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October 4, 2011

On Sept. 8, 2011 the House Foreign Affairs Committee’s Subcommittee on Africa, Global Health and Human Rights held a hearing to address the “east Africa Humanitarian Emergency.” Members of both political parties expressed support for increased aid to the famine-struck area, and voiced concern about obstacles nongovernmental organizations (NGOs) face in getting licenses from the Department of Treasury that would allow them to work in areas controlled by the terrorist group al-Shabaab. Committee Chair Christopher Smith (R-NJ) said he intends to introduce legislation to address the NGO access problem. Ranking member Donald Payne (D-NJ) said there are now more than 50 sponsors to House Resolution 361, which calls for unrestricted NGO access. 

The hearing squarely addressed the extent of the humanitarian crisis caused by the famine in the Horn of Africa region, providing an update from the subcommittee’s July 7 hearing. One of the main topics discussed was the difficulties NGOs are having in getting Treasury licenses allowing them to operate in al-Shabaab controlled areas. Although Treasury and the Department of State announced “expanded licenses” for USAID grantees in August, the witnesses made it clear access problems remain for charities that do not receive USAID funds. 
Excerpts from the hearing transcript are below:
In his opening statement, after noting the access problems created by al-Shabaab, Smith said:
“We face serious questions about how to meet the desperate needs of people like those living in areas controlled by al-Shabaab. We want to prevent terrorist organizations from benefiting from humanitarian aid, but we must balance this concern with our deep desire to keep alive those needing food, water and medicine.   
There has been -- there has to be a solution that not only prevents aid from going to terrorists, but also prevents the terrorists from perpetrating further violence against their own people by denying them access to life-saving food assistance. We don't want food being used as a weapon…/” [p. 2]
Rep. Payne’s opening statement noted the unprecedented scope of the crisis, and he said in addition to introducing H. Res. 361 he and Smith had sent a letter to the State Department requesting that licensing restrictions be lifted.
The first witness was Rajakumari Jandhyala, the United States Agency for International Development’s (USAID) Deputy Assistant Administrator for the Africa Bureau. The following exchange between Smith and Jandhyala highlighted the licensing problem:
“SMITH: The issue about licensing, you know, I think everyone on this committee is very concerned about the fact that non-U.S.- supported NGOs who have people on the ground, partners with whom they can -- they can collaborate with have not -- they'd be given a general verbal, you know, you won't be prosecuted.  
      But why hasn't that translated into a durable statement of, you know, something in hand where the NGOs will not be fearful of prosecution? And -- and who would make that decision? And will it be made, as your view, soon? Because it seems to be we're losing an asset on the ground to feed hungry people because of a concern that somehow we might be (inaudible) al-Shabaab?   
JANDHYALA: I think we're committed to try to get as many different partners to take part in this effort to minimize the impact with the population. We are committed and our colleagues at the State Department and Treasury are currently working to see how we can review the situation on a case by case basis. And I think we can provide additional information in the coming weeks.   
      These discussions are ongoing at the moment in the administration regarding... 
SMITH: What is the problem with the Treasury Department? Are they the ones who are objecting to USAID's request for -- it seems to be that with this -- this drought and its consequences, growing worse by the moment. Why wouldn't we want to just get this done today, for example?   
JANDHYALA: The discussions are ongoing at the moment (inaudible) all of us with AID, Treasury and State. And we're trying to balance what's the impact, what's -- even if we move forward, what are the issues of accessing security. So we'd be able to give additional information as these conversations conclude.   
SMITH: I guess, what we're trying to get at is, where is the bottleneck? Is it at Treasury? Is USAID actively advocating for, you know, the -- the provision of those licenses into these NGOs? Especially since they have people on the ground who, you know, the risks of -- and our indigenous Somali, in most cases, willing to get that food, but there may have to be some collaboration, some contact with al-Shabaab and they fear prosecution.   
      It seems to be they take that off the table and -- and you talked about opportunities so I'm going to go a new opportunity for -- for relief will find its way to those people.   
JANDHYALA: I think our -- our State Department colleagues has spent a lot of time with -- with the Diaspora community as well as our leadership, trying to identify where the opportunities exist and -- and what kind of a process we need to put in place. And I think the discussions are ongoing.   
SMITH: OK. But again, I'm trying to get at where the bottleneck is. Is it Treasury?   
JANDHYALA: I couldn't say certain... 
SMITH: (inaudible)   
JANDHYALA: We're still continuing... 
JANDHYALA: ... the discussions.   
SMITH: OK. I do think, you know, there is a great deal of support certainly on the subcommittee for, you know, ensuring that those licenses are granted ASAP and I would say today, you know, with an exclamation point.” [p. 7-8]   
Rep. Payne also closely questioned Jandhyala about the licensing problem:
“PAYNE: Thank you very much. We certainly have a question in regard to the licensing. I have also like to -- to just have it clarified. The meeting that was held several days after we adjourned, but the Administrator Raj Shah attended it. And many of the NGO groups were there -- they don't care -- in Oxfam and -- most of them.   
      There was the concern at that time about the old question of licensing. And as -- as we know, the agencies take a lot -- a lot of risk, first of all, to have an interest and still try. And I just have to commend people who put their lives in harm's way. Actually, the World Food Program since 2008 has lost 14 workers who have been killed trying to deliver life-saving food and aid to Somali civilians, and so we do have some very heroic people. I met some of them on my last trip in Mogadishu about two years ago when I visited there last.   
      But for them then to worry about the license or whether their agency is going to be held liable if some of the food falls into the hands of al-Shabaab, to me, really is putting a coffin for the horse. I mean, it's bad if al-Shabaab did get control of some of the food as we have heard.   
      However, I think that there was too much holding back or not enough, you know, clarification to agencies who were willing to put themselves out there in harm's way. We heard about the legal consequences of it. Some of the food they had fell into the hands of some of the bad people. You know, it seems to me that the overall goal should have been saving the children, saving the women, saving the people it need.   
      However, it seems like Mr. Smith asked, was it with Treasury? Fooling around with a license could be issued or not issued. And could you explain is that issue clear and -- and the NGOs and PVOs work without worrying about if indeed something fell into hands of -- of -- of some -- of -- of less than desirable groups that they're going to be held accountable?   
SMITH: And prosecute.   
PAYNE: And prosecute -- absolutely. I mean, (inaudible) for that meeting, it was unclear because that was several weeks ago. And I think that many lives would have been saved if they didn't fool around about a license and some food falling into the hands of the wrong people.   
      Children are dying while we were trying to debate in court what was legal, what was not. Should we allow (inaudible) Voice of America as well as a program about three to four weeks ago where -- in P.R. that any food fall in the hands of the chairman and made it clear myself that it's unfortunate if someone falls, and we hope it did.   
      However, the basic goal is to try to save lives. And so I just wonder if that has just been clarified.   
JANDHYALA:  Mr. Payne, I agree with you. Our commitment is about saving lives. After recently coming from my recent visit, it can't be anything other than our commitment to save lives. We're running on -- we're approaching this on two tracks, as I mentioned earlier.   
      One is everybody who -- that receives U.S. funding is covered by the license. The other is those who are not being funded by U.S. government, that's what -- that's the ongoing discussion at the moment. So we're encouraging as many people as possible to work with us to see how we can take advantage and efficiently maximize in working with this in that regard.   
      The ongoing discussion about the second track about non-U.S. government funding, those discussions are being had at the moment.   
PAYNE: Sure. You know, we were just chatting. You know, people need to be assured with -- with a legal document at hand. People -- agencies are still reluctant to know whether they are going to be, like I said, not only cited but prosecuted and then fines and penalties, and that probably leaving as far as the -- talk about imprisonment. I mean, this is -- it seems to me that sometimes it's great to have lawyers around.   
      But I think that, you know, we really -- and I'm not, you know, blaming you. I'm sure you love to -- that's what you do, you're giving food out. You know, you're not trying to hold it in. However, perhaps we have the wrong agency here. We really need to see if we can get through -- through this red tape.” [p. 9-10]
In following up on licenses, Smith said:
“SMITH: ... and update us on the progress or lack of progress on the licenses in that conversation because it seems to me a delay is denial. And, you know, if there's something and, you know, we'll ask Treasury to come here and provide their rationale for the denial of those licenses, it seems to me that -- that a call from the secretary of State would do this, at least I would think. This is that urgent. 
      So if you could let us know by early next week exactly what the way of the land is, that would be appreciated and we will share immediately with all the members of the subcommittee for sure…
      JANDHYALA: On the first two, I would have to -- I'll come back with additional information regarding -- I'll take back your request and come back. I'll take back -- I'll take back your request to our colleagues on the discussion about the licensing.” [p. 14-15]
The remaining witnesses were Katherine Zimmerman of the American enterprise Institutes, Kent Hill of World Vision and Shannon Scribner of Oxfam America.
Scribner told the subcommittee that:
“The restrictions by armed actors or donor policies that also have restrictions can hamper efforts to provide life-saving assistance.   
      Therefore, all parties must lift restrictions and allow (inaudible) access to assistance in Somalia. In addition to funding and access we need to ensure that aid reaches those most in need. Therefore, coordination, information sharing and transparency amongst all actors must be improved.” [p.20]
Smith asked Scribner and Hill about the obstacles Oxfam has encountered:
“SMITH: Ms. Scribner, thank you very much for your testimony.   
      Let me just ask you a couple of questions. You were here for the previous testimony obviously. And really, if you might want to speak to the licensing issue, how that has hurt operations underground and where you think the problem lies.   
      Where's the bottleneck? Is it Treasury? And why has USAID -- if they're pushing for this -- has been unable to get the treasury to -- to change their policy?   
HILL: The NGO community in general was, I think, very pleased with some of the moment in the last few days when it was announced that U.S. funded projects would see more of a relief in terms of the restrictions, the fears of being held accountable if assistance somehow reach al-Shabaab or someplace else we shouldn't go.   
      But the NGO community recognized what was left out of that written statement. And what was left out of that written statement was us unless we happen to be implementing a U.S. government grant. And even though there have been verbal assurances to us that we needn't worry, you can imagine what a donor might think when they prepare to give a gift to Oxfam or World Vision or -- or some other organization and they don't know if there's going to be a problem with liability because of how difficult the environment it is in to work it.   
      So I think our request would be that the government make it very clear, in writing that the same discretion will be given to us that has been given for you as government funds.  
      Now, when you consider the amount of money that the private sector has available and is willing to put in to this. This is really not a small point and so we would like to see more guarantees put into writing that would allow us to engage.   
      Now, it's not the only problem. I mean, we were thrown out a year ago. World Vision was expelled and like Oxfam we have to work with other organizations to do our work there. We do some work with the global funds on malaria and T.B. in South Somalia and South Central Somalia so there are other times we'll have to pull out just because of security reasons, at least, to be directly involved, but at least we would not have to take into consideration the fear that we will be held liable if we can't quite manage the risk as well as we would like to.   
SCRIBNER: And if I could add to that. I agree that we have seen some real improvements over the last several weeks in terms of the USAID Implementing Partners having these waivers or -- as they go in. But it does get to those that do not -- Oxfam America does not take U.S. government money so for us we raised $4.5 million from private -- I mean, from Americans and from foundations.   
      We cannot use that money in Somalia. It's not clear to us how we could use that money in Somalia so our -- because we're a confederation, luckily, we have 15 organizations that are chipping into a pot and we do have other organizations, other Oxfam's that are providing assistance in Somalia, but our assistance is going to Ethiopia and to Kenya.” [p. 21-22]   
Smith then stated his intention to introduce legislation to address the access problem:
                “SMITH: Sometime next week -- we're going to be working on this between now and next week -- I plan on introducing legislation that would make clear that humanitarian organizations would be excluded from USA Patriot Act concerns which is obviously what is so important here.” [p. 22]