THE NGO NETWORK ALLIANCE PROJECT - an online community for Zimbabwean activists  
 View archive by sector
 
 
    HOME THE PROJECT DIRECTORYJOINARCHIVESEARCH E:ACTIVISMBLOGSMSFREEDOM FONELINKS CONTACT US
 

 


Back to Index

Legal opinion on the notice to all PVO's not registered with the Ministry of Public Service, Labour and Social Welfare in terms of section 9 of the PVO Act [Chapter 12:04]
Brian Kagoro
September 24, 2002


This opinion is meant to explore the meaning and legal implications of the above-mentioned notice.

The Text of the Notice 
The notice under review was issued by the Legal Advisor to the Ministry of Public Service, Labour and Social Welfare. It was published in the Herald Newspaper of 13th September 2002. It states as follows in its essential parts:

"Any body or Association of persons, corporate or un-incorporate or any institution whose objects include one or more of those stipulated in section 2 of the Private Voluntary Organisations Act [Chapter 17:05], excluding those excepted under the same section, is a Private Voluntary Organisation and should be registered in terms of section of the Private Voluntary Organisations Act, aforesaid.

Section 6 of the PVO Act, prohibits such a body, institution or association to operate without being registered. And section 25 of the same Act, makes it a criminal offence to operate without being so registered.

May all such bodies as are not registered urgently stop their operations until they have regularised their registration in terms of section 9.Failure to adhere to the Law will result in arrests being made …."

The Meaning of the Notice
The Notice appears to be a re-assertion of the provisions of the PVO Act regarding registration of PVO’s and in particular section 2(2) from which the spirit of the notice has been extracted. It does not seek to create any new category of PVO’s nor does it expand the existing one. The Notice also does not alter the range of exceptions set-out in the Act in section 2. What the Notice constitutes is the first attempt to enforce the PVO Act after the contra judgment against the Ministry in the AWC (Association of Women’s Clubs) case.

Section 2 of the PVO Act defines a PVO as an association of persons, corporate or unincorporated, or any institution with any one or more of the following objectives:

  • The provision of all or any of the material, mental, physical or social needs of persons or families;
  • Rendering of charity to persons or families in distress;
  • The prevention of social distress or destitution of persons or families;
  • The provision of assistance in, or promotion of, activities aimed at uplifting the standard of living of persons or families;
  • The provision of funds for legal aid;
  • The collection of contributions for any of the fore-going

This definition excludes the following entities:

  • The Zimbabwe Red Cross Society
  • Any political organisation in respect of work to political activities
  • Registered hospitals and nursing homes and work done for their benefit
  • Registered health institutions under the Medical, Dental and Allied Professions Act [Chapter 27:08];
  • Any entity whose activities are for the sole benefits of its members
  • Any Trust established directly by any enactment or registered with the High Court ;or
  • Any educational trust approved by the Minister
  • Any institution or service maintained and controlled by the State or a local authority; and
  • Any religious body in respect of activities confined to religious work

The sting in this notice, therefore, is really in the requirement that all bodies and association of persons (corporate or otherwise) any whose objects fall within the Act should cease operations forthwith or risk prosecution.

This prohibition will cover many common law associations founded only in terms of their constitutions as well as temporary networks (political or otherwise) currently set-up to respond to the food crisis and those Trusts registered with the Registrar of Deeds and not the High Court. In other words, the notice covers attempts by political parties and several trusts to assist displaced farm workers and other disadvantaged communities. The exact ramifications of this Notice for organisations dealing with Aids orphans and widows, street children and the unemployed should be fully investigated. The writer’s suspicion is that the greater number of groups working in this area are not registered in terms of the PVO Act. The requirement that temporary entities set-up to respond to the prevailing national crisis should be registered under the PVO Act defies logic. It is tantamount to saying that – faced with the incapacity of the State and registered PVO’s to respond to the current food crisis due to its magnitude – all other bona fide attempts to assist are criminal.

The process of registration set-out in section 9 of the Act is too cumbersome and experience suggests that it may – at times – take several months if not years. In the result, the requirement that those already operating as un-incorporated entities or who for any other reason fail to comply with the Act should cease operations forthwith, is grossly unreasonable. Particularly because it is perfectly legal in our law to register and operate a trust without having to register with the High Court. This should also be understood in the context of section 11 of the PVO Act which prohibits registered PVO’s from carrying on their activities, seeking financial assistance from any source or collecting contributions from the public ‘under a name other than the name under which it is registered’. Section 23 of the Act makes it a criminal offence to collect or even attempt to collect contributions on behalf of an un-registered PVO.

The Constitutionality Test 
As intimated above, the Notice is not contrary to the PVO Act and is therefore, at law, intra-vires the Act. Aggrieved parties must, therefore, look elsewhere for relief. It is possible that the Notice is, in its effect, unconstitutional for the following reasons:

  • Prior to requiring affected parties to cease operations, they should have been afforded an opportunity to be heard in terms of section 18(9) of the Constitution of Zimbabwe. Primarily because the effect of the Notice goes to the root of their existence as associations under the law. The constitution requires that they be granted a fair and impartial hearing in the determination of their rights and privileges. In the result groups adversely affected by this notice are at liberty to seek redress through a High Court review ;or
  • If it is deemed that they were operating illegally anyway, they still should have been given adequate notice to cease operations or regularise their status within the law. This is particularly because their activities affect their employees and beneficiaries in very significant ways and it could not be the intention of government to penalise these groups unnecessarily. It is in any respect a requirement of our administrative justice system;
  • The provisions of the Act relating to the criminalization of un-registered associations may be ultra-vires the right to freedom of association enshrined in the constitution of Zimbabwe. There seems to be no real public interest basis for criminalizing entities that do not collect contributions from the public for their operations. Nor is there any constitutionally sound basis for criminalizing trusts or common law associations founded in terms of their own constitutions. The restrictions in the PVO Act go beyond the interests sought to be protected and therefore may be said to be unreasonable in a democratic society.

Conclusion
Due to the understanding of the Act and Notice propounded above, it is unnecessary in this opinion to cite legal authority. The views expressed above are self-explanatory. As already stated above, the challenge is how to argue out of the obvious fact that the notice is a restatement of the law as it is. The proposals made above only would benefit those groups that were not in deliberate violation of the Act.

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP