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Private Voluntary Organisations Act (Continued)
Nherere, Advocates' Chambers
October 08, 2002
It is counsel’s
view that a challenge of section (6) based on section 21 of the
Constitution has to be very narrowly confined indeed. Paragraph
(A) of subsection (1) of section (6) is, it is submitted, not reasonably
justifiable in a democratic society. It is arguable that Paragraph
(B) is also not reasonably justifiable in a democratic society.
However, the case for impugning Para.(B) is not as strong as that
for Para.(A). Per contra, if one looks at S.6 (4), it is perfectly
reasonable for the State to say that it shall not give any State
grants to organisations that are not registered. To put it differently,
it is understandable and rational that the State would give State
funding only to those organisations that are registered and are
subject to the monitoring and scrutiny contemplated under Part IV
of the Act. The same reasoning applies to subsection (2). There
is some rationale in saying that any organisation that seeks to
collect contributions from members of the public should be registered
with Government and be subject to some scrutiny.
for Section 6 (1) (A) is rather difficult to fathom. The effect
of the paragraph is to require registration for any organisation
whose activities fall within the definition of "private voluntary
organisation" in section 2 of the Act. This is regardless of
whether or not such organisation actually does or proposes to raise
funds from members of the public or from the State. The usual justification
for this type of regulation is protecting unsuspecting members of
the public from harm. That justification is not present here – unless
the persons who are being protected from harm are the would-be beneficiaries.
This would not make sense in view of the breadth of the definition
of "private voluntary organisation". In fact, Section
6 (1) (A) is absurd. If an individual, using her own monies carries
on charitable activities, she may do so without having to register
because she is not an association. If that same individual, using
her own monies, creates a trust to continue her activities after
her death, such trust should register.
Section 6 (1)
(B) prohibits an unregistered organisation from seeking financial
assistance from "any source". One understands the rationale
for protecting the would-be contributors from fraud or having their
monies used for purposes other then those they truly intended to
fund. This justification is compelling if the sources of the funds
are members of the public. The justification loses force if the
"source" is a private one or, a foreign donor agency which
is in a position to put in place its own control mechanisms as to
how its funds are used. Thus, it is arguable that Section 6 (1)
(B) also goes beyond what is reasonably justifiable in a democratic
In light of
the foregoing, it is Counsel’s view that Section 6 (1) (a) and (b)
can be successfully challenged as being unconstitutional.
practitioners also raise the issues of "the right to livelihood"
of the employees of NGO’s and. the "right to life" of
the beneficiaries of NGO services. There are some difficulties with
asserting these rights. In the first place, when one is challenging
the provision of a law as being unconstitutional, one must be able
to point to a specific section of the Constitution and be able to
say "This provision contravenes section – of the Constitution".
One must find a particular peg on which, as it were, to hang one’s
hat. Our Constitution does not, anywhere, recognize the right to
a "livelihood". As far as the right to life is concerned,
section 12 of The Constitution reads:–
"(1) No person
shall be deprived of his life intentionally save in execution of
the sentence of a court in respect of a criminal offence of which
he has been convicted.
(2) A person
shall not be regarded as having been deprived of his life in contravention
of subsection (1) if he dies as the result of the use, to such extent
and in such circumstances as are permitted by law, of such force
as is reasonably justifiable in the circumstances of the case-
(a) for the
defence of any person from violence or for the defence of property:
(b) in order
to effect a lawful arrest or to prevent the escape of a person
lawfully detained: …"
of NGO’s are pretty varied. Without further evidence, it is impossible
to say that banning the activities of a particular organisation
would lead to deaths. In any event, it should be noted that the
law does not, as such, ban any organisation. The law simply requires
that any organisation whose activities are covered by Section 2
should register. If an application to register is turned down or,
the activities of an organisation are actually interrupted, then,
it could, possibly, be argued that such interruption or denial of
registration leads to deaths. Even that would be stretching the
As far as the
United Nations Covenant on Economic Social and Cultural Rights is
concerned, one cannot enforce that in the law courts of Zimbabwe.
The covenant has not been incorporated into our law by an act of
Parliament as is required by Section 111 (B) of The Constitution.
That provision states:
of international conventions. etc.
(1) Except as
otherwise provided by this Constitution or by or under an Act of
Parliament, any convention, treaty or agreement acceded to, concluded
or executed by or under the authority of the President with one
or more foreign states or governments or international organisations–
be subject to approval by Parliament: and
not form part of the law of Zimbabwe unless it has been incorporated
into the law by or under an Act of Parliament."
So one cannot
successfully rely on the covenant in the Zimbabwean Courts.
v Secretary of State for the Home Department. Ex parte Brinal and
Others  1 AC 696 (HL) ( 1 AII ER 720): Azanian
Peoples Organisation (AZAPO) And Others v President of The Republic
of South Africa And Others 1996 (4) SA 671 (CC), at 688.)
I would therefore
advise that paragraphs (A) and (B) of subsection (1) of Section
(6) of the Private Voluntary Organisations Act are unconstitutional
as they are inconsistent with section 21 (1) of The Constitution
and can be shown not to be reasonably justifiable in a democratic
to strategies, an NGO whose activities fall within the ambit of
section 2 has two alternatives. Either it files an application with
the Supreme Court in terms of Section 24 (1) of the Constitution
challenging the unconstitutionality of the sections of the Act.
Alternativley, it can wait until there has been a prosecution and
then insist that the trial court refers the matter to the Supreme
Court in terms of Section 24 (2) of The Constitution. I would recommend
a pre-emptive section 24 (1) application.
Should the section
24 (1) route be preferred, careful attention should be paid to the
question of locus standi. The Supreme Court could avoid a
decision by simply holding that the Application before it lacks
locus standi. To address this possibility, I would suggest
that the application be filed by an organisation, and a member thereof
so that both the Applicant organisation and the individual member
assert their rights in terms of Section 21. The organisation concerned
would have to aver that its activities come within the ambit of
section 2 and, therefore, it is required to register. While this
is a necessary averment, it also means that should the Supreme Court
application fail, that organisation would have to apply for registration
as it would have sworn that it comes within the purview of the Act.
Also, the Applicant/s must be chosen with great care. It must be
an Applicant who does not raise funds from the public and, does
not seek State grants. Further, it is Counsel’s view that the Applicant/s
must be as politically neutral as possible
I advise accordingly.
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