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Opinion: Private Voluntary Organisations Act (Continued)
Pearson 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.

The rationale 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 society.

In light of the foregoing, it is Counsel’s view that Section 6 (1) (a) and (b) can be successfully challenged as being unconstitutional.

Counsel’s instructing 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: …"

The activities 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 argument.

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:

"111B Effect 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–

(a) shall be subject to approval by Parliament: and

(b) shall 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.

(Compare: R v Secretary of State for the Home Department. Ex parte Brinal and Others [1991] 1 AC 696 (HL) ([1991] 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 society.

With regard 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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