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This article participates on the following special index pages:
NGO Bill - Index of Opinion and Analysis
Non-Governmental
Organisations Bill, 2004
Legal Resources
Foundation (LRF)
July
27, 2004
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Preliminary
The NGO world is a big industry and the possibilities for
frauds, scams and incompetence are enormous. It would be reasonable
to ensure that donors' money ends up where it is intended;
that bodies representing themselves as set up for charitable purposes
actually attempt to carry out those purposes; that money is not
wasted on administration, unnecessary and frivolous travel, and
so on.
All this can
be achieved without interfering with two important constitutional
rights: the right to freedom of expression and the right to freedom
of association. The relevant sections of the Constitution read as
follows (matter unnecessary to what follows is omitted):
"20
Protection of freedom of expression
(1) Except
with his own consent or by way of parental discipline, no person
shall be hindered in the enjoyment of his freedom of expression,
that is to say, freedom to hold opinions and to receive and impart
ideas and information without interference, and freedom from interference
with his correspondence.
(2) Nothing
contained in or done under the authority of any law shall be held
to be in contravention of subsection (1) to the extent that the
law in question makes provision -
(a) in the interests of defence, public
safety, public order, the economic interests of the State, public
morality or public health;
(b) . . . .
or
(c) . . . ;
except so far as that provision or, as the case may be, the thing
done under the authority thereof is shown not to be reasonably
justifiable in a democratic society.
(3) -
(6) [not relevant]
21
Protection of freedom of assembly and association
(1) Except
with his own consent or by way of parental discipline, no person
shall be hindered in his freedom of assembly and association,
that is to say, his right to assemble freely and associate with
other persons and in particular to form or belong to political
parties or trade unions or other associations for the protection
of his interests.
(2) The freedom
referred to in subsection (1) shall include the right not to be
compelled to belong to an association.
(3) Nothing
contained in or done under the authority of any law shall be held
to be in contravention of subsection (1) to the extent that the
law in question makes provision—
(a) in
the interests of defence, public safety, public order, public
morality or public health;
(b) for the purpose of protecting the rights or freedom of other
persons;
(c) for the registration of companies, partnerships,
societies or other associations of persons, other than
political parties, trade unions or employers' organisations;
or
(d) that imposes restrictions upon public officers;
except so
far as that provision or, as the case may be, the thing done under
the authority thereof is shown not to be reasonably justifiable
in a democratic society.
(4) . . . "
It is thus constitutional
to provide that NGOs be registered; and it would follow that it
would be constitutional to provide for some mechanism for registration
and a person or board to supervise the process. However, there is
no restriction in the Constitution on the purposes for which an
association may be formed. The only restrictions that may be imposed
under any law are those "in the interests of defence, public
safety, public order, public morality or public health". These
are similar to the permissible restrictions on freedom of expression.
Comparison
between Bill and the existing Private Voluntary Organisations Act
[Chapter 17:05]
Before
comparing the two, it should be pointed out that the Private Voluntary
Organisations Act (which will be referred to, for convenience, as
the PVO Act) is not necessarily entirely constitutional. However,
no person or organisation has seen fit to challenge the constitutionality
of any aspect of the Act, so it must, to some extent, be assumed
that existing NGOs have found they can live with the PVO Act, as
it stands.
The NGO Bill
is very similar in many respects to the PVO Act. There are changes
to the designation of some of the posts. For example, the Bill refers
to the "director" of an NGO; the Act refers to the "secretary"
of such an organisation. The Bill creates an NGO Council in place
of the PVO Board. Many of the other provisions are identical or
similar in substance. The Bill refers to NGOs instead of PVOs, though
the definitions are, for the most part, identical.
There are, however,
some important changes, such as:
- The distinction
between foreign and local NGOs
- The inclusion
of "issues of governance", human rights, environmental
rights and interests and other matters in the objects of NGOs
- The requirement
to disclose, among other things, the NGO's sources of funding
(in particular, foreign donations) and a three-year plan of activity
- The composition
of the council
- The introduction
of a code of conduct
- The council's
and the Minister's powers generally, particularly over the
executive committees of NGOs
- The omission
of any equivalent to ss 7 and 8 of the PVO Act (these provide
for partial exemption for a limited period from the requirements
of the Act, and also allow for temporary authority to be granted
to make collections where registration would take too long)
- The introduction
of fees for registration.
- The power
of Ministerial trustees (appointed where the Minister has suspended
the executive of an NGO) to dispose of an NGO's property
(clause 24(6))
I will deal
with the more important of these, and related matters, in more detail
and consider whether they can be justified in terms of the Constitution.
What follows is not exhaustive. There are many other items which
could be dealt with, but the following are the most important ones.
1. Distinguishing
between foreign and local NGOs
The reason for distinguishing between the two is that, although
both have to be registered, a foreign NGO may not be registered
"if its sole or principal objects involve or include issues
of governance" (clause 9(4)). This provision is a clear infringement
of the right of freedom of expression and of the right of freedom
of association. To prohibit the advocacy by anyone, foreign or not,
of good governance or the promotion of human rights cannot possibly
be justified on the grounds of defence, public safety, public order,
public morality or public health - certainly not in a democratic
society. Indeed, one would imagine that any attempt to control the
advocacy of human rights is the very antithesis of what is expected
of a democratic society. While there is room for disagreement on
the scope of human rights, a democratic society should be open to
debate on the matter.
2. Inclusion
of "issues of governance", human rights etc in objects
of NGOs
"Issues of governance" is a very vague term. It is defined
as "including" (which implies that it can mean other
things) "the promotion and protection of human rights and
political governance issues". "Human rights" is
a very broad term, as anyone knows. It includes such matters as
constitutional issues, gender issues, children's rights, minority
rights, and so on. A local NGO can include these matters among its
objects, but if it does so, it is precluded from receiving any foreign
funding. The only reason for this provision can be to attempt to
prevent local NGOs from carrying out these objects, as it is well
known that local funding of any kind is very limited anyway, but
particularly for such supposedly sensitive matters. There is again
no possible justification on the permissible grounds of defence,
public safety or public order for preventing local NGOs from receiving
foreign funding for these purposes (public morality and public health
clearly are irrelevant to this subject).
3. The
requirement to disclose the NGO's sources of funding (in particular,
foreign donations)
It is difficult to see how this requirement can be justified under
any of the enumerated grounds. If freedom of association exists,
and the objects of the association are lawful, it is of no concern
to anyone who is funding the association. There is nothing sinister
or subversive in the promotion of human rights or good governance.
4. The
composition of the council
There is an important difference in the composition of the NGO Council
as compared to the PVO Board. The current Board consists of 5 PVO
representatives, plus one PVO representative per province. There
are representatives of 6 Ministries, plus the Registrar, who is
the current Director of Social Welfare. Consequently, PVO members
outnumber Government employees. The proposed NGO Council would have
only 5 NGO representatives (who, as at present, would not be elected
by NGOs), but there would be nine high-ranking Government employees,
from nine different Ministries or departments, plus the Registrar.
Apart from the question of why certain Ministries are involved at
all (for example, why should the administration of NGOs be any concern
of local government, or of information, or of the Office of the
President?), it is quite clear that effective control of the Council
would be placed in the hands of Government employees, who would
unquestionably be instructed by their political masters what line
to take. When one looks at the powers of the Council, it is again
impossible to justify the control given to the Government over NGOs.
5. The
introduction of a code of conduct
The Council is given the function, among other things, of formulating
a code of conduct for NGOs. As the Council would effectively be
controlled by the Government, it is obvious that such a code would
be entirely in accordance with the Government's wishes and
policies, irrespective of what NGOs want.
6. The
Council's and the Minister's powers over NGOs
The Council has the power to investigate an NGO for, among other
things, "maladministration". This term is defined in
clause 23(1). Apart from having its normal meaning, it also means
-
- any "improper"
(which is not defined) conduct which would justify the cancellation
of the NGO's certificate of registration in terms of clause
11; and
- any contravention
of the code of conduct.
As previously
mentioned, the NGOs would have little or no say in the drawing up
of the code of conduct. An NGO that is found guilty of "maladministration"
can have its registration cancelled by the Council.
The process
of investigation of "maladministration" is a clear contravention
of the "due process" provisions of s 18 of the Constitution,
the relevant portions of which read as follows:
"(1)
Subject to the provisions of this Constitution, every person is
entitled to the protection of the law.
. . . .
(10) Subject
to the provisions of this Constitution, every person is entitled
to be afforded a fair hearing within a reasonable time by an independent
and impartial court or other adjudicating authority established
by law in the determination of the existence or extent of his
civil rights or obligations."
By no stretch
of the imagination could the process of investigation and adjudication
be considered impartial. The Registrar, a public servant, initiates
the investigation; an investigator, if appointed, would be a public
servant; the Council is effectively controlled by the State through
its public servants; and the initial appeal is to the Minister,
who is clearly an interested party. The only recourse to an impartial
adjudicating authority is an appeal from the Minister's decision
to the Administrative Court. That would not constitute a "fair
hearing" as envisaged by s 18(10). As the outcome of an investigation
could be the cancellation of an NGO's registration, what is
being determined is the existence of the NGO's civil rights.
7. The
omission of any equivalent to ss 7 and 8 of the PVO Act
It cannot be said that this omission is unconstitutional, although
why these matters are omitted is hard to say, other than as evidence
of a determination to control NGOs and their activities, however
objectively harmless.
8. Charging
of fees
It is arguable that charging fees for registration is another method
of controlling the right of association, but provided the fees are
reasonable it might equally be argued that if the Constitution allows
for registration, it would also, as a logical extension, allow for
any reasonable administrative charges associated with registration.
9. The
power of Ministerial trustees (appointed where the Minister has
suspended the executive of an NGO) to dispose of an NGO's
property
Under the PVO Act, it is clear that a trustee is appointed for a
limited period and has no power to dispose of an NGO's property
(s 23). The Bill makes it clear that the intention is that trustees
can exercise any of the powers of the executive an NGO, including,
by implication, the disposal of the NGO's property (clause
24(6)).
The system whereby
the Minister can suspend the executive of an NGO is arguably a contravention
of s 21 of the Constitution. It should be possible to provide for
the protection of the public against fraudulent or incompetent NGOs
without resorting to Ministerial interference.
A final
word
The first sentence of the explanatory memorandum accompanying the
Bill states that the Bill will "provide for an enabling [sic]
environment for the operations, monitoring and regulation of all
non-governmental organisations". When one considers the degree
of control that the Bill seeks to give to the State over NGOs and
the restrictions on NGOs' freedom of operation, the use of
the word "enabling" is reminiscent of "Newspeak"
in George Orwell's 1984, where words are used in precisely
the opposite sense to their real meaning.
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