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Another One Party State Effort: Zimbabwe’s Anticipated NGO legislation
Brian Kagoro, Chairperson, Crisis in Zimbabwe
July 28, 2004

Why the legal prescription is dangerous
The private policy justifications given by government to justify the proposed reform conceals the following reality:

• That any new law that has retrospective application will result in de-registration of many CSOs. Some of these CSOs have operated as Trusts or common law universitas for a significant period of time .The premise of the de-registration might be failure to comply with new requirements. The most appropriate remedy would be to deem all existing Trusts and common law universitas duly registered for a given grace period in order to facilitate full compliance with new legislative requirements;
• That some CSOs may be criminalized by virtue of falling outside the newly defined legal regime;
• That some CSOs will be refused registration for political reasons and their recourse under Zimbabwean law is unclear given the Daily News experience;
• That integrating ethics into law severely constrains the scope of internal governance and organisational culture development by virtue of bureaucratisation;
• That increased levels of state intrusion into the civic sector will result in the total control of both civic and public space. This has the effect of closing political and democratic spaces available to citizens outside the scrutiny and control of the state. To this end the agenda of the new legislation is to recreate the one-party state framework and effectively kill off multiplicity of views. The net result of this will be the weakening of democracy and government accountability. We have already seen the insatiable appetite for power in government through the Harare City Council saga. The real dangers of unfettered ministerial discretion are abuse of authority and unaccountable behaviour.
• That the real intention is to induce dis-investment by multi and bi-lateral aid agencies in democracy, governance and human rights work. There is a sense in which the government wishes to continue to the benefit from the activities of aid agencies and CSOs without bearing the cost of transformation and democratisation of social power.
• That any restraint – other than limitations based on previous criminal convictions - of participation by citizens on CSO boards is patently undemocratic. CSOs should be able to determine conflict of interest issues as part and parcel of their internal governance mechanisms. Regulation is not the same as control. The purpose of regulation is to facilitate the orderly functioning of a sector of society within the framework for equitable, air and predictable rules.
• That prior disclosure of foreign funding is not related at all to regulation except if it can show that such funding has resulted in anti-state and unconstitutional activities. A mere requirement for a proper audit should reveal sources of funding for each group without invading its privacy. If the government is concerned about the extent of foreign funding for local groups it can put a cap on acceptable funding levels and indicate that anything in excess thereof should be justified to the council. However even this course is undesirable. The new council is likely to have the liberty where it suspects an infraction of the law to initiate – of its own accord - an investigation into the operation of a given organization.

Possible Responses by NGOs
The target for the proposed new legislation are those groups that are involved in development work; governance and democracy advocacy as well as ‘unfriendly’ international aid agencies. The devices referred to above indicate that the government intends to use a reward and sanctions system in dealing with NGOs. Responses to the government’s proposals must appreciate these and other considerations. There are several possibilities that NGOs can consider, namely:

• The legal route. This space can only be effectively utilised once the new legislation has come into existence. The reality though is that once government puts pressure on local and international NGOs, many will either pull out or close down. History has taught us of the numerous dangers of attempting to participate in limited negotiations on the content of legislation.
• Re-organisation of funding arrangements. This is a prerogative of the multi and bi-lateral aid agencies;
• Non-cooperation. This must be followed by an intense lobbying and advocacy strategy that clarifies what NGOs are opposed to in terms of content, process and principles. Otherwise, the real danger is that we will end up with another draconian piece of legislation.

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