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Analysis of the Notice of Amendment to the Non-Governmental Organisations Bill, 2004
Prepared By Phil Matsheza, Noel Kututwa, and S.B. Chimhini
On behalf of Sahrit*
Extracted from International Journal Of Civil Society Law, Volume II Issue 4 October 2004, pp147-152
October 04, 2004

Introductory remarks
The Minister of Public service, labour and social welfare has given notice to amend the Non - Governmental Organisation Bill. We have critically examined the proposed amendments in the spirit of constructive dialogue and with a view to offering advice for further consideration by government. Our analysis should be considered within the context of the legislative history of the bill.

Sometime in September the minister of labour met with a delegation of civil society represented by Nango. The representatives of civil society sought to understand the mischief at which the bill was directed. The minister summarised the problem as being two fold. According to the Minister the first rung of the problem was that some NGOs were allegedly receiving foreign funding ostensibly for human rights work but in fact as conduits for political parties, the second rung of the problem was that some unidentified NGOs were clandestinely digressing from their declared principal objectives of development in preference to human and political activities. This allegation is subject of a factual dispute. We will not detain ourselves on this aspect suffice to mention that under international human rights law Zimbabwe has assumed certain inviolable obligations on the basis of general principles of international law and being party to several international human rights instruments. These obligations should be respected at all times. In the limited instances that derogation is permissible there are certain defined processes that have to be religiously complied with if Zimbabwe intends to stick within the bounds of legality. Our concern is confined to these clear obligations upon every member state of the United Nations.

While expressing concern over perceived flight of donor money from 'developmental work' to 'human rights' work the minister also lamented what he considers to be negative and prejudicial interventionist policies of the west that come tied to donor money; that this kind of engineered humanitarian assistance constitutes an improper interference in the internal affairs of Zimbabwe. After discussions the minister conceded that the bill as it stood at the time of the discussion had far reaching consequences beyond the contemplated mischief and therefore in all likelihood it would create more problems that it solved. More specifically the minister agreed that the bill was not intended to move Zimbabwe from its international obligations under international human rights law. The bill as it stood in its original form was incompatible with these obligations to the extent that it effectively would have made Zimbabwe a pariah state in which the promotion and protection of human rights was unduly curtailed.

We understood the minister to have argued that it was not the intention of government to harm the good work of NGOs but rather that the real intention was to provide a regulatory framework to enable NGOs to conduct their business in an orderly and coordinated fashion. To this end the minister welcomed suggestions on how this could be achieved. The minister appeared to have been amenable to further discussion on the definition of 'issues of governance' as appears in clause 2 of the bill and matters incidental thereto with a view to bringing it into conformity with Zimbabwe's international obligations. The definition that was in the first draft was too wide vague and ambiguous and would have resulted in transgression by Zimbabwe of many of its obligations under various international instruments.

The minister was also amenable to a rephrasing of the deeming clause to avoid potential indirect discrimination that may have resulted from different preferential treatment to NGOs registered under different legal regimes.

The issue of annual certificates was also discussed and it was agreed that these were to be issued on the presumption that they were to be construed as enabling certificates and not as an obstructive and intrusive mechanism by which the government would stifle the activities of NGOs.

Church related institutions were also considered to be exempt from the rigours of registration as this was considered unduly restrictive on their work. The definition of local NGOs was also supposed to be revised by the deletion of the words 'exclusively Zimbabwean nationals' resident in Zimbabwe'.

It was our expectation that the amendments to be introduced were designed to reflect the consensus reached in the meeting with the minister. The general understanding was that the subsequent discussions that took place between representatives of civil society and officials from the Ministry of Labour were ideally supposed to be geared towards couching in legal terms the consensus position reached in the meeting with the minister.

We must insist that we do not take issue with the declared intention behind the bill as appears in the preamble to the bill but there is concern with the conceptual framework within which the bill is being promulgated. The proposed amendment removes the absolute prohibition of foreign funding for 'human rights work' and replaces this by a prohibition against funding for 'civil and political rights' as well as the substantive rights in the African Charter. We have no hesitation in pointing out that even with this amendment the bill remains fundamentally at variance with international human rights norms. In the spirit of cooperation and out of a deep sense of patriotism we now make our observations as regards the extent to which the amendments fail to address the concerns raised with the minister and how the new amendments may probably be worse of than the original form of the bill. Our aim is to be explicit on the limits beyond which the government of Zimbabwe cannot legitimately proscribe human rights related work without completely falling out of step with international norms and standards. The challenge is to find a compromise between providing a regulatory framework which addresses the legitimate concerns by the government of Zimbabwe without breaching established state obligations.

Substantive remarks
Overall the notions of 'issues of governance' as reflected in the original bill as read with the amendments are inconsistent with international human rights norms and standards. Most of the issues that are covered under governance in the bill are remotely connected with governance properly construed. The bill may cause serious and irreparable damage to our government to the extent that it seeks to limit the scope of citizenry participation in matters that relate to clearly defined subject matter for good governance. The UN Commission on Human Rights has addressed the essential components of good governance in resolution 2000/64. These can be summarised loosely as including participation, rule of law, transparency, responsiveness, consensus, equity and inclusiveness, effectiveness and efficiency and accountability. We are of the considered view that the proposed amendment to clause 2 in paragraphs a-c cause international embarrassment by being at variance with almost every conceivable norm of good governance.

Civil and political rights
The Minister proposes to amend clause 2 of the bill by amending the definition of issues of governance to include all matters 'stipulated in the first generation of rights as contained in the ICCPR and also as spelt out in article 2 of the ACHPR.' This formulation is regrettably both conceptually and normatively inconsistent with the very basic concepts of human rights vis the indivisibility, interrelated and universality of human rights. The terminology of generational approach to human rights is now discredited and has no place in contemporary human rights discourse. Categorizing human rights into generations is not legal language; this is a relic of the past ideological war when it was convenient to make a distinction between different sets of rights. There is no international human rights instrument that makes a practical distinction between civil-political rights and the other rights. The very few instances in which this usage is adverted to relate to instances where it is unavoidable to use such language but only in respect of highlighting the different nature of human rights but never to place them in some kind of hierarchical order as is contemplated by the amendment. The predominant view in contemporary human rights discourse is that human rights exist in some kind of vector and that violation of one set inevitably undermines the enjoyment of another set.

Perhaps more worrisome is the fact that Zimbabwe has ratified the International Covenant on Civil and Political Rights. Under article 2 of the said Covenant Zimbabwe has assumed the obligation to give effect at a domestic level the provisions of that statute. In simple terms the ICCPR obligates the government of Zimbabwe to ensure the realisation of the stated rights enshrined therein in meaningful and practical ways. The obligation under article 2 of the ICCPR is both positive and negative. Positive in the sense that the government must take positive steps to promote, protect and fulfill the human rights of all persons under her jurisdiction. Negative in the sense that the government must refrain from conduct that falls short of respect for human rights. The proposed amendment vitiates this conceptual understanding in that it seeks to limit the scope of work and the operating environment for those who may wish to promote and protect rights falling under the ICCPR. Zimbabwe has already domesticated some of the provisions in the ICCPR either through the constitution or via administrative processes. A classical example is the Criminal Procedure and Evidence Act which invariably protects the right to due process. Any conduct that limit the enjoyment of these rights by curtailing the source of funding naturally falls foul of the constitution or undermines the domestication process.

The proposed amendment is tantamount to an attempt by the government of Zimbabwe to unilaterally exempt itself from the obligations assumed under the ICCPR. This is conceptually wrong in many respects. Some of the rights enshrined in the ICCPR are absolute and they cannot be subjected to any limitation or derogation. Right to life, right not to be subjected to torture, the right to a due process and the right to freedom of thought are some of the plain examples. By their very nature, it may be necessary for individuals to request international assistance to enable them to exercise their rights or more appropriately to seek a remedy in the event of a breach.

The process of ratification under section 111(B) of the constitution of Zimbabwe involves the commitment by the President to bind Zimbabwe to the terms of the Covenant. This process evinces a clear intention from the President of Zimbabwe and the legislature to act in conformity with international standards as implied by the Covenant. To enact a statute that contradicts the commitment made by the president and the legislature is to undermine the authority of the president. In legal terms such a law is bad law as it falls foul of the principles of free consent and of good faith and the pacta sunt servanda rule which are now universally recognized. A state is presumed to have a serious intention to implement in good faith, the obligations assumed under treaty law. The proposed law will do the very opposite.

Assuming that the government of Zimbabwe were presented with a real emergency that necessitated derogation from scope of the enjoyment of the rights under the ICCPR it must follow the procedures enumerated under the Covenant. The government of Zimbabwe should notify the United Nations Secretary General of its intention to derogate and specifying the rights in respect of which it intends to derogate, the duration of the derogation. The emergency giving rise to the derogations must be clearly identifiable. There is little doubt that in the present circumstances Zimbabwe is not faced with an emergency of the nature contemplated for purposes of derogations.

The proposed amendments also present vexing constitutional problems. Zimbabwe has a justiciable bill of rights which incorporates some of the rights enshrined in the ICCPR. To the extent that the proposed bill will limit the scope of assistance available to Zimbabwean citizens in pursuance of the exercise of their rights the amendment may be adjudged to be unconstitutional. To illustrate in graphic form what the impact of the bill will be in real life situations one has to imagine how they will comprehend a law that prohibit them from receiving donations from a fellow African country pursuance to educational purposes with a view to enlighten them of the nature and scope of their claims and entitlements under that constitution of Zimbabwe as well as other various international human rights instruments.

Zimbabwe may not validly enact into law the proposed amendment without extricating itself of the obligations under the ICCPR. Worse still assuming without conceding that Zimbabwe could denounce its obligations under the ICCPR or that it could enter a reservation covering the matters of concern as reflected under article 2 such a reservation would be unconscionable at law as being incompatible with the Covenant. In terms of article 56 of the Vienna Convention on the Law of treaties a treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless if such an intention can be proved to have been contemplated or such right can be proved to have been implied from the nature of the treaty. It is clear that none of these exceptions can be met in the present case.

The African Charter
The inclusion of articles 2-23 of the African Charter in the amendment to clause 2 is even more perplexing. With all due respect it appears that the proposed amendment misconstrues the import of article 2 of the ACHPR. This article incorporates two aspects. On the one hand it embeds the obligation of result in that it requires every member state to ensure the realisation of 'all' rights in the Charter as envisaged by article 1 and on the other hand it explicitly outlaws discrimination in the enjoyment of human rights. Non discrimination is one of the most enduring principles of international human rights law. Our own constitution prohibits discrimination and to that extent the limitation on the scope of activities in respect of this right as contemplated by the amendment makes the proposed law unconstitutional. Discrimination on the stated grounds actually constitutes an absolute prohibition. It is inconceivable that the minister may have intended to place the enjoyment of such commonsensical issues beyond the reach of international assistance. It appears to us that this may be a clear case of oversight or poor draftsmanship.

Articles 3 -23 of the African Charter provide for other substantive rights which states parties are required to domesticate. By placing these rights beyond the reach of international assistance the government of Zimbabwe is stripping the Charter of any meaning. It is difficult to understand why the government of Zimbabwe would want to exempt itself from the full application of the African Charter.

In respect of the African Charter among the rights for which foreign funding is prohibited is the right to development, the right to education and the right to health. It is simply inconceivable to imagine how these rights may be realised without international assistance and cooperation. We must not lose sight of the fact that in contemporary human rights discourse, economic growth is an integral part of the right to development. The African Commission on Human and People's Rights, the body which is mandated to interpret the meaning of the Charter has categorically stated that no member state may be exempt from the full application of the Charter provisions so long as they remain a member state to the Charter. The Commission has also held that derogations are impermissible under the Charter. The proposed amendment is therefore unashamedly in violation of the obligations that Zimbabwe has under the African Charter.

Transparency and accountability
Paragraphs b and c of the amendment to clause 2 places 'activities aimed at public transparency and accountability' as well as public support for anti corruption within the ambit of activities for which foreign funding is prohibited. We have difficulties in understanding what may be the rational reason for refusing to accept surveillance from the public gaze whatever the source of funding. The government of Zimbabwe is a signatory to the SADC Protocol Against Corruption. This protocol demands that the government must form alliances with civil society to fight corruption. The proposed amendment is at tangent with the spirit of the Protocol. In any event the government of Zimbabwe has embarked on a spirited anticorruption drive evincing a clear intention to operate in a transparent manner. The proposed amendment detracts from this achievement in that it is inconsistent with events on the ground. The proposed amendment will undermine in material terms all government efforts towards anticorruption by creating the impression that the government is shying away from public surveillance. For our purpose we are concerned that the proposed amendment fails to place anticorruption within the framework of human rights. Rather than creating a legislative environment that stifles debate on anti-corruption the government should be enacting legislation that enhances public participation in the anti-corruption drive as is required by the SADC Protocol on Corruption to which Zimbabwe is a signatory.

It is our view that the amendment in paragraph d of the amendment to clause 2 is sound and can withstand any stringent scrutiny. It is proper for the government to prohibit foreign funding to NGOs if the purpose of the funding is solely to 'further and facilitate the interests or activities of a political party.' It is here that the prohibition should begin and end. Anything beyond this scope does not appear to be necessary in a democratic society and in fact risks falling foul to all human rights tenets.

In all material respects and to the extent that the bill retains article 9(4) and 17 it remains fundamentally out of step with international human rights law. The proposed amendment in clauses 2(a) (b) (c) and (d) radically places Zimbabwe in a position far worse of than the original form.

For the foregoing reasons we note that the proposed amendments rather than improving the original bill it causes further confusion and effectively degenerates into an alarming and unprecedented conceptual and normative confusion. We strongly urge the minister to reconsider the methods by which the legitimate concerns noted by government may be met in a manner consistent with international human rights law. Our contribution remains confined to the argument that the amendment reflected in clause 2(d) suffices to deal effectively with the perceived mischief that the bill is designed to address.

We also note that international assistance and cooperation in respect of human rights work can now legitimately be considered a right in itself. Further we note that the UNDHR specifically legitimise NGOs as organs of society which may play a complementary role in the promotion and protection of human rights. In the circumstances to outlaw foreign funding and completely bar INGOs from doing human rights work beyond mere regulation is unconscionable.

It is our view that the NGO bill together with the proposed amendments violates international law as stated above. The bill also violated regional human rights instruments and protocols that the government of Zimbabwe is party to including the most recently adopted SADC Principles of free and fair elections. It is also our view that the Bill will create structural problems for Zimbabwe which will do beyond direct impact on NGOs. NGOs presently play a critical role in complementing government efforts towards the creation of an environment in which economic, social and cultural rights can be realised. The enactment of the proposed law in its current form will negatively affect a number of industries and downstream benefits will be terminated. It is likely that foreign currency inflows will also be affected. It is for these reasons that we are convinced that the sober way to address the concerns raised by the government of Zimbabwe will be to restrict the enactment of the law within the ambit of effective regulatory framework to curb any potential abuse of the system.

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