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NGO Bill context
Sokwanele
December 12, 2004

We used to have welfare organisations, but in the past few years we have become more familiar with the term "non-governmental organisations". The new designation reflects the emergence of public activities which go far beyond the traditional charitable works of providing sustenance and services to the poor. Not-for-profit organisations now include development agencies, church welfare programmes, environmental protection agencies, human rights organisations, advocacy groups, savings clubs, AIDS organisations and others too numerous to mention.

Together these organisations generate a vast amount of activity and financial resources which fall outside the purview of government. They make the Zimbabwe government extremely nervous, for two reasons:
- they provide development and other assistance to communities outside government structures, showing the people that government does not have to be relied on for everything; and
- they do not lend themselves to easy control.

For a government inclining more and more toward the totalitarian, they represent a threat to its very existence, for they show that something else is possible.

Immediately after Independence in 1980 and for the following ten years, the state of emergency allowed the new government effectively to subvert the constitution by keeping in place restrictions on freedoms of assembly, association and expression. Independent print and electronic media did not exist, and people were accustomed to seeking government approval before acting independently. There were of course a large number of charitable and development-oriented organisations, but those promoting rights or good governance were conspicuous by their absence.

At the time of the massacres in Matabeleland in the mid 1980's, there were few organisations in a position to report on what was going on and speak out on behalf of the people; this role fell to medical staff and clergy employed in churches, primarily the Roman Catholics. No written reports were published in Zimbabwe until the mid 90's.

In the 1980's charitable organisations were expected to register with the Social Welfare Department as welfare organisations. They were given a registration number after being scrutinised by the Registrar of Welfare Organisations, and this allowed them to collect funds from the public, and even receive assistance for staff salaries. They could benefit from tax-free status for their investments, and from import duty rebates. They were required to provide reports and audited accounts to the Department.

A large number of development organisations found a legal existence in this way. Alternatively, they could simply form a Trust using a Trust Deed, and register it with the High Court. This entitled them to operate without any approval from the Social Welfare Department, or from anyone else. As the 1980's gave way to the 90's, and the state of emergency was removed, a new type of non-profit organisation began to appear - these were formed specifically to act as watchdogs of government or to lobby for changes in government policies.

They focussed on issues such as environment, the media, human rights, democracy, civic education and the constitution. While they advocated for specific policies, they were often engaged in development work as well and undertook to educate communities on their issues of concern. Many produced information sheets on their work and the situation in Zimbabwe.

Increasingly foreign and international NGOs also took an interest in Zimabwe. Government grew increasingly uncomfortable at the proliferation of organisations criticising their policies especially as the negative effects of the Economic Structural Adjustments Programme (ESAP) began to manifest themselves. Rather than welcome the healthy participation of many civil society voices in the public debate, ZANU PF became ever more paranoiac, intolerant of dissenting views, and looked for ways to silence those they felt most threatened by.

Their first move was to replace the Social Welfare Organisations Act with new legislation which would make control of welfare organisations much easier. In late 1994, the Private Voluntary Organisations Bill was gazetted, and by March 1995 it was law. It is the direct precursor of the current law, and introduced some of the control mechanisms that government wishes to make use of now. The new terminology, "private voluntary organisation" (PVO) in place of "welfare organisation", was intended to embrace developmental and advocacy organisations in addition to charitable organisations.

It removed the registration of these organisations from a single civil servant in the Ministry and established a Private Voluntary Organisations Board composed of 13 representatives of Private Voluntary Organisations and 1 from each of 6 ministries, all appointed by the Minister. The Board's role was to consider applications for registration, to issue registration certificates, and cancel registrations. No organisation could begin activities or seek funding without registration; to do so would be an offence.

However, a long list of organisations were exempted from registering, including "any trust established directly by any enactment or registered with the High Court". It was this exemption which allowed many organisations to continue functioning and many others to be formed, without coming directly under the control of a government ministry.

Those which did register as PVOs were subject to potentially stringent control: in the first place, registration could be refused, secondly, registration could be cancelled by the Board, and finally, the Minister could, "on information supplied to him" suspend all or any of the members of the executive committee of a PVO and appoint whoever he chose to run the organisation as a trustee, receiving whatever salary the Minister determined from the organisation's funds.

This action could be taken on various grounds, including if it appeared to the Minister that "it is necessary or desirable to do so in the public interest". While NGOs made protests about this aspect of the Bill in particular, they were ignored. The legislation sailed through Parliament, without a single sentence of debate. The second reading, committee stage and third reading were all covered on the same day, and must have taken not more than 30 minutes to complete. We must remember that Parliament at that time was virtually a one-party Parliament, after the 1990 elections following the Unity Accord, and there were very few voices of dissent.

The dangers inherent in the new Act became evident the following year. Section 21 allowed the Minister to suspend executive committee members of an NGO. The committee of African Women's Clubs (AWC), the chair of which was the firebrand Sekai Holland, was removed by the Minister on allegations of mismanagement. There were clearly problems within the organisation, but that was hardly a unique situation in an NGO. AWC was targeted specifically because Holland was a thorn in the flesh of ZANU PF.

Previously a staunch ZANU PF member, she later became a founding executive member of the Movement for Democratic Change (MDC). Holland challenged the suspension in the Supreme Court. She argued that the section contravened section 18 of the Zimbabwe Constitution (protection of the law) on the grounds that no fair hearing was provided for, and also contravened the right to freedom of assembly and association and the right to freedom of expression. The court agreed with her first argument and declared section 21 of the Act unconstitutional, but did not comment on the contravention of the other rights.

Government backed down and respected the ruling of the court. But since that date in 1997, government had on its agenda a tightening of control of NGOs by bringing in another amendment to this Act.

The NGO Bill was gazetted in August 2004 after years of drafts, consultations and lobbying. Much had transpired over those years which made government more determined to close in on the NGOs. During those years, a new type of NGO had come to prominence - those in the field of governance which were lobbying heavily and carrying out country-wide education which would make people more aware of the "democratic deficit".

The most effective at the time was the National Constitutional Assembly (NCA), which forced government to embark on its own, ultimately unsuccessful constitutional reform programme, and also spawned the highly successful opposition party, the MDC. ZANU PF began to blame NGOs in general for their loss of popularity, and the "governance" NGOs in particular. As the NGO's pressed for greater democratisation, and the opposition gained strength, government responded with legislation which would clamp down on their activities, specifically the Public Order and Security Act (POSA) and the Access to Information and Protection of Privacy Act (AIPPA).

Virtually all the new NGOs registered themselves with Trust Deeds at the High Court, knowing that their chances of being registered through the government-controlled process under the PVO Act were slim. Initial drafts of the NGO Bill caused concern among NGOs because the proposed Council to register NGOs would be entirely controlled by government, with a majority of government members, and a minority of NGO members. The NGO umbrella organisation NANGO proposed a Council controlled by NANGO. But all lobbying attempts were ignored. Government knew what it wanted, and was not going to be deterred.

The real sting in the new Bill when it was finally gazetted was the attack on the organisations concerned with human rights and governance. The definition of an NGO is expanded by the addition of institutions whose objects include "the promotion and protection of human rights and good governance" and "the promotion and protection of environmental rights and interests and sustainable development". And, critically, it no longer exempts Trusts registered with the High Court.

Furthermore, a new section prohibits any local NGO from receiving "foreign funding or donation to carry out activities involving or including issues of governance". Thus a local human rights organisation, such as Zimbabwe Election Support Network (ZESN) or Zimbabwe Lawyers for Human Rights (ZLHR), can be registered, if the Council approves it, but cannot receive foreign funding for any of its human rights or governance activities.

So even if the Council registers it, it will not be able to function due to lack of funds. Foreign NGOs will be totally banned from operating in the field of governance and human rights. The sections of the Bill regarding the powers of the Council and the Minister in relation to NGOs are slightly changed from the PVO Act, but it is clear that the powers remain very wide. The Council can cancel a registration or can undertake an investigation if the Registrar "has reasonable grounds to suspect maladministration", a term which is broadly defined. The Council can then, if it wishes, recommend that the Minister suspend any or all of the NGO's executive committee. The Minister may do this if he "is satisfied that it is in the public interest".

The Bill carefully provides for a hearing by the NGO executive when under investigation by the Council or the Minister, thus correcting the flaw identified in the previous legislation by the Supreme Court in the Holland case. But, when allowing the Minister to provide his own trustees to replace a suspended executive, it makes no provision for a time limit, and does not exclude the disposal of property from the powers of the appointed trustees. Such safeguards were included in the PVO Act.

These sections give excessive power to the Minister and his appointees in the Council. If there is maladministration amounting to criminal activity in an NGO, the police are the proper authority to carry on an investigation and bring the guilty parties before a court. Administrators do not have such skills. Suspending an entire committee for the misdeeds of one person smacks of collective punishment, and the provision for making representations does not mean the Council or Minister will consider it fairly; nor does the legislation require them to do so. The sections are clearly an attempt to take political control over NGOs and they certainly violate several rights guaranteed in the Constitution - freedom of association, protection of the law, and freedom from arbitrary deprivation of property.

The intention behind the new Bill is clear - it specifically targets NGOs which put government under pressure by exposing abuses of human rights and misgovernance, and further allows the executive arm of government (synonymous with the ruling party as far as the latter is concerned) to close down and take over NGOs which it perceives to be threatening to its own interests. Furthermore the mechanism used to achieve this is administrative action which provides no recourse to any impartial legal procedure.

While these control sections are not very different from those in the PVO Act, where they do differ, they give more power not less to government, and the sections allowing for representations to be made are cosmetic rather than substantial. The other major change in the legislation is that wherever an offence is created, a penalty is now given. For example, a person involved in "management or control" of an unregistered NGO is subject to a fine up to level 4 or imprisonment up to 5 months or both.

There was predictably an outcry from NGOs on publication of the Bill, and an intensive lobby was mounted. Representations were made to the Parliamentary portfolio committee and NGOs felt that they had been received sympathetically, but some failed to appreciate that Parliamentary committees have little power. This became obvious when the Bill was presented in Parliament.

On the first reading, no changes had been made from the originally gazetted Bill. This time, in contrast to the situation in 1995, there was no easy passage for the legislation through Parliament. After first reading, the Bill, according to procedure, was referred to the Parliamentary Legal Committee, whose report was scathing. Describing the bill as "a most serious attack on the Declaration of Rights", the Committee expressed the view that it "seeks to control, to silence, to render ineffective and ultimately to shut down NGOs.

In a clause by clause analysis it concluded that the registration process proposed would contravene sections 17 (protection from arbitrary search or entry) 19 (protection of freedom of conscience) 20 (protection of freedom of expression) and 21 (protection of freedom of assembly and association) of the Constitution, but most particularly the freedom of association, while the restriction on foreign funding for "issues of governance" would contravene sections 19, 20 and 21.

In spite of this adverse report from its Legal Committee, Parliament, controlled by a ZANU PF majority obedient to the dictates of the executive, voted to ignore the report. Instead, on second reading, some amendments were tabled. The Minister, Paul Mangwana, presented his proposals, as did the acting chair of the Portfolio committee, and the MDC shadow minister for Justice, David Coltart. The only substantive change that was ultimately accepted in a fiercely-fought all-night confrontation was to allow organisations operating as Trusts or in any other fashion, a six-month period in which to continue to operate before their applications for registration were processed.

Organisations already registered as PVOs can continue to operate for the time being, but will be subject to the funding restrictions and the threat of cancellation of registration. Those not registered will have six months to apply for registration. At the present moment, while the Bill is awaiting gazetting as an Act, NGOs are desperately studying the implications of the new law for their operations and trying to decide how to respond. Several made representations at the 36th session of the African Commission on Human and Peoples Rights in Senegal in late November.

The NGO community obviously represents a very wide diversity of interests. There are those NGOs which think they will not be seriously affected and are not interested in risking their own activities to stand up in support of others who are. There are others which engage in a variety of activities, some of which will fall under the prohibition of foreign funding and others which will not. Some may be prepared to give up a number of their activities in order to save those which do not involve "governance issues". Others, whose activities consist solely of "governance issues" may be expected to change their structures and become companies or institutes, or to simply give up and dissolve themselves.

Some may relocate to neighbouring countries. It is widely believed, and in fact has been admitted by ZANU PF that certain NGOs are to be targeted under the new legislation. They are the ones that have been most effective in challenging government excesses, such as ZESN, ZLHR, the NCA and Crisis in Zimbabwe. In a response to the NGO presentations to the African Commission, government said it would not countenance the NCA and the Crisis Coalition because they were trying to change the government. We saw special targeting being applied under the PVO Act, and since then we have ample experience of selective application of the law in many spheres of life in Zimbabwe.

It is particularly sinister when applied against NGOs. It allows those which are considered "non-political" to operate without any interference, pretending nothing is abnormal. Meanwhile all NGOs are forced into a position where they will censor themselves, reducing activities which might put them into the government's line of fire, and depriving the Zimbabwean public of the rich diversity of views and sources of information to which they have become accustomed in the past decade.

In short Zimbabweans are to be starved of healthy debate and of the challenge to government policy so essential to a true democracy. NGOs have become the lifeblood of civil society. Certainly, they exist primarily on foreign funding, an imperative in a collapsed economy where any surplus is seized by the political elite and disappears rapidly into conspicuous consumption, much of it outside the country.

But they have undertaken so much of the essential work of development and social welfare, which should be but is not being carried out by government that their existence is now crucial to the health and very survival of much of the population. Their work in the areas of governance is evident when one compares the response to the Gukuruhundi massacres in the 1980's when such organisations did not exist, and the response to the current terror generated by ZANU PF. They have become the conscience of the nation, and a nation without a conscience is a tragic phenomenon.

As NGO boards search their souls for the correct response to their dilemma, we find ourselves in the same position as liberals and churches, even academics, in Nazi Germany in the mid 1930's. Helpless against a determined regime holding all the levers of power, we watch aghast as one after another of the spaces formerly providing independent thought and action are closed down, and a fascist regime takes control of every aspect of social existence.

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