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This article participates on the following special index pages:
NGO Bill - Index of Opinion and Analysis
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
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
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
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
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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