Implications of NGO Act which has been enforced in Zambia to regulate NGOs. Note that Zambian NGOs are under threat by this Act
kiss abraham
Dear all,
Kindly find the analysis on the implications of the NGO Act that was circulated sometime back for your information.
Regards,
Elijah Rubvuta
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FODEP
THE LEGAL IMPLICATIONS OF THE NON-GOVERNMENTAL ORGANISATION BILL/ACT, 2009 ON THE FREEDOMS OF EXPRESSION, ASSOCIATION AND ASSEMBLY.
1. INTRODUCTION
No doubt, civil society in Zambia plays a very vital role in the development of the country’s democratic dispensation by supplementing and complimenting government’s responsibility to its citizens. In order to achieve this, civil societies need to enjoy their inalienable rights to freedom of expression, association and assembly guaranteed and enshrined in our Constitution, Chapter 1 of the Laws of Zambia.
Jurists are agreed that freedom of expression is the life blood of any democracy. Without the enjoyment of the freedom of expression, it is impossible for citizens to freely associate with one another and to even assemble together. It is this free exchange of ideas and free interaction that ultimately leads to economic, political, social and cultural development of the nation.
FODEP has serious concerns that the likely effect of the NGO Bill, 2009, if enacted, would be to impede the operations of organisations and curtail the right to association enshrined in the Zambian Constitution and also protected by international law.
The Bill criminalizes unregistered organisations; allows the State to impose limitations on an organisation’s registration status; requires re-registration every 3 years; envisions a heavily bureaucratic regulatory body called the NGO Registration Board; grants the NGO Board dangerously broad regulatory powers; imposes constraints on the ability of NGOs to communicate and cooperate with counterparts both locally and abroad; mandates membership in an umbrella organisation; and threatens those who contravene the said provisions with harsh criminal sanctions, including imprisonment.
As will be demonstrated below, these provisions of the NGO Bill are an indication of Zambia’s lamentable failure of upholding its obligations to protect human rights especially the freedom of association, expression and assembly protected under the international human rights instruments and the Constitution.
ANALYSIS
2. Composition of the NGO Registration Board
Issue: According to Section 6, the NGO Registration Board shall be composed of 15 representatives, all appointed by the Minister and the Registrar as an ex-officio member. It is specified that two members shall be appointed “by virtue of the members’ knowledge or experience in development and welfare management,” that 6 members be drawn from various ministries and the Attorney General’s Chambers, and the 7 members be elected by the Congress all of these members shall serve on a part-time basis. Section 6 further gives the Minister full authority to consider and reject any nomination. Even those whom the Board may co-opt are subject to the approval of the Minister.
Discussion: Given the functions of the NGO Board, including registration and supervision, the composition of the NGO Board is fundamentally important. In this regard a single ministry or an administrative department would be appropriate to be tasked with the registration and/or supervisory function to ensure that it conducts those functions in a professional, apolitical and consistent manner. This is the only way that will guarantee the registration process to be truly accessible, with a clear, speedy, apolitical and inexpensive procedure.
The registration body should have the independence to decide upon registration based on objective criteria and not based on subjective opinion or political influence. It should have sufficient expertise to carry out its registration and supervisory duties with consistency and expediency. As service will be part-time, the Board will likely be unable to develop the necessary expertise to conduct its duties with such consistency and objectivity.
The NGO Registration Board consists of 15 representatives, each subject to the Minister’s appointment and veto power serving on a part-time basis, yet the Bill does not specify any particular qualifications or expertise for 13 out of 15 members. It can be reasonably anticipated that several of the government representatives and Congress-elected representatives are likely to know little about civil society generally and are likely to represent overtly political perspectives.
Serving on a part-time basis will not escape the cliché of lack of funds to enable regular sittings which will seriously impede the operations of NGOs given the nature of its functions. In addition, the representatives will have other responsibilities which will likely make it impossible to secure their attendances.
Finally, and perhaps most importantly, being appointed by the Minister, will likely lack professional independence to carry out its functions free from political influence and with the professionalism, consistency and expedience that is required of the State in fulfilling its obligations with respect to freedom of association.
Recommendation: Reconsider an appropriate regulatory body to handle registration and supervision tasks that will ensure that its functions are conducted in an apolitical, objective and professional manner.
3. Functions and Role of the NGO Registration Board
Issue: Section 7 lists the functions of the Board, which, inter alia, include registering NGOs, approving the “area of work” of NGOs, maintaining a register, engaging in various supervisory activities (audits, annual reports, etc.) providing policy guidelines to NGOs for “harmonizing their activities to the national development plan for Zambia”, and approving the code of conduct for NGOs.
Discussion: The mandate of the NGO Registration Board is over broad as it does not only register and monitor but also (1) approving “the area of work” of NGOs in Zambia; (2) providing policy guidelines for “harmonizing [NGO] activities to the national development plan” for Zambia; (3) advising on strategies for efficient planning and co-ordination of NGO activities; and (4) approving the code of conduct for the self- regulation of NGOs and their operations in Zambia.
Taken together, these functions are substantially wider in scope which is not necessary in a democratic society as it will seriously undermine legitimate activities of NGOs and threaten the freedom of association in Zambia. First, to “approve the area of work” of NGOs in Zambia implies that the Board has authority over NGOs work area after the registration process which is a direct interference in their operational activities and a violation of the freedom of association. Any subsequent requirement for governmental approval of areas of work is not justifiable in a democratic society.
Second, providing policy guidelines for harmonizing NGO activities raises serious questions; issues of harmonization and co-ordination of NGO activities should only be undertaken where the NGOs are voluntary participants in the process and not under compulsion. Should the policy guidelines to be formulated result in mandatory alignment between NGO objectives and the national development plan, then the policy guidelines would directly interfere with the freedom of association and with legitimate NGO activities. The Board’s function to “advise on strategies for efficient planning and co-ordinating the activities” of NGOs raises similar concerns. Third, it is not the government’s role to “approve” the self-regulation of NGOs; by definition, self-regulation is fully voluntary and separate from government-imposed regulatory requirements.
Recommendation: Revise Section 7 to reduce the listed functions and confine the registration body’s duties registration and acceptable supervisory functions.
4. Mandatory Registration and Criminalization of Unregistered Organisations
Issue: Sections 10 and 11 require mandatory registration of NGOs and prohibit the operation of unregistered organisations. An NGO must apply for registration to the Registrar within 30 days of its formation or adoption of its constitution. Persons operating an unregistered organisation commit a criminal offence and are subject to criminal penalties, including fines and imprisonments of up to 3 years.
Discussion: The Zambian Constitution, Chapter 1 of the Laws of Zambia expressly protects the freedom of assembly and association. Article 21(1) states that:
Except with his own consent a person shall not be hindered in the enjoyment of 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 any political party, trade union or other associations for the protection of his interests.
Despite the number of derogations in the said Article, it nonetheless guarantees the right to assemble freely and associate with others. Similarly, this right is recognised in major human rights instruments.
Article 22 of the International Covenant on Civil and Political Rights (ICCPR) states as follows:
Everyone shall have the right to freedom of association with others…. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public security, public order, the protection of public health or morals or the protection of the rights and freedoms of others….
Freedom of association is a right and not something that must first be granted by the government to citizens. As a right, freedom of association cannot be made to be dependent on registration or legal personality. Requiring a group of people that has come together for a common purpose to register with the government first is contrary to the notion of free association.
Mandatory registration of civil society organisations restricts the right to freedom of association and as such NGOs should be allowed to exist and carry out collective activities without having to register if they so wish.
The African Charter on Human and Peoples Rights (ACHPR), which Zambia ratified, similarly protects the right to associate. Article 10 of the ACHPR states that “(1) Every individual shall have the right to free association provided that he abides by the law; (2) Subject to the obligation of solidarity provided for in 29 no one may be compelled to join an association.” All these instruments recognizes that states have an affirmative duty to abstain from interfering with the free formation of associations, and that citizens must always have the capacity to join, without state interference, in associations in order to attain various ends.
By compelling all organisations defined as NGOs to register as formal legal entities, the NGO Bill contravenes Zambia’s obligations under the ICCPR and the ACHPR to protect the right to association which also violets our Constitution. The Bill even goes further to criminalize the operation of unregistered groups. By subjecting those who would operate unregistered groups to criminal sanction (including imprisonment), the NGO Bill actually criminalizes the exercise of a fundamental right. Moreover, the prohibition is too vague (“a person shall not operate a non-governmental organisation…”) to lead to predictable application. Even minor violations such as sending an email on behalf of an unregistered group could subject individuals to a prison sentence of up to 3 years. Therefore, the mandatory registration provisions in the Bill constitute an unjustified intrusion on the rights of individuals to associate without being registered.
Furthermore, the mandatory registration also presents practical difficulties as informal groups could easily violet the requirement to register. Given the definition of an NGO, if neighbours assemble together and decide to make a road or clear the bushes for the benefit of the community, are they required to register as a charity? If grandparents agree to hold weekly story telling hour for the local children, are they required to register with the government as a civic organisation? These groups could be arguably be subject to 3 years imprisonment for operating an unregistered NGO.
Recommendation: Delete the requirement for mandatory registration and provide expressly the right of unregistered organisations to exist and of the right to seek registration on a voluntary basis.
5. Conditional Registration
Issue: For those NGOs that are registered as legal entities, Section 13 authorises the Registrar to issue a certificate of registration “on such terms and conditions as the Board may determine”. The terms and conditions attached to the certificate may be amended by the Board upon renewal of the certificate of registration (Section 16) which must take place every 3 years. Violations of the said terms or conditions have real consequences as the Board may suspend or cancel an NGO’s certificate of registration (Section 17).
Discussion: The power to impose terms and conditions amount to restrictions on an organisation’s registration status. Once an NGO has been registered, it is entitled to the full benefit of such registration. The only permissible restrictions are those which are prescribed by law and which are necessary in a democratic society in the interest of security, order, health or morals and protection of rights and freedoms of others. Freedom of association is not a right that can be granted on the terms and conditions of the government’s choosing. Conditions imposed “as the Board may determine” are not clearly prescribed by law. Moreover, governmental interference through the setting of terms and conditions will be difficult to justify as necessary in a democratic society, and amounts to a violation of freedom of association.
Section 13 clothes the Board with unlimited discretion. First of all, there are no guidelines as to when the government should exercise its power. In other words one can ask as to what the legitimate state interest is in approving the registration of an organisation, while imposing restrictions on the registered status. Second there are no limits on the terms and conditions that may be imposed. The government could possibly restrict an NGO,s activities to such a narrow space as to deprive the NGO of meaningful existence. This unbridled discretion seriously aggravates the potential for impermissible interference with freedom of association.
Recommendation: Delete the statutory language in Sections 13, 16 and 17 which relate to terms and conditions of NGO registration.
6. Limited Registration or Re-registration Period
Issue: Section 14 limit’s the validity of the registration certificate to just three years and requires that an NGO apply to the Board for the renewal of the certificate. Section 16 states that an NGO “may, at least three months before the expiry of its certificate, apply to the Board for the renewal of its certificate.” In other words the Bill requires that NGOs undergo re-registration process every three years. The failure to renew the certificate will result in the expiration of that certificate and presumably, in the loss of legal entity status.
Discussion: Registration ought to be a one off event having satisfied the registration requirements. Clearly these provisions have overlooked the fact that some NGOs have been incorporated with perpetual succession either under the Companies Act, Chapter 388 of the Laws of Zambia or under the Land Perpetual Succession Act, Chapter 186 of the Laws of Zambia. There is no exemption of the registration requirement of these NGOs under the Bill. An Act of Parliament cannot by implication amend another Act.
The limited validity of a registration certificate is a direct barrier to the exercise of free association which restriction cannot be considered “necessary in a democratic society” to protect national security, public safety, order, health, morals or the rights and freedoms of others.
In addition, this requirement is not only tedious but is also disruptive of the activities of NGOs. There is no provision for renewals out of time and so once an NGO misses the three months period, that would be the demise of that NGO even when genuine reasons exists for failure to renew within the period.
Recommendation: Delete Sections 14 and 16 and instead clothe the NGOs with perpetual succession once registered.
7. Excessive Government Discretion in Registration of NGOs
Issue: Section 15 lists the grounds for government refusal of registration. These include: “(a) the proposed activities or procedures of the NGO are not in the public interest; (d) the Board is satisfied, on the recommendation of the Council, that the application should not be approved; (e) the terms of the constitution or rules of the organisation are repugnant to, or inconsistent with, the provisions of any law.”
Discussion: As discussed earlier, the restrictions that may be placed on an organisation’s right to exist are strictly limited. Permissible restrictions include only those which are prescribed by law and which are necessary in a democratic society in the interest of national security or safety, public order, health, morals or the protection of rights and freedoms of others. These limited restrictions are to be construed narrowly and only special and compelling reasons can justify restrictions on freedom of association.
The ambiguous and subjective grounds for denial provided in the Bill do not meet these strict limitations. The grounds outlined in Section 15 leave vast discretion in the hands of implementing officials to determine whether an organisations activities are problematic. Phrases like “in the public interest” and “repugnant to” are vague and invite government overreaching. Similarly, the Bill would allow the Board to refuse registration where it is “satisfied, on the recommendation of the Council, that the application should not be approved.” Such statutory language invites arbitrary and subjective decision-making, whereas the law should confine government decisions within objective limits.
Recommendation: Revise Section 15 to follow good constitutional and international regulatory practices and ensure that the grounds for refusal of registration are appropriately limited and objective.
8. Excessive Government Discretion in Suspension and Cancellation of NGOs
Issue: Section 17 provides the grounds for suspension and cancellation of an NGO’s certificate of registration. These include violating the terms or conditions attached to the certificate, contravening “any provision of this Act or the Code of Conduct,” and the Council’s recommendation for suspension or cancellation.
Discussion: An organisation’s right to free association may be involuntarily terminated and dissolved only in very limited circumstances that would justify an initial rejection of the registration application. The protection accorded to the right to associate apply to the dissolution of an organisation as well as to its founding. Where such restrictions are to be made, the Government must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of rights.
The following grounds included in Section 17 do not meet this strict test:
Ÿ the NGO violates the terms or conditions attached to the certificate;
Ÿ the NGO or any of its officers contravenes any provision of this Act or the Code of Conduct; or
Ÿ the Council recommends the suspension or cancellation of the certificate of the NGO.
Each of these grounds for dissolution affords substantial discretion to the Board to decide whether or not to suspend or cancel an NGO’s registered status. As there are no guidelines, the Council is also able to exercise unfettered discretion in recommending suspension or cancellation. Suspension or cancellation may result from even minor infractions (“any provision of this At…”).
Recommendation: Revise the list of grounds for suspension and cancellation to include only those grounds consistent with permissible limitations.
9. Barriers to Communication and Cooperation
Issue: Section 25(1)(c) requires NGOs to notify the Registrar, in writing, within 14 days of being “affiliated to or connected with any organisation or group of whatever nature established within or outside Zambia.” Section 25(2) makes contravening subsection (1) a criminal offence and subjects any office bearer of a registered NGO who contravenes subsection (1) to a fine or imprisonment up to 3 months, or both.
Discussion: The statutory language used in Section 25(1)(c) is vague. What does it mean to be “connected with” any organisation? Would sending or receiving emails from an international organisation qualify as being connected with? What about local NGOs engaging into a joint exercise to plan a conference or enter into a partnership for instance? Such questions and many others are critical especially in light of criminal sanctions which attach in case of failure to notify. In burdening the ability of NGOs to freely communicate with other organisations, the Bill may improperly interfere with the freedoms of association and expression. Civil society representatives, individually and through their organisations, have the right to receive and impart information, regardless of frontiers and through any media.
Article 20(1) of the Constitution, Chapter 1 of the Laws of Zambia, protects the freedom of expression as follows:
Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.
Similarly, Article 19(2) of the ICCPR and Article 9(1) of the ACHPR both protect the right to freedom of expression in a language which broadly embraces the right not only to speak, but also to receive information of all kinds, regardless of frontiers, and through any media. To the extent that the Bill, through Section 25 requires notification, burdens the ability of NGOs to communicate with partners inside or outside Zambia, or to engage in information exchanges and joint projects with these partners, the Bill can be said to interfere with the fundamental rights to expression and association protected by the Constitution and international human rights instruments.
Recommendation: Delete Section 25(1)(c).
10. Mandatory Self-Regulation
Issue: Part V of the Bill is entitled “Self-Regulation by Non-Governmental Organisations.” Section 29 envisions the establishment of a Zambia Congress of NGOs as a “collective forum of all organisations registered under this Act.” Section 30 mandates the formation of a “Council of NGOs,” which shall be responsible for the management and control of the affairs of the Congress; the Council shall consist of 12 NGO representatives. Section 31 spells out the functions of the Council to include developing a code of conduct for NGOs, coordinating the work of NGOs in Zambia, and performing other functions as the Congress may determine. Section 32 then addresses the preparation of a Code of Conduct which would be binding upon NGOs “as obligations under this Act.”
Discussion: By definition, self-regulation is purely voluntary for NGOs. To mandate regulation is inherently contradictory. By making self-regulation mandatory, Part V essentially amounts to government regulation. The law mandates that a Congress and Council be formed and that they develop and adopt a Code of Conduct, which is then subject to approval by the Government ( acting through the NGO Board). Moreover, “The Board shall ensure that the Code of Conduct is consistent with the national development plan.”(Section 32(5) ). While delegating the process of rule-making to NGO bodies may sound appealing, the Government’s controlling role in the process undermines the notion of self-regulation.
For the government to require membership in an umbrella group and compel the adoption of a code of conduct is to confuse government regulation with self-regulation and may amount to impermissible interference in the internal affairs of NGOs. One of the principal elements of freedom of association is the ability to run one’s own affairs. If the ability to run one’s own affairs is unreasonably constrained by rules imposed as legal obligations, then those rules are in violation of the rights.
Furthermore, the mandatory formation of an umbrella group and the compulsory membership to umbrella group as provided for in Section 29, is certainly a violation of the “negative” freedom of association- that is the freedom not to join an association. Article 10(2) of the ACHPR specifically recognizes that “no one may be compelled to join an association.”
Freedom of association imposes first and foremost a duty on the state to abstain from interfering with the free formation of associations. To require all NGOs to join, and to accord the Congress wide powers over the NGOs, Part V of the Bill certainly amounts to a violation of freedom of association.
Recommendation: Modify Part V so that it encourages NGOs to engage in true self-regulation. Delete all provisions that would compel NGOs to join an umbrella group or sign onto a binding code of conduct.
11. Use of Criminal Sanctions
Issue: The Bill provides for criminal penalties for NGOs and individuals for a wide variety of infractions. These penalties include monetary fines as well as imprisonment. The amount of monetary fines ranges from 1,000 to 80,000 to 300,000 “penalty units”. the potential periods of imprisonment also varies from 3 months to 3 years. Those subject to criminal penalties also vary, and may include “a person”, “any office bearer” or “any non-governmental government.”
Discussion: Generally, the frequent use of criminal sanctions, including imprisonment, for violating provisions of the Bill, is improper and inconsistent with the objects of the Bill itself and the Constitution. Laws can encourage compliance through penalties, but appropriate penalties include reasonable fines and the withholding of some benefits rather than criminal penalties.
The Bill imposes criminal penalties for a number of offences, inter alia, operating an NGO that is not registered (Section 10); failing to notify the Registrar of changes in the NGO’s name, constitution or objectives (Section 25); failing to furnish information requested by the Registrar (Section 26); operating without a registered office or failing to notify the Registrar of a change in the postal address (Section 27); failing to notify the Registrar of changes in office bearers (Section 28); and making a false statement or declaration (Section 36). Penalties are quite harsh, allowing for imprisonment for up to 3 years or fine, or both. Not only are such penalties excessive and unnecessary but they are also likely to deter people from working with or for NGOs based on the fear that ordinary activities are likely to trigger criminal sanctions.
In Zambia, general criminal laws already apply to individuals including those associated with NGOs and as such there is no need to impose additional general criminal penalties to laws specific to NGOs. Any penalties must be appropriate and proportional intended to encourage compliance rather than to restrain civil society.
Recommendation: Revise regulatory approach to sanctions by eliminating criminal penalties especially imprisonment and rely instead on administrative sanctions.
12. Miscellaneous Issues
Part III, Registration of NGOs: While this Part of the Bill embraces international NGOs ( “An international NGO shall not operate in Zambia without registration under this Act”), it does not, however, address the registration requirements applicable to international NGOs. Do they have to comply with the same registration requirements as those of the local NGOs? Typically, an enabling law will allow international NGOs to register not through the same requirements as the local NGOs but through separate and clearly defined requirements.
Another omission in this part of the Bill is the failure to provide for the timeframes within which the Board and the Registrar must act in reviewing registration applications. The failure to require the registration authority to act within a set time period may lead to lengthy reviews and ongoing uncertainty as months even years may delay result.
Section 23, Exempt Organisations: Section 23 authorises the Minister, on recommendation from the NGO Board, to exempt any NGO from registration “as the Minister may determine”. This Section provides the Minister with unfettered discretion to act, without any standards or guidelines or objective criteria upon which to base an exemption. Finally, this section is wholly contradictory of the objects of the Bill and defeats its relevancy if some NGOs can exist without registration and without complying with the provisions of the Bill.
Section 27, Registered Office: Smaller organisations in communities relying exclusively on volunteer services, may not have the financial resources to support a registered office. It would be sufficient to require a contact address.
Charles Chanda
CHAIRPERSON OF THE LEGAL SUBCOMMITTEE - FODEP
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FODEP National Secretariat
Box 32387, Lusaka, Zambia
Tel: +260-211-231503/236281
Mobile: +260-955-754175
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