Re: Non-Governmental Organizations Bill
To: President Robert G. Mugabe
From: Catherine Morris, BA, LLB, LLM
We have read reports of concern by persons in Zimbabwe about the Non-Governmental Organisations Bill, 2004, and we have reviewed the legislation and several reports about this Bill, including reports of the International Bar Association, Amnesty International, and the Observatory for the Protection of Human Rights Defenders.
We note the stated intention of the Bill, which the memorandum to the draft legislation indicates is to “provide an enabling environment for the operations, monitoring and regulation of all non-governmental organizations.” This draft legislation would enable monitoring and regulation of NGOs by the government, but it would not enable their operations. In fact, this legislation appears to have been designed to hamper the independence and effectiveness of NGO operations through a very high degree of regulation, tightly government-controlled processes, criminalization of legitimate activities, and appropriation of the assets of NGOs. In our opinion, if the Bill were to be passed by Parliament in its current form, the legislation would impose unduly severe and unwarranted restrictions on the freedom of association and expression in Zimbabwe.
LRWC is of the opinion that this draft Bill violates the International Convention on Civil and Political Rights (ICCPR) which Zimbabwe has signed and ratified. In particular, we draw your attention to Article 22 regarding the right to association, and to Article 19 regarding the right to expression. The draft Bill also violates article 22(2) of the ICCPR, which provides that “[n]o restrictions may be placed on the exercise of [the right to freedom of association] other than those […] which are necessary in a democratic society in the interest of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedom of others.” It is our opinion that the legislation provides for government control of civil society well beyond the requirements of public safety, order or morals. Instead of protecting rights and freedoms, the Bill thwarts legitimate rights protection and fundamental freedom of association and expression.
The Bill also contravenes the Declaration on Humans Rights Defenders, adopted by consensus of the General Assembly of the United Nations on December 9, 1998. Article 1 of the Declaration states that “everyone has the right, individually or in association with others, to promote the protection and realization of human rights and fundamental freedoms at the national and international levels.” Article 5(b) provides that “everyone has the right, individually or in association with others, to form, join and participate in non-governmental organizations, associations or groups.” Article 6(c) provides that “everyone has the right, individually or in association with others to study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, though these and other appropriate means, to draw public attention to those matters.” Article 12(2) provides that “[t]he State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration…”
We note that Zimbabwe has acceded to the African Charter on Human and Peoples Rights which includes an undertaking to recognize rights according to the Charter and to implement legislation and other measures that will give effect to the Charter. We draw your attention to Article 9 (right to receive and disseminate information) and Article 11 (right of association). We are aware of the report of the African Commission on Human and Peoples’ Rights after its fact finding mission in 2002 which indicated strong concern about the situation of human rights in Zimbabwe. This Bill seems to be put forward in the context of other laws that have restricted freedom in Zimbabwe including Broadcasting Services Act in 2001, the Access to Information and Protection of Privacy Act, the Public Order and Security Act, and amendments Private Voluntary Organizations Act in 2002.
Not only does this Bill disregard Zimbabwe’s international obligations but also we note concerns that this Bill would violate the Constitution of Zimbabwe in several respects including a violation of the right to associate in Section 21.
We now offer our specific concerns about the NGO bill as we believe it would affect human rights defenders and educators:
1. Broad definition of non-governmental organizations (NGOs). The Bill defines NGOs expansively to include both incorporated and unincorporated associations with a very broad range of objects. In particular, it includes in its definition of an NGO “any institution, the objects of which include … the provision of funds for legal aid, … [and] the promotion and protection of human rights and good governance.”
2. Increased government control and reduction of independence of NGOs The NGO Bill provides for extremely tight control of all the facets and operations of NGOs.
First, the Bill requires registration of all NGOs. Section 9 states that “no non-governmental organisation shall commence or continue to carry on its activities or seek financial assistance from any source, unless it has been registered in respect of the particular object or objects in furtherance of which it is constituted.” The broad definition of NGOs together with insistence on incorporation means that virtually all organized efforts of civil society groups are to be tightly regulated by the government. The Bill thus provides for an extraordinary level of government intrusion on collective efforts of citizens in a huge range of laudable activities, including efforts of unincorporated groups that conduct human rights education and advocacy.
Second, NGOs must apply for registration to the Registrar of the NGO Council, who works under the Minister of Social Welfare. Section 10 requires directors of NGOs provide in their applications not only the “the names, nationality and addresses of its promoters” but also its sources of funding and a “plan of action or projected activities for the next three years.” The application process requires a time consuming process of public notices including a period of sixty days for any person to file an objection to the grant of an application. The Registrar has discretion to require further information before submitting the application to the NGO Council, and there is no time limit for the Registrar to do so. With no statutory limits on the Registrar’s discretion and no time limits for the Registrar to place applications before the NGO Council, this process is open to excessive government interference, undue influence and inappropriate time delays during the application process.
Third, even when an application goes before the NGO Council, no criteria for refusing registration are specified. Decisions are in the discretion of the NGO Council with an appeal (Section 15) only to the Minister of Social Welfare. Thus, there is no appeal mechanism independent of the government.
Fourth, the Bill contemplates the creation of an NGO Council with five civil society representatives appointed from organizations “which the Minister considers are representative of non-government organizations” and nine fairly senior-level government officials appointed by various Ministries. The NGO Council would thus be heavily dominated by government officials and would have sweeping powers over NGOs including the power to “determine every application for registration […], formulate a code of conduct for non-governmental organizations […], conduct investigations into the administration and activities of NGOs […], take disciplinary actions….” (Section 4).
Fifth, Section 4(f) of the Bill provides that the NGO Council is to create a code of conduct for NGOs, breach of which could result in investigation, directions to the organizations executive committee, or cancel or amend the organizations certificate of registration. (see Section 23). There are no statutory specifications or limitations on what is to be included in this code of conduct, which contents appear to be in the discretion of the NGO Council.
Thus, the Bill is designed to place all NGOs, very broadly defined, under a very high degree of government control. The draft Bill creates local, regional and international alarm about further erosion of independence and freedom of civil society in Zimbabwe, and particularly human rights defenders and educators whose organizations would seem to be targeted by this Bill.
3. Criminalization of legitimate human rights monitoring, advocacy and education We are concerned about the Bill’s likelihood of criminalizing the legitimate activities of human rights defenders and educators. Section 9 states that “no person shall in any manner take part in management or control of an NGO, knowing that the organisation is contravening subsection (1).” This section prescribes personal criminal sanctions of up to six months imprisonment against members of the board of NGOs that are not registered.
Further, section 17 of the Bill prohibits NGOs from receiving foreign funding or donations “to carry out activities involving or including issues of governance.” This prohibition would apply to human rights defenders and educators, since Section 2 defines “issues of governance” to include “promotion and protection of human rights and political governance issues.”
If the Bill is passed, unincorporated groups of human rights defenders or educators could be charged with offences, subjected to possible imprisonment for engaging in legitimate human rights monitoring, education and advocacy.
4. Appropriation of NGOs’ assets The NGO Bill would place restrictions on funding of NGOs including prohibition of foreign funding of activities that involve issues of governance including human rights (see section 17). Section 28 permits the government to return monies to known contributors, or to take possession of the money, securities and property of the organisation and then return it to contributors. If contributors cannot be identified, monies are forfeited to the government. These provisions of the NGO Bill violate Article 13 of the Declaration on Human Rights Defenders which states that “everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means…”
In summary, the entire object of this Bill is in violation of Zimbabwe’s international obligations, not to mention Zimbabwe’s own constitution.
LRWC urges the Zimbabwean government to withdraw this draft Bill and to ensure that all future legislation fully respects freedom of association and expression and the rights of human rights defenders and educators in accordance with the ICCPR, the African Charter on Human and People’s Rights, and the UN Declaration on Human Rights.