Civil Society Legislation in Zimbabwe History and Development

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5 Coleshill Close , Greendale, Harare, Zimbabwe

P O Box 6455 Harare

www.ngoconsultingafrica.org, [email protected]

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NGO Consultancy Africa (PVT) Ltd

facilitating for a stronger civil society in Africa

Civil Society Legislation in Zimbabwe History and Development

For several years now, NGOs have witnessed a shrinking of the space available to them. Most States

in this region have either adopted or began to plan legislation to control NGOs so this is clearly a

major concern1

This statement rings true in Zimbabwe as it did in Rhodesia, the only difference being that the space

has shrunk more during peace time than it did during the era of the liberation struggle. The legal

framework within which civil society operates in Zimbabwe has become harsher as the years have

progressed. The history of civil society in Zimbabwe starts way before the 1967 legislation that

aimed to regulate the civil society. The civil society in Zimbabwe can be traced back to the nineteen

twenties. From this time we can see many groups run by both the white and black communities. A

lot of the groups where formed as a response to certain circumstances. Initially most of the

organizations were social non- political groups which later changed to form the basis of political

groups involved in nationalist politics in Zimbabwe. The same era saw the creation of trade unions.

Most political parties were born out of the combination of these trade unions and welfare

organizations. The period between the early fifties to seventies also marked the entry of church

based organizations that where formed to deal with social welfare issues but ended up being

involved in the nationalist liberation struggle.

The involvement of civil society organizations in the political struggle going on in Rhodesia

intensified after the 1965 unilateral declaration of independence by the Smith rgime. Clearly before

1967, NGOs were registered and functioning in Rhodesia without the use of legislation. The Smith

regime was clear about why they were passing legislation to regulate the affairs of civil society. In

their view civil society was involving itself in an unacceptable manner in the liberation struggle by

assisting the guerillas in various ways. Legislation regulating CSOs in Rhodesia was first passed in

1967.2 The Welfare Organizations Act was enacted two years after the unilateral declaration of

1 Opening statement by Mwengo CEO at regional NGO conference in Johannesburg September 1996

2 Welfare organizations Act [93/67].

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independence (UDI) by the Smith government.3 The Act was enacted primarily to give government

control over the CSOs who were perceived of as being aligned to the liberation movements fighting

colonial rule in Rhodesia. The CSOs were playing an important role in disseminating information

abroad about the human rights situation in Rhodesia and also raising money for the liberation

struggle. Through their extensive networks, CSOs also played an important role in smuggling

nationalists out of the country and ensured that those who left received an education. At the same

time the CSOs were criticizing the Smith government on its violations of human rights and calling for

the imposition of sanctions. Civil society organizations played a very important role in ensuring that

the problems of Rhodesia remained firmly placed on the international arena. The Act was thus

enacted in an undemocratic State that was fighting to remain in power. At the time the Act was

promulgated, Rhodesia was regarded as a pariah State that did not pay regard to internationally

recognized human rights hence the passage of many repressive laws including the Welfare

Organizations Act.4

It is critical to understand that the initial legislation passed regulating civil society was passed not

with the view to providing an enabling environment for civil society but rather to enable the state to

have adequate control over this sector which was playing a very important role in the political

struggle by supporting the liberation freedom fighters.

It is also critical to realize that at independence the NGOs where embraced by the Mugabe regime as

partners primarily because of the role they had played in the liberation struggle and secondly

because of their ability to lure funding into the country. Amnesia, by which we mean here an

3 On November 11, 1965, Ian Smith unilaterally declared the country independent from British rule, in what

became known as the Unilateral Declaration of Independence (Rhodesia) (UDI) by the Rhodesian Government.

The declaration was out of frustration by the British government policy known as NIBMAR (No Independence

Before Majority African Rule), to the consternation of the white minority Rhodesian Front (RF) government, led

by Ian Smith This was internationally condemned and international sanctions were applied to Rhodesia from

1965 to independence as Zimbabwe in 1980.

3 See generally T Ranger and N Bhebhe (eds). Soldiers in Zimbabwes Liberation War Harare: University of

Zimbabwe, 1995.

4 See generally N Bhebhe B Burumbo: African Politics in Zimbabwe, 1947-1958. Harare: College Press 1989.

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officially imposed form of forgetting, is now a constituent element of the government as it seeks to

effectively bar NGOs from playing any meaningful role in the socio political arena in Zimbabwe.

Before examining the actual law in Zimbabwe relating to civil society, it is important to understand

what the right to freedom of association is, how and where it is provided for. The purpose of passing

legislation for civil society organizations has generally been accepted as being to provide an enabling

environment for such organizations to operate and to safeguard the freedoms enshrined in the

constitution. In the case of Zimbabwe, the legislation has consistently been passed to achieve the

opposite effect. Legislation has stifled the existence, growth and operations of CSOs in Zimbabwe to

such an extent that questions have to be asked about the role legislation has played in the

establishment of a vibrant civil society sector, whether legislative control of CSOs is necessary and if

so , to what extent is such control necessary.

The constitution of Zimbabwe guarantees the freedom of association and the additional freedoms of

assembly, demonstration, speech and petition which all fulfil the right to freedom of assembly.

Section 21 of the constitution of Zimbabwe provides;

(1) Except with his own consent or by way of parental discipline, no person shall be hindered in 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 political parties or trade unions or other

associations for the protection of his interests.

(2) The freedom referred to in subsection (1) shall include the right not to be compelled to belong to

an association.

(3) Nothing contained in or done under the authority of any law shall be held to be in contravention

of subsection (1) to the extent that the law in question makes provision

(a) in the interests of defense, public safety, public order, public morality or public health;

(b) for the purpose of protecting the rights or freedom of other persons;

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(c) for the registration of companies, partnerships, societies or other associations of persons,

other than political parties, trade unions or employers organizations; or

(d) that imposes restrictions upon public officers;

except so far as that provision or, as the case may be, the thing done under the authority thereof is

shown not to be reasonably justifiable in a democratic society.

(4) There are certain elements of the right that are so critical that if they are not met, the right is

effectively denied. At its barest minimum, the right to freedom of association includes a right to

form or join any association freely. In the case of In re Munhumeso & Ors the Supreme Court of

Zimbabwe emphasised that;

the importance attaching to the exercise of the right to freedom of expression and assembly must

never be underestimated. They lie at the foundation of a democratic society and are one of the basic

conditions for its progress and for the development of every man. 5

Freedom to associate implies not only the right to commence an association, but also the right to

continue that association.6 The Constitution is clear that limitations can be placed on the freedom of

association provided the limitations are reasonable in a democratic society. The phrase necessary in

a democratic society has been defined to mean;

something more urgent than merely useful or desirable, and considering that tolerance, broad-

mindedness and pluralism are hallmarks of democracy and that democracy does not mean that the

5 In re: Munhumeso & Ors 1994 (1) ZLR 49 (S).

6 An analysis of the Zimbabwean non-governmental organizations Bill, 2004 International Bar Association

unpublished paper at 11.

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views of the majority must prevail, and that restrictions must be appropriate and proportionate to

the legitimate aim pursued.7

The most important international human rights documents dealing with the freedoms of assembly

and association, as well as the related right to freedom of expression, are the following:

The Universal Declaration of Human Rights, Article 20 (1948) (Universal Declaration), provides, in

relevant part, that:

1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an

association.8

The African Charter on Human and Peoples Rights of 1981 provides somewhat more ambiguous

support for this freedom in Article 10, which reads as follows:

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 Article 29 no one may

be compelled to join an association.

The most important international human rights treaty dealing with freedom of association and

assembly and the related right to freedom of expression is the International Covenant on Civil and

7 The Neglected Right: Freedom of Association in International Human Rights Law. Human Rights First Publication, unpublished paper December 1997.

8 For a discussion of the negative freedom of association (the right not to associate), see Wino J.M. Van Veen,

Negative Freedom of Association: Article 11 of the European Convention for the Protection of Human Rights

and Fundamental Freedoms, 3 Intl J. of Not-for-Profit L. 1 (Sept. 2000) (www.icnl.org/journal/vol3iss1/)

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Political Rights, Article 22 (ICCPR) (1976). It is closely patterned on the ECHR, and it has been ratified

or acceded to by over 140 countries including Zimbabwe. The ICCPR provides, in relevant part, that:

1. Everyone shall have the right of freedom of association with others,

including the right to form and join trade unions for the protection of his

interest.

2. 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

interest of national security or public safety, public order (ordre public), the

protection of public health or morals or the protection of the rights and freedoms of

others. This Article shall not prevent the imposition of lawful restrictions on

members of the armed forces and of the police in their exercise of this right.

3. Nothing in this Article shall authorize States Parties to the International

Labor Organization Convention of 1948 concerning Freedom of Association and

Protection of the Right to Organize to take legislative measures which would

prejudice, or to apply the law in such a manner as to prejudice, the guarantees

provided for in that Convention.

The right consists of two components the first being to join or form an organization and the second

being to run the organization without undue interference. The right to association is also put

forward as part of a bundle of rights which are only effective when they are grouped together. The

right of association is not meaningful if it is not accompanied by the additional right to assembly

demonstration and petition and the right to expression. In order for any legislation passed to be

constitutional, it must not remove or limit the right. The law should guarantee the rights and

security of the organizations thereby creating an enabling environment. An enabling environment is

that environment which has no obstacles that prevents NGOs from being formed/registered and

functioning. This means an environment that allows NGOs to be given reasonable freedom to

operate without political influence and undue bureaucratic control.

To achieve an enabling environment three basic factors have to be present namely:

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Laws that are supportive of and promote the proliferation of NGOs

Steady, secure and increasing resources that are available to support NGO work

A willingness by the state to listen to and involve civic society especially NGOs and

their advocates, in debates and decisions about initiatives and programs that need to

be taken in the communities the NGOs work in .

To ensure that civil society can enjoy the rights guaranteed by the constitution, the following laws

must be in place for the benefit of civil society. Laws must permit for voluntary registration with the

state i.e. NGOs must not be forced to register with a state authority in order to be recognized.

Where NGOs chose to register with the state, the laws should allow NGOs to come into existence

relatively easily, without too much cost and according to clear standards for qualification. Further

the process must not take too much time. Currently, the NPO is taking a very long time to register

NGOs to the detriment of NGOs who want to access funds for community projects but cannot access

the funds because they are having problems in getting registered. In that respect there is no

enabling environment.

The laws should not set up unduly onerous reporting requirements for NGOs and CBOs, and

whatever reporting is required should be consistent with the benefits received by the organization.

In addition, the laws should not permit undue state interference with the normal operations of the

organizations, thus respecting their autonomy as independent bodies. Such legislation permits civil

society to be strong, and it assists their ability to be good partners with government and business.

The tax laws of a country should provide for exemption from income and profits taxes for NGOs.

Fiscal legislation should also provide other tax benefits, such as exemptions on customs duties. The

laws should allow for tax benefits to people and companies that fund NGOs in order to encourage

giving.

In order to provide support and independence for the civil society sector, laws should allow for

NGOs to raise funds locally and internationally without restrictions.

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The requisites stipulated above are usually not met because the State to does not normally legislate

within the spirit and letter of the constitution given the tensions that exist between civil society and

the State. Where the state gets the opportunity to limit civil society rights it is more likely to do so.

Provisions which create an organisation in legal terms, thereby enabling it to operate may be

misused as a mechanism to control what it may freely do.

Another aspect that is important to consider in the Zimbabwean context is that there are many laws

that are in place to limit the rights of NGOs. Almost every element of life in Zimbabwe is now

regulated and this has meant that NGOs have to operate in a highly regulated environment. The Acts

that have far reaching effects on the operations of NGOs are the Access to Information and

Protection of Privacy Act (AIPPA) of 2002 and the Public Order and Security Act (POSA) of 2002. By

far the most telling is POSA which replaced the law and order maintenance Act (LOMA) passed in

1960 as a direct response to the insurgents occurring in Rhodesia. Section 5 of POSA addresses acts

of subversion. The language of section 5 is so broad, however, that even peaceful protests may be

subject to prosecution. Specifically, subsection 2(iii) of this act makes coercing or attempting to

coerce the Government a crime punishable by up to 20 years of imprisonment. Coercing is

defined as constraining, compelling or restraining through boycott, civil disobedience or

resistance to any law, whether such resistance is active or passive . . . if accompanied by physical

force or violence or threat of physical force or violence. Thus, any participant in a rally or a mass

stay away may be subject to prosecution under this clause.

Section 25, which regulates public gatherings, has enabled police to approve, disapprove, or shut

down virtually any public gathering at will. Any person who wishes to hold a public gathering must

provide advance notice to the authorities, who then have the power to determine the duration,

location, and route of the gathering. The authorities may deny any request for a public gathering if

they claim it will cause public disorder, a breach of the peace, or an obstruction to any thoroughfare.

The police have used this legislation to deny NGOs the right to assemble petition and demonstrate.

Zimbabwe has contravened sections of its own Constitution and provisions of international law by

passing and implementing POSA. Section 21 of the Constitution guarantees the right to assembly

and does not provide for the sweeping authority POSA gives to officers of the state to restrict such

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gatherings. Further, Section 20 provides for freedom of expression and makes exceptions only for

the protection of national security, defamation, and other circumstances relating to the general

public welfare. POSAs restrictions on freedom of assembly, including breaking up private meetings

and outlawing all public assembly in certain areas for up to three months certainly contradicts the

Constitution, even if state security is considered. The assembly itself should always be guaranteed

even if the content of the discussions at certain gatherings may be regulated, in extreme

circumstances and not as a general rule, in the interests of security.

It is against this environment of an over regulated society that we must examine the civil society

laws.

Despite the stated aim of the NGO bill having been to create an enabling environment, it retained all

the harsh provisions of the old bill that it sought to repeal and created harsher provisions to ensure

that the state has total control of the sector. The following indicate the true purpose behind the

legislation;

Our sad experience with nongovernmental organizations operating in our country is that they are

set up and financed by developed countries as instruments of their foreign policy their objectives

include destabilization and interference with the evolution of our political processes undermining our

sovereignty and promoting disaffection and hostility against their popularly elected government

9

Earlier the state president had indicated that NGOs are

hatcheries of political oppositionThe moment they seek Governmental power and office as has

happened in Binga, we begin to view them differently as political opponents. And political

opponents are dealt with politically. ..They should not cry, for they have redefined the rules of

engagement,10

In the same vein, the minister responsible for NGOs indicated that

9

10Mugabe warns against meddling The Herald 13 October 2002 at 1.

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Some NGOs and churches are causing too much confusion in the country because they are

converting their humanitarian programmes into politicsThe government cannot allow that to

happen so we are saying they should go under scrutiny where we revise all modalities in the

country.11

The above sentiments show that the legislation was not necessary in a democratic society since the

restrictions sought to be imposed were neither appropriate nor proportionate to the legitimate aim

pursued. Neither the current nor the proposed legislation was meant to create an enabling

environment for CSOs, rather both pieces of legislation severely curtailed the space for civil society

organisations operating in Zimbabwe. The stated aim of the Bill is meritorious. However, extrinsic

evidence suggests that the real aim of the bill is to limit foreign interference in the internal affairs of

Zimbabwe through NGOs. The president in a speech to Parliament said NGOs must be instruments

for the betterment of the country and not against it. We cannot allow them to be conduits of foreign

interference in our national efforts.12

Further Parliament demonstrated its real intentions by ignoring the report of the Parliamentary

Legal Committee whose mandate is to examine Bills and advise Parliament on them before debate.

By ignoring the Committees report Parliament demonstrated that it was not concerned about

whether the Bill made good law but rather whether it addressed the supposed mischief that the

ruling ZANU PF party wanted to address.

Zimbabwe is no longer experiencing the internal conflict that was raging in 1967 when the Welfare

Organizations Act was passed.13 Despite this fact, the PVO Act was amended and renamed the

Private Voluntary Organizations Act in 1995.14 The PVO Act did not repeal the repressive sections but

rather retained them and added new sections that gave government greater powers over NGOs.

11NGOs causing confusion The Herald 5 April 2004.

12 Speech made at the official opening of the Fifth Session of the Fifth Parliament of Zimbabwe by his

Excellency the President, comrade R G Mugabe, on 20th July 2004. 13 Independence was formally granted on 18 March 1980.

14 Welfare Organizations Amendment Act 1995.

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It is alleged that the 1995 amendments to the PVO Act were carried out without consultation with

stakeholders.15 That the same allegation of failure to consult stakeholders has been made about the

NGO Bill shows a pattern on the part of government to ignore stakeholders and pass legislation that

is regressive.16 I submit that the reason why the PVO Act was not being challenged, since it is prima

facie unconstitutional, is two fold. Firstly, the Act was not so repressive as to prevent NGOs from

functioning freely. Secondly, the government generally gave the NGOs free reign and did not

interfere with their work. Despite threats to do so, the PVO Act was not rigorously applied.

However, on one occasion, the powers contained in the PVO Act were used with devastating effect

to gazette the executive members of the Association of Womens Clubs (AWC), a grass-roots NGO

with over 40 000 members. The AWC faced administrative and financial difficulties in the 1980s as

Membership had declined but began to revive in the 1990s with promised donor funding of ZWD$

11 million for programmes between 1994 and 1998. In 1995 the government issued a gazette, or

notice, that the Executive Committee of the AWC was suspended, indefinitely, and stopped from

exercising its roles and responsibilities.17 A caretaker administration was installed but later replaced

with an elected Committee comprising of ZANU (PF)s Womens League members.18 The gazetted

executive Committee applied to the Supreme Court in 1996, asking the Court to rule on the

constitutionality of the Act. In 1997, the Court found in their favor on the basis that, the applicants

had been given no chance to respond to the charge or complaint leveled against them and that

15 See Sara Rich Dorman Inclusion and Exclusion: NGOs and Politics in Zimbabwe (Doctoral Thesis) University of

Oxford 2001 who says both NANGO and most NGOs insist that the details of the Amendment only came to the

attention of NGOs after its second reading in Parliament on 7 February 1995 led to a report in the daily

newspaper; State to introduce Bill to monitor Activities of NGOs The Herald 8 February 1995; at page 182.

16 The same report of lack of consultation was also made when the highly undemocratic AIPPA Bill was

gazetted.

17 GOZ, Government Gazette Extraordinary, Vol. LXXIII, No. 59A, 2 November 1995.

18 Team of Trustees to run association of womens clubs Sunday Mail 5 November 1995;

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therefore, there had been no impartial hearing.19 The victory was hollow because even though they

were able to get back into office, the donors had lost confidence and were no longer prepared to

fund the initiatives.

Upon realisation of the potential for abuse that the AWC case demonstrated, NGOs started a

campaign to have the Act repealed.20 A petition was drafted which concluded that;

Civil society has always and continues to make valuable contributions to the development of this

nation and that Government has on numerous occasions committed itself to promoting good

governance, democracy and the rule of law. The Private Voluntary Organisations Act runs contrary to

these commitments. We, the undersigned are therefore determined to have the Private Voluntary

Organisations Act repealed. We demand a democratic environment free of the threatened

government interference for meaningful NGO participation in Zimbabwe. We call upon the Minister

to institute an open and serious discussion with NGOs so as to involve them in the drafting of

acceptable NGO legislation.21

Despite the campaign, the Act was not repealed and the NGOs have been operating under it without

many difficulties.

19 Holland & Ors. V. Minister of the Public Service, Labour and Social Welfare, Zimbabwe Law Reports, 1997 (1),

pp. 186.

20 For example, ZimRights organised a conference on NGO Activism at Adelaide Acres June 17-19, 1996.

21 Campaign for the Repeal of the PVO Act, Joint Statement by Non Governmental Organisations and

Concerned Citizens demanding the Repeal of the Private Voluntary Organisations Act 1995 [Chapter 93],

October 1996, 2.

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Trouble really started on 13 September 2002 when the government issued a public notice advising

NGOs to register as per section 6 of the (PVO) Act.22 The notice warned that those NGOs that

continued to operate without being registered risked prosecution. In terms of the existing

legislation, NGOs could operate without being registered in terms of the PVO Act. As a result the

notice was ignored and because there were no legislative provisions to back it, the government

could not take action. Against the background of protests against the PVO Act, which NGOs were

describing as repressive legislation meant to remove their constitutional rights; Parliament

proceeded to pass an even harsher Bill. The Bill is extremely draconian and seeks to cover every

group that is operating as an NGO. As will be shown in this study, the new NGO Bill does not

ameliorate the restrictive conditions for the operations of NGOs, which were set out in the Welfare

Organisations Act as amended in 1995.

Wide and ambiguous definitions

An NGO has been defined in the Bill to mean

any foreign or local body or association of persons, corporate or unincorporate, or any institution,

the objects of which include or are one or more of the following

(a) the provision of all or any of the material, mental, physical or social needs of persons or

families;

(b) the rendering of charity to persons or families in distress;

(c) the prevention of social distress or destitution of persons or families;

(d) the provision of assistance in, or promotion of, activities aimed at uplifting the

standard of living of persons or families;

22Government advert to PVOs The Herald 13 September 2002.

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(e) the provision of funds for legal aid;

(f) the prevention of cruelty to, or the promotion of the welfare of, animals;

(g) the promotion and protection of human rights and good governance;

(h) the promotion and protection of environmental rights and interests and sustainable

development;

(i) such other objects as may be prescribed;

(j) the collection of contributions for any of the foregoing;

The major difference between the definition of NGO in the Bill and the PVO Act is the expansion to

include any foreign or local body with the additional objects of:

(g) The promotion and protection of human rights and good governance;

(h) The promotion and protection of environmental rights and interests and sustainable

development.

The definition of NGOs has also been extended to include trusts registered with the Master of the High

Court.23 The wide definition of NGOs means that any type of body, association or institution, provided

its objectives or aims fall within the objectives of NGOs provided in the definition is deemed to be an

NGO. The definitions of NGOs has been widened so much and is so loosely worded that virtually any

23 Section 1 (h)(iii) of the PVO Act provided that NGOs aid not include any trust established directly by any

enactment or registered with the High Court

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organisation can be interpreted to fall under the term NGO and thus, have to apply to the Council

for registration.

The exception provided in the PVO Act for trusts established directly by any enactment or registered

with the High Court no longer appears.24 In fact all NGO Trusts were registered in the Deeds Registry

office, as registration in the High Court was not possible. This amendment is important as it the

alternative that NGOs had if they did not wish to register with the ministry of Social welfare. By

removing the provision of registering a trust, all NGOs have to register and as will be shown later

become subject to government control. In order to remove doubt section 3 clearly stipulates that

the Act will apply to all NGOs regardless of whether or not its legal status within Zimbabwe is

subject to any agreement with the State and whether or not its constituent deed or instrument is

registered with the High Court or the Deeds Office.

The Bill makes a distinction between local and foreign NGOs. A foreign NGO is defined as any

association of persons that does not consist exclusively of permanent residents or citizens of

Zimbabwe who are domiciled in Zimbabwe.25 On the other hand, a local NGO consists exclusively of

permanent residents or citizens of Zimbabwe who are domiciled in Zimbabwe. Closely allied to this

is the definition of foreign funding which has been defined to mean funding or donations made by

(a) a person who is not a permanent resident or citizen of Zimbabwe domiciled in Zimbabwe; or

(b) a company which is not incorporated in Zimbabwe or, if so incorporated, does not carry on

business in Zimbabwe; or

(c) any association of persons, whether incorporated or unincorporated, that does not consist

exclusively of permanent residents or citizens of Zimbabwe who are domiciled in Zimbabwe.26

24 Section 2 (h) (iii) NGO Bill.

25 Section 1ibid

26 ibid

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It will be demonstrated later that foreign NGOs cannot be registered if their sole purpose is to deal

with governance issues. Further, local NGOs dealing with the same issue cannot receive foreign

funding. This means that Zimbabwe citizens in the Diaspora cannot play any role in governance

issues in Zimbabwe. This limitation reflects a discrimination against citizens based on domicile. It can

be speculated that the reason for the limitation is motivated by the fear by the ruling ZANU PF party

that most Zimbabweans in the Diaspora support the opposition MDC party, having fled the country

as a result of the deteriorating economy and human rights abuse. By insisting that people involved in

issues of governance be domiciled in Zimbabwe, either as permanent residents or as citizens, the

government is in a position to effectively control and if necessary silence them, by the usual tactics

of intimidation, violence and arrest on bogus charges.27

According to the Bill, issues of governance include the promotion and protection of human rights

and political governance issues. This definition is vague and ambiguous. Almost any activity can be

said to be promotion and protection of human rights. For example the following can be construed as

being engaged in human rights issues,

The law Society when it comments on human rights abuses or when it brings an action challenging

the constitutionality of a piece of legislation.

an aid organisation that provides food

A labour organization agitating for better working conditions.

Further the use of the word includes indicates that the list is not exhaustive thereby giving the

Minister a wide discretion to deem other activities as issues of governance. The definition of issues

of governance is central because it determines whether an international NGO can be registered or

whether a local NGO can receive funding. Given the importance of the term a concise definition

should have been provided.

27 In Zimbabwe human rights activists and opposition MPs are routinely arrested and assaulted. See for example Youth rights activist brutally assaulted and Lawyer harassed available at

http://www.trocaire.org/newsandinformation/zimbabwe/youthrightsactivistbrutallyassaultedandlawyerharassed.

htm (accessed 9 december2004). See also Woza women assaulted after demo Zimbabwe independent 21

January 2005.

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Composition and powers of the regulatory authority

The NGO Bill creates a Council to manage NGO affairs. The Council is composed of

(a) five representatives from non-governmental organisations or associations which the

Minister considers are representative of non-governmental organisations; and

(b) one representative who shall not be under the level of Under Secretary from each of the

following Ministries

(i) the Ministry for which the Minister is responsible;

(ii) the Ministry responsible for health;

(iii) the Ministry responsible for justice;

(iv) the Ministry responsible for finance;

(v) the Ministry responsible for youth and gender affairs;

(vi) the Ministry responsible for foreign affairs;

(vii) the Ministry responsible for local government;

(viii) the Ministry responsible for information and publicity;

(ix) Office of the President and Cabinet;

and

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(c) the Registrar, ex officio.28

The composition of the NGO Council is very different from the PVO Board. The PVO Board had 15

PVO representatives and six government ministries.29 In terms of the Bill, NGOs have only 6

representatives whilst government has nine high-ranking Government employees as

representatives. There is no need for some ministries to be represented on the board and the

appointments are made solely to increase government representation on the board. The result is

that effective control of the Council is in government hands, particularly when one considers that

the government representatives alone can form a quorum.30 Further, decisions are made on a

majority vote at any meeting where a quorum is present.31 The regulatory authority is supposed to

be for the NGOs yet the government has more representation on it and effectively controls it. The

regulatory authority is not an independent body. It is appointed by the Minister and serves at his

pleasure. Further, the minister designates the Chairmen of the body.32 The minister can suspend any

member33and fixes the salaries for the members.34Additionally, the regulatory authority must cause

copies of all minutes that have been signed as provided in subparagraph (2) to be sent without delay

to the Minister for his information.35

The potential extent of government control is reflected in that the Minister may appoint a person to

be a member of the Council who has not been nominated by the NGOs and may decline to appoint

any person so nominated.36 As has been noted earlier, the Minister has already indicated that he

will appoint all the members to the Council if the NGOs refuse to nominate persons to serve on the

Council. It is therefore likely that, NGO representatives may be handpicked by the Minister and serve

at his pleasure. Clearly, by giving government control of the NGO Council the measures taken are

disproportionate to the stated aim of the Bill, which is providing an enabling environment for the

28 Section 3 (2) NGO Bill.

29Section 2 PVO Act. Zimbabwe has ten provinces which all had a representative on the board.

30 Schedule to section 4.

31 Ibid section 7.

32 Section 3 (6)NGO Bill.

33 schedule to section 4.

34 Ibid.

35 ibid.

36 Section 3 (4) iv NGO Bill.

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operation of NGOs. The clause relating to appointment of the Council members by the Minister is

similar to the provision in the PVO Act.37 The only difference is that as far as the government

representatives are concerned, those are almost predetermined as the Ministries named usually

have just one Permanent Secretary and one Undersecretary.

The Councils functions include among other things, formulating a code of conduct for NGOs,38

investigating NGOs for maladministration39 and, most importantly, considering and determining

every application for registration and every proposed cancellation or amendment of a certificate of

registration.40 The duties of the Council differ from those of the PVO board in that under the PVO Act

the board had no mandate to draft a code of conduct for NGOs. The function of the Council in

determining applications for registration assumes greater importance under the NGO Bill since no

NGO can operate without a registration certificate.41 Further, as has already been established, under

the PVO Act a refusal of registration was not vital since an NGO could register as a trust.

Registration of NGOs

In terms of the Bill, no NGO shall commence or continue activities unless it has been registered. A

person who takes part in the management of that NGO will be liable to a fine or imprisonment.42

This section is substantially similar to the PVO Act.43 The most controversial section on registration is

section is 9 (4), which states that No foreign non-governmental organisation shall be registered if its

sole or principal objects involve or include issues of governance.44 There are no exceptions

37 Sections 3 and 4 ibid.

38 section 4 (1) f NGO Bill.

39 section 4 (1) b ibid.

40 section 4(1) a ibid.

41 section 9 (1) a ibid.

42 section 9 (3) as read with section 9 (5) 3 ibid.

43 section 6 PVO Act

44 Emphasis added

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whatsoever. This ban represents a shift from the PVO Act, which did not place any limits on the

NGOs that could be registered.

Under the Bill applicants for registration must provide the following information,

2)

(a) the names, nationality and addresses of its promoters;

(b) its sources of funding;

(c) its plan of action or projected activities for the next three years.

(3) The constitution of every non-governmental organisation shall include the following

(a) the name of the organisation;

(b) the organizations objects;

(c) the powers of the organisation;

(d) the organisational structure and mechanisms for its governance;

(e) the procedure for convening meetings;

(f) the terms and conditions of office bearers and the removal of such office bearers from

office;

(g) the procedure for resolving disputes;

(h) the procedure for amending the constitution;

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(i) the procedure for dissolving or winding up the organisation and the manner of disposal of its

assets upon dissolution;

(j) disclosure provisions for all foreign donations to the organisations;

(k) any other matter which the Council may prescribe.

The information requirement is also significantly different to the PVO Act, which only contained the

proviso that The Registrar may require NGOto supply any further information which he may

deem necessary.45

Sections 10(4) and 10 (5) of the NGO Bill are similar to sections 17 (3) and 17 (4) of the PVO Act and

provides;

A non-governmental organisation shall, within thirty days of lodging an application in terms of

subsection (1), publish at its own expense in a national newspaper or a newspaper circulating in the

area concerned a notice containing the prescribed information and shall submit proof to the

Registrar that the notice has been published in terms of the law

(5) Any person may within sixty days or such other period as may be prescribed, lodge with the

Registrar an objection to the grant of the application, setting out the grounds on which such

objection is made, and the Registrar shall submit any such objection to the Council for consideration.

The Council is empowered to reject an application for registration if it is of the opinion that the NGO

is not operating bona fide in furtherance of the objects stated in its application for registration.46

45 Section 9 (4) PVO Act.

46 Section 10 (7) b NGO Bill.

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In terms of section 11 of the Bill, the registration certificate can be cancelled at any time for the

following reasons

(a) on the ground that the organisation has ceased to operate bona fide in furtherance of the

objects for which it is registered; or

(b) if any remuneration or reward, which in the Councils opinion is excessive in relation to the

total value of the contributions received by the organisation concerned, is retained or received by

any person other than a person for whose benefit the contributions were intended; or

(c) if the organisation fails to comply with any condition of its registration; or

(d) if the organisation ceases to function as a non-governmental organisation; or

(e) if the Council considers that the objects in respect of which the organisation was registered

are merely ancillary or incidental to the other objects of the organisation; or

(f) if the organisation fails to submit to the Registrar a report or return which it was required to

submit in terms of section sixteen, and fails to rectify the default within three months after being

requested to do so by the Registrar; or

(g) if the organisation is found guilty of maladministration in terms of section twenty-three.

The reasons for cancellation are similar to those in the PVO Act,47 save for section 11 (g), which

appears in the Bill only. Registration is thus not a permanent status but is subject to the whims of

the Council and/or the Minister.

However, in terms of the Bill, those who are aggrieved by any decision of the Council can always

appeal to the Minister responsible who can either confirm Councils decision or substitute it with his

47 Section 10 PVO Act.

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own.48 G Feltoe argues that this right is ineffective as the Minister is likely to uphold the Councils

decision.49

One glaring difference is the omission in the NGO Bill of the equivalent of section 8 of the PVO Act.

The section permitted an unregistered NGO to collect funds provided the delay likely to occur in the

registration of the NGO for the purpose of making such collection will probably prejudice the objects

for which such contributions are to be collected.50

Ban on foreign funding

By far the most controversial provision of the NGO Bill is section 15, which reads, No local Non-

governmental organization shall receive any foreign funding or donation to carry out activities

involving or including issues of governance.51 Presumably, as a means of ensuring that no foreign

funding is received, the Minister is empowered to appoint officers from his Ministry as inspection

officers in terms of section 22(1) of the Bill. The officer can inspect any aspect of the affairs or

activities of any non-governmental organization and to examine all documents relating thereto.52

NGOs are also required to submit audited accounts within three months of every year-end.53

Investigatory powers of the Regulatory Authority

Section 23 of the Bill enables the Registrar to institute an investigation into the affairs of an NGO if

he suspects that there has been maladministration, which, is not restricted to financial

48 Section 15 (1) (2) NGO Bill.

49G Feltoe NGOs in Zimbabwe unpublished paper.

50 Section 8 1(g) NGO Bill.

51 (Emphasis added).

52 (Emphasis added).

53 The director of every non-governmental organisation shall, within three months after the end of each financial

year of that organisation, cause an account of its expenditure and revenue for that financial year to be audited by

an auditor registered as a public auditor in terms of the Public Accountants and Auditors Act.

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maladministration. To aid the investigations, the chairman of the Council can request the Minister to

appoint an investigating officer in terms of section 22 (1).54 After an investigation, the Council can

amongst other action, cancel or amend the NGOs certificate of registration, if the Council

considers that the maladministration may constitute an offence, report the matter to the police and

if the Council considers that the maladministration warrants the suspension of all or any of the

members of the NGOs executive Committee, refer the matter to the Minister.

Should the Minister agree to suspend the entire executive Committee of the NGO, he must appoint

trustees to institute procedures for the appointment or election of a new executive Committee and

to run the organizations affairs pending such appointment or election. There is no time frame

specified within which the elections or appointments should be held.55

Section 30 of the Bill provides for any surplus remaining after the disposal of an NGOs assets vesting

in the State as bona vacantia. The possibility of the state acquiring NGO assets is viewed with

suspicion.

The legitimacy of the NGO Bill is questioned because there was neither of participation nor

consultation with the stakeholders in the drafting process. The comments made by government

Ministers show that the aim of drafting the Bill was to create legislation that gave government a firm

control of NGOs in Zimbabwe regardless of NGO concerns. The governments intention was reflected

in its the refusal to continue discussions with the umbrella body for NGOs in Zimbabwe, the National

Association of NGOs in Zimbabwe (NANGO), which had in 2003 drafted a proposed new NGO Bill and

presented it to the relevant Ministry. The NANGO Bill would have established a scheme of self-

regulation of NGOs by NGOs. NANGO had hoped that its draft would be used as a framework for the

eventual Act. Government failed/refused to hold consultations with NANGO and instead drafted a

Bill without reference to the stakeholders.



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After studying the Bill presented in parliament, NGOs complained that government was completely

ignoring their concerns on the Bill. The validity of the NGOs concerns was confirmed by the

Parliamentary Legal Committee, which produced a damming report. To date NGOs are still

contesting the legitimacy of the Bill and have petitioned the President not to sign the Bill into law.56

This shows that the government was not interested in a Bill that provided an enabling environment

for the NGOs. Instead, it wanted legislation that would give the government complete control over

NGOs. In its comment on the Bill the Legal Resources Foundation (LRF) says that the use of the word

enabling is reminiscent of Newspeak in George Orwells 1984, where words, are used in precisely

the opposite sense to their real meaning.57

There is nothing wrong with insisting on a regulatory body for NGOs particularly because they

receive development funds from the international and local community. It is thus prudent for

purposes of financial accountability that there be a regulatory body to oversee them. Clearly it is

constitutional to provide that NGOs be registered and to provide for some mechanism for

registration and a person or board to supervise the process. The normal practice is that independent

bodies regulate themselves and if there is government representation on their bodies, such

representation is minimal and only meant to facilitate discussion with the government. It has already

been established that the composition of the regulatory authority means that NGOs do not have a

lot of influence on decisions since government representatives alone form a majority and a quorum.

56 S Mapenzauswa Zimbabwe rights groups petition Mugabe over new law available at

http://www.reuters.co.za/locales/c_newsArticle.jsp?type=topNews&localeKey=en_ZA&storyID=7570006

accessed 9 February 2005.

57 Legal Resources Foundation Non-Governmental Organisations Bill, 2004, July 27, 2004 unpublished paper

at 5.

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The Parliament of Zimbabwe has traditionally recognized the importance of professions being

controlled by democratically elected organs and being structured in such a manner as to be self-

governing. For example, In terms of the Architects Act [Chapter 27:01], the Architects Council of

Zimbabwe controls architects, an eleven member Council with two members appointed by the

Minister responsible for the administration of that statute and nine members elected by the

Institute of Architects of Zimbabwe.58 In terms of Chartered Secretaries (Private) Act [Chapter 27:03]

as read with Statutory Instrument 20/1973, Chartered Secretaries are controlled by the Council of

the Institute of Chartered Secretaries and Administrators. Members of the Institute democratically

elect the Council.59 Although two members are appointed by the Minister of Lands, the majority of

the members of the Council of Land Surveyors, the organ which controls Land Surveyors are

democratically elected by Land Surveyors in terms of the Land Surveyors Act [Chapter 27:06].60 In

terms of the Legal Practitioners Act [Chapter 27:07] as read with Law Society by Laws contained in

Statutory Instrument 314/1982, an eleven member Council of the Law Society of Zimbabwe controls

the legal profession. Members of the Law Society of Zimbabwe democratically elect nine of the

eleven members.61

There is therefore no justifiable reason for creating a different structure for the regulation of NGOs.

The members of the NGOs have an expectation that they have control over their own affairs.

Accordingly, I submit that the relevant sections of the NGO Bill represent a significant departure

from the legislative philosophy of the Parliament of Zimbabwe. It puts NGOs under governmental

control and denies them the right regulate their own affairs. However, since NGOs are not a

professional body they need a body to regulate their affairs particularly since they receive donor

funding which makes accountability a primary concern. This concern can be adequately met by

vesting control of the NGOs in an independent body rather than a government controlled one.

Alternatively they should be allowed to continue self-regulating especially in view of the fact that

there were never any allegations made about NGOs failing to manage their own affairs. An

independent body is ideal in that it is free of government influence. This enables NGOs to carry out

their work without fear of victimization by the government. We have already established that some

of the work done by NGOs in human rights protection requires that NGOs be totally independent.

58 Section 4 (1) Architects Act.

59 Section 6 Chartered Secretaries (Private) Act.

60 Section 4 (1).

61 Section 54 (1) Legal Practitioners Act.

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Provided the NGO is not involved in illegal activities, it is entitled to have no interference from the

State. This requirement is important because without it, governments could restrict the ability of

groups to operate freely by interfering with the internal decisions of the association. In order for an

NGO to function properly, there must be no unreasonable governmental interference.

The legal framework for NGOs to work in should be designed to facilitate, rather than inhibit the

right to associate. States have a duty to provide a regulatory and legal framework enabling

individuals who wish to work together to do so. The NGO Bill fails to do this by placing unrealistic

registration requirements. For example, there is no justification for requiring an NGO to submit a 3-

year plan of action as NGOs normally change focus when the need arises.62 The submission of a

three-year plan removes their flexibility and ties the NGO down.63

The most draconian registration provision is the ban on registration of foreign NGOs if the sole or

principal objects involve or include issues of governance. The effect of the ban is that some

international NGOs that have been in Zimbabwe for a long time have to shut down.64 There is no

justifiable reason why governance issues in Zimbabwe must only be dealt with by local NGOs. In

order to ensure that human rights in Zimbabwe comply with international standards, it is pertinent

that international human rights NGOs be allowed to function in Zimbabwe. International human

rights NGOs have established networks, expertise and above all financial resources needed to

protect and promote human rights in Zimbabwe.65 Human rights are universal and their promotion

and protection is a matter of international concern. The Zimbabwe Lawyers for Human Rights said

the exclusion of foreign human rights NGOs reflects a desire by the government of Zimbabwe to

Restrict democratic space and reduce scrutiny of its human rights record.

62 Section 10 (2) c NGO Bill.

63 This is particularly so because in terms of section 11(1) a the registration certificate can be cancelled on the

ground that the organisation has ceased to operate bona fide in furtherance of the objects for which it is

registered. Operating outside the plan could reflect a lack of bona fides. 64 International bar association supra at 4

65 Mindful of theories of relativism, there are still certain rights on which there is agreement on their

universality.

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A desire by government to further limit enjoyment of universally recognised rights and fundamental

freedoms by the people of Zimbabwe, create a blackout of news on Zimbabwe filtering out to the

regional and international community, to reinforce an uneven playing field in matters of political

governance and maintain the status quo.66

Ngirande argues that the state has labeled human rights, electoral and governance based activities

as outside international Civil Societys mandate.67 The exclusion goes against the UN norms were

states human rights are measured against the international yardstick rather the local one and

international co-operation on human rights is encouraged.

The word foreign is given a very wide meaning hence the ban affects NGOs whose membership

includes Zimbabwean citizens in the Diaspora. It has already been argued that there is no

justification why Zimbabwe citizens abroad cannot form an NGO that deals with governance issues.

The legislation effectively gives foreigners resident in Zimbabwe greater rights than non-resident

Zimbabwean citizens. There is no rational reason for banning foreign NGOs from doing human rights

work particularly in view of the universality of human rights. We have already seen that international

NGOs have expertise and that the Committees set up under the six major conventions value their

contributions. The ban affects non-resident citizens right to the freedom of association, as the effect

of the legislation is that association is allowed only if it is with persons resident in Zimbabwe.

The Bill seeks to place a ban on foreign funding of NGOs that are involved in governance issues. The

word foreign funding has been used in its ordinary sense. In addition, it also refers to funds by

Zimbabwean citizens not domiciled in Zimbabwe. There is no explanation why funds given by

Zimbabweans abroad are deemed to be foreign funds.68 The confusion lies in that the Constitution

does not limit rights of citizens on the basis of domicile. Rather the rights set out in the Constitution

are for all citizens regardless of domicile.

Having regard to the wide import of the definition of issues of governance it is immediately obvious

that many NGOs or other humanitarian or relief agencies operating in Zimbabwe that receive foreign

funding will be precluded from receiving further foreign funding. The ban on foreign funds to NGOs

66 A Tsunga and T Mugabe; supra at 6.

67 F Ngirande New NGO Legislation signals the dearth of rights based activism, November 24, 2004

unpublished paper. 68 Ironically, the Governor of the reserve bank launched a campaign to lure Zimbabweans living abroad to send

money to Zimbabwe in an effort to solve the countrys foreign currency problems.

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engaged in governance issues is unique to Zimbabwe. Other countries simply try to monitor the flow

of foreign funds into the country. In India, for example, the only restriction is that prior government

approval is needed before an NGO can receive foreign funds.69 There is no reason proffered as to

why NGOs in Zimbabwe should not receive foreign funding. This is important considering that even

funding from Zimbabwean citizens domiciled outside Zimbabwe is deemed to be foreign and thus

prohibited. There would not be much opposition to the ban if it targeted specific acts like terrorism.

The Zimbabwe ban however achieves no objective aim and is not reasonably justified in a

democratic society.

The United Nations declaration on Human Rights Defenders deals with the right to seek funding,

article 13 thereof provides 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 accordance with article 3 of the present Declaration. 70

To prevent foreign funding of the human rights NGOs is not only an assault on the freedom of

association but it also constitutes a direct abrogation of Zimbabwes obligations to the international

community. We have already established that human rights are universal and that their promotion is

matter of international concern. There is no basis for the Zimbabwe government to make the

funding of human rights NGOs the preserve of Zimbabwean citizens domiciled in Zimbabwe and

permanent residents only. Effective enjoyment of the freedom of association can only be achieved if

the association has enough funds to carry out its activities otherwise the right is useless and hollow.

Commenting on the funding ban in the Bill the parliamentary legal Committee said;

Taken together, the provisions of this Bill will allow the Government of Zimbabwe to stop human

rights organisations from operatingThe provision prohibiting any foreign funding whatsoever cuts

off the very livelihood of these organisations the major human rights organisations in Zimbabwe are

69

70 Declaration on the right and responsibility of individuals, groups and organs of society to promote and

protect universally recognised human rights and fundamental freedoms. General Assembly Resolution 53/144.

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silenced and closed, this will be a devastating blow to the cause of human rights in Zimbabwe.

Without these organisations, many human rights abuses will go unreported and unpublicized and

most victims will be left without any protection71

Excessive Investigating officers powers

By far the most powerful tool at governments disposal to interfere in NGO work is the investigative

powers vested in an officer of the responsible ministry. We have already seen that the officer has

power to investigate any aspect of the affairs or activities of any non-governmental organization

and to examine all documents relating thereto.72 In terms of section 22 the power of the Minister to

appoint an officer to inspect the books of an NGO is not dependent upon the occurring of some

event at the NGO. In other words, the Minister is able to order an inspection to be conducted even if

there is no report or suspicion that there is mismanagement at the NGO. This provision is not meant

to ensure that NGOs keep proper books of accounts for they are already supposed to submit audited

statements every year. Rather, the provision is meant to intimidate and disrupt NGO activity. These

powers are so sweeping that they cannot meet the test of what is reasonable in a democratic state.

The test laid down and accepted in Zimbabwe73 is known as the Oakes Test, which provides,

To establish that a limit is reasonable and demonstrably justified in a free and democratic society,

two central criteria must be satisfied. First, the objective must be of sufficient importance to

warrant overriding a constitutionally protected right or freedom Second, the means, even if

rationally connected to the objective in this first sense, should impair as little as possible the right or

freedom in question: Third, there must be proportionality between the effects and the

objective74

71 Report of the parliamentary legal Committee on the non- governmental organisations Bill, 2004, [h.b. 13,

2004]. 72 NGO Bill section 22 (1) a (emphasis added).

73 Nyambirai v. National Social Security Authority and Anor [1995] (9) BCLR 1221 (SC).

74 Ibid at 1231.

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The officer can, for example, seek to know the names of all the members of an NGO and their

salaries. The officer can even demand to see all correspondences to and from an NGO. The powers

are such that they are designed to ensure that all the NGOs affairs and activities are known and

monitored by the State. There is no privacy or freedom that can be enjoyed by the NGOs in the light

of such legislative provisions. Jeremy Bentham in his treatise Fragments on Government, (1776)

wrote that governments are free that recognize

The liberty of public association; or the security with which malcontents may communicate their

sentiments, concert their plans, and practice every mode of opposition short of actual revolt, before

the executive power can be legally justified in disturbing them.75

Commenting on the powers of investigation, the International Bar Association said,

The conduct of investigations is another function vested in the Council, giving it very broad powers

to interfere in the activities of NGOs. This potentially constitutes a permanent threat to the

existence of NGOs, the certificate of registration notwithstanding.76

General legal principles require that the investigator and adjudicator should be different and

independent of each other. However, in terms of the Bill all the powers of investigation, prosecution

and adjudication vest in one individual.77 The process is not partial and does not comply with the

constitutional requirement of an independent and impartial Court or other adjudicating authority

established by law.78 By no stretch of the imagination could the process of investigation and

adjudication be considered impartial. The Registrar, a public servant, initiates the investigation; an

investigator, if appointed, would be a public servant; the Council is effectively controlled by the State

75 Freedom of Association available at http://fact.trib.com/1st.association.html (accessed on 19 December

2004).

76 N Mashumba & C Maroleng Tightening the noose: Narrowing the democratic space for NGOs in Zimbabwe.

Institute of security studies, A Report at 8.


78 Section 18 (9). Constitution of Zimbabwe.

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through its public servants; and the initial appeal is to the Minister, who is an interested party. The

process of investigation of maladministration is a clear contravention of the due process.

The term maladministration is defined in clause 23(1). In addition to its normal meaning, it also

means

any improper(which is not defined) conduct which would justify the cancellation of the NGOs

certificate of registration in terms of clause 11; and

any contravention of the code of conduct.

The definition is wide and allows the Minister to term virtually anything that he does not like as

maladministration and send his officers to investigate.

The concept of public interest in section 24 (b) of the Bill is wide and constitutes an open license to

suspend executive NGO members and to replace them with state-appointed trustees. It will be easy

for those in power to assume control of NGOs by suspending executive Committee members and

installing trustees. Any law passed should clearly be defined. The words used in the Bill are

designed to achieve confusion so that the state can change the goalposts to meet its requirements.

The Bill can thus be described as shifting.

In summary, it can be observed that the PVO Act was almost completely retained both in form and

content but with additions introduced to give government greater control of NGOs. Changes can be

highlighted as being in the following areas.

The distinction in the NGO Bill between foreign and local NGOs and the effect on registration

The inclusion of issues of governance and human rights in the objects of NGOs

The requirement to disclose, the NGOs sources of funding and the requirement to provide a three-

year plan;

The composition of the Council;

The omission of any equivalent to section 8 of the PVO Act;

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The ban on foreign funding;

The widening of the NGO definition;79

Commenting on the NGO Bill the IBA says that the NGO Bill essentially maintains the most

repressive features of the PVO Act but goes further by introducing new provisions.80

There was a collective sigh of relief when the president declined to sign the bill that had been passed

by parliament into law. This joy however was short-lived because the authorities are acting as if the

bill became law. NGOs are being asked to register with various ministries and in the various

provinces if they wish to obtain registration and receive permission to work in various provinces.

Further because there is uncertainty over the future of the NGO legislation, NGOs have almost been

cowed into a position of obedience since the threat of the bill being revived still remains. The fear

is especially real because no explanation at all was provided as to why the president declined to sing

giving the belief that a carrot and stick approach is being used on the NGO sector.

More importantly, because of the current indecisive environment, many NGOs who closed down

because the bill required them to have not returned and are adopting a wait and see attitude, new

NGOs are reluctant to come into the country and donors are not entirely willing to fund programs in

the country when there is no guarantee that a law will suddenly be passed that denies the right to

put funding into the county. The refusal to sing the bill was thus a masterstroke on the park of the

state since this clearly means that there is no enabling environment for NGOs in Zimbabwe. This is

good for the government which is keen to maintain its hold on power, ensure that it can continue its

human rights violations without a watchdog and also keep away the international NGO sector from

meddling in the affairs of Zimbabwe. Whilst this bodes well for the government of Zimbabwe, it

79 See generally the report by Human rights trust of Southern Africa. Analysis of the notice of amendment to

the Non-Governmental Organisation Bill, 2004 80 International Bar Association supra at 2.

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means that ordinary Zimbabweans are denied the right to form and participate in associations in

order to redress wrongs and better participate in the democratic processes of the country freely.

Having said that , it is critical that the sector with the leadership of NANGO come up with positive

strategies such as self regulation to wrest control of the sector from government and other actions

to strengthen the sector.

Documents

Civil Society Legislation in Zimbabwe History and Development