The NGO Bill was gazetted on August 20 2004. Although its stated objective is to provide for an enabling environment for the operations, monitoring, and regulation of all non-governmental organizations, and to repeal the PVO Act, it is more repressive than the act which it replaces.11 The opposition MDC-dominated Parliamentary Legal Committees (PLCs) report found that numerous clauses in the Bill violated the Constitution.12 In an all-night session on November 16 2004, the ZANU PF majority in Parliament voted to suspend Standing Orders to enable Bills to be fast tracked and to reject the PLCs adverse report.13 Seven days later, in another all-night session, Parliament passed the second reading of the NGO Bill with only one substantial amendment. 14 Before the debate, the Minister of Public Service, Labour and Social Welfare, who is responsible for the administration of the NGO Bill, though the President may appoint any other Minister from time to time, withdrew his most important proposed amendment which sought to narrow the definition of issues of governance.15 The proposed amendments of the Acting Chairperson of the Parliamentary Portfolio Committee of the Ministry of Public Service, Labour and Social Welfare were rejected.16 The PLC must now report on the constitutionality of the proposed amendments before the Bill may return to Parliament for its third reading.
The main difference between the NGO Bill and the PVO Act is that the new Bill tightens the surveillance and control mechanisms of government on NGOs over the already substantial government powers of control in the PVO Act. The definition of NGOs is made wider than in the PVO Act, and the NGO Bill eliminates exemptions from registration in the PVO Act. There are new prohibitions against the registration of foreign NGOs and access to foreign funding of local NGOs engaged in issues of governance. The Bill increases the imbalance in the composition of the NGO Council in favor of government versus NGO representatives, augments the Councils and the Ministers powers to regulate the internal affairs of associations, and imposes new requirements on NGOs. The Bill improves on the PVO Act in providing an appeal process against at least some decisions.
The definition of non-governmental organizations that fall under the Act is much wider than under the PVO Act and includes almost every association of civil society, including churches. Not only does the definition of non-governmental organizations introduce the distinction between local and foreign NGOs, but it covers associations whose purpose includes the promotion and protection of human rights and good governance.17
There are entirely new provisions for all non-governmental organizations, foreign and local, working on issues of governance. Local NGOs are prohibited from receiving any foreign funding to carry out activities involving or including issues of governance (clause 17).18 Foreign NGOs are prohibited from registering if their sole or principal purposes involve or include issues of governance (clause 9),19 which are broadly defined to include the promotion and protection of human rights and political governance issues.20 A local non-governmental organization must consist exclusively of permanent residents or citizens of Zimbabwe who are domiciled in Zimbabwe. Consequently, a single foreigner or even a Zimbabwean living outside the country would make the organization and its funds foreign.21
The NGO Bill provides for the composition and appointment of a Non-governmental Organizations Council. The NGO Council will consist of fifteen members: five NGO representatives from organizations which the Minister considers are representative of NGOs, nine high-ranking representatives from specified Ministries, and the Registrar as an ex officio member.22
The Bill augments the substantial powers of the Council and the Minister in the PVO Act. In particular, the Council may now cancel any registration certificate on two new grounds - if the organization has ceased to operate bona fide in furtherance of the objects for which it is registered, and if it is found guilty of maladministration.23 Maladministration is given a broad definition, encompassing not only theft or misappropriation of NGO funds or property but any contravention of any provision of a code of conduct as may be prescribed.24 The Council has the new responsibility in the NGO Bill of formulating a code of conduct for NGOs.25 The Minister, rather than the Registrar as in the PVO Act, has the power to dissolve NGOs under certain conditions.26 As an important aside, the state may take over property of the dissolved NGO.27
The NGO Bill places new burdens on organizations. To apply to register, organizations must provide the names, nationality, and addresses of their promoters, their funding sources, three-year plans, and their constitutions, which must provide prescribed information.28 Additionally, organizations must register annually and pay annual registration fees.29 NGOs are also required to have an annual budget, identifying inter alia, local and foreign funding sources.30 In the context of new burdens on NGOs and clause 9 that makes it illegal to operate without registration, it is important to note that there is no obligation on the part of the Council to make decisions about registration within any particular time period.
The NGO Bill provides for the right of appeal to an Administrative Court against decisions on maladministration,31 the suspension of executive members,32 and the dissolving of an organization.33 The PVO Act did not provide for the right of appeal to an Administrative Court for decisions on suspending members or dissolving organizations and did not provide for decisions on maladministration. The NGO Bill is thus an improvement over the PVO Act with respect to the provision of a right of appeal to an Administrative Court. However, like the PVO Act, the Bill provides no comparable appeal process against Council decisions on the rejection, cancellation, or amendment of registration, where the only appeal lies to the Minister.34 Similarly, the Bill makes no provision for an appeal procedure against the decisions of the Registrar to convert a branch of an NGO into an independent and separate organization if the Registrar determines a branch is not subject to control and direction of that organization.35
. Non-Governmental Organisations Bill (HB 13), 2004.
. Report of the Parliamentary Legal Committee on the Non-Governmental Organisations Bill, 2004 (H.B. 13, 2004). Tabled for debate in Parliament on November 16 2004. The report found the provisions of clauses 2, 9, 10, 11, 15, 17, 20, 22, 23, 24, 29 and 32 to be inconsistent with the Constitution.
. Bill Watch 37, November 18 2004; Bill Watch 36, November 15 2004. Distributed by Veritas Trust.
. Bill Watch 37. The Ministers proposed amendment of Clause 32, the transitional clause, was accepted.
. Bill Watch 37. Notice of Amendments During the Second Reading of the Non-Governmental Organisations Bill in Parliament on Tuesday 15th November 2004. The Minister proposed to redefine issues of governance to mean:
(a) any advocacy or promotion of the freedoms of assembly and association, the freedom of expression including the right to information, the freedom of movement and the right to stand for office or vote at any national or local election;
(b) activities aimed at public transparency and accountability:
(c) strengthening public support for an understanding on anti-corruption programmes;
(d) furthering and facilitating the interests or activities of a political party.
. Bill Watch 37. The Report of the Parliamentary Portfolio Committee of Public Service, Labour and Social Welfare on the Non-Governmental Organisations Bill (HB 13, 2004). Presented to Parliament on Tuesday 16th November 2004 by the Hon. Ms. Mpariwa, Acting Chairperson of this Committee. Ms. Mpariwa is an MDC MP; the Chairperson, Lazarus Dokora, is a ZANU PF MP.
. NGO Bill, clause 2(g).
. NGO Bill, clause 17.
. NGO Bill, clause 9(4).
. NGO Bill, clause 2.
. NGO Bill, clause 2, see interpretations of Foreign non-governmental organization, foreign funding or donation, and local nongovernmental organization.
. NGO Bill, clause 3(2).
. NGO Bill, clause 11(1)(a) and 1(g).
. NGO Bill, clause 23(1).
. NGO Bill, clause 4(f).
. NGO Bill, clause 29; PVO Act, section 27.
. NGO Bill, clause 30.
. NGO Bill, clause 10(2).
. NGO Bill, clause 11(a) and (b).
. NGO Bill, clause 16(2).
. NGO Bill, clause 23.
. NGO Bill, clause 24. In 1995 the Minister exercised his power to suspend the executive members of the National Council of the Association of Womens Clubs in 1995. The matter was challenged in the Supreme Court which ruled that the provision was unconstitutional because it did not provide for a fair hearing of the suspended members. However, section 21 of the PVO Act was not changed. See Supreme Court ruling in case of National Council of the Association of Womens Clubs (1997). Source: Interights Commonwealth Human Rights Law 11, February 11 1997. Holland & Orr v Minister of the Public Service, Labour and Social Welfare (1997).
. NGO Bill, clause 29.
. NGO Bill, clause 15.
. NGO Bill, clause 20.