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Assessing the NGO Bill
The NGO Bill does not comply with Zimbabwes human rights commitments in its Constitution and regional and international agreements and guidelines36 such as the government of Zimbabwes commitments to SADC agreements and the UN Declaration on Human Rights Defenders. Zimbabwes NGO bill on its surface appears to be far more intrusive on the rights of freedom of association and expression than the NGO laws in Malawi, Mozambique, Tanzania, and South Africa
The Constitution and international and regional agreements and guidelines
The provisions of the NGO Bill that prohibit local NGOs engaged in issues of governance from having access to foreign funds (clause 17) and that deny registration to foreign NGOs involved in issues of governance (clause 9) are contrary to the right to freedom of association in section 21 of the Constitution of Zimbabwe and the right to freedom of expression in section 20.37 While it is constitutional to legislate for the registration of associations38 there is no restriction in the Constitution on the purposes for which an association may be formed.39 According to the Constitution, the only restrictions that may be imposed under any law are those in the interests of defence, public safety, public order, public morality or public health or to protect the rights of freedom of other persons and they must be shown to be reasonably justifiable in a democratic society.40 These are similar to the permissible restrictions on freedom of expression.41
It is unreasonable to suspend the right to freedoms of association and expression on the grounds that some NGOs are allegedly receiving foreign funding for human rights work but are diverting the funds to opposition political parties. If some NGOs are using Western donor funds to support opposition parties, then the appropriate government remedy would be to prohibit NGOs from engaging in partisan politics. The proposed amendments by the Acting Chairperson of the Parliamentary Portfolio Committee also sought to prohibit NGO involvement in partisan politics.42 The NGO laws in Malawi, Tanzania, and Mozambique all provide for such restrictions on NGO activity without interfering with the right to freedom of association and freedom of expression [see Appendix].
Clauses 9 and 17 in the NGO Bill are not consistent with SADC agreements on human rights. The 1992 Treaty establishing the SADC stipulates that human rights, democracy and the rule of law are principles guiding the acts of its members.43 The Protocol on Politics, Defence and Security Cooperation provides that SADC shall promote the development of democratic institutions and practices within the territories of State Parties and encourage the observance of universal human rights as provided for in the Charter and Conventions of the Organization of African Unity [African Union] and the United Nations.44 The SADC Principles and Guidelines Governing Democratic Elections commit member states holding elections to protect the human and civil liberties of all citizens including the freedom of movement, assembly, association, expression...during electoral processes...45
Clauses 9 and 17 in the NGO Bill also do not comply with Zimbabwes obligations as a UN member state to uphold the UN Declaration on Human Rights Defenders. The UN Declaration, which the UN General Assembly adopted in a resolution on December 9 1998, merely articulates the existing rights of human rights defenders and the duties of states in a way that is easier to apply to the practical role and situation of human rights defenders. The rights of human rights defenders include the right to form associations and non-governmental organizations and to meet or assemble peacefully. The duties of the state include To adopt such legislative, administrative and other steps as may be necessary to ensure effective implementation of rights and freedoms.46
Overview of NGO Laws in Malawi, Tanzania, South Africa and Tanzania
In all four countries, Malawi, Tanzania, South Africa and Tanzania, the introduction of an NGO law was preceded by extensive consultations between the government and the NGOs. Malawi, Tanzania, and South Africa all impose time limits on the bureaucracy in the registration and de-registration of organizations. Malawi and Tanzania prescribe a role for non-governmental organizations to regulate themselves while South Africa hopes NGOs will choose self-regulation. In all the cases, the Ministers play the primary or even only role in appointing regulatory authorities. In Malawi and Tanzania, however, the Ministers make appointments after consulting or seeking recommendations from NGOs. Malawi and South Africa have established an appeal process to enable aggrieved organizations to challenge decisions on their registration or de-registration. Malawi avoids criminalizing statutory offences, making offences subject only to fines. With one exception, South Africa makes criminal offences only for organizations that engage in fraud.
None of the laws regulating NGOs in Malawi, Mozambique, South Africa, and Tanzania seek to cut off access to foreign funding for any reason. Indeed, the explicit premise behind regulating NGOs in these SADC countries is often to create NGOs as legal entities and thereby enable them to attract more donor funds. The laws in these SADC countries never seek to discriminate against NGOs whose purpose is to engage in activities related to issues of governance the promotion and protection of human rights and political governance issues. Zimbabwes NGO Bill diverges markedly from these more desirable SADC standards.
. Among other agreements that Zimbabwe has signed and that clauses 9 and 17 in the NGO Bill compromise are the African Charter on Human and Peoples Rights (Articles 10, 11), the International Covenant on Civil and Political Rights (Articles 19, 21, 22), and the International Covenant on Economic and Social Rights (Article 2(3)). Clauses 9 and 17 in the NGO Bill are also at odds with the African Unions NEPAD (New Partnership for Africas Development), the official program for Africas economic renaissance. The NEPAD Declaration on Democracy, Political, Economic and Corporate Governance emphasizes the importance of respect for human rights, good governance, and the rule of law as a basis for sustainable economic development. African states agreed to facilitate the development of vibrant civil society organizations in order to promote and protect human rights. See Comments on the NGO Bill, 2004. Submitted by the Human Rights Trust of Southern Africa (SAHRIT). To the Parliamentary Portfolio Committee on Public Service, Labour and Social Welfare. September 2004; Zimbabwes Draft Non-Governmental Oganisations Bill, 2004. Comments by the International Center for Civil Society Law, September 2004.
. Constitution of Zimbabwe, section 21(1) and section 20.
. Constitution of Zimbabwe, section 21(3)(c).
. Zimbabwe: NGO Bill Harbours Grave Consequences for the People. International Bar Association. August 24, 2004.
. Constitution of Zimbabwe, section 21(3)(a) and (b).
. Constitution of Zimbabwe, section 20.
 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. See the proposed amendments to clauses 9 and 17 which change the broad definition of issues of governance to target the participation of NGOs in partisan politics.
. See reference to Article 4 of the Treaty in SADC Principles and Guidelines Governing Democratic Elections. August 17 2004. [CHECK] http://www.swradioafrica.com/pages/sadc_elections.htm Accessed September 21 2004.
. Ibid, 7.4. See also 2.1.2.
. Arnold Tsunga and Tafadzwa Mugabe, Zim NGO Bill: Dangerous for Human Rights Defenders. Zimbabwe Lawyers for Human Rights. July 28, 2004. The African Commission on Human and Peoples Rights, the monitoring body of the African Union, reaffirmed the UN Declaration on Human Rights Defenders in June 2004.