Appendix: NGO Laws: Malawi, Mozambique, Namibia, South Africa and Tanzania
Malawi, Mozambique, South Africa, and Tanzania all have laws regulating NGOs. Namibia is considering a new policy and law for civil society organizations. The following discussion highlights key aspects of the existing or planned legal frameworks in these five SADC countries. Of particular interest are the consultation process between NGOs and the government in establishing the regulatory framework, the nature of the requirement to register, the composition of the regulating authority, bureaucratic discretion in registration matters, the authority granted to NGOs to regulate themselves, the appeal process against the decisions of the regulating authority, the nature of statutory offences and penalties, and restrictions on NGO fundraising and foreign NGOs.
The Non-Governmental Organisation Act in Malawi was introduced in 2001, after six years of extensive consultation with non-governmental organizations.47 The Act makes it mandatory for NGOs to register, but provides for exemptions, including for informal organizations that do not have a written constitution.48 The ten-member Board has three ex-officio members, who are the Secretaries of three Ministries, and seven members - at least three must be women - whom the Minister appoints in consultation with the Council for Non-Governmental Organisation in Malawi (CONGOMA), the designated NGO coordinating body.49 The Minister, in consultation with CONGOMA, may remove and replace any of the seven appointees while only the Board may remove the ex officio members.50
The Board registers and regulates NGO operations.51 No NGO may be registered under the Act unless at least two directors or trustees are citizens of Malawi.52 An NGOs application for registration must include approval from the Ministry responsible for the activities to be undertaken by the NGO, proof of membership in CONGOMA, a plan of the activities which the NGO intends to undertake, the NGOs source of funding, a statement that the NGO shall not engage in partisan politics including electioneering and politicking, and personal details, including the nationalities of the trustees, directors and other executive board members.53 The Board must decide on the application for registration within a specified time period.54 Failure to comply with the provisions of the Act and engagement in partisan politics are the main grounds for the Board to cancel or suspend registration.55 NGOs may appeal a Board decision to cancel or suspend registration to the High Court for judicial review.56 The Act permits registered NGOs to engage in public and other forms of fundraising, provided they comply with the prescribed reporting requirements.57 An NGO which contravenes the provisions of the Act shall be guilty of an offence and liable on conviction to a fine.58
The government of Mozambique has mandatory registration for foreign but not local NGOs. A law, Decree 55/98, regulates the registration and activities of foreign NGOs. The preamble to the law justifies the need for the establishment of a legal framework for foreign NGOs because of their complementary role to government initiatives in rehabilitation and development. The decree defines NGOs as non-profits involved in emergency programs, rehabilitation or development. Foreign NGOs must apply to the Minister for Foreign Affairs and Cooperation for authorization to work in Mozambique. Authorization is provided to NGOs whose activities conform with the Government program. According to the law, foreign NGOs must work for the creation of capacity within the Mozambican partner organizations and thereby ensure the sustainability of their activities. The Ministry issues two-year renewable permits to those NGOs who are authorized to register. Foreign NGOs are forbidden to conduct or promote acts of a political nature. Foreign employees working for foreign NGOs must conform with the Labor Law, Decree 8/98. Inter alia, the partner organization and the foreign NGO must verify that no Mozambican has the necessary qualifications before an expatriate may be hired.59 While there is no mandatory registration for local NGOs, a large percentage do register with the Ministry of Justice, apparently because registration ensures greater donor funding.60
The government of Namibia is in the process of consulting with civil society organizations to develop a partnership policy. In this context, the National Planning Commission will facilitate access to donor funds for civic organizations. A major feature of the policy calls for a review of the current laws and regulations affecting civic organizations. The review will be undertaken by an Advisory Committee composed of government representatives and civic organizations under the 1994 National Planning Commission Act. The goal is to formulate a Registration Act that will harmonize and consolidate existing laws regulating civic organizations and will establish a transparent registration process under the control of a single agency. The new law will seek to establish minimum criteria for competence and governance, enhance transparency and accountability, and improve coordination within the sector. The proposed legislation will respect the independence and autonomy of genuine organizations. Registration will be voluntary. The premise is that registration and a legal status will enable NGOs to attract more donor funds. The review will decide on the extent to which both registration of local organizations may be decentralized and civic organizations, through voluntary codes and a representative body such as (Namibia Non-Governmental Organisations Forum (NANGOF), may be permitted to participate in self-regulation.61
The Nonprofit Organisations Act No.71 of 1997, which came into operation in South Africa on September 1 1998, was a result of a long process of negotiations between the state and civil society organizations.62 The Act hopes to set and maintain adequate standards of governance, accountability and transparency by creating a voluntary registration facility for NPOs. The Minister for Welfare and Population Development must establish a Directorate within the national department and must designate an employee of the national department as the Director. For an NPO to register, its founding document or constitution must comply with various requirements. The only grounds for the Directorate to refuse to register an NPO is if it is not satisfied that the NPO has complied with the mandatory registration requirements. Time limits are specified for administrative action in the registration process. For example, the Director must consider and decide on an application to register within two months of receiving an application. Registered NPOs must comply with information and reporting provisions and formalities. Non-compliance may result in the cancellation of registration.
NPOs can appeal to an Arbitration Tribunal against the Directorates decisions on registration and de-registration. The Minister appoints at least seven persons to constitute a panel of arbitrators, following a public and transparent nomination process. The chairperson, designated from the members of the panel by the Minister, appoints no more than three panelists to serve on the Arbitration Tribunal. The Act also provides for offences and penalties. It is an offence to cause an NPO, when it is being wound up or dissolved, to transfer its remaining assets other than to an NPO having similar objectives. The only other offences in the statute arise from an NPOs fraudulent practices, such as falsely misrepresenting itself as being registered. The penalties for a person convicted of an offence in terms of the Act may be a fine or imprisonment or both.
The Non-Governmental Organizations Act, 2002 in Tanzania was preceded by the promulgation of a national policy on NGOs which was the product of consultations between the NGOs and the government.63 The Non-Governmental Organizations Co-ordination Board which regulates NGOs consists of ten members.64 The chair is appointed by the President, on the recommendation of the Minister responsible for NGOs. The Minister appoints four NGO representatives, on the recommendation of the National Council for Non-Governmental Organizations (the Council), an umbrella organization for non-governmental organizations established in terms of the Act, and five government representatives.65
The Act provides for mandatory registration.66 At least one founding member must apply for registration with the necessary information such as the organizations constitution, and the personal particulars of office-bearers and founding members.67 The Act stipulates time periods within which the Board must accept a registration application or notify an applicant of a rejection.68 To reject an application, the Board must be satisfied that the activities of the organization are not in the public interest or are contrary to written law, or that the application has false or misleading information, or that the organization should not be registered on the Councils recommendation.69 An applicant who is dissatisfied with the Boards decision to reject an application or to suspend or cancel registration may apply to the Board to review its earlier decision.70 Alternatively, the applicant may appeal to the Minister who, within two months, must make a determination.71 The Minister may uphold, reject, or vary the Boards decision, require it to revise or review its decision, or require it to get further information from the appellant before further consideration.72
The National Council for NGOs, composed of NGO appointees to represent their interests,73 must establish rules of procedure for efficient administration and co-ordination of the activities of NGOs,74 develop and cause to be adopted a code of conduct, and establish other regulations to facilitate self regulation of NGOs.75 The Board must approve the code of conduct.76 NGOs registered in terms of the Act may engage in legally acceptable fundraising activities.77 International NGOs, defined as organizations that are established outside the mainland of Tanzania,78 must foster and promote the capacities and abilities of other NGOs, participate in the activities of the Council, and not create competition or misunderstanding among NGOs.79 The Act provides for offences and penalties.80 An NGO commits an offence if it forges a document for the purpose of seeking registration, makes false statements, conducts fund raising activities contrary to the Act, operates without registration, or violates the code of conduct, regulations or rules made under the Act. The penalty for an offence may be a fine or imprisonment or both.
International NGOs, defined as organizations that are established outside the mainland of Tanzania,81 must foster and promote the capacities and abilities of other NGOs, participate in the activities of the Council, and not create competition or misunderstanding among NGOs.82
Comparing and Contrasting NGO Laws in the Five SADC Countries
Malawi and South Africa, and to a lesser extent Tanzania, engaged in serious consultations with civil society before introducing their laws to regulate NGOs, and Namibia is involved in intense consultations on its proposed new law.
Malawi and Tanzania have mandatory registration. Malawi will only register NGOs if at least two directors or trustees are citizens of Malawi, but the law makes provision for exemptions. South Africa has voluntary registration, and Namibia intends to follow suit. Mozambique has a dual registration regime: mandatory registration for foreign NGOs and voluntary registration for local ones.
Ministerial influence in the appointment of members of the registration body is high. In Tanzania, the Minister appoints four members on the recommendation of the legally designated NGO Council. Malawis Minister appoints seven members and must merely consult with the designated NGO body.
South Africa, Malawi, and Tanzania all have laws that impose time limits on the bureaucracy that makes decisions about registration.
Appeal processes for organizations to challenge decisions on registration vary. South Africa provides for an Arbitration Tribunal appointed by the Minister to hear appeals, Malawi permits appeals to the High Court for judicial review, and Tanzania merely allows the aggrieved organization to request a Board review of its decision or to appeal to the Minister.
The extent to which the laws of different countries criminalize statutory offences differs. The NGO law in Malawi provides for statutory offences which may only be punished by imposing a fine. The South African law creates offences primarily for fraud, which is made punishable by either a fine and or imprisonment. The only other offence that the law creates is for the transfer of NGO assets other than to another NGO with similar objectives when the organization is being wound up or dissolved. This offence is a violation of a provision that organizations must insert in their constitutions when they seek registration. The Tanzanian legislation creates numerous statutory offences which are liable to punishment by a fine or imprisonment or both.
In Tanzania and Malawi, the laws impose specific duties on foreign NGOs, which are defined as being established outside the respective territories. Foreign NGOs in Mozambique will only be authorized to operate if they conform to the government program, create capacity in local partners, and avoid participation in politics. In Tanzania, foreign NGOs must promote the capacities of other NGOs, participate in the NGO Council, and not create competition or misunderstanding among other NGOs. With respect to fundraising, Malawi and Tanzania permit registered NGOs to engage in legal fundraising activities. In Namibia and South Africa, the premise of voluntary registration is that it will enable NGOs to attract more donor funds.
. Civil Society Appeal on the NGO Bill No.19 of 2000", Daily Times (Malawi), January 10 2001. Http://chambo.sdnp.org.mwngo/bill-2000/appeal.html. Accessed November 18 2004.
. Non-Governmental Organizations Act, 2001, section 5 and section 20.
. Ibid, section 7 and section 24.
. Ibid, section 9.
. Ibid, section 18.
. Ibid, section 20(2).
. Ibid, section 20(3).
. Ibid, section 20(4).
. Ibid, section 23(1).
. Ibid, section 23(4).
. Ibid, section 33.
. Ibid, section 34.
. This paragraph relies on the following sources: An English copy of Decree 55/98 provided by World Vision Mozambique; MS Mozambique Annual Report 1999 http://mozambique.ms.dk/mainpapers/mozrep99.htm Accessed November 15 2004; Mozambique. Country Reports on Human Rights Practices - 2003. Released by the Bureau of Democracy, Human Rights, and Labor. February 25 2004.
. Management of Social Transformations (MOST). Discussion paper - No.56. Governance, Civil Society and NGOs in Mozambique by Stefano Bellucci (UNESCO, 2002) SHS-2002/WS/7.
. The following paragraph relies on a draft document, Government of the Republic of Namibia, Civic Organisation Partnership Policy. National Planning Commission, 2004.
. This paragraph relies chiefly on Guide to the Nonprofit Organisatins (NPO) Act and the Nonprofit Organisations Act, 1997. Http://www.etu.org.za/toolbox/docs/building/guide.html Accessed November 11 2004.
. The United Republic of Tanzania. Vice-Presidents Office. The National Policy on Non-Governmental Organizations. November 2001. The initial public consultation on the draft law gave way to the government closing the process. See Comments of Professors Leon E. Irish and Karla W. Simon, The Non-Governmental Organizations Act, 2002, for the United Republic of Tanzania. Gazetted in the Official Gazette 4 October 2002. 1 Int.J.Civ Soc.Law available at http://www.law.edu/journal/ijcsl.
. The Non-Governmental Organizations Act, 2002, for the United Republic of Tanzania. The composition and method of appointment of the Board is set out in the Schedule, under section 6(1), paragraph 1.
. Ibid. The National Council for Non-Governmental Organizations is established in terms of section 25(1) of the Non-Governmental Organizations Act, 2002.
. Ibid, section 11(1).
. Ibid, section 12(2).
. Ibid, sections 13 and 14(2).
. Ibid, section 14.
. Ibid, section 16(1).
. Ibid, section 16(2).
. Ibid, section 16(2) and (4); section 21 (5) and (6).
. Ibid, section 25.
. Ibid, section 26(2).
. Ibid, section 27(1).
. Ibid, section 28(1).
. Ibid, section 32.
. Ibid, section 2.
. Ibid, section 31(c).
. Ibid, section 35.
. Ibid, section 2.
. Ibid, section 31(c).