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Friday, 31 July 2009

The Non Governmental Organisations Act 2009

I was planning to review this new proposed legislation that has caused much consternation, but fortunately this new piece broadly highlights the key areas of concern:

On 16 July, Zambia joined a growing list of countries seeking to restrict civil society through controversial legislation. Since the beginning of the year, numerous governments have sought to introduce restrictive laws to curb the ability of civil society organisations and NGOs to critically examine their policies and question their record on good governance.

Earlier this month, Ethiopia introduced an anti-terrorism law with provisions ambiguous enough to label peaceful blockade of public services or incidental damage to public property during protest demonstrations as terrorist acts.

In June, after much protest from civic groups, Azerbaijan's parliament deferred its decision to pass restrictive amendments to a law limiting the ability of NGOs to access much-needed funds from international donors to sustain and support their activities.

Nicaragua also has a pending draft manual on international cooperation that seeks to impede rather than promote cooperation through provisions that restrict international civil organisations' involvement in or financing of activities deemed to be of "partisan political nature".

In February, a restrictive NGO bill was introduced in the Kyrgyz parliament to prevent civil society organisations from "participating in political activities and processes of the popular vote" with wide implications for election monitoring activities.

While in some instances NGOs have been able to build enough pressure to prevent restrictive pieces of legislation from becoming law, it remains a matter of deep concern that these initiatives are being undertaken in the first place.

Although absolute dictatorships are gradually giving way to elected governments, use of public resources and government powers to marginalise political opponents remains rife in many parts of the world. With opposition parties effectively silenced or marginalised through coercive means in transitional democracies, NGOs have often had to single-handedly perform the task of exposing official malpractices and hold governments accountable for non-fulfilment of electoral promises. This often leads to accusations in government circles about NGOs meddling in politics and abandoning their non-partisan principles. Government/civil society relations in transitional democracies are further strained by the competition for development aid that many foreign donors seek to channel through NGOs. Often, the result is the introduction of a restrictive NGO bill, as in Zambia's case.

Although one of the stated objectives of the Zambian bill is to enhance the transparency, accountability and performance of NGOs, questions regarding the motives behind this push by the Movement for Multiparty Democracy (MMD) government, which has held power in the country since 1991, are being raised. Key provisions of the bill restrict the independence of NGOs and subject them to excessive and unwarranted controls.

Despite existing international best practices that the decision to register should be the prerogative of an individual NGO, the bill requires all NGOs to subject themselves to compulsory registration within 30 days of their formation or adoption of a constitution. No time limit is prescribed for the processing of a registration application, which could keep some NGOs in a prolonged state of uncertainty regarding their legal status. NGOs can be denied registration in the "public interest", a term not defined by the bill. This allows decision-makers to make an assessment of an NGO's merit at their discretion. The bill also ignores the principle of perpetual succession for legal entities, by requiring NGOs to re-register every three years, creating additional bureaucratic hurdles and an opportunity to harass organisations that are critical of official policies.

Furthermore, the bill vests the government-dominated NGO registration board with far-reaching powers that could have serious negative implications for the independence of the NGO sector. Three functions of the NGO board are particularly problematic:

1) The power to approve the area of work of NGOs, which allows the government to determine their thematic and geographic areas of functioning and exercise control over their affairs;

2) The power to provide policy guidelines to harmonise the activities of NGOs with the national development plan, which coopts NGOs into assisting in the fulfilment of the political priorities of the government reflected in the plan;

3) The power to advise on strategies for efficient planning and coordination of activities of NGOs, which treats NGOs as government subsidiaries as opposed to independent entities free to formulate and execute their action plans in line with identified priorities.

Government domination of NGOs is further reinforced through provisions that empower the office of the registrar to demand information from NGOs about their accounts and office-bearers at will and within an unspecified time frame. Registration of an NGO can be suspended or even cancelled for a minor infraction of the bill's provisions, with no distinction made between first-time and repeat offenders.

The bill also imposes forced regulation and peer monitoring on NGOs by forcing them to draw up a code of conduct requiring approval by the government-dominated NGO board, and monitored by a 12-member NGO council. Although members of the council are to be elected by NGOs themselves, its overreaching mandate could have serious repercussions on the autonomy and independence of individual NGOs, who may not subscribe to the majoritarian position adopted by the council. The council is legally obligated to influence the activities of its peers by playing a monitoring and coordinating role over the NGO sector.

A number of civil society organisations in Zambia and abroad have made submissions to the government and parliamentary bodies in regard to the bill but have not received substantive assurances that it will be dropped or at least that its more restrictive aspects will be amended. Passage of the bill in its present form will constitute not only a serious setback for good governance and democratic initiatives in Zambia but is also likely to spawn a spate of restrictive legislation in the region, as attested by recent experiences from Latin America and central Asia, where governments have introduced mirror legislation to roll back civil society space.

1 comment:

  1. The present bill will require that NGOs register with the NGO Board and apply for a certificate to operate. Should the certificate be cancelled an appeal can be made to the Minister, thence to the High Court. The Act then declares that there shall be created a Zambia Congress of NGOs, and a Council of NGOs answering to the Congress with a code of conduct published in the gazette. Any person found to have provided incomplete information may be struck of the register for three years, and if a non-Zambian, be deported by the Minister. Ta ta!


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