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The International Journal
of Not-for-Profit Law

Volume 12, Issue 2, February 2010

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Sub-Saharan Africa Country Reports

Special Section

Introductory Overview
International Center for Not-for-Profit Law

Ethiopia
Debebe Hailegebriel

Kenya
Faith Kisinga Gitonga

Liberia
Cecil B. Griffiths

Rwanda
Gloria Tengera

Sierra Leone
Emmanuel S. Abdulai

South Africa
Ricardo Wyngaard

Uganda
Livingstone Sewanyana

Zimbabwe
Otto Saki

Article

South Africa's King III: A Commercial Governance Code Determining Standards of Conduct for Civil Society Organizations
Peter S.A. Hendricks and Ricardo G. Wyngaard

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Editorial Board

Introductory Overview

International Center for Not-for-Profit Law*

I. Introduction

Under the auspices of the NGO Legal Enabling Environment Program (LEEP), made possible by the U.S. Agency for International Development (USAID), the International Center for Not-for-Profit Law (ICNL) recently commissioned the preparation of reports on the legal framework for civil society in four sub-Saharan African countries, including Kenya, South Africa, Uganda and Zimbabwe.  With the support of the Canada’s Department of Foreign Affairs and International Trade (DFAIT), the World Movement for Democracy (WMD) similarly commissioned reports on the same theme in four additional countries, including Ethiopia, Liberia, Rwanda, and Sierra Leone.1  All reports were prepared based on the same research template, in order to ensure some measure of consistency among them.  ICNL and WMD are grateful to the local partners in each country and pleased to present the results of their efforts.  We hope that the country reports will raise awareness of both the positive legal developments and the barriers and challenges affecting civil society within those countries.    

II. Scope of Research

Each country report seeks to present an overview of the legal and regulatory framework affecting civil society organizations (CSOs).  Included in each report are the following themes:

In addition, each country analysis may refer to other laws, regulations and/or policies that impact on civic space.  Tax legislation may or may not provide fiscal incentives to CSOs, thereby encouraging or hindering financial sustainability.  Legislation focused on national security, such as the Public Order Security Act (POSA) in Zimbabwe, can be used to intimidate and harass human rights defenders and civil society leaders.2  And customary or indigenous law remains a critical strand of the legal system in each country, and indeed throughout the countries of sub-Saharan Africa.3    

Finally, it is important to note that four of the reports – Ethiopia, Liberia, Rwanda, and Sierra Leone – were commissioned by the World Movement for Democracy nearly one year ago.  Since that time, there have been developments which are not reflected in the reports, but which we highlight briefly here:

III. Legal Trend to Constrain Civic Space

The eight reports included in this compilation reveal a multiplicity of regulatory approaches.  We find generally supportive legal frameworks in Liberia and South Africa.  Legal frameworks in Kenya and Rwanda are the focus of cross-sectoral reform efforts to improve the operating environment.  The laws in Ethiopia, Uganda and Zimbabwe are based on a more restrictive, controlling regulatory orientation, and the political will to improve the legal framework is questionable.

Indeed, the past year alone has witnessed several examples of regressive legislative change, whether proposed or enacted.  These laws have narrowed the available space for civic activity and have set poor legal models for neighboring countries.  Taken together, the following examples seem to reveal a worrying trend.  To illustrate:

IV. Toward More Enabling Environments

While the challenges facing civil society in many African countries are formidable, there are noteworthy positive developments as well. 

The legal framework in South Africa – which is perhaps the most influential country in sub-Saharan Africa – is generally considered to be enabling and supportive of civil society.  South Africa thus provides an important positive model for other nations in the region.  The Nonprofit Organisations (NPO) Act, in section 2, sets an admirably high standard in seeking to:

  1. create an enabling environment within which NPOs can flourish;
  2. establish an administrative and regulatory framework within which NPOs can conduct their affairs; and
  3. encourage NPOs to maintain adequate standards of governance, transparency and accountability and to improve those standards.

In Kenya, the Government and civil society are collaborating to review and improve the legal framework and the NGO Coordination Act in particular.  Among other issues, reformers are seeking to resolve the appropriate balance between statutory regulation and self-regulation, and the relationship among the various, overlapping regulatory schemes.  In addition, Government and CSO representatives have formed a working group aimed at strengthening the Government-CSO relationship the group has developed principles for collaboration and is in the process of developing clear strategies for engagement between the sectors.

In Rwanda, three civil society-related bills are pending Parliamentary review.  The draft laws relate to national NGOs, international NGOs, and religious organizations, respectively.  ICNL has now seen the latest versions of the draft INGO and National NGO laws, soon to be considered by the upper house of Parliament before Presidential review.  It is clear that, even with some defects that may be removed in the latter stages of the legislative process, the laws would provide better guidance concerning formation procedures and organizations’ legal rights and obligations; would reduce the extent of administrative procedures; and would introduce a system of appeals to neutral arbiters, including pre-court mediation, to deal with potential conflicts.

Notes

* ICNL is the leading source for information on the legal environment for civil society and public participation. Since 1992, ICNL has served as a resource to civil society leaders, government officials, and the donor community in over 100 countries.

1 The four WMD reports are also available on the website of the World Movement for Democracy (http://www.wmd.org/defcivilsociety/defcivilsociety.html#CR).  The publication of these reports was made possible by the Defending Civil Society Project, which is a joint project of WMD and ICNL.

2 The leaders of Zimbabwe‘s National Association of Nongovernmental Organizations (NANGO), which represents more than 1,000 civic groups, were arrested in Victoria Falls after a three-day conference. They were charged with convening a political meeting without police clearance, under the highly restrictive Public Order and Security Act (POSA). Source: http://civicus.civiblog.org/blog/_archives/2009/10/27/4363065.html  

3 As but one example, in Uganda, customary law governs to the extent that it does not contradict statutory laws or the Constitution.  The relationship between customary law and the formal legal system is not addressed in detail in these reports and deserves further exploration.

 

 
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ISSN: 1556-5157