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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

Zimbabwe

Otto Saki1

I. PROVISIONS OF THE GENERAL LAWS

General Framework

Zimbabwe is a common law country with a strong influence of customary laws and traditions. The operation of non governmental organisations (NGOs) or civil society organisations (CSOs) in Zimbabwe has been addressed through legislation since the colonial era; after attainment of independence, this legislative tradition was developed. During the colonial era the Welfare Organisations Act (1967)2 was aimed at controlling the operations of organisations believed to be linked to the liberation movement and spreading information around the human rights situation in what was then Rhodesia now present day Zimbabwe. With the increased demand for democratic space and reforms in Zimbabwe, NGOs and CSOs became targets of state harassment through increased legislative and administrative interference.

ZANU Pf has been in office with unfettered power since 1980. The signing of the Inter Party Agreement in September 2008 and the formation of the inclusive transitional government in February 2009 heralded a slightly new political system. The Constitution of Zimbabwe (1979) (commonly referred to as the Lancaster Constitution) has been amended 19 times, with severe implications in some instances for the Bill of Rights. Numerous laws and policies have been issued at different intervals, all aimed at curtailing the operating space for NGOs and CSOs. The main instrument which repealed the 1967 Welfare Organisations Act is the Private Voluntary Organisations Act (hereinafter PVO Act).

Zimbabwe is a unitary state and not a federal system. Laws passed by the legislature are applicable without regional exceptions.

All laws passed are in English and there have been limited efforts to translate such laws, mainly by law-based NGOs.

General Constitutional Framework

The Constitution of Zimbabwe provides for a Bill of Rights, s11 to 23, including a specific section on the enforcement of one’s rights in the event of such being breached by state or non-state actors. The forum for adjudication of such rights is the Supreme Court sitting as a constitutional court. The Bill of Rights includes limitation clauses, which have been given due interpretation by the courts. The Supreme Court has deduced a three-tier test on whether any restriction is reasonably justified in a democracy, in Tawanda Nyambirai vs. National Social Security.3 The test used by the courts is: whether the legislative objective which the limitation is designed to promote is sufficiently important to warrant overriding a fundamental right; whether the measures designed to meet the legislative objective are rationally connected to it and are not arbitrary, unfair or based on irrational considerations; and whether the means used to impair the right or freedom is no more than is necessary to accomplish the objective.

Section 20 (1) of the Constitution provides that “except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.”

The limitations provided by the Constitution of this right include

  1. in the interests of defence, public safety, public order, the economic interests of the State, public morality or public health;
  2. for the purpose of
    1. protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings;
    2. preventing the disclosure of information received in confidence;
    3. maintaining the authority and independence of the courts or tribunals or the Senate or the House of Assembly.4 The application of this limitation clause is subject to the Government demonstrating that it is reasonably justifiable in a democracy. The state has repeatedly claimed that most CSO activities, especially in the area of good governance and democracy, appear not to be in the economic interests of the state, public order and public safety. Laws which have been applied to deal with this have been security laws such as the Public Order and Security Act (POSA) and the Criminal Law Reform and Codification Act (the Code).5

Freedom of association and assembly are provided under s21 of the Constitution, which states that “except with his own consent or by way of parental discipline, no person shall be hindered in his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to political parties or trade unions or other associations for the protection of his interests”. The provision makes it clear that anyone can join or form an association of his or her choice for the protection of his or her interests. This would entail anything which is lawful and does not contravene the security laws in place as mentioned above. Some of the limitations for the enjoyment of freedom of association and assembly include: in the interests of defence, public safety, public order, public morality or public health;6 for the purpose of protecting the rights or freedom of other persons;7 for the registration of companies, partnerships, societies or other associations of persons, other than political parties, trade unions or employers’ organisations;8 or that imposes restrictions upon public officers. Thus, s21(3)(b) lays the basis for the various laws which then provide for the registration of companies, of societies and other associations of persons, of trusts, etc. Acts including the Zimbabwe Red Cross Society Act, PVO Act, and Deeds Registries Act address how such entities are registered or regularised at law.

An interesting further restriction of freedom of assembly and association entails the blocking of pavements and other such thoroughfares. The Constitution provides under s21(4) that s21(1) shall not be held “to confer on any person a right to exercise his freedom of assembly or association in or on any road, street, lane, path, pavement, side-walk, thoroughfare or similar place which exists for the free passage of persons or vehicles”. This section has been applied to protests by various pro-democracy groups through application of the Public Order and Security Act and the Criminal Law Reform and Codification Act.

Finally, there has been a notable constitutional amendment, which introduces what are termed “political rights,” under s23A, through the 19th Amendment of 2009.9

Types of Organizations

  1. Private Voluntary Organisations

    The main law which governs CSOs in Zimbabwe is the PVO Act. Under the PVO Act, organisations that are registered will be deemed to be Private Voluntary Organisations. PVOs are defined as “any body or association of persons, corporate or unincorporate, or any institution, the objects of which include or are one or more of the following that provides for the provision of all or any of the material, mental, physical or social needs of persons or families; the rendering of charity to persons or families in distress; the prevention of social distress or destitution of persons or families; the provision of assistance in, or promotion of, activities aimed at uplifting the standard of living of persons or families; the provision of funds for legal aid; the prevention of cruelty to, or the promotion of the welfare of, animals.”10

    It is possible, however, for a CSO or NGO which is not registered under the PVO Act to carry out activities that are defined above. The Government of Zimbabwe has been issuing policy directives since 2003 which the relevant ministry says are meant to clarify certain issues and to be read and interpreted in conjunction with the PVO Act.11 These policies have instead only brought more confusion.

  2. Trusts

    Trusts are regulated under S 512 of the Deeds Registries Act, which allows the Register of Deeds at the High Court to register notarial deeds in donation or in trust. Trusts usually have unlimited objectives which sometimes are meant for the benefit of the members or an identifiable constituency; the trust form, however, has also been used as a way of registering organisations that have faced difficulties in registering under the PVO Act. The PVO Act excludes Trusts in its definition of what constitutes a PVO.13

  3. Universitas / Corporations

    The use of the membership form known as “universitas” springs from common law practice of recognising an entity which has members, a constitution and activities that are entirely for the benefit of its members. Such an entity is excluded from registering under the PVO Act14 and is therefore not viewed as a PVO, but as the corporate form “universitas”. Despite the many exclusions from the definition of what constitutes a PVO, several organisations in Zimbabwe exist under many identities and carry out work which one might view as that of a PVO. Examples include organisations registered as institutions under the Health Professions Act or under the Psychological Practices Act, but rendering help to persons in distress in the form of medical counselling for victims of torture or organised political violence. Such institutions might be running on the basis on funds received from well wishers and external foundations, governments and/or developmental agencies.

II. ESTABLISHMENT, REGISTRATION

Purposes

CSOs can be established as PVOs for any of the activities that are provided in the PVO Act. These activities include humanitarian work, charity, human rights work, and legal aid. PVOs are meant for the benefit of the public, family, persons or for animals.

CSOs recognized as unincorporated or corporate associations can pursue membership focused activities.          

Trusts can pursue unlimited objectives, the only limitation being the wishes of the trustees in the trust deed. Trusts have covered issues of human rights advocacy, media freedom, youth democracy organisations, humanitarian information and facilities, community development organisations among others.
           
Restrictions applicable to CSO purposes are included in the provisions of the Constitution relating to freedom of expression, association and assembly. The formation of organisations that intend to carry out acts which undermine public order or public safety are proscribed.

Registration as Voluntary vs. Mandatory Requirement

The law in Zimbabwe allows individuals or groups to operate as unincorporated entities, and this appears to be utilized mostly by organisations which have been unable to register under the PVO Act or by community based organisations. Organisations operate as universitas which are not registered under any statute but are deemed operational and lawful by virtue of having a constitution and members.

The PVO Act, however, makes registration mandatory, in that any organisation that seeks to carry out work as defined under s2 of the PVO Act has to be registered. Section 6 (1) (a) and (b) of the PVO Act states that “no private voluntary organisation shall commence or continue to carry on its activities or seek financial assistance from any source unless it has been registered in respect of a particular object or objects in furtherance of which it is being conducted.” By virtue of not being registered, an organisation cannot collect funds from the public nor shall any individual be part of management or control of such an organisation with the knowledge that such institution is not registered.15 It would appear that operating as an unregistered entity is not an offence in itself, but being part of management or control of such an organisation or collecting funds from the public is an offence. For contravening s6(2) on collection of funds from the public, one shall be liable to 6 months imprisonment or a fine not exceeding level five16 or both; for contravening s6(3) on managing or controlling an unregistered entity, one shall be liable for imprisonment not exceeding 3 months or a fine not exceeding level four17 or both.

Registration or Incorporation Requirements

For any organisation to be registered under the PVO Act, certain requirements have to be fulfilled. Section 9 of the PVO Act provides for the type of application forms to be used; the secretary of the organisation or such other person must lodge the application in the prescribed format with the Registrar of PVOs, along with a constitution of the PVO.18 Once an application has been lodged, the PVO in question must publish in a local paper, at its expense, a notice as prescribed by the PVO Act calling for persons with objections to lodge them with the Registrar of PVOs within the prescribed time limit.19 Once the registration papers are lodged with the Registrar of PVOs, who is ordinarily the Director of Social Welfare in the Ministry of Labour and Social Welfare, the application forms are then submitted to the Private Voluntary Organisations Board (PVOB). The PVOB is constituted as provided under s3 (1).20

The PVO Act prohibits individuals who have been convicted of a criminal offence involving dishonesty under statutory or common law within the past five years from occupying the position of office bearer.21 There is no limitation in terms of the number of the founders, nor is a minimum amount of capital required for the PVO. Operating an account or fundraising22 before registration is an offence under the PVO Act. The PVOB makes a decision on the registration of an entity as a PVO, independently of the decision by the Registrar concerning compliance with s9 (1), (2), (3) and (4). The PVOB may grant the application, or reject the same if the organisation appears unable to abide by the objectives stated in its application or if the constitution and management of the organisation fail to comply with the PVO Act. The Act is silent regarding a time period for the review process. The organisation shall be informed in full of the reasons for rejection of the application, and appeal against the decision of the PVOB lies with the Minister. The Minister may direct the PVOB otherwise or give effect to its decision.23

An aggrieved person may appeal against the decision of both the PVOB and the Minister based on the Administrative Justice Act (AJA). In terms of s3 of AJA, any administrative authority responsible for or empowered to take any action affecting the rights, interests or legitimate expectations of any person must act lawfully, reasonably and fairly. An administrative authority includes an officer, employee, member, committee, council, or board of the State or a local authority or Parastatal, committee, or board appointed by or in terms of any law, a Minister or Deputy Minister of the State, any other person or body authorised by any law to exercise or perform any administrative power or duty. If the authority fails to act lawfully, the High Court may on being approached by any aggrieved party confirm or set aside the decision concerned, and refer the matter back to the administrative authority concerned for consideration or reconsideration.24

The registration of a PVO may be cancelled after giving time for the secretary of the PVO to respond; failure to respond within 90 days will constitute an offence punishable by imprisonment of one month or a fine or both. If the PVO fails to comply with provisions of its registration, ceases to function as such, fails to provide audited accounts or a report to the Registrar within 3 months of being requested, then the PVOB may cancel the PVO’s registration.25

For a universitas all that is needed is a constitution and membership and by virtue of the application of common law in Zimbabwe,26 such an entity will be deemed to be a legal entity. Trusts are registered with Registrar of Deeds in the High Court. There are no restrictions on founders, but for minors and those incapable of concluding contracts. The minimum number of trustees is usually 3 and the maximum 10, although additional trustees are appointed in some instances as per the constitution of the organisation. There is no minimum amount required to be deposited in trust; an amount sufficient to open a corporate bank account is required. Registration is completed upon submission of the deed of trust with the Registrar of Deeds, and upon payment of a processing fee for the application, which usually takes 14 working days to process. Registration is usually denied if the objectives of the deed of trust do not meet the formatting required by the courts, or no details of the trustees are provided such as date of birth, or a similarly named trust exists. If these problems are rectified, registration will normally be approved.

CSO Registry

In terms of s5 (1) and (2) of the PVO Act, the Registrar of PVOs shall maintain a registry of all organisations registered. The registry shall be available for inspection upon payment of a fee during normal office hours. In theory this registry is open to the public and should be up to date, but practice indicates otherwise. It is not available electronically.

The Registrar of Deeds keeps all deeds of trusts, which are open to public scrutiny upon payment of a fee. Since trusts have been used for family trusts and properties, the registry is well updated and has all trusts recorded.

Foreign Organizations

Foreign organisations that seek to carry out work in Zimbabwe, and in particular work of a humanitarian nature or whose objectives are covered under the PVO Act, are required to register as such. Most international organisations are operating as PVOs and are supposed to have a direct memorandum of understanding (MoU)27 or cooperation with the Government (usually at both national and local levels.) General Notice 99 of 2007 (GN 99/2007) provides that for international organisations to be registered, they should have an MoU with the Government. Section 3 of the GN 99/2007 requires an international organisation to file its application with the Registrar of PVOs.28 None of the international organisations in Zimbabwe are operating as universitas or trusts. Unfortunately, some foreign organisations registered under the local laws have had their operations suspended by the Government of Zimbabwe under the guise of rooting out organisations involved in political activity through partisan distribution of relief.29

III. SUPERVISION and ENFORCEMENT

Regulatory Authorities

Under the PVO Act the regulating agency over PVOs is the PVOB as constituted under the PVO Act, with the Registrar of Deeds acting or providing secretarial support to the Board. This Minister and Permanent Secretary for Labour and Social Welfare, and the Registrar of PVOs also play a regulatory role of PVOs. Organisations registered as trusts have autonomy in terms of control and the dissolution of a trust is usually accomplished by way of majority vote of the trustees and a court order legalizing the dissolution of the same.

Internal Governance

In respect of management of the organisation, the PVO Act requires the secretary of any PVO to ensure that books of accounts are kept in order and to the satisfaction of the Registrar of PVOs. If it comes to the attention of the Minister that a PVO has not abided by its objectives or constitution, or that there has been maladministration or the PVO has engaged in illegal activities or more vaguely “it is necessary or desirable to do so in the public interest,” the Minister through notice in a government gazette may suspend all or any of the members of the Executive Committee of the PVO. The Minister may also amend or revoke any suspension.30 The suspension shall of course result in a vacancy on the Executive committee of that PVO; if thirty days expire and the suspension is not lifted, an election will be called based on the constitution of the PVO.31 If the entire executive committee has been suspended, a trustee (curator) may be appointed to manage the PVO for sixty days (60) or upon filling of the vacancies of the executive committee, whichever comes first.32 According to Section 7 of GN99/2007, the Registrar is the supervising authority of all PVOs in terms of the developmental impact of programmes and monitoring of the organisations’ corporate governance. The monitoring entails field visits by social service officers to project areas, analysis of submitted annual narrative reports and audited financial statements.
           
Regarding trusts, provisions regarding internal governance are usually part of any deed of trust. “True accounts shall be kept of all monies and assets received and expended by the Trust and the manner in respect of which such receipts and expenditures take place, and of the property, credits and liabilities of the Trust. At least once in every calendar year, a balance sheet and a statement of income and expenditure shall be prepared, which shall be audited by an auditor(s), qualified in terms of the Accountants’ Act, to be elected by the Trust in a General Meeting”.33 The Government and its agencies are excluded from meetings of any trust. Trustees appoint an executive director who is responsible for setting up the secretariat, and other internal control mechanisms, such as a finance and administration committee.

Reporting
           
While there are no requirements for the state to be informed of internal meetings of a particular PVO, the Minister is allowed to send inspectors to examine the accounts and any documents of any PVO. Once a notice has been delivered to the PVO contact person, the Minister expects the PVO to comply with the notice by providing all information that is required by the inspector as specified in the notice. The documents that are effectively seized by virtue of the notice can be kept for a “reasonable period”.34 The reports that should be submitted to the state when an inspector visits include “any aspect of the affairs or activities of any private voluntary organisation”, and the inspector has the right “to examine books, accounts and any other documents that relate to the financial affairs.” The reports must be submitted to the Registrar; in the past, however, few organisations have complied with this requirement and there has been no enforcement against PVOs per se, but rather against organisations deemed to be political (even if not PVOs).            
           
Universitas and trusts usually produce accounts for the benefit of their members, and such institutions are supposed to conduct internal audits in terms of their founding documents and deed of trust. The reports are submitted and approved by members at annual general meetings or extraordinary meetings. In the event of a breach of fiduciary duties of one of the members of the board or the secretariat, internal disciplinary and remedial measures are usually provided in each constitution or deed of trust.

State Enforcement and Sanctions
           
The PVO Act provides for sanctions in the event of the PVO failing to abide by provisions of the Act. Offences under the PVO Act include raising funds as an unregistered organisation; being an office bearer despite having been convicted for more than 5 years for a crime involving dishonesty; and the failure to provide information as requested by an inspection officer. Available sanctions include fines, imprisonment or both, cancellation of the registration, suspension of board members and/or dismissal. Following attempts to dismiss board members of a PVO, the Minister was faced with a constitutional challenge and the Supreme Court found the Minister in breach of the individual executive committee member’s constitutional rights.35 The decision to impose sanctions or refuse registration or cancel registration is appealable before the courts. In the past years the Minister and Registrar have not imposed any sanctions on PVOs. As for trusts and universitas, any sanctions and state involvement is usually at the instigation of the trustees and the members of the universitas.

Dissolution, Winding Up, and Liquidation of Assets

The Registrar can initiate dissolution of a PVO if the organisation ceases to operate. The assets of the organisation will be disposed of in terms of its constitution.36 The PVO Act, through its regulations, provides for how dissolution takes place.37 The provisions for dissolution of CSOs operating as universitas are contained in the constitutions of these organisations; such a decision will have to be reached by at least a majority of the board members. The same is true for trusts. Trusts and universitas usually provide for dissolution of the organisation in their deeds of trust38 and constitution, respectively.

Other Constraints

The disruption of CSO activity by Government acts typically occurs during periods of increased political activity in the country, such as during or after elections, and during periods of increased demand for humanitarian services. State interference may take the form of repeated requests for information or threatened suspension of activity. For example, in June 2008, the Government sought a blanket suspension of all PVOs engaged in humanitarian work. The Permanent Secretary justified the suspension as “necessitated by reports that several NGOs were operating outside the terms of their registered mandates. Some were not following operational guidelines and some were dabbling in partisan politics. A number of NGOs will have to answer for their iniquities."39 It is interesting to note that no PVO was ever made to answer for such iniquities; however, there was disruption of food aid and assistance to persons in need, including people living with HIV/Aids (PLWHA) and orphans.

During the same period, organisations were raided by police officers, and some were asked to provide details of their board members or show proof of registration.40 Protection for CSOs that are threatened remains non-existent, as the state is the source of the threat against CSOs. Organisations that have not been registered as PVOs are more exposed than PVOs to government harassment.

The establishment of government sponsored NGOs has become prevalent since 2000. Such entities include associations for labour, students, doctors, teachers, and for NGOs.41 These government-sponsored NGOs have contributed to a mixed messaging in respect of the operating environment of NGOs and the general human rights situation in the country.

IV. CSO ACTIVITIES

General Powers

Once registered as a PVO, the entity is allowed to carry out any activities as long as they are within the confines of the registration certificate and law. The registration certificate allows such an entity to enter into contracts as long as such is approved by its executive committee and is lawful. Most PVOs have acquired real property with the approval of their executive committee and funding partners. The same is applicable to trusts and universitas.

Expressive / Advocacy / Public Policy Activities

In November 2002, the Minister of Justice, Legal and Parliamentary Affairs, Patrick Chinamasa, published a list of NGOs which he claimed were a threat to peace and security in Zimbabwe. Amani Trust appeared on the Minister’s list of NGOs and was reportedly accused of working with the British government to unseat President Robert Mugabe and destabilize the nation. That same month, the Trust closed its offices following the Government’s decision to criminalize the non-registration of NGOs under the PVO Act. In August 2002, Dr Francis Lovemore, medical director of Amani Trust42 was arrested on allegations that the Trust was guilty under the Public Order and Security Act (POSA) of “publishing or communicating false statements prejudicial to the state.” The arrest stemmed from press reports which referred to Amani Trust’s work with victims of torture and politically motivated rape. The offices of Amani Trust were raided and searched by police. Dr Lovemore was released without charge.43 This is but one example of the Government targeting CSOs that are involved in high-level advocacy and critical of the Government for its human rights record.
   
The law is silent with respect to CSOs endorsing a specific candidate. Most organisations whose mandate remains sensitive have tried to avoid endorsing candidates. In fact, most organisations include clauses in their constitutions or deeds of trust that require them to remain apolitical. CSOs – though mostly those that are not PVOs – do seek to influence public policy or develop alternative legislation. Limits on advocacy are often self-imposed, as CSOs are aware of the potential state response, which includes arrests, raids, threats, and malicious prosecution through selective application of the law. Organisations that have embarked on advocacy which involve media or free speech related activities have found themselves operating within a landmine of laws which hinder free expression. Advocacy materials, publications and opinions are all printed with due regard to laws such as POSA and the Criminal Code, which criminalises, for instance, insulting the office or person of the President,44 or uttering words which are likely to undermine policing authority.45 Many individuals have been arrested for causing disaffection among or within the policing authority and for insulting the office of the President.46 Such laws cause individuals and organisations to censor themselves or engage in selective and thorough reviews before placing any information in the public domain.

Communication and Cooperation

47There are no limitations in terms of accessing the Internet, though the law allows the state to intercept such communications.48         

Seeking / Securing Funding

  1. Foreign Funds
    There are no legal limitations for CSOs to obtain funding from any source, but the state has attacked PVOs that receive foreign funding as instruments used by the West to undermine the Government. Due to the varying internal governance and control mechanisms, CSOs do operate accounts with local banks. According to the Exchange Control Act, it is an offence to receive funds in a local account and then transfer them to an offshore account.49 For purposes of funds received from donors, such have been termed “free funds”50 and such limitations are deemed not applicable. The Zimbabwe Electoral Commission Act (ZEC Act) prohibits the receipt of foreign funding for conducting voter education.51

  2. Economic Activities
    The PVO Act is silent on investment or generating profits through economic activities. Indeed CSOs do generate income in a variety of ways, such as selling publications at nominal costs and through consultancies for fees. Other CSOs operating as trusts or universitas have carried out similar work to generate income. It is expected, however, that funds generated from economic activity be used for the non-profit purposes of the CSO.52

  3. Government Funding
    Most CSOs that seek to be independent have not accepted funds from the state. On the contrary, the state has actually used funds from CSOs that were locked up in the Reserve Bank for government purposes, including funds allocated from the Global Fund for HIV/AIDs and Tuberculosis.

V. TAX LAWS

Tax Treatment of CSO Income
           
Donations and grants received are not taxed; membership fees are also not taxed if such is not for the benefit of members or pecuniary profit.53 Other tax laws, such as value added tax (V.A.T.) do apply to CSOs. If the entity generates income through investment, then that income is subject to tax. If the organisation operates but does not register any profit and funds are channeled to the sustainability of the organisation, then profits will not be declared to warrant tax liability.

Customs Duties

Import duties are paid by all PVOs with the exception of those importing products for the benefit of persons with disabilities, such as wheelchairs, or humanitarian relief. For an exemption to apply, a PVO must submit a request to the Commissioner General of Taxes and the Revenue Authority.54 Section 120(6) of Customs and Excise Act provides that “in regulations referred to in subsection (1), the Minister shall endeavour, so far as is practicable, to provide for appropriate suspensions, rebates, remission or refunds of duty in respect of (c) books and equipment for use in schools and educational and training institutions; and (d) essential medicines and medical equipment; and (e) goods donated for welfare or relief purposes.”

Donor Incentives

None exist at the present moment.

Administrative Spending

There are no statutory limits on administrative spending. Any individual PVO, however, may have internal rules which proscribe administrative spending beyond a certain amount.
           
VI. CONCLUSIONS

Priority Issues

At the present moment CSOs are faced with the need to improve the general operating environment, which has been characterised mainly by the presence of laws which contribute to self censorship and constraints in civic space. Such laws have been used selectively to target organisations which are deemed to be political or openly confrontational in their advocacy or other activity. The development of a constitutional framework with an expanded Bill of Rights would help allow CSOs to operate with more confidence. That said, the presence of a Constitution without the relevant institutions to safeguard rights is meaningless. Institutions that are meant to safeguard fundamental rights have been compromised and there is a lack of confidence in them. There are efforts again being made by the Ministry of Justice and Ministry of Labour and Social Welfare to amend the PVO Act to include trusts as organisations that must be registered under the Act. Registration as a trust will only be allowed after one is registered as a PVO. This will obviously raise conflicts in the governing regulatory systems for a PVO-Trust. The constitutional reform process may be an opportunity in terms of providing a platform for engagement with the state through education of the citizenry on how to contribute meaningfully to constitution making.

Government Rationale

The government has justified the legal impediments encountered by CSOs as related to national security, counter-terrorism, and harmonization and coordination of NGO activities. The state has used national security arguments to arrest human rights defenders working for trusts. Individuals have been hauled before the courts to answer to charges of training terrorists and saboteurs.

Financial Crisis

The operations of some CSOs have been affected as funding and donor agencies have reduced their support to organisations, due to changing priorities. At the same time, since the formation of the Transitional Inclusive Government, there has been expanded interest in supporting the work of the Government.

Strategic Responses

There is an urgent need to engage with the various arms of the Transitional Government in regards to the various laws which have to be either repealed or amended. The Transitional Government in Zimbabwe was formed soon after the signing of the Inter-Party Agreement (IPA) which, among other things, prioritizes legislative reform. The formation of the inclusive Government has also weakened CSOs to the extent that there has been a skills transfer from civil society to government. There is a need for leadership development and renewal. CSOs will also have to develop and provide an alternative act for PVOs, which act should introduce self regulation and corporate accountability, peer review mechanisms and an NGO Council. The timing of such legislative reforms is unclear as the government has yet to lay out its legislative reform agenda. Repeal or amending the current laws governing CSOs and PVOs will contribute to democratization agenda of the Transitional Inclusive Government.

Notes

1 Otto Saki is the programmes Coordinator of Zimbabwe Lawyers for Human Rights (ZLHR). He holds a law degree from the University of Zimbabwe and a masters in law from Columbia University with a major in human rights law. The views contained in this paper are personal and any improprieties are borne by the author.

This paper is made possible with the generous support of the American people through the United States Agency for International Development (USAID). The contents are the responsibility of the authors and do not necessarily reflect the views of USAID or the United States Government.

2 Welfare organizations Act [93/67].

3 Nyambirai versus NSSA 1995 (2) ZLR 1 (S), Retrofit (Pvt) Ltd versus PTC and another 1995 (2) ZLR 199 (S)

4 Sections 20 (2)

5 Also the now repealed Unlawful Organisations Act repealed by Suppression of Foreign and International Terrorism Act, carried provisions that outlaw activities of organisations which “ are likely to endanger, disturb or interfere with defence, public safety or public order in Zimbabwe.

6 Section 21(3)(a)

7 Section 21 (3)(b)

8 Section 21(3)(c)

9 23A Political rights (1) Subject to the provisions of this Constitution, every Zimbabwean citizen shall have the right to (a) free, fair and regular elections for any legislative body, including a local authority, established under this Constitution or any Act of Parliament; (b) free, fair and regular elections to the office of President and to any other elective office; (c) free and fair referendums whenever they are called in terms of this Constitution or an Act of Parliament. (2) Subject to this Constitution, every adult Zimbabwean citizen shall have the right (a) to vote in referendums and elections for any legislative body established under this Constitution, and (b) to do so in secret; and to stand for public office and, if elected, to hold office.

10 Section 2 (1) PVO Act

11 See Policy Operations for Non Governmental Organisations in Zimbabwe
www.nango.org.zw/resourcecentre/docs/Policy%20on%20NGOs.pdf (last accessed June 21, 2009)

12 Section 5(m) the Register, shall register antenuptial contracts, such notarial deeds of donation, including a donation to be held in trust, and such other deeds having reference to persons and property within the area served by the deeds registry in question as are required or permitted by law to be registered;

13 Section 2(1)(iii)

14 Section 2(1)(v)

15 Section 6(2),(3), see also Section 23(1) and (2)

16 Level Five, USD 200

17 Level Four USD 100

18 General Notice 99 of 2007, provides for an organisation which intends to register to complete application forms PVO1, PVO2, proof of advertisement, copies of the organisation’s constitution, curriculum vitae of the members of the executive committee, proof of notification to local authorities of intent to register, police criminal clearance certificates

19 Statutory Instrument 111/97 provides Section 9 (4) that “Any objection in terms of subsection (3) of section 9 of the Act to the registration of a private voluntary organisation shall be lodged with the Registrar within twenty-one days of the date the notice is published in a newspaper in terms of subsection (2) of section 9 of the Act”.

20 Five representatives from private voluntary organizations or organizations which the Minister considers are representative of private voluntary organizations; and one representative from such private voluntary organization, association, institution or other organization as the Minister may determine, from each of the provinces into which Zimbabwe is for the time being divided; and one representative from each of the following Ministries- the Ministry for which the Minister is responsible; the Ministry responsible for health and child welfare; the Ministry responsible for justice; the Ministry responsible for finance; the Ministry responsible for co-operatives; and the Ministry responsible for foreign affairs; the Registrar, ex officio.

21 Section 24, Persons prohibited from being office-bearers or officers, officer bearer means a member of the governning body of that organisation, officer, means any person working for that organisation whether or not he recieves renumeration or reward for such work.

22 Section 26, contributions unlawfully collected

23 Section 14 Appeals

24 The assumption is that the courts of appeal will be independent enough and able to adjudicate on the matter without fear or favour or influence from the administrative body, which might not necessarily be the case. Or in the worst case scenario the findings of that court, be High or Constitutional Court are not enforced.

25 Section 10

26 Section 89 of the Constitution, provides that “subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African customary law, the law to be administered by the Supreme Court, the High Court and by any courts in Zimbabwe subordinate to the High Court shall be the law in force in the Colony of the Cape of Good Hope on 10th June, 1891, as modified by subsequent legislation having in Zimbabwe the force of law”. Please note that the Criminal Law and Codification Reform Act provides under Section 3 (1) and (2) that “the non-statutory Roman-Dutch criminal law in force in the Colony of the Cape of Good Hope on the 10th June, 1891, as subsequently modified in Zimbabwe, shall no longer apply within Zimbabwe to the extent that this Code expressly or impliedly enacts, re-enacts, amends, modifies or repeals that law. (2) Subsection (1) shall not prevent a court, when interpreting any provision of this Code, from obtaining guidance from judicial decisions and legal writings on relevant aspects of¾ (a) the criminal law referred to in subsection (1); or (b)the criminal law that is or was in force in any country other than Zimbabwe.

27 General Notice 99 of 2007, MoUs for International Organisations are and include (a) agreements entered into with international Non-Governmental Organisations define the operational parameters of the organisations' partnership with technical supervisory ministries; (b) the proposed geographic areas to be covered by the organisations should be clearly stated in the MOU. It constitutes part of what line ministries agree with the organisations. Where there is need for organisations to expand geographic coverage after an agreement has been entered into, operational arrangements shall be made with the concerned local authorities with the consent and facilitation of the ministries; (c) organisations are required to notify host local authorities in the area of operations prior to commencing operations; (d) organisations, however, shall not digress into programmes that are not specified in the MOU as agreed upon by line ministries and registered by the Registrar.

28 curriculum vitae and Interpol clearance certificate for the country representative. Interpol clearance is required where the country representative is of foreign origin but local police clearance suffices where the representative is a citizen or permanent resident of Zimbabwe; proposed area of geographic coverage; period of financial year e.g. 1 January to 31 December, 1 July to 30 June.

29 Zimbabwe: NGO de-registration stalls aid for 90,000 kids, http://www.pambazuka.org/en/category/welfare/25914 (last accessed 21 June 2009). In June 2008 Nicholas Goche (Member of Parliament) ina circular addressed to "All Private Voluntary Organizations (PVOs)/Non-Governmental Organizations (NGOs)". The Notice reads as follows: "It has come to my attention that a number of NGOs involved in humanitarian operations are breaching the terms and conditions of their registration as enshrined in the Private Voluntary Organizations Act [Chapter 17:05], as well as the provisions of the Code of Procedures for the Registration and operations of Non Governmental Organizations in Zimbabwe (General Notice 99 of 2007). As the Regulatory Authority, before proceeding with the provision of Section (10), Subsection ( c ), of the Private Voluntary (sic) Act [Chapter 17:05], I hereby instruct all PVOs/NGOs to suspend all field operation until further notice."

30 Section 21, Suspension of Executive Committee

31 Section 21(3)

32 Section 22

33 This is a standard section of any Deed of Trust

34 Section 20, PVO Act

35 Sekai Holland vs. Minister of Labour and Social Welfare 1997 (1) ZLR 186 (SC)

36 Section 27 provides that “If a private voluntary organization ceases to function and the persons responsible in terms of its constitution for dissolving the organization fail or are unable to dissolve it within six months thereafter, the Registrar may do so in their stead and shall be vested with all the powers necessary therefor, and shall dispose of the assets of the organization in accordance with its constitution”

37 Section 28 (1), Regulations, (1) The Minister may make regulations with regard to (a) the form of any application, authority, certificate, notice, order or register to be made, given, issued or kept under this Act and any other form which may be required in carrying out this Act; (b) the books, accounts and records to be kept by private voluntary organizations and the manner in which they shall be kept; (c) the procedure to be followed on the dissolution of a private voluntary organization and the manner in which its assets shall be disposed of; (d) the circumstances under and the conditions upon which contributions may be collected by one private voluntary organization on behalf of another private voluntary organization; (e) the manner in which persons shall be authorized by registered private voluntary organization to collect contributions on their behalf; (f) any other matter which in terms of this Act is required or permitted to be prescribed

38 Example of a winding up or dissolution clause in a deed of trust -The decision to wind up or dissolve shall be made only by a resolution to that effect passed by a two-thirds majority of those personally present and entitle to vote at a General Meeting of the Trust convened specifically for the purposes of which not less than thirty days notice shall have been given in accordance with provisions of the constitution, setting out the terms of the proposed resolution and reasons therefore. In the event of the being wound up for any reason, the Trust shall, if necessary, sell sufficient movable or immovable property to pay any unpaid liabilities of the Trust and any movable or immovable property remaining shall be transferred to another organization or association operating in Zimbabwe having similar objectives to the Trust agreed upon by no less than three quarters (3/4) of the existing Trustees at such time.

39 New Rules Stymying NGO Operations, Vusumuzi Sifile/Walter Marwizi 13 September 2008,  http://allafrica.com/stories/200809150456.html (last accessed 21 June 2009) Lancaster Museka, the Ministry of Public Service Labour and Social Welfare's Permanent Secretary

40 Zimbabwe police raid Christian groups in Harare 13 June 2008, http://www.ekklesia.co.uk/node/7283 (last accessed 21 June 2009)

41 Zimbabwe Congress of Trade Unions has Zimbabwe Federation of Trade Unions, Zimbabwe National Students Unions has Zimbabwe Congress of Students Unions, Zimbabwe Lawyers for Human Rights has Zimbabwe Lawyers for Justice, Zimbabwe Association of Doctors for Human Rights has Zimbabwe Doctors for Development

42 Amani Trust has since been closed and assumed a different name, see also Arnold Tsunga, An Overview of the Human Rights Situation in Zimbabwe with Specific Reference to Repressive Legislation, Impunity, The State of Administration of Justice and Selective Application of the Law, http://www.kubatana.net/docs/hr/zlhr_overview_040220.pdf (last accessed 22 June 2009)

43 http://asiapacific.amnesty.org/library/pdf/AFR460152003ENGLISH/$File/AFR4601503.pdf (last accessed 21 June 2009)

44 s33 of the Code, Undermining authority of or insulting President (1) In this section— “publicly”, in relation to making a statement, means—(a) making the statement in a public place or any place to which the public or any section of the public have access; (b) publishing it in any printed or electronic medium for reception by the public; “statement” includes any act or gesture. (2) Any person who publicly, unlawfully and intentionally— (a) makes any statement about or concerning the President or an acting President with the knowledge or realising that there is a real risk or possibility that the statement is false and that it may— (i) engender feelings of hostility towards; or (ii) cause hatred, contempt or ridicule of; the President or an acting President, whether in person or in respect of the President’s office; or (b) makes any abusive, indecent or obscene statement about or concerning the President or an acting President, whether in respect of the President personally or the President’s office; shall be guilty of undermining the authority of or insulting the President and liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.

45 s177 Code

46 Lawyer Arrested for insulting Mugabe http://www.iol.co.za/index.php?from=rss_Africa&set_id=1&click_id=68&art_id=nw20080508063719242C226145 (last accessed August 2, 2009), 2 Zimbabwe Journalists Arrested on Charges of Insulting President Mugabe, http://www.voanews.com/english/archive/2003-07/a-2003-07-01-6-2.cfm?moddate=2003-07-01, last accessed 2 August 2009

47 Section 24 of Public Order and Security Act (POSA) see also ZLHR position on ban of public gatherings, http://www.kubatana.net/docs/hr/zlhr_rally_public_gathering_bans_070412.pdf (last accessed 22 June 2009)

48 Interception of Communications Act

49 Statutory Instrument (SI)109/96 s4(1) Subject to subsection (3), unless permitted to do so by an exchange control authority—(a) no person shall, in Zimbabwe—(i) buy any foreign currency from or sell any foreign currency to any person than an authorised dealer ;or(ii) borrow any foreign currency from, lend any foreign currency to or exchange any foreign currencywith any person other than an authorised dealer;(b) no Zimbabwean resident shall, outside Zimbabwe—(i) buy or borrow any foreign currency from any person if the transaction results in or is likely to resultin a debt payable in or from Zimbabwe; or(ii) sell or lend any foreign currency to any person if the foreign currency originated from Zimbabwe oris the proceeds of any trade, business or other gainful occupation or activity carried on by him inZimbabwe; or (iii) exchange any foreign currency with any person if—A. the transaction results in or is likely to result in a debt payable in or from Zimbabwe; orB. except in the case of a travellers cheque, the foreign currency originated from Zimbabwe or isthe proceeds of any trade, business or other gainful occupation or activity carried on by him inZimbabwe.

50 SI 109/96, “free funds” means money which is lawfully held outside Zimbabwe by a Zimbabwean resident and which was acquired by him otherwise than as the proceeds of any trade, business or other gainful occupation or activity carried on by him in Zimbabwe

51 Section 16 provides that “No foreign contribution or donation for the purposes of voter education shall be made except to the Commission, which may allocate such contribution or donation to any person referred to in section 14(3) or subsection 15(1).

52 s10 PVO Act

53 Income Tax Act Section 14, Third Schedule, clubs, societies, institutes and associations organized and operated solely for social welfare, civic improvement, pleasure, recreation or the advancement or control of any profession or trade or other similar purposes if such receipts or accruals, whether current or accumulated, may not be divided amongst or credited to or enure to the benefit of any member or shareholder other than by way of remuneration for services rendered; ecclesiastical, charitable and educational institutions of a public character

54 Customs and Excise Act Section 120, Section 121 When any claim is made for exemption from or drawback, rebate, refund or remission of any duty, fee or charge in accordance with this Act, the burden of proof shall lie upon the claimant to show that he is entitled to such exemption, drawback, rebate, refund or remission.


 

 
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