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The International Journal
of Not-for-Profit Law

Volume 4, Issue 1, September 2001

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

Table of Contents

Letter from the Editor

Corporate Philanthropy and Social Responsibility in Latin America

La Filantropia Empresarial: Un Deber Moral, Social y Legal
por Antonio L. Itriago Machado y Miguel Angel Itriago Machado

Regional:
Conference Report on the "Simposio de Responsabilidad Social Empresarial en Las Américas"

Brazil:
Corporate Social Responsibility Conference

Chile:
Conference on Corporate Social Responsibility

Chile:
New Web Site to Encourage Social Responsibility

Articles

Trends in Self-Regulation and Transparency of Non-Profit Organization in the U.S.
By Robert O. Bothwell

ICNL'S Educational Initiative for Central and Eastern Europe: One Year Later
By Radost Toftisova

An Overview of Issues in Charity Litigation in Malaysia 2001
By Mary George

Charity, Politics and the Human Rights Act 1998: Chasing a Red Herring?
By Graham Moffat

Case Notes

Asia Pacific:
Australia

Central and Eastern Europe:
Hungary

Latin America:
The Bahamas

Middle East and North Africa:
Egypt

North America:
The United States

Western Europe:
The Netherlands
| Switzerland | Turkey

Country Reports

Asia Pacific:
Regional
| Australia | Cambodia | East Timor | Indonesia | Malaysia | New Zealand

Central and Eastern Europe:
Regional | Albania | Croatia | Hungary | Romania

Latin America and the Caribbean:
Regional | Argentina | Bermuda | Chile | Guatemala | Saint Lucia

Middle East and North Africa:
Egypt | Iran | Israel

Newly Independent States:
Armenia | Kazakhstan | Kyrgyzstan | Moldova | Russia | Tajikistan | Ukraine

North America:
Canada

South Asia:
India

Sub-Saharan Africa:
Gambia
| South Africa | Tanzania | Uganda

Western Europe:
Austria | Ireland | Scotland | Turkey | the United Kingdom

International:
The London School of Economics Conference | The United Nations Global Compact

Self-Regulation Reports

The Humanitarian Accountability Project

Spain:
New Publication on Transparency and Accountability

Tanzania:
Tazania's First National NGO Forum Disucsses a Draft Code of Conduct

The United Kingdom:
Reports on Developments with Respect to Self-Regulation in the UK

Reviews

Charity Law Matters
By Ronan Cormacain, Kerry O'Halloran, Arthur Williamson
Reviewed by Karla Simon

 

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Editorial Board

Country Reports: Sub-Saharan Africa

Gambia

An Official Says that 98 NGOs have Been Registered*

The Gambia has 98 officially recognized non-governmental organizations, the deputy director of the country's NGO Affairs Agency, Jerreh Sanyang, told IRIN on Wednesday. He was responding to an article by 'The Independent' daily claiming that there were 250 registered NGOs and that public concern was mounting over the proliferation of "dubious charitable organizations and non-governmental organizations".

Sanyang said the registered NGOs, two-thirds of which are local, were closely monitored and operated in numerous sectors, especially agriculture, education and health. He said, however, that under a now defunct state body, The Advisory Committee for the Coordination of NGOs, the country had had 145 official NGOs. That number was reduced when his agency was set up in 1996 and established stricter registration criteria that prevented many from gaining official NGO status, he added.

Proliferation of NGOs "is not a big problem", Sanyang said. However, he said his agency was closely monitoring and overseeing the organizations' work in the country so to prevent negative publicity for the NGO community and to enhance public confidence in their humanitarian work.

*This report was first published in the UN Office for the Coordination of Humanitarian Affairs/Integrated Regional Information Network for West Africa, Abidjan, 22 August 2001.

South Africa

PBO Lists Finalized

The Taxation Laws Amendment Act, 2000, (Act No. 30 of 2000) introduced new provisions regulating the tax-exempt status of public benefit organizations in South Africa as well as the tax deductibility of donations to such organizations.  These provisions came into operation on 15 July 2001.  The Minister of Finance, Trevor Manuel, by way of a notice in the Government Gazette, No. 22513, dated 27 July 2001, published a list of approved public benefit activities, both for tax exemption and tax deductibility. 

The final lists, which are available on the South Africa Revenue Service website are similar in scope to the original draft lists, which the sector and foreign commentators (including ICNL) objected to.  See IJNL, 3:2.  Major changes have been reflected in language, content, and organization, but the still very limited availability of tax deductibility is troubling.  Richard Rosenthal, noted South African NGO lawyer, reports that the NGOs may resort to the courts for final resolution of the issue of whether the coverage is too narrow.

The SARS website also includes forms that charities are required to file to apply for tax exemption.  One of these, the ‘Written Undertaking” is linked to the requirements of the new law, which are very detailed and specific.  For a discussion of those requirements, see Karla W. Simon, Draft Tax Legislation in South Africa (which was subsequently adopted) in IJNL, 2:4. 

Tanzania

Tanzania’s First National NGO Forum Discusses a Draft Code of Conduct

In July 2001 TANGO, the Tanzanian NGO umbrella organization, held the first ever National NGO Forum for Tanzania.  The Forum was attended by NGOs from all over Tanzania, and by government officials, including the Permanent Secretary in the Vice President’s Office, who oversees the NGO Bureau.  There were speeches by donors, describing their funding programs, a discussion of tax legislation (led by Lee Irish and Karla Simon of the International Center for Not-for-Profit Law), a discussion of NGO capacity-building (led by T.S. Muyoya of MWENGO), working groups on a variety of practical issues, and a very successful NGO fair.  Led by the Chief Executive of TANGO, Mary Mwingira, the Forum was an excellent opportunity for Tanzanian NGO leaders to come together and express their concerns.

One of the issues at the Forum was the draft Code of Conduct, presented by TANGO for discussion.  The Code is based on extensive research by TANGO staff into other codes of conduct in Africa (Botswana, South Africa, and Ethiopia, for example) as well as in Europe and the US.  While it is not yet complete and must go through a lengthy consultative process, this first effort to establish a code of conduct for NGOs in Tanzania.  Attached is the draft code:

Uganda

Human Rights Watch Come Out Against Proposed Change in Ugandan Legislation

According to the UN Office for the Coordination of Humanitarian Affairs, Human Rights Watch (HRW) on Tuesday called on the Ugandan Parliament to reject a proposed law which it claimed would threaten the legitimate activities of civil society.  In a briefing paper on the proposed NGO law and other recurrent restrictions on NGOs operating in Uganda, HRW said the Non-Governmental Organisations Amendment Bill would give the government wide-ranging powers to suspend NGOs that did not conform to any "government policy or plan". NGO leaders could be imprisoned for up to one year if they breached the proposed law, the statement added.

"The proposed law potentially criminalises civil society organisations instead of recognising their enormous contribution to the social, political and economic life in Uganda," said Alison Des Forges, senior adviser at the Africa division of Human Rights Watch.  "The parliament should draft a new law instead, that aims at building a constructive relationship between the state and civil society," she added.

Des Forges claimed that both current law and the proposed legislation contravened the right to freedom of association guaranteed under international law.  "As party to the International Covenant on Civil and Political Rights, Uganda is bound to those standards," she added. HRW called on the Ugandan government to review the current law to "limit the powers of the state to interfere with legitimate NGO activity".  A vote on the proposed bill will be one of the first tasks facing the new Ugandan parliament, elected in June this year, the international human rights organisation said.

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Copyright (c) UN Office for the Coordination of Humanitarian Affairs 2001

NGOS’ Reactions to the NGO Registration (Amendment) Bill 2000

By Warren Nyamugasira*

In late 2000, the government of Uganda introduced a bill in Parliament that proposes extensive changes to the existing NGO Registration Act (1989).  Although the political situation with respect to these proposed changes is confused, the NGOs have organized themselves to respond to this attempt to restrict NGO activities in Uganda.  At least two separate groups of NGOs have made comments on the draft law. 

The first set of comments reproduced here represents the reactions of NGOs that are members of the Uganda National NGO Forum to the bill.  They emerged through a long and participatory process of consultation.  The second set of comments comes from the “Ad Hoc Group,” which includes the Uganda Debt Network, and they too emerged from a consultative process.  The text of the draft legislation is available in ICNL’s Database. 

Uganda National NGO Forum Comments: Provision for the Issuance of a Permit

This provision is considered unnecessary and should be removed from the Bill.  Once an organisation has fulfilled its registration requirements the Board should issue it with a certificate of registration and that should  be sufficient for NGO to operate.  The independence and autonomy of NGOs as guaranteed by the constitution of Uganda should not be jeopardised in any way by introducing this requirement in the law.  We therefore strongly object to the requirement of a permit.  However, if Parliament retains the provision for issuance of permits to NGOs then there should be a time limit within which such a permit should be issued, once every three years.

We propose that the Bill should have the following provisions: 

The Introduction of the Provision for Granting Corporate Status 

This is a welcome development because it will bring to an end the requirement for dual registration.  However, there is no mention of the status of the NGOs currently registered under the NGO Statue as well as the Companies Act or Trustee Incorporation Act when the Bill comes into force.

We object to the grounds for denial of registration on the basis of government policy, plan or public interest.  Who will define public interest?  We propose that registration should only be denied on the basis of failure of an organization to fulfill the registration requirements, which should not be too stringent and cumbersome to complete in a reasonable period of time.  In the alternative the term “public interest” should be denied.

The Bill provides that “ An organization which operates after its permit has expired or its registration has been revoked commits at offence…”

We are proposing that this provision should not apply to an organization, which submitted its papers for renewal of its registration in good time.  Where the NGO Board fails to issue the registration certificate/permit within the time limit specified then the organization should not be penalized as stated in the Bill.

The Bill provides the “Where an organization commits an offence… any director or officer of the organization whose act or omission gave rise to the offence also commits the offence….”

We object in the strongest terms possible to the dual liability implied in the above provision.  The concept of legal personality presupposes that the company organization operates through its officers.  It is unconstitutional for an organization to be penalized and at the same time penalize its officers for the same offence.  We are proposing that in additional to the two members from the public. 

There Should be Members from the NGO Community on the Board

The number proposed for Board membership is six (6) members.  The NGOs should determine the manner and procedure by which the 6 representatives are elected.  The six members should represent the various categories of NGOs.

It is provided that “At least one third of the members of the Board shall be female”.  However, there is no provision on how the Minister will achieve the 1/3 women’s representation.  We are proposing that the regulations under the NGO Statue should clearly spell out how this will be achieved.

The Functions of the Board Should Include:

The NGOs will in participatory way develop their code of conduct and the Board will assist to ensure compliance.

Placement of the Board:

In light of the above roles and function, we recommend that the Board be placed in a development planning related ministry like Finance and Economic Planning.  This will ease the integration of NGOs contributions to the National Income and development outputs.  The repositioning will reflect the partnership between Government and the NGOs are a security concern to Government that is currently precipitated.

2. Ad Hoc Group Comments

Background to the Bill

The NGO Registration Amendment Bill 2000 seeks to amend the NGO Registration Statute of 1989.  The Bill was drafted with the intention of strengthening the NGO Registration Board.  It was felt that there is need to ensure that the operations of NGO’s that are registered by the Board, are monitored effectively and that their functions are coordinated by Government.

The Bill seeks to among others, modify the functions of the NGO Board to include monitoring the operations of NGOs at all levels of Government and provision of policy guidelines for Community Based Organizations.  The Bill also widens the membership of the Board to include representatives of various Ministries.  This amendment introduces a requirement for NGO’s to possess valid permits from the Board in order to operate in the country.

NGO Concerns Regarding the Bill

A number of NGOs are not satisfied with some of the provisions of the Bill and have been advocating for Parliament to consider their views.  Some of their concerns are highlighted below:

The rationale for the NGOs to acquire permits as well as certificates of registration is not clear.  NGOs feel the bureaucracy normally involved in renewing permits would delay and hamper the their operations and work plans.

The Bill creates a two-tier registration system in which NGOs can opt to register under the Board or the Registrar of Companies.  This is likely to create conflict.  It would be more appropriate for the NGOs to register under the Registrar of Companies.  This would leave the Board with the sole responsibility of regulating and monitoring the operations of the NGOs.

The Bill confers a lot of power on the Minister, who can exempt an organization from provisions of the statute in emergency situations.  The sole power to handle appeals has also been invested in the Minister.  This power can easily be abused; it would be more appropriate for the Minister to exercise these powers in conjunction with members of another body.  An appeal mechanism could also be created through the Human Rights Commission or a related body.

The Bill advocates for a lot of Government involvement in the operations of NGOs feel that the expansion of the Board to include representatives from various Ministries, may not necessarily result in its becoming more effective.  It would be more practical to decentralize the Board at district level.  This will help the Board to monitor the operations of NGOs more efficiently.  There is also need to ensure that NGO’s are represented on the Board.  The NGOs would also like the Board to be free of its attachment to the Ministry of Internal Affairs and have it take on an autonomous nature.

NGO Hearings Before the Parliamentary Committee on Defense and Internal Affairs

The NGO Registration Amendment Bill is still at committee stage in Parliament.  In March a number of NGOs met the Committee on Defense and Internal Affairs to present their views on the Bill.  The committee members appreciated most of their concerns, however at the time Parliament was in “transition” with the coming up of the Parliamentary elections.  As a result the NGOs will now have to lobby the new Members of Parliament and also seek a hearing before the new Committee on Defense and Internal Affairs.

 

Copyright © 2012 The International Center for Not-for-Profit Law (ICNL)
ISSN: 1556-5157