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The International Journal
of Not-for-Profit Law

Volume 8, Issue 1, November 2005

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

Table of Contents

Letter from the Editor

Helping Civil Society Flourish

Toward an Enabling Legal Environment for Civil Society
Statement of the Sixteenth Annual Johns Hopkins International Fellows in Philanthropy Conference, Nairobi, East Africa

Implementation of NGO-Government Cooperation Policy Documents: Lessons Learned
Radost Toftisova

Strengthening Civil Society in the South: Challenges and Constraints - A Case Study of Tanzania
Jared Duhu
Response
Emeka Iheme

Articles

Civil Society Law Reform in Afghanistan
David Moore

Rational Exuberance: An Exploration of the Adaptation by California's Charitable Sector to Changing Governance Standards - Notes from the Field
Thomas Silk

A Common, Global Framework of Nonprofits as Players in Civil Society
Herrington J. Bryce

Forum - Looking Ahead: What is the Future for the Nonprofit World?
Pablo Eisenberg
Responses
Diana Aviv
H. Peter Karoff
Arthur Drache
Susan Raymond
Bill Landsberg

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Response to Strengthening Civil Society in the South: Challenges and Constraints - A Case Study of Tanzania

By Emeka Iheme1

Although primarily an appraisal of donors’ policies in strengthening civil society in Tanzania, Jared Duhu’s “Strengthening Civil Society in the South: A Case Study of Tanzania” offers an interesting contribution to the discussion of civil society in Tanzania.

Government-civil society relations in Tanzania have been shaped by the history and peculiarities of that country. One key factor is the body of policies and laws regulating civil society organizations. These policies and laws are made by the government and accepted – or at least acquiesced to – by the populace. Thus, the regulations guiding civil society not only shape civil society but also reflect the strength of organized civil society (as the embodiment of non-state actors with their various leanings) vis-à-vis the government. An important aspect of the regulation of civil society organizations relates to how far, if at all, the organizations can be political or embark on political programs, whether by way of mere civic education or direct partisan politics.

In this response, first, I outline the evolution of government-civil society relations in Tanzania, because I disagree with some of Duhu’s observations. Second, I discuss the regulation of civil society organizations in Tanzania up to 2005, as Duhu’s account goes only as far as 1997 and therefore omits the very remarkable developments that have taken place since then. Finally, I briefly explore the issue of how far Tanzanian NGOs can go in political activities. My comments do not address Duhu’s opinions on improving the efforts of donors to strengthen civil society, though I am quite happy to read them. My thoughts focus more on how the people of the South may be roused to organize themselves, lay down the begging bowl, and create sustainable livelihoods.

The Evolution of Government-Civil Society Relations

Late colonial era to immediate post-independence era (1954-63): For much of the colonial era, there was a liberal attitude to associations. As in many other British colonial possessions in Africa, the Lands Perpetual Succession Ordinance liberally facilitated the registration of trustees to hold property on behalf of formally organized associations. More important, associations were not required to register in order to operate legally.

By the early 1950s, the indigenous Africans in the then-British colony of Kenya had begun violent protests – the mau mau rebellion – against alien rule and the expropriation of the best agricultural lands by British settler-farmers. The colonial government responded in a very repressive manner, turning the colony into a police state and enacting the Societies Ordinance. Through the Ordinance, the government imposed elaborate controls on groups and associations. Groups and associations could not be established or operated unless registered by the government, and the government retained unfettered discretion to withdraw registration at any time and require the group or association to disband. The approach was intended to deny, rather than give effect to, freedom of association. Fearing that the violent anti-colonial protests in Kenya could spill across the border into the trust territory of Tanganyika (Mainland Tanzania),2 the British authorities in 1954 also enacted the Societies Ordinance into law there. In keeping with the mood of the times, the authorities in 1956 repealed the Lands Perpetual Succession Ordinance and replaced it with the more restrictive Trustees Incorporation Ordinance.3

It is noteworthy that while the mau mau protests were not replicated in Tanzania, a territory without a significant number of land-grabbing settler-farmers, it was in the year that the Societies Ordinance was enacted that nationalist agitation in Tanzania rose sharply: Julius Nyerere reorganized the Tanganyika African Association, turning that sporting and cultural association into a nationalist organization under the new name of Tanganyika African National Union (TANU). Despite the Societies Ordinance, Nyerere’s TANU was able to mobilize the African population to demand independence. It must also be noted that through the colonial era until the immediate post-independence era, such prominent civil society organizations as free and autonomous trade unions and cooperative societies were permitted to exist even though the Government increasingly saw them as irritants. The Railway Workers Union (RWU) is a prominent example. A handful of small opposition parties also came into legal existence, two examples being the People’s Democratic Party, led by Christopher Kasanga Tumbo, a former RWU leader, and the African National Congress, led by Zuberi Mtemvu.

After independence in 1961, the Societies Ordinance – an instrument for the oppression of colonial subjects that was clearly unfit for a free and independent people – remained on the statute books. Indeed, by amendment in 1962, the scope of the law widened. So did the ambit of the government's discretion to dissolve any “society” – which now included any company, partnership, or other association set up to conduct lawful business – where the Home Affairs Minister concluded that the organization was conducting activities predominantly for a purpose other than lawful trade.4

The 1964-94 Period5: TANU had allied with other independent civil society groups, notably the trade unions, during the struggle for independence. However, when it took over the reins of government upon independence, TANU’s interests ceased to coincide with those of the other organizations. Moves toward swallowing up or otherwise supplanting these organizations began about 1963. On January 12, 1964, the leaders of the African majority in the Isles of Zanzibar overthrew the Arab Sultan and his Arab-dominated government. While the new rulers of Zanzibar retained a tenuous hold on power and worried about a possible Arab invasion to restore the former regime, the Government of Tanganyika is believed to have worried about the destabilizing effect of a possible invasion of or continuing restiveness in Zanzibar, right at its doorstep. The Zanzibar Revolution was quickly followed by an army mutiny in Tanganyika on January 20, 1964. British troops (later replaced by Nigerian troops) were invited to quell the rebellion. On April 26, 1964, Zanzibar joined Tanganyika to become the United Republic of Tanzania.

The events of January 1964 made state security a top priority for the Government of Tanzania, and the state sought to absorb or control all virile civil society organizations. All of the country’s free and autonomous trade unions, which had come together under the umbrella of the Tanganyika Federation of Labor (TFL), were proscribed later in 1964, and in their stead the Government set up the National Union of Tanzania Workers (NUTA), which was promptly affiliated with the ruling party. By constitutional amendment in 1965, the one-party system was introduced and other parties were proscribed.6 The Arusha Declaration of 1967, which formally adopted ujamaa, a brand of African Socialism, as the path for the country’s development, brought further impetus for the absorption of civil society organizations into the party-controlled state. In 1968, all voluntary and independent cooperative societies were proscribed and merged into cooperative movements affiliated with the ruling party. The same fate befell independent women’s organizations.

From the foregoing, it is clear that Duhu is not quite accurate in stating that “[u]pon Tanzania’s independence, most CSOs [i.e., civil society organizations] were intertwined with the state as affiliates of the ruling party.” The absorption of these organizations into the ruling party was accomplished after independence, and not by happenstance but by deliberate policy. When this history is viewed in context of the Societies Ordinance, which empowered the Government to proscribe any organizations it disapproved of, the absence of a virile civil society becomes quite understandable.

Duhu further asserts, “During the 1980s, many CSOs cut ties with the political party, and many new CSOs formed.” My understanding is that in the dispensation that began to emerge with political liberalization, the state was compelled to start shedding weight and could not continue to implement – even if it had yet to formally renounce – the policy of absorbing organizations into the structure of the party-state. The result was that beginning in the late 1980s, citizens were allowed to form many new organizations that were not obliged to be affiliates of the ruling party. However, as the BAWATA case7 (to which I shall turn shortly) illustrates, the party-state has resisted the efforts of the typically larger organizations that had been absorbed into the party-state to sever ties with it and become, once again, part of civil society.

In response to loud demands, in February 1991 a Presidential Commission was set up under the leadership of then-Chief Justice Francis Nyalali to collect the views of citizens and make appropriate recommendations on whether the country should adopt a multi-party system. In a final report submitted in January 1992, the Nyalali Commission recommended the adoption of a multi-party system, as well as (among other things) the repeal of the Societies Ordinance and 39 other laws that it considered impediments to a multi-party system and to human rights. Several of these laws have been repealed or amended, but many observers believe that the Government is reluctant to let go of the sweeping powers conferred by these laws.

1995 to date: In this period, the trends that began in the late 1980s have continued – many new civil society organizations have been set up; the state has been reluctant to let go of the organizations that had been affiliated with the party; and while the state has committed itself to reforming the policies and laws regulating civil society organizations, progress has come slowly. All of this is in line with the general trend that Goran Hyden has characterized as “creeping democratization” in Tanzania.8

The Tanzania National Women’s Council, BAWATA, was set up in 1994 by some leaders of the women’s wing of the ruling party.9 It registered as a society under the Societies Ordinance and sought to provide a nonpartisan platform for all interested Tanzanian women. In Hyden’s words, “Realizing that their own organization had lost much of its credibility among women, these leaders decided to found a new one. The new organization elected a younger and better-educated generation of leaders, marginalizing some of the CCM [i.e., Chama cha Mapinduzi, the ruling party] women who had wanted to lead the Council and creating tension between women leaders in CCM and BAWATA.”10 Alongside its programs in several areas of women’s rights, such as inheritance rights and the right to own land, BAWATA launched a civic education campaign during the 1995 elections that is believed to have contributed immensely to women's participation in the election. The large turnout of women voters may have enabled opposition parties to gain more votes in some places while helping the ruling party in other places. Yet the ruling party accused BAWATA of being political and pro-opposition. In September 1996, the Government deregistered BAWATA on the ground that it had engaged in political activities and therefore was in breach of its own constitution. The organization went to court to challenge the Government’s decision on due process grounds (the Government had not given it a chance to be heard before deregistering it) and on the ground that the Societies Ordinance is unconstitutional.

The Reform of Policy and Laws Regulating Civil Society Organizations

The reform of the policies and laws regulating civil society organizations, which has been at the center of Government-civil society relations since 1996, deserves to be discussed at some length.

The findings of the 2001 Afrobarometer survey – in Duhu's summary, that “Tanzanians participate heavily in democracy and development activities if they are mobilized from above, but they rarely initiate such activities on their own” – are consistent with the views of several scholars and development workers in the country. There is little doubt that this situation is part of the heritage of 30 years of one-party rule, during which policies and laws did not permit initiatives to come from outside the party-state.11 To that extent, at least, there was a strong case for reforming the policies and laws regulating civil society organizations.

It may be recalled that at the dawn of liberalization, the state – without formally changing the old policy of absorbing civil society groups into the party-state structure –began to permit the registration of new civil society organizations, mainly NGOs, without seeking to absorb them into the ruling party. Also, it may be recalled that the Nyalali Commission in 1992 had recommended repeal of the Societies Ordinance, among other laws. These developments gave impetus for activists to demand both the formal introduction of a new NGO-friendly policy and the repeal of the Societies Ordinance and its replacement with a law that would enable NGOs to operate freely.12 The policy-law distinction merits emphasis: Ordinarily, a new policy on NGOs would broadly indicate the attitude of Government but would not by itself be legally enforceable. Thus, a necessary follow-up to a new policy would be a new law.13

In response to demands by activists and the quieter inputs of donors, the Government organized a consultative workshop in May 1996. Attended by representatives of donor agencies, the major NGO umbrella bodies, and Government officials, the workshop set up a National Steering Committee for NGO Policy Formulation. By 1997, the Committee had developed a first draft of the Policy.14 Other drafts were to follow, with each debated in consultative workshops. It was the fifth draft, developed in 2000, that was eventually adopted. While critics have questioned the credentials of some NGO representatives who took part in developing the policy, they concede the importance of the fact that NGO representatives participated at all.15 Remarkably, this was evidently the first major Government-civil society collaboration in policy development in more than 30 years. Accordingly, it probably helped move the Government toward accepting the right of civil society to contribute to policy formulation, and helped civil society actors to build the confidence to engage the Government on other issues.

The Policy proclaims its overall objective to be creating “an enabling environment for the NGOs to operate effectively and efficiently in the social and economic transformation of the country.” To help distinguish NGOs from other bodies, it provides an “operational definition” of NGO, which includes voluntary participation by its members and a prohibition against sharing profits. The Policy also provides that NGOs shall be “non-political,” explained as follows: “NGOs are organizations that do not seek political power or campaign for any political party.” (Paragraph 5.1(v).) It further contains broad provisions on the legal and institutional frameworks for NGOs. As if to underscore its own utility, the Policy states that “Government ministries, state agencies, regional and local government authorities shall adopt policies, practices and guidelines which are in line with the NGO Policy.” (Paragraph 10.0.)

The Government's commitment to reform was to be tested when the time came to translate the broad provisions of the Policy into specific and enforceable provisions of statutory law. In 1998, presumably in response to the preparation of the initial draft of the Policy the preceding year, the Government prepared a draft NGO Bill. But NGOs protested that the Bill did not reflect the contents of the draft Policy but sought to reenact the old repressive laws. Considering that a final draft of the Policy had yet to be developed, the Bill was rested.16 After adoption of the final draft of the Policy, the task of turning it into a Bill proved difficult. Successive draft Bills failed to reflect clear aspects of the Policy, and the Government showed some reluctance to continue consulting with NGOs. In October 2002, when the Non-Governmental Organizations Bill prepared by the Government was tabled before Parliament, NGOs mounted a very public advocacy campaign that many top Government figures saw as a challenge to their wisdom and authority. In the event, the Non-Governmental Organizations Act 2002, which retained the existing laws and added extra and confusing layers of regulation, was enacted.

For several reasons, notably its own confusing provisions and widespread opposition from stakeholders, the Act of 2002 could hardly be enforced. Meanwhile, a quieter dialogue between the Government and representatives of NGOs began, eventually leading to the amendment of the Act of 2002 by the Written Laws (Miscellaneous Provisions) (No. 2) Act in June 2005.17

The June 2005 Amendment, read in concert with the 2002 Act, redeemed the reform process by introducing the following changes. First, by implied repeal, it has made the Societies Ordinance inapplicable to any organization that falls within the definition of NGO. Most NGOs – including the advocacy groups that especially risk conflict with the authorities – come within this broad if wordy definition (to be discussed shortly). Thus, though the Societies Ordinance has not been fully repealed, there is now very little or no prospect of invoking it. Second, although it continues to require NGOs to register in order to operate lawfully, officials no longer have unfettered discretion in determining whether to register an organization. Statutory provisions now specify the permissible grounds for refusing registration, specify a procedure for making the decision, and oblige officials to inform applicants whose applications are refused. Moreover, the Board that makes these decisions now includes substantial NGO representation. Similar provisions govern the process of de-registering organizations as well. Finally, it has given legal personality to registered NGOs.

Apart from these changes, the Act as amended contains some novel provisions and some very difficult provisions, notably those relating to offenses and punishments. In view of the new rapport between NGO representatives and the Government, further amendment seems probable.

NGOs and Political Activities

Relying on the Policy’s requirement that NGOs be “non-political” and the power of Government officials to deregister NGOs under the Societies Ordinance, Duhu draws attention to the thorny issue of how far NGOs can go in political activities. Before discussing the issue in Tanzania, a brief incursion into general principles might be useful.18

Principles of international law generally favor removing restrictions on the freedom of NGOs to engage in public policy advocacy and to speak out or publish their positions, even if such speech “offends, shocks or disturbs” those in authority.19 In several countries, however, and in spite of what may be the stated policy, “NGOs that get involved in issues on the political ‘cutting edge,’ particularly if they take on a strong advocacy role, can expect to be viewed as disruptive and threatening, with constraining or repressive action coming swiftly behind.” Beyond advocacy, the right of NGOs to engage in political activities is denied or curtailed in many countries. But in some countries, NGOs have the right to engage in political activities not just of the arguably nonpartisan type, such as civic education or lobbying for specific measures, but also in such direct and partisan activities as campaigning for candidates or parties.20

The Tanzanian NGO Policy indicates that NGOs shall be “non-political,” which is explained as follows: “NGOs are organizations that do not seek political power or campaign for any political party.” (Paragraph 5.0 (v).) The 2005 amendment to the NGO Act defines NGO as follows:

“Non-Governmental Organization” also known by acronym as “NGO”, means a voluntary grouping of individuals or organizations which is autonomous, non-partisan, non-profit sharing – (a) organized at the local, national or international level for the purpose of enhancing or promoting economic, environmental, social or cultural development or protecting the environment, lobbying or advocating on such issue; or (b) established under the auspices of any religious or faith propagating organization, trade union, sports club, political party, religious or faith organization or community based organization, – but does not include a trade union, social club, a religious or faith propagating organization or community based organization.

Again, the statutes, not the Policy, determine the extent to which Tanzanian NGOs may engage in political activities. From the definition of NGO, it seems that even though an NGO could be “established under the auspices” of a political party, it must remain “non-partisan.” “Non-partisan” is in turn defined as “not seeking political power or campaigning for any political party.” An NGO not affiliated with a political party can easily stay nonpartisan, as defined – but it remains to be seen how an NGO established under the auspices of a political party can qualify as nonpartisan, as defined. The administration of this part of the law will probably be one of the most challenging.

I would like to end by emphasizing the effect of the political context in which reforms are being pursued. As I noted at the outset, the regulations guiding civil society not only shape civil society but also reflect the strength of organized civil society vis-à-vis the government. One party has ruled Tanzania since independence, a party that has held onto power and remains reasonably popular even as it has completely changed its philosophy from socialism to free market principles. This party, against which neither opposition parties nor organized civil society at large constitutes a countervailing force, knows when to yield in order to survive. The party has been adept, too, at presenting continuity as change and change as continuity, depending on what serves its interests. And the party has achieved remarkable success in adapting to rapid changes in the external environment, while more or less dictating the pace of change in an internal environment that it continues to manage with ease.

As in other areas of democratization in Tanzania, the reform of NGO regulations has come in the form of concessions that the party has more or less carefully made to other internal interests, in order to imply a readiness to undergo a competition for power that, as an entity interested in retaining its grip on power, it has no conceivable reason to encourage. For as long as there is no countervailing force to the ruling party, improvements to NGO regulations and the strengthening of civil society in Tanzania in general will probably continue to come in the form of concessions from the ruling party. Developments in civil society, then, are simply part of the larger phenomenon that Hyden has described as the “creeping democratization” of Tanzania.

Notes

1 Emeka Iheme, a member of the International Center for Not-for-Profit Law's Advisory Council, is a lawyer and development consultant based in Nigeria.

2 The territory now known as Mainland Tanzania became the German colony of Tanganyika in the 1880s. At the end of the First World War, it was taken from Germany and made a League of Nations trust territory administered by Britain, for all practical purposes, as a colony. In 1961, it became independent as the Republic of Tanganyika. In 1964 the United Republic of Tanzania (Jamhuri Mungaano wa Tanzania) formed through a union of Tanganyika and the nearby Isles of Zanzibar, also a former British colony.

3 The Trustees Incorporation Ordinance introduced onerous conditions for the registration of trustees and for the conduct of association affairs by trustees. The Written Laws (Miscellaneous Amendments) Act 1999 added still more stringent conditions. In practice, however, the Trustees Incorporation Ordinance has had little effect on civil society organizations, as most of them, until the new laws enacted in 2002-2005, were registered and operated as societies under the Societies Ordinance and did not need to appoint and register trustees.

4 See the Societies Ordinance (Amendment) Act 1962. Further, the Societies Ordinance (Amendment) Act 1969 gave the President power to order the disposal of the assets of any society declared unlawful and wound up, and the transfer of any employees of such society to the society in which the assets became vested.

5 Part of this history is from I. N. Kimambo and A. J. Temu (eds.), A History of Tanzania (Nairobi: East African Publishing House, 1969).

6 One party was constitutionally defined, in the case of Zanzibar, as the ruling Afro-Shirazi Party (ASP), and in the case of Mainland Tanzania, as the ruling TANU. Twelve years later, in 1977, ASP and TANU formally merged to become Chama cha Mapinduzi (“Party of the Revolution”) (CCM), and the new party inherited the one-party status for the entire country.

7 See Rugemeleza Nshala, The Freedom of Association in Tanzania: Implications for Civil Society and Sustainable Development (Dar es Salaam: Lawyers’ Environmental Action Team, 1997), pp. 4, 7; and Goran Hyden, “Top-Down Democratization in Tanzania,” Journal of Democracy, October 1999, Volume 10, No. 4, pp. 142-155. Nshala and Hyden hold very similar views here despite their different backgrounds and profiles (Nshala is a Tanzanian lawyer-activist, very critical of the Government, whereas Hyden is an expatriate scholar widely respected within and outside Government circles in Tanzania).

8 See Goran Hyden, op. cit.

9 The organization’s full name is Baraza la Wanawake Tanzania (Tanzania National Women’s Council).

10 Goran Hyden, op. cit., p. 150.

11 Other possible explanations that run even deeper have been put forward. In the words of Hyden,

Associational life in Tanzania is quite weak, even by African standards. One reason for this is demographic. Tanzania is a large country where most of the people live in peripheral regions. While population density is high in some of these regions (as in Kilimanjaro on the border with Kenya), it is still lower than in Kenya. Tanzania’s poorly developed and poorly maintained physical infrastructure makes social interaction difficult. Thus in spite of villagization and rapid urbanization, organized efforts tend to be small-scale and focused on implementing a single project with tangible results. In other words, very few Tanzanians engage in collective action in order to promote or defend a particular idea or cause. Another reason why “social capital” is so weak in Tanzania is people’s lack of trust in each other. The party-state undermined trust by encouraging corruption and theft. Liberalization has not promoted a richer associational life; instead, it has left more and more individuals doing things on their own.

Goran Hyden, op. cit. pp. 149-150.

12 See Tundu Antiphas Lissu, Repackaging Authoritarianism: NGO Policy Reform and the Freedom of Association and Expression in Tanzania, LEAT Research Report Series, No. 1, May 2000 ( Dar es Salaam: Lawyers’ Environmental Action Team, 2000).

13 This approach is apparent in the National Policy on Non-Governmental Organizations, which the Government eventually published in November 2001. See Paragraphs 1.1.3. and 6.1.: “Many laws governing the registration and operation of NGOs were a cause of confusion.… A new law shall be enacted to cater for the current deficiencies in NGO registration, deregistration, appeals and termination.” The National Policy on Non-Governmental Organizations ( Dar es Salaam: Vice President’s Office, November 2001).

14 This first draft is probably what Duhu refers to as the Policy that was developed in 1997.

15 For one such critical opinion, see Tundu Antiphas Lissu, op. cit., p. 12, where the author suggests that the NGO members of the Committee, because they came from large umbrella organizations rather than “the more independent-minded and critical NGOs,” failed to keep the Policy from including a prohibition against NGO political activities.

16 I have not seen the 1998 NGO Bill. I have here relied on the opinions of commentators from NGOs contained in Tundu Antiphas Lissu, op. cit., pp. 13-14; and Riziki Shahari, “NGO Policy – Still a Puzzle,” in Friedrich Ebert Stiftung, Political Handbook & NGO Calendar 2001 (Dar es Salaam: Friedrich Ebert Stiftung, 2000), p. 85.

17 These statutes, like other post-independence Tanganyika/Tanzanian statutes, are available at the website of the Tanzanian Parliament, www.parliament.go.tz.

18 For an exhaustive discussion, see World Bank Handbook on Good Practices for Laws Relating to Non-Governmental Organizations (Washington, DC: International Center for Not-for-Profit Law, 2000), Chapter G.

19 Ibid. See the opinion of the European Court of Human Rights in Freedom and Democracy Party (OZDEP) v. Turkey (Application No. 23885/94), December 8, 1999 (January 30, 1998), available at www.icnl.org.

20 Ibid.

 

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