The Zimbabwean Non-Governmental Organizations Bill 2004 and International Human Rights Law/Standards

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The Zimbabwean Non-Governmental Organizations Bill 2004
and International Human Rights Law/Standards

Issues, Analysis and Policy Recommendations

UNDP – Legal Unit, Zimbabwe

Working Paper for Policy Dialogue with the Government of
Zimbabwe and other Stakeholders

Harare, September 2004

1

T ABLE OF C ONTENTS

EXECUTIVE SUMMARY ………………………………………………
……………..4

1. Introduction………………………………………
…………………..………..7
1.1. Structure of Paper and Approach………………………………………
……..….8

2. The National Context…………………………………
……………………..9

3. The NGO Bill and Legitimate State Practices……………….…
….10
3.1. Laws and Practices of ot her African States…………………….…………….1
1
3.2. Matured Democratic States ……………………………………………………… 13
3.3. NGO Regulation Under Africa n Regional Human Rights Regime… 14

4. Justifiable Legal Grounds for Restriction of Rights …………. 15
4.1. Government –NGO Relations: Assigned Policy
Reasons for Control. ………………………………………………………………
………. 1 6

5. Sections 9 and 17 Revisited: Probable Breach of
International Standards ……………………………………………… 1 7
5.1. The Status of Human Rights NGOs in International Law ……………. 19
5.2. The Status of NGOs under the African Human Rights System …….. 21
5.3. Other African Normative Sources …………………………………………….. 23

6. Administrative Procedures and Principles of

Rule of Law ………………………………………………………………
24

7. The Test of Consistency and Critique …………………………… 25

8. Overall Implications …………………………………………………. 26

9. Summary of Key Issues and Conclusions ………………………28

10. Recommendations ……………………………………………………. 30

2

List of Abbreviations

AU African Union
CSO Civil Society Organization
ECOSOC Economic and Social Council
GoZ Government of Zimbabwe
INGO International Non-governmental Organization
MDC Movement for Democratic Change
NANGO National Association of Non-governmental Organizations
NCA National Constitutional Assembly
NEPAD New Partnership for Africa’s Development
NGO Non-governmental Organization
NPO Non-profit Organization
OAU Organization of African Unity
OHCHR Office of the High Commissioner for Human Rights
PVO Private Voluntary Organization
UDHR Universal Declaration of Human Rights
UK United Kingdom
UN United Nations
UNFPA United Nations Population Fund
UNHCR United Nations High Commissioner for Refugees
UNICEF United Nations Children’s Fund
UNIDO United Nations Industrial Development Organization
UNIFEM United Nations Development Fund for Women
USA United States of America
UTCAH Technical Unit for the Coordi nation of Humanitarian Affairs
WHO World Health Organization
ZANU-PF Zimbabwe African National Union – Patriotic Front

3

Executive Summary

In this paper we make policy recommendations on how to address some of the
concerns that have been expressed ab out the Zimbabwean Non Governmental
Organization Bill, gazetted on 20
th August 2004, (herein after the NGO Bill) from
the point of view of the United Nation s (UN). To do so in an informed and
comprehensive manner we have carried ou t a legal analysis situating the NGO
Bill within the national context of a polar ized society with the aim of helping us
appreciate the probable intent of the Bi ll and the stipulations thereof. We also
paid considerable attention to laws an d practices of other African states to
ascertain their similarity or oth erwise with the Bill under study.

The overarching objective, however, was to interrogate the consistency or
otherwise of the NGO Bill with internat ional human rights law/standards as
expressed through the Inte rnational Bill of Rights
1 and the related regional
human rights regime, in this particular case the African Charter on Human and
Peoples’ Rights
2. One principal reason for this approach is that international
human rights law and its implementation is a raisons d’etre of the UN system
itself, so also has the UN, it is submitte d, a secondary duty in the realization of
human rights standards within domestic jurisdictions of its member sates, such
as Zimbabwe.

Scrutinizing the Bill on a section-by-sec tion basis, we submitted that with the
possible exception of section 9(4) and 17
3, the Bill in its totality may not be
inconsistent with international human righ ts law. That, we noted should not be
construed to mean that there could not be other concerns with Bill from point of
view of Zimbabwean municipal law or any other policies and practices. We
invoked an established principle in intern ational human rights law to sustain our
contention: that states do have a legitima te right, sometimes duty, to regulate all
entities, including NGOs, whether local or foreign in origin, within their
jurisdiction. And such actions are within the competence of sovereign states; in
so far as it could be demonstrated that it is regulating with law and that law itself
is within the “ margin of appreciation” that international law confers on states,
then the action is prima-facie lawful.

Having endeavoured to establish the lega lity of regulating NGOs in the general
sense, a comparison of the Bill with laws and practices of other African states
showed that the NGO Bill of Zimbabwe be ars close resemblance to that of other
African states and in fact is not dissimil ar to that of some matured democratic
1 The International Bill of Rights constitutes our legal framew ork of modern human rights standard. It is made up of
the Universal Declaration of Human Rights 1948; the In ternational Covenant on Civil and Political Rights 1976;
and the International Covenant on Economic, Social an d Cultural Rights, 1976, and the related thematic and
regional human rights instruments.
2 As at 2003, all the African states had ratified the Afri can Charter on Human and Peoples Rights. The fact of the
ratification by all states attests to the fact that the Ch arter is the accepted regional human rights regime. It was
adopted by member states of OAU in 1981, and entered into force in 1986.
3 These two sections are our principal concern from point of view of international human rights law /standards but
we have also registered other concerns in respect of Sections 10, 24, 29 & 32, which are all discussed in detail in
this paper.
4

states. This view not with standing, we noted that none of the states examined
had in their laws stipulations such as Sections 9(4) and 17.

We sounded a word of caution with regard s to the administrative procedures and
transitional provisions contained in the Bill, that if they are not well managed,
they could become a hindrance to the exerci se of the right of forming association,
and could as well have implications for esta blished principles of rule of law. We
further observed that the specific form ulation of NGO laws and their varying
details from state to state appears to be informed by political culture, legal
traditions, and state-society relations in at given phase in a country’s history.
Attention was called to the justifiable grounds that states lawfully have in
restricting human rights or temporarily suspending the same and the exceptions
thereto; i.e. rights that are to be respe cted at all times, including times of
national emergency.

Thereafter we revisited the two Sections of the Bill that we have expressed
fundamental concerns: 9(4) and 17. By revisiting the sections and examining
them in greater detail we attempted to address three fundamental questions:

• Do international NGOs working on is sues that include human rights and
governance have a right to operate in countries other than their own?

• Do local NGOs have a right in law to receive foreign funding or donation for
activities genuinely geared towards th e promotion and protection of human
rights in their own countries?

• Can local NGOs successfully carry ou t their operations on human rights
realization without donor assistance?

In attempting to address these issues a co mprehensive legal analysis of the status
of human rights NGOs in international law was embarked upon, relying on the
legal framework of the UN and the Af rican human rights systems. Several
authorities and legitimate state practices were cited with the view to establishing
that GoZ as a party to UN Conventions on human rights, a UN member state,
and also a party to the African Charter would appear to be in breach, were
Sections 9(4) and 17 of the Bill to pass in their current formulations into an Act.
The two sections will manifestly, we cont ended, hinder the exercise of the right to
freedom of association and assembly, am ongst others, and would be a hindrance
in the overall work of human right defend ers, contrary to the cited authorities
that bind GoZ.

A conclusion we inferred was that local hu man rights NGOs in so far as they are
advocating for human rights within the law should, in accordance with
international human rights law, be able to source foreign funding. Equally,
INGOs that operate within the law or have not shown any cause that they will not
operate within the law, as internatio nally defined, should be registered.

5

Finally, we subjected, pursuant to the arguments above, the two sections to a test
laid down in a decision ( ratio) of a respected and often cited case of Tanzanian
Court of Appeal (Kukutia Ole Rumbun v A.G. Civil Appeal No. 32/1992). The
decision grants that the state, in this case GoZ, could legislate to restrict rights in
the name of principles of public interest. But then given the wide and broad
scope of sections 9(4) and 17, there is a danger of lumping together “innocent
NGOs” and the “targeted offender”, which will not be fair. According to that
reasoning such a law may be disproportion al to the possible legitimate problem
that it seeks to address. It also confer s on the executive unfettered discretionary
powers; in the sense of the definition of what is a human rights and political
governance NGOs. In sum, human righ ts NGOs, were the Bill to pass in its
current formulation into law will not be able to function.

We called attention to the overall implicatio ns of the Bill, were it to be passed
into an Act, for GoZ, donors, NGOs and UN itself: it would mean that GoZ will be
in breach of some of its international human rights obligations, which in turn
may not augur well for the country’s image internationally, a fact that could also
impact adversely on multilateral and bi lateral assistance. Donors cannot give
funding to local NGOs working in the areas of governance and human rights.
Most NGOs would cease to exist for want of funding. UN country operations in
terms of working with NGOs in certain sectors as indicated may be impaired.

Consequently, we make the following recommendations:

• That the UN should take as its star ting point an acknowledgement of the
right of the government to legislate on the subject matter;
• That the UN should show an unders tanding of two distinct but related
issues: concerns expressed about the heavy bureaucratic/administrative
demands placed on NGOs generally by some sections of the Bill and
probable illegality (in terms of internat ional human rights law) of Sections
9(4) and 17.
• That at the first instance the UN sh ould impress upon GoZ that it could
facilitate a process of NGO self regul ation working with NANGO to jointly
produce an NGO Code of Conduct with in 6 months an d/or alternative
draft that addresses mutu al concerns and interest;
• That UN should facilitate a dialogue with donor countries on good donor
ship to help address some of the concerns and perceptions of GoZ as
regards national security and fundin g of NGOs seemingly seeking state
power or involved in partisan part polit ical activities, as often stated by
GoZ;
• That UN should work with all the stakeholders to present an alternative
draft which narrows the scope of th e two sections and yet take into
consideration the concerns and percepti on of Goz and principles of law;
• That should the above approach no t succeed for whatever reason, the
minimum that the UN has to insist u pon is the striking out of the Bill
sections 9(4) and 17, and draw attention of GOZ to the implications of not
doing that.
6

“Give to Caesar what is Caesar ’s and to God what is God’s”
Mark 12: 13-17.
Part I

1.0. Introduction

The Zimbabwean Non-Governmental Organizations Bill 2004, hereinafter the
NGO Bill, has attracted passionate discus sion, in fact sometimes emotions, and
for very understandable reaso ns. As to be expected, there are already fairly good
high quality analyses on the implications of the bill on the work of NGOs in the
country, especially those that focus on human rights and governance issues.
4 A
good number of analysts have so far focused on the political as well as
the
general legal and practical implications of the said NGO Bill, for the democratic
space in the country.

In this paper we seek to make policy recommendations on how to address some
of the concerns expressed, from the point of view of the United Nations (UN). To
do so in an informed and comprehensive manner we carry out a legal analysis
situating it within the national context and paying considerable attention to laws
and practices of other African states. The overarching objective, however, is to
interrogate the consistency or otherwis e of the NGO Bill with international
human rights law/standards as expres sed through the International Bill of
Rights
5 and the related regional human rights regime, in this particular case the
African Charter on Human and Peoples’ Rights
6. One principal reason for this
approach is that international human ri ghts law and its implementation is a
raisons d’etre of the UN system itself, so also has the UN, it is submitted, a
secondary duty in the realization of hu man rights standards within domestic
jurisdictions of its member sates, such as Zimbabwe.

The express intention and stated aim of the NGO Bill, as provided for in the
preamble are to:
• Provide for the registration of non-governmental organizations,
4 See for example the statement by NANGO Sunday Mail of 15th August as well as the article by columnist
Professor Mahoso in the same issue; Brian Kagoro, Another One Party State Effort: Zimbabwe’s NGO Legislation;
July 2004; Arnold Tsunga and Tafadwa Mugabe, Zim NG O Bill: Dangerous for Human Right Defenders: Betrays
High Degree of Paranoia and Contempt for Regional and International Community, August,2004; Legal Resources
Foundation, The Non–Governmental Organizations Bill, 2004; Crisis in Zimbabwe Coalition, Proposed NGO
Legislation, August, 2004; and Report of Meeting of Heads of NGOs, July 2004.
5 The International Bill of Rights constitutes our legal framew ork of modern human rights standard. It is made up of
the Universal Declaration of Human Rights 1948; the In ternational Covenant on Civil and Political Rights 1976;
and the International Covenant on Economic, Social an d Cultural Rights, 1976, and the related thematic and
regional human rights instruments.
6 As at 2003, all the African states had ratified the Afri can Charter on Human and Peoples Rights. The fact of the
ratification by all states attests to the fact that the Ch arter is the accepted regional human rights regime. It was
adopted by member states of OAU in 1981, and entered into force in 1986.
7

• Provide for an enabling environmen t for operations, monitoring and
regulation of non-govern mental organizations; and

• To repeal the Private Voluntary organization Act, and for matters
incidental thereto.
7

These stated aims, are, on the face of it within the competence of any sovereign
state to regulate. Sovereign states have the right to regulate the activities of any
entity within their jurisdiction, whether of local or foreign origin, in accordance
with law. In so far as it can be shown that such regulatory regime is done in
accordance with law or policies that conform to human rights law as required in
a democratic society, no di spute may arise. However it is these key elements that
appear to be at the centre of the cont roversial debates surrounding the Bill.

1.1. Structure of Paper and Approach

In order to systematically explore the i ssues generated by the NGO Bill, the paper
is divided into ten parts, with the introd uction being part one. The second part
attempts to situate the Bill within the nati onal context of a polarized society with
the objective to help us a ppreciate the law itself and the stipulations thereof. The
third part examines the reg ulatory regimes in other African states of which we
attempt to survey the laws and policies of other African jurisdictions with view to
ascertaining their similarity or difference with the Bill under discussion. In this
same part, we give an over view of si milar legislation in a matured liberal
democratic state. Part four begins by pr esenting a framework of legal principles
that are used to lawfully justify restric tions or temporary suspend the enjoyment
of rights by states that are party to in ternational human rights treaties. We spell
out clearly the grounds fo r the restrictions that are permissible by law.
Thereafter, we draw attention to policy reasons often assigned by governments
for controlling NGOs. Counter argument s are also presented. Part five looks
more closely at sections 9(4) and 17 of the NGO Bill, against the backdrop of legal
principles identified in part three. Legal sources, authorities, UN System, African
Commission and states’ practices are referre d to in evaluating the legality or
otherwise of the said sections. Attentio n is drawn to other sources of human
rights norms within the African system. Employing the same framework the
status of human rights NGOs in law is in vestigated. This part makes the case that
the said sections in their current formulations may be in probable breach of
international law. Related to the issues of international law that concern is
expressed, the administrative procedures are scrutinized as well with in part six
the aim of finding out how they could rais e concerns about principles of rule of
law or claw back rights. The consistency or otherwise of the municipal law such
as the NGO Bill is subjected to a test of consistency with some principles of
human rights law in part seven. Part eight highlights the overall practical
implications of the Bill were it to pass into an Act. We show how it will impact
7 In respect of how the NGO Bill adequately addresses the la cuna or limitations of the Private Voluntary Act, or any
other mischief we defer to our Zimbabwean colleague s. See Legal Resources Foundation, NGO Bill 2004, and
Crisis in Zimbabwe Coalitio n, cited above, note 1.

8

upon the GoZ, NGOs, donors and the UN itself. The final parts, nine and ten,
summarize the key issues, conclude an d make recommendations respectively.

Part II

2.0. The National Context

Laws, such as the NGO Bill, are informed in their drafting and intent by a
national context but equally like most legi slative initiatives they also often draw
from experiences that pertain elsewhere . However, understanding the national
context invariably helps in appreciating the law itself and the provisions thereof.
It is also not a secret th at judges themselves pay considerable attention to the
national situations when giving interpretation to promulgated laws.

Coming at the time that the political la ndscape is characterized by polarization
and distrust, and an atmosphere where civil society’s perception is that
government has been clawing back on basic human rights, the debates around
the NGO Bill and its intent ar e bound to be controversial, generating passion and
in fact deep seated emotions. Equally it cannot be gain said that the drafters of
the Bill were very mindful of the context when crafting its contents as it stands
now.

Contemporary Zimbabwean society is highly polarized, of which no entity within
the society, whether national or international, is immune from the divisions and
strong positions on issues. These divisi ons are manifesting themselves in high
levels of distrust, suspicion, and the re ading of conspiracy theories into every
acts of all parties.

Two levels of conflict have dominate d the country since 2002: the conflict
between the opposition MDC, its suppor ters, former minority commercial
farmers, some civic groups and GoZ on one hand, and the second level of conflict
is between the Government and the Western donor countries, notably UK and
USA. In the view of the Government, though, there is actually one level of
conflict, that between itself and the in ternational donor community who impacts
on local organizations. As such accordin g to the government perceptions, what
appears to be an internal conflict is to all intents and purposes part and parcel of
the machination of the Western donor coun tries to effect regime change using
local forces as surrogates, all because of the land reform programme that started
in 2000.

Related to this is the obje ctive historical, social, econ omic, and political context
that produced the MDC opposition party. Between 1998 and 2000 the CSOs
visibly forged an alliance with students, trade unions in the form of the NCA to
initially demand constitutional reform. Bo uyed by the success of the ‘No’ vote
against the Government in the constituti onal referendum, it was this alliance
that gave birth to the MDC which dema nded political change away from the de
facto one party, ZANU-PF PF, monolithic do minance. The role of international
donors during this period also deserv es mention. While both the government

9

Commission and the NCA received some funding, it is a well-known fact that
some of the donors who supported the constitutional reform process injected
more funds into the NCA process. For this reason the donor community is
regarded with suspic ion by the GoZ.

More importantly the historical alliance between the MDC and civil society has
come to haunt civil society organizations by giving rise to the perception that
they are partisan with a political agenda of wanting to help the MDC to
capture
state power with funds sourced from West ern donor countries, are portrayed as
craving for regime change in the hallowed name of human rights and civic
education, GoZ opines.

The human rights discourse has not been spared the controversy, but has also
been dragged into the conflict, in wh ich GoZ argues that the Western donor
countries invoke civil and political rights in a punitive manner against countries
that do not adhere to their a-historical , liberal notions of human rights which
tend to give secondary priority to social and economic rights. In the view of GoZ
it is economic and social rights, throug h mechanisms such as land reform that
should be prioritized in an under- developed country such as Zimbabwe.

Most CSOs and Western donor countries refute these arguments as a charade by
the ZANU-PF government to stay in pow er despite being challenged since 1999
by mass action that led to the creation of the MDC as an opposition party. In the
view of the MDC, some civic groups and western donor countries, given the time
that ZANU-PF had been in power, the accelerated land reform process in 2000
was a desperate last minute attempt by the ZANU-PF government to cling on to
power. They contend that feeling seriousl y challenged particularly by the ‘No’
vote, that ZANU-PF had to find ways to reg ain credibility and tighten its hold on
power. The passage of laws such as the Pu blic Order and Security Act, 2002; the
Access to Information and Pr otection of Privacy Act, 2003, and the Broadcasting
Services Act 2001 and Privat e Voluntary Organisation Act , are viewed as pieces
of legislation with the singular intent of constraining the political space in which
opposition political parties and civic groups to opera te. The NGO Bill, they
contend, read together with the mentioned legislations and its timing,
demonstrates that it is aimed singularly at creating a climate for ZANU-PF to
win the March 2005, parliamentary elections.

The above analysis seeks to show that one specific challenge arising from this
context is the difficulty of engaging parties in a “sci entific”, sober objective and
impartial analysis of the Bill in question without mudslinging or incurring one
form of accusation r the other.

Part III

3.0. The NGO Bill and Legitimate State Practices 8
8 Legitimate state practices within the province of interna tional relations may themselves be source or evidence of
international law.
10

The totality of the Bill and its express objectives are not inconsistent with
international human rights standards.
9 Scrutinizing the NGO Bill on a section by
section basis, it must be stated that Stat es do have a legitimate right, sometimes
duty, to employ national laws to define and regulate NGOs generally or any
entity whether of local or foreign origin. Such actions are within the scope of the
exercise of sovereign ri ghts by states. In so far as St ates regulate such entities by
law and such laws in question are within the “margin of appreciation”
10 that
international human rights law confer on States, then state actions may be prima
facie legitimate. In respect of NGOs, regul ations normally take the form of:
NGOs providing evidence of substantive objectives they intend to pursue within
the jurisdiction of the state party; the proc edure to be followed; how it is to be
governed and managed; the competent stat e body to carry out the registration;
the mode of registration; mandatory disclosure of sources of funding;
presentation of annual financial and na rrative reports; the state or a relevant
department having the authority to insp ect or appoint an auditor to inspect
books to ascertain proper book keeping; mechanism to dissolve or suspend the
NGO; State officials often have discret ionary powers conferred upon them by
statute to make further regulations as they think fit and proper; Criminalization
of certain acts by the stat utes, such as non–compliance with stated objectives,
improper bookkeeping, mi srepresentations etc.

Granted that these are the practices of states, including some matured
democratic states, then it is submitted that with possible exception of sections 9
and 17 which manifestly breach internat ional human rights law, were the Bill to
pass into law, the regulations stipulated by sections: 3, 4, 5, 6, 7, 8, 10, 11, 12, 13,
14, 15, 16, 18, 19, 20, 21, 23, 25, 26 , 27, and 28, may not in their general
formulations be inconsistent with intern ational standards and practices of states.
We add readily though, for the avoidance of any doubt, that the fact that the
mentioned sections are not necessarily inconsistent with international law does
not mean that they, the sect ions, may not present admini strative difficulties for
NGOs. Or inconsistency wi th municipal law. The administrative procedures may
become an issue of human rights law if it could be shown that they have become
obstacles to the realization of a hu man right. We shall revisit the two
controversial sections (9 and 17) in question in more detail below.

3.1. Laws and Practices of other African States

An examination of legislation on No n-governmental organizations in other
African jurisdictions shows close similari ty to the NGO Bill under discussion. The
specific formulation of these and their detail may vary from state to state
informed by political culture, legal traditions, and state–society relations at a
given phase in a country’s po litical history. Generally they range from practices
where the state is relatively less intervention ist in the activities of NGOs such as
9 See supra note X, which calls attention to t he fact that they may be other types of concern that individuals and
organizations may have in respect of the Bill and municipal law and policies.
10 This is the lawful scope that a state party to an in ternational human rights treaty is permitted to promulgate
municipal law or embark upon policies that are informed by specific country situations. It is an adaptation of
international human rights law to local conditions.
11

South Africa, through intermediate cases such as Kenya, to a much more state
interventionist approach such as Angola.

In South Africa the relevant statute is the Non Profit Organizations (NPO) Act
of 1997. It provides in Chapter 1 Article 1, a definition of what constitutes a non-
profit organization, broad enough to en capsulate trusts companies, or “other
association of persons” established for a public purpose. Articles 4-10, regulate
mode of governance; articles 12-16, spell out the procedure of registration, of
which a prospective NPO must apply for registration providing information such
as its constitution to the director of a directorate with the statutory authority of
registration. The registrat ion could be cancelled by the director for non
compliance, with a possibility of appeal; Article 20 makes it clear that non
compliance may become a subject of pol ice criminal investigation and false
information and misrepresentation may co nstitute grounds for de-registration;
Article 26, confers on the sector mi nister discretionary powers to “ make
regulations that are necessary or expedien t in order to achieve the objects of the
Act;”; Article 22 provides avenues of redress to an aggrieved organization or
individuals. In Article 11, there is no evid ence of prohibiting sourcing of external
funding. At least it is silent on that subject.

In Kenya NGOs are governed by the Non-Governmental Organization Co-
ordination Act No 19 of 1990. In additi on to the statute there is also an NGO
Council Code of Conduct as well as rules and regulations pertaining to the NGO
Council. Section 2 of the Act defines what constitutes an NGO, fairly
comprehensively to allow a number of associations, both international and
national, to pass the test of the definition. The management or governance of
NGOs is vested in an NGO board with a chairperson appointed by the President
of the Republic. The sector minister also appoints between 5 to 7 persons to the
board. There is a strong involvement of government departments such as
Foreign Affairs, Office of the President, National Trea sury, Social Services, and
the Attorney General. Section 22 makes it an offence for an NGO to operate
without being duly registere d and certified as such. The board may as stated in
section 14 and 16, refuse to register an NGO, if it is satisfied that it is not in
national interest to do so or because false informat ion has been provided. The
board may also cancel a certificate of an NGO for non-adherence to objectives.
An aggrieved NGO may appeal to the sector minister. The Act is silent on the
sourcing of funding by NGOs; therefore wh atever is not prohibited is allowed.

Angola presents a classic case of strong state intervention. The NGO sector is
regulated by Council of Mi nisters Decree No: 84/02, 31 December 2002. NGOs
are defined by Articles 7-10, as nation al, international and foreign, and gives a
comprehensive list as to the sectors that fall within the scope of work of NGOs.
NGOs are coordinated by the Ministry of Social Affairs and Re-integration,
through a Technical Unit for the Coordi nation of Humanitarian Affairs, the
UTCAH. In accordance with articles 6 the UTCAH is empowered to define
programmes for NGOs to the extent that they are complimentary to government
actions, including determining the regions and provinces that the NGOs should
operate. It has a board made up of 15 representatives of various government
ministries. Procedure for registration is provided for by Articles 13 – 17. The
12

statute empowers government bodies to investigate and inspect NGO activities
including demanding that they underg o independent auditing. NGOs can be
suspended once a court orders that its activities are prejudicial to national
sovereignty and integrity. Article 20 req uires NGOs to seek approval from the
Ministry of Social Affairs before they can raise funds from either international or
national sources.
11

3.2. Matured Democratic States

It is also worth examining how matured democratic countries regulate voluntary
associations, bearing in mind that most African states have a legal tradition of
received laws from former colonial powers or the metropolis. For example, the
legal framework for regulating NGO activiti es in the UK is the Charities Act of
1993.The Act confers substantial powers upon a Commissioner and the Secretary
of State in ensuring that the activities an d operations of charities or NGOs in this
usage, are in consonance with the object and provisions of the said Charities Act.
Consequently, there are stipulations de fining what constitutes a charity for
purposes of the Act, the procedure for registration, the required management
structure constituted by trustees. No person who ha s been disqualified from
being a trustee of a charity by court of law should be appointed a trustee.
Trustees created by a charity have a duty in accordance with section 41 to keep
proper accounts of the charity. The Secret ary of State has discretionary powers to
prescribe sets of rules for the preparation of financial statements of a charity. The
Commissioner is empowered under the Act to appoint a receiver or manager to
charity that in his or her opinion are not complying with the object of the Act.

Particularly noteworthy is that Charities are bound by the Act to disclose their
sources of funding. Sectio n 41(2)(a) calls on Charitie s to provide records of:
“Entries showing from day to day all su ms of money received and expended by
the Charity and matters in respect of which receipts and expenditure takes
place”.

The Act makes certain conduct of Charitie s an offence which if convicted makes
one liable to imprisonment or with the op tion of a fine or both. They are mainly
offences committed under section 5(4), wh ich include, soliciting for money or
property for personal benefit. Section 11 al so criminalizes an act by any person
who knowingly or recklessly supplies fals e information. Such person could be
imprisoned if convicted, for a maximum p eriod of two years. Equally it is an
offence for any one to part with prop erty belonging to a charity without the
Commissioner’s approval. Section 49, makes it mandatory for charities to
produce their annual financial statement, fa ilure of which is an offence. Refusing
a public inspection of accounts of a char ity that one is a trustee or director of,
may constitute an offence under section 47. So also is it a criminal offence for a
person who has been disqualified by a court to become a trustee after
disqualification. Such conduct could attr act an imprisonment for a period not
exceeding six months. In all cases, probable criminal acts as stated in the cited
sections no proceedings will be instituted without the consent of the Director of
11 See generally a comparative study of the various NGO Bills carried out by the Legal Unit, August, 2004.

13

Public Prosecution (DPP), as contained in section 94. Section 92 provides
avenues for redress by any aggr ieved person or persons.

Regulating the activities of NGOs throws into sharp focus the perennial tension
between rights of individuals, peoples an d organizations, and the intervention by
the state into affairs of so ciety in the name of national security, public order,
public morality, health etc; in a democratic society the issue becomes when such
an intervention is legitimate and justifiable and when it is not.

3.3. NGO Regulation under African Regional
Human Rights Regime

There is some authority to suggest that the NGO Bill in question may in its
general character conform to resolut ions and practices of the African
Commission on Human and Peoples’ Rights , the regional human rights regime.
In a resolution passed on the co-operati on between the African Commission on
Human and Peoples’ Rights and NGOs having Observer Status with the
Commission, done in Banjul the Gambia, on 31
st October 1998, the latter
expressed concern that:

“Some of these NGOs on occasion, have been found to use their grants……for
purposes other than the promotion and protection of human rights. The fear,
therefore that some of them may have either changed their mandate or shifted
their focus to issues other than human rights become legitimate .”

Pursuant to this resolution, the African Commission at its 25 th Ordinary Session
held in Bujumbura, Burundi, from 26 April – 5
th May, 1999 decided on new
criteria for the granting of Observer Stat us to NGOs. In an annexed Chapter 1 to
the resolution, the Commission provided , among other things, the following:

Chapter 1 paragraph 2:

“All organizations applying for observer status with the African Commission
consequently, should:

(a) Have objectives and activities in consonance with the fundamental
principles and objectives of enun ciated in the OAU Charter and the
African Charter on Human and Peoples’ Rights;
(b) Be organizations working for human rights;
(c) Declare their financial resources.”

For purposes of this paper Sub- paragraph 3(b) is also instructive, it calls on
NGOs wanting an observer status with the Commission to provide:

“A statute, proof of its legal existence, a list of its members, its constituent
organs, its sources of funding, its last financial statement, as well as statement
of its activities .”

14

It goes on to demand from all prospective NGOs to pr ovide the secretariat of the
commission with an activity report and fu ture plans and field of activities, then
the Chapter goes on to state clearly that

“No application for Observer Status sh all be put forward for examination by
the commission without having been prev iously processed by the secretariat.”

In other words unless an NGO complies with these regulations, some of which
bears close resemblance to the NGO Bill in question, it will not be “registered”.

Part IV

4.0. Justifiable Legal Grounds for Restriction of Rights

What we have sought to demonstrate with the cited laws and practices of other
African states, and even that of UK, as a matured democratic state, and the
resolutions of the African Commission, is that States as parties to international
human right treaties may have justifiable grounds to regulate the activities of
NGOs or restrict rights including freedo m of association which appears to be the
right in question here, subject to certai n conditions. The justifiable grounds for
lawful restrictions are:

• In accordance with Article 4 of the International Bill of Rights, a state
party to the Covenant on Civil and Poli tical Rights could derogate from its
human rights obligations during time s of emergency which threatens the
life of a nation, once the state of emergency is proclaimed and the UN
Secretary General duly notified, then the obligation to protect certain
rights could be temporarily set aside.
12

• A state party may also when signing, ratifying, acceding to an
international human righ t treaty such a Bill of Rights, enter some
reservations.
13

The main justifiable grounds of restrictions on the otherwise exercise of
rights are:
• The interest of national security;
• Public Order ( Order publique);
• Public Safety;
12 There are certain rights that a state can never legally derogate from whatever the ci rcumstances, these rights are
contained in the International Covenant on Civil and Political Rights as: Article 6, on right to life; Article 7,
freedom from torture, inhuman and degrading treatment; Ar ticle 8, freedom from slavery , slave practices and slave
trade; Article 11 the right not to be imprisoned because of an inability to fulfill contractua l obligations; Article 15
criminalizing an offence retroactively; Article 16, equality before the law; and Article 18, freedom of thought,
conscience and religion.
13 A state when signing, ratifying, accepting, approving or acceding to a trea ty, may enter reservations on some
aspects or paragraphs of the treaty instrume nt. Again there are exceptions, and they are:
1. when prohibited by the treaty; 2: when only specific reservations are allowed; 3: when the reservation is
incompatible with the objective of the treaty.
15

• Protection of Public health;
• Protection of public morals, and
• Protection of rights of others.

With respect to the African human rights system, the only grounds for justifiable
restrictions of rights is provided for in Ar ticle 27(2), which states that the rights
contained in the Charter: “ Shall be exercised with due regard to the rights of
others, collective security, mo rality and common interest.” In sharp contrast to
the UN Bill of Rights the African Charter does not allow states to derogate from
their obligations even duri ng times of emergencies.

Thus, each time that a state promulgates a law or embarks upon a policy that is
restrictive of a right or even derogates from it, that state must show with
evidence and in accordance with due process, (including the courts system or
another competent judicial or quasi ju dicial body) that one or more of the
conditions stated above exist(s) so as to warrant the temporary restriction.
Accordingly, the state party, in this case, GoZ has to shoulder the burden of proof
that a right or sets of rights it is restricting at any point in time must be justified
on the grounds of one or more of the ab ove mentioned principles. In addition to
possible legal grounds for regulation, is sues of policy are raised as well.

4.1. Government–NGO Relations: Assigned Policy Reasons
for Control

Reasons assigned generally by governments for regulating NGOs:
• That they, the States, are sovereign an d have ultimate responsibility for
all that happens within their jurisdiction, and not NGOs;
• That they have been elected with a particular programme of action as
contained in party’s manifesto so NGOs have to compliment or fall in
line;
• That it is they, the government, that are accountable to the electorate and
not the NGOs;
• That since September 11 th 2001, national security has become the
imperative for tighter regulations and control in some African and
Western democratic countries becaus e of the belief that Al Qa’eda
network has infiltrated some organi zations purporting to be NGOs.

With respect to African states the following additional reasons assigned by
governments are:
• That multilateral and bilateral donors channel funds away from the
state to NGOs; it is viewed in terms of zero sum game of which what
ever goes to NGOs is a lost to the state and vice versa;
• That NGOs are increasingly behavi ng like “parallel governments”;
• That NGO work does not compliment government, but in some
instances willfully undermine government;

16

• That NGOs are loyal to their respec tive donors not to the government,
and some of the governments read into that relationship national
security implications.
14

The basis of some of these policies are ch allenged by some activists and scholars.
It is argued that the post-colonial African state, like its colonial predecessor, is
very distrustful of civil so ciety. The reason being that the post colonial state on
the morrow of political independence st arted embarking upon a twin project of
nation building and economic development in order, as the governments argued
then, to catch up with the developed co untries. In the process all forms of
pluralism were suppressed for fear that it will undermine the state building
project thereby making governments very assimilationist, and viewing with
suspicion any organization or associatio n within society that it did not fully
control. In the Cold War years may be fo r justifiable reasons there was always the
fear by the newly independent states that the state system has been infiltrated by
external forces through CSOs.

Objectively some of the governments saw su ch associations as centrifugal to the
new fragile postcolonial stat e. The concept of state security, it was argued, was
therefore overstretched to co ver all organizations and activities within society
that the state did not approve of. Human ri ghts organizations until as recently as
1990’s, were viewed as subversive and injuri ous to the state building project. In
sum, civil society and state relations in post colonial Africa have never been
cordial but riddled with mutual susp icion, albeit they have improved
considerably since the end of the Cold War
15.

Part V

5.0. Sections 9 and 17 Revisited: Probable Breach of
International Standards

Against the backdrop of the foregoing analys is of the country context, practices of
other African states, outlined principles, legal framework and policies, we revisit
sections 9 sub-section 4, and section 17.
Section 9(4) stipulates that: “ No foreign non-governmental organization shall
be registered if its sole or principa l objects involve or include issues of
governance.”

Section 17, states that: “ No local Non–governmental organization shall receive
foreign funding or donation to carry out activities invo lving or including issues
of governance .” According to section 2 of the in terpretative section, issues of
14 These views are synthesized from several secondary source s, monitoring of media that covers Africa, and also
from first hand discussions with some politicians in West Africa, East Africa and SADC Countries and missions
abroad.
15 For in depth understanding and insights into some of the issues raised by state –society relations in Africa and its
historical dynamics, see for example: Kofi Kumado and Nana K.A. Busia Jr, The Impact of Developments in
Eastern Europe on Democratization Pr ocess in Africa: An Exploratory Analysis in: Bard Andreassen and Theresa
Swinehart (eds) Human Rights in Developing Coun tries, Strasbourg, Engel Publishers, 1991.

17

governance “includes promotion and protection of human rights and political
governance issues”.

The interpretative section when it come s to operationalizing what constitutes
governance is not very helpful, as it presents us with a circular logic by defining
governance as political governance . Does it mean partisan politics? If that had
been used then the sect ion would have given rise to a different issue
16. Sections,
9(4) and 17, should be read together, and when read as such they appear to be
inconsistent with international human righ ts law. They could constitute a serious
hindrance to the realization of the Int ernational Bill of Rights and the related
rights in the African Charter on Huma n and Peoples’ Rights, which instruments
Zimbabwe has ratified.

In respect of section 9(4), a foreign NG O could argue that as an NGO, human
rights is neither its sole nor principal ob ject but only incidental or peripheral,
and therefore should be allo wed by the Council and Registrar to register in
accordance with section 10. Whereas this could be tried, it leaves prospective
NGOs with very thin legs to stand on. This give rise to a much more fundamental
question: given the definition of in ternational human rights law in our
contemporary world, is there any NGO wh ose operations or activities could not
be construed as amounting to the promot ion and/or protection of human rights?
For sometime now human rights norms an d standards have been held to be
interdependent and interrelated. Hence ec onomic, social and cultural rights are
no more rights than civil and political rights.

In Africa not only has there emerged a consensus about the inter-dependence of
the three generations of ri ghts, in fact they stand on an equal legal footing
17.
Under the African system the right to form an association is a human right as the
right to food and right to development. Meaning, that NGOs working for example
on: prevention of torture, cannot receive foreign funding just as those working in
food distribution and development sector s. Conceptually the African notion of
human rights is much more comprehensive and has a wider scope than the UN
or other human rights regional regimes.

As made crystally clear at the onset we, UN , object to the two said sections that
seek to refuse registration of certai n INGOs and also ban Local NGOs from
sourcing international funding, and thus poses the question:
what objective criteria will be used in defining the NGOs that are allowed to
operate and those that are not? A narro wer definition, or broader definition of
16 If the drafters had used the words partisan party politics or an NGOs overtly seeking state power, then they will
have been a legitimate grounds not for them to be registered as NGOs .But political governance is a notion that does
not lend itself to an agreeable definition so, the Bill does not help clarifying the notion of political governance.
17 In human rights parlance the first generational rights, refers to the type of rights contained in the International
Covenant on Civil and Political Rights, like right to assembly, association , expression, to vote and be voted for, etc.
Under the African Charter these sets of rights are provided for in Articles 2 to 13. The Second Generation of rights
are the Economic, Social and Cultural Ri ghts, such as right to food, education, housing, work, etc. These rights
provided for by articles 14 to 18. There are also what are termed third generational or solidarity rights, contained in
articles 19 to 24, they are rights exercised collectively by peoples’, it includes rights such as the right to self
determination, to good environment, development, etc.To say that they stand on an equal legal footing means that
they are justiciable and can as such become the subject of litigation at a judicial or quasi-judicial body.
18

human rights, as explained above. Is the Council or Registrar going to adopts a
narrow concept of human rights as under the ICCPR or the much broader
definition as provided for by the African human rights system.

These fundamental questions rem ain unaddressed, they are:

• Do local NGOs have a right to rece ive foreign funding or donation for
activities that are genuinely geared towards the promotion and protection
of human rights in their own countries?

• Do international NGOs working in mainly and solely and principally on
human rights have the right to operate in countries other than their own?

• Can NGOs successfully function without the assistance of international
donors. In other words can the Gove rnment or the private sector be
expected to make meaningful financial contributions for this kind of work
given the financial constraints bedeviling both sectors.

We are all too aware of the fact that GoZ is not saying that NGOs cannot operate
within its jurisdiction, what it is sayi ng is that INGOs whose work is mainly
about human rights cannot, and local NGOs can operate only when they do not
source funding from foreign sources.

To answer these questions adequately, we examine in greater detail the legal
status of human rights NGOs in international law.

5.1. The Status of Human Righ ts NGOs in International Law

Admittedly, the traditional view of international law made it the preserve of
sovereign states, and as such NGOs had no “standing” or legal recognition.
However, there has been significant evol ution in human rights law since 1945,
with NGOs and even individual person s, becoming equally recognizable legal
actors in international law.

In undertaking a legal analysis of NGOs in international law and thus th
e
implications of sections 9(4) and 17, it is important to draw on our identified
framework of legal sources and standa rds within which we will situate our
analysis and critique. We here draw on the UN promulgated norms on human
rights and legal norms and practices emanatin g from the African regional human
rights system.

In Article 71 the UN Charter accords reco gnition to the work of NGOs within the
UN system. It provides clearly that the Economic and Social Council (ECOSOC)
makes a suitable arrangement of consulta tion with NGOs. This relationship was
re-affirmed in resolution 1296 (XLIV) of 23
rd May 1968. Again after a thorough
review in 1996, the Council adopted yet another resolution that year, 1996/31
which created varying catego ries and status for NGOs. NGOs role in the UN

19

system is so important that they, the NGOs, have participated actively in special
sessions of the General Assembly. Meaning as far back as 1945, the role of NGOs
within the UN normative legal system had been recognized. The practices and
un-codified conventions of the UN are such that NGOs are consulted by both
Charter and Treaty based bodies
18. UN agencies such UNICEF, WHO, UNFPA,
UNIDO, have established operational and working relations with NGOs. In some
cases like UNDP where there is no formal consultative relationship between itself
and the NGOs, there is often a Memorand um of Understanding to cooperate in
specific areas
19. In more recent times, in 1993 , during the UN Conference on
Human Rights in Vienna, th e assembled states, NGOs, mu lti-lateral agencies and
other inter-governmental bodies adopted a declaration stating clearly in no
uncertain terms the important role th at human rights NGOs play in the
realization of human rights. The meetin g therefore re-affirmed the commitment
of the UN and its member st ates to create an enabling climate for NGOs who are
genuinely working in the area of human ri ghts to enjoy the protection of all the
rights enunciated in the International Bill of Rights and the laws of the respective
member states.
20

In a UN General Assembly meeting held in December 1998, the Assembly of
member states adopted a resolution to de fend human rights defenders entitled:
“Declaration on the Right and Respon sibility of Individuals, Groups, and
Organs of Society to promote and protec t universally recognized human rights
and fundamental freedoms” . The said declaration, in its preamble, recognized
the role that human rights associations are playing to promote the respect for
human rights at both national and in ternational levels. Article 1 of the
declaration confers on NGOs and individual s, whether in association with others
or as individuals, to promote and to strive for the protection and realization of
human rights and fundamental freedoms at national and international levels.
Article 7 accords the NGOs the right to advocate for human rights. Article 8
provides clearly that human rights NGOs should not be discriminated against in
their access to government and the conduc t of their affairs. Article 12(2) imposes
a duty upon the States to ensure the protection of human rights defenders
against “de facto or de jure adverse discrimination, or any other arbitrary
action as a consequence of his or her legi timate exercise of rights referred to in
the Declaration.”

In view of the stipulations of Section 17 of the NGO Bill, it is worth calling
attention to provisions of Article 13 of the Declaration, it provides that:

18 Charter based bodies are human rights bodies created by the UN Charter of 1945, such as the Human Rights
Commission, the Sub-commission on Prevention of Discrimination and Protection of Minorities; and the treaty
bodies are those that have come into existence as a resu lt of treaties signed by member states of the UN, that
include, the Human rights Committee created to supervise the implementation of the treaty on International
Covenant on Civil and Political Rights, the Committee of the Rights of Children also created under the Convention
on the Rights of the Child, 1999, etc.
19 see Report of the Secretary-General, on Arrangements an d Practices for Interaction of NGOs in all activities of
the UN system, item 58 provisional agenda, UN Doc,A/53/170 1998.
20 see the Vienna Declaration and Programme of Action, UN.Doc A/Conf.157/24(1993).
20

“Everyone has the right, individually and in association with others, to solicit,
receive and utilize resources for express purpose of promoting and protecting
human rights and fundamental freedoms through peaceful means…”

In so far as it could be shown that th e purpose is genuinely for human rights
promotion then, the said association of pe ople do have a right to seek funding
without which their objective of workin g for the improvement of human rights
cannot be realized.

Specific rights of the International Covena nt on Civil and Political Rights may be
violated, they are: Article 22, which guarantees freedom of association with
others, and 22(1), provides clearly that: “ No restrictions may be placed on the
exercise of the right other than those prescribed by law and which are
necessary in a democratic so ciety and in the interest of national security, public
safety, public order(ordre publique), protection of rights and freedoms of
others.”

The implication here is that the justification that GoZ may have in restricting
freedom of association, such as denying the local human rights NGOs access to
foreign funding, or denying INGOs the righ t of registration, is to show that one
or several of the justifiable grounds stated in the article exists to restrict the
right. Until that can be shown, it may constitute a prima facie violation. And it is
only those NGOs that act contrary to the justifiable grounds of restrictions that
need to be restricted but not all organization s in that sector lest it may give rise
to a claim of discrimination.

The other rights likely to be violated therefore should the Bill be passed is
common article 2
21, which calls upon state partie s like GoZ to undertake to
ensure that all persons within their jurisdiction do not suffer any form of
discrimination on any grounds what so ever such as opinion or national origin.
Human rights and political governance NGOs may argue that because of the
opinion they hold on issues of human ri ghts and political governance they are
being discriminated against co ntrary to the provisions common article 2. In the
same way also INGOs could argue that in spite international and universal
character of human rights law, they, as international NGOs, are being denied
registration as prospective human rights NGOs on grounds of their national
origin, thus discrimination.
5.2. The Status of NGOs under the African Human Rights System

Under the African system, the Africa n Commission on Human and Peoples’
Rights, which is the body entrusted with implementing human rights in Africa,
has developed an institutionalized relationship with human rights NGOs where it
meets the NGOs every 6 months, two or so days prior to the statutory sessions of
21 Mostly articles which deal with the principle of non disc rimination in human rights treaties are inserted in article
2, so human rights scholars often talk about common article 2, to signify non discrimination principle on the other
side of equality

21

the Commission. More than that, Article 45 (1) (C) 22 of the African Charter on
Human and Peoples’ Rights has been co nstrued by the Commission to mean a
legal relationship with NGOs, thereby giving NGOs a legal standing. So also have
there been several resolutions
23 by the Commission on how to cooperate with
NGOs. The Commission’s Rules of Procedur e, Rule 75, states that NGOs granted
Observer Status by the Commission, may part icipate in the public sessions of the
Commission. In terms of Rule 76, the Co mmission may consult NGOs directly or
indirectly. During its 11
th Ordinary Session held in Tu nis, Tunisia, in 1992, the
Commission reiterated its desire to c ooperate with African NGOs in the
promotion and protection of human rights on the continent. Further to that, in
its Mauritius Plan of Action for the peri od between 1996 and 2001, adopted at its
20
th Session in Mauritius, the Commission de cided to work with NGOs in Africa
so as to establish appropriate mechanis ms for the promotion and protection of
human rights in Africa.

Pursuant to the implementation of UN Declaration on Rights of Human Rights
Defenders in Africa, the African Commission at its 35
th Ordinary Session in
Banjul, The Gambia, between 21
st May and 4 th June 2004, resolved on the
protection of human rights defenders an d also put forward a new mechanism for
their full protection. The resolution fu rther called upon member states to:

“ …to ensure the protection of huma n rights defenders and to include
information on measures taken to prot ect human rights defenders in their
periodic reports”

Article 62 of the African Charter makes it mandatory for all state parties, such as
GoZ, to present every two years legislat ive and other measures they have taken
with the view to giving ef fect to the rights and freedoms guaranteed by the
Charter. According to the Commission’s guidelines, when state parties are
reporting on Article 10, (which de als with freedom of association) they should,
among other requirements, “provide information about the status of
organizations (NGOs) working for huma n rights including efforts made for
their establishment and improvement”
24 .

Article 10 of the African Charter may th erefore be violated should the NGO Bill
be passed. It provides that: “ Every Individual shall have the right to free
association provided that he abides by the law .
25” In March 1992, the African
22 Article 45 (1)(C) provides that: The functions of the Commission shall be:
1. To promote human and Peoples Rights and in particular:
(c) Co-operate with other African and international institutions concerned with the promotion of human and
peoples rights.
23 Under the African Human rights system because of the absence of court, it is resolutions and comments and other
principal statements which are the au thoritative sources for interpretation of articles of the Charter. “case-law”.
24 Guidelines on State Reporting drawn up at its Fourth Ordinary Session of the African Commission on Human and
Peoples’ Rights held in Cairo, Egypt, 17-26 October 1988.
25 The law here is the margin appreciation or ought to be as described above. Other scholars contend that this could
be a claw back clause, a clause which restricts or negates the effect of a right by over –qualifying it through such
phrases as “conditions laid down by law”, “Prescribed by law”. See for example Evelyn A. Ankumah, The African
Commission on Human and Peoples’ Rights: Practice and Procedures, Martinus Nijhoff Publishers, 1996. To judge
whether such a clause is one within the margin of appreciation or a claw back clause depends on the entire context
of the law.
22

Commission passed a resolution elaborating on the scope of the right; it laid
down the principle that state laws coul d not be used to abridge or limit the
exercise of the right
26 . In other words except GoZ can show cause that the
association of NGOs will be injurious to the right of others or national security or
public order, then no restriction such as non regis tration of INGOs working
mainly on human rights, or denial of foreign funding to local human rights NGOs
may not be justified. Since su ch a law will , it is submitted, amount to limitation
or abridgement.
The non-discrimination princi ple as contained in Article 2, may also be violated
if Sections 9(4) and 17 were to be pa ssed in their current draft for the same
reasons assigned under common Article 2 of the International Covenant on Civil
and Political Rights.

5.3. Other African Normative Sources

There are other normative sources in addi tion to African human right system
that guarantee human rights protection an d more importantly, in respect of the
issue under scrutiny, recognize the uninhi bited role of NGOs in realizing the
promotion of human rights in the continent.

The African Committee of Experts on Rights and Welfare of the Child, the
implementing body created under the African Charter on Rights and Welfare of
the Child, which entered into force in 2 003, has in its Rule 34 of its Rules of
Procedure, accorded NGOs the right to pa rticipate in sessions of the Committee,
including sessions to interpret the pr ovisions of the Children’s Charter.

In the preamble to the amended treaty of the Southern African Development
Community, of 1992, it provides in paragr aph 8, that people in the region shall
be involved in the process development and integration, particularly through “
the guarantee for democratic rights, and ob servance of human rights and rule of
law.” Article (4 c) enjoins member states to act in accordance with principles of
human rights, amongst others. Finally but rather more specifically, Article 23
states clearly that SADC countries in pu rsuance of their objectives shall involve
the people of the SADC region as stakehol ders and Article3 (b) and 3(c), defines
key stakeholders to include: civil soci ety and non-governmental organizations ,
respectively.

Under NEPAD 2001, African member states are called upon in paragraph 49 and
79, to place a lot of premium on human rights protection in their development
and governance programmes.

The Constitutive Act of the African Union, 2002, states its objectives in Article 3,
and paragraph (h) is explicit in providin g that: the objective of the Union is to
“promote and protect human and peoples rights…” . The AU passed a resolution
26 Resolution on the Right to freedom of association of ordinary session of the African Commission on Human and
Peoples Rights, 29 th March 1992, Tunis, Tunisia, published in Participation of Non Governmental Organizations
(NGOs) in the work of the African Commission on Human and Peoples Rights, Compilation of Documents, ISJ,
Geneva, 1994, p40.
23

in July 2004 according recognition for creation of an Economic and Social
Council (ECOSOC) constituted by civi l society organizations and social
movements in Africa to play a pivotal role in many sectors including human
rights promotion and protection.

The African –Caribbean-Pacific –European Union , thus the ACP-EU,
Partnership –Agreement, signed in Cotonou, Benin, 2000, in its preamble makes
references to the UN Charter, and the numerous human rights conventions and
regional human rights treaties, such as the African Charter on Human an
d
Peoples ’ rights, as broad normative framework for the partnership. The treaty
gives place of prominence to the role of non state actors, and call upon member
states, in Article 4, to work with them, in a complimentary manner, when
determining their development strategies and principles. Article 8(7) makes
representatives of civil society organizati ons as actors in a political dialogue
process that the signatories to the treaty are to engage in.

Since 1945, human rights law has incrementally kept traditional concept of
sovereignty of state at bay; states cannot invoke “internal affairs” or domestic
jurisdiction when it co mes to international human rights law to prevent
international scrutiny of their complian ce or otherwise the standards contained
therein. The question sometimes as to the role of other sovereign states in the
protection of human rights in states
27 other than their own remains a difficult
but relevant one.

Part VI

6.0. Administrative Procedures and Principles of Rule of Law

Cardinal principles of rule of law include: citizens’ ability to predict the law with
reasonable certainty; the lawful exercise of discretionary powers vested in the
executive; and the expeditious delivery of justice, among others.

27Admittedly this is a very complex legal issue that does no t lend itself to any easy solution. However it is very clear
under Chapter 7 of the UN Charter that anytime acts of a state constitute or is likely to constitute a threat to regional
peace and security then, the UN member states through the Security Council could act collectively to restore
international peace and security. This ma y imply the use of force and therefore not necessar ily a peacetime situation
as envisaged, but nevertheless it indirectly establishes a principle of collective responsibility of states to prevent
human rights violations in member states based on the premise that systematic human rights violations result in
violent conflicts and thus injurious to regional peace and security. The danger here is selectivity by hegemonic
powers in international relations and therefore the likelihood of political exploitation of this principle against weak
peripheral states. This can make it a very dangerous and risky legal concept to espouse, useful as it could be
elsewhere. Again, the concept of inter- state complaints, where one state can comp lain that rights in the Charter are
not being complied with by another member state suggests (as is provided for in the African Charter on Human and
Peoples’ Rights, Article. 47 ) that a state party when they have good reasons to believe that another is not living up
to its Charter obligations may complain to a treaty supervisor y body. The inference to be made of this is that states
have an interest in another state’s human rights situation, and thus a very loose sense of collective responsibility of
states in the protection of rights in jurisdictions other than their own. For a discussion of some aspects of these
complex issues and their implications, see Nana K. A. Busia, Jr,
Towards A Framework for The Protection of Academic Freedom i n Africa in: State of Academic Freedom in
Africa, CODESRIA Book Series, 1995.

24

Although UN‘s principal concern with the Bill has to do with the sections
indicated and their probable inconsistenc y with international human rights law,
we are also concerned that depending upon how some of the administrative
procedures are handled, it may have implications for the general principles of
rule of law or even be seen to claw back on some rights.
Sections 9 and 10, provides for the regi stration of NGOs and should be read
together with the transitional provisio ns. Within 30 days of lodging an
application the NGO has to publish a notice which contains prescribed
information in a national news paper, and any person from the general public
may lodge an objection with the registrar within 60 days setting out the grounds
on which the objections are made. Th e Registrar in turn will forward the
application together with the received ob jections to the NGO Council, which may
or may not approve, although if rejected applicant will be notified, there is no
time frame spelt out. There is lack of certainty and a fear that such an
administrative procedure could lead to misunderstandings.

The transitional provisions of the Bill st ates in section 32 that only NGOs who
are registered under the PVO Act shall be deemed to have registered. The issue
becomes those who regis tered under the different legal regimes at the time that it
was lawful to do so should not be made to wait ad ifinitum thus suffering unduly
or being denied registration simpliciter. It is recommended that each
organization once they comply should be made to register accordingly.
Section 27, which deals with evidence and presumptions in prosecution of
certain criminal offences un der the Bill, is drafted in a way that contravenes the
established principles of fair trial: once the individual or organization is to
shoulder the burden of proof, an appa rent departure from the presumption of
innocence rule. Related to that is the lack of clarity of the appeal procedure which
runs through sections 24 an d 29. Although there is an inherent power of judicial
review in respect of decisions made by th e minister, although there is an inherent
power of judicial review of common law, it is proposed th at it is stated clearly in
the Bill for the avoidance of any doubt.

Part VII

7.0. The Test of Consistency and Critique

It was laid out at the onset of this paper that the state has a right to regulate the
activities of all entities, including NGOs within its jurisdiction, and this it must
do in accordance with the law, and the law is the domestic or municipal law.
Once a state can show that the formation of any association purporting to be a
human rights NGO is conducting itself in a way that is at variance with national
security, public safety, morality and rights of others, then in a democratic society,
and can be proven in accordance with due process, then it can intervene to
restrict rights. But the state must do so in accordance with certain laid down
principles for it to be justified.

Does this therefore make sections 9 (4) and 17 justifiable? So far no evidence has
been led to show that the entire NGOs in the area of human rights and political
25

governance, who are sourcing funding from foreign donor organizations have
conducted them selves in a manner that contravenes the laws of the state. And
even if some of the NGOs, and not all, have contravened the law; the Bil
l in
question is too broad in scope and all encompassing to the extent that both
prospective and existing NGOs would be affected by it. It may therefore, in a
democratic society, appear unfair and there is a test that exists to find out how
fair or otherwise such laws promulga ted by the state should conform to
international human rights law. In other words, when can municipal law
regulating and restricting rights available at the international level be said to be
justified or consistent with human rights law.
In the case of Kukutia de Rumbun v. Attorney-General, the Court of Appeal of
Tanzania tried to answer this question when it ruled that any such domestic law
must fulfill three conditions before it can be regarded as lawf ully restrictive or
rights, and thus in acco rdance with international human rights law:

The conditions are:
• The law should make adequate safeguards against arbitrary decisions
that may be made by those entrusted with the enforcement of that law.
• The said law should not offend the proportionality test or reasonableness
test – that is, the law should not be too broadly drafted so as to net the
innocent as well as the targeted o ffenders. In other words, the means
employed by the government to implement matters in public interest
should be no more than is reasonab ly necessary to achieve a legitimate
objective.
• The law in question should not offend the principles of natural justice.

And it is for the state to prove on the ba lance of probabilities that the said law
fulfils the three conditions.
28

Part VIII

8.0. Overall Implications

Should the NGO Bill be passed in its current formulation, without addressing the
specific concerns the UN has expressed (9(4), 17), the implications are several,
notably:

• Government of Zimbabwe will be in prima facie breach of its international
human rights obligations that binds it as of custom and treaty. Member
states of the UN are bound by the Un iversal Declaration of Human Rights
1948, (UDHR) as of customary intern ational law. GoZ will also be in
breach of its treaty obligations as co ntained in the UN Covenant on Civil
and Political Rights, 1976, which it ratified in 1991, and the African Charter
on Human and Peoples’ Rights, ratified in 1995. Finally, GoZ will be in
violation of the various resolutions and declarations cited above in part
three.
28 Kukutia Ole Rumbun v A.G, Civil Appeal No. 32/1992.

26

• GoZ may be acting contrary to the in tent and position espoused in NEPAD
instrument 2001, the Constitutive Ac t of the AU, 2002, and SADC treaty
1992, all of which make a strong li nkage between human rights, regional
security and economic development.

• GoZ will be acting contrary to the UN General Assembly decision 52/453
of 19 December 1997, which mandated the Secretary –General to prepare
and circulate a report on: “Strengthening the UN System, through
arrangements and practices for the interaction of non-governmental
organizations in all activities of the UN System .” Pursuant to that SG’s
report was published on 10
th July 1998, 29 and the report demonstrated
beyond any doubt UN‘s commitment to “seek the participation and
contribution of NGOs in its work.” The UN in Zimbabwe work with NGOs
as partners and/or legitimate stakehol ders in national development and as
implementing agents for some of UN in country projects.

Even if a narrow definition of human righ ts is adopted, it means UNICEF,
UNIFEM, OHCHR, UNHCR as UN agencies will be in breach of the law
were they to fund projects or engage the services of, or give any donation
to local NGOs, and to an international NGO whose principal or sole object
is to work on human rights and political governance. Should the said
sections be given a broader interpretati on of human rights in the sense of
three generations
30 of rights as provided for in the African Charter then
UNAIDs, WFP, ILO, may all be equally affected because they will be giving
grants or donations to organizations working for the right to health, food,
and work, respectively.

• Several NGOs will have to close down for lack of funding. If a broader
definition of human rights and political governance NGOs are adopted
then most NGOs will be affected. As stated elsewhere under the African
human rights system, human rights ha ve a much wider definition, which
means that NGOs are working in the sectors that relate to the three
generations of rights. It is also inconc eivable to expect the NGOs to receive
funding from GoZ and/or private se ctor given the current economic
challenges.

• Donor countries will be acting in contravention of the Bill should they
knowingly give donation or funding to local NGOs working in the area of
human rights and political governance. The difficulty for donors though is
the absence of an objective definit ion of what constitutes political
governance, they cannot develop criter ia for funding. The Bill as stated
above does not define the concept. No r does it operationalize human rights
adequately; again the questi on will arise as to whether narrow definition of
human rights is that which is to be adopted or a much broader definition
for purposes of funding.
29 A/53/150. 30 See footnote 12 for definition of three generations of human rights.
27

• The Bill may create a perception that GoZ wants to narrow the democratic
space because of the forthcoming parl iamentary elections. This may not
augur well for the country’s image internationally, and invariably impacts
adversely on bilateral and multilateral assistance.

Part IX

9.0. Summary of Key Issues and Conclusions

The objective of this paper was stated clearly at the outset: as a critical inquiry
into the consistency or otherwise of the NGO Bill with international human
rights law and standards as expressed th rough the International Bill of Rights
and the related regional human rights regi mes, in the case of Africa, the African
Charter on Human and Peoples’ Rights. In order to present a persuasive case, we
shed considerable light on the national cont ext so as to enable us appreciate the
passion that has shrouded the discussions on the Bill. Polarization, distrust and
absence of a dialogue em erged as dominant charac teristics of contemporary
Zimbabwean society, thereby deepening th e suspicion about the actual intent of
the Bill.

Thereafter, we scrutinized the Bill on sectio n by section basis; we submitted that
with the possible exception of section 9(4) and 17, the Bill in its totality may not
be inconsistent with intern ational human rights law. We invoked an established
principle in international human rights la w to sustain our contention: that states
do have a legitimate right, sometimes duty, to regulate all entities, including
NGOs, whether local or foreign in origin, and such actions are within the scope of
sovereign states in so far as it can be demonstrated that it is regulating with law
and that law is within the “margin of appreciation” that international law
confers on it, then the action is prima-facie lawful.

Having endeavoured to establish the lega lity of regulating NGOs generally, we
surveyed the laws and practices of other African states and what came out clearly
was that the NGO Bill of Zimbabwe bear s close resemblance to that of other
African states and in fact is not dissimil ar to that of some matured democratic
states. This view not with standing, we noted that none of the states examined
had in their laws stipulations such as sections 9(4) and 17.

We also sounded a word of caution that the administrative procedures contained
in the Bill, if not well managed, could be come a hindrance in the exercise of the
right of forming association, and could as well have implications for established
principles of rule of law. We further ob served that the specific formulation of
laws regulating NGOs and th eir varying details from state to state is informed by
political culture, legal traditions, and stat e-society relations in at given phase in a
country’s history. Attention was called to the justifiable grounds that states
lawfully have in restricting human rights or temporarily suspending the same; we
quickly pointed out the exceptio ns, i.e. rights that are to be respected at all times,
including times of national emergency.
28

Related to this we looked at the main policy reasons governments assign for
controlling NGOs. Equally we looked at th e rebuttal of some of the reasons from
point of view of NGOs.
Then, we revisited sections 9(4) and 17, examining the sections in greater detail
by trying to show the implications were it to pass as part of the Act. In view of the
stipulations of the two sections we attempted to address three fundamental
questions:

• Do local NGOs have a right to rece ive foreign funding or donation for
activities geared to wards the promotio n and protection of human rights in
their own countries?
• Do international NGOs working on is sues that include human rights and
governance have a right to operate in countries other than their own? and
• Can local NGOs successfully function in their work on human rights
realization without donor assistance?

In trying to address these issues we un dertook a comprehensive legal analysis of
human rights NGOs and international law relying on legal framework of the UN
and the African human rights systems. Se veral authorities and legitimate state
practices were cited with th e view to establishing that GoZ as a party to UN
Conventions on human rights and a member state, and also a party to the African
Charter would appear to be in breach were se ctions 9(4) and 17 to pass as an Act.
The two sections will manifestly hinder the exercise of the right to freedom of
association and would be a hindrance in the work of human right defenders
contrary to the cited authorities that bind GoZ.

A conclusion to be inferred is that local human rights NGOs in so far as they are
advocating for human rights within the law should, in accordance with
international human rights law, be able to source foreign funding. Equally,
INGOs that are likely to operate within the law or have not shown any cause that
it will not operate within the law as in ternationally defined in the previous
sections of this pape r should be registered.

Finally, we subjected, further to the argume nts above, the two sections to the test
laid down in the ratio in the respected and often cited case of Tanzanian Court of
Appeal. Granting that the state, in this case GoZ, could legislate to restrict rights
in the name of the cited principles of public interest. Given the wide scope of
sections 9(4) and 17 and the sections are too broad thereby the danger of
lumping together innocent NGOs and the “targeted offender”. It is seemingly
disproportional to the problem that it s eeks to address. It also confers on the
executive unfettered discretionary powers in the sense of the definition of what is
a human rights and political governance NGO. In sum human rights NGOs will
not be able to function.

We called attention to the overall implications of the Bill, were it to pass into an
Act, for GoZ, donors, NGOs and UN itse lf: it would mean that GoZ will be in
breach of some of its international obli gations, which in turn may not augur well

29

for the country’s image internationally, a fact that could also impact adversely on
multilateral and bilateral assistance. Do nors cannot give funding to local NGOs
working in the areas of governance and human rights. Most NGOs would cease to
exist for want of funding. UN country operations in terms of working with NGOs
in certain sectors as indicated may be impaired.

Consequently, UN should use its good offices to get the two sections in question
redrafted to reflect our concerns. This calls for a strategy. To that we turn.

Part X

10.0. Recommendations

Preliminary: Although the NGO Bill is on ly a gazetted Bill, but not an Act of
parliament as yet and therefore not a law in force at this stage, it is nevertheless
proposed that it is better to negotiate now with GoZ, ra ther than wait for it to
pass, after which the process of repealing will itself be more difficult if not
impossible. The following are recommended:

• That the UN should take as its star ting point an acknowledgement of the
right of the government to legislate on the subject matter;

• That the UN should show an unders tanding of two distinct but related
issues: concerns expressed about the heavy bureaucratic/administrative
demands placed on NGOs generally by some sections of the Bill and
probable illegality ( in terms of international human rights law) of
Sections 9(4) and 17.

• That at the first instance the UN sh ould impress upon GoZ that it could
facilitate a process of NGO self regul ation working with NANGO to jointly
produce an NGO Code of Conduct with in 6 months an d/or alternative
draft that addresses mutu al concerns and interest;

• That UN should facilitate a dialogue with donor countries on good donor
ship to help address some of the concerns and perceptions of GoZ as
regards national security and fundin g of NGOs seemingly seeking state
power or involved in partisan part polit ical activities, as often stated by
GoZ;

• That UN should work with all the stakeholders to present an alternative
draft which narrows the scope of th e two sections and yet take into
consideration the concerns and percepti on of GoZ and principles of law;

• That should the above approach no t succeed for whatever reason, the
minimum that the UN has to insist u pon is the striking out of the Bill
sections 9(4) and 17, and draw attentio n of GOZ to the implications of of
not doing that.
30