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Draft NGO Amendment Bill, Revised 2020

Ref: No.
William Faulkner
Area 15/175
Ntcheu Streat, P.O. Box 30636,
Lilongwe
Revised by: Alan Chinula (SC)

21st December, 2020

DRAFT NON-GOVERMENTAL ORGANIZATIONS (AMENDMEND) BILL, REVISED 20202

NON-GOVERMENTAL ORGANISATIONS (AMENDMEND) BILL, 2020

MEMORUNDUM

This Bill seeks to amend the Non-Governmental Organizations Act (Cap.
5:05) by modernizing the Act in order to comply with constitutional standards,
improving efficiencies in the operations of the responsible institution and
strengthen the role that the institution plays in regulating Non-Governmental
Organizations in Malawi.

The Bill seeks to achieve this by removing the reference to a non-statutory
established institution, the Council for Non-Governmental Organization in Malawi
(CONGOMA) and allowing the membership of that Organization to become
voluntary.
In order to entrench the role that the Boar undertakes in regulating the NGO
sector, the Bill proposes that the Board should be renamed. “Regulatory
Authority”.

The Bill further enhances the penalties that were last decided upon the
time of enacting the Bill in 2001.3

NON-GOVERMENTAL ORGANIZATIONS (AMENDMEND) BILL, 2020

ARRANGEMENT OF SECTIONS

SECTION

1. Short title

2. Amendment of s. 2 of Cap. 5:05

3. Replacement of s. 7 of the principal Act

4. Amendment of s. 9 of the principal Act

5. Amendment of s.14 of the principal Act

6. Amendment of s.18 of the principal Act

7. Repeal of s. 20 of the principal Act

8. Amendment of s. 22 of the principal Act

9. Repeal of Part VII of the principal Act

10. Repeal of Part VIII of the principal Act

11. Replacement of s. 27 of the principal Act

12. Amendment of s. 28 of the principal Act

13. Amendment of s. 31 of the principal Act

14. Amendment of s. 32 of the principal Act

15. Amendment of s. 34 of the principal Act

16. Amendment of s. 35 of the principal Act.4

A BILL

entitled

An Act to amend the Non-Governmental Organizations Act

ENACTED by the Parliament of Malawi as follows –

Short title 1. This Act may be cited as Non-Governmental

Organizations (Amendment) Act, 2020

Amendment of

s. 2 of Cap. 5:05 2. Section 2 of the Non-Governmental Organizations
Act (hereinafter referred as the “principal Act”) is
amended by –

(a)deleting the definition of “Board” and replacing it
with the following new definition –
“Authority” means the Non-Governmental
Organizations Regulatory Authority established
under section 6;” and replacing the word “Board”
anywhere it appears in the Act with the word,
“Authority”;

(b)deleting the definition of “designated NGO
Coordinating body”;

(c)replacing the words, “NGO Coordinating Body”;
anywhere they appear in the Act with the word,
“Authority”; and

(d)deleting the definition of “NGO” and replacing it
with the following new definition –“NGO” means Non-Governmental Organization or a Faith Based Organization constituted for the purpose of a public benefit to which the provisions of the Act
are applicable under section 4.5

Replacement of s.7
of the principal Act 3. Section 7 of the principal Act is repealed and
replaced with the following new section –

“Composition of 7 – (1) The Authority shall consist of eleven
the Board members who shall be citizens of

Malawi and appointed by the Minister,
as follows –

(a) a chairperson and five other members,
nominated by relevant professional and
other bodies;
Provided that two members shall be
nominated by an NGO Coordinating with
membership open at national level as long as
the two members are not in active service in
any institution regulated under this Act.

(b) the following ex officio members –

(i) the Secretary responsible for socio
welfare;

(ii) the Solicitor General;

(iii) the Secretary to the Treasury; and

(iv) the Secretary responsible for Local
Government.

(2) A member of the Authority, other than an exofficio member, shall not, by reason only of his
appointment as a member of the Authority, be
deemed to be an employee in the public service.

(3) The Minister shall publish names of all members of
the Authority, as first constituted, and every
change in the membership, in the Gazette.6

(4) A member of the Authority, other than an exofficio member, shall not be qualified for
appointment as a member of the Authority, if he –

(a) does not possess –

(i) a minimum educational of a
bachelor’s degree or its
equivalent obtained from a
reputable educational institution
recognized or accredited under
the National Council of Higher
Education Act; and

(ii) expertise and experience in a
field relevant to the functions and
responsibilities of the Authority;

(b) holds a political office or is an active
politician or is an active member of a
political party;

(c) is an officer, member or employee in a
public service.

(5) In making appointments under this
section, the Minister shall –

(a) ensure that at least half of the
appointees are women; and

(b) take into account the provisions of the
Disability Act”.

Amendment of s.9 of the
principal Act 4. The principal Act is amended in section 9 by
deleting the words, “in consultation with
CONGOMA” and replacing them with the
word, “in accordance with this Act”.

Amendment of s.14 of
the principal Act 5. Section 14 of the principal Act is amended by
repealing subsection (1) and re-numbering the
the remaining subsections in their numerical
order.

Amendment of s.18 of the
principal Act 6. The principal Act is amended in section 18 by7
repealing of section 18(2) of the principal Act
and replacing it with the following new
subsections as subsections 18(2) and 18(3),respectively-

“(2) Without derogating from generality of
subsection (1), the Authority shall-

(a) register NGOs incorporating a database
and a public documentation center in
respect of NGOs incorporated or operating
within Malawi, and maintain registers,
including any as may relate to exempt
organizations and international NGOs;

(b) consider and adjudicate upon applications
for registration by NGOs and ensure due
compliance by the NGOs with the
prescriptions under this Act;

(c) withhold, suspend of cancel registration of
an NGO in the event of failure or refusal to
comply with the provisions of this Act;

(d) promote transparency and accountability
for NGOs to the beneficiaries and the
Authority;

(e) provide free access to the NGO register,
database, records and returns of NGOs
lodged in public documentation center;

(f) inspect NGOs for compliance with this Act
and any other written law;

(g) issue or revoke certificates issued under this
Act;

(h) determine, from time to time, the incentives
applicable to NGOs under this Act or any
other written law and make the necessary
recommendations to the Minister;

(i) commission surveys, enquiries and research,
with a view to advising the Government
with regard to any matter affecting NGOs;

(j) appoint a suitably qualified person as
Registrar and any other members of staff as
it may deem necessary for the discharge of
the duties and functions of the Authority;
and8

(k) do all such things as are necessary or
incidental or conductive to be the better
carrying out of the objects and functions of
the Authority specified in this Act.

(3) The authority shall have powers to –

(a) withhold, suspend or cancel registration
of an NGO in the event of failure or
refusal to comply with the provisions of
this Act;

(b) inspect NGOs for compliance with this
Act and any other written laws;

(c) issue or revoke certificate of registration;

(d) commission surveys, enquiries and
research, with a view to advising the
Government with regard to any matter
affecting NGOs;

(e) appoint a suitably qualified person as
Registrar and other members of staff as
it may deem necessary for the
discharge of duties and functions of the
authority;

(f) impose administrative penalties on the
organizations regulated under this Act;
and

(g) exercise such powers as are necessary
or incidental or conducive to the better
carrying out of the objects and
functions of the Authority specified in
this Act.”.

Repeal of s.20 of the principal

Act

7. Section 20(3) (a)(v) of the Act is hereby
repealed.
Amendment of s.22 of the
principal Act

8. The principal Act is amended in section 22
as follows-

(a) by inserting the words, “- (1)“ before the
words, “Every registered NGO” at the
beginning in the section; and9

(b) inserting a new subsection (2) as follows –

“(2) The Authority shall have power to verify
information submitted in accordance with
subsection (1) and impose any measures it
deems fit where the authority is of the view
that an NGO fails or refuses to comply with
this section”.

Repeal of Part VII of the
principal Act

9. Part VII of the principal Act is hereby repealed.
Repeal of Part VIII of the
principal Act

10. Part VIII of the principal is hereby repealed.
Replacement of s. 27 of 11. Section 27 of the principal is repealed and
the principal Act replaced with the following new section –
“27. The funds of the Authority shall consist of –

(a) sums of money appropriated by
Parliament for the purposes of the
Authority;

(b) all fees, charges or penalties
imposed under this Act;

(c) interest on money invested by the
Authority;

(d) donations and grants of funds,
materials and any other resources for
the purposes of its functions, powers
and duties;

(e) funds derived from the sale of any
property by or on behalf of the
Authority; and

(f) any other income authorized under
this Act or income recognized as
such by accounting standards and
practices collected by the

Authority.”

Amendment of s. 28 of
the Principal Act

12. Section 28 of the principal Act is amended in
the proviso, by deleting the words
“subsequently be approved by the General
Assembly” and substituting therefor with the 10
words “comply with the Public Finance
Management Act”.

Amendment of s. 31 of
The principal Act
13. Section 31 of the principal Act is amended as
follows-

(a) in subsection (2), by deleting the subsection and
substituting therefor the following new
subsection (2) –

“(2) The accounts of the Authority shall be
audited annually by professional auditors
appointed by the Authority in liaison with the
Auditor General.”

(b) by inserting new subsections as follows-

“(3) The expenses of, and incidental to, any
audit shall be payable out of the funds of the
Authority.

(4) The Authority shall as soon as is practicable,
but not later than six months after the end
of each financial year, submit to the
Minister, an annual report of its work,
operations and audited accounts who shall
lay the report in the National Assembly.”

Amendment of s. 32 of
principal Act

14. Section 32 of the principal Act is amended, in
subsection (1) by deleting the words “all members of
the General Assembly and”.
Replacement of
s. 34 of the principal
Act

15. Section 34 of the principal Act is repealed and
replaced with the following new section –

“34. An NGO which contravenes the provisions of this
Act commits an offence and is liable, on conviction,
to a fine of K10,000,000.00 or an amount equivalent to
the financial gains generated by the offence,
whichever is the greater; and to be on schedule
depending on offence.”11
Amendment of s. 35
of the principal Act

16. Section 35 of the principal Act is amended in
subsection (2) by deleting the words “K25,000” and
substituting therefor with the words “K10,000,000”.

OBJECTS AND REASONS

This Bill seeks to amend the Non-Governmental Organizations Act by promoting
freedom of association as enshrined in section 32 of the Constitution; removing the
requirement for mandatory double registration and enhancing the role of the NGO

Board in the oversight and regulation of NGOs in Malawi.

CHIKOSA M. SILUNGWE, PhD

Attorney General

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