The International Journal
of Not-for-Profit Law

Volume 12, Issue 2, February 2010

International Center for Not-for-Profit Law*

I. Introduction

Under the auspices of the NGO Legal Enabling Environment Program (LEEP), made possible by the U.S. Agency for International Development (USAID), the International Center for Not-for-Profit Law (ICNL) recently commissioned the preparation of reports on the legal framework for civil society in four sub-Saharan African countries, including Kenya, South Africa, Uganda and Zimbabwe.  With the support of the Canada’s Department of Foreign Affairs and International Trade (DFAIT), the World Movement for Democracy (WMD) similarly commissioned reports on the same theme in four additional countries, including Ethiopia, Liberia, Rwanda, and Sierra Leone.1  All reports were prepared based on the same research template, in order to ensure some measure of consistency among them.  ICNL and WMD are grateful to the local partners in each country and pleased to present the results of their efforts.  We hope that the country reports will raise awareness of both the positive legal developments and the barriers and challenges affecting civil society within those countries.

II. Scope of Research

Each country report seeks to present an overview of the legal and regulatory framework affecting civil society organizations (CSOs).  Included in each report are the following themes:

• The legal and constitutional context;
• The types of CSOs recognized by the legal system;
• Aspects of the CSO life-cycle, including the registration and establishment of CSOs; the government’s supervisory and enforcement role; and the ability of CSOs to engage in a range of activities, from advocacy to international cooperation to the receipt of foreign funding;
• Information relating to the fiscal framework, with a focus on the tax treatment of CSOs; and
• The priority challenges to civil society and appropriate strategic responses.Central to each country analysis is, necessarily, the basic “framework” legislation: the law(s), regulations and/or policies governing the establishment and general life-cycle of the available organizational forms of civil society.  In South Africa, for example, the key legal instruments governing CSOs are the Trust Property Control Act and the Companies Act, as well as the Nonprofit Organisations Act.  In Kenya, while there are multiple laws addressing multiple organizational forms, the NGO Coordination Act of 1990 is currently in the spotlight, as it is subject to a reform initiative.  In Ethiopia, the Federal Government adopted the Charities and Societies Proclamation in 2009, which has emerged to be one of the most controversial laws in Africa.

In addition, each country analysis may refer to other laws, regulations and/or policies that impact on civic space.  Tax legislation may or may not provide fiscal incentives to CSOs, thereby encouraging or hindering financial sustainability.  Legislation focused on national security, such as the Public Order Security Act (POSA) in Zimbabwe, can be used to intimidate and harass human rights defenders and civil society leaders.2  And customary or indigenous law remains a critical strand of the legal system in each country, and indeed throughout the countries of sub-Saharan Africa.3

Finally, it is important to note that four of the reports – Ethiopia, Liberia, Rwanda, and Sierra Leone – were commissioned by the World Movement for Democracy nearly one year ago.  Since that time, there have been developments which are not reflected in the reports, but which we highlight briefly here:

• In Ethiopia, the newly enacted Proclamation on Charities and Societies envisioned a one-year transition period, to run until February 2010.  Nonetheless, the Charities and Society Agency launched the re-registration process in late 2009; the process has had mixed results.  For example, the Ethiopian Human Rights Council (EHRCO) was re-registered as an ‘Ethiopian’ charitable society in December 2009, but was forced to drop ‘Ethiopian’ from its name and to remove an objective from its statutes; even more disturbingly, the CSA also froze its bank accounts.
• In Rwanda, the draft laws described in the report continue to make their way through the Parliamentary process, with hearings before the Senate likely to be scheduled in the coming months.
• In Sierra Leone, the draft NGO Policy Regulations, which are central to the analysis in the report, were ultimately enacted by the Parliament of Sierra Leone in November 2009.  The content of the enacted Policy is not significantly different from the draft version discussed in the Sierra Leone report.

III. Legal Trend to Constrain Civic Space

The eight reports included in this compilation reveal a multiplicity of regulatory approaches.  We find generally supportive legal frameworks in Liberia and South Africa.  Legal frameworks in Kenya and Rwanda are the focus of cross-sectoral reform efforts to improve the operating environment.  The laws in Ethiopia, Uganda and Zimbabwe are based on a more restrictive, controlling regulatory orientation, and the political will to improve the legal framework is questionable.

Indeed, the past year alone has witnessed several examples of regressive legislative change, whether proposed or enacted.  These laws have narrowed the available space for civic activity and have set poor legal models for neighboring countries.  Taken together, the following examples seem to reveal a worrying trend.  To illustrate:

• Ethiopia: In February 2009, the Government adopted the Proclamation to Provide for the Registration and Regulation of Charities and Societies (CSP), Ethiopia’s first comprehensive law governing the registration and regulation of NGOs.  The law is one of the most controversial NGO laws in Africa, and indeed in the world. The Proclamation, among other things, restricts NGOs that receive more than 10% of their financing from foreign sources from engaging in essentially all human rights and advocacy activities.
• Uganda: The NGO Registration Act (as amended in 2006) and the accompanying NGO Registration Regulation (2009) contain a number of formidable obstacles relating to the registration and supervision of NGOs.  As but one example, Regulation 13 prohibits an organization from making direct contact with the people in its area of operation, unless it has given seven days’ notice in writing of its intention to the local councils and Resident District Commissioners of the area.
• Sierra Leone: The Parliament of Sierra Leone enacted the revised NGO Policy Regulations in November 2009.  The reaction of the civic sector toward the NGO Policy has been decidedly mixed.  To some, the enactment of the Policy is viewed as continuity.  To others, the Policy represents a carefully constructed means of controlling virtually every aspect of the formation and operation of NGOs in Sierra Leone, which severely constrains independent civil society.
• Zambia: In August 2009, the President signed an NGO Law, the enactment of which has sent shock waves through the NGO sector.  The NGO Law criminalizes unregistered organizations; allows the State to impose limitations on an organization’s registration status; requires re-registration every five years; envisions a heavily bureaucratic regulatory body called the NGO Registration Board; grants the NGO Board dangerously broad regulatory powers; imposes constraints on the ability of NGOs to communicate and cooperate with counterparts both domestically and abroad; mandates membership in an umbrella organization; and threatens those who contravene the law’s provisions with harsh criminal sanctions, including imprisonment.
• Zimbabwe: In May 2009, the Ministry of Labor and the Ministry of Justice issued the Joint Memorandum re: Amendment to the PVO Act and the Deeds Registries Act.  The Memo proposed that those trusts that are registered with the Deeds Registry and fall within the definition of a PVO, be explicitly obliged to register as a PVO before commencing activities.  This would subject trusts to a burdensome two-tiered registration process, and to broad control by the Registrar and PVO Board.

IV. Toward More Enabling Environments

While the challenges facing civil society in many African countries are formidable, there are noteworthy positive developments as well.

The legal framework in South Africa – which is perhaps the most influential country in sub-Saharan Africa – is generally considered to be enabling and supportive of civil society.  South Africa thus provides an important positive model for other nations in the region.  The Nonprofit Organisations (NPO) Act, in section 2, sets an admirably high standard in seeking to:

1. create an enabling environment within which NPOs can flourish;
2. establish an administrative and regulatory framework within which NPOs can conduct their affairs; and
3. encourage NPOs to maintain adequate standards of governance, transparency and accountability and to improve those standards.

In Kenya, the Government and civil society are collaborating to review and improve the legal framework and the NGO Coordination Act in particular.  Among other issues, reformers are seeking to resolve the appropriate balance between statutory regulation and self-regulation, and the relationship among the various, overlapping regulatory schemes.  In addition, Government and CSO representatives have formed a working group aimed at strengthening the Government-CSO relationship the group has developed principles for collaboration and is in the process of developing clear strategies for engagement between the sectors.

In Rwanda, three civil society-related bills are pending Parliamentary review.  The draft laws relate to national NGOs, international NGOs, and religious organizations, respectively.  ICNL has now seen the latest versions of the draft INGO and National NGO laws, soon to be considered by the upper house of Parliament before Presidential review.  It is clear that, even with some defects that may be removed in the latter stages of the legislative process, the laws would provide better guidance concerning formation procedures and organizations’ legal rights and obligations; would reduce the extent of administrative procedures; and would introduce a system of appeals to neutral arbiters, including pre-court mediation, to deal with potential conflicts.

Notes

* ICNL is the leading source for information on the legal environment for civil society and public participation. Since 1992, ICNL has served as a resource to civil society leaders, government officials, and the donor community in over 100 countries.

1 The four WMD reports are also available on the website of the World Movement for Democracy (https://www.wmd.org/defcivilsociety/defcivilsociety.html#CR).  The publication of these reports was made possible by the Defending Civil Society Project, which is a joint project of WMD and ICNL.

2 The leaders of Zimbabwe‘s National Association of Nongovernmental Organizations (NANGO), which represents more than 1,000 civic groups, were arrested in Victoria Falls after a three-day conference. They were charged with convening a political meeting without police clearance, under the highly restrictive Public Order and Security Act (POSA). Source: https://civicus.civiblog.org/blog/_archives/2009/10/27/4363065.html

3 As but one example, in Uganda, customary law governs to the extent that it does not contradict statutory laws or the Constitution.  The relationship between customary law and the formal legal system is not addressed in detail in these reports and deserves further exploration.