The International Journal
of Not-for-Profit Law

Volume 12, Issue 4, November 2010

By Zein Kebonang[*] and Kabelo Kenneth Lebotse[**]

Introduction

In 2007, the Southern African Development Community (SADC)-Council of Non-Governmental Organizations issued a communiqué on “ensuring effective civic participation in development and democratic governance.” The communiqué decried the fact that the political and policy space in which civil societies in the SADC region operated remained limited, uneven, and sometimes nonexistent. It noted that efforts taken by regional civil societies to participate and engage with regional integration initiatives were not being reciprocated by some SADC member states and the regional body. The communiqué also stated that some member states in SADC were instituting statutory regulation aimed at stifling the work of NGOs and in some instances, criminalizing their very existence and operations.

The SADC communiqué is in essence a reiteration of international law instruments such as the Universal Declaration of Human Rights of 1948 (“Universal Declaration”), the International Covenant on Civil and Political Rights (ICCPR), the European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention”), and the African Charter on Human and Peoples’ Rights (“African Charter”), which seek to promote the right of association by calling for the provision of an enabling environment under which civic organizations can operate.

Against this background, this article sets out to consider the legislative and regulatory environment under which Nongovernmental Organizations (NGOs) or civil society organizations operate in Botswana. We start by giving a working definition of what constitutes an NGO or civil society. This is followed by a brief look at the state-civil society relations in Botswana. Next, we consider the legal environment under which NGOs operate and in particular the registration requirements and processes. Constraints facing NGOs are also discussed together with the impact of legislation on the operations of NGOs. The article then ends with a conclusion.

Definition

The term NGO is fairly broad and ambiguous. It covers a wide range of organizations within civil society, from political action groups to support clubs[1]. In the context of Botswana, the abbreviation NGO, as found in the Botswana National Policy on Non-Governmental Organizations, for instance, refers to a “formal organization[] falling outside the realm of government but which at the same time, is neither a formal business enterprise pursuing conventional commercial and trade interests nor a political party.”[2] Whatever form they take, NGOs are important developmental partners, as they tend to “promote the material, social or political interests of their own members.”[3] These interests may range from equity, educational, health, and human rights to wider socioeconomic and political interests.

The rule that civil society organizations should not have objectives that are political in nature is not unique to Botswana. It is in fact, a requirement found in a number of jurisdictions.[4] As if to emphasize this, the National Policy on Non-Governmental Organizations states that “an NGO is understood to be an apolitical legally formed autonomous organization that possesses non-profit status, and whose primary motivations is to pursue an identifiable set of interest of public, community and/or group significance as defined in its constitution and/or Deed of Trust.”[5]

State-Civil Society Relations in Botswana

In the past two decades, Botswana has experienced a phenomenal growth in the number of civil society organizations setting up and operating in the country. For instance, the Botswana Councils of Non-Governmental Organization (BOCONGO), which is the national umbrella body for NGOs in Botswana, has more than 117 member organizations, while the Botswana National Youth Council (BNYC) has more than 16 NGO affiliates.[6] These entities also comprise both membership and non-membership organizations. Other NGOs include the following: Emang Basadi Women’s Association; Ditswanelo- the Botswana Center for Human Rights; Kalahari Conservation Society; Kuru Family of Organizations (KFO); Gantsi Craft; Botswana Christian Council (BCC); Botswana Society; Forestry Association of Botswana (FAB); and Conservation International (CI). Although a majority of these NGOs are local or national in character, there are also a number of international NGOs operating in the country. These include Transparency International and Survival International, though the latter has no physical presence in Botswana.

While it has been argued by Lekorwe,[7] among others, that civil society in Botswana is weak, Maundeni[8] maintains that such a characterization is inaccurate in that it takes a Euro-centric view as a basis for measuring the strength of civil societies. According to Maudeni, the Western view measures strength in terms of the number of “violent clashes and confrontations which have led to policy reversal” between the civil society and government.[9]

The strength of civil societies lie, Maundeni argues, not in the number of confrontations they have had with government but in the political culture that prevails within the country. According to him, the political culture in Botswana promotes “mutual criticism in each other’s presence” or civility.[10] It is this meeting with one’s opponent that more accurately reflects the strength of civil society than “the strong/weak civil society concept” often associated with Western societies.[11] While the mutual criticism may limit democracy, in terms of the restrictions it places on industrial action and street encounters, it nonetheless promotes participatory democracy in terms of sharing views. It is within this constrained environment that civil society has contributed more to Botswana’s development than is often acknowledged.[12]

That civil society organizations are considered key partners in Botswana’s developmental process is not in doubt. As encapsulated in the 2004 Policy Guidelines for Financial Support to Non-Governmental Organizations:

NGOs are active players in the development and growth of the economy of Botswana alongside Government, the Private Sector and other community-based institutions. NGOs have through their activities, already demonstrated an ability to reach the vulnerable and disadvantaged groups of the society.[13]

The increasing importance of NGOs in the development process arises from the fact that they are able to promote participatory grassroots development and self-reliance, especially among marginalized segments of society such as women, children, and minority groups. In recognition of the important role they play, the government formally articulated its commitment to the development of an NGO policy in its National Development Plan-8 by undertaking that “a comprehensive policy on NGOs will be formulated during NDP 8, which will form the basis for government’s relationship with NGOs and spell out how NGO activities are coordinated.”[14] This initiative marked an era of collaboration between the government and the NGOs as it underscored the need for a formal policy on NGOs. In 2004, the government enacted a National Policy on Non-Governmental Organizations. This policy was an outcome of intensive consultations with the NGO community, government ministries and departments, key stakeholders, and civil society in general. It provides for, among other things, the coordination of NGO activities through government line ministries, the establishment of NGO secretariats in government ministries, and the appointment/employment by government of officers to run these secretariats.

Registration of NGOs or Civil Society Organizations in Botswana

NGOs’ right to exist and to enjoy the protections afforded by law is not only provided for under statute but is also constitutionally guaranteed. The Constitution of Botswana[15] provides for and guarantees freedom of association for people both as individuals and as members of organizations. These rights and freedoms are enshrined in the Constitution as follows:

Whereas every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to say, the right whatever his race, place of origin, political opinion, colour, creed ….

3(b) freedom of conscience, of expression and of assembly and association[16]

The rights outlined above are not absolute, however, as they can only be exercised to the extent that they do not run counter to any laws or infringe on other rights. In terms of the registration process, NGOs or civil society organizations can be registered either under the Societies Act[17] or under the Deeds of Trust in the Deed Registry.[18] Under the Societies Act, an application for registration or exemption shall be made to the Registrar of Societies, who, upon being satisfied that all prescribed formalities have been complied with, shall issue a certificate of registration or exemption.[19] For an entity to register as an NGO, it must submit its written constitution within 28 days of its application for registration,[20] pay the prescribed application fees,[21] provide a list of office bearers,[22] and have a registered office and postal address to which communications and notices may be addressed.[23] Once these formalities have been complied with, the Registrar shall cause a certificate of registration to be issued. The certificate so issued shall become prima facie evidence of registration or exemption from registration of the society.[24]

An NGO or civil society organization whose principal offices are outside Botswana would be deemed to be established in Botswana if any of its office-bearers or members resides or is present in Botswana or if any person in Botswana manages or assist in the management of such society or solicits or collects money or subscriptions on its behalf.[25] Once so deemed, the provisions of the Societies Act will apply to it as though it were a domestic NGO.

Refusal to Register

The Registrar may refuse to register or exempt a local NGO from registration where he is satisfied that (a) the NGO is a branch of or is affiliated or connected with any organization or group established outside Botswana and has not adopted its own constitution or its own rules, regulations, or bylaws; or (b) the organization or group established outside Botswana is of a political nature.[26] Further the Registrar can under Section 7.2 of the Societies Act refuse to register or exempt from registration a local society where—

• (a) it appears to him that any of the objects of the society is, or is likely to be used for, any unlawful purpose or any purpose prejudicial to or incompatible with peace,welfare, or good order in Botswana;

• (b) the society, after being required to provide information, fails to do so within 90 days;

• (c) he is not satisfied that the constitution or the rules, regulations, or bylaws of the society adequately define the membership of the society and adequately provide for the termination and determination of membership and for the control and management of the financial affairs of the society and of its property;

• (d) he is not satisfied that the office-bearers of the society are able to undertake the management of the society, including the keeping of proper records of meetings of the society and of its members and the control and management of the financial affairs of the society and of its property, and to perform the duties imposed on them by the Act;

• (e) it appears to him that the constitution, rules, regulations, or bylaws of the society are in any respect repugnant to or inconsistent with any written law;

• (f) he is satisfied that the application does not comply with the Act;

• (g) he is satisfied that the society does not exist; or

• (h) the name under which the society is to be registered or exempted—
  • • (i) is identical to that of any other existing local society;
    • (ii) so nearly resembles the name of such other local society as, in the opinion of the Registrar, to be likely to deceive the public or the members of either society; or
    • (iii) is in the opinion of the Registrar, repugnant to or inconsistent with any written law or otherwise undesirable.

Appeal Against Refusal to Register

Where the Registrar has refused to register a society, the decision is appealable to the Minister of Labour and Home Affairs within 28 days of the Registrar’s decision.[27] Once an appeal has been lodged with the Minister and pending the decision of the Minister, such an entity shall not be deemed to be an illegal society.[28] It will be allowed to operate as a lawful entity enjoying all the rights and privileges provided under the Act.

Cancellation of Registration

The Registrar may also at any time cancel the registration of a society for any of the following reasons: (a) it has become affiliated to or connected with any organization or group of a political nature;[29] or (b) it has changed its objectives or is pursuing objects other than its declared objects.[30] Any society aggrieved by the decision of the Registrar to cancel its registration is entitled appeal to the Minister within 28 days after receipt of notification of the decision.[31] Where no appeal is made within the prescribed period, the Registrar shall proceed to effect the cancellation.[32] Once cancellation is effected, the society in question will be deemed to be illegal[33] and any person soliciting, managing, or assisting in the management or solicitation or collection of money or subscriptions on its behalf shall be guilty of an offence and liable to a fine not exceeding P1000, imprisonment for a term not exceeding seven years, or both.[34]

Constraints to NGOs or Civil Society Organization Operations in Botswana

Constraints facing NGOs or Civil Societies are fairly numerous. These range from lack of organizational capacity to lack of human capital. Many NGOs are run by volunteers and often have no functioning structures. They also face the problem of high turnover of senior staff. Over and above this, they have severe financial distress. They operate with little funding or debt to their name and compete for funding from the same donors, making it difficult to receive funds. Although civil society organizations in Botswana are free to source funding anywhere, with the withdrawal of major external donor agencies from Botswana, many NGOs have had to rely for their activities and programs on government funding. This reliance has tended to undermine their autonomy by placing them directly under the influence or control of government. Under the Policy Guidelines for Financial Support to Non-Governmental Organizations,[35] an NGO is eligible for financial support from government only if it meets the following conditions:

 

• It must be registered with the Registrar of Societies or constituted under the Deeds of Trust;

• There must be proof of genuine representation in the NGO from the local community;

• There must be proof of the NGO’s capability to implement the project and of the sustainability of the project after the agreed period of Government financial support;

• There must be evidence of the ability of the NGO to raise its own funds; and

• The NGO must open a bank account, which shall be accessible to relevant authorities, into which Government financial contributions will be deposited.

The purpose of the financial policy guidelines is said to be to establish and strengthen administrative mechanisms at ministerial levels in order to “enhance control, coordination, monitoring an evaluation of NGO projects/programmes that are supported by government”[36] and to reduce perpetual dependence on government financial support by “instituting appraisal procedures that ensure that only projects that are sustainable in the long term and benefit the target groups are supported,”[37] but the reality is that such support is conditional and places NGOs under the government’s control.

Apart from the foregoing, the current tax legislation is limited. In terms of the Income Tax Act,[38] certain NGOs are exempted from tax. These include any religious, charitable, or educational institution of a public character or trust for nature conservation, scientific research, or similar public purpose.[39] This exemption also extends to any association of individuals formed for the purpose of promoting social or sporting amenities, not involving the acquisition of gain or the possibility of future gain by its members.[40] The form in which these organizations are constituted has a bearing on their tax liability. When constituted as an association of persons, an organization’s tax liability will depend on whether it is carried on for gain.[41] On the other hand, an association that comes about by way of a deed of trust automatically becomes a taxable entity but the tax is levied on trustees.[42]

If an association’s activities are carried out for gain, it is subject under the Income Tax Act to taxation at ordinary corporate rates on the income it generates—that is, at a rate of 15 percent with an additional 10 percent withholding tax.[43] Additionally, that organization may find itself classified as a taxable person under the Value Added Taxation legislation, making it subject to value added tax on its taxable income if such exceeds BWP250 000 per annum.[44] While NGOs may be entitled to tax exemption under Section 38 of the Income Tax Act, for instance, donor’s deductions are limited to contributions to any association, institution, college, or university for use in scientific research related to the donor’s business.[45] Except for this, any amount not wholly, exclusively, and necessarily laid out or expended for purposes of producing assessable income is not tax deductible.[46]

The Legislative Environment and its Impact on Civil Society Development

As noted, provided that the registration requirements are complied with, the process of registration is easy and inexpensive. However, while this process may be enabling, the law or more specifically the Societies Act does not provide for an appeal against the decision of the Minister or for a review process or an alternative dispute resolution mechanism. The effect is therefore to render an appeal or review process against the Minister’s decision an expensive one, as an aggrieved party’s only avenue is to petition the High Court for redress.

On the issue of funding, a majority of civil society organizations rely on government for financial support and this renders them susceptible to state capture. Further, in terms of the existing tax legislation, there is little or no incentive to make charitable donations except for contributions used in scientific research related to the donor’s business. While scientific research can indeed be one of the considerations taken into account in assessing eligibility of a deduction, it should by no means be the only criterion used to determine which contributions are deductible.

The autonomy of civil society organizations has also been compromised by co-opting them through joint national councils coordinated through government departments. By institutionalizing the participation of NGOs in government’s developmental process, NGOs have effectively become part of the state and have ceased to be autonomous and perform an effective moralizing role. By concentrating administrative and financial power in government-controlled secretariats, the government has unilaterally assigned to itself the role of a senior partner while NGOs have been relegated to junior partners. As these Secretariats are controlled from the Ministry headquarters and their employees hired, promoted, and trained by government, the effect is to confer government with controlling powers over the implementation of public policy.

Conclusion

As can be noted from the preceding sections, the legislative environment under which civil society organizations operate is fairly unrestrictive. The major challenge facing civil society organizations or NGOs in Botswana appears to be their lack of financial independency and resultant dependency on government and donor funding. The decline in donor funding and over-reliance on government means that civil society organizations are not adequately insulated from government influence. Their independence is greatly compromised to articulate the needs of the public and/or of specific groups, to hold the government accountable, and to provide goods and services where those are inaccessible because of government’s lack of capacity or resources. NGOs often confer a public benefit which society or the community may not choose or be able to provide, or which supplements and advances the work of public institutions supported by tax revenue. Thus, to help civil society organizations become more financially independent, the tax legislation could be amended to make it easier for citizens to commit money through improved tax treatment of donations to charities. The restrictions against civic society organizations becoming “profit organizations” can also be relaxed by allowing them to trade or to compete with others in the solicitation of government and private-sector tenders for the provision of goods and services.

Notes

[*] Zein Kebonang (LLB, UB); LLM/ITP (Harvard); PhD (A.N.U), Operations Director, Botswana-UPenn Partnership, Gaborone, Botswana, zkebonang@hotmail.com.

[**]Kabelo Kenneth Lebotse (LLB, UB); LLM (London School of Economics); Senior Lecturer of Law; University of Botswana, Gaborone, Botswana, lebotsek@mopipi.ub.bw.

[1]Teegen, H; Doh, J and Vachani, S (2004). “The importance of non-governmental organizations (NGOs) in global governance and value creation: an international business research agenda,” Journal of International Business Studies, Vol. 35, pp463-483. See also Lekorwe, M and Mpabanga, D (2007). “Managing Non-Governmental Organizations in Botswana,” The Innovation Journal, Vol. 12.3, pp1-18

[2]See the 2004 National Policy on Non-Governmental Organizations p9.

[3]See note 1 p 466.

[4]See for instance Re Hopkinson [1949] 1 ALL ER 346 and Re Bushnell [1975] 1 ALL ER 721.

[5]See note 2.

[6]Maudeni, Z (2004). “Mutual Criticism and State/Society Interaction in Botswana,” Journal of Modern African Studies, Vol. 42.4 pp. 619-63.

[7]Lekorwe, M (1999). Local government, Interest Groups and Civil Society, In Public Administration and Policy in Botswana, Juta Ltd Publishers, Cape Town.

[8]Note 6 supra p. 10.

[9]Ibid. p. 10.

[10]Ibid. p. 10.

[11]Ibid. p. 10.

[12]Ibid. p. 10.

[13]See note 2 supra p1.

[14]the National Development Plan 8, 1997:448.

[15]Cap 001, Laws of Botswana.

[16]See Section 3 of the Botswana Constitution.

[17]Cap 18.01, Laws of Botswana.

[18]See Cap 33.02, Deeds Registry Act.

[19]Section 6.4 of note 17.

[20]Section 6.1 Ibid.

[21]Section 9 Ibid.

[22]Section 16 Ibid.

[23]Section 33.1 Ibid.

[24]Section 6.4 Ibid.

[25]Section 5 Ibid.

[26]Section 7.1 Ibid

[27]Section 8 Ibid

[28]Section 20 Ibid

[29]Section 11.a Ibid.

[30]Section 11.c Ibid.

[31]Section 11.4 Ibid.

[32]Section 11.5 Ibid.

[33]Section 20 Ibid.

[34]Section 21 Ibid.

[35]See the 2001 Policy Guidelines for Financial Support to Non-Governmental Organizations.

[36]Ibid.

[37]Ibid.

[38]Cap 52.01 Laws of Botswana.

[39]See Part 1 (IV) of note 38; 2nd Schedule, Botswana Income Tax Act 1995.

[40]See Part I (X) Ibid.

[41]See Section 37 Ibid.

[42]Kebonang, Z (2002). “Botswana’s Tax System Offer Breaks for NGOs, their Donors,” Tax Notes International, Vol. 26.10 pp.1223-24.

[43]Ibid.

[44]See Section 16 Value Added Tax Act (2002).

[45]See note 42 and Section 40.1 (k) of the 1995 Income Tax Act.

[46]See note 42 and Section 49 of the Income Tax Act.