WHEN many people get involved in socio-economic and political matters that affect them, many common problems affecting humanity can be easily solved.
Without broad-based people involvement in social, economic, civil and political affairs that affect them, there cannot be accountable governance. Without accountable governance, conditions that allow for impunity and for abuse of power, corruption and patronage exist.
Society cannot prosper. It is, therefore, critical that large sections of society remain interested and engaged in civic, political and economic affairs of their society if public officials are to be made accountable.
Pro-democracy activists, human rights defenders (HRDs), land, environment and indigenous defenders need an open civic space if they are to effectively protect the rights of others.
In an environment of closure or constriction of civic space, not only do threats against HRDs, civil society and NGOs increase, but their effectiveness is severely compromised.
Sustained constricting of civic space takes away the benefits of and ultimately kills democratic development.
Southern Defenders is concerned at the democratic regression and authoritarian consolidation in Zimbabwe.
Civic space both online and offline is shrinking as it is shifting.
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The removal of long-term dictator, the late former President Robert Mugabe in a popular coup in November 2017 gave the people of Zimbabwe hope that at last democracy would flourish in the country.
Part of the evidence of this new hope in democracy was exemplified by the increased number of voters, political parties, and presidential candidates.
The first post-Mugabe election turnout was 75%. However, since then the ground has rapidly changed starting with the deployment of soldiers to kill unarmed civilians with impunity on August 1, 2018.
Significant human rights violations and attacks on civic space have been reported.
Southern Defenders is, therefore, monitoring the developments around civic space in Zimbabwe and documenting these with a view to contribute to the defence and protection of civic space as the oxygen and water needed to sustain human rights defending as well as effective participation by people of Zimbabwe in matters that affect them.
Southern Defenders accepts the definition by Bossuyt, J and Ronceray, M (2020) that defines civic space is as the public arena in which citizens can freely intervene and organise themselves with a view of defending their interests, values, and identities; to claim their rights; to influence public policy making or calling power holders to account.
Southern Defenders has noted that the Zimbabwe Cabinet has approved a PVO Amendment Bill which has now been gazetted as a step towards promulgation into law.
Southern Defenders has done a rapid analysis of the proposed PVO Amendment Bill to assess and evaluate whether this proposed law would constrict or expand civic space, enhance or stifle the vital independent workings of civil society in the country and whether it complies with the letter and spirit of the Constitution including Chapter 2 (8) (1) of the supreme law whose purpose is to “guide the State and all institutions and agencies of government at every level in formulating and implementing laws and policy decisions that will lead to the establishment, enhancement and promotion of a sustainable, just, free and democratic society in which people enjoy prosperous, happy and fulfilling lives”.
The Bill, which was approved by Cabinet in August/September 2021 is cited as the Private Voluntary Organisations (Amendment) Bill, 2021.
The government has given two reasons why it felt compelled to propose such a Bill for passing into law by Parliament, namely requirements to comply with the Financial Action Task Force (FATF) recommendations and the need to prohibit NGOs from involvement in politics.
The Bill amends the Private Voluntary Organisations Act [Chapter 17:05].
The amendments were made ostensibly to comply with FATF recommendations made to Zimbabwe in order to develop policies to combat money-laundering seeing that Zimbabwe is a member.
More specifically, the PVO Amendment Bill seeks to comply with FATF recommendations under technical compliance raised under Zimbabwe’s Mutual Evaluation Report which saw it placed under a monitoring programme in October 2018 by the FATF in order to ensure that the country aligns its laws on private voluntary organisations to recommendation eight which provides that private voluntary organisations can be abused by money launderers and terrorist financiers and that as such, there is need to have clear laws that set out a framework to prevent any potential abuse in key sectors.
The memorandum also states that the provisions of the PVO Amendment Bill are meant to ensure that private voluntary organisations do not undertake political lobbying.
Prohibition of political involvement
The Bill also prohibits PVOs from political involvement or from undertaking any political lobbying whatsoever on behalf of any individual, organisation or political party and it will impose penalties for those PVOs that violate the Act in the form of a fine of level 12 or to imprisonment for a period not exceeding one year, or both such fine and such imprisonment.
The Bill amends the definition of “private voluntary organisation” with a much wider definition which encompasses some categories of organisations that the current PVO Act is not applicable to such as trusts and universitas. This means that these organisations will now be subject to re-registration and to broad control and regulation by the board and the minister.
Under the amendment Bill, registration of an organisation will no longer be free and there are harsh penalties for non-compliance with the new Bill such as that a designated institution that fails to register as a private voluntary organisation shall be guilty of an offence and liable to a fine not exceeding level 14 and each of the members of the governing body of that organisation or institution shall be liable to the same offence and penalty and additionally or alternatively to the fine, shall be liable to imprisonment for a period not exceeding 10 years.
Under the PVO Amendment Bill, private voluntary organisations will be subject to a risk assessment at intervals of not less than once in five years. The minister shall require, on the basis of such a risk assessment, or in the case of an institution requiring to be registered as a private voluntary organisation, the organisation or the institution to undertake specified measures to mitigate the identified risk vulnerability within a specified time. The minister may prescribe such special measures and requirements applicable to the designated private voluntary organisations for the purpose of eliminating or minimising the risk of abuse.
Suspension of executive committee of an NGO
The Bill gives the minister authority that he may, through regulations, designated by name, type, class, or characteristics, require any legal person, legal arrangement, body or association of persons, or institution, which the minister deems to be at high risk of or vulnerable to misuse for purposes of funding terrorism, terrorist organisations or terrorist causes, require such legal person, legal arrangement, body or association of persons, or institution to register as a private voluntary organisation in terms of this Act; and may prescribe such additional or special requirements, obligations or measures, not inconsistent with this Act, that shall apply in respect of such legal person, legal arrangement, body or association of persons, or institution, in order to mitigate against such risk or vulnerability.
The concern from a civic society point of view is that such “additional”or “special” requirements may be used to stifle the operations of some NGOs and that they are seemingly retroactively applicable.
The Bill allows the minister to make application to the High Court to appoint one or more persons as trustees to run the affairs of an organisation for a period not exceeding 60 days pending the election of members of a new executive committee in instances where all or some of the members of the executive committee of a registered private voluntary organisation have been barred from exercising all or any of their functions in running the affairs of the organisation. Such a scenario is envisioned where the organisation has ceased to operate in furtherance of the objects specified in its constitution; or the maladministration of the organisation is adversely affecting the activities of the organisation; or the organisation is involved in any illegal activities; or it is necessary or desirable to do so in the public interest. The Bill also allows the minister to appoint one or more provisional trustees who shall exercise all the powers of a substantive trustee until the provisional trustee’s appointment is confirmed by the High Court or some other person is appointed with the leave of the court as a substantive trustee.
Power of Registrar to issue civil penalty orders confirm the appointment of one or more trustees, the refusal of the application shall not affect the validity of anything done by the provisional trustee in good faith pursuant to this section before the date of such refusal.
The trustee shall exercise all the functions of the executive committee of the organisation and any provisional or final trustee who is not in full-time employment of the State, shall be entitled to be paid from the funds of the organisation, for so long as he or she holds office as such, a monthly salary at such rate as the minister may determine. Any person who makes any false representation to, or otherwise wilfully hinders or obstructs a trustee in the exercise of his or her functions; or falsely holds himself or herself out to be a trustee; shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.
The concern here is that provisional trustees can be misused to disrupt or infiltrate organisations that the State dislikes to gain access to information and stifle operations such that by the time the court makes its decision whether or not to appoint a trustee, the information or outcome sought has already been achieved.
Where default is made in complying with any provision of the amendment Bill or of regulations or orders made for which a civil penalty is specified in the Bill, the registrar may serve upon the defaulter a civil penalty order. It is important to note that every officer of a corporate defaulter mentioned in the civil penalty order by name or by office, is deemed to be in default and any one of them can, on the basis of joint and several liability, be made by the designated officer to pay the civil penalty in the event that the defaulter does not pay.
Upon the expiry of the 90-day period within which any civil penalty order of any category must be paid or complied with, the defaulter shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both (in the case of a corporate defaulter, every one of its officers is liable to the penalty of imprisonment, and to the fine if the corporate defaulter fails to pay it).
Such civil penalties are likely to be applied selectively by the registrar to target disliked NGOs in order to frustrate their work and target their officers. This results in potential criminalisation of NGO work.
The concern here is that the provision in the proposed Amendment Bill of prohibition from “political involvement” for PVOs is overly broad and vague to have a potential of being misused to target for persecution CSO leaders, pro-democracy activists, human rights defenders and NGOs that may be involved in promoting and protecting civil and political rights that are protected under the Constitution and major international instruments that Zimbabwe has signed and ratified such as the African Charter on Human and Peoples Rights, and the International Covenant on Civil and Political Rights. Civil and political rights are also enshrined in the Universal Declaration of Human Rights and constitute a core objective of the establishment of the African Union in terms of the AU Constitutive Act. The Vienna Convention also settled the issue that all human rights are universal, inherent, interrelated, interdependent and mutually reinforcing. This means that it is difficult to enforce and protect economic, social and cultural rights without effective enforcement and protection of civil and political rights. The thrust of preventing NGOs and human rights defenders from enforcing and protecting civil and political rights proposed in the amendment Bill poses a threat of incalculable proportion to enjoyment of all civil and political, as well as social, economic, cultural and environmental rights in Zimbabwe.
The PVO Amendment Bill poses a significant risk to civic space in Zimbabwe. It gives too much power to the Executive to control and interfere with the work of NGOs. It increases the surveillance and monitoring of NGOs and HRDs. It potentially criminalises NGO work and human rights defending. It creates potential arbitrariness in the application of the law. It creates real dangers of expropriation of NGOs funds and assets without due process and compensation. It might also be used to disrupt the work in support of democracy, governance, human rights and rule of law. Chapter 4 part 5 of the Constitution provides that fundamental rights and freedoms set out in the Constitution may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom. The PVO Amendment Bill is, therefore, far from being consistent with the letter and spirit of the Constitution that it must comply with.
The over broadness and vagueness in the phrase “political involvement” is a breach of the principle of legality in lawmaking, in that it makes it difficult if not impossible for CSO leaders, human rights defenders, NGOs and pro-democracy activists to know how to regulate their behaviour to avoid falling foul with the law. Worded this way the proposed amendment Bill potentially criminalises civil society activism, human rights defending and creates a minefield for NGOs. The principle of legality requires that the law is clearly articulated and known in advance and not applied retroactively. Once this proposed amendment is promulgated, it is likely to be applied to proscribe work that civil society leaders, human rights defenders, pro-democracy activists and NGOs have done legally for years without an issue, which breaches the principle against retroactivity in application of the law. At the interpretation level, the phrase “political involvement” is open to abuse and arbitrariness on the part of the minister and authorities with the power to enforce the Act, and interpret the behaviour of human rights defenders, democracy activists and NGOs. The proposed law as worded is, therefore, likely to be abused to violate human rights and undermine the enjoyment of fundamental rights and freedoms in Zimbabwe. In practice, the law will amount to a clawback clause on enjoyment of fundamental rights guaranteed in the Constitution in a way that is not reasonably necessary in a democratic society.
Is the general NGO legislative framework adequate or in need of reform?
Does current legislation meet the FATF standards and recommendations?
The current three distinct legal regimes under which NGOs come into existence in Zimbabwe namely, as a Private Voluntary Association under the Private Voluntary Organisations (PVO) Act [Chapter 17:05], or as a Trust in terms of a Trust deed registered under the Deeds Registries Act [Chapter 20:05] or as Universitas under common law usually done in terms of a member’s constitution as a voluntary association have stood the test of time and served the country very well. Currently the country has a reasonable number of NGOs working in different sectors ranging from human rights groups, development organisations, humanitarian organisations, environment protection organisations, social movements or mass-based movements such as churches, labour and students movements. There is really no gap in legislation in terms of how these entities can legally exist and operate. All critical stakeholders, government, donors, target groups and beneficiaries are capable of understanding this legal framework that they have used for decades. The country has no problem of terrorism. There is also no history that the NGOs in Zimbabwe have been involved in any way in money-laundering or financing of terrorism in a way that warrants significant concern to overhaul the legal registration and operating framework. In other words, there is nothing broken in order to fix.
The objective of recommendation 8 “is to ensure that NPOs are not misused by terrorist organisations to pose as legitimate entities; to exploit legitimate entities as conduits for terrorist financing, including for the purpose of escaping asset freezing measures; or to conceal or obscure the clandestine diversion of funds intended for legitimate purposes, but diverted for terrorist purposes”. It is important to note that the interpretive note to recommendation 8, in its objectives and general principles, states that measures adopted by countries to protect the NPO sector from terrorist abuse should not disrupt or discourage legitimate charitable activities. The interpretive note also states that “such measures should promote transparency and engender greater confidence in the sector across the donor community and with the general public, that charitable funds and services reach intended legitimate beneficiaries”. The current NGO legislation coupled with the existing regime of criminal and banking laws seem to be adequate to deal with any possible cases of money-laundering and financing of terrorism that there is no need to overhaul the NGO legislative framework as proposed by the government. The provisions of the PVO Act appear to put the State in a strong position to monitor and access any information regarding PVOs in the country without the need for additional intrusive legislation.
Further, the government has also not yet done a proper national risk assessment for money-laundering and financing of terrorism in order to appreciate the threat factors and any legislative gaps needing law reform. This is not unique to Zimbabwe but is the case with most countries in eastern and southern Africa. It is instructive that the Reserve Bank of Zimbabwe issued a Press statement on September 29, 2021 about the phenomenon of money-laundering in Zimbabwe giving a list of the most notorious people and entities on money-laundering. The operative portion of the notice read as follows:
“The Financial Intelligence Unit (FIU) has identified individuals listed hereunder who are abusing mobile telecommunications services and other social media platforms to promote and facilitate illegal foreign exchange transactions and money-laundering activities. The FIU has instructed banks, mobile money operators and other financial service providers to identify and freeze any accounts operated by these individuals and, further, to bar them from accessing financial services for a period of two years, with immediate effect.”
Interestingly, no single NGO or civil society activist is on this list of money-launderers and yet the government is coming up with legislation to overhaul the NGO legislative framework under the guise of trying to combat money-laundering and financing of terrorism. Further, the fact that the Financial Intelligence Unit can instruct banks in Zimbabwe that individuals and entities involved in money-laundering need to be banned from banking “for a period of two years with immediate effect” means that the government already has enough powers to combat money-laundering without the need to create additional legislation targeting NGOs.
The proposed PVO Amendment Bill seems, therefore, to be for sinister purposes and will pose a significant threat to civic space and be used to persecute targets. It must, therefore, be resisted by all means necessary.
- The Southern African Human Rights Defenders Network (SAHRDN) is the regional human rights defenders network comprising representatives from 10 countries in southern Africa
