Open Letter to the authorities: Freedom of association again in jeopardy

Re: Freedom of association again in jeopardy. The Observatory calls upon the Members of the Parliament to conform the NGO Bill to the international human rights standards binding upon Zambia

Dear Members of the Parliament,

The Observatory for the Protection of Human Rights defenders, a joint programme of the International Federation for Human Rights (FIDH) and the World Organisation Against Torture (OMCT), expresses its deepest concerns regarding the Zambia NGO bill currently before Parliament and which could considerably restrict the activities of NGOs.

On July 16, 2009, a Bill to regulate NGOs was introduced in Parliament. It is currently being examined for comments by the Parliamentary Committee for Health, Social Welfare and Community Development. The Bill should be sent back to Parliament for discussion in the next few days. A Bill had been first introduced in 2007 and was later withdrawn following major opposition and criticism[1].

While some concerns highlighted by civil society at the time have been addressed in the present version of the Bill, key aspects remain unchanged. Worryingly, these key points are very similar to previous NGO laws passed in other African countries such as Tanzania, and more recently in Ethiopia, illustrating a widespread regional threat that will result in muzzling the activities of civil society organisations in Africa.

The Observatory is concerned by three issues i.e. the registration procedures, the risk of excessive executive interference into NGO activities and the imposition of a forced self-regulatory framework.

Illegitimate hurdles to NGO registration

In particular, in the proposed Bill, registration will be made mandatory, even for small community associations, lacking the capacity to fulfil the heavy formalities incurred by registration procedures. In addition, NGOs will be obliged to re-register every three years, thus placing an additional hurdle to the exercise by NGOs of their mission and dangerously hampering their work.

The Bill also provides that the registration of an association will be subject to prior approval by the authorities, rather than mere notification procedure, and Article 10.3 of the NGO Bill provides for criminal sanctions against individuals operating unregistered NGOs, including a fine and imprisonment for a maximum of three years. According to international best practice, the Observatory believes that any association shall be registered through a declaratory procedure by means of a mere statement and the transmission of its by-laws to the regulatory authority and no criminal sanction should be applied in the event of operation of an unregistered association.

Furthermore, no time limit is prescribed in the Bill for the processing of a registration application which could keep some NGOs in a prolonged state of uncertainty regarding their legal status. The Observatory believes that the silence of the administrative authority over 30 days should be tantamount to implicit recognition of registration. According to international best practice, refusal for registration shall be motivated and not based on arbitrary considerations, legislation of exception or any other legislation contrary to international human rights standards. Nonetheless, according to the current version of the Bill, registration may be denied in the “public interest”, which is not defined leaving scope for the exercise of executive discretion.

Excessive executive interference into NGO activities

The Bill provides for the establishment of a NGOs' Registration Board, with an executive-dominated composition[2], which would be given overreaching powers to interfere with the independence of NGOs. In particular, the Board should be in charge of:

• the approval of the area of work carried out by NGOs, allowing the Government to determine their thematic and geographic areas of functioning,
• the provision of “policy guidelines to NGOs for harmonising their activities in the light of the national development plan”. However, some of these national development plans are very controversial for NGOs, with some organisations in fact advocating against some of them. Therefore, this obligation to harmonise NGOs activities with national development plans is contrary to the mere non-governmental nature of NGOs.
• the power to advise on strategies for efficient planning and coordination of activities of NGOs.

The extensive powers given to this new agency will clearly pose a further impediment to freedom of association in the country. The registration of an organisation can be suspended or cancelled for even a minor infraction of the Bill’s provisions.

Forced self regulation

Finally, if passed, the Bill will establish an NGO Congress, which would be a collective forum constituted of all registered NGOs. Under its control, a Council of NGOs co-opted by the NGO Congress will be responsible for the forced adoption of a code of conduct for the whole sector, subject to the Board's final adoption, the control and monitor of the NGO sector in accordance with said code of conduct, the facilitation of self-regulation on a number of key issues including activities, funding, programmes, foreign affiliations, etc. This so-called self-regulatory framework may again seriously curb the autonomy and ability of NGOs to formulate positions on matters affecting human rights.

The Observatory considers that the adoption of this draft law would blatantly violate regional and international instruments on human rights that guarantee freedom of association, in particular the International Covenant on Political and Civil Rights, the African Charter on Human and Peoples' Rights and the provisions of the Declaration on Human Rights Defenders, adopted by the United Nations General Assembly on December 9, 1998.

Accordingly, the Observatory calls upon the Zambian authorities to consult, throughout the drafting process of the NGO Bill, with civil society organisations and all concerned parties, and to amend the NGO Bill and to conform, in any circumstances, with the constitutional right to establish civil society organisations and international standards regarding freedom of association, in particular the provisions of the Universal Declaration of Human Rights (Article 20) and those of the UN Declaration on Human Rights Defenders, which Article 5(b) states that “for the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others at national and international levels, to form, join and participate in non-governmental organisations, associations or groups”. The Observatory calls upon the international community to take all necessary measures to ensure that the Zambian Government conforms, in all circumstances, to its international human rights commitments.

We express our sincere hope that you will take these considerations and requests into account,

Yours sincerely,

Souhayr Belhassen
FIDH President Eric Sottas
OMCT Secretary General

[1] See Observatory Annual Report 2007.

[2] Pursuant to Section 6 of the Bill, "the Board shall consist of fifteen part-time members appointed by the Minister” and “the Board shall comprise (a) two members appointed by the Minister (…); (b) one person each from the (i) Ministry responsible for health, (ii) Ministry responsible from home affairs, (iii) Ministry responsible for economic planning, iv) Ministry responsible for community development, and (v) the Ministry responsible for local government; (c) a representative of the Attorney-General; (d) seven members elected by the Congress; and (e) the Registrar as ex-officio member”.