Implications of the Private Voluntary Organisations Amendment Bill on Non-Profit Organisations (NPOs)
The Private Voluntary Organisations Amendment Bill which was gazetted on the 5th of November 2021, is highly intrusive and poses high risks of closing of civic space due a number of unconstitutional provisions, cumbersome processes for compliance, financial, legal and security risks.
The Bill poses a risk on legitimate human rights work, development work and humanitarian work being carried out by Non-Profit Organisations (NPOs). By conferring excessive powers to the Minister to interfere in internal affairs of NPOs, there will be over-regulation and undue targeting. The Amendment Bill is an affront to freedom of association as provided in Section 58 of the Constitution of Zimbabwe. The Bill seeks to amend the Private Voluntary Organisations Act [Chapter 17:05].
The Bill’s memorandum provides that amendments are being made in order to comply with the Financial Action Taskforce (FATF) recommendations made to Zimbabwe. FATF is an Intergovernmental organisation whose main objective is to develop policies to combat money laundering and Zimbabwe is a member. The amendment is therefore meant to ensure that PVOs in Zimbabwe are not used as conduits for money laundering and funding of terrorist activities in compliance with recommendation 8 of the FATF.
The Bill also prohibits PVOs from political involvement, and requires them to discharge their mandate for the benefit of society’s most vulnerable. In terms of the Bill, PVOs are prohibited from undertaking political lobbying on behalf of any individual, organisation or political party, and the Bill stipulates penalties for those PVOs that violate the Act.
The Bill amends the definition of “private voluntary organisation” to remove the exemption of Trusts collecting contributions from the public or outside the country for prescribed charitable purposes by providing for such trusts to fall under the scope of PVOs. As a result, Trusts will be required by the Registrar of PVOs to register as PVOs with failure to comply resulting in criminal charges against the said Trust.
The Bill confers broad powers on the PVO Board to compel organisations which it deems to be at high risk of or vulnerable to money laundering, funding terrorism, terrorist organizations or terrorist causes, to register as a PVO. The provision draws an unjustified or unwarranted link between NPOs and terrorism. The wide powers that the Bill confers on the Board to compel an organisation to register as a PVO on the grounds that it is advancing terrorist activities and money laundering may be abused to muzzle the operations of NPOs so as to silence dissenting views. Such unilateral discretion conferred on the Minister is contrary to the FATF risk-based approach and leaves the process open to abuse as the criteria for the assessment is not provided in the Bill.
The Bill also confers powers on the Board to prescribe additional or special requirements, obligations or measures which are not set out in the Act in regulating the activities of the said organisation which can limit its independence and autonomy. The imposition of special measures which may include increased monitoring and enforcement powers by the Registrar such as revoking a licence, ordering the removal of the director, trustee, employee or another office bearer which is in violation of Labour Laws as due process is not prescribed by the Bill.
The Bill makes provision to the effect that the Board may at any time cancel any certificate of registration if the organisation has failed to comply with any condition of its registration or if it is considered that the objects in respect of which it was registered are merely incidental to the other objects of the organisation. As much as there is need to regulate the operations of NPOs, this clause may be used in silencing dissenting views and clamping down on organisations which are said to be deviating from their mandate. The provision significantly shrinks democratic space for NPOs and pushes the government ever closer to outright repression and heavy handedness in the NGO sector.
The Bill further provides for the criminalisation of NPOs for supporting or opposing any political party or candidate, however it does not make provision for the conduct that is deemed to amount to supporting or opposing political parties or candidates. The provision is vague and open to abuse in criminalising legitimate work being carried out by NPOs.
The Bill provides for criminalisation of certain conduct within the operations of NPOs and the harshest penalty is a level fourteen fine or imprisonment not exceeding five years. Imprisonment is a harsh remedy as it means that once one has been convicted of a criminal offence involving dishonesty and sentenced to imprisonment, they will be disqualified from taking part in the activities of a PVO in any capacity. In addition to numerous criminal offences introduced in the Bill, there is provision also of Civil Penalty Orders which creates even more penalisation of the sector. Civil remedies or administrative fines without the option for imprisonment are recommended for offences in terms of this Act.
The Bill makes provision for the Minister to suspend members of the executive committee and appoint provisional trustees to run the affairs of the organisation for a period not exceeding sixty days pending the election of members of a new executive committee. The Minister may exercise such powers after receiving information to the effect that the organisation is not operating in furtherance of its objectives, that there is maladministration within the organisation, that the organisation is involved in any illegal activities or it is in the public interest to do so. The Bill confers powers on the provisional to run affairs of the organisation and can even dispose of funds and assets with the approval of the Minister. Even if the Minister’s appointment of provisional trustees is subsequently revoked by the court, anything done “in good faith” in the 60 days is deemed valid and cannot be reversed. This provision is an attack on the autonomy and independence of NPOs and poses a risk of misuse of assets by the provisional trustees.