The New PVO Amendment Bill (Part 1)

Introduction

As unwelcome as a poop in a punchbowl, a new version of the Private Voluntary Organisations Amendment Bill was published in the Gazette on the 1st March, 2024.  It can be accessed on the Veritas website [link].

The first version of the Bill was published as long ago as November 2021.  It received its first reading in the National Assembly in February 2022 and proceeded to crawl its way through the parliamentary processes until it was finally passed by the Senate on the 1st February, 2023.  A further lengthy delay ensued after which it was sent to the President for signature on the 9th August 2023.  The President had reservations about it and sent it back for reconsideration.  The National Assembly did not reconsider the Bill before Parliament was dissolved immediately before the 2023 general election, so the Bill lapsed and could not be revived.  This new Bill is therefore the Government’s second attempt to enact legislation to control private voluntary organisations [PVOs] more stringently.

General Comments

The lapsing of the old Bill gave the Government an opportunity to rethink how PVOs should be regulated and to prepare a fresh Bill taking into account criticisms levelled against the old one.  Regrettably, the Government has not taken the opportunity.  The new Bill makes no important changes, and does not even correct all the obvious errors that peppered the old one.  For example, it retains the following nonsensical definition of “material change” in clause 6:

“material change” in relation to the amendment of the particulars of the original application for registration means—

(a)  any change in the constitution governing the private voluntary organisation concerned concerning happens upon the termination for any reason of the private voluntary organisation with respect to the disposal of its assets on the date of its termination”.

Also like the old Bill, the new one is unconstitutional, inimical to freedom of association, ill-conceived and badly drafted.

Contents of the Bill

In describing the Bill’s contents we shall necessarily repeat much of what we said in Bill Watches 74/2021 [link] and 26/2022 [link] because the Bill is so similar to the one we were discussing in those bulletins.

Broadly, the new Bill will do the following:

It will extend the scope of the Act

A new section 22 which will be inserted into the PVO Act [“the Act”] by clause 9 of the Bill will extend the application of the Act to cover persons, legal arrangements, bodies, associations or institutions which the Minister declares in regulations to be vulnerable to misuse by terrorist organisations, or at high risk of being misused by terrorist organisations.  The persons, legal arrangements, bodies etc covered by a Ministerial declaration will have to register as PVOs under the Act and will be subject not only to the requirements and obligation laid down in the Act but also to any additional requirements the Minister may specify in regulations.

Comment:  This is unconstitutional for at least two reasons:

1. The Minister will not have to give notice to the persons, legal arrangements etc before declaring them to be vulnerable to terrorist misuse, nor will the Minister have to invite them to make representations before making the declaration.  This infringes section 68 of the Constitution which guarantees everyone the right to administrative conduct that is procedurally fair.
2. A declaration by the Minister will extend the Act to cover institutions that are not currently within its ambit, and will impose additional controls over them that are not currently laid down in the Act.  A declaration will therefore constitute a major amendment of the Act, which the Minister will make by regulations.  It will amount to an exercise of Parliament’s primary law-making power which, in terms of section 134 of the Constitution, cannot be delegated to a Minister.

State-sponsored aid agencies will not have to register

Although the Bill generally extends the scope of the Act, as we have just outlined, it will limit the Act in one respect by amending the definition of “private voluntary organisation to exclude State-sponsored aid agencies, i.e. charitable organisations that operate in Zimbabwe pursuant to international agreements concluded with the Government.  Aid agencies such as USAID and DFID will not have to register under the Act, therefore – if indeed they ever had to.

This is a new provision which was not in the earlier Bill.

Government’s power over trusts and other associations will be increased

The Bill will insert a new section 6 in the Act which will:

• require any trust or association that collects funds for charitable purposes to register under the Act,
• prohibit anyone from collecting funds from the public except in accordance with the Act – which means that only registered PVOs will be allowed to do so,
• debar unregistered PVOs from receiving funds from the State, and
• permit the Registrar to require any trust to get itself registered as a PVO, and
• make trustees and their trusts jointly liable to criminal penalties for failure to comply with the new section.

Comment:  The new section is unconstitutional because it unduly limits freedom of association.  Section 86(2) of the Constitution allows that freedom to be limited, but only if:

• the limitation is fair, reasonable, necessary and justifiable in a democratic society,
• the limitation does not impose greater restrictions on freedom of association than are necessary to achieve the purpose of the limitation, and
• there are no other less restrictive means of achieving the purpose of the limitation.

The new section cannot be said to meet these tests.

Registration of PVOs

When an application is made for the registration of a PVO, the Registrar will be able to demand particulars of persons who are beneficial owners of the PVO or who otherwise control it.

Comment:  This will enhance transparency, which is needed if PVOs are to avoid the suspicion that they are being used for money laundering or terrorist financing.

Prohibition of political activism by PVOs

Two provisions of the Bill will prohibit registered PVOs from engaging in political activities:

• A new section 20A will state, as a matter of principle, that PVOs are not to conduct themselves in “any politically partisan manner” whether in the use of their resources or in selecting members.  There is no express sanction for PVOs that breach this principle, but it could be regarded as a “failure to comply with the provisions of this Act” which would justify the Registrar refusing to register a PVO under the new section 9(5)(b).
• A new section 23(4) which will make it a criminal offence, punishable by a fine of level 12 (currently US$2 000), for a PVO to support or oppose a political party or candidate in an election, or – in the case of a foreign PVO – to donate funds to a Zimbabwean political party or candidate.

Comment:  Freedom of association under section 58 of the Constitution extends to associating for political purposes, and this is reinforced by section 67 which says that every Zimbabwean citizen has the right to form, join and participate in the activities of political organisations.  So if an association wants to support or oppose a particular political party or candidate it should be allowed to do so, particularly if its members are Zimbabwean citizens.  Some restrictions may be needed, to prevent funds donated for charitable purposes being diverted to politicians and their parties, but otherwise PVOs should be free to engage in legitimate political activities which fall within the objectives for which the organisations were established.  It is quite conceivable, for example, that a PVO established to promote animal welfare might want to express support for a political party campaigning for an end to vivisection or cruel methods of livestock farming.

Suspension of executive committees of PVOs

Clause 9 of the Bill will replace section 21 of the Act with a new section under which the Minister will be able to apply to the High Court for an order suspending the committee of a PVO and appointing a trustee to manage its affairs, if it appears to the Minister that:

• the PVO has ceased to operate in furtherance of its objectives,
• maladministration is adversely affecting the PVO’s activities,
• the PVO is involved in illegal activities, or
• “it is necessary or desirable … in the public interest”.

Pending the issue of a court order, the Minister will be able to appoint a temporary trustee to run the PVO’s affairs, and will not have to consult the PVO before doing so.

If a trustee finds that committee members have misappropriated the PVO’s funds or assets, he or she will be able to apply to the High Court for an order directing them to restore the funds or assets by a specified date.  If the court grants the order and the committee members do not comply with it, the trustee will:

“submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a judgment of the appropriate court”.

This is a nonsensical provision – not the only one in the Bill – because the order which the trustee will register is itself an order of the High Court, a court with plenary jurisdiction throughout Zimbabwe, so why on earth should it be registered with some other court to be enforced?

Comment:  This provision is probably unconstitutional on at least two grounds:

• One of the grounds on which the Minister can apply for the suspension of committee members, that “it is necessary or desirable … in the public interest”, is excessively wide in the light of the constitutional protection of freedom of association.  It means that members can be suspended even if they have not been guilty of maladministration and have not been involved in illegal activities.  What other legitimate grounds for suspension can there be?
• The Minister’s power to appoint a provisional trustee without affording the PVO concerned a hearing breaches the rules of due process enshrined in section 68 of the Constitution.

To be Continued

We shall continue our analysis in the next Bill Watch.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.