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A new breed of legal support

NGOs in Tanzania: Choppy legal waters ahead?

2019-06-30 14:01:43

By Paul Kibuuka @tzpaulkibuuka

This week, on Thursday 27 June, the Parliament of Tanzania passed the Written Laws (Miscellaneous Amendments) (No. 3) Bill, 2019, which seeks to bring weighty changes to, among other laws, the Non-Governmental Organizations Act, Cap. 56 (the “NGOs Act”). However, for this Bill to become law, the President must assent to it by appending his signature.

The Bill, made public and introduced in Parliament last week on Wednesday, 19 June under a certificate of urgency to fast-track its passage, has set tongues wagging, especially among civil society. Prior to its passage, much had already happened to the legal landscape for NGOs in Tanzania. In 2005, the Written Laws (Miscellaneous Amendments) Act No. 11 of 2005 brought material amendments to the NGOs Act.

While the law should be adapted to remain relevant and purposeful in Tanzanian society, a central part of what NGO executives and managers mean by the ‘Rule of Law’ is legal stability and predictability of the legal landscape for NGOs—in the absence of which it is difficult to do long-term planning and to improve delivery of public services such as health, education and sanitation through State-NGO partnerships.

It is apparent that the cusp of passage of the Written Laws (Miscellaneous Amendments) (No. 3) Bill, 2019 has not been hustled off Parliament by civil society’s constructive lobbying efforts aimed at persuading legislators to modify it. And although it is unclear which of the recommendations from civil society have been taken into consideration, nevertheless the government has understandably agreed to make some modifications to the Bill. 

A key point to note is that the Bill seeks to narrow down the definition of the term “Non-Governmental Organization” with a view to distinguishing an NGO from other entities registered under other laws.

Consequently, the following entities would be excluded from the definition: a company formed and registered under the Companies Act, 2002; a trust formed and registered under the Trustees’ Incorporation Act, Cap 318; a trade union formed and registered under the Employment and Labour Relations Act, 2004; a religious or faith propagating organisation; a cooperative society formed and registered under the Cooperative Societies Act, 2013; and an agricultural association formed and registered under any written law other than the NGOs Act.

Other entities excluded from the definition are: a society formed and registered under the Societies Act, 337; a political party formed and registered under the Political Parties Act, Cap 258; a microfinance group (VICOBA) registered under the Microfinance Act, 2018; a sports association formed and registered under the National Sport Council of Tanzania Act, 1967; and any organisation which the Minister responsible for NGOs may, by order published in the Gazette, declare not to be an NGO for the purpose of the NGOs Act.

The implications of these changes are not far to seek. Under the Companies Act, 2002, companies limited by guarantee are most formed by not-for-profit entities like NGOs. The exclusion of these companies from the definition of NGOs means that all previous registrations under the Companies Act, 2002 in respect of companies that are engaged in NGO-related activities would fall away, bringing such companies under the NGOs Act.

As if that wouldn’t be eclipsing enough, the broad powers of the Registrar of NGOs to suspend any NGO which violates the provisions of the NGOs Act; to monitor and evaluate NGOs on a quarterly basis; to collaboration with law enforcement organs when investigating NGOs; and to issue certificates of registration valid for a renewal period of ten years, would fetter effective functioning of NGOs in Tanzania.

Further to that, the impact of the changes would likely be felt in work and residence permit authorisations, especially for NGOs registered outside the NGOs Act by requiring executives and managers of NGOs to obtain prior clearance from the Registrar of NGOs notwithstanding the fact that they are not registered as NGOs.

Navigating choppy legal waters of the fast-changing Tanzanian NGO landscape could prove to be more difficult than the Indian Ocean’s deep seas. This would necessitate high buoyance life jackets and a larger “single decker” pontoon boat designed for the waters. Safe riding!

Paul Kibuuka is the managing partner of Isidora & Company Advocates. Email: paul.kibuuka@isidoralaw.co.tz Twitter: @tzpaulkibuuka This article was first published in The Citizen on Saturday, 22 June 2019.

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