On Friday 5th November 2021, the government of Zimbabwe gazetted The PVO Amendment Bill 2021.
The Purpose of the Bill
According to its memorandum, the Bill has three purposes:
to comply with recommendations made by the Financial Action Task Force (FATF),
to streamline administrative procedures and allow for the efficient regulation and administration of PVOs, and
to prevent PVOs from undertaking political lobbying [This purpose is mentioned in the memorandum almost as an afterthought, but it may be the principal objective of the Bill].
The amendments to the PVO Act are part of efforts to entrench authoritarian rule and weaponise the law and this has far reaching implications on democracy in Zimbabwe especially as we head towards the 2023 elections.
Clause 2 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.
This is unconstitutional because the Minister is not obliged to give notice to the persons, legal arrangements, etc. before declaring them to be vulnerable to terrorist misuse, nor will he or she have to invite them to make representations before making the declaration. This violates the principles of due process and, more specifically, infringes section 68 of the Constitution which guarantees everyone the right to administrative conduct that is procedurally fair.
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 usurping Parliament’s primary law-making power which, in terms of section 134 of the Constitution, cannot be delegated to a Minister.
Clause 2 of the Bill also contains a provision permitting the Registrar (i.e. the Director of Social Welfare) to prohibit trusts that are registered with the High Court, but are not registered PVOs, from collecting contributions from the public or from outside Zimbabwe for any of the purposes specified in the definition of “private voluntary organisation” (i.e. charitable purposes, social welfare assistance, legal aid and animal welfare).
This is unconstitutional as it infringes on the freedom of association as guaranteed by section 58 of the Constitution which can only be limited by a law that is fair, reasonable, justifiable and necessary in an open democratic society (section 86 of the Constitution).
Clause 5 of the Bill will insert a provision into the Act permitting the PVO Board to cancel the registration of a PVO if it engages in political activities. But the Bill does not define political activities.
This is unconstitutional since 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
The Bill gives the responsible Minister to suspend an Executive Committee of a PVO yet this was declared unconstitutional by the Supreme Court on the grounds that it does not afford PVOs an opportunity to be heard before the Minister suspends their committees
The Minister can appoint a temporary trustee to run the PVO’s affairs, and the Minister can do this without inviting representations from the PVO concerned. And as in the existing section, committee members who have been suspended for more than 30 days will cease to hold office and be disqualified from standing for re-election.
Overall, the Bill is badly conceived and badly put together and the most dangerous aspect of the Bill is its vagueness. The Bill can be used to prevent civil society organisations from engaging in civic education or election observation or similar activities
Limiting the activities of CSOs and subjecting them to government control, will stifle not only democracy but also economic development
The introduction of draconian legislation (through abuse of the ruling party, Zanu PF’s Parliamentary majority) is part of attempts to close the democratic space hence the concerted efforts to amend the constitution before its full implementation.
The closure of the democratic space and persecution of pro-democracy forces puts a huge dent on the country’s image and ultimately works against efforts to re-engage with the international community.
As Crisis in Zimbabwe Coalition, we shall continue to use our convening role to mobilize all progressive forces in the country to challenge the continued closure of the democratic space by the government.