BILL WATCH 37/2022

[16th August 2022]

Private Voluntary Organisations Amendment Bill

In Light of Conventions to which Zimbabwe is a State Party

Veritas has considered the Private Voluntary Organisations [PV0] Amendment Bill in light of its constitutionality and we have pointed out how its provisions, and the provisions of the Minister’s Committee Stage amendments, violate our Constitution.  See Bill Watches 72/2021 of the 11th November 2021 [link], 74/2021 of the 15th November 2021 [link] and 26/2022 of the 16th June 2022 [link].

There is also an international perspective to the Bill.  According to section 34 of the Constitution of Zimbabwe,

“The State must ensure that all international conventions, treaties and agreements to which Zimbabwe is a party are incorporated into domestic law.”

As a corollary to its obligation under section 34, the State must ensure that domestic law does not violate international conventions, treaties and agreements to which Zimbabwe is a party.

It should also be noted that our Constitutional Court is following a principle of taking regional and international law into consideration in its judgments, thereby complying with sections 46(1)(c) and 331 of the Constitution.

Zimbabwe is a State Party to various regional and international conventions, treaties and agreements, including:

·      the International Covenant on Civil and Political Rights [link],

·      the African Charter on Human and Peoples’ Rights (ACHPR) [link],

·      the SADC Principles and Guidelines Governing Democratic Elections and Election Observation [link] and

·      the African Charter on Democracy, Elections and Governance [link].

In this Bulletin we examine the way in which some of the constitutional violations we noted in our earlier Bill Watches also violate those conventions, treaties and agreements.

Right to Freedom of Association

In our Bill Watches 72/2021 and 26/2022 we explained that the Bill and its Committee Stage amendments infringe section 58 of the Constitution, which states that everyone has the right to freedom of association.  We pointed out that section 58 protects the right to associate together and carry out activities in private voluntary organisations (PVOs), whether they are trusts, associations or non-profit companies.

The rights of PVOs and other persons to freedom of association are also protected by the following provisions of international conventions and treaties:

·      Article 22 of the International Covenant on Civil and Political Rights (ICCPR), which states that

“Everyone shall have the right to freedom of association with others…. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order … the protection of public health or morals or the protection of the rights and freedoms of others.”

·      Article 10 of the African Charter on Human and Peoples’ Rights (ACHPR), which states that

“Every individual shall have the right to free association provided that he abides by the law.”

To the extent that the Bill infringes section 58 of the Constitution by restricting freedom of association, it also infringes article 22 of the ICCPR and article 10 of the ACHPR.

Right to Freedom of Expression

Human rights are interrelated and interdependent and therefore the protection of one right depends on the effective protection and promotion of other rights.  So by limiting freedom of association, the Bill will also limit freedom of expression stipulated in section 61(1)(a) of the Constitution, which states that

“Every person has the right to freedom of expression, which includes … freedom to seek, receive and communicate ideas and other information.”

PVOs carry out their mandates through seeking receiving and communicating ideas and information in order to achieve their desired objectives.  Without freedom of expression they cannot operate or even exist.  To the extent that the Bill infringes their freedom of association, therefore, it also infringes their right to freedom of expression.

Freedom of expression is also protected by the following international instruments to which Zimbabwe is a party:

·      Article 19 of the International Covenant on Civil and Political Rights, which states that

“Everyone shall have the right to hold opinions without interference … Everyone shall have the right to freedom of expression;  this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

·      Article 9 of the African Charter on Human and Peoples’ Rights, which states that

“Every individual shall have the right to receive information … Every individual shall have the right to express and disseminate his opinions within the law.”

These articles are also infringed by the Bill.

Right to Administrative Justice (Fair Administrative Conduct)

In our earlier Bill Watches we noted that the Bill and the PVO Act itself will allow arbitrary decisions regarding PVOs to be made by the Minister and Registrar.  For example:

·      Under section 18 of the Act, the Registrar can determine that branches of PVOs are independent PVOs if he or she thinks they are not under the control of their parent PVO. Such a determination has the effect of rendering the branch illegal (because it is not registered) and it can be made without consulting the parent PVO or the branch concerned, and without affording them an opportunity to make representations.

·      Under section 21 of the Act, as amended by clause 7 of the Bill, the committee [often called a Board] of a registered PVO can be suspended by the Minister and, if the suspension lasts for more than 30 days, banned from being re-elected, without being given a chance to contest their suspension.  Pending a court decision on the validity of the suspension, the Minister will be empowered to appoint a trustee to run the affairs of the PVO.

·      Under clause 2 of the Bill the Minister will be able to extend the application of the Act to cover institutions, bodies, associations and other persons that 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 covered by a Ministerial declaration will have to register as PVOs under the Act and will be subject not only to the obligations laid down in the Act but also to any additional requirements the Minister may specify in regulations.  The Minister will not be obliged to give notice to the persons before making such a declaration, nor will he or she have to invite them to make representations.

·      Under a new section 22 which clause 8 of the Bill will insert into the Act, the Minister will be required to assess the vulnerability of PVOs and similar organisations to being used for money laundering and terrorist financing.  The assessment will be done without any involvement of PVOs, and there will be no appeal against the Minister’s decision.  In this respect the new section is contrary to recommendations of the Financial Action Task Force (FATF).

·      Appeals against the Registrar’s refusal to register PVOs or a decision to cancel the registration of a PVO will be made to the Minister under a new section 14 to be inserted into the Act by clause 6A of the Bill.  The Minister’s powers under the new section will be very limited.  Unlike the existing section, which allows the Minister to confirm the decision appealed against or to give such other decision as he or she considers should have been given, the new provision will restrict the Minister to exercising review powers:  he or she will be allowed to set aside a decision only on procedural grounds, for example if the Registrar has shown bias or malice, or has failed to take relevant factors into account, or if the decision was grossly unreasonable.

All these decisions, we said in our earlier Bill Watches, violate section 68 of the Constitution which guarantees to everyone, including PVOs, the right to procedurally fair administrative action.  We also noted that they violate the Administrative Justice Act, an Act that provides for the right to administrative conduct that is lawful, reasonable and procedurally fair.

The decisions also violate the following international instruments to which Zimbabwe is a party:

·      Article 26 of the International Covenant on Civil and Political Rights, which states that

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”

·      Article 3 of the African Charter on Human and Peoples’ Rights (ACHPR), which states that

“Every individual shall be equal before the law … Every individual shall be entitled to equal protection of the law.”

·      Article 7 of the ACHPR, which states that

“Every individual shall have the right to have his cause heard.  This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.”

Right to Participate in Politics

Clause 9B of the Bill will amend section 23 of the Act to make it a criminal offence for PVOs to support or oppose political parties or candidates in any election.  As we pointed out in our earlier Bill Watches, this is not constitutional because:

·      Sections 58 and 61 of the Constitution guarantee that everyone, including PVOs, are entitled to freedom of assembly and freedom of expression, and

·      Under section 67 of the Constitution, citizens of Zimbabwe are entitled to form associations and organisations – PVOs – to participate in the activities of political parties, to campaign freely and peacefully for political parties or causes, and generally to participate in peaceful political activities.

The clause is also contrary to the following international instruments to which Zimbabwe is a party:

·      Article 25 of the International Covenant on Civil and Political Rights, which states that

“Every citizen shall have the right and the opportunity, … without unreasonable restrictions, … to take part in the conduct of public affairs, directly or through freely chosen representatives.”

·      Article 13 of the African Charter on Human and Peoples’ Rights, which states that

“Every citizen shall have the right to participate freely in the government of his country.”

·      Principle 4.1.1 of the SADC Principles and Guidelines Governing Democratic Elections provides that member States commit themselves to “Encourage the full participation of all citizens in democratic and development processes.”

·      Article 12 of the African Charter on Democracy, Elections and Governance states that

“State Parties undertake to implement programmes and carry out activities designed to promote democratic principles and practices as well as consolidate a culture of democracy and peace.  To this end, State Parties shall … create conducive conditions for civil society organizations to exist and operate within the law.”

·      Article 28 of the same African Charter states that

“State Parties shall ensure and promote strong partnerships and dialogue between government, civil society and private sector.”

It is clear therefore that international instruments to which Zimbabwe is a party recognise that civil society organisations (PVOs) are entitled to engage in political activities.

Conclusion

From this analysis it is clear that the Private Voluntary Organisations Amendment Bill is not only unconstitutional but it also violates regional and international conventions, treaties and agreements which Zimbabwe, as a party, has pledged to uphold.