Regulation or strangulation? NGO laws in Africa, part 1: South Africa

I am introducing a “series on civil society laws” across the African continent. Some may ask why civil society? It is a subject very close to my heart but more importantly, civil society is perhaps the most effective platform we have to further our democratisation and development agenda.

But as most of you would know, there has been a very negative development over the last few years. There has been a proliferation of laws that govern the activities of civil society organisations in many countries. The most recent is Ethiopia’s Charities and Societies Proclamation (2008). The question that has arisen is whether these laws regulate or strangle civil society? In attempting to explore this question, I decided to undertake a continental scan of civil-society laws. It is very interesting to note how some of these laws are crafted; the language they adopt and the punitive mechanisms.

It is not all gloom and doom though. A handful of countries have laws that are progressive and provide best practices.

This article is the first of my series on these laws. It forms part of my ongoing research on the following countries; Ethiopia, Egypt, Kenya, Liberia, Malawi, Mozambique, Namibia, Senegal, South Africa, Tanzania, Ghana, Nigeria, Uganda, Zambia and Zimbabwe.

Because the contexts in these countries are so different and the historical state-civil society relations are also diverse, I decided to present country profiles in this series. The bigger and consolidated report will find its way into academic journals and policy forums.

South Africa has been in the news lately for right and wrong reasons. But one of the things that seems to have caught the attention of civil society leaders is that the Zuma administration is likely to be tolerant and inclusive of civil society, though this is still to be tested. But I think we must put into context state-civil society relations in South Africa before even attempting to discuss the NPO Act of 1997.

Prior to the advent of democracy in South Africa, much of the 1980s were characterised by a vibrant civil-society sector that played key functions in challenging the injustices of the apartheid regime. Further, this sector addressed developmental needs of the communities living under a repressive environment. It follows therefore that it was inevitable that civil society actors would find themselves on a collision course with the state. But it was civil society groups that worked jointly with other pro-democracy forces to open up a closed system.

It is for this reason that with the fall of apartheid, the South African government recognised the role that civil society — in all its totality — plays in development, democratisation, governance and other relevant spheres. This recognition came in the form of an NPO Act in 1997. The Act was an intention to establish and put in place an enabling environment for the nonprofit sector. Civil society was viewed as part of the solution in transforming people’s lives and moving the country forward. As a matter of fact, some studies have shown that the non-profit sector is a major force to be reckoned with. As such it cannot be ignored in the development landscape.

Be that as it may, there have been cases also where the state or certain individuals in powerful political positions have attempted to repress the functions of civil society. But on the whole South Africa’s “madness” has not gone into “overdrive” like other countries in the continent in her treatment of civil society.

For all intents and purposes, the NPO Act was crafted in an inclusive manner and appeared very progressive. Of course, the law is one thing and implementation is another. Below I look at some of the provisions and elements of the Act.

As I stated above, the formulation of this law involved a lengthy period of consultation between government, civil society and other development partners. A number of NGOs played a big role, for example, the now defunct Development Resources Centre.

Unlike other laws which I will present in the following weeks; the preamble of the South African NPO Act is very accommodating of civil society. There is recognition that civil society is a development partner of the state. For instance, it states that the purpose of the Act is;

To provide for an environment in which nonprofit organisations can flourish
To establish an administrative and regulatory framework within which non-profit organisations can conduct their affairs

As I shall show in the next weeks, this is not how most laws in the continent on civil society begin. In most laws, there is a desire to control and punish civil society if caught on the wrong side of the law. There is no recognition of the roles played by civil society. The progressive nature of the South African Act is also outlined in its objectives whose overall aim is to “encourage and support non-profit groups in their contribution to meeting the diverse needs of the population’. Some of these objectives include the fact that the Act intends to:

To encourage nonprofit organisations to maintain adequate standards of governance, transparency and accountability, and
To create an environment within which the public may have access to information concerning registered nonprofit organisations
To promote a spirit of cooperation and shared responsibility within government, donors and nonprofit organisations.

These objectives point to the attitude of the state towards civil society. It is one of appreciation of the roles played by civil society. It is also one of constructive partnership. This attitude runs through the whole Act. For example, the provision on the establishment of a directorate for nonprofit groups, the functions are spelt out in a way that suggests cooperation, mutuality and respect rather than control and punishment. The roles of the directorate are to facilitate the work of civil society groups. In other countries, bodies such as the directorate are established to police, monitor and eventually sanction civil society.

In South Africa, the Ministry of Social Development is responsible for the registration of civil-society groups.

The NPO Directorate is appointed by the minister. The panel of arbitrators and the arbitration tribunal is also appointed by the minister. However, even though the minister makes these appointments, there is a nomination process in place which the minister cannot circumvent. Further, the Act does not prescribe the departments from which the panel should come from. The minister is supposed to publish a notice calling for nominations; and as soon as the names are provided, they too ought to be publicly published for comments.

The process is rigorous. However in other countries, the minister has the sole right to appoint members of NGO boards. Some of these laws also prescribe from the onset which departments or ministries ought to nominate members of the board.

I must say that for me this has been an interesting set of laws. In some countries, registration of civil society groups is the responsibility of the ministries of internal affairs, foreign affairs or even the presidency. This is an indication of the nature of the state in those countries and how it views civil society. In most states that can be defined as militaristic or police states, civil society is the responsibility of those ministries responsible for internal security.

Of-course like in all other countries, requirements for registration and the registration exercise itself is cumbersome and burdensome especially for small groups. The benefits for registration do not match the amount of time and energy spent on preparing and registering institutions. According to a review of the Act conducted in 2004, most organisations registered because they thought it was compulsory. They also thought that registration would bring more funding as well as tax benefits. However, this has not happened. Only a few bigger organisations have accrued some benefits. The motivation to register therefore has waned in the face of administrative burden and compliance issues.

Perhaps what must be noted is that the actual process of registration is conducted in transparent and accountable manner. There are mechanisms in place for acceptance as well as rejection of registration. The directorate must provide reasons in writing for not registering an organisation within a reasonable period of time. In addition, there is an appeal process. A non-profit organisation can appeal to the tribunal and not to the minister as is provided for in other countries. The tribunal is not as powerful as other boards in other countries. Worse still, there are some laws elsewhere where disgruntled groups do not even have a right to appeal.

There are other provisions in the Act that are meant to improve the accountability and reporting frameworks of civil-society groups. There is also a requirement that the NPO directorate must avail information for public access. These and many other provisions make the Act one of the best pieces of legislation as far as administration and regulation of civil society is concerned.

There have been challenges however in the implementation of the Act. Some of these challenges relate to the Act itself, some to the directorate and others to civil society as a whole. For example, there has been an increase in the number of non-profit organisations and this has caused backlogs for the directorate. The directorate has also not clearly outlined what the benefits for groups are if they register. It also lacks the capacity and resources to implement the Act. As a result questions have been asked such as:

“Has the registration contributed to an enabling environment for civil society?”
“Does the Act and the directorate create an enabling framework for the administration and regulation of civil society?”
“What have been the benefits arising out of the Act?”

Part of the finding of the 2004 assessment of the impact of the Act was that it has been “high on administrative and regulatory environment”, but less on establishing and maintaining standards in the sector. It also has not improved relations between the government, civil society and development actors. This should be a cause for concern for civil society as South Africa enters into a new era.

Overall however, I think that the NPO Act on its own is not strangling civil society, but as always civil society must be on the alert to guard jealously its space. In the next series, I will begin to discuss whether or not the space for civil society is shrinking or opening up with all these struggles and counter-actions by both states and civil society formations.