Contentious Provisions in the NGO Bill, 2015

On 10th April, Government gazetted the Non-Governmental Organisations Bill, 2015. The Bill is being presented to repeal the Non-Governmental Organisations Act (as Amended in 2006).
Below are the contentious provisions of the bill;

• The definition and categorizations into: a) foreign NGO; b) international NGO; c) partnership NGO; regional NGO from the surface, one may think of it as a normal distinction but reading between the lines, motive is questionable. It is likely that the sector may not act as one because of likely differentiated implications of the law ranging from payment of fees to other incentives or disincentives.
• Ensuring that existing law is in line with the NGO Policy had been presented as the main reason for legislation by the NGO Board. However, this rationale is not evoked in the NGO Bill. In fact, the NGO Policy, is not mentioned at all in the proposed law.
• The tone and spirit of the NGO Policy is starkly different from the proposed law: for instance the NGO Policy explicitly recognizes the contribution of NGOs/CBOs beyond service delivery in areas such as policy advocacy, human and gender rights, good governance and accountability etc; the Policy emphasizes the constitutional rights of NGOs (freedom of association, autonomy etc) and one of its stated aims is to strengthen the role of NGOs in citizen and community participation and ‘empowerment’. None of this is retained in the proposed law.
• Objectives: Although the ‘Objectivess of the Bill’ are stated as ‘developing a voluntary, non-partisan charity culture’, ‘providing an enabling environment for sector’, ‘promoting a spirit of cooperation, mutual partnership and shared responsibility between NGOs and government’, ‘promoting the capacity of the sector to be sustainable and deliver services professionally’, there are hardly any provisions in the law to operationalize these aspirations.
• Definition of NGO: The definition seems to limit the scope of NGO activity: ‘a private grouping of individuals or associations, including religious bodies, established to provide voluntary services including education, literacy, scientific, social or charitable services to the community or any part, but not for profit or commercial purposes’. Research and policy advocacy are not explicitly excluded, but it will be a question of interpretation for the Board.
• Single legal regime and requirement for all NGOs to re-register: The law establishes a single legal regime for the registration of NGOs with the Board (incorporation and then permits). This abolishes the role of the Registrar of Companies. The law actually compels all NGOs, whether they are currently registered as companies limited by guarantee (under the Companies Act) or registered by the NGO Board, to apply for registration afresh within 6 months of the law coming into effect (while being allowed to continue their work).
• Powers of the Minister: However, the NGO Board is not independent or even autonomous, in that the Minister appoints members of the board (the governing body of the NGO Board) and can fire them on grounds such as ‘incompetence’. The Minister also sets their remuneration. The Minister also appoints the Executive Director who heads the Secretariat of the Board. Most importantly, appeal of Board decisions is only with the Minister, and the Minister can give binding instructions of a ‘general or specific nature’ to the Board.
• Composition of the Board (9 in total). The board (of the NGO Board) is appointed by the Minister with the approval of Cabinet (not Parliament, like the EC or UHRC). Members need to have experience of 10 years in a list of fields, including law, security, public finance, local governance, organization regulation, and IR. There is no requirement for anyone on the Board to have experience with civil society, and there is no consultative mechanism the Minister has to follow.
• The key role of RDCs and DRDCs who chair the DNMC and SNMCs respectively highlights the primacy of security concerns in the proposed law. RDCs are the President’s representatives in districts, and one of their primary responsibilities is to chair the district Security Committee. They are also political appointees, reporting directly to the Office of the President. This negates the non-partisan/non-political context in which NGOs have to operate.
• NGOs have to have the approval of both the DNMC and the local government to operate in a given district. This includes having a signed MOU with local government. The DNMC, based on its monitoring of NGO activities and performance, advises the national NGO Board concerning the permit that is to be given to NGOs to allow operations in a given district. In effect, there is authorization required from three entities (the DNMC, the local government and the NGO Board). The DNMC also makes recommendations to the NGO Board for registration of NGOs.
• An NGO cannot extend to a new area unless it has received permission to do so. It is unclear whether this must be reflected in the permit issued by the Board, in turn based on recommendation of the DNMC of that area and a signed MoU with the local government or whether a ‘recommendation of the Board through the DNMC of that new area’ can suffice (Art 40 (b))

Other Constricting Provisions in the NGO Bill

Mandatory registration through a laborious process
Under Section 31 , registration is mandatory and no organisation shall “operate in Uganda, unless it has been duly registered with the Board.” Bill further grants the NGO Board power to decline to register an organisation if its objects are “in contravention of the law” or “where the application for registration does not comply with the requirements of this Act,” or if the NGO Board thinks it is in the “public interest” or “any other reason that the Board may deem relevant.”

Whereas a legal regime to provide a conducive environment for the exercise of these freedoms is not contested, the law should provide for an easy and non-discriminatory registration process which takes “the form of notification” rather than authorization approach. In the event that government feels it cannot grant registration status to a group of people seeking to associate, it must provide legally justified grounds for such position and provide for judicial appeal. The state does not have the capacity to ban or sanction associations for failure to register although it should be noted that registered associations attract certain privileges and benefits under the law.

Operating Permits & Involuntary Dissolution
Under section 40 (a)(b), the Bill requires a registered organisation “not to carry out activities in any part of the country” unless it has rreceived “approval” of the “DNMC and Local Government of that area and has signed a Memorandum of Understanding with the Local Government to that effect.” These provisions negate the very essence of the freedom to associate without requiring mandatory registration, permits or legal status pegged on “approval” rather than a notification approach. The Bill further provides the Board with powers to suspend operating permit or to involuntarily dissolve an organisation. These drastic measures must only be exercised when there is a “a clear and imminent danger resulting in a flagrant violation of national law, in compliance with international human rights law.”

Troubling Broad & Vaguely Worded Provisions
The Bill is littered with broad and vaguely worded provisions which open the door to silence peaceful government critics and activists. Provisions such as “public interest,” “act which is prejudicial to the security of Uganda and the dignity of the people of Uganda,” “at any reasonable time,” “opinion of the Board,” “for any other reason that the Board may deem relevant,” “any other disciplinary action that the Board may deem fit” violate the principles which guide establishment of limitations to the freedom of association and other related human rights.

Special Obligations
Under section 40, the Bill seeks to create ambiguous “special obligations” for all organisations that have successfully acquired registration status. The section further demands that all organisations must “co-operate” with local councils in the area of operations. This raises questions on theprinciple of autonomy. Section further demands that no organisation shall engage in “any act” which in the opinion of the Board is “prejudicial to the interests of Uganda and the dignity of the people of Uganda”.

These vague provisions violate the requirement of “prescribed by law” doctrine as provided in the ICCPR. It fails to provide clear knowledge of when one may violate the law and opens up for unfair and subjective treatment.

Criminalising Legitimate Freedoms
Under section 31 (10)(11), the Bill seeks to criminalise legitimate behaviour of people exercising their freedom to associate. The section provides that any person who “contravenes any provision of this Act” would amount to a criminal offence and is liable, on conviction to a fine of up to 4 million or imprisonment of up to 4 years or both. The wording of this provision when interpreted in line with subsection 11(a) can be used to activate all the provisions of this bill into potential criminal sections. Section further provides for up to 8 years imprisonment terms for directors or officers of organisations.

The section further criminalises right to freedom of association by providing that it is an offence to carry out any activity “without a valid permit” or deviate from “the conditions or directions specified” in the permit. The section places personal liability for insignificant administrative actions or omissions committed during official duties yet at the same time, penalises the organisation by revoking the permit or ordering for its dissolution. The offences that this section seeks to criminalise are civil in nature and must not be subjected to the criminal code. If any individual commits a cognizable criminal offence, the established criminal legislation can deal with that more effectively. Criminal sanctions must not be smuggled into a law that seeks to regulate exercise of legitimate human freedom.

Section 7 of the Bill grants the NGO Board powers to suspend permits, expose “affected” organisations to the public, black list organisations, or “any other disciplinary actions that the Board may deem fit”. This section violates Article 22 of the ICCPR and Article 42 of the Constitution of Uganda in as far as the right to just and fair treatment in administrative decisions is concerned. The Bill does not provide for clear judicial oversight and this further negates the Constitutional principle of fair hearing under Article 28.

Dangers of Dual Liability
The legal principle of requiring associations and other entities to register and acquire legal status is anchored on the legal dividend of protection of individuals from personal liability accruing from contractual or other related liability in the operations of an entity. Under section 31 of the Bill, its provided that an organisation registered shall be “a body corporate with perpetual succession and with power to sue and be sued in its corporate name and shall be issued with a certificate of incorporation by the Board”. The Bill then goes silent on any other privileges associated with legal entity status. It instead returns to propose criminal liability for directors and officers of organisations while shielding NGO Board directors and staff. The Bill should proceed to guarantee the key benefits or legal status such as preferential tax treatment, ability to contract as an organisation, personal immunity from liability for founders, officers and directors of such organisation et cetera.

The analysis of the rights to freedom of association and expression is premised on the principle of legality, nondiscrimination, appreciating limitations and their legitimate aims, and the principle of necessity in a democratic society. Any attempt by a law to limit the fulfillment of these rights without providing a compelling argument to satisfy the above named principles is an affront to these freedoms and should be challenged to the level of its inconsistency with the Constitution and Human Rights standards to give birth to a progressive legal regime for operations of nongovernmental organizations.
Conclusion and Implications

In its current form the NGO Bill, if passed into law will greatly undermine the growth and development of a publically accountable NGO sector in in Uganda. Its passage will have serious implications, most of which are negative.

First, as stated in previous sections and in particular the discussion of the bigger picture, it is clear that the real challenge and struggle should not be about the text of the Bill or legal details for while these are important, the more fundamental focus should be on the systemic challenges of governance and constitutionalism that the country faces today. Second, the overall intent of the law is negative and while there are some elements that appear positive like the need to strengthen a previously poorly facilitated NGO Board, increased support to it will be for all the wrong reasons or surveillance and control agenda of the state. Further, a close watch must be made of the evolving role of the NGO Board and its implications on the role that Umbrella Organisations like the National NGO Forum and Networks play. Could the NGO Board in fact become the foisted mouthpiece of the sector, even when its role and support to the sector is contested?

Third, the NGO sector is still viewed as a threat and that must be controlled rather than allowed to flourish. The security mind-set that informed the maiden 1989 NGO Statute remains the same today, without concomitant evidence that the sector really poses such a threat to the state. Fourth, this spirit of this legislation, if not altered is likely to even worsen NGO transparency records as many will try to become ‘creative’ to survive and this will further tarnish the credibility of the sector. Related to this, we are likely to see even stronger moves towards self-censorship by NGOs.

The NGO sector is at present opposed to the NGO Bill in its current form. Over 70% of the provisions need reconsideration, with many requiring major overhaul. If passed in its current form, the sector will challenge the law in courts of law, among other important lawful actions.