Four special rapporteurs of the United Nations have expressed serious concern over Zimbabwe’s Private Voluntary Organizations (PVOs) Bill designed to control the activities of non-profit entities in the country.
In a letter addressed to President Emmerson Mnangagwa, the rapporteurs said, “If adopted into law in its current version, this bill will have grave consequences for the exercise of civil and political rights, including the right to freedom of association of PVOs in Zimbabwe.
“We welcome the opportunity to submit these comments in light of international human rights standards and best practices on the rights to freedom of association, and we stand ready to engage further with your Excellency’s Government on this matter.”
Cabinet approved the Amendment Bill, which provides for amendments to several provisions of the Private Voluntary Organisations Act [Chapter 17:05] that is currently in force. The Amendment Bill was published in a Government Gazette a month ago.
The Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the situation of human rights defenders and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, say the Amendment Bill will cripple NGOs.
Among some of their concerns is that the Amendment Bill is vague on the definition of private voluntary organizations.
“…The Bill includes to the definition any ‘legal person, legal arrangement’ and also removes some existing exemptions of what is to be considered a PVO. However, it does not define what constitutes ‘legal person’ and ‘legal arrangement’ under the Act. We are concerned this might create uncertainty about the law’s scope and make it difficult for organizations to discern their legal obligations and act accordingly.
“This could also lead to broad interpretations from relevant administrative and judicial bodies, giving them wide discretionary powers to apply the law and impose burdensome requirements on a diverse group of community and informal associations that are currently excluded from regulation. In accordance with Article 22 of the ICCPR, a law may not give broad discretion to those charged with its execution and instead provide sufficient guidance on how to implement it. By not providing clearly and unambiguously drafted definitions of the scope of the PVO Act, the Amendment Bill would fail to meet the legality requirement for permissible restrictions of the right to freedom of association under international law.”
According to the special rapporteurs, are also concerned about Clause 2 of the Amendment Bill with particular reference to the registration of organizations and trusts, which are currently excluded from registering under the PVO Act.
“If the Amendment Bill is passed, universitas organizations and these types Trusts will be subjected to the registration requirements, control and regulation by the Registrar and the Minister. In particular, the Bill introduces new requirements to the operations of trusts registered before the High Court. According to proposed Section 2(4), if the Registrar ‘has a reasonable suspicion that any trust registered with the High Court [...] is collecting contributions from the public or outside the country’ for purposes specified in the definition of private voluntary organizations, the trustees are required to swear not to collect contributions from the public or outside the country under threat of imprisonment up to six months. Trustees are further required to register as a PVO within 30 days of receiving notice from the Registrar.
“We are particularly concerned that these provisions may serve as basis for restricting the operation of many NGOs, including human rights groups, currently operating as universitas organizations or Trusts under the Deeds Registries Act.”
They also expressed concern on the fact that the Bill further amends section 2 of the PVO Act, with the insertion of a new subsection regulating the designation of high-risk PVOs.
“Under the new provisions, the Minister will undertake a risk assessment of all PVOs at least once every five years. Based on a risk assessment, the Minister may designate certain sectors or types of PVOs at ‘high-risk of or vulnerable to misuse by terrorist organizations whether as a way for such terrorist organizations to pose as legitimate entities; or to exploit legitimate entities as conduits for terrorist financing, including for the purpose of escaping asset freezing measures; or to conceal or obscure the clandestine diversion of funds intended for legitimate purposes, but diverted for terrorist purposes’.
“The new provisions empower the Minister to require their registration as well as other “additional or special requirements, obligations or measures [...] in order to mitigate against such risk or vulnerability.”
They are concerned that the new provisions in section 2 of the PVO Act do not clarify how they would be enforced in this manner.
“In particular, the provisions fail to establish a clear process for determining if a type of organization is ‘high risk or vulnerable to terrorist activities or financing.’ Such a lack of clarity confers state authorities an overly broad margin of discretion to unduly interfere with the right to freedom of association. The amendment does not provide objective criteria nor grounds on which the assessment will be carried out. It further fails to provide for safeguards that can protect PVOs from unfair treatment and harassment. We are particularly concerned that civil society groups working on issues of governance and human rights could be especially targeted.”
The Amendment Bill allows for the suspension of a PVO’s executive committee under certain circumstances, providing wide-ranging powers to national authorities to interfere with the governance of PVOs, according to the rapporteurs.
“This new provision establishes that the Minister may make an application to the High Court to suspend all or any of the members of the executive committee of a registered PVO whenever he/she finds that ‘it is necessary to do so in the public interest’ or where the ‘maladministration of the organization is adversely affecting the activities of the organization.’ The Minister may further appoint trustees to run the organization for up to 60 days pending the election of the new executive committee, or may temporarily appoint one or more provisional trustees who will have all the same powers as the executive committee.
“The circumstances under which the Minister may suspend an executive committee are extremely vague and have the potential to cover a broad range of PVO activities. Terms such as ‘maladministration of the organization’ and ‘necessary or desirable in the public interest’ remain overly broad and vague, while offering unchecked discretion to restrict the activities of PVOs to the Minister, a political appointee. Meanwhile, the Minister is empowered to appoint provisional trustees to run the PVO, who shall be paid a monthly salary from the funds of the organization for as long as he or she holds office.”