BILL WATCH 30/2024

[5th September 2024]

The Private Voluntary Organisations Amendment Bill :
A Progress Report

As we reported in Bill Watch 29/2024, the Private Voluntary Organisations Amendment Bill completed its Committee Stage in the National Assembly on Tuesday.  Amendments proposed by the Minister of Justice, Legal and Parliamentary Affairs were all adopted by the Committee, while amendments proposed by opposition Members were almost all rejected.  The Bill is now with the Parliamentary Legal Committee for its opinion on the constitutionality of the Bill as amended.  If, as expected, the PLC issues a non-adverse report, the Bill will be read for the third time (largely a formality) before being sent to the Senate.

In this Bill Watch we shall outline the amendments that have been made to the Bill, but before doing so we should outline the history of the Bill so far.

History of the Bill

The Government published a Bill to amend the Private Voluntary Organisations Act as long ago as 2021.  It passed slowly through Parliament and reached the President’s office for assent in early August 2023.  The President had reservations about the Bill and returned it to the National Assembly but Parliament was dissolved before the Assembly could reconsider it so the Bill lapsed.

A new Bill was published in January this year and it can be accessed on the Veritas website [link].  We analysed it in Bill Watches 5/2024 [link], 6/2024 [link] and 9/2024 [link] which can also be accessed on our website.

Following representations by civil society organisations, the Minister of Justice agreed to make amendments to the Bill when it reached the Committee Stage in the National Assembly, and he duly published them in the Assembly’s Order Paper.  An opposition Member of Parliament, Mr Mushoriwa, believed the amendments did not ameliorate all the undesirable features of the Bill, so he published his own amendments.  In a lengthy debate on the 11th July, a some amendments put forward by Hon Mushoriwa were accepted as were all the Minister’‘s amendments taken that day.  When Parliament resumed on Tuesday, 3rd September, after a long adjournment, the Assembly went through the rest of the proposed amendments, passing all the Minister’s and rejecting all but a few of Mr Mushoriwa’s.

So what amendments were passed?

Amendments Passed by the National Assembly

A great many amendments were made to the Bill – so many, in fact, that it would have been simpler if the Minister had withdrawn the Bill and presented a completely new one in the Assembly.  He didn’t do that, so it is not always easy to understand the effect of some of the amendments that were passed.  However, the most important ones seem to be the following:

New preamble

A new preamble will be inserted in the PVO Act which is full of heart-warming sentiments:  it recognises the important role of PVOs in serving the public good and supporting development, and states the Government’s desire to establish an enabling environment for PVOs.

However disingenuous the Minister may have been in allowing these sentiments to be expressed in the new Preamble, they will have to be taken at face value by courts when interpreting the Bill and may persuade judges and magistrates to ameliorate some of the Bill’s harsher provisions.

PVO Board

The PVO Board will be retained (the Bill in its original form would have abolished it) but its composition will be changed.  The number of representatives of PVOs will be reduced, though they will still form a majority of the Board.  The Board’s functions will be restated but will be much the same as they are in the Act at present.

Registrar of PVOs

The Registrar will no longer have almost dictatorial powers over PVOs.  He or she will be responsible for provisionally registering PVOs but the decision on final registration will rest with the Board.  The precise division of responsibilities between the Board and the Registrar is not, however, not clear.

Registration of PVOs

Provisions for the registration of PVOs will remain very much the same as they are in the unamended Bill.  If the Registrar thinks that an unregistered trust is operating illegally, he or she will have power to order it to get registered within a fixed period – and there will be no appeal to the Board against the Registrar’s decision.

Appeals

In our earlier bulletins analysing the Bill, we noted that there was no proper provision for appeals against the Registrar’s decisions – the Bill gave a so-called right of appeal to the Minister, but the Minister’s powers on appeal would not allow him or her to set aside a decision except on narrow procedural grounds – bias, corruption, mistake of law and so on.  The Minister’s amendments, passed by the Assembly, do not change this position substantially:  they will give a further right of appeal to the Administrative Court against decisions of the Board or Registrar, but the Court will be restricted to the same narrow grounds as before – so the Board’s and the Registrar’s decisions will be unchallengeable except on procedural grounds.  If a decision is wrong in substance it will not be open to challenge.  This is unconstitutional because sec 68 of the Constitution guarantees a right to administrative conduct that is both substantively and procedurally fair.

Principles governing PVOs

The Bill will insert a new section in the PVO Act setting out principles to be observed by PVOs, which in essence is a good idea.  One of the principles, however, would prohibit PVOs from accepting donations from “illegitimate or immoral sources” – a ridiculously vague prohibition.  The Minister’s amendment, approved by the Assembly, alters this phrase to “illegitimate or illegal sources”, which is almost as vague..

Amendments to other statutes

In addition to amending the PVO Act, the Money Laundering and Proceedings of Crime Act and the Criminal Matters (Mutual Assistance) Act – amendments which have at least some connection with PVOs – the Assembly approved amendments to the Criminal Law Code and the National Social Security Authority Act which have nothing whatever to do with PVOs.

Inserting these new amendments into the Bill at the Committee Stage is a misuse of parliamentary procedure.  If the amendments had been done in separate Bills, the appropriate portfolio committees and the public would have been able to comment on them.  Making the amendments through the back door in this way violates sec 141 of the Constitution by depriving the public of its right to be consulted in legislation.

Conclusion

The amendments do little or nothing to remove the undesirable features of the Bill, or to lessen their impact.  The Bill remains what it was:  an unconstitutional assault on civil society and a violation of constitutionally guaranteed freedoms of association and expression.