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Submission to Parliamentary Portfolio Committee on Public Service, Labour and Social Welfare by the Zimbabwe Human Rights NGO Forum – 7 september 2004 | Zimbabwe Human Rights NGO Forum

Submission to Parliamentary Portfolio Committee on Public Service, Labour and Social Welfare by the Zimbabwe Human Rights NGO Forum – 7 september 2004

Preparation of the legislation

The preparation of the Bill was shrouded in an extraordinary degree of secrecy;  The Government neither consulted non-governmental organisations about the Bill nor revealed to them what its intentions were.  This is deplorable, because a failure to consult interested parties in the formulation of legislation almost invariably leads to bad law.  The Bill is a good illustration of this:  not only does it contain provisions that are unworkable[1], but several of its provisions are unconstitutional.

There is authority for the proposition that the audi alteram partem rule (the rule requiring an administrative authority to give a hearing to persons who are liable to be prejudicially affected by the authority’s decisions) applies to the exercise of legislative as well as administrative powers[2].  The rule however seems to have been applied only to the exercise of subordinate legislative powers such as the making of regulations and the issuing of proclamations[3], and never to the enactment of legislation by Parliament itself.[4] It is vanishingly improbable, therefore, that a court in this country would uphold a challenge to an Act of Parliament on the ground that interested parties had not been consulted before the Act was promulgated.

Constitutionality of Certain Provisions

Section 21 of the Constitution

Section 21 of the Constitution guarantees freedom of assembly and association in the following terms:

“(1)  Except with his own consent or by way of parental discipline, no person shall be hindered in his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to political parties or trade unions or other associations for the protection of his interests.

(2)  …

(3)  Nothing contained in or done under the authority of any law shall be held to be in contravention of subsection (1) to the extent that the law in question makes provision—

(a)   in the interests of defence, public safety, public order, public morality or public health;

(b)   for the purpose of protecting the rights or freedom of other persons;

(c)   for the registration of companies, partnerships, societies or other associations of persons, other than political parties, trade unions or employers’ organisations; or

(d)   … ;

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

(4)  …”

Under the section, then, freedom of association can be restricted in the interests of defence, public safety, public order, public morality or public health;  or to protect other people’s rights and freedoms;  or for the purpose of registering associations;  but any such restriction must be reasonably justifiable in a democratic society.

What is meant by “reasonably justifiable in a democratic society”?  It is an elusive concept that defies precise definition[5], but even so our Supreme Court has laid down the criteria that a law must satisfy if it is to be regarded as reasonably justifiable in a democratic society.[6] These are:

1.      whether the legislative objective is sufficiently important to justify limiting a fundamental right;

2.      whether the measures designed to meet the legislative objective are rationally connected to it;  and

3.      whether the means used (to) impair the right or freedom are no more than necessary to accomplish the objective.

In a recently published case[7], Chidyausiku CJ added that the presumption of constitutionality had to be borne in mind when determining whether a law was reasonably justifiable in a democratic society, and went on to say that a court has to be satisfied that a statutory provision is arbitrary, oppressive and, consequently, not justifiable in a democratic society before striking it down as unconstitutional.  On the other hand, in a later case[8] the learned Chief Justice applied the three criteria quoted above without adding any riders to them;  in this respect his views were more consistent with earlier judgments of the Supreme Court.[9] Those are the three criteria that should be applied, therefore, though it is fair to say that many of the provisions of the Bill are also arbitrary and oppressive.

Definition of “non-governmental organisation”

Before looking at the constitutionality of individual provisions of the Bill one should examine the definition of “non-governmental organisation” in clause 2 because it defines the organisations that are to be controlled under the Bill and, to that extent, defines the scope of the Bill.  The definition is extremely wide and covers bodies, associations and institutions of every kind — voluntary associations, partnerships, companies, trade unions, trusts and anything else one can think of — and with every conceivable type of object.[10] The only exceptions are:  international organisations accorded privileges under the Privileges and Immunities Act;  “instrumentalities or arms” of foreign governments;  State institutions;  religious bodies “in respect of activities confined to religious work”;  associations intended to benefit only their own members;  certain health institutions;  political organisations “in respect of work confined to political activities”;  the Zimbabwe Red Cross Society;  and “such other bodies, associations or institutions as may be prescribed”.

Trade unions are not specifically exempted.  Their objects certainly include “the provision of … the material … or social needs of persons or families” and “the … promotion of activities aimed at uplifting the standard of living of persons or families”[11] so they fall within the main part of the definition.  If it was intended to exclude them from it the exclusion should have been done expressly.  Section 21(3)(c) of the Constitution prohibits legislation from requiring the registration of trade unions and employers’ organisations.  To the extent that the definition covers trade unions, therefore, it is unconstitutional.  It cannot be argued convincingly that the definition impliedly excludes trade unions, on the basis that the definition must be read as if prefaced by the words “subject to the Constitution”[12], because if it were so read the specific exclusion of political parties (which, like trade unions, cannot be lawfully required to be registered) would have been superfluous.

An organisation will be a non-governmental organisation for the purpose of the Bill if any one of its subsidiary or incidental objects is listed in paragraphs (a) to (i) of the definition;  in other words, an organisation whose main purpose falls outside the definition will have to register under the Bill if the objects clause in its constitution or memorandum allow it to carry out any of the activities listed in those paragraphs, even as a side-line.  For example, a co-operative society whose by-laws allow it to give donations to needy former members and their dependants will be required to register as a non-governmental organisation.  It should be noted, too, that the definition makes no distinction between non-profit and for-profit organisations.  A trading company will be a non-governmental organisation if any of its objects, however peripheral to its main activity, fall within the definition, even if it makes a profit out of pursuing that object.  Hence a commercial gymnasium will have to register under the Bill since its object is the provision of the physical and, perhaps, the social needs of persons;  and a supermarket or store will have to register because it provides for the material needs of persons.[13]

As pointed out in the LRF opinion, the definition is much the same as the equivalent one in the present Act, the Private Voluntary Organisations Act [Chapter 17:05], though it has some important extensions.  The point to remember, though, is that the present Act, in its original form as the Welfare Organisations Act, sought to control only the soliciting of contributions from the public.  In such a case a wide definition was appropriate, to ensure that organisations were not able to solicit donations without supervision, simply by changing their objects.  In the present Act and in the Bill, on the other hand, the organisations concerned are forbidden to carry out any activity whatever unless they are registered.  Without registration they cannot, in effect, exist.  So whereas under the original Act a wide definition did not restrict freedom of association very much, because the only restriction on unregistered organisations was that they could not solicit donations from the public, under the Bill the wide definition results in a very great restriction on freedom of association:  unless an organisation is registered it will not be able to function at all.

A further point should be noted.  The Minister will be given apparently unlimited power to make regulations prescribing additional objects to bring organisations within the definition of “non-governmental organisation”, or excluding organisations from the definition.[14] The power seems to be unlimited because there is no apparent restriction in the definition itself, or in the Bill’s long title, or in clause 31 under which the Minister may make regulations.  Under that clause the Minister will not even have to consult the Non-governmental Organisations Council before making such regulations.  There will be nothing to stop him prescribing the operation of transport systems as an object under the definition, thereby making private airlines and operators of commuter omnibuses register as non-governmental organisations.  Such a power is arbitrary, in that there is no control over it[15], and it is not enough to say that the Minister would act reasonably and would never dream of trying to control transport companies:  the fact is that there is nothing in the Bill to stop him doing so.

In that respect, therefore, the definition is so wide that it imposes an arbitrary and, it is submitted, oppressive restriction on freedom of association.  It also introduces an element of uncertainty into the law[16].  On those grounds, too, it can therefore be said to be unconstitutional in itself, without regard to its effect on other provisions of the Bill.

Before turning to those other provisions, we should mention the definitions of “foreign non-governmental organisation” and “local non-governmental organisation” in clause 2.  The first of these reads:

““foreign non-governmental organisation” means any association of persons, whether incorporated or unincorporated, that does not consist exclusively of permanent residents or citizens of Zimbabwe who are domiciled in Zimbabwe;”

and “local non-governmental organisation” is defined, conversely, as an association consisting exclusively or permanent residents or locally-domiciled citizens.  The effect of these two definitions is that an association which has even one member who is not permanently resident in this country or a domiciled citizen of this country, is classed as a foreign organisation.

Clause 3:  Non-governmental Organisations Council

This clause sets up a Non-governmental Organisations Council whose functions will be to register non-governmental organisations and regulate their conduct.  The Council will consist of five representatives of non-governmental organisations, nine senior civil servants from various Ministries, and the Registrar of Non-governmental Organisa­tions, who will also be a civil servant.  Of the 15 members, therefore, ten will be civil servants.  All will be appointed by the responsible Minister and, although he is enjoined to call for nominations from representative bodies before making appoint­ments, there is a proviso stating that “the Minister may … appoint a person to be a member of the Council who has not been so nominated and may decline to appoint any person so nominated.”  In other words, while the Minister will have to go through the motions of calling for nominations, once he has done so he will have a completely free hand to appoint whomsoever he likes to the Council.  And he will have sweeping power to dismiss members, too.  Under paragraph 3 of the Schedule to the Bill he will be able to dismiss a member who “has … been found to have conducted himself or herself in a manner that renders him or her unsuitable as a member”;  the criteria for “unsuitability” are not stated, and presumably will depend on the subjective opinion of the Minister.

It cannot be said therefore that the Non-governmental Associations Council will be an independent body.  It will be dominated by employees of the State and its members will be appointed, ultimately, at the whim of the Minister and, likewise, will be dismissible on his whim.  Its decisions are likely to reflect the Minister’s views or at least what it believes are his views.  Nevertheless, it is unlikely that our Supreme Court would find the clause unconstitutional on that ground.  In the recently published case of Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe & Ors S-128-02 the court considered section 4 of the Broadcasting Services Act [Chapter 12:06], which established a Broadcasting Authority and provided for the appointment and dismissal of its members in very similar terms to those used in the Bill.  It was argued that the Authority was overly dependent on government and that section 4 was therefore unconstitutional.  The court rejected this argument, and would probably do the same if an equivalent argument was raised in relation to clause 3 of the Bill.

The Council’s lack of independence is however a factor to be taken into account when considering the constitutionality of provisions of the Bill which empower the Council to register non-governmental organisations and to regulate them:  registration and regulation by an independent body in accordance with clearly stated guide-lines is one thing;  control by a Minister exercised without proper guide-lines through the medium of a compliant council, is quite another.

Clause 9:  Registration of non-governmental organisations

Subclause (1) of this clause will prohibit non-governmental organisations from commencing or carrying on their activities, or seeking financial assistance from any source, unless they have been registered under the Bill.  Subclause (3) prohibits anyone from taking part in the management or control of an organisation that contravenes subclause (1).  Subclause (4) goes on to state that no foreign non-governmental organisation may be registered if “its sole or principal objects involve or include issues of governance”.  It will be a criminal offence to contravene subclause (3) — i.e. to take part in the management or control of an unregistered organisation — though, curiously, an organisation that fails to register under sub­clause (1) will not be criminally liable.[17]

Subclause (1)

Subclause (1), when read in the light of the very wide definition of “non-governmental organisation”, is almost certainly unconstitutional.  By preventing unregistered organisations from carrying out any activities and from seeking financial assistance, it effectively prohibits their existence, for an organisation that cannot do anything can hardly be said to exist.  In effect then, non-governmental organisations must be registered in order to exist.  The definition of “non-governmental organisa­tion”, as we have seen, covers pretty well every conceivable type of association, so what subclause (1) means is that almost all types of association, except those that are specifically exempted under paragraphs (i) to (xi) of the definition, will be obliged to register.  Unquestionably this will impose an extensive and onerous restriction on freedom of association.

It is true that paragraph (c) of section 21(3) of the Constitution permits a law to make provision for the registration of associations, but the paragraph has to be con­strued restrictively[18], and can hardly be stretched to justify a law that requires almost all associations to be registered.  In any event, such a provision must be reasonably justifiable in a democratic society.  To determine whether it meets that requirement, one applies the threefold test mentioned earlier:

1.      Is the legislative objective sufficiently important to justify limiting a fundamental right?  The difficulty here is that the Bill’s objectives are not clearly stated either in the memorandum or in the long title, both of which merely say that the Bill’s purpose is “to provide for an enabling environment for the operations, monitoring and regulation of all non-governmental organisations”.[19] Two objectives may be identified, however:  first, to ensure that non-governmental organisations manage their financial affairs properly and conduct themselves in accordance with their constitutions and the law;  and, second, to prevent non-governmental organ­is­ations receiving foreign funding for activities involving issues of governance.  Neither objective seems important enough to justify limiting freedom of associ­ation, and the second seems downright anti-democratic though it might at a stretch be regarded as falling within the public safety exemption set out in section 21(3)(a) of the Constitution.[20] It must be remembered that freedom of assembly[21], together with freedom of expression, “lie at the foundation of a democratic society and are ‘one of the basic conditions for its progress and for the development of every man’”[22], so a legislative objective must be correspondingly important before it can justify limiting the freedom.

Let us assume, however, that the legislative objectives of the clause are sufficiently important, and turn to the next part of the test:

2.      Is the legislative objective sufficiently important to justify limiting a fundamental right?  The difficulty here is that the Bill’s objectives are not clearly stated either in the memorandum or in the long title, both of which merely say that the Bill’s purpose is “to provide for an enabling environment for the operations, monitoring and regulation of all non-governmental organisations”.The answer to this must be:  no.  Requiring all non-governmental organisa­tions to register will not make them manage their financial affairs properly, nor will it induce them to comply with their constitutions and the law.  It will certainly not prevent those among them that are concerned with issues of governance from receiving foreign funding.

That conclusion ends the enquiry, but even so let us go to the third part of the test:

3.      Are the means used to impair the right or freedom no more than necessary to accomplish the objective?  Again the answer is:  no.  If the legislative objective is to ensure financial responsibility among non-governmental organisations, there are many less onerous ways of achieving it.  For example, organisations could be required to publish financial statements or to keep their books of account open to inspection by their members;  even more simply, they could be made to have their accounts audited by professional auditors.  If the objective is to prevent mismanagement or to avoid internal disputes paralysing non-governmental organisations, then avenues for arbitration could be provided in the law.  And if the objective is to prevent human-rights organisations from getting foreign funding, this could be achieved by a prohibition along the lines of clause 17 of the Bill (though that objective is undemocratic and, as we shall point out later, that clause is unconstitutional).

The conclusion must be, therefore, that clause 9(1) of the Bill is not reasonably justifiable in a democratic society and is unconstitutional.

Subclause (4)

This subclause, as stated earlier, prohibits the registration of any foreign non-governmental organisation whose sole or principal objects involve or include issues of governance.  Bear in mind that any organisation whose objects include the promotion of good governance will have to be registered in order to exist, and that an organisa­tion which has even one member who is not a permanent resident or a domiciled citizen of Zimbabwe will be classed as a foreign organisation, and the effect of the subclause becomes clear:  citizens and permanent residents of this country will be forbidden from associating with non-residents or with citizens who are domiciled abroad in order to tackle issues of governance.

It would be difficult to conceive of a more drastic curtailment of freedom of association, but is it constitutional?  To be so, it must fall within one of the permissible limitations on the freedom that are listed in section 21(3) of the Constitution;  that is to say, it must be enacted in the interests of defence, public safety, public order, public morality or public health;  or to protect the rights or freedoms of others;  or for the purpose of registering associations;  or to impose restrictions on public officers.  Again one is faced with the difficulty that the Bill’s objectives are not clearly stated, but in an intemperate press statement published in The Standard newspaper on the 22nd August, 2004, the Ministry of Public Service, Labour and Social Welfare said:

“The mischief which government wants to rid (sic) is that of foreign donors employing local puppets or other (sic) to champion foreign values, much to the detriment of national security.”

From this one may surmise that the purpose of the subclause is to prevent foreign organisations meddling in Zimbabwe’s political affairs.  If that is so, then the sub­clause might be regarded as a limitation on freedom of association enacted in the interests of defence, public safety or public order, and it will be constitutional if it satisfies the three-part test for a law that is reasonably justifiable in a democratic society:

1.      Is the legislative objective sufficiently important to justify limiting a fundamental right?  If its purpose is as we have suggested, to prevent foreign interference in Zimbabwe’s political affairs, then one can answer this question with at least a qualified Yes.

2.      Are the measures designed to meet the legislative objective rationally connected to it?  Here the answer must be:  no.  It is difficult to see how a measure which prevents non-governmental organisations existing if they have a single non-resident member will prevent foreigners from involving themselves in issues of governance in Zimbabwe.

3.      Are the means used to impair the right or freedom no more than necessary to accomplish the objective?  Again the answer is:  no.  The subclause is almost ludicrously over-broad.  There is no balance between the objective and the impairment of freedom of expression, no attempt to draw a distinction between organisations which are controlled by foreign governments, or even by foreigners, and local organisations which happen to have one or two non-resident members.

Unquestionably, therefore, the subclause is unconstitutional.

Clause 10:  Requirements and procedures for registration

This clause sets out the requirements and procedures for registering non-governmental organisations under the Bill.  Two of its subclauses call for comment:  subclause (3), which lists topics that must be dealt with in the constitutions of organisations that seek registration, and subclause (8), which requires the Council, after rejecting an application for registration, to inform the applicant of the grounds on which the application was rejected.

Subclause (3)

Subclause (3) will certainly cause practical difficulties.  As we have already pointed out, the definition of “non-governmental organisation” is wide enough to cover all sorts of associations ranging from partnerships and companies to statutory bodies.  Many of them will not have constitutions as such, and in some cases the contents of their “founding documents” — their constitutions, memorandums of association, partnership deeds, or whatever — will be prescribed under some other law.

More to the present point, the subclause is unconstitutional because the definition is so very wide, covering so many different types of association.  All those associations will have to have “constitutions” covering all the points listed in subclause (3), and if they don’t they will not be registered and so will not be able to exist.  Undoubtedly this will limit freedom of association, and the limitation does not fall within section 21(3) of the Constitution.  It certainly cannot be justified in the interests of defence, public safety, public order, public morality or public health, nor can it be said to protect the rights or freedoms of other persons.  It may be desirable for an organisation’s constitution to specify the procedure for convening meetings and for removing office-bearers from office, for example, but what legitimate purpose can be served by prohibiting an organisation from existing if its constitution does not specify those matters?

Subclause (8)

Subclause (8), as we have said, requires the Registrar to notify an unsuccessful applicant of the grounds on which the Council rejected its application for registration.  Only one such ground is specified in the clause, incidentally, namely that the applicant is not operating bona fide in furtherance of the objects stated in its application.[23] The important point, though, is that an applicant will be notified after the Council has reached its decision, not before;  in other words, applicants will not be given an opportunity to make representations before the Council reaches a decision on their applications.  The audi alteram partem rule will not operate, nor will any of the other rules of natural justice.[24] Anyone aggrieved by the Council’s refusal to register an organis­ation will be entitled to appeal to the Minister under clause 15, but will have no recourse to a court.  In view of this, the Supreme Court may well find that the clause is unconstitutional.[25]

Clause 17:  Funding of local non-governmental organisations

This clause prohibits local non-governmental organisations from receiving any foreign funding or donation to carry out activities involving or including issues of governance.  The prohibition is absolute:  there are no exceptions or qualifications to it.

The clause must be read in the light of the definition of “foreign funding or donation” in clause 2(1), which is as follows:

““foreign funding or donation” means any funding provided or donation made by—

(a)    a person who is not a permanent resident or citizen of Zimbabwe domiciled in Zimbabwe;  or

(b)    a company which is not incorporated in Zimbabwe or, if so incorporated, does not carry on business in Zimbabwe;  or

(c)    any association of persons, whether incorporated or unincorporated, that does not consist exclusively of permanent residents or citizens of Zimbabwe who are domiciled in Zimbabwe”

Read in this way, the effect of the clause is that no local non-governmental organisation that is concerned with issues of governance will be allowed to accept funding or donations from any individual who is not a permanent resident or domiciled citizen of Zimbabwe, or from any company incorporated outside Zimbabwe, or from any association which has even a single member who is not a permanent resident or domiciled citizen.  The consequences of the clause will be far-reaching, to say the least:  the non-govern­mental organisations concerned will not be allowed to do any of the following:

  • solicit funds from the public, whether through street collections or by sending appeals through the post.  They would be liable to contravene the section unless they cross-examined everyone who offered to put money into their collection box regarding their residence, citizenship or domicile, and ascertained the status of everyone to whom they posted appeals for funds.
  • obtain funding from a bank that is incorporated outside Zimbabwe.  Banks are allowed to operate in Zimbabwe even if they are incorporated elsewhere.
  • obtain funding from any building society.  There cannot be a building society in Zimbabwe that does not have members who have left the country and are domiciled or resident elsewhere.

These consequences were probably not intended by the persons who conceived and drafted the clause, but they are inescapable in view of the breadth of the definition of “foreign funding or donation”.

The clause is certainly arbitrary and oppressive.  Local non-governmental organisation will be debarred from receiving virtually any form of funding for activities which involve issues of governance, even if those issues are involved only peripherally.  The giving of food aid, the provision of legal aid, the protection of environ­mental rights and the promotion of sustainable development, all involve issues of governance to some extent and all will be hit by the clause.

Nor does the clause meet the threefold test for a law that is reasonably justifiable in a democratic society:

1.      Its legislative objective is not sufficiently important to justify limiting a funda­men­tal right.  It is difficult, indeed, to discern what the objective of the clause can possibly be.  It cannot be to prevent foreign meddling in Zimbabwean politics, because as I have shown the clause goes far beyond that.  It is fair to say that there can be no rational objective for such a clause.

2.      One cannot say that the clause is rationally connected to the legislative objective, in the absence of a discernible objective.

3.      The clause’s impairment of freedom of association goes far beyond anything necessary to achieve what the Ministry says is the Bill’s objective, namely to get rid of “foreign donors employing local puppets or others to champion foreign values, much to the detriment of national security”.

Unquestionably, therefore, the clause is unconstitutional.

conclusion

Conclusions can be summed up as follows:

The definition of “non-governmental organisation” in clause 2 of the Bill is unconstitutional on the ground that, while it specifically exempts political organisa­tions, it does not do the same for trade unions;  and on the further ground that the Minister’s unfettered power to include further objects within the definition and to exclude organisations from the definition is arbitrary and introduces a degree of uncertainty into the ambit of the Bill.

Clause 3, which establishes the Non-governmental Organisations Council, probably cannot be challenged on the ground that the Council is not sufficiently independent.

Clause 9(1), which prohibits unregistered organisations from carrying on any activity unless they are registered, is certainly unconstitutional, particularly when it is read in the light of the very wide definition of “non-governmental organisation”.  So is clause 9(4), which prohibits the registration of “foreign” non-governmental organisations whose main objects are concerned with issues of governance.

Clause 10(3), which sets out topics that must be included in the constitutions of non-governmental organisations, is an unconstitutional restriction on freedom of association, and so probably is subclause (8) of the clause, which allows the Council to refuse applications for registration without first hearing representations from the applicants.

Clause 17, which prohibits local organisations from receiving “foreign” funding for activities concerned with issues of governance, is certainly unconstitutional.

Clauses 23 and 24, which deal with the punishment of maladministration and the suspension of office-bearers of non-governmental organisations, are in our view unconstitutional, but it is unlikely that the Supreme Court would be of the same opinion.


[1] For example, clause 10(7)(b) allows the Non-governmental Organisations Council to refuse an application for registration on the ground that the applicant “is not operating bona fide in furtherance of the objects stated in its application for registration”.  Since organisations are not allowed to operate at all until they are registered (see clause 9(1)(a)), the Council will be entitled to refuse all applications for registration.  And, if “may” in the clause means “must” — as it probably does — the Council will have to do so.

[2] See the South African case of SA Roads Board v Johannesburg City Council 1991 (4) SA 1 (A) and the cases cited in that judgment.

[3] See for example Premier, Eastern Cape, & Ors v Cekeshe & Ors 1999 (3) SA 56 (Tk D).

[4] In Fedsure Life Assurance Ltd & Ors v Greater Johannesburg Transitional Metropolitan Council & Ors 1999 (1) SA 374 (CC), the South African Constitutional Court indicated the rule would not apply to deliberative legislative bodies whose members are elected.

[5] Woods & Ors v Minister of Justice & Ors 1994 (2) ZLR 195 (S) at 199B-C, cited with approval by Chidyausiku CJ in Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe & Ors S-136-02 at page 44.

[6] In Nyambirai v NSSA & Anor 1995 (2) ZLR 1 (S) at 13B-E.

[7] Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe & Ors S-128-02 at page 46 of the cyclostyled judgment.

[8] Association of Independent Journalists & Ors v Minister of State for Information & Publicity & Ors S-136-02 at page 19 of the cyclostyled judgment.

[9] The requirement that a limitation on a fundamental right has to be oppressive before it can be struck down was stated by Georges CJ in Zimbabwe Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd, 1983 (2) ZLR 376 (S) at 383E.  In later cases, however, that requirement has been ignored and the court under Gubbay CJ adopted a more liberal interpretation of the Constitution.  See Linington Constitutional Law of Zimbabwe, para 591.

[10] In addition to the broad categories of objects set out in paragraphs (a) to (j) of the definition, the responsible Minister is given apparently unrestricted power under paragraph (i) to prescribe further categories.

[11] Paragraphs (a) and (d) of the definition of “non-governmental organisation”.

[12] Maluleke v Minister of Law & Order & Anor 1963 R & N 554 at 559 D–I;  Deary NO v Acting President & Ors 1979 RLR 200 at 205B.

[13] The object listed in paragraph (a) of the definition of “non-governmental organisation” is the provision of “all or any of the material, mental, physical or social needs of persons or families”.

[14] See paragraphs (i) and (xi) of the definition.

[15] Cf Gordon & Jacobson v Johannesburg LLB 1955 (2) SA 591 (W) at 598 F–G.

[16] In Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe & Ors S-128-02 at page 21, Chidyausiku CJ said that a law which imposed a restriction on a fundamental right had to satisfy certain criteria in order to be held constitutional.  Among those criteria were that the law had to be foreseeable and that it had to be subject to effective control.

[17] Perhaps the drafter was under the impression that non-governmental organisations were voluntary associations and that their members could not be prosecuted for crimes committed by their associations.  If so, he or she was wrong on two counts:  corporate bodies can be non-governmental organisations under the Bill, and members of unincorporated associations can be prosecuted under sec 385(8) of the Criminal Procedure and Evidence Act [Chapter 9:07].

[18] In re Munhumeso & Ors 1994 (1) ZLR 49 (S) at 59 G–H:  “Derogations from rights and freedoms which have been conferred should be given a strict and narrow, rather than a wide construction.  Rights and freedoms are not to be diluted or diminished unless necessity or intractability of language dictates otherwise.”

[19] As the author of the LRF memorandum noted, the phrase “enabling environment” has an Orwellian ring to it.

[20] Public safety has been defined as the safety of the community from external and internal dangers (In re Munhumeso & Ors 1994 (1) ZLR 49 (S) at 64C–D).

[21] Which is only another aspect of freedom of association, and is jointly protected with it in section 21 of the Constitution.

[22] Per Gubbay CJ in In re Munhumeso & Ors 1994 (1) ZLR 49 (S) at 56G.

[23] This is curious, since clause 9(1)(a) will prohibit organisations from carrying on any activities at all until they are registered.

[24] Note, incidentally, that there is specific provision in the Bill for a hearing before the Council amends or cancels a certificate of registration:  see clause 11(3).

[25] In Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe & Ors S-128-02, the Court found that provisions in the Broadcasting Services Act allowing the cancellation or suspension of licences were constitutional because there was provision for a fair hearing (see the judgments of Cheda & Malaba JJA).

Design and development supported by HURIDOCS.