Civil Society Registration Laws: Malign or Benign?
Input on the Draft Civic Organisations Partnership Policy (Full Pdf)
Vision 2030 calls for civil society to cooperate with Government at local, regional, and national levels to consolidate democratic ideals and create synergy in development efforts, with the goal of maximising social and economic benefits.
To this end, the National Planning Commission proposed a draft Civic Organisations Partnership Policy in 2005, which was again under discussion in 2022. On 13 October 2022, a consultation was organised in Windhoek, where representatives of civil society were invited to discuss the Civic Organisations Partnership Policy as part of a larger series of consultations country-wide. During this discussion, representatives of the Legal Assistance Centre and some other non-governmental organisations (NGOs) elaborated their criticisms regarding the policy and particularly the concept of NGO registration. This paper is an expanded version of the paper provided during that consultation.
The Civic Organisations Partnership Policy was originally accompanied by a draft Partnership Bill. Although this draft bill is now outdated, it gives an idea of how the policy might be applied via legislation.
This paper opens with a brief summary of the worrying points in the draft policy and a short overview of the draft bill. To contextualise our concerns, we have examined the experience with civil society regulation and registration in other countries in Africa. The paper then discusses the risk of money-laundering by NGOs and methods which could be used to address that issue without compromising civil society space. It ends with short conclusions and recommendations.
One common pattern that is evident from the experience of other countries in Africa is that the introduction of relatively innocent registration schemes, whether ‘voluntary’ or ‘mandatory’, can be a prelude to increasingly more restrictive measures. It is also clear that ostensibly voluntary registration requirements can become mandatory in practice if Government and non-government donors place reliance on the scheme. Voluntary registration may then evolve into registration requirements that are legally mandatory – and which may well violate the right to freedom of association. Any registration scheme thus gives rise to the “thin edge of the wedge” problem; there is a very fine line between a constitutional registration scheme and one that does not carry the risk of infringing constitutional rights.
In Namibia, there are already numerous legal safeguards in place to address the misappropriation of funds and to prevent money laundering and terrorism financing – wrongs that are often cited to justify NGO registration requirements. Thus, it does not seem that an overarching registration scheme would add anything to these issues.
The main vehicles used to establish NGOs in Namibia – voluntary associations, trusts, and non-profit companies – are all functional, well-used in practice, and relatively easy and inexpensive to access.175 Thus, the lack of unified legislation on the forms that can be used to set up NGOs has not hindered a wide diversity of civil society groups from operating in Namibia.
Even the justification offered in the draft policy for the registration scheme does not hold water. Partnerships between Government and civil society can and do take place without such a legal framework. Furthermore, the Public Private Partnership Act 4 of 2017 does not require private entities to register globally as a path to eligibility to engage in partnership agreements with Government – so why should this be necessary for civil society?
One major concern is the impact of any registration system on grassroots organisations, which may often lack the resources and capacity to negotiate a registration process and annual information updates. This could result in placing such groups even farther outside the mainstream and at a disadvantage in securing funding, even when their social contribution and financial management have been exemplary.
A further worry is an emphasis on “development”. As mentioned above, NGOs may oppose some kinds of development based on concerns about social or environmental damage or threats to human rights. Other NGOs may simply work in areas that do not fit well under a “development” agenda. A law that is premised around the concept of “development” (as Government sees it) may leave some NGOs at odds with the mainstream government views – and, if this leaves them unable or unwilling to access Government registration, it could disadvantage them in the search for funding and support. It is perfectly valid – and even desirable – in a democracy for different civil society groups to embrace different and even conflicting priorities and goals. In fact, such diversity is one hallmark of a vibrant civil society – and there is a danger that any kind of Government registration scheme may end up channelling groups into mainstream postures or favouring those who most closely align with Government views.
It is certainly acceptable for Government to seek partnerships with civil society groups with which it has a common ground or shared objectives. But eligibility for a government partnership need not be dependent on any form of generalised registration. Government could easily require appropriate documentation from a group it wished to partner with on an ad hoc basis, purely for the purposes of eligibility for the partnership in question – as is the case with private entities under the Public Private Partnership Act 4 of 2017. Groups that were not interested in a potential Government partnership would then not be burdened (or threatened) with any general registration requirements.
When it comes to enhancing legitimacy and seeking new sources of funding, the following recommendation for action by civil society itself is one to consider:
In summary, we believe that Namibia should not implement any overarching registration policy for civil society. The draft policy and draft bill proposed in the past fail to show persuasive potential benefits of such an approach. We recommend that Namibia should reject the African trend toward increasing control of civil society and rather maintain its existing reputation for providing a free and democratic environment where civil society can operate freely.
The paper was written for LAC by Dianne Hubbard and Livia Häberli.
Full report here.