2.3 Post-Colonial Period II: Reform and Reaction

This state of affairs persisted until the 1980s. This decade saw what many have characterized as the crisis of the African state (Beckman, 1993; Paliwala, Adelman et al., 1993). The continent found itself in the midst of the deepest economic crisis it had ever experienced as foreign debt, worsening terms of trade and a consequent balance of payments crisis eroded the state's ability to provide services and welfare. Politically, the state could no longer legitimate its authoritarian, repressive practices. Monolithic single-party systems and military regimes were challenged, and throughout the continent, movements demanding the democratization of state and society began to emerge.

The rapid growth of the NGO sector since the 1980s¹ has been closely related to these developments. Frequently with the active support of the international donor community, NGOs have stepped in to provide welfare and development services that the downsizing state is now unwilling or unable to engage in. At the same time, however, elements of the NGO sector began to take on a more directly political role, challenging government policy failures and human rights abuses. It became increasingly apparent that the legal framework inherited from the colonial period was no longer adequate to regulate the relationship between the state and civil society.

In Tanzania, these trends can be traced to the early 1980s when as a result of the constitutional debate of 1983-84, the Bill of Rights was incorporated within the Constitution of the United Republic of Tanzania 1977. It was recognized at the outset that this reform would require extensive revisions of the existing laws.² However, the government reneged on its commitment to introduce these reforms within the three-year grace period provided for. Thus arose a paradoxical gulf between a liberal constitution on the one hand and an authoritarian legal and institutional order on the other (Okoth-Ogendo, 1991). The legal framework governing NGOs was no exception to this rule.

With the political reforms sweeping Africa in the late-1980s the government appointed a Presidential Commission to look, among other things, at the evident contradiction between the constitution and ordinary law. Commonly known as the Nyalali Commission, it submitted its report in 1991 (Tanzania, 1991). The Commission examined both the legal/constitutional and political history of Tanzania and recommended the substantial reforms necessary to democratize the country.

In its consideration of the status of NGOs, the Nyalali Commission critically reviewed the various provisions of the Societies Ordinance in the light of the basic rights and freedoms enshrined in the Constitution (Tanzania, 1991, Vol. III: 40-44). The Commission concluded unequivocally that: "The Ordinance is Unconstitutional (sic). It violates Article 20 of the Constitution which provides (that) '…every person is entitled to freedom of peaceful assembly, association and public expression, that is to say, the right to assemble freely and peaceably, to associate with other persons and, in particular to form or to belong to organisations or associations formed for the purposes of protecting or furthering his or any other interests…. [The Constitution also provides that] … a person shall not be compelled to belong to any association'" (ibid.: 44).

The Nyalali Commission also condemned the Societies Ordinance for being "… one of the laws that hinders (sic) the enjoyment of freedom of association and freedom of assembly…. It makes it extremely difficult to form and run civil associations by the masses…. [It] gives the office of the Registrar of Societies wide powers to register or refuse to register any association. The Registrar of Societies has total discretion in this respect. In that way political pressure or influence is easily applied to him in reaching his decision to … refuse or grant registration of any Society" (loc. cit.). The "political pressure or influence" referred to could only come from the President or the Minister for Home Affairs since, under the Ordinance, the Registrar is appointed by the former and subject to the direction of the latter.

The Commission also judged both the presidential and ministerial powers created by the Ordinance to be excessive. It pointed out that when the President exercises his power to declare a duly registered society unlawful, he "is not required to give any reasons for his decision" (loc. cit.). Regarding the ministerial power to require any organisation to register under the Ordinance, the Commission charged that this served the purposes of political control. Once registered, the Commission argued, the organisation concerned "… falls under the surveillance of the Minister who is empowered to monitor all the activities of the organisation" (loc. cit.) Finally, the Nyalali Commission rounded off its critique of the Societies Ordinance with the observation that the decisions of the President, the Minister and the Registrar of Societies in exercise of their powers under the Ordinance were immune from judicial challenges in the ordinary courts of law. The Commission recommended, accordingly, that the Ordinance be amended to remove these provisions (loc. cit.).

Overall, the Nyalali Commission recommended the repeal or substantial amendment of more than 40 statutes. Not for the first time, the government refused to heed this summons. Although it adopted the Presidential Commission's recommendation that it allow multiparty politics, it explicitly refused to introduce legal reforms that might diminish its bureaucratic power, including the repeal or amendment of the Societies Ordinance. Only now, with the NGO policy proposals currently under consideration, has the government shown any willingness to replace the Ordinance. However, as we will consider below, its belated zeal for reform has turned out to be more illusory than real.

1. The number of NGOs in Tanzania is currently estimated at 2000, covering a wide range of issues and sectors such as human rights, environment, gender and rural development (NSC, 2000: 3, para. 2.1.1).
2. The operation of the Bill of Rights was suspended for three years, ostensibly to give the government sufficient time to repeal or amend legislation offensive to the letter and/or the spirit of the Bill of Rights.