III. THE FINAL DRAFT NGO POLICY: CONTINUITY AND CHANGE

The current policy process for the reform of NGO governance started in 1996, following initial surveys by the International Labour Organisation with the financial support of the U.N. Development Programme. It may be significant that this development came in the wake of the furore surrounding the de-registration of the Tanzania Women's Council (BAWATA) in response to its activist role in the multiparty elections of 1995.¹

A consultative workshop attended by representatives of donor agencies, the national NGO umbrella organisations, TANGO (Tanzania Non-Governmental Organisation), ANGOZA (Association of Non-Governmental Organisations of Zanzibar), and TACOSODE (Tanzania Council for Social Development) and the government, was organized by the Vice-President's Office in May 1996. At this workshop a National Steering Committee for NGO Policy Formulation (NSC) was formed.² Several national and regional/zonal workshops were held subsequently to discuss the various drafts of the policy document.³

The final draft of the National Policy on NGOs shows significant continuities with the authoritarian tendencies of the colonial and post-colonial state in Tanzania. This is particularly clear with regard to its position on the basic freedoms of association and expression guaranteed by the Bill of Rights. As we have seen, the Nyalali Commission had found that the Societies Ordinance infringed upon these rights and in consequence recommended its amendment. However, the final draft of the National Policy on NGOs fails to seriously address the issues the Commission's report raised.

Whereas the Presidential Commission had discussed the deficiencies of the Ordinance at considerable length and with commendable thoroughness, the final draft has devoted only two short paragraphs to the subject. And unlike the Commission, which treated the substantive provisions of the Ordinance and the decision-making processes it created as the central problem, the policy addresses itself only to the procedural obstacles to NGO registration created by the Ordinance.⁴ Conspicuously absent is any discussion of the nature of the decision-making powers under the Ordinance or of the impact that the exercise of these powers has on fundamental rights guaranteed by the Constitution.

The framers of the final draft of the National Policy on NGOs could not have been unaware of these broader problems. Indeed, in the fourth draft they had highlighted precisely these issues. In discussing the problem of the fragmented legal and institutional structures for the regulation of NGOs under the current system, the framers had singled out the Societies Ordinance as the most important of the colonial ordinances, observing that its provisions "have remained virtually unaltered since 1954".⁵ They had also noted that the Ordinance conferred substantial discretionary powers on the Registrar and the Minister over registration of NGOs. They had further recognized that once these officials declare a society unlawful, it is rather difficult to set this ruling aside because the Ordinance "considerably limits the aggrieved society's access to court."

This candid analysis has been expunged from the final draft. Strangely, however, the framers of the final draft have not shied away from critiquing the National Sports Act, 1967⁶, with a forthrightness reminiscent of the Nyalali Commission's analysis of the Societies Ordinance.⁷ One is forced to ask why - if the said framers are serious in their declaration that the prohibition of political affiliation by sports associations is "irrelevant under the current situation and especially under the multiparty system" - they have proposed in their final draft that NGOs should not "seek political power or campaign for any political party", and that they should be "non-political", etc.?⁸ Even the authoritarian regimes of the periods of colonial and one-party rule did not prohibit political activity by NGOs in such a draconian fashion!⁹

The final draft presents the need for a new policy on NGOs as arising from the fragmented and uncoordinated legal and institutional nature of the regulatory system for NGOs, this being currently governed by five different statutes.¹⁰ It is hoped that a comprehensive policy will solve these problems as well as "...assist in the promotion and development of the NGO sector in Tanzania..." However, the final draft policy document, it is claimed, "reiterates and retains all the fundamental principles of NGOs, that is, they are formed, run, developed or terminated only through the free and voluntary acts of individuals and associations; are managed and controlled by members, trustees or directors independently of government but within the framework of liberties and constraints provided for in the laws" (emphasis supplied).¹¹ Given the absence of the kind of clear rejection of the Societies Ordinance provisions contained in the Nyalali Commission's report, the final draft's recommendation that "all existing laws dealing with NGO matters shall be harmonised and a new law ... enacted ... (which) shall be such that NGO registration is streamlined and current deficiencies in the existing laws removed",¹² portends not just the maintenance of the repressive features of the former legal framework but their consolidation into a single statute.

Also reminiscent of colonial and post-colonial authoritarianism is the requirement that NGOs present annual reports of their activities and audited financial reports to the Registrar's Office.¹³ In itself this provision could play a valuable role in ensuring the accountability of the NGOs to their members and to the public. Open and public scrutiny of the affairs of public institutions is, after all, a basic tenet of democratic theory and practice. What is questionable in this proposal is the real motive behind it. As we have seen, the requirements for financial and activity reporting have historically been used as instruments of control and surveillance by the state, rather than as a means of ensuring NGO accountability to the public. The influence of this legacy is seen in the final draft's provision that non-compliance with the reporting requirements for three consecutive years constitute grounds for de-registration.¹⁴ Rather than curtailing NGOs' freedom to operate, less heavy-handed methods - such as the removal of tax-exempt status - could have been considered to ensure NGO openness in their activities and their financial dealings.

1. For more information about the BAWATA case, see The Freedom of Association in Tanzania: Implications for Civil Society and Sustainable Development, Policy Brief No. 1 by Rugemeleza, Nshala of the Lawyers' Environmental Action Team, November 1997.
2. NSC, 2000: 30-32.
3. There were three national consultative workshops and zonal workshops were held in seven centres across the country. Apart from the Government and local NGOs, donor agencies and foreign, mostly western, diplomatic missions also participated in various ways including financially (See NSC, 2000, 2-3, 21-22; Millinga and Sangale, Annexes 1 and 2).
4. NSC 2000, 4, para. 2.2.1.
5. VPO, 24.
6. Act No. 12 of 1967.

7. This is what framers of the final draft had to say as regards the 1967 Act: "The discretionary powers of the Registrar (of sports' organisations) to refuse registration are so wide that they can amount to abuse of power. For example, … the Registrar has powers to cancel registration if he/she is of the opinion that it is undesirable to register any association. Along the same lines, the Minister has powers to direct the Registrar to refuse registration of an association if it is in the public interest to do so. Unfortunately there is no given definition of what constitutes public interest. If such powers remain unchecked, there is the possibility of refusing registration of an NGO for political or for any other reasons.

   "Under the Act, the Registrar has powers to refuse and/or cancel registration of an association for reasons … that the sports association has affiliation or connection with Afro-Shiraz Party which was a ruling party in Zanzibar prior to the formation of Chama Cha Mapinduzi in 1977. This provision is irrelevant under the current situation and especially under the multiparty system.

   "Lastly there is a provision for the finality clause, that the decision of the Registrar and the Minister cannot be questioned by any court of law" (NSC, 2000, 4-5, para. 2.2.2).

8. Ibid., 8-9, para. 5.0: v, viii; see also VPO, ibid., 26, para., 9.1. This is not an accidental aberration as the second draft of this document had ominously stated that NGOs' activities must conform to same standards that apply to other organisations in the country and that although the Constitution of the United Republic of Tanzania provides for the right of freedom of speech and association, NGOs as legal entities are restricted from engaging in any activity that is likely to be construed as political (NSC, 1998: 3).
9. Section 6C of the Societies Ordinance empowered the Minister to require a company or cooperative society "formed or maintained solely for purposes of carrying on a club or other association of persons for social, recreational, cultural, political, educational or philanthropic purposes, to register as a society." Although this was intended and had the effect of putting the organisations thus registered under the surveillance of the Minister, it did not, nevertheless, prohibit political activities by the NGOs concerned as such.
10. NSC, 2000, 4-5, paras. 2.2.1-4; VPO, 24.
11. NSC, 2000, 6, para. 2.2.4; VPO, 19.
12. NSC, 2000, 12, paras. 7.0 and 7.2.
13. Ibid., 16, para. 8.4.
14. Ibid., 14, para. 7.6.1(c) and (d).