4.2 The Legal and Institutional Framework

Also different from the current system are the proposed legal and institutional structures for regulating NGOs. Although these structures were largely built around the provisions of the Societies Ordinance, other avenues existed which to an extent provided ways to avoid the restrictive and authoritarian system created by the Ordinance.

NGOs could seek registration either as sports or cultural organisations under the scheme of the National Sports Council Act, 1967; or as companies limited by guarantee under the Companies Ordinance, Cap. 212 of the Laws. Although these avenues were also restricted, as organisations registered using them could always be brought under the legal and administrative ambit of the Societies Ordinance,¹ they provided an important alternative venue for the exercise of freedoms of expression and association.

The framers of the final draft were clearly unhappy with this state of affairs² and, as a result, the proposed National Policy on NGOs seeks to concentrate powers under one legal and institutional roof. The document proposes that the Director of NGOs Coordination in the ministry responsible for NGO affairs shall be the sole "contact" between the government and NGOs;³ while the role of other sector ministries shall be to "designate 'Contact' Officers to handle relations with NGOs operating within the ministries' field of responsibility.⁴ Likewise, all existing laws governing NGOs shall be "harmonized" and consolidated and a new law enacted to cater for all NGOs.⁵ The watchword under this proposal is, again, authoritarian concentration of powers in the state and its functionaries rather than democratic decentralization. Hence, the real danger of greater restrictions to civil and political liberties.

There are additional proposals for changes in the institutional structures. Whereas under the Societies Ordinance, the Registrar of Societies, the Minister and the President were the central figures in the decision-making processes, the draft policy seeks to retain the position of the Registrar while ending the role of the Minister and the President. The Registrar will, however, be under the supervision of the new Office of the Director for NGOs Coordination.⁶

Further proposals include the creation of a National NGO Coordination Board, two-thirds of which will be made up of representatives from NGOs with the remaining third being drawn from the government;⁷ and two national apex bodies for NGOs for Tanzania Mainland and Zanzibar respectively.⁸ Although participants in one zonal workshop had recommended that membership within these apex bodies should be compulsory for all NGOs,⁹ the framers of the final draft appear to have left this matter open. In any case the legality of such a requirement is doubtful in view of the provisions of Article 20(2) of the Constitution of the United Republic of Tanzania, 1977 that prohibit compulsory membership of any association.

Whether the proposed institutional structures will lead to any meaningful changes is, of course, anybody's guess. However, the proposals create possibilities for institutional rivalries and conflicts over mandates that seem likely to lead to institutional paralysis and gridlock. Take the registration processes, for instance. The final draft proposes that the Registrar of NGOs is to be charged with the responsibility of "actual" registration of NGOs after the (National NGO Coordination) Board has approved the application for registration.¹⁰ The Board is also granted "the sole authority to de-register an NGO".¹¹ The record of the proceedings of the National Consultative Workshop is also unequivocal in this respect when it states that the NGO de-registration process "…gives the mandate to de-register an NGO to the National NGOs Board whose membership is … The power to register an NGOs (Sic!) … rests with the National NGOs Board" (Millinga and Sangale, ibid., 7). This wording implies that, the application for registration will be submitted to the Board for determination. The decision of the Board shall then be transmitted to the Registrar who shall then "actually" register the applicant NGO (where the Board has approved the application), or inform the applicant NGO that the application for registration has been rejected by the Board. In this perspective, the proposed role of the Registrar of NGOs is seen as being largely clerical, that is to convey the decisions of the Board on applications for registration to the applicants.

The proposed policy's provisions can be interpreted from a different perspective however, from which the role of the Registrar of NGOs appears more substantive.¹² One of the functions of the National NGO Coordination Board is stated as being "[t]o review complaints on registration and de-registration" of NGOs.¹³ This implies that the Board shall review complaints against decisions of some other institution, since to suggest that the Board shall review complaints against its own decisions would fly in the face of all notions of fairness and justice. There is, in addition, an implication in the final draft that the registration process may also start with submission of an application for that purpose with the Registrar.¹⁴ Furthermore, the Registrar is empowered to request the annual activity and financial reports discussed above.¹⁵ These provisions suggest that the Registrar of NGOs will wield substantive powers over the registration of NGOs. Any other interpretation would tend to make the position of the Registrar redundant. This lack of clarity shows the potential for conflicts over the mandates of the two institutions which might be realized should these proposals be implemented.¹⁶

1. Ibid., 12-13, para. 7.4. See also ss. 6A and 6C. Also the critique of the National Sports Council Act, 1967 (supra.)
2. See NSC 2000, 12, para. 7.) and VPO (ibid., 24).
3. NSC, 2000, 9, para. 6.1.
4. Ibid., 10, para. 6.1.2.
5. Ibid., 12, para. 7.2; VPO, 35-6.
6. NSC, 2000, 9, 11, paras. 6.1 and 6.2.3.
7. Ibid., 10, paras. 6.2 and 6.2.1.
8. NSC, ibid., 11, paras. 6.3 and 6.3.1.
9. See Iibid., 23.
10. Ibid., 10, para. 6.1.
11. Ibid., 11, para. 6.2.2(e).
12. Our analysis focusses on the powers of the Registrar rather than the Director, as it is clear from the Policy document that the latter's powers will be advisory and coordinative rather than executive or quasi-judicial.
13. Ibid., 11, para. 6.2.2(d).
14. Ibid., 13, para. 7.5.
15. Ibid., 14, para. 7.6.1.
16. Institutional conflicts and rivalries resulting from overlapping or conflicting mandates have, for instance, been a constant feature of the relationship between the National Environment Management Council (NEMC) and the Division of Environment (DoE) and the adoption of the National Environmental Policy in December 1997 added a new twist into that state of affairs. (See LEAT, 1999 for a critical analysis of those conflicts).