Building the one-party state? The strange case of the Non-Profit Organisations Bill

Summary:
The Non-Profit Organisations Bill, due to be introduced into Parliament in the New Year, has become the focus of a growing wave of criticism. Often in an atmosphere of considerable confusion several notably illiberal measures have already made their way through South Africa's first democratic Parliament - the decision by the ANC and NP to amend the Constitution with retrospective effect was perhaps the most striking - but the NGO Bill [as it is popularly called) could well be the first to produce the sort of bitter row over the infringement of civil liberties which characterised the old apartheid regime.

The Bill is certainly alarming. It foresees the creation of a Commission on NGOs with the following powers:

• Compulsory registration of NGOs.

• The right to refuse or withdraw registration from any NGO, without which the NGO is not permitted to raise funds [and thus survive).

• The right to suspend any or all Trustees or other officers of an NGO.

• The right to appoint additional Trustees of its own choosing.

• The right to suspend all powers of the Trustees and vest them in a person of its own choice.

• The right to prevent the NGO raising funds or making payments of any kind.

• The right to change an NGO's name.

• The right to subpoena any person, in respect of any NGO, even if not registered, and force that person to testify on oath about the NGO's affairs and to produce whatever books, accounts, records or other papers, however confidential, that the Commission wants.

Beyond that, the Commission will, if it deems it in "the public interest", have powers to "make such orders as it may deem appropriate" with reference to any NGO: that is, plenary powers to do more or less whatever it wants.

The spirit of the Bill is, indeed, so interventionist that it passes as a mere detail that it can dictate rules even about what letterheads an NGO may use. But no one is much bothered about this when it is plain that the Commission would effectively have power of life and death over NGOs or, short of that, to make their lives a nightmare. The very existence of a Commission with such powers would be viewed as intimidatory by many NGOs.

Nor is much assurance to be found in the composition of the Commission, to consist of 18 to 25 members, of whom seven shall come from a list of nominees from "the NGO sector" provided by NGOs which are - in the Minister's opinion - "representative" of that sector.

In practice this would give the Minister latitude to pick whoever he wanted and since, in any case, the Minister has power of appointment over all but two Commissioners there is very little to prevent the Commission from being politically packed in the style with which South Africa has, over the years, become wearily familiar.

However, should the Commission develop a will of its own, the Minister is provided with all the means necessary to maintain control. It is he who sets the terms and conditions of the Commissioners and who appoints and pays the Directors of the Commission's three secretariats, who will do all the real work.

Moreover, the Minister is given the power to vary the pay of each Commissioner individually and over time, and since Commissioners are re-eligible after their three year term, they will doubtless be keen to retain the goodwill of the appointing Minister.

On top of that the Minister can sack any NGO nominee Commissioner if he can secure the concurrence of the relevant NGO, and can sack the majority of the Commissioners who are government nominees without the need for anyone's concurrence.

Arming the State

The NGO Bill thus seeks to put in the hands of government a weapon with which, if it wishes, it can, quite legally, dominate, harass, undermine or even destroy non-governmental organisations it dislikes. [Quite how such powers sit with the constitutional right to free association is an interesting question.)

Short of that, the Bill gives the Government the ability to intervene in almost any aspect of the life of any NGO.

It should not be forgotten that this includes thousands of religious, sporting, cultural and charitable organisations as well as the more socially and politically committed NGOs which tend to occupy the limelight. Some of the most anxious NGOs to contact the Helen Suzman Foundation over the Bill have been from the churches, professional organisations and civil rights associations.

Who is behind the Bill? It is not a government Bill -indeed, several ANC MPs contacted were wholly ignorant of it and professed themselves shocked by it. A campaign against the Bill does not need to be an anti-government campaign. There is, nonetheless, a sort of political flavour to the enterprise.

The Bill has been produced by a group calling itself the Independent Study into an Enabling Environment for NGOs, which was in turn set afoot by the Development Resources Centre [DRC]. Many of the NGOs they seem to have talked to are what are often termed "struggle NGOs", which were generally aligned with what used to be called "the mass democratic movement".

The Independent Study (IS) set its terms in language drawn straight from the ANC's programme - it was to examine the role of NGOs "in the process of reconstruction and development, and the establishment of an open, democratic, non-racist and non-sexist society". The IS and DRC then assembled nine provincial "NGO coalitions" - a curious term given the fiercely independent nature of most genuine NGOs. Inevitably, despite three years of "intensive consultation", many NGOs were never consulted about the Bill and are now hearing of it for the first time - with some indignation.

"Struggle NGOs" are part of the problem: the amorphous band of UDF-aligned organisations which emerged in the 1980s to carry on the struggle by NGO means. Mainly foreign funded, many of these were little more than fronts for opposition activity. In the desperate circumstances of the time they clearly had a role to play. But they were often cuckoos in the nest, albeit welcome cuckoos.

However, Richard Rosenthal, one of the Bill's drafters, makes it plain that he sees all NGOs in this mould: he refers to NGOs as "guarantors of social justice", as representing "the poor or disempowered", organisations which have "grown out of a culture of resistance, drawing their lifeblood from a mass popular opposition to government rule".

This is a fair description of what would today be called ANC-aligned NGOs but, of course, one can hardly base policy for the future on this partisan sub-set of NGOs, many of them now notoriously in search of a role.

Motives

What motives lie behind the Bill? The main public reason given is "to avoid another Boesak affair". But this will not stand up, for the problem in the Boesak case [and/ let us be frank, many similar if less publicised cases of "struggle accounting"] was not the law but political will.

For years before the present [unproven] allegations against Boesak became a legal matter, you only had to visit Cape Town to hear the man in the street wondering aloud as to how Boesak could afford his large house, his extravagant lifestyle and so on. Rumours swirled but nobody did anything, for the political will was lacking domestically. Finally, an outside funding agency, Danchurch, took the matter up and the present state of the law has been quite sufficient to force the sale of Boesak's house even before the case is concluded.

The real problem has been the perceived lack of enthusiasm of Vice President Mbeki's office, through the much criticised intervention of Advocate Mojanku Gumbi, to allow the law to take its course in the Boesak affair. Even when that intervention collapsed Advocate Gumbi continued to insist to the press that she was certain Boesak would be vindicated - a strange way for a government lawyer to act over a subjudice case.

Zimbabwe NGOs Under Threat

Zimbabwean NGOs and civil rights groups have rallied in strong resistance to the new Private Voluntary Organisations Art, especially its clauses 20A and 20B which allow the Minister of Public Service, Labour and Social Welfare, in the case of any private voluntary organisation, to suspend any or all of its executive officers or trustees and replace them with nominees of his own, provided only that the Minister feels it is "in the public interest" to do so.

This Act is thus a far more illiberal and potentially repressive Act than Ian Smith's Welfare Organisations Act [1V76] which it amends and replaces.

Upon the passage of the Art, NGOs refused to comply with a government proposal that they draft regulations to make the new Act operational. As Ozias Tungwarara, the director of the Zimbabwe Human Rights Association [ZimRights) puts it, the Art allows the Minister to "virtually take over the running of NGOs on a number of vague and ill-defined grounds, which lays the groundwork for abuse of these powers and the coercion of NGOs".

What really prompted the law, suggests Mr Tungwarara, was the growth of civil society in recent years, with some NGOs becoming increasingly involved in advocacy work which has entailed criticism of government policies. In addition, he adds, government was under the illusion that large amounts of donor funding were being channelled to these critical NGOs.

The Act should be seen in the context of Zimbabwe's progression towards a de facto one party state. The opposition has almost no seats in Parliament and protests that the electoral system nukes elections almost pointless.

Opposition leader, Reverend Ndabaningi Sithole, has been arrested, and President Robert Mugabe docs not conceal his fury that even municipal seats could be won by independents. Yet democracy in Zimbabwe has faltered to a point where less than 10% of the electorate bothered to register for the latest elections, and less than 2% actually voted in President Mugabe's government has an extremely questionable attitude to civil rights, as was illustrated both by the recent anti-Gay campaign and the government's continued sheltering of former President Mengistu of Ethiopia, accused by the present Ethiopian government of the genocide of 200 000 of his compatriots.

NGO opposition

ZimRights convened a meeting of the National Association of NGOs [Nango] on October 19, attended by a large number of NGOs including the Legal Resources Foundation, Women in Law and Development in Africa, Women in Law - Southern Africa, the Catholic Commission for Justice and Peace, and the Zimbabwe Council of Churches.

It was decided to meet with the Minister to press appropriate amendments to the Act. Secondly, it was decided to initiate legal action to challenge the constitutionality of the Act in terms of the Zimbabwe constitution's guarantee of the individual's freedom of assembly, and its provision that an individual is entitled to have those rights and their extent determined by an independent and impartial court, and not just by ministerial fiat.

The Minister, using the new Act for the first time in early November, suspended the whole 18 strong executive of the Association of African Women's Clubs. No reason for the action was given and Nango has been trying, without success so far, to ascertain the reason for the effective closing down of this NGO.

One of the key objectives of the Helen Suzman Foundation is to work for liberal democracy not just in South Africa but throughout our region. We will give all the publicity and support to our Zimbabwean colleagues that we can.

We feel strongly that the new South Africa must not only preach democracy in, say, Nigeria, but must use its moral weight much closer to home - and we hope our regional colleagues will, when necessary, lend us their support too.

Even now, only a similar lack of political will prevents other such prosecutions. The present state of the law is more than adequate to deal with such cases. Indeed the existing law [for example the Fund Raising Act] is far too interventionist and needs weakening, not strengthening. Yet more laws are not the answer. The business world is heavily fenced around by law but frauds and scams continue, as they always will: you cannot legislate against sin. In the NGO world the only real safeguards against corruption are properly audited accounts and Trustees who take their jobs seriously.

UK comparison

Much weight is placed by proponents of the Bill on the claim that its Section 30 [allowing the Commission to sack Trustees and appoint new ones] is modelled on the UK Charities Act. While it is true that that Art gives the British Charity Commissioners such powers, this argument is misleading in several important respects.

First, the Chief Charity Commissioner in the UK, Mr R] Fries, commenting on the [somewhat weaker] first draft of this Bill, warned that it sought to give the NGO Commission in South Africa all manner of roles and functions which the Charity Commission does not have - and that even the powers it has have been the subject of some controversy and criticism.

In particular Mr Fries warned that the proposed NGO Commission would get "drawn into the political contexts of advising Ministers". This would, in British conditions, be construed as a fatal weakness since it is assumed that the work of the Charities Commission has to be seen and believed to be wholly non-political. Indeed, charitable status in the UK depends quite centrally on a charity or NGO itself remaining non-political - to adopt the sort of political commitment which is quite common for NGOs in South Africa would mean that the corresponding organisation in the UK would lose its charitable status.

Quite how important this is was shown in 1990 when one of the biggest British charities, Oxfam, formally resolved to support economic sanctions against South Africa. The Charities Commission - under, it is alleged, pressure from Margaret Thatcher - launched an investigation against this breaching of the "no politics" rule. Oxfam was forced to rescind its decision and its Director was forced to resign. It goes without saying that the "struggle NGOs" of the 1980s would - quite rightly - have resisted any such provision in South Africa.

Comparison with Britain is misleading in a far more fundamental sense. Britain has the oldest, most densely populated and perhaps the strongest civil society in the world and government is generally extremely reluctant to intervene in this sphere. The comparison with South Africa, where civil society is far less mature, far more politicised and altogether weaker, is painfully inappropriate.

The South African state, through the infamous Schlebusch Commission and various other initiatives, has frequently sought to interfere, undermine and curb NGOs. Such initiatives would be unthinkable in Britain, which also enjoys the tradition of a neutral and non-political civil service. The Charities Commission is part of that tradition: the Commissioners are all anonymous civil servants. Not one person in a million could name them, let alone guess at their political opinions.

The Charity Commissioners enjoy strong powers partly because charitable status confers enormous tax privileges in the UK [by comparison the tax advantages of NGOs in South Africa are trifling -and unlikely to increase much]. The Commissioners powers are analogous to those held in South Africa by the Master of the Supreme Court over Trusts or the theoretical right of the Registrar of Companies to dismiss company directors - reserve powers detained by an official, to be used only exceptionally and in extremities.

Even so, the powers of the UK Commissioners-far weaker than the NGO Commission would enjoy here under the proposed Bill - are controversial, despite the fact that the diffuse strength of civil society in Britain is so great that it is unthinkable that such powers can often be used. And Britain is a very different place: it is an extremely homogenous society with a single language, a monopolistic Christian tradition and a very high degree of shared values, assumptions and mutually agreed restraint.

Political tradition

South Africa's political traditions are very different. We are an extremely heterogeneous nation of many languages, religions and cultures. We have different histories, different traditions - that is our richness.

But we also have, to only low degree, shared values and shared assumptions and our whole political experience has been one in which one particular group tried to solve this problem of heterogeneity by trying to order us all about.

We have lived under governments which have, hatefully, told people where they may or may not live, whom they may marry [or even sleep with), which political parties they may join, which park benches they may sit on, which cinemas, beaches or theatres they may frequent, which schools or universities they may attend, and so on.

To its credit, the present Government clearly has no intention of legislating in many of these areas, but its social and economic plans are so far-reaching that it will find it difficult entirely to abandon this tradition of strong state interventionism: an affirmative action labour law, for example, could well be merely a job reservation law in reverse.

At the least, this interventionist tradition is too uncomfortably close for one to feel happy about a Bill which would allow a future government a stronger whip hand over NGOs than even Verwoerd or Vorster enjoyed.

South Africa: the party state

Our tradition is, sadly, that of a party state. Under the old National Party order every major state or parastatal office was used for purposes of political patronage and control. It was perfectly normal to find Broederbonders not only in the Cabinet but in leading positions in the civil service, armed forces, and parastatal corporations and so on.

There was so little pretence of official neutrality that one could find a Director-General of the SABC proudly boasting of a son called Izan [Nazi, spelt backwards]. Even second and third echelon bureaucracies - the post office, the Human Sciences Research Council, the "tribal colleges" and so on -were filled with NP loyalists.

While the new Government has been commendably less committed to the party state - some important appointments have gone to non-ANC personnel -the tradition of the party state is clearly intact: it is a matter of degree, not principle. The overwhelming bulk of state appointments have gone to ANC members or sympathisers.

This is true in the intelligence services, in the police, at the SABC, at ambassadorial level and even in the Constitutional Court. The Speakership of Parliament - in the Westminster tradition the most sacredly neutral of offices - is held by a member of the ANC National Executive who continues to attend party meetings and make partisan speeches. It is almost as if the tradition of state partisanship is so ingrained that South Africans do not understand the ethic of neutrality.

Given this tradition of politicisation, there is little reason to believe that NGO Commissioners would be the anonymous and apolitical civil servants one finds on the British Charities Commission. It does not take a huge leap of imagination to ponder an NGO Commission whose majority would be high profile and politically partisan people, the majority in the ANC tradition and with, probably, a majority, if not all, of the Commissioners from the "NGO sector" drawn from "struggle NGOs". The usual suspects, in a word.

Even to imagine such a Commission is to imagine nothing but trouble. How would it deal with an Inkatha Institute? With the FAK? With the Broeder-bond's successor, the Afrikaner Bond? How would the Jewish Board of Deputies feel if the Commission included Muslim fundamentalists? How would the Free Market Foundation view the legitimacy of a Commissioner drawn from the SACP?

And what of the politics of intervention in the big spending NGOs like the Kagiso Trust or the Independent Development Trust? Would there not be a temptation to give contracts to politically friendly/correct sources, to relatives of Commissioners and the like? As apartheid South Africa often showed, state control and corruption were not opposites: more state control often meant more corruption, not less.

The politics behind the Bill

What are the politics behind the Bill? In a word, murky. Some of those fashioning the Bill seem merely to be naive about what use future governments might make of it. If one asks the Bill's advocates whether they would be happy about giving the powers in the Bill to, say, an NP or IFP led government, they are horrified. In effect they assume a permanent one party ANC dominance and take the beneficence, present and future, of such an administration for granted.

The normal liberal principles - of an alternation of parties in government, and that such powers should not be given to any government, irrespective of its political complexion - are simply foreign to them. It is not so much that such folk are consciously building the one party state as that they already subconsciously assume it.

Even more remarkable is the fact that the body ultimately behind the Bill, the DRC, receives funding from the Ford Foundation. Yet can one imagine the reaction in the United States if it was proposed to create a government-controlled body with the power to sack the President and Trustees of foundations such as Ford and replace them with its own appointees? Any such notion would be greeted with outrage, nay disbelief, and would quite certainly be struck down by the Supreme Court.

The funding crisis

The re-direction of funding from the European Union (the biggest single source of foreign funding] from NGOs to government has created a crisis of large proportions in the NGO world. Many NGOs have already died and more are threatened.

There is a considerable tragedy in this: many extremely worthwhile and non-political NGOs, carrying out invaluable welfare work, are in dire straits. But, of course, "struggle NGOs" are particularly threatened because they have lost their ostensible raison d'etre and many of their leading lights have been recruited by government. Naturally, this sets up strong ripples among their erstwhile colleagues, who can see the advantages of life on the gravy train.

The combined result of these pressures, we have seen, is that the RDP Office -seen as the source of bottomless, unpledged, and ultimately political. funding - has been under siege for some time by "struggle NGOs", many of which have rapidly re-tooled their stock in trade from protest to development. These NGOs have set up a tremendous cry for government funding: in effect they want to become GOs or, as the jargon of the trade would have it, government-sponsored organisations [Gongos). (Trivial Pursuit players will doubtless be keen to know that the opposite of a Gongo is a business-sponsored NGO, or Bongo.}

NGOs - Independence = Gravy?

In effect, many of these NGOs have become only too willing to trade their independence for greater economic security. If the price of getting government funding is government control, so be it.

Moreover, the thought has already occurred to not a few minds that a job as an NGO Commissioner-or even in one of its three secretariats, or as one of its innumerable legal advisers or consultants - might be a preferable way to make a living: after all, Commissioners on bodies like the Public Services Commission earn higher salaries than Cabinet Ministers, while even those on the Human Rights Commission earn more than Deputy Ministers. Why should NGO Commissioners earn less?

Within government there is a feeling that if NGOs are to become the conduits for large scale government funding, this should be accompanied by a greater degree of government supervision and control.

Clearly, whatever agency is put in charge of handing out funds to NGOs will have enormous powers of patronage and leverage. This was doubtless in Sanco's mind when it attempted to insist at one point that it should, as of right, become that agency, apparently because Sanco, though its officials are generally self-appointed, sees itself as representing all "communities" and thus to be the mother of all NGOs. In fart the NGO "community" hardly exists as such and even NGO "coalitions", "alliances" or "summits" should be viewed with a sceptical eye: most serious NGOs are far too independent for one to take such claims of representivity seriously.

Totalitarian In government terms, the big question is which ministry should take over responsibility for the NGO "empire".

The traditional answer would be the Ministry of Welfare, but the RDP Office is clearly an alternative home. It has to be remembered that the more Leninist proponents of RDP ideology see the RDP as gradually enveloping the entire budget, with the whole of civil society being demarcated into "RDP sectors".

In terms of this sort of mind-set it makes sense to imagine each NGO being designated as carrying funding responsibility within this or that RDP sector, and then marching in step to the beat set by the RDP Office. It has to be remembered that this is a milieu within which the simplistic notion is often accepted that NGOs equal civil society, and that the way to deliver the RDP is via a hegemonic "mobilisation of civil society".

Actually, civil society really consists not just of NGOs but of a plethora of social, religious, sporting and other associations and, indeed, of private individuals and groups of people just going about their business in their own way. The very idea of "mobilising civil society" is quite literally totalitarian.

Illiberal

The advent of the NGO Bill constitutes a key moment in the development of the new South Africa. Many of the Bill's provisions are inherently illiberal and even anti-democratic. Not surprisingly, proponents of the African one party state have had a deep seated dislike of independent NGOs beyond the control of government. That is why laws like the current Non-Profit Organisations Bill found such favour in Banda's Malawi and Moi's Kenya.

It is possible to find traces of such thinking in South Africa today: civil society is seen by some as an illegitimate "zone of immunity" in which the dependence of NGOs on private donation constitutes the "privatisation of authoritarianism". They are held to be guilty, by "mythologizing the essential virtues of civil society", of undermining "the capacity of the political representatives of citizens".

A shorter way of putting this, which may be heard in Zimbabwe today, is that the independent and sometimes critical voice of NGOs constitutes a threat of opposition to the ruling party.

Our Zimbabwean colleagues in such valuable organisations as ZimRights, the Legal Resources Foundation and the Catholic Commission for Justice and Peace are today fighting a draconian law against NGOs.

South Africa, with its larger and more diverse networks of voluntary organisations, will surely resist the Non-Profit Organisations Bill with at least equal vigour.