Source: PVO Act is about accountability and not silencing NGOs – herald
LAST MONTH, President Mnangagwa signed the Private Voluntary Organisations (PVO) Amendment Act into law, marking the beginning of a new operational regime for civil society organisations and trusts. The Sunday Mail’s TANYARADZWA RUSIKE spoke to Permanent Secretary in the Ministry of Public Service, Labour and Social Welfare MR SIMON MASANGA, who explained the reasons for the new law, its key provisions and how it seeks to improve transparency, accountability and national security.
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Q: What is the significance of the enactment of the PVO Amendment Act, and why was it considered necessary at this particular point in time?
A: The PVO Amendment Act was enacted to improve the administration, accountability and transparency of PVOs in the country.
The amendment was also done in order to comply with the Financial Action Task Force (FATF) recommendations made to Zimbabwe in the area of abuse of charities for the financing of criminal and terrorist activities.
Outlined below are some of the key provisions contained in the amendment Act.
It widens the definition of a PVO to include any legal person, legal arrangement, body or association of persons. The definition was broadened to reflect the international nature of terrorist and proliferation financing, particularly the abuse of charitable organisations, which can be exploited by terrorist groups posing as legitimate entities.
The registration of charitable organisations that collect funds from external sources brings accountability and transparency.
Through monitoring of PVOs in terms of the Act, any terrorist activities can be easily tracked.
The amendment Act provides for designation of high-risk PVOs by the minister (of Public Service, Labour and Social Welfare).
This will allow the authorities to do risk assessments of some PVOs perceived as vulnerable to manipulation by terrorist organisations.
Close monitoring of PVOs found to be at risk will be done. This is necessary to curb money laundering and financing of terrorism.
The amendment also seeks to dissuade PVOs from acting in a politically partisan manner by directing money to favoured political parties or candidates.
The PVO Amendment Act also provides that where there has been material change in the mandate of a PVO, then the PVO must apply for re-registration.
The rationale again is simply to understand that the new organisation is materially different from the one registered in the first instance, enhancing accountability on the part of the PVO.
The Act has limited the powers of the minister to suspend the executive committee of a PVO where there has been maladministration.
The minister now has to apply to the High Court and can only proceed as the court directs.
It pacifies PVOs’ fears of the minister’s excessive and unchecked powers. The Amendment Act requires full disclosure of the beneficial ownership and interest in a PVO and all sources of funding.
It widens areas where the minister may make regulations for efficient operations of the board.
It gives the registrar powers to process applications for registration, and this will ensure real-time processing of applications compared to the previous practice where applications were only considered by the board.
Q: Can you highlight key provisions of the PVO Amendment Act? What are the most notable changes from the previous legislation?
A: The Act widens the definition of a PVO to include trusts, legal persons and “beneficial owners”. More entities are now under PVO regulations, enhancing accountability of the organisations.
An office of the registrar of PVOs has been established. The registrar shall consider and determine every application for registration and every proposed cancellation or amendment of a certificate of registration before the application goes before the PVO board for approval or rejection.
Previously, this role was done by the PVO board only. There is also the revised structure of the PVO board; appointment of board members is done from representatives of the two regions of Zimbabwe, as defined in the Act.
There is mandatory registration of all operating PVOs and existing charities that carry out the objects of a PVO that does not exclusively use its own funds or assets but seeks financial assistance from any source within or outside Zimbabwe; or collects contributions from the public for the fulfilment of its objects. The law introduces the regulation of trusts suspected to be acting as PVOs. There is now a requirement to report any material change in operations, ownership or structure of a PVO, that is, change of ownership, change of the constitution on assets disposal on dissolution of the organisation, variation of territorial scope and any variation on the objects of the PVO.
In addition, there is now prohibition of political involvement by PVOs (with criminal penalties).
PVOs are now required to ascertain the identity of donors and the sources of donations and legality of sources. There is an introduction of civil penalties for non-compliance with some provisions of the Act, such as daily fines.
The minister is now empowered to suspend the leadership in cases of illegality or misconduct.
There are also amendments to money laundering laws to include proliferation financing offences.
Q: What specific gaps in the existing legal framework does this law seek to plug, particularly in relation to the registration and operation of private voluntary organisations?
A: As highlighted above, the mandatory registration of all pre-existing charities that carry out the objects of a PVO, which does not exclusively use its own funds or assets but seeks financial assistance from any source within or outside Zimbabwe; or collects contributions from the public for the fulfilment of its objects was a measure to enhance accountability on how public funds are used.
It was also necessary to streamline administrative procedures for private voluntary organisations to allow for efficient regulation and registration of charities that operated as PVOs.
In addition, this was meant to foster compliance with the FATF recommendations made to Zimbabwe in the area of abuse of charities for the financing of criminal and terrorist activity, because most charities fell out of the definition of PVOs and thus were not monitored.
The Act introduces measures to prevent and mitigate proliferation financing, including consequential amendments to Money Laundering and Proceeds of Crime Act and the Criminal Matters (Mutual Assistance) Act.
Fourthly, provisions have been added to safeguard against the abuse of charitable giving for political or socially undesirable ends.
In particular, it was enacted to:
Ensure the good internal administration and financial accountability of private voluntary organisations for the benefit of their stakeholders;
Ensure that private voluntary organisations do not undertake political lobbying; and
Ensure foreign or domestic organisations purporting to engage in charitable work in Zimbabwe by the use of funds solicited from within or outside Zimbabwe are registered unless they fall within one of the statutory exemptions.
Q: The Government has cited concerns that some organisations were being used as conduits for terrorism financing and other illicit activities. How does the new law address these specific concerns?
A: The PVO Amendment Act stipulates the conduct that PVOs have to adhere to for enhancement of administration, accountability and transparency, as well as to combat terrorism financing and other illicit activities. The measures below shed more light on how the above is to be done:
PVOs are to ascertain the identity of donors and the sources of donations. If the donor is anonymous, the PVO must satisfy itself by other means that he donor is acting in good faith and within the confines of the law;
PVOs to refuse donations from illegitimate or illegal sources and to report to the registrar and the appropriate authorities any such donation of which it becomes aware;
To ensure that its resources and all donations are used for the charitable objects for which the PVO is registered;
To account transparently to its stakeholders, including its donors and beneficiaries, for the manner in which it distributes its funds and implements its programmes;
To use formal channels (registered banking institutions or other financial intermediaries regulated in Zimbabwe or in any other state) for the transmission of its funds at every point from source to destination;
Not to conduct themselves in any politically partisan manner, whether by using its resources to benefit members of a particular affiliation or making any test of the political allegiance of its beneficiaries; and
To economically and socially benefit the community in the area where they will be operating.
Q: There are concerns from some sections of civil society and international observers that the law could be used to clamp down on organisations perceived as anti-Government. How do you respond to these fears?
A: PVOs are not at risk.
Just like with any other piece of legislation, anyone aggrieved or feels the need to challenge an administrative action or decision can do so through the courts of law.
Similarly, acts, decisions or omissions done under the purview of the amendment Act can be challenged in the courts.
Moreover, the general ambience of the Act gives the PVOs the right to be heard and the right to appeal as highlighted below:
PVOs have a right to be heard: for example, an organisation designated to be a high-risk institution shall have the right to make written representations to the minister to have the designation set aside or amended. The minister may, on written notice to the organisation concerned, reject or accept, conditionally or unconditionally, such representations.
Right to appeal: Any person aggrieved by a decision of the minister in terms of this section may appeal to the High Court in terms of Section 4 of the Administrative Justice Act.
In short, the decisions made in terms of the Act are not arbitrary; the PVO has a right to be heard and the right for the decision to be reviewed by the courts of law, and, on that basis, there should be no fear amongst PVOs.
Q: You have previously indicated that similar legislation exists in other countries. Can you share examples of jurisdictions that have enacted comparable laws and what lessons Zimbabwe drew from them?
A: There are similar laws in countries such as Rwanda, Tanzania and the United Kingdom.
The lesson we draw from these countries is that we do not need to wait for terrorism to become a scourge in Zimbabwe. Rather, we need to be proactive to combat it, just like what these countries did. In fact, the UK has the strictest laws on PVOs.
Q: Did the Government undertake sufficient stakeholder consultations before the enactment of the PVO Amendment Act, particularly in light of its commitments under the Zimbabwe Debt Resolution and Arrears Clearance Programme? If so, how were their concerns incorporated?
A: Consultations for the PVO Amendment Act were done in terms of the law. Consultations were done when principles for the Act were drafted. Soon after the draft Bill was in place, the Parliamentary Portfolio Committee consulted the public.
On March 17, 2023, engagements were even done with His Excellency, President ED Mnangagwa. Engagements were also done on international platforms like the African Commission on Human and Peoples’ Rights.
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