Introduction
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Mr. Speaker Sir, the Parliamentary Legal Committee ("your committee.") considered the constitutionality of the Non- Governmental Organisations Bill, HB 13, 2004 ("The Bill") and regrets to report that in the opinion of the committee, the provisions of clauses 2, 9, 10, 11, 15, 17, 20, 22, 23, 24, 29 and 32 are inconsistent with the Constitution of Zimbabwe and therefore unconstitutional.
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One of the stated objectives of the Bill is said to be the provision of
“an enabling environment for the operations, monitoring and
regulation of all non- governmental organisations” and yet it is your
committee’s view that far from seeking to provide such an
environment, the Bill, when read as a whole constitutes a determined
and pervasive attempt to curtail and extinguish the fundamental
freedoms of the people of Zimbabwe enshrined in the constitution.
Mr. Speaker Sir, it is your Committee’s opinion that this Bill is a
cynical and comprehensive attack on the rights of the people to
organize themselves in the promotion, protection, defence and
advancement of their freedoms and liberties. It is a calculated attempt
to all but extinguish just about all the rights and liberties contained in
the constitution. To seek to control, circumscribe and prevent the
people from organising themselves into such bodies as they may
deem fit for monitoring and promoting respect for their constitutionally
guaranteed rights is just as good as saying the people do not have
those rights.
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Mr. Speaker, Sir, Your Committee has taken notice of the historical
and present context under which the Bill is being introduced. It has
also considered the objects of the Bill as explained to the nation by
the government and in particular the responsible Minister. We have
also had the privilege of having government’s underlying reasons for
seeking to enact the Bill explained to us in some detail by one of our
members Honourable Kumbirai Kangai. We understand that the
government is extremely unhappy with the work of many nongovernmental
organisations particularly those working in the field of
human rights, and hence seeks to control and close down some if not
all of them because, it is alleged they have been used by imperialist
forces to destabilize the country and effect regime change. The ban
of foreign funding to non- governmental organisations, it is said, is in
response to some statements by foreign powers allegedly indicating
that they are working with the opposition and civil society to effect
regime change in the country. For this reason, we have been told, the
government can not sit by while non- governmental organisations
(NGOs) work in cohort with the opposition and foreign powers to
effect regime change in the country. We are further told that the
government is determined at all costs to curtail human rights in the
country in order to protect itself from being removed from power by
foreign powers using local NGOs as a front.
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Mr. Speaker Sir, it is your committee’s considered opinion that the
truth lies elsewhere. Our view is that as the human rights situation in
Zimbabwe has deteriorated and worsened in the last five years as
confirmed by the report of the African Commission on Human Rights,
which must have been the last straw for the government. The government has increasingly seen the work done by NGOs
particularly those working in Human Rights, as providing a recording
of human rights violations in the country, which have contrasted
sharply with the government’s version of a country at peace with itself
and with an impeccable human rights record.
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Mr. Speaker Sir, it is your committee’s view that local human rights
NGOs have played an important part in the struggle to protect,
promote and defend human rights in the country and in particular in
informing Zimbabweans and the world of the true human rights
situation in the country. They have painstakingly recorded and
reported on a varied range of human rights issues carefully
documenting incidents of political beatings, intimidation torture, rape,
killings, unlawful arrests and detention, destruction of homes and
other properties, the suppression of media freedoms, etc, etc. They
have provided legal, counseling, and medical assistance to victims of
human rights abuses. They have campaigned for a return to the rule
of law and a cessation of state sponsored human rights violations. In
doing all this work, the local NGOs have been heavily dependent on
foreign funding for their activities for the simple reason that there isn’t
local funding to support this sort of work.
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The government has been heavily critical, indeed antagonistic
towards the NGOs, which have been doing this work accusing them
of propagating and disseminating false information concerning the
human rights situation in the country.
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It is in this context that the true intentions behind the attempt to
promulgate the Bill must be understood. To be fair, the government
has not hidden its intention to control and if necessary to close down NGOs accused of recording and propagating false information about
human rights abuses in the country. In his speech at the opening of
this session of Parliament on 20 July 2004, the President made it
very clear that the government intended to deal with NGOs which
stood so accused. He said,
“Non- Governmental Organisations must be instruments for the betterment
of the country and not against it. We cannot allow them to be conduits of
foreign interference in our national efforts.”
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The responsible Minister had similar sentiments when he said,
“Some NGOs and churches are causing too much confusion in the country
because they are converting their humanitarian programmes into
politics…The government cannot allow that to happen so we are saying
they should go under scrutiny where we revise all modalities in the
country. [See The Herald of 5 April 2004]”
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Mr. Speaker Sir, it is your Committee’s view that rather than seek to
address the human rights situation as recorded and reported by these
NGOs, the government has, instead, chosen to kill the messenger by
seeking to control and close down NGOs including, by the mere fact
of denying them access to foreign funding, an act of itself, which will
render any human rights organisation which will survive the
registration process, completely useless.
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Mr. Speaker Sir, when read as a whole, it is plain that the main
targets of the Bill are those NGOs which promote , protect and
defend human rights and hence the definition of the term
“governance issues” [in the circulated amendments to the Bill] as
embracing the human rights contained in the International Covenant
on Civil and Political Rights. It seems clear to us that the Bill’s primary
object is the closing down, silencing and rendering ineffective of all local human rights organisations monitoring and promoting human
rights in the country as well as to prevent international or foreign
human rights organisations from operating in the country. Quite how,
it can be thought or believed that a Bill whose effect is to achieve the
above, can possibly be consistent with the Constitutional imperative
and directive to promote, protect and defend the human rights
outlined in the Declaration of Rights is frankly mind-boggling.
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It is for this reason that your committee, Mr. Speaker Sir, has no
hesitation in finding that a Bill, which seeks to curtail the ability of the
Bill to protect, promote and defend their human rights, is inherently
unconstitutional. It is a most serious attack on the Declaration of
Rights to seek to prevent people from organising themselves in such
forms and ways they may deem necessary in order to collectively
promote, protect and defend the very rights the constitution has so
elaborately pronounced.
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Mr. Speaker Sir, it is your Committee’s view that the Bill does not
seek to regulate but seeks to control, to silence, to render ineffective
and ultimately to shut down NGOs around which Zimbabweans have
organized themselves for the promotion, protection and defence of
their Constitutionally guaranteed rights. Ask yourself Mr. Speaker Sir,
whether it is sensible to provide in the Constitution that every
Zimbabwean has the freedom to personal liberty or the freedom from
torture and then provide in a subsidiary law that NGOs formed by
Zimbabweans to secure those rights through legal aid, providing
medical assistance to victims or through litigation cannot be
registered if one member or director is not a Zimbabwean domiciled
in Zimbabwe or that they can not receive foreign assistance to pay for the legal fees of an unlawfully arrested person or for a victim of
unconstitutional and unlawful acts of torture?
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In short it is ridiculous to say through the Constitution, that people
have human rights but then go on through an Act of Parliament to
prevent them from organising themselves to assert, protect, promote
and defend those very rights the Constitution has guaranteed them. It
is pretty much like saying someone has the right to life but they are
prohibited from eating.
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Mr. Speaker Sir, it is for the above reasons that your committee finds
all those clauses of the Bill which seek to achieve the silencing, the
control and ultimately the closure of NGOs, to be unconstitutional.
Each of those clauses are considered in turn below.
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