Bad laws return

President Lazarus Chakwera has collided with the civil society after nodding to a law contrived to keep non-governmental organisations (NGOs) in check. The activists’ friend-turned-foe says the new law will protect the interests of Malawians the NGOs claim to serve, but the campaigners argue that it restricts their civic space. Our News Analyst JOHN CHIRWA engages Centre for Human Rights and Rehabilitation executive director Michael Kaiyatsa to unpack the contentious law.

How do you assess the Tonse Alliance government as regards to the promotion of human rights and democracy?

The governing alliance came to power promising greater respect for human rights and democracy. While there have been some gains in this regard, recent happenings such as the passing of bad laws, the arrest and intimidation of independent journalists and the vilification of government critics to the extent of having a Cabinet minister calling them achule, reflect poor governance, increasing dictatorial tendencies and a steady erosion of human rights.

Some CSOs have branded the Tonse Alliance dictatorial for enacting laws that stifle citizens’ freedom. Do you agree?

I totally agree. It is quite unfortunate that we seem to have a government that is taking delight in passing laws that restrict people’s freedoms. Last year, we saw the President assenting to the Labour Relations Amendment Bill, which restricts the freedom of workers to hold strikes. This year, we have seen the President assenting to the controversial amendment of the NGO Bill, which violates a number of fundamental rights, including the constitutionally-guaranteed right to freedom of association.

What is particularly disturbing in all this is the way the President has consistently ignored legitimate concerns and gone ahead to assent to such bad laws. In an ideal situation, Chakwera, like any good parent, would have sat down with all those concerned to hear them out and consider various alternatives before appending his signature to the Bill. But simply brushing them aside shows how far we are as a country from realising the servant leadership that we had been promised.

Why are you against the NGO law when the government claims to have consulted you before the amendment?

Yes, some of us were consulted, but the consultations were far from meaningful. Meaningful consultation requires that stakeholders’ views are considered and reflected upon. There is a feeling among us that our concerns on the Bill were largely ignored to suit vested political interests.

It is, however, important that as civil society organisations (CSOs) we are not against the law in its entirety. The Act has some positive elements. For instance, it eliminates mandatory membership in Congoma, which was previously required for NGOs to register. This has removed a burdensome requirement that also violated the right to freedom of association, which includes the right not to participate in an association.

However, the Act has some provisions that could potentially limit the ability of NGOs and their staff to operate and fully exercise their fundamental rights and freedoms. For instance, Section 23 (v) of the Act introduces a requirement that NGOs should make a declaration that management and staff of the NGO shall not engage in partisan politics, including electioneering and politicking.

The Act has not defined ‘electioneering’ and ‘politicking’ in terms that raise the risk that the provisions could be abused to deal with dissent among the NGO community.  These provisions could also be used to stifle meaningful engagement and advocacy by NGOs on political issues.

The Act has also introduced disproportionate sanctions and imputed liability. For instance, Section 36 of the Act has increased minimum fines for contraventions from K500 000 to K5 million and imposed a two-year prison sentence on individuals for violations of the Act. Section 37 has increased the fines introduced through ministerial regulations from the current K25 000 to a million kwacha. We feel these penalties are excessive compared to other laws. For example, Section 54 (4) of the Corrupt Practices Act imposes a fine of K50 000 for contravening regulations under this Act while Section 4 (2) of the Gender Equality Act imposes a fine of one million kwacha.

What are the best practices in NGO regulation beyond our borders?

These penalties are not in line with international standards and best practices. As stated by the African Commission on Human and Peoples’ Rights, States shall not impose criminal sanctions in the context of laws governing not-for-profit associations.

All criminal sanctions should be specified in the Penal Code, not elsewhere. According to the commission, this helps to ensure that governments do not introduce specialised penalties for NGOs aimed at restricting civil society.

What is your take on the government’s claims that the law will enhance transparency and accountability on funding NGOs get in the name of Malawians?

I don’t think there is any serious CSO in this day and age that is against transparency and accountability. It’s unfortunate that most of those pushing this narrative that CSOs do not want to be accountable are people who left the civil society many years ago when funding modalities were less stringent.

But the funding landscape has changed. Civil society accountability is nowadays both a necessity and a duty. These days no donor would give you funding if your CSO is not accountable for its funding. For your information, it is now a donor requirement that before you get any new funding, you have to submit properly audited financial accounts for the previous year, which must be scrutinised by the donor. The donor must also be satisfied and convinced that your CSO has proper and robust accountability systems in place. With such conditions, accountability is not a choice for CSOs; it is a must.

It is, however, important to point out that civil society accountability is not just about funding. It is also about legitimacy. Unlike political parties, the legitimacy of a CSO does not come from elections. Its legitimacy comes from the work it does on the ground and how it’s changing people’s lives. In this sense, transparency and accountability are a factor of legitimacy and, therefore, a crucial element for the survival and sustainability of the CSO.