Human Rights Press Statement on Zimbabwe's Ban on Humanitarian NGOs

Published on 10th June 2008

The Zimbabwe Lawyers for Human Rights (ZLHR) has had the opportunity to scrutinize the Notice issued by Nicholas Goche (Member of Parliament) on 4 June 2008 addressed to "All Private Voluntary Organizations (PVOs)/Non-Governmental Organizations (NGOs)". The Notice reads as follows: "It has come to my attention that a number of NGOs involved in humanitarian operations are breaching the terms and conditions of their registration as enshrined in the Private Voluntary Organizations Act [Chapter 17:05], as well as the provisions of the Code of Procedures for the Registration and operations of Non Governmental Organizations in Zimbabwe (General Notice 99 of 2007). As the Regulatory Authority, before proceeding with the provision of Section (10), Subsection ( c ), of the Private Voluntary (sic) Act [Chapter 17:05], I hereby instruct all PVOs/NGOs to suspend all field operation until further notice."

The Notice is not addressed to any particular organization/s and is signed by Hon N T Goche (MP), purportedly in his capacity as the Minister of Public Service, Labour and Social Welfare. It appears, although vague, to be directed towards humanitarian PVOs/NGOs, ostensibly those registered under the Private Voluntary Organizations Act. ZLHR therefore takes the following preliminary position on the legality of the Notice:

1. There is no provision in the Private Voluntary Organizations Act ("the Act") which empowers the Minister to suspend Private Voluntary Organisations [PVOs] or Non Governmental Organisations [NGOs]. The only provision in the Act which empowers the Minister to suspend was section 21, which provided for the suspension of the Executive Committees of PVOs registered under the Act in the event that the Minister had it on good authority that the said PVO was acting ultra vires. Section 21 was struck down by the Constitutional Court of Zimbabwe in the case of Holland & Others vs Ministry of Public Service, Labour & Social Welfare 1997 (1) ZLR 186 (S) as being at odds with section 18 (9) of the Constitution of Zimbabwe (which stipulates that everyone is entitled to protection of the law). To date nothing has been done to reverse the findings of the Constitutional Court and as such Section 21 in its entirety remains void for that reason.

2. Assuming that Mr. Goche is trying to use the said section nonetheless, he still falls foul of its provisions as the Notice is of a general nature and has not been directed to the Executive Committee of a named PVO as is required by the Act. The Notice is further defective as it ought to have taken the form of a Notice in the Government Gazette as that is the requirement of the law.

3. Section 21 aside, the Section 10(1)(c) which he then purports to threaten to invoke is of no assistance to him, as the power to cancel or amend certificates of registration envisaged therein is the sole preserve of the PVO Board established in terms of Section 3 of the PVO Act. It follows therefore that the Minister, though he appoints the board in terms of the Act, has no power (directly or inferred) to act in such a manner or take such action.

4. Finally, there is a further dispute as regards the powers that Mr. Goche has to take any action as the purported Minister of Public Service, Labour and Social Welfare. It is a matter of public record that the pre-29 March 2008 Cabinet (and Ministers) was dissolved and they have not been properly and lawfully re-constituted. This argument is currently before the Constitutional Court in the matter of Jonathan Nathaniel Moyo vs The President of Zimbabwe and Minister of Justice, Legal & Parliamentary Affairs and Zimbabwe Electoral Commission, where the MP-elect is challenging the purported powers of the Minister of Justice, Legal & Parliamentary Affairs, and a similar argument can potentially be raised in respect of the case at hand.

5. It is therefore submitted with respect that this Notice is a legal nullity

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