Most civil society organisations are probably unaware that the ‘draft NPO Bill of 2016’ was presented at a May conference hosted by the South African Accounting Academy. Possibly the reason for this unusual choice of presentation forum was that, as a representative from the Department of Social Development (DSD) had previously told a small group of civil society leaders, although the department is interested in holding consultations on the Bill, it does not have the budget to do so. DSD representatives have nevertheless affirmed that the new Non-Profit Organisations (NPO) Bill, together with associated policy documents are at an advanced stage. At the same time media reports allege that these documents are being prepared within The Presidency. While it is uncertain whether The Presidency story is true, what is undeniable is that at least some elements within the ruling party are looking into the activities of our sector with disfavour. Most recently, Minister of State Security, David Mahlobo, said that some non-governmental organisations are working to ‘destabilise’ the country. So what should civil society be doing about all these developments?

Firstly, we would do well to remind ourselves of previous moves by DSD to amend the existing NPO Act. Given both the unexplained stop-start nature of these moves, and the actual content of draft documents released between 2012 and 2014, in CAF Southern Africa we believe that as civil society we should be gearing up for strategic coalition-building and engagement. 

As we gear up, let us remind ourselves about the history of our NPO legislation: Following a thorough process of consultation and negotiation with civil society, the existing NPO Act was passed in 1997. The NPO Act repealed the Fundraising Act of 1978, infamously used by the apartheid government to suppress the activities of many civil society organisations. The NPO Act describes the State’s responsibility to NPOs as follows: “Within the limits prescribed by law, every organ of state must determine and coordinate the implementation of its policies and measures in a manner designed to promote, support and enhance the capacity of NPOs to perform their functions.” The key purpose of the Act was to create an enabling environment for organisations to flourish, while maintaining adequate standards of governance and public accountability.

Although the Act made provision for a dedicated unit within the DSD to provide support to NPOs, this NPO Directorate has never been properly resourced. The components and results of this ongoing implementation deficit are only too well-known. These include lack of leadership and associated skills, ongoing administrative and technical faults, these culminating in occurrences such as summary de-registration of thousands of organisations. Finally, the lack of coordination between the NPO Directorate and other government departments and agencies such as the South African Revenue Services, continues to cause unnecessary duplication of effort and associated frustration for organisations.

Now fast-forward to 2012 when DSD held meetings with some organisations to discuss the probability of amending the existing NPO Act. The department also organised what they called a ‘National NPO Summit’. However, only ‘welfare’ organisations directly supported by DSD were told about this meeting. 700 of these were bussed in and accommodated at the conference venue just outside Johannesburg. Out of this emerged a ‘Policy Framework on Non-Profit Organisations Law’.  This included proposed amendments to the NPO Act that suggested among other items, establishment of two new oversight bodies to regulate civil society – in other words increased government control.  Another few drafts of the policy document were circulated, some additional discussion – never made public – happened within a working-group structure hosted by DSD, and then from early 2014, all went very quiet.

Now that we know that the long-delayed Bill has been resurrected, and even though there has been no chance for civil society to comment on the draft so far, there are definite opportunities further along in the legislative process. Fortunately our Constitution, South Africa’s most ultimate law, safeguards the rights of citizens to participate in political processes. Within the Constitution, the Bill of Rights forms the cornerstone of our democratic freedoms. It includes the right to freedom of expression, access to information, freedom of association, political rights and the right to peaceful assembly and demonstration. The Bill of Rights also stresses the right to fair administration, while an important obligation is placed upon the state to respect, promote and fulfil these rights.

South Africa has in other words an enabling Constitutional framework for public participation – a framework which civil society can and should now invoke in respect of contributions to the new Bill. While much of the legislative process is technical, we need to understand and engage with it in order to ensure the best outcomes for civil society. According to the website of the Department of Justice and Constitutional Development (DoJ&CD): ‘’The preparation of a Bill involves a number of steps, for example the investigation and evaluation of the legislative proposals … and consultation with interested parties.’’ DoJ&CD further reminds us that before a Bill is tabled in Parliament it goes to the relevant Cabinet Committee and thereafter to Cabinet for approval.  Once Cabinet has given its approval the Bill is then released for public comments. After several further steps the Bill finally reaches the relevant Portfolio Committee. According to DoJ&CD: ‘’When the Portfolio Committee considers the Bill, it is regarded as the best time to lobby for changes or to protest against the principles contained in the Bill.’

Minister Mahlobo’s recent comments are disturbingly reminiscent of contentious content in what was apparently the last draft of the 2014 policy document, for example: ‘’ … registration of foreign NPO’s must be compulsory, considering the risk of money-laundering and financing of terrorist activities.’’  While no one would dispute that reasonable regulation is required, that global terrorism is real, and indeed that some organisations have not conducted themselves transparently, the current top-down response by government seems to be contradictory to the most fundamental principles of our democracy. Does South Africa really intend going down the reactionary path already taken by more than thirty countries that have already proposed or passed laws that close the space for civil society agency?  https://futureworldgiving.org/2016/06/03/appealing-to-the-enlightened-self-interest-of-partners-to-reinforce-civil-society
 
There has to be a better way. Civil society needs to mobilise in accordance with the processes provided within our legislative framework. Above all we should ensure that when the new NPO Act emerges from Parliament it includes a clear statement of fundamental principle to the effect that civil society’s independence from government is affirmed and secured.  

• Colleen du Toit chief executive officer at CAF Southern Africa.

CAF Southern Africa will be convening at least one consultative forum to discuss civil society contributions to the new NPO Bill. Other organisations working in this area will be doing the same.  Watch this space.

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