10 January 2013

South Africa: Corralling Civil Society - What's Up With Govt's New Proposals to Change the NPO Act?

analysis

If you blinked you probably missed it.

Seemingly unbeknownst to the vast majority of South Africa's over 120 000 non-profit organisations (NPOs), the Department of Social Development (DSD) undertook a series of 'partnership' meetings and summits across the country in June and July last year with selected NPOs.

In the words of DSD Minister Bathabile Dlamini, these were designed to discuss "the work and challenges of government and civil society organisations (CSOs)" so as to elicit "recommendations on how the sector can be strengthened in a range of areas."

This 'consultation' process was clearly deemed sufficiently representative that by the end of July, DSD - through its Non-Profit Organisations (NPO) Directorate - felt confident enough to produce a new 'Policy Framework on Non-Profit Organisations Law', complete with a range of proposed amendments to the NPO Act (Act 71 of 1997).

Evidently, the 'Policy Framework' was soon placed on DSD's website, although it is now clear that very few CSOs and associated activists, not to mention the media, even knew it existed at the time.

A DSD-organised National NPO Summit (with the support of the National Development Agency and the South African Social Security Agency) was then held in August where, not surprisingly, most all of the 700 NPOs in attendance were ones which already had existing relationships with the DSD.

Indeed, as Minister Dlamini confirmed in her opening address, the "primary reason" for the Summit was "the development of a stronger partnership" between government and "NPOs that render services on behalf of government"; explicitly stating that, "the non-profit sector" cannot "make an impact without working in partnership with government."

A subsequent Summit 'Declaration' affirmed that "such a partnership should be based on mutual accountability and trust [and] on the shared vision of an inclusive society ... including elements of this vision as articulated in the National Development Plan". Crucially, there is no indication that the 'Policy Framework' was either formally tabled and/or discussed at the Summit.

However, there is clear indication that the ANC itself was, and remains, fully aware of the 'Policy Framework' given that its 'Funding' resolution at Mangaung unambiguously states that that party should: "champion the introduction of a comprehensive system of public funding of ... civil society organisations [which] should include putting in place an effective regulatory architecture for ... civil society groups to enhance accountability and transparency to the citizenry". The incoming ANC NEC is then directed to "urgently develop guidelines and policy ..."

The cumulative result of all this is that we have an extremely important, new 'Policy Framework' for NPOs which: was drawn up after a largely unknown, highly selective and directed 'consultation' process; was not formally tabled/discussed at a NPO 'National Summit', itself mostly attended by selected CSOs receiving government funds to carry out various social services; and, has now been in existence for nearly 6 months but which hardly anyone outside of the government, ANC and select CSOs seems to know about.

Besides such a highly questionable 'process' though, it is the potential impact on civil society as a whole of specific proposals contained in the 'Policy Framework', that raises serious questions as to what exactly government is up to?

The generic motivations appear largely uncontroversial. Citing "challenges" related to "the difficulties of monitoring an increasing number of NPOs" receiving government funds linked to the capacity of the DSD's "NPO Directorate to manage an efficient regulatory framework that promotes accountability and transparency", the document states that, "the primary policy objectives ... must thus emphasise the need to balance oversight with possible threats to freedom of association as a civic liberty right."

However, the 'solution' to the stated challenges of the NPO Directorate is a proposed "42%" increase of its current capacity. No rationale is provided for how such a figure was arrived at and there is no specific breakdown of exactly what the "42%" will consist of.

Further, there is no direct linkage made between such an undefined increase in 'capacity' for the NPO Directorate and the ensuing proposal for the establishment of two new government institutions, the South African Non-profit Organisations Regulatory Authority (SANPORA) and the South African Non-profit Organisations Tribunal (SANPOTRI).

According to the document, SANPORA "will be mandated to encourage the formation of non-profit organisations and their accountability through an efficient and effective registration facility ... education and awareness raising, dissemination of information on non-profit organisations and enforcement of the law."

Besides the incredible vagueness surrounding how each of these 'mandates' will be practically carried out, of much more concern is that SANPORA will also be given specific powers "to sanction violations peculiar to non-profit organisations"(with both the powers and violations being undefined) and "should have at least the right to examine books, records and activities of non-profit organisations."

Additionally, SANPORA "must ensure that non-profit organisations are actually using fundraised money for the purpose claimed" and subject "all reporting non-profit organisations ... to random and selective audits."

As for SANOPTRI, which will be independent from SANPORA, its prime mission will be to mediate between SANPORA and NPOs with "its decisions" being "binding to all parties concerned." As to the process of selecting who will constitute SANOPTRI, the extent of its decision-making powers and how those decisions will be practically enforced; not a word.

The document concludes by setting out a 3-stage process for finalising a new NPO law. The first stage - consultation and finalisation of the policy framework - is, as confirmed by DSD's previous 'consultations' and the very existence of the document, effectively complete.

Next comes "the drafting of a memorandum based on this policy document" by a "working group of experts", followed by the final stage of "the drafting, publication and consultation on the new non-profit organisation legislation." No specifics on the process or timeframes for these last two stages are provided.

Now that some light is beginning to be shed on what has largely been a hidden process of 'consultation' and proposed legislative changes related to South African civil society, there are unsurprisingly many more questions than answers. This is exactly as it should be.

As the former Executive Director of the Socio-Economic Rights Institute Dr. Jackie Dugard warns: "In South Africa, as around the world, NPO operation is often precarious, with ongoing struggles for funding, recognition and space to work ... thus, while NPOs should be held accountable and should be properly governed, these imperatives must be carefully balanced with the need to ensure maximum independence and content-related autonomy."

This should especially be the case considering the often fractious and sometimes confrontational relationship that has existed, and continues to exist, between sizeable sections of South Africa's civil society and government.

Likewise, the continental and more global political context of many governments using new NPO legislation to erect a host of legal barriers ranging from restricting legitimate community and popular struggles to preventing the formation of NPOs, should make us all the more wary of the negative possibilities associated with the proposed changes to our NPO law.

Eyes wide open everyone.

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