The Tanzania Human Rights Defenders Coalition (THRDC) presents the second volume of the compendium. This volume focuses on the legal and practical issues of concern facing the Civil Society Sector (CSS) in Tanzania, particularly the Civil Society Organizations (CSOs), which are more directly on the ground pursuing human rights advocacy interventions. The first volume of the compendium focused on the laws, policies and regulations governing CSOs in Tanzania Mainland and Zanzibar.
It should be noted that, THRDC is the first and only human rights defender (HRD) organization which addresses rights of defenders (HRDs) in specific and comprehensive ways. The HRDs include individual persons and CSOs such as non-governmental organizations (NGOs) and the media. The core functions of THRDC since its inception in 2012 have been to address the rights of HRDs in Tanzania through Advocacy, Capacity building and the Protection of HRDs by providing legal aid and counseling. The two compendiums are resourceful tools for THRDC’s members and other CSOs and the whole family of CSS in Tanzania. While the first compendium offers general legal compliance knowledge for CSS actors, the second one highlights some practical concerns affecting the CSOs in the course of complying with the legal requirements on CSS in Tanzania.
Knowledge of these legal requirements will enable them to take precautions and also galvanize them to take action to advocate for changes of some of the reprehensible laws and regulations hindering the smooth implementation of their work. Therefore, the second compendium acts as both resource material and an advocacy tool for an improved civic space (working environments) of CSS in Tanzania, and rights of HRDs in Tanzania.
The idea to have these compendiums was suggested and endorsed on the 13th and 14th of October 2017 when CSOs in Tanzania conducted a self-reflection meeting to assess the challenges and opportunities in the CSOs sector in Tanzania. The event was held in Arusha, whereby more than 70 CSOs attended the forum. One of the meeting’s resolutions was on the need to compile a compendium of all laws, policies, regulations and rules governing the operations of the CSO sector in Tanzania. Consequently, THRDC in collaboration with the Foundation for Civil Society (FCS) engaged consultants for the development of this compendium the first of its kind in the country.
As was the case for the first volume of the compendium, this one too was developed after a thorough desk review of the laws and other documents including consultations with various stakeholders in the field of law, human rights, good governance, corporate practices and organizational managements The readers are advised to read both volumes of the compendium as they are linked to each other in terms of form and content. Compendium volume one has two versions, one covering Tanzania mainland and the other one covering Zanzibar.
This compendium addresses legal, policy and practical gaps/challenges affecting the civil society organizations in Tanzania. It is a companion of another compendium which dealt with the laws, regulations and policies governing CSOs in Tanzania. It is divided into six chapters. Chapter one deals with the general introduction and background information. Chapter two deals with the gaps and challenges of the legal and policy framework governing the formation and operations of CSOs in Tanzania. It expounds on the Constitutional foundation of the CSOs existence in Tanzania as well as the four main laws of which CSOs are formed. These are; the Societies Act, the NGOs Act, the Trustee Incorporation Act and the Companies Act. Chapter three looks into the challenges of the laws governing research and publications in Tanzania. It provides an analysis about the laws such as the Statistics Act, 2015, Cybercrimes Act, 2015, Media Services Act, 2016, the Online Content Regulations, 2018 among others and how it impacts on the conduct of research work and inhibits press freedom and freedom of expression through the media, social media and other communication channels. Chapter four is on adverse effects of the penal laws to CSOs in Tanzania. Chapter five details challenges in other laws such as tax laws and regulations which deal with the governance and operations of CSOs in Tanzania. The last chapter (chapter six) deals with challenges associated with legal and regulatory framework governing particular CSOs such as the Tanganyika Law Society (under the Tanganyika Law Society Act), and the Legal Aid Providers (under the Legal Aid Act).
Some of the notable challenges under the identified laws and policies are double registration, issues of compliance, internal interference of CSOs affairs, centralized operations of most of the regulatory organs, criminalization of CSOs and office bearers, bureaucracy, restrictions on freedom of expression/surveillance, the state of impunity, and excessive regulation to mention a few. These and many others have been to a greater extent a stumbling block towards CSOs operations and growth. Several recommendations are also proposed in the compendium and these include but not limited to an amendment of all the provisions of the laws which are restrictive to CSOs operations.
GENERAL INTRODUCTION AND BACKGROUND INFORMATION
This chapter covers the meaning and types of Civil Society Organizations (CSOs) in the Tanzanian context and the reasons for the development of this second volume as well as the first volume of compendium. A large part of this chapter’s contents are also reflected in the first volume and this is because these are companion documents – the first volume focusing on the legal framework governing CSOs while this second volume provides an analysis on how the application of the said legal framework have affected the smooth and affective operations of CSOs in Tanzania.
1.2 CIVIL SOCIETY AS ONE OF THE STATE’S SECTORS
As a norm in any modern society, including Tanzania, there are three pillars of State commonly termed as ‘sectors.’ These are Public Sector; Civil Society Sector; and Private Sector. Each of these pillars or sectors has sub-sectors. Besides, there are other ‘sectors’ which do not necessarily fall within the three broad groups. These include the general public, development partners and international organizations. The fourth group (termed as other sectors), interplays between all these three sectors. The groups are explained below.
1.2.1 Public Sector The public sector is comprised of the three organs of the States namely:-
- Central government including the ministries, departments, institutions and state agencies such as the law enforcement (Police, Directorates of Prosecutions, Attorney General Chambers, Anti-Corruption Bureaus, Prisons, Zanzibar’s Special Forces, etc); commissions and councils including on human rights, public ethics, communication, elections, law reforms, etc; and, offices of the regional and district commissioners.
- Local Government Authorities (LGAs).
- Parliament of the United Republic of Tanzania (URT) and House of Representatives of Zanzibar.
1.2.2 Civil Society Sector
The Civil Society Sector includes CSOs; non-governmental organizations (NGOs); trustees; Community Based Organizations (CBOs); Faith Based Organizations (FBOs); National NGOs Council (NACONGO); Trade Unions (of all sub-sectors); employers’ associations; all forms of media (mainstream community, social and alternative media); and, academic institutions. It includes also international NGOs (INGOs) operating in Tanzania.
1.2.3 Private Sector
This sector is comprised of small, medium and large enterprises engaging in different economic activities. The actors include enterprises engaging in trade, extractive, tourism, telecommunication, transportation, manufacturing, processing, environmental conservation, livestock-keeping and other economic sub-sectors. It also includes local and international business ventures operating in Tanzania.
1.2.4 Others Actors
Other actors include the individual persons (e.g HRDs); general public; unregistered civil rights and economic groups; United Nations (UN) agencies such as the UNDP, UNICEF, UNESCO, UN Women and UNAIDS; UN human rights structures including the Office of High Commissioner for Human Rights (OHCHR), special rapporteurs, and Treaty Monitoring Bodies (TMBs); embassies and their ground agencies including USAID, DANIDA, SIDA, CIDA, NORAD, Swiss Aid, and China Aid; and international tribunals especially the African Court of People and Human Rights (ACPHR) and East African Court of Justice (EACJ).
1.3 EVOLUTION OF CSOs: ITS STRENGTHS AND VULNERABILITY
The CSOs as one of the sectors as mentioned earlier, has been in existence over four decades (more than 40 years) now. Therefore, it is relatively ‘new’ if compared with other sectors mentioned above. The statistics suggests that, its growth is high in terms of number; geographical coverage; level of engagement between themselves and other sectors; and advocacy issues to pursue.
Some literature suggests that Tanzania has a large civil society sector compared to many other developing countries. The sector, occupies an estimated 2% of the economically active population.
A large part of the sub-sector (CSO) is dominated by NGOs. That is, about 44% of sector’s members are registered NGOs. Some 75% of the NGOs are registered under the NGOs Act of 2002 (Tanzania Mainland); and more than 70% of Zanzibar’s NGO’s under the Societies Act 1995 (Kepa, 2015). It should be noted that, the sub-sector, CSOs, is one of the family members of the Civil Society Sector (CSS) as explained earlier above. The NGOs, international NGOs (INGOs), trustees and CBOs are normally regarded as members within the CSOs sub-sector because of their commonalities in terms of objectives, intervention strategies and other factors.
It is a concern that, less than 16% of the NGOs operators are rural dwellers. This raises a question on how to engage with rural population especially by large CSOs, which are predominantly based in Dar es Salaam, Mwanza, Arusha and Unguja. Moreover, it is a practical concern that, the size and position of CSOs depend much on donor funding and interests. For instance, over 90% of the NGOs are entirely donor funded and only 20% of CSOs’ incomes come from (local) philanthropy (REPOA, Undated).
The current situation on how the CSOs operate especially in terms of strengths and vulnerabilities has historical reasons. Sources indicate that, the historical development of CSOs in Tanzania reflects the changing social, economic and political environment that has taken place from the colonial period to the present day (Kiondo, A. and Mtatifikolo, F. (1999)). However, during the colonial period, the emergence and formation of CSOs was influenced by an attempt by the colonial masters to engineer significant changes in the economic roles of their colonies while exerting control over social and political processes in the colonies.
Major changes on evolution of CSOs in Tanzania happened from 1980s. The changes were influenced by the adoption of Structural Adjustment Programs (SAPs) by the Tanzanian government. Ever since, the role of CSOs in development and service delivery increased dramatically, encouraging explosive growth in the non-government sector (REPOA, 2007). The sector started to be recognized as an important element in the governance domain.
From 1990’s CSOs became more active in filling gaps as the government retreated from its front-line service role due to severe budgetary restrictions. As people realized the willingness of donors to give direct support to NGOs and Community-Based Organizations (CBOs), the number of organizations exploded. Thus, while the decade prior to liberalization (1971 – 1980) saw the formation of only 18 NGOs (registered with TANGO), the decade of initial liberalization efforts (1980 – 1990) saw the formation of 41 new CSOs. By 1992 there were about 100 District Development Trusts (DDT) and other standard NGOs and CSOs, by 1999 there were about 9,000.
SAPs were not the only reason for the formation of NGO’s. The women’s movement in the country was pushed by the development of the women’s movement worldwide which had an impact at the local level. The 1995 UN Conference for Women and Development that was held in Nairobi, was a major catalyst for the formation of organizations such as TAMWA, TGNP, TAWLA, Medical Women’s Association of Tanzania (MEWATA) etc. There is an appealing need to do a thorough desk study on the upsurge in the formation of NGO’s other than the fact that SAPs did push communities to organize for survival.
Perhaps the political environment was also favorable. The right for citizens to organize was gaining coinage and supported by government policies. Remember the slogan “anything that gives citizens the capacity and right to decide on their own affairs is a revolutionary act although it doesn’t add to them anything for survival or wealth”
1.4 MANAGEMENT AND CONTROL OF CSOs
Despite the rapid growth and development of the CSOs sector from 1990s, there was no proper coordination and self-regulation mechanism in place. Other challenges included presence of cumbersome registration processes; existence of CSOs registered under other laws but operating as NGOs; lack of proper information on registration procedures; and, experiences to run CSOs as formal corporate institutions.
Apparently, due to lack of self-control, the government machineries (public sector) remained to be controller of this (civil society) sector. The State maintained its control it had since independence period. During the time (between 1960s and 1980s), CSOs operated as autonomous organizations or societies around labour and peasantry (cooperatives); but, they were gradually integrated into the mainstream of the State machinery (as re-organized affiliates of the then ruling political party). During that time, expansion of free civil society organization was restricted, for instance, between 1961 and the late 1970s only 7 CSOs were formed. The number rose to eighteen towards the end of the 1980s as pointed out earlier.
The growth and maturity of the civil society sector did not graduate it from direct State’s control. Instead, there has been an increase of the control through sectoral legislation and regulations, including the recent ones formulated in October 2018 requiring all NGOs to disclose their sources of finance, planned activities and submission of periodical reports to the government.
1.5 MEANING OF CIVIL SOCIETY
In this compendium, the term ‘civil society’ is confined to its narrow sense of ‘not-for-profit’ organizations, which therefore include the following types of organizations:-
i) Membership based organizations, trusts, NGOs and CBOs.
ii) Voluntary and self-help groups, community based groups and societies.
iii) Social movements and networks of organizations, professional associations, foundations and non-profit companies.
iv) Faith based organizations.
v) Research institutes working in economic and policy analysis.
vi) Non-profit media organizations.
It excludes other organizations which are often included in the broad definition of the term civil
i) Trade unions.
ii) Private sector associations.
iii) Employers’ associations.
For as much as these entities have a great role to play in civic sector, they do not form part of this compendium. This compendium deals mainly with NGOs, FBOs, Associations, Trusts, CBOs and professional associations because of their commonality in operational characteristics, including, their positions or presence in public life; their work or function which is representing and supporting pluralism for sustainable development and inclusive growth; and, they generally embody a growing demand for transparent and accountable governance.
1.6 ESSENCE AND OBJECTIVES OF THE COMPENDIUMS
1.6.1 Essence of the Compendiums
On 13th and 14th of October 2017, more than 70 CSOs gathered in Arusha for a two-day CSOs self-reflection meeting. It was a meeting to, among other things, celebrate 30 years of operations. During this meeting, representatives from government, academicians and other stakeholders had an opportunity for joint self-reflection. During the meeting, various recommendations were made for the smooth operation of the sector. One of the recommendations was the need to compile a compendium of all laws, policies, regulations and rules that govern the operations of the CSO sector in Tanzania. The THRDC in collaboration with the Foundation for Civil Society (FCS) engaged consultants for the development of the compendium which comprises of two volumes. The first compendium analyses and documents the laws governing CSOs in Tanzania; while, the second one is on practical issues of concern facing CSOs in the country.
The CSOs constituency in Tanzania is not yet well defined and there is yet to be an up to date list of CSOs in Tanzania. The organizations can be registered under various bodies of the government of Tanzania. Similarly, laws, regulations and policies governing establishment/registration and operation of CSOs in the country are diverse and at times it may be uncertain as to which particular law, regulation or policy is applicable in a given situation. Thus the first compendium provides for the particular laws, regulations and policies that shade some light on freedoms and other fundamentals guidelines in the CSOs and HRDs’ registrations and operations; and, this compendium address issues pertaining applicability of those laws.
1.6.2 Objectives of the Compendiums
The two compendiums are the first attempt to consolidate CSOs national laws, regulations, policies, rules and highlights on international standards and commitments relevant to civil society. Both are work in progress, for the main idea is; developing a comprehensive compilation of all laws, policies, regulations and rules that govern the operations of the CSO sector in Tanzania, identifying challenges faced by the sector and propose necessary legal reforms.
The second (this) compendium focuses on the identification and discussion of the challenges facing the CSOs in Tanzania and proposes the necessary legal reforms. From the above-mentioned interventions, engagements and undertakings, it has become clear that the CSOs constituency needs more clarity and guidance around a number of issues relating to the establishment and operations of CSOs in Tanzania as addressed in this compendium.
To achieve this, this compendium allies the discussion with the contents of the first volume in discussing some practical issues pertaining:-
i) Selected constitutional provisions relevant to CSOs in Tanzania.
ii) Legal framework for the registration, operation and regulation of CSOs in
Tanzania including, the applicability or enforcement of:-
(a) NGOs’ Act of 2002.
(b) Trustees Incorporation Act, Cap. 318.
(c) Societies Act, Cap. 337.
(d) Companies Act, Cap. 212.
(e) Legal Aid Act of 2017.
(f) The laws governing taxes, research, publication, freedom of association, etc.
The readers are advised to read both compendiums as they are linked to each other in terms of form and contents.
GAPS AND CHALLENGES OF THE LEGAL AND POLICY FRAMEWORK ON CSOs IN TANZANIA
The CSOs in Tanzania are governed by at least ten (10) different laws, apart from the Constitution of the United Republic of Tanzania of 1977. Some of the laws (most applicable ones) in this context are the Non-Governmental Organizations Act of 2002, (NGOs Act); the Trustees Incorporation Act, Cap. 318; the Societies Act, Cap. 337; the Companies Act, Cap. 212; the Legal Aid Act of 2017; the National Sports Council Act, Cap. 49; the Tanganyika Law Society Act, Cap. 307 (TLS Act); and, the Co-operative Societies Act, Cap. 211.
There are also several regulations formulated pursuant to the provisions of the principal legislation. Each law has its own implementation mechanism(s) or institution(s) and requirements. The enforcement institutions are administratively coordinated by different ministries and registrars. All these together form what is termed as the legal framework.
As it is the case for the first volume, for the purpose of this compendium, the focus is on some of the practical issues will be on the four main laws governing the CSO sector in Tanzania, namely; the NGOs Act; the Trustees Incorporation Act; the Societies Act and the Companies Act. This chapter has two parts. The first one discusses legal gaps of each of the four main laws and challenges of enforcement of the same (including the Constitution of Tanzania of 1977); and, the second part covers miscellaneous issues pertaining operationalization of the current legal framework.
The essence of this chapter is to further orient CSOs on practical issues of concern with regards to the existing legal framework on the same for two purposes, namely:
(i) Protecting them (CSOs) from being victims of some of repressive legal practices causes by some weaknesses in the laws governing CSOs or administration of the same hby the law enforcement agents; and,
(j) Sensitizing CSOs to take appropriate and effective advocacy strategies for the reform of the framework through an amendment or repeal or enactment of the (new) laws.
Reading this chapter in conjunction with similar one for compendium one will empower CSOs to be on top of the needed reforms for the betterment of CSS in Tanzania.
2.2 CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977
2.2.1 Implications of Constitutional Rights to CSOs’ Operations
As it is further explained in the coming parts of this compendium, some of the main intervention strategies by CSOs are engagement with media; information dissemination; association; and, assembly. These are some of the core advocacy mechanisms.
The Constitution of the United Republic of Tanzania of 1977 (URT Constitution) contains a Bill of Rights and Duties (under Articles 12 to 29), which guarantee protection of a range of rights and responsibilities to everyone, including CSOs’ actors and CSOs as legal entities. Some of the rights which are mostly relevant to the existence and operation of CSOs are freedom of association and assembly; and, right to information.
The basis of CSOs’ enjoyment of such and other rights is, among other provisions, Article 8(1) (a) and (c) of the Constitution. The said provision provides that, sovereignty of the State resides on the people and that, the government is accountable to the same (people). Article 9 obliges the State to observe human rights’ based principles as stipulated under the Universal Declaration of Human Rights of 1948 (UDHR). These and other obligations have been translated into details under the said Bill of Rights and Duties (Articles 12-29) of the URT Constitution.
Article 18 of the said Constitution provides for the freedom of opinion and expression. Those include the right to seek, receive and disseminate information regardless of the national boundaries. Furthermore, interference of communication is prohibited (unconstitutional). Article 20 of the Constitution provides for the freedom of Association. Sub-article 1 of this provision states that:-
“Every person has a freedom, to freely and peaceably assemble, associate and cooperate with other persons, and for that purpose, express views publicly and to form and join with associations or organizations formed for purposes of preserving or furthering his beliefs or interests or any other interests.”
This provision (Article 20 (1)) seems to elaborate further Article 8 (1) (d) which obliges the State to ensure effective participation of the people in the affairs of their government. Obviously, associating and assembling are just some of the ways for which people could participate in the affairs of the country. Other modalities stated in the constitution include through representatives and formation of the local government authorities (LGAs) under Article 145 of the Constitution.
2.2.2 Gaps of Guaranteed Constitutional Rights The current Constitution of Tanzania has undergone several reviews as it is explained in compendium one of THRDC. Despite those fourteen (14) changes, there are still some gaps which limit the enjoyment of these constitutional rights by individual persons or institutions including CSOs. Such gaps include:-
(i) Lack of effective enforcement mechanisms.
(ii) Bill of rights shallowly enshrines human rights e.g not addressing rights of special groups such as HRDs and CSOs in a specific way.
(iii) CSOs are not specifically recognized and protected by the Constitution
As for the lack of enforcement of the rights under Articles 12-29, the CSOs providing legal aid to their clients have, in several occasions, attempted to challenge the constitutionality of some laws and practices as being in violation with the said provisions. The procedural law for this process is the Basic Rights and Duties Enforcement Act, Cap. 3 (of 1995). Section 4 of the said law stipulates that:-
“If any person alleges that any of the provisions of sections 12 to 29 of the Constitution has been, is being or is likely to be contravened in relation to him, he may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the High Court for redress.”