Open Letter to Mr Benjamin William Mkapa

President of the United Republic of Tanzania

08/10/2003
Press release
en fr

The International Federation for Human Rights (FIDH) and the World Organisation against Torture (OMCT), in the framework of their joint programme, the Observatory for the Protection of Human Rights Defenders, express their deepest concern with regards to the 2002 law on NGOs (NGO Act) in Tanzania, which imposes serious restrictions to freedoms of association and expression. The Observatory wishes to express their support to the initiative of the Tanzanian NGOs against the entry into force of the NGO Act, which is planned through its publication in the Official Gazette before the end of October 2003.

The NGO Act was drafted by the Parliamentary Assembly of Tanzania without any prior consultation with national NGOs. Even though the mobilization of NGOs led to an amended text, which took into consideration some of the propositions made by the civil society, the NGO Act, adopted by the Assembly in November 2002, still includes serious restrictive measures, which violate international and national human rights instruments. In December 2002, Your Excellency officially signed the NGO Act.

Obligation to register

Article 35(1) of the NGO Act provides for criminal sanctions against NGOs that do not register. According to this article, any person who operates an NGO without obtaining registration “shall on conviction be liable to a fine not exceeding five hundred thousands shillings or to imprisonment for a term not exceeding one year or to both such fine and imprisonment”. This provision is contrary to Article 1 of the Declaration on Human Rights Defenders , adopted by the UN General Assembly, on 9 December 1998, which provides that “Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international level”. It also contravenes Article 22(2) of the International Covenant on Civil and Political Rights, which provides that “No restrictions may be placed on the exercise of [the right to freedom of association] other than those [...] which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”

Considering the criminal sanctions attached to the non registration, the situation is likely to become extremely dangerous for NGOs, all the more so as the cases in which the registration can be refused are not strictly defined. Indeed, the NGO Act provides that an “NGOs Coordination Board” (NGO Board) may refuse to approve application for registration of an NGO, particularly if its activities do not strive for public interest. However, the definition of “public interest” is extremely vague. Indeed, according to Article 2 of the Act, “public interest includes all forms of activities aimed at providing for and improving the standard of living or eradication of poverty of a given group of people or the public at large”.

Moreover, the NGO Act provides that the director of the NGO Board is appointed directly by the President of the Republic and contains no other provision relating to the qualification of the members of this Board nor on their election process.
Interferences with NGOs activities

According to the NGO Act, the NGO Board provides “policy guidelines to NGOs for harmonizing their activities in the light of the national development plan”. However, some of these national development plans are very controversial for NGOs, with some organizations in fact advocating against some of them, in particular regarding privatization or land acquisition. Therefore, this obligation to harmonize NGOs activities with national development plans is contrary to the mere non-governmental nature of NGOs.

Moreover, Article 7 of the NGO Act also provides the NGO Board with the right to “investigate and to inquire into any matter” in order to ensure that NGOs adhere with their own statutes.

Those provisions clearly violate the freedom from interference of NGO and are therefore contrary to Article 18(1) of the Tanzanian Constitution, which states: “subject to the laws of the land, every person has the right to freedom of opinion and expression, and to seek, receive and impart or disseminate information and ideas through any media regardless of national frontiers, and also has the rights of freedom from interference with his communications”.

Prohibition of national networks and coalitions of NGOs

Article 25 of the NGO Act establishes a National Council for NGOs (the Council), which is a collective forum of NGOs, whose purpose is the co-ordination and networking of NGOs operating in Tanzania. However, Article 25(4) prohibits any NGO to “perform or claim to perform anything which the Council is empowered or required to do under the act”. This provision denies the possibility for NGOs to get together voluntarily under an NGOs coalition, and prohibits already existing coalitions of NGOs. Therefore Article 25(4) clearly denies the full enjoyment of freedom of association among NGOs, in contradiction with Article 5 of the UN Declaration of Human Rights Defenders, which provides that everyone has the right, individually and in association with others, “to form, join and participate in NGOs, associations or groups”.

The Observatory is very concerned with the provisions contained in the NGO Act. The Observatory considers that this legislation demonstrates a desire of the Tanzanian authorities to control the activities of NGOs and interfere with their work. The Observatory notes that the entry into force of the NGO Act as it is drafted would violate Article 2(2) of Declaration on Human Rights Defenders, which provides that “Each State shall adopt such legislative, administrative and other steps as may be necessary to ensure that the rights and freedoms referred to in the present Declaration are effectively guaranteed”. It would also contravene Article 3, which provides that “Domestic law consistent with the Charter of the United Nations and other international obligations of the State in the field of human rights and fundamental freedoms is the juridical framework within which human rights and fundamental freedoms should be implemented and enjoyed and within which all activities referred to in the present Declaration for the promotion, protection and effective realization of those rights and freedoms should be conducted.”

The Observatory urges Your Excellency to take the necessary measures so that the NGO Act is not enforced and to return it to the competent authorities in order to amend it, so as to ensure the full respect of freedoms of association and expression, in accordance with international and national human rights instruments.

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