SETTING UP AN NGO IN ZIMBABWE
By Roselyn F R Mhlanga
Non-Governmental Organisations and non-profit organisations can be operated or opened in three (3) different forms:
- In terms of the Private Voluntary Organisations Act [Chapter 17:05 ]
- Trust Deed
- Common Law Universitas
Registration of an NGO in terms Private Voluntary Organisations Act [Chapter 17:05]
NGOs in Zimbabwe are mainly registered under the Private Voluntary Organization Act (PVO Act). Registration is done through the Department of Social Welfare under the Ministry of Public Service Labour and Social Welfare.
A private voluntary organization (PVO) is defined under section 2 of the Act as “anybody or association of persons, corporate or unincorporate, or any institution, the objects of which include or are one or more of the following:
- the provision of all or any of the material, mental, physical or social needs of persons or families;
- the rendering of charity to persons or families in distress;
- the prevention of social distress or destitution of persons or families;
- the provision of assistance in, or promotion of, activities aimed at uplifting the standard of living of persons or families;
- the provision of funds for legal aid;
- the prevention of cruelty to, or the promotion of the welfare of, animals;
- such other objects as may be prescribed;
- the collection of contributions for any of the foregoing.”
Any organization that seeking to carry out work as defined under section 2 of the PVO Act must be registered.
Applications to the Registrar of PVOs can be lodged through the District and Provincial Labour and Social Services Offices. In terms of section 9 of the PVO Act, the Secretary of the organization needing to be registered under the Act should submit the following:
Registration form/Application for registration.
N.B. the PVO registration form for NGOs may be purchased at the Ministry of Labour and Social Services Department in Harare or at the District/Provincial offices of the same ministry outside of Harare.
- The name of NGO
- The objectives of the NGO
- The first members of the Executive Council or Executive Board (there should be between two and twenty persons as members).
- CVs of key board members
- Particulars of Directors and Secretary (which include their names; nationalities; usual residential addresses; business occupation)
- Name and address of Auditor. (If you don’t have an Auditor the Registrar will provide you with one upon approval of your application).
- Address and P. O. Box of registered office;
- an Interpol or local police clearance certificate for the country representative if it is a foreign NGO
- principal place of business
- the organization’s constitution,
- Proof of public notice in national papers.
N.B. Such a notification is at the expense of the Applicant. The notice should state the proposed name of the private voluntary organisation and the purpose, aim and mandate of the PVO. The notice should be published in a newspaper circulating in the area concerned.
Any other documents that may be needed by the Registrar of PVOs within the Ministry of Labour & Social Services.
Upon submission of the above documents any person may within the prescribed time period to lodge with the Registrar an objection to the grant of the application setting out the grounds on which such objection is made. The aim of the newspaper notice is to call for persons with objections to lodge them with the Registrar of PVOs within the prescribed time limit (within 21 days of the date of publication). The Registrar shall submit any such objection to the PVO Board for consideration.
If all documents are in order the Registrar will submit them to the PVO Board which will determine whether the application is rejected or accepted for registration. The registration process can take 3 months to a year.
In 2014, the PVO Act has been listed as one of the laws that the government will amend as it carries out its so-called “harmonization agenda” to align all laws with the Constitution.
Foreign organizations that seek to carry out work in Zimbabwe, and in particular work of a humanitarian nature or whose objectives are covered under the PVO Act, are required to register as such. Most international organizations operate as PVOs and are supposed to have a direct memorandum of understanding or cooperation with the Government. Section 3 of the General Notice 99/2007 requires an international organization to file its application with the Registrar of PVOs.
Cons of a POV
- Interference in Internal Governance by the Minister. If the Minister believes that a PVO has failed to comply with its objectives or constitution, has been subject to maladministration, or has engaged in illegal activities, or that “it is necessary or desirable to do so in the public interest,” or any other ground in terms of Section 21 of the Act the Minister through notice in a government gazette may suspend all or any of the members of the Executive Committee of the PVO. The Minister may also amend or revoke any suspension.
- The Minister is authorized in terms of section 20 to send inspectors at any time to examine the accounts and any documents of any PVO. Once a notice has been delivered to the PVO, the PVO is expected to comply by providing all required information. The documents that are effectively seized by virtue of the notice can be kept for a “reasonable period”.
Registering an NGO under a Deed of Trust
Trusts are regulated under the Deeds Registries Act [Chapter 20:05], which allows the Registrar of Deeds to register notarial deeds in donation or in trust. Trusts typically have unlimited objectives which are often intended to benefit an identifiable constituency.
A trust can be established for private benefit or for a charitable purpose. The trust deed will show whether a trust has been established for charitable purposes. A trust does not have separate legal personality, though it may enter into contracts in its own name if the trust deed so allows.
The trust form has been used as a way of registering organizations that have faced difficulties in registering under the PVO Act. Section 2 of the PVO Act excludes trusts in its definition of what constitutes a PVO.
This form of registration requires the services of a registered Notary Public unlike with registering an NGO under the PVO Act. A Notary Public is required for the drafting and preparing of the trust deed and other necessary documentation. In addition, the Notary Public will register the deed with the Registrar of deeds in the Deeds office.
- This form of registration is expensive because of the legal fees and costs required by the Notary Public to prepare the deed.
- In 2009, the Ministry of Justice and Ministry of Labor issued the “Joint Memorandum re: Amendment to the PVO Act and the Deeds Registries Act” (2009). The Memo proposed that trusts, which are registered with the Deeds Registry, and fall within the definition of a PVO, be expressly included within the embrace of the PVO Act and therefore be obliged to register as a PVO before commencing activities. This would have subjected trusts to a burdensome two-tiered registration process, and to broad control by the Registrar and PVO Board
A NGO which is a Common Law Universitas
Universitas are a product of the common law and are not regulated by statute. A universitas exists when there is an entity which has a constitution and members that agree to achieve a common objective out of activities that are entirely for the benefit of its members. This is the easiest way of forming an institution where two or three partners come together and make an understanding through an agreed constitution, which establishes the modus operandi. Although it is an easy and straight forward option few NGOs operate under this form of establishment.
The National Constitution Assembly and church related NGOs like Catholic Commission for Justice and Peace (CCJP) are not officially registered but operate under the common law universitas, which is lawfully acceptable in Zimbabwe.
A Common Law Universitas can be viewed as a common law persona; this form was recognized by the Zimbabwean Supreme Court in Zimbabwe Lawyers for Human Rights & Anor v. The President of the Republic of Zimbabwe & Anor SC 12/03. Such an entity is excluded from registering under the PVO Act and is therefore not viewed as a PVO, but as the corporate form “universitas” or with a corporate form legal personality.
While care has been taken to ensure that this publication is accurate, Kanokanga & Partners accepts no liability for any prejudice, loss or, damage of whatsoever nature which may arise from reliance on any of the information published herein. The contents of this publication are for general information purposes only. The purpose of this publication does NOT constitute our legal or professional advice. Readers are advised not to act on the basis of the information contained herein alone. Every situation depends on its own facts and circumstances.Next Step