In this updater, we review the amendments to the Non-Governmental Organisations Act, No. 24 of 2002 (the NGO Act), as introduced by the Written Laws (Miscellaneous Amendments) (No.3) Act 2019 (the Miscellaneous Amendments Act).
The NGO legal framework in Tanzania has undergone some significant changes in recent years. Prior to the Miscellaneous Amendments Act, the Non-Governmental Organizations (Financial Transparency and Accountability) Regulations, G.N. 609 of 2018 (NGO Financial Regulations) introduced a number of requirements in relation to the financial reporting requirements by NGOs.
The Miscellaneous Amendments Act has amended the NGOs Act as follows:
- definition of NGO narrowed;
- Certificate of Compliance scrapped;
- additional functions for the Registrar of NGOs;
- time limit of the validity of a Certificate of Registration; and
- publication of annual audited reports has extended to the public.
Below is a summary of each of the amendments mentioned above:
Definition of a Non-Government Organisation (NGO)
The Miscellaneous Amendments Act amends the definition of NGOs to make it unambiguous as it has explicitly included Community Based Organisations (CBOs) which had previously been excluded from the definition. Ironically, although the CBOs had previously been excluded from the definition, CBOs were still being incorporated as NGOs at district level within the local government authorities without necessarily having the legal backing. With this amendment, the legal status of CBOs has been established.
However, the following will be removed from the definition of an NGO:
- Companies formed and registered under the Companies Act. This includes companies limited by guarantee which previously were considered NGOs after applying for a Certificate of Compliance;
- a trust formed and registered under the Trustees' Incorporation Act;
- a trade union formed and registered under the Employment and Labour Relations Act;
- a religious or faith propagating organisation;
- cooperative societies formed and registered under the Cooperative Societies Act;
- agricultural associations formed under any other written law other than the NGOs Act;
- a society formed and registered under the Societies Act;
- a political party formed and registered under the Political Parties Act;
- a microfinance group (VICOBA) registered under the Microfinance Act;
- a sports association formed under the National Sport Council of Tanzania Act; and
- any other organisation which the Minister responsible for NGOs (the Minister) may, by order published in the Gazette, declare not to be an NGO for the purpose of the NGOs Act.
The amendment significantly narrows the scope of what constitutes an NGO, particularly given that the Minister has wide discretion to remove any organisation as being an NGO if he so decides.
An NGO registered under the NGOs Act which does not fall under the new definition will be automatically de-registered two months from the date the Miscellaneous Amendments Act comes into operation. However, the Minister may issue an extension in order to give the organisation time to shift to its appropriate entity.
Certificate of Compliance
The NGOs Act is amended so that a certificate of compliance (permitting a company to operate as an NGO) will no longer be issued to companies registered under any other written laws.
However, section 11(2) of the NGOs Act has not been amended and still provides for registration of NGOs under other written laws. This is a clear ambiguity in the Miscellaneous Amendments Act and will be open to interpretation. However, this provision will become redundant as the certificate of compliance will no longer be issued by the Registrar of NGOs (the Registrar).
Additional functions and duties of the Registrar of NGOs
The Miscellaneous Amendments Act extends the duties of the Registrar. The Act will give the Registrar the power to suspend the operation of an NGO pending the decision of an allegation that they have violated the provisions of the Act. However, the NGO will have 30 days to respond to a notice issued by the Registrar as to why they should not be suspended.
The Registrar will also be given the power to monitor the conduct of NGOs and report any findings to the Non-Governmental Organizations Coordination Board (the Board) on a quarterly basis. If any issues arise, the Registrar will now be permitted to investigate and cooperate with any law enforcement organ or public entity to provide the services necessary to assist them in this regard.
Certificate of Registration
The Miscellaneous Amendments Act proposes to extend the validity of certificates of registration so that they will last for ten years. Previously there was no time limit provided as to the validity of the certificate of registration unless the NGO had to be wound up either voluntarily or involuntarily.
With the new amendments, an application for renewal of the certificate shall be made six months before its expiration. However, the Board will have the power to refuse renewal of a certificate granted to an organisation if they deem that the organisation has not adhered to the provisions of the Act or any other written law.
Publication of Annual Audited Reports
The Miscellaneous Amendments Act provides that NGOs shall make annual audited reports available to the public. In addition, the NGOs Act is amended so that the general conduct of NGOs will include a requirement to adhere to principles of financial transparency and accountability as prescribed by other written laws.
It would appear that the Miscellaneous Amendments Act together with the NGO Financial Regulations aim to increase the transparency of NGOs accounting practices and reduce the potential for any fraudulent conduct.
This briefing is prepared for clients and contacts of Clyde & Co Tanzania. We aim to keep our clients abreast of developments in Tanzania as they happen and if you have any questions on the issues raised above please contact us directly.
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