Memorandum on “The Organization of Humanitarian and Voluntary Work Bill 2006”

Amnesty International

– Ref.: AFR 54/04/2006
– Member of the National Assembly
– 17 Feb. 06

Dear Sirs,

Please see attached the Amnesty International Memorandum on the proposed legislation “The Organization of Humanitarian and Voluntary Work Bill 2006”. Given that debate and amendment to this legislation will be undertaken over the next two days prior to voting on 20 February 2006, Amnesty International urges you to consider the concerns and recommendations contained in the memorandum.

Sincerely,

Kolawole Olaniyan

Program Director
Africa Program

Amnesty International is seriously concerned that proposed new legislation regulating the activities of non-governmental and civil society organisations -as it is currently phrased- threatens the right to Freedom of Association, and can potentially undermine the operation and work of human rights non-governmental organisations (NGOs).

Though not specifically prohibiting the Freedom of Association, a range of points in the implementation potentially allow the pending law to be used as a means of suppressing civil society organizations contrary to international human rights standards and the Bill of Rights of the Sudanese Interim National Constitution of 2005. Specifically, the Bill as it stands, offends the provisions of Article 22 of the International Covenant on Civil and Political Rights as well as the Bill of Rights in the Sudanese Interim National Constitution article 40 (1) and (2) [[(“that everyone will have the right to freedom of association with others, including the right to form and join trade unions for the protection his interests.” ]] , and Articles 5 and 6 of the UN Declaration on the Right and Responsibility of Individuals Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms [[ No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. (emphasis added) This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.]] .

The internationally and nationally recognized permissible restrictions on the exercise of the Right to Freedom of Association, are limited to pursuit of public safety and national security, protection of public health or the protection of the rights and freedoms of others. [[ Article 5
For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:(a) To meet or assemble peacefully;(b) To form, join and participate in non-governmental organizations, associations or groups;(c) To communicate with non-governmental or intergovernmental organizations.

Article 6
Everyone has the right, individually and in association with others:
– (a) To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems;
– (b) As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms;
– (c) To study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters.

Human Rights Committee General Comment No 31 “States Parties must refrain from violation of the rights recognized by the Covenant and any restrictions on any of those rights must be permissible under the relevant provisions of the Covenant. Where such restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.” (Emphasis added).

]] This is
echoed in the African Commission Resolution on the Right to Freedom of Association [[ http://www.achpr.org/english/_doc_target/documentation.html?../resolutions/resolution10_en.html)]] which makes specific reference to the limits on any restriction to the right to freedom of association[[1. The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution and international standards;

2. In regulating the use of this right, the competent authorities should not enact provisions which would limit the exercise of this freedom;

3. The regulation of the exercise of the right to freedom of association should be consistent with State’s obligations under the African Charter on Human and Peoples’ Rights.”
]] .

Amnesty International encourages Members of the National Assembly to reflect on Sudan’s international obligations and obligations under the Interim National Constitution, when revising the provisions of this legislation. As members of Parliament debate the Bill on Monday 20 February 2006, Amnesty International calls on the National Assembly to put forward amendments that will make the draft consistent with the aforementioned standards.

I. Legality of Civil Society Organisations

The Bill makes reference to a variety of terms in Section 4 “Interpretations” which define the scope and application of the law. Despite numerous references to various organisations their diverse activities are all covered by the broad term “Humanitarian and Voluntary Work” which is:
“any voluntary humanitarian not-for-profit activity carried out by an NGO or charitable organization whether national or foreign registered in the Sudan with the aim of providing relief, social service or raising the economic and social standards of the beneficiaries, including any civil society organization which renders humanitarian voluntary work in relevant fields.”

This means that all the various organisations mentioned at the outset-“Charitable organisations”, “Civil society organisations”, “National non-governmental organizations” and “Foreign non-government organization”-fall within the single rubric of “humanitarian and voluntary work”. This fact bears relevance in relation to the criteria the Bill uses to determine whether an organisation can be registered and therefore whether it is legal. Organisations that fail to register are subject to punishment. According to Chapter V Section 21, “Any person or group of persons, who practice an activity as a voluntary organization without registration in accordance with this Act, shall be deemed to have committed a contravention, and be punishable.”

Section 13, “Refusal of Registration”, sets out the criteria by which all organisations are to be afforded registration, without which they will be illegal and subject to punishment as stated above. Herein are points of potential concern.

? The first is the condition set out in Section 5 “Principles Governing Humanitarian works”, humanitarian works as noted earlier referring to the whole range of civil society organisation activities. Section 5 (f) posits “non-interference by foreign organizations in the internal affairs of the Sudan” as a basic principle, violation of which would serve as a reason to deny registration. What constitutes “foreign interference” is unclear. It is also confusing since this provision seems to make reference to foreign organisations but it is clear from Section 13 (1) that the basis of registration for both foreign and national organisations derives from this provision in Section 5 (f). Thus the reference to ?non-interference by foreign organisations…..’ might be extended to national organisations who work with international organisations, UN bodies, or other international bodies. National human rights organisations, for example, who promote and monitor the human rights situation in Sudan often work in partnership with international human rights NGOs, UN bodies, or other international bodies with an interest in human rights.

Amnesty International is therefore concerned that this provision could be used against this type of cooperation.

? The second concern regards foreign NGOs. “Conditions of Registration” Section 9 (3) sets out the conditions to be met by foreign organisations for registration. The final point, Section 9 (3)(i), reads “any other conditions to be laid down by the Minister”.

This provision is unduly vague and leaves the decision of granting registration arbitrarily in the hands of the Minister rather than setting an objective set of criteria for evaluation.

? Finally the definition in Section 4 of “National non-governmental organization” stipulates in point (c) that it does not include “any group which seeks to achieve partisan political objectives”.

Amnesty International is concerned that this definition is unclear and might be used to prohibit activity critical of the Government. Statements, as an example, by national human rights NGOs, which criticise Government policy or happen to coincide with a political position by opposition political parties might be construed as partisan and therefore illegal.

– II. Funding and Registration Renewal
Funding is vital for the existence of civil society organizations. Article 13 of the UN Declaration on the Right and Responsibility of Individuals Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms states: “Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means, in accordance with article 3 of the present Declaration.

? Section 7 states that “Donation and fundraising for the organizations programs shall be undertaken through a project document to be approved by the Commission, as may be prescribed by the Regulations”.

Amnesty International believes that Section 7 of this Bill has the potential to unduly impinge on this right. The Regulations have the potential to seriously affect the functioning of civil society organizations. As such they should be included in the Bill and not left to be decided by the Ministry of Humanitarian Affairs or any other Governmental body that will be chosen therefore.

A further concern is the duration and determination of the renewal of registration.

? Section 11 states: “The duration of the registration shall be one year renewable in accordance with the conditions specified by the regulations” (emphasis added).

Amnesty International is concerned that the obligation to renew registration in accordance with as yet unspecified Regulations potentially undermines the entire registration process as outlined in Section 13. Making the renewal of registration contingent upon unspecified Regulations places vast discretionary powers in the hands of an as yet unspecified Governmental entity.

– III. Independence of the Registrar and the Appeals Process

The lack of independence of the Registrar General and the Commissioner General for Humanitarian and Voluntary Work, both direct Government appointees, are causes for concern.

? The Registrar General who has wide ranging powers over the registration and supervision of civil society organisations is to be appointed by the Minister of Humanitarian Affairs (Section 20.1.), and the Commissioner General to be appointed by the President on the recommendation of the Minister of Humanitarian Affairs.(Section 18). Both positions are direct Government appointees.

Amnesty International believes that with the large amount of discretionary power these positions wield and the sensitive areas they supervise that all efforts should be made to provide for the creation of an independent body rather than direct Ministerial appointees.

? The potential for a conflict of interest due to this provision is evidenced when viewed in the context of the appeals process for a cancelled registration and provisions guiding donation and fundraising. Section 14 (2) states a voluntary organization may appeal before the Commissioner within thirty days of the decision and may further appeal against the Commissioner’s decision to the minister within fourteen days of the decision. It is also unclear how long the appeals process will take. No fixed time for the decision on appeals to be put forward is delineated.

As the appeals process follows a line of Ministerial appointees and ends with the Minister himself, Amnesty International believes it contains no element of independence or impartiality, and therefore calls into question the independent nature of the appeal process.

– IV. Registration Process

Two further procedural points raise concerns.

? Upon rejection of an organisation’s application Section 13 (2) states that the reason for rejection can be withheld for “security concerns”.

Amnesty International believes this provision is vague and arbitrary and should be removed.

? No time limit is established for the granting of registration after application. This leaves open the possibility of an application remaining under consideration indefinitely.

Amnesty International holds that a specific time frame should be provided for the consideration of applications.