RESOLUTION 2020/12/001: REMOVAL OF CONGOMA IN THE BILL AND NGO
POLICY
AGM RESOLVED that: Government should retain CONGOMA and its functions in the NGO
Act as well as to reinstate CONGOMA and its functions in the NGO Policy adopted in 2019.
Background
Following the 2018 NGO Act Amendment Bill and the 2019 NGO Policy, the mandate of
CONGOMA in the law and policy have been removed. Instead, the proposed Bill and the adopted
policy are creating a different institutional structure in the name of Coordinating Body to play the
coordination role that was entrusted to CONGOMA by the parent legislation.
The decision to remove CONGOMA in the proposed Amendment Bill and the NGO Policy of
2019 was not subject to conclusive consultations. The same action is also at variance with the
existing Act. As a consequence, the NGO Board is discharging powers that never exist in the law
hence, its actions being deemed ultra vires. Thus, there is need to promote compliance with the
prevailing law that governs NGO/CSO in Malawi.
Basis of Resolution
The AGM of 2020 made the above resolutions, having looked and reflected on:
1. Its prior decision of AGM 2017 which resolved that CONGOMA should remain in the
NGO Act as NGOs re-affirmed to retain S20(3)(a)(v) of the principal NGO Act.
2. The absence of consultations with the NGO community for the removal of CONGOMA
from the law,
3. Retrogression, confusion and impracticalities of having State or Government agencies
represent the collective interests and concerns of Non Governmental Organizations,
4. Current NGO Policy provisions that are inconsistent with the prevailing principal NGO Act as far as the omission of functions pertaining to CONGOMA are concerned.
2. RESOLUTION 2020/12/002: CURRENT NGO FEES REGIME
AGM RESOLED that: Ministry of Justice, Ministry of Gender and NGO Board should immediately;
a. Revert to old fees regime for NGOs prior to current Fees Regulations
b. Restart the process of consultations with NGOs through CONGOMA on an appropriate fees regime
Background
The NGO sector is still governed by the NGO Act, 2001 which regulates fees payable to the NGO Board under section 21 of the Act. The current fees regime was promulgated in the 2017 NGO Fees Regulations without consultation; without debate in Parliament; without being gazetted and without NGO Board members being gazetted. After CONGOMA-Government dialogue on the new fees failed to yield desirable results, the High Court in Zomba granted CONGOMA an injunction restraining the NGO Board from enforcing the new fees until further Court orders. Government applied for removal of the injunction in June 2018 and judgment is yet to be delivered. Unless the Court determines otherwise, and in favor of the NGO Board, fees payable to the NGO Board are those prior to the new promulgations whose matter is still in court.
However, despite the ongoing injunction or restraint order by the Court, the NGO Board has continued to implement the new fees. This violates section 5 of the Constitution of Malawi which invalidates any law that is inconsistent with the Constitution. It also undermines the separation of powers as espoused under sections 7 and 8 of the Constitution as well as the rule of law. Henceforth, it is contemptuous.
Basis of resolution
The AGM made the above resolution on grounds of:
1. Upholding the rule of law in line with sections 12 of the Constitution
2. Upholding the separation of powers in line with sections 7, 8 and 9 of the Constitution. In the same breadth, appreciating that legislative powers lies with Parliament under section 48 of the Constitution, and that although section 58 of the Constitution grants the executive
or any agency of government powers to formulate subsidiary legislations, the same is subject to Parliament.
3. Respecting Court orders and equality before the law. Therefore, any disregard of the Court order is tantamount to impunity, and therefore, repugnant to the tenets of a democratic society.
4. NGOs not being complicit of undermining the rule of law and disrespecting Court orders.
3. RESOLUTION 2020/12/003: NGO ACT AMENDMENT PROCESS AND CONTENT
AGM RESOLVED that: Ministry of Justice, Ministry of Gender and NGO Board should;
1. Withdraw the Amendment Bill 2018/2020
2. Recommence the consultations on amendment of NGO Act with an inclusive, clear and acceptable road map
3. The Task force leading the consultation should be inclusive, and fully involve CONGOMA
Background
These resolutions are set out against the background of lack of consultations in the formulation of the proposed Amendment Bill, 2018; restrictive and punitive provisions; and lack of drive in the Bill to address the real challenges facing NGOs in Malawi. The amendment was done behind the curtains with the view to impose it on the NGOs. In addition, the CONGOMA led dialogue with government on the matter has not yielded anything tangible as Government is determined to have the Bill enacted into law. As a consequence, some NGOs obtained a Court injunction from Lilongwe High restraining Parliament from tabling and discussing the amendment Bill. This injunction is still in force.
In general, the proposed law seeks to transfer the functions of CONGOMA to a Regulatory Authority (now NGO Board); deal with self-regulation which Government views as promoting conflict of interest when evidence shows that there are many other bodies that self regulate including the legal and medical professions. It would therefore appear that the processes taken by Government in coming up with the Amendment Bill is inconsistent with the Constitutional prescriptions on participatory, accountable, and responsive governance.
Basis of resolution
The AGM made its resolutions on the following grounds:
1. Lack of consultations with the NGO sector in developing the amendment Bill is a serious breach of a Constitutional duty placed on the Executive/ Parliament by section 7 as read together with sections 8, 12, 43 and 96(2) among others in the Republican Constitution. The current process did not uphold rule of law in public policy formulation.
2. The Amendment Bill is restrictive and punitive for NGOs as the Bill takes away self-regulation, self-coordination of NGOs, and self-representation.
3. The Bill does not address the real challenges facing NGOs and Civil Society in Malawi.
4. The processes leading to the development of the Amendment Bill was not only anchored in openness, accountability and due process, but was also alien to a democratic society.
5. RESOLUTION 2020/12/004: WORKING RELATIONSHIP BETWEEN INGOs AND LNGOs IN MALAWI
AGM RESOLVED that:
1. NGO Board and CONGOMA should ensure that the issues raised during consultations on possible Regulations, Guidelines or Rules should be validated, vetted and come to their logical conclusion.
2. CONGOMA to convene representatives of both local and INGOson an alternative self-regulation mechanism on the issues whether or not statutory Regulations will be developed.
3. NGO Board and CONGOMA should ensure that Regulations once decided should follow the due process of law to ensure that the process is void of manipulation.
Background
Relationship has not been rosy between most local and some International NGOs over alleged dominance by INGOs in benefiting from grants especially locally advertised grants. Some INGOs have also been implementing activities and opening offices in Districts other than their national Head Quarters. To this effect, at the apex of the misunderstanding, local NGOs under the banner of Local NGO Forum petitioned the Minister of Gender in 2020 to make an executive decree stopping INGOs from benefiting from locally advertised grants and that INGOs should close project offices in Districts. An attempt by NGO Board in collaboration with CONGOMA was
made to consult NGOs before development of some Regulations or Guidelines on the issue, the process of which is yet to be finalized.
Basis of Resolutions
The AGM made its resolution on the basis of the following lived realities:
1. The sour relationship between some INGOs and LNGOs need to have some kind of mechanism or guidance to smoothen the working relationship between the two entities.
2. Both INGOs and LNGOs are members of CONGOMA and as such most issues between the two groups should be resolved internally first as a family before resorting to other solutions
3. The current laws and policies by government have failed to address the matter hence there is need to promulgate special regulations to govern the relationship between the LNGOs and LNGOs in Malawi.
4. The NGO Board and CONGOMA with support from government should engage the local donor community on the prevailing donor conditionality in Malawi, and how they are impacting on local NGOs. This would be in attempt to leverage access to funding and other support opportunities by LGOs.
Signed
Kossam Jomo Munthali
ACTING CHAIRPERSON
27 January 2021