Botswana Guardian
30 May 2025
By Tambudzai-Gonese-Manjonjo
There is a rising trend of countries in the region enacting laws that compel all non-governmental organisations to register in order to operate and prohibit any operation by unregistered organisations. The Financial Action Task Force (FATF) Recommendation 8 requires that states, in order to remain in good standing, must increase monitoring and regulation of non-profit organisations (NPO) through a risk-based system. to combat money laundering and terrorist financing.
Most governments interpret this as carte blanche to compel all NPOs to register in order to operate, with legal measures enabling the government to monitor, and, in many cases, control these entities. Registration, in many contexts, comes with increased regulatory oversight, procedural operating requirements and risks which often greatly increase operating costs for many associations.
In many contexts, this not a mere administrative act but the legal requirements bear the risk of an association being denied registration at the discretion of the regulating authorities, many times for spurious or arbitrary reasons. This includes denial of registration for organisations deemed ‘immoral’. Organisations representing marginalised and criminalised populations like sexual and gender minorities or sex workers are likely to face significant difficulties in getting registered.
For example, in Botswana, an LGBTI group was denied registration on morality grounds, and had to seek the intervention of the courts be registered. The denial was based on the fact that same-sex acts were criminalised in Botswana. The courts, in the case of Attorney General of Botswana v Rammoge and 19 Others, confirmed that equal enjoyment of human rights meant that everyone should be able to exercise the right to freedom of association, regardless of status, including sexual orientation. There is a similar situation in Malawi, where the refusal by the government to register an organisation of LGBTIQ people on the same grounds is before the courts.
The recently amended NGO Act in Malawi requires compulsory registration for all NPOs to be able to operate, with penalties for operating without registration that can be applied against every officer of the organisation. In addition, registered organisations are required to submit an audit report annually; failure to do so can result in an organisation being suspended or deregistered.
The Private Voluntary Organisations (PVO) Amendment Act of Zimbabwe, recently signed into law, amends the PVO Act to require the re-registration of all organisations in Zimbabwe that were previously operating as Trusts or any other form of organisation. These organisations must register as PVOs if they provide services to the public or receive public funding or donations. An application for registration (even of existing organisations) can be refused if the Registrar decides that the organisation’s activities are not in line with their stated objectives or that they do not comply with the requirements of the Act, which includes the receipt of money from ‘illegal’ sources. Additionally, if a PVO intends to change its name or its objectives, it must make a new application for registration, which can also be denied. The operation of an unregistered PVO attracts criminal and civil sanctions for anyone in management. In terms of the law, even organisations that do not qualify for registration as PVOs can still be compelled by the Minister to register if considered to be at high risk or vulnerable to terrorist financing. The regulating authorities (the Registrar, NGO Board and the Minister) wield immense, almost unchecked power including the power to deregister an organisation and suspend and replace the governance of an NGO with their own appointees.
Zambia has also proposed legislation to amend the NGO Act to include compulsory registration of all NGOs. The difference with the Zimbabwe PVO Amendment Act is that existing legally registered organisations are deemed registered under the proposed law. However, all organisations would be subject to a licensing requirement after 5 years. An organisation whose activities are considered to be against the law can be denied a licence. The law proposes that unlicensed organisations would not be allowed to operate in Zambia, with criminal sanctions for operating without a licence. The Registrar would have extensive powers to regulate an NGO, including suspension or deregistration.
Amid all this excessive regulation, activists flounder. The most effective advocates are community advocates, as the adage ‘nothing about us without us’ implies. Freedom of association, a fundamental right, has enabled communities to organise and advocate for the issues at heart, including human rights, healthcare, economic and social inclusion. It has also enabled them to participate in public processes and increased civil engagement.
The levels of organisation for communities differ, from community-based organisations (CBO) to national, regional and international organisations, and their structures and needs are different. Their resource requirements are also different. Some CBOs are not even formally organised with employees or other organisational structures but can advocate for their communities, gather and sometimes raise resources. A rigid regulatory system for these, with rigorous auditing and reporting requirements, is likely to deplete the capacity for activism and not be sustainable financially. In addition, the excessive intrusion of the state into community or social groups is not in line with plural democratic or transformed societies.
Regulation may be necessary in some instances, such as the handling and accountability of public funds and safeguarding of vulnerable communities, but a truly risk-based approach to regulation that does not impose onerous burdens or restrictions on civil society is needed. Additionally, the disproportionate focus on civil society for regulation regarding money laundering or terrorist financing is largely unnecessary. Claims that NPOs are particularly vulnerable to terrorist financing are highly exaggerated and do not justify singling them out for increased monitoring. Even the FATF has recognised the unintended effect of its Recommendation 8 being used as a pretext for draconian interference and issued revised guidelines that dissuade states from imposing regulations that hinder the important and necessary activities of NPOs for society. Other countries like South Africa, whilst complying with tightening up NPO regulation, have applied a risk-based approach to the registration and regulation of NPOs.
In conclusion, current and emerging risks with illicit financial flows cannot be ignored as they affect society in general, including government and commercial entities. However, adequate laws and regulations can be enforced to combat money laundering and terrorist financing without risking the life and structure of activism by forcing rigid regulations.
Tambudzai Gonese-Manjonjo is the Deputy Director at the Southern Africa Litigation Centre
