6 Apr 2022

1.0 PREAMBLE

The NGO Board of Malawi and the Council for NGOs in Malawi (CONGOMA) would like to jointly provide an update to the NGO community and the public on the recently passed Bill No. 10 of 2022 (NGO Act Amendment). This communication has become paramount because the two bodies have noted with concern, the level of misinformation about what the amendment has done to the NGO Board, CONGOMA and to the NGO sector and their civic space. 

2.0 THE JOURNEY OF THE AMENDMENT PROCESS

 The NGO Act was enacted in the year 2000 and became law in early 2001 (over 20 years ago) and since then, some realities on the ground have changed and needed to be reflected in the Act. In 2016 several consultative meetings, dialogues, negotiations and draft amendments to the Act started being made. A number of issues were raised in the process and some led to the formulation of the NGO policy adopted in 2019. Some of the notable engagements are the following:

  1. Several meetings with the various Ministers of Gender, Community Development and Social Welfare since 2016
  2. Consensus of NGO General Assembly of 2017 that resolved that CONGOMA should remain in the NGO Act. This was re-affirmed, acknowledged and given a green light by the Minister of Gender at the 2021 NGO General Assembly.
  3. Several dialogue sessions on the NGO Act amendment Bill of 2020 between Government (Ministry of Gender, Community Development and Social Welfare, NGO Board and Ministry of Justice) and Civil Society Organizations led by CONGOMA.  The last Dialogue session was held on 14 April, 2020 at Nkopola Lodge in Mangochi.
  4. CONGOMA had an audience with His Excellency, Dr. Lazarus McCarthy Chakwera, President of the Republic of Malawi, on Wednesday, 16th September, 2020 at Kamuzu Palace in Lilongwe on issues of civic space and the NGO Bill
  5. Several meetings with Development Partners (including the United Nations family) and INGOs
  6. Field visits to Kenya (delegation was led by National Advocacy Platform – NAP) and Lesotho (delegation was led by HRDC) in December 2020. These visits were meant to draw lessons and practices that would help amend the NGO Act in Malawi.
  7. In December 2020 Ministry of Gender through print media and televisions, called for public input into the process of amending the NGO Act. On 29th January 2021 the Ministry convened an all inclusive consultative meeting at Capital Hotel. A team that included key CSOs players was formed to consolidate public input and draft the amendment.
  8. In this process, the last engagement between Civil Society Organizations and Government was on 12th February, 2021 at Livingstonia Beach Hotel in Salima. At this meeting the parties agreed to what is popularly known as the ‘Salima Consensus’ on the NGO Act amendment Bill.

2.1 Contents of the Salima Consensus

The most contentious issue in the NGO Act amendment Bill was the inclusion or removal of CONGOMA from the Bill. The Salima Consensus unanimously agreed to:

  1. Maintain CONGOMA in the Act as a designated NGO Coordinating Body and a representative of the collective interests and concerns of all NGO in Malawi
  2. Remove the requirement that for NGOs to register with the NGO Board they need to belong to CONGOMA as the provision was in conflict with the Republican Constitution
  3. Maintain the current functions of the NGO Board but rebrand it as an NGO Authority
  4. Remove the requirement of NGO Board which has Statutory functions from reporting to general assembly of NGOs and instead to be reporting to Parliament through the Minister responsible
  5. Ensure that Board membership of the NGO Board stops being dominated by NGOs (70%) and include the Malawi Law Society, Economics Association of Malawi and others. The meeting agreed to have 3 representatives from CONGOMA with 4 from Government
  6. Brought in Government subvention as one of the major sources of revenue for the NGO Board

2.2 Attendance at the Salima consensus

The following were the key representatives of stakeholders during the Salima consensus:

  1. Government – PS Ministry of Gender and Chair of the meeting, Ministry Justice, NGO Board Chairperson, NGO Board CEO, William Faulkner as independent legal consultants represented by their Senior Counsel, and Other Senior Government officials
  2. Governance Bodies– The Law Commission represented by the Law Commissioner, Malawi Human Rights Commission, and Finance Intelligence Authority
  3. Civil Society Organizations- Council for NGOs in Malawi (CONGOMA) represented by its Chairperson, CONGOMA Executive Director, National Advocacy Platform (NAP), Malawi Law Society (MLS), Human Rights Defenders Coalition (HRDC), Human Rights Consultative Committee (HRCC), Local NGO Forum, and International NGO Forum Co-Chairperson

3.0 APPROVALS

After the Salima Consensus, NGO General Assembly of 2021 endorsed the contents of the Salima consensus, the Bill still went through further approvals by the Ministers of Gender and Justice; and Parliament who all agreed with the Salima consensus on the major areas of amendment. The amendment areas therefore are what was presented in Parliament on Tuesday 22nd March, 2022 by the Deputy Minister of Gender, Community Development and Social Welfare. The Bill was unanimously passed and now awaiting Presidential assent as required by law.

4.0 IMPLICATIONS OF THE AMENDMENT

It is very important to note that the NGO Act amendment has some key implications on the regulation and the coordination of NGOs including the following:

  1. Has maintained the separation of regulation and coordination functions as was the original scheme of the NGO Act between NGO Board and CONGOMA respectively
  2. Has retained the same functions for both NGO Board and CONGOMA as is currently the case in the principal Act
  3. Has heightened the centrality of the Trustees or Directors of a registered NGO in the accountability and business of the NGO, as now the Courts will have options to prosecute both the NGO as corporate and /or the Trustee or Director of an offending NGO as the case may be
  4. Has provided for Regulations to be formulated for the Registration of International NGOs. This is meant to regulate the operations of International NGOs in Malawi. It is expected that these Regulations will be expedited as most of the information is already available with relevant authorities.
  5. Has reduced dominance of NGOs in the board of NGO Board (to be called NGO authority after Bill is assented to) which is expected to reduce conflict of interest from NGOs but also bring diverse views on growing the sector and making it more impactful
  6. Has broadened the revenue base for NGO Board as a State Agency to include subvention from State funds.
  7. Has streamlined reporting of the NGO Board from NGO Assembly to Parliament through the Minister responsible but also subjecting its finances to the Public Finance Management Act as all State Agencies do.
  8. Has rolled back (repealed) participation of NGO Board in the AGM of CONGOMA as is sanctioned by the current principal Act.
  9. Has clarified a declaration by NGOs that their employees will not participate in partisan politics
  10. Has reaffirmed the need for an organization to register under the law before it is allowed to operate in Malawi 

5.0 Way forward

  1. NGO Board and CONGOMA are already collaborating on a consultative process of developing Regulations regarding:
  2. Registration of NGOs,
  3. Reporting,
  4. Compliance,
  5. Complaints and Case management, and
  6. Partnerships between Local and International NGOs
  1. Regulation on complaints and case management will provide clarity on cases that attract fines and penalties and its application. It will also clarify on issues of politicking and electioneering which have been part of the NGO Act since 2000. Desirably, there will be a Complaints and Case Management Committee to which CONGOMA will be a member.
  2. A task force is already in place to review the NGO policy in order to align to the new law and review NGO fees with a purpose of exploring a unitary fees regime.

The NGO Board and CONGOMA profoundly acknowledge the contributions, support, and wisdom from NGOs, Parliament, the Ministry of Gender, Community Development and Social Welfare, Ministry of Justice, legal professionals and many others during the amendment.

For more information, contact:

                                                                                       

NGO Board of Malawi

Next to MASM Clinic, P.O. Box 31785,                                           

Tel: +265 (0) 1 770 014                                                                                    

Email: registrar@ngoboard.mw      

Council for Non Governmental Organisations in Malawi (CONGOMA)

P.O. Box 2264; Lilongwe; MALAWI                      

Tel: (265) 01 759 881/882                                       

Email: info@congoma.mw                                   

                                                                

Shadreck Malenga                                                          Kossam Jomo Munthali                        

CHAIRPERSON, NGO BOARD                                   CHAIRPERSON, CONGOMA

4th April, 2022                                                                    4th April, 2022

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