Consultations
Toward Legal Reform in
James Duckworth
Mose Saitala*
The
International Journal of Not-for-Profit Law Volume Six, Issue
Background
In
The Tuvalu
Association of Non-Governmental Organizations (TANGO) is an umbrella
organization that seeks to strengthen civil society. TANGO, which receives an
annual grant from the
A
preliminary analysis of
Under a
proposal for statutory reform, any organization other than a religious body or
a cooperative can incorporate by registering its name, purpose, and rules, as
well as the names of individuals responsible for its affairs. Such a registry
will make registration data and annual filings publicly available, which will
promote accountability in several respects. Members will be able to ensure that
the NGO promotes their interests effectively and fairly. Anyone with a claim
against an organization will be able to locate its office and its officers. The
government, acting on behalf of the public, will be able to ensure that NGOs
are managed responsibly, and that any complaint of mismanagement is not
frustrated because the individuals in charge cannot be found. In all these
ways, the registration process will enhance public confidence in NGOs.
As the next
step toward legal reform, TANGO consulted with a broad group of stakeholders in
both civil society and government. The consultations provided useful
suggestions for drafting the NGO law, as well as additional insights into the
shortcomings of the status quo, particularly misunderstandings that
stakeholders on both sides harbor about their roles.
Accountability of NGOs
Both
NGO and government representatives agreed that an NGO must be accountable for
its use of assets, regardless of whether the assets come from government,
development partners, or private supporters. Accountability for government
funds is inevitable, but the other funds are important as well.
All
NGOs should also provide financial and performance accountability, not only to
their members, management, or founders, but also to the public through
Parliament. For financial accountability, NGOs should submit audited accounts
to Parliament, and not merely financial statements. Accounts must be audited by
external auditors, who are appointed or approved by the Auditor General, and
who adhere to internationally recognized best practices. For performance
accountability, NGOs should report annually on their activities and
achievements. Legislation should clearly spell out these requirements.
The
registration process should promote integrity by reminding each NGO to respect
appropriate values, such as respect for the law and the system of government;
respect for the people represented by the NGO; equal treatment and equal
benefits for all members; diligence in dealing with government, members, and
the public generally; and efficiency and economy.
The
limited resources of NGOs may stand in the way of prompt accountability, as it
has done in the past. Indeed, stakeholders listed scarcity of resources and
lack of capacity as the main constraints NGOs in
Umbrella
NGOs such as TANGO and the Tuvalu National Council of Women (TNCW) should heed
the same accountability requirements as their affiliated NGOs.
Registration
The
registration process should be kept simple to ease compliance. Enforcement of
complex legislation has been a problem.
Some
stakeholders further recommended that the new legislation define clearly what
types of organizations (social or commercial) can register. This concern grew
out of the fact that TANGO has registered for-profit commercial NGOs.
Two
existing NGO types, cooperatives and churches, have their own legislation and
their own registration process (as does the Red Cross Society). These
organizations need not reregister under the proposed legislation, but they
should be recognized as civil society organizations. This is particularly true
for churches, given their potential to benefit from government- and
donor-funded projects as well as their potential to help implement projects
funded by government and development partners. In light of the existing
legislation for cooperatives and religious bodies, perhaps the registration
process should distinguish between NGOs that qualify for full membership and
those that qualify for affiliated or associated membership. The different
categories might entail different benefits or different representation in the
decision-making process of NGO affairs. Such a distinction would respect both
current practice and the civil society role that cooperatives and churches can
play.
We must
also determine how many members are necessary for an NGO to register. At
present, a cooperative can register with as few as 10 members, whereas a church
must have at least 50 members. The NGO Act of 2002 of
On the
basis of current practice by TANGO, another provision deserves consideration:
requiring an NGO seeking registration to submit a properly formulated
constitution, which sets forth its aim, purpose, and sphere of operations. Such
a requirement would help verify the NGO's commitment to its goals. AN NGO
without a constitution might need to enact one before registering.
Partnerships Between the State and Civil
Society
In a global
trend, international organizations such as the United Nations and the European
Union are increasingly allocating a portion of their aid to NGOs. The Canadian
fund for development assistance also currently considers proposals submitted by
NGOs. To avoid duplication on aid projects, NGOs need to work closely with
government. Donors tend to follow the government's priorities and plans.
In light of
NGOs' record of successful projects in
But, as our
consultations attested, there are obstacles to effective partnership. Both
government and NGOs lack clear models for collaboration. Representatives of
each side complained about the other, a pattern that reflects the lack of
systemic consultation and close collaboration in planning, programming, and
implementation. NGOs and their counterparts in government do not adequately
understand each other’s priorities and programs. The result is unnecessary
duplication, which leads to inefficient use of funds from government and
possibly from donors.
Approved in
2001, the government's Social Development Policy recognizes that NGOs are
essential to development, given government's limited resources. The relevant
ministry soon will draw up a strategic plan to implement the policy. One hopes
that the plan will provide for regular consultations between government
departments and NGO representatives.
NGOs
currently fall in the portfolio of the Ministry of Health and Education, and
not, as previously, under the Ministry of Home Affairs, where many NGO
counterparts are based, such as the Director of Women, Youth Officer, and
Social Welfare Officer.
The Role of TANGO
TANGO
has played a useful role in promoting the interests of its member NGOs. It has
also served as a cost-effective instrument for government and development
partners to gauge the needs of NGOs. It has proved useful, too, in implementing
development programs that promote the objectives of both government and
development partners while also advancing the objectives of the NGO. The fact
that the government makes a direct annual grant to TANGO suggests official
acknowledgment of its contribution. Although the government has an Aid
Coordinator assigned to track funds granted from overseas, the office is
staffed by one person.
TANGO's work to date led to two suggestions for making TANGO a
legally recognized body responsible for day-to-day management of NGO affairs.
The
first suggestion was to recognize TANGO as the body responsible for civil
society organizations. With legal power, TANGO would ensure that NGOs
understand the legislation and comply with it. Most if not all NGOs lack the
capacity even to prepare proper acquittal statements for funds provided to
them. NGOs suggested that building up the capacity of TANGO to police
accountability would require less effort than building up the capacity of all
NGOs to comply with the law. In effect, this approach would seek to prevent
enforcement problems before they arose. If TANGO were the administrator of
NGOs, it might not be required to register as an NGO itself under the
legislation. In addition, TANGO might have to be reconfigured because it would
no longer register NGOs, but would use the government's NGO registry.
The
second suggestion was to establish TANGO (under that or some other name) by
separate legislation as a statutory body that reports directly to Parliament
for the use of its resources. The executive committee or board of directors of
this body might be chaired by one NGO representative and include two senior
representatives of government. This approach in effect creates a quasigovernmental
body and specifies its functions while also guaranteeing its independence. The
body would not answer to the cabinet, which can give instructions and policy
directions to ordinary statutory corporations, but would be accountable to
Parliament. The interests of the government would further be served through
representation on the board. This method should help ensure that an NGO
critical of the government or its policies would be afforded the same rights as
other NGOs.
The Way Forward
Based on these
consultations, we hope during 2004 to prepare draft legislation; seek comments
on the draft from stakeholders, including the attorney general's office; revise
the draft in light of the comments; and submit a bill for first reading in
Parliament.
* James Duckworth, an adviser to TANGO, was
People's Lawyer in