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Civil society, community organisations and the law in Vanuatu
When people get together with family, friends
and neighbours to talk about and work on issues that they care about, they
often form a group or organisation. In
This area of activity is called civil society. Civil society refers to the area of life and work that sits between
personal and family relationships on one hand and government on the other. This
is the public area in which citizens outside government can organise and do
their work. It is the space in which formal and informal associations formed by
citizens operate.
In the words of one
This pamphlet looks at how the laws protect the space where this takes place.
These associations are commonly known as NGOs (non government organisations) or
CSOs (civil society organisations). We use the term CSO to cover all forms of associations which do not operate to make a profit for private gain including charities and NGOs.
Community organisations
in
The right to
form an association for a wide range of community purposes is underpinned by
the
Many CSOs in
Why should the law be
concerned with these activities?
The law
- Protects the space where people can come together to deal with common issues and problems, and to form organisations for this purpose.
- Provides protection for civil society organisations, certainty to funders about whom they are dealing with, and reassurance to government about the consistency of their purpose with national norms and procedures as reflected in the Constitution and laws of the country.
Besides written laws based on international
treaties, English Common law or French Civil law, customary law also
flourishes through word of mouth in
Consistency
and Clarity of Laws
The
various laws concerning the establishments and dissolution of CSOs are simple and easy to follow. This is also true for
the special laws for religious bodies, trade unions or professional membership
bodies. The various laws leave CSOs to make their own
rules or regulate their internal procedures as set out in a constitution or
memorandum of association.
CSOs can engage in commercial activities so long as they do not become the main activities. They may engage in profit making activities if such activities are connected with and for the furtherance of the objectives of the association.
How to register.
There are a variety of types of CSOs and NGO organisations in
There are two main forms in which CSOs can be registered in
- Charitable Association.
- A company limited by guarantee.
There are also special laws for churches and religious bodies, trade unions and professional associations.
1. Most CSOs in
2. A CSO can be formed as a company limited by guarantee under the Vanuatu Companies Act. A guarantee company, governed by a memorandum and articles of association becomes a legal entity once it is registered. It is then able to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary to achieve its objectives.
There are also special laws for churches and religious bodies, trade unions and professional associations as well as provisions for foreign organisations, establishments and professional membership organisations
a) Religious Bodies can either be
either registered as a Charitable Association or under the Religious Bodies Registration Act.
b) Trade Unions become legal persons upon approval of their founding documents by the Registrar of Trade Unions under the Trade Unions Act.
c) Foreign Organisations. There is no special provision in the law for foreign organisations. Some foreign organisations such as the Foundation for the People of the South Pacific and Volunteer Services Overseas operate under a Memorandum of Understanding with the Government of Vanuatu. These MOU’s usually include the rights and obligations of local CSOs. Approval requires submitting to the Ministry of Foreign Affairs their founding act and other proof that their internationally agreed obligations have been fulfilled.
d) Establishments are educational institutions, sports facilities and health care establishments founded by private groups including schools formed by Church organisations. They each register under the relevant legislation, for example, non government educational institutions are registered under the Education Act
e) Membership organisations of professional bodies such as medical practitioners and legal practitioners exist solely for the benefit of their members. They are statutory bodies whose activities are governed and regulated by the enacting statutes.
Although
Unregistered organisations
However, all community organisations do not need to register.
Your group may simply want to meet to discuss issues of concern and/or carry out local activities without employing staff. In this case there is no requirement to register.
Most unincorporated associations are
community based and are formed in the villages by groups of men, women and
youth either for sports, agriculture or religious purposes. An unincorporated
society is not a legal entity and it is based on an agreement (written or oral)
between its members. It is usually governed through its constitution or rules.
It has no legal personality and cannot enter into legal relations with other
bodies. As there is no legislation governing the existence and operation of
political parties in
Registering can be an advantage if you decide to:
- take action in a wider area,
- employ staff,
- rent or buy property,
- need or desire liability protection for officers or staff;
- raise funds from local or international funders.
Although it is not compulsory to register an organisation there are some advantages that should be considered when deciding whether to register.
What are the advantages of becoming registered?
Registration can be useful, for example, if your organisation wishes employ staff or to rent or own property. This means that the organisation can act in its own name, with any potential legal liability going to the organisation, rather than to an individual or family. This provides protection for members of the group from anyone taking legal action against them.
Registration may also be a requirement of funders, especially international funders.
Some tax concessions and exemptions are available to registered organisations.
VAT is not imposed on the supply of donated goods or services by a non-profit body.
Charities, churches, privately funded schools as well as community groups are also exempt from import duties.
The authority for
determining exemption under the Imported Duties Act is the Director of Inland
Revenue and Taxation. The Minister responsible for Social Development can also
write a letter to the Director of Inland Revenue and Taxation requesting relief
for a community group.
International NGOs are exempted from VAT and Import Duties if this is provided for in the MOU signed between the Government and that particular organisation.
If you have any questions about registration or
the operation of the law affecting civil society and community groups contact:
University of the South Pacific Community Legal Centre,
PMB 072 Port
ICNL Pacific Civil Society Law Programme davidjrobinson@xtra.co.nz
113 Creswick Terrace,