CIVICUS interviews, the Centre for Human Rights and Rehabilitations’ Fletcher Simwaka about the state of civic space in Malawi and the new NGO policy.  

1.    What is the state of human rights in Malawi at the moment? 
There is a great sense of ambivalence on the human rights situation in the country. In some instances, one notices commendable steps government is taking in facilitating citizens’ progressive enjoyment of the various civil and political rights in the country. Remarkably, for instance, the President Professor Peter Mutharika signed the long-awaited Access to Information (ATI) Bill into law. This is a milestone as the law will enable citizens to access key and vital information held by the government. The ATI is an effective tool to entrench a culture of transparency and openness in government operations. In addition to the ATI, a major improvement on civic space is that the government is now relaxing its former restrictive stance on freedom of assembly. Concerned citizens and human rights activists are now able to conduct peaceful protests government without any undue legal hindrances. 

On the other hand, however, the government has demonstrated vestiges of intolerance towards key human rights and freedoms, especially against critical human rights defenders and  civil society. The current administration is resorting to a divide-and-rule tactic so as to weaken and isolate civil society in the country. The government does so by appointing some of the vocal human rights defenders into government positions. Moreover, government has taken a leading role in influencing elections of civil society leaders in civil society networks and platforms by supporting their stooges. Most unfortunately, government is resorting to the selective application of justice aimed at shielding ruling party loyalists. Only cases involving government critics are dealt with expeditiously. Civil society in Malawi has also expressed concerns over the very restrictive provisions in the NGO Act which are largely reflected in the draft NGO Policy.

2.    What are the main civil society concerns over the NGO Policy? 
The most fundamental civil society concern over the NGO Policy is that the draft policy formulation did not undergo meaningful consultations with the wider civil society community. The policy formulators only embarked on selective consultations with pro-government CSOs.  Secondly, the draft Policy is almost silent on governance and human rights CSOs in its definition of civil society. It assumes all CSOs are community charitable organisations which are simply there to complement the service delivery work of the government. This is a deliberate and dangerous omission as it might systematically emasculate the equally important role of governance and human rights CSOs and activists in the country. 

The Policy provides the relevant development planning structures with increased and unwarranted powers to approve projects developed by NGOs. The policy notes that “a project shall not be implemented unless it is approved by these structures.”  While it is important that projects planned by NGOs are in line with development objectives, such broad powers prescribed by the policy and given to the planning structures, will infringe on the independence and privacy of NGOs. 

In addition, the draft policy doesn’t mention the protection of NGOs and human rights defenders. These is supposed to be reflected in any NGO policy as it is one of the crucial areas that shape their day to day work. In fact, the policy should have also acknowledged the relevant role of NGOs as a watchdog in the exercise of political and legal authority by those in public office. In view of the above, the policy priority areas need to be expanded.

While the policy notes that this is aimed at ensuring that NGO are transparent and accountable, it will increase the administrative burden on NGOs and allow for bureaucratic discretion to reject requests for renewal of the registration of NGOs and to target NGOs that question the government.  For example, this was the case in 2014 when the NGO Board threatened to close NGOs that were not registered with the Board, despite the fact that the NGO Act (2000) does not provide the Board with powers to close on NGO.
Again, the question of mandatory registration of NGOs with the Council for Non-Governmental Organisations in Malawi (CONGOMA) and NGO board as indicated in the NGO Act of 2001 as a requirement to qualify or be recognised in the categorisation of the draft’s policy three categories of NGOs may be challenged at law considering the fact that it may be perceived as an infringement on freedom of association, and also considering that other NGOs register under Trustees Incorporation Act of 1966 and Companies Act. 

3.    Have there been any concerns over the years over the NGO Act? 
CSOs in Malawi have always had misgivings concerning the NGO Act. Both in its originality and practice, the NGO Act is seen as tool to police and silence critical voices in civil society. For instance, section 23 of the NGO Act gives power to the NGO Board, the body appointed by the President, to deregister any NGO that does not operate within NGO guidelines. Some of the NGOs targeted for de-registration are those involved in and comment on political issues. Several voices within civil society have noted that this is aimed at targeting civil NGOs working on human rights and governance who are critical of the government. The provision has always been a source of the fractious relationship between civil society organisations focusing on human rights and the government.

4.    How can international civil society support civil society in Malawi to improve civic space?
Support from international civil society is needed to build the capacity of local civil society to empower them to demand and promote and protect civic space in the country.  There are also opportunities for international civil society groups to partner with local civil society to effect change. 

5.  What are three things that need to change to further improve the environment in which NGOs operate in Malawi? 
i.    The NGO Act needs to be reviewed and amended to reflect the spirit of constitutionalism.
ii.    There is need for a robust, responsive and inclusive NGO Policy that will address the challenges faced by CSOs.
iii.    Government must come up with a law that protects human rights defenders.

Civic space in Malawi is rated as Narrowed by the CIVICUS Monitor

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