Civil Society Organizations Concerns on the Amended #PBOAct The controversial sections contained in the Statute Law(Miscellaneous Amendments) Bill, 2013 as amendments to The Public Benefits Organizations Act, 2013 (No. 18 of 2013) 1) Inclusion of the new Section 10Aon ‘Authority to impose terms and conditions’ The new Section 10 A states that: The Authority may from time to time impose terms and conditions for the grant of certificates of registration, permits of operation and public benefit organization status. Issues arising DISCRIMINATORY - can lock out some organizations by imposing terms and conditions for granting certificates, permits of operation etc. Interfere with the operations and activities of organizations 2) What are the implications of adding ‘recognized’ to have ‘Registered recognized’? Doesn’t the word registered imply recognition? Does the word ‘Recognized’ imply that some organizations can be registered and yet they are not recognized? PBO ActSection 21 (1) There is to be established a federation of registered public benefit organizations to be known as the National Federation of Public Benefits Organizations, which shall be an umbrella organization of all public benefit organizations registered under this Act and the self-regulation forums of public benefit organizations recognised by the Authority. (2) Every registered organization shall be eligible for membership of the Federation. Amendments to Section 21indicate that the word ‘recognised’ should be inserted immediately after the word ‘registration’ 3) New Section (27A) on FUNDING Section 27 A(1) states: “Any funding of a public benefit organization shall be made through the federation and not by an individual members’ organization.” Section 27 A(2) states: “A public benefit organisation shall not receive more than 15 per cent of its total funding from external donors.” Section 27 A (3) states: “Notwithstanding (2), the Cabinet Secretary responsible for finance may approve receipt for an amount of more than 15% where there are legitimate and compelling reasons for increasing the amount.” Section 27 A (4) states: “For purposes of funding by the government, the Cabinet Secretary responsible for finance shall make regulations to provide for funding from the state.” Section 27 A (5) states: “The regulations made under this section shall conform to the laws relating to public financial management and shall establish percentage ceilings of funding to Public Benefits Organizations by overseas development assistance.” Section 27 A (6) states: “The Council shall by Regulations come up with facilitative measures on funding of the public benefits organizations.” Issues Arising An attempt to limit activities of organizations keeping the government in check (15%) Having the funds pass through the Federation (Umbrella Organization for all PBOs) will cause problems – misappropriation of funds because of passing through many hands, discouraging donors because of fear of the funds not reaching the intended recipients Powers given to the Cabinet Secretary responsible for finance to approvereceipt of an amount more than the 15% will lead to corruption and watering down the values of the PBOs by encouraging them to become corrupt or dance to the tune of the government before getting more funding Receiving funding from the government will be an indirect attempt to muzzles CSOs because they will become dependent on the government since the 15% is less for most operations In any case the funding from the government is also not guaranteed 4) Section 35 (1) (a)Appointment of the Chairperson of the Board of the Authority to be done by the President PBO Act Section 35 states (1) There shall be a Board of the Authority which shall consist of— (a) the chairperson appointed by the Cabinet Secretary; The Amendment to Section 35 (1) states that the chairperson shall be appointed by the President and not the Cabinet Secretary Issues Impliedly this increases chances of political oversight on the Federation and by extension the operations of PBOs. Without remedial legislation is available that curtails the power and authority of the Chairperson, directly impinges on the independence and autonomy of NGOs in programmatic scope, geographical reach and mandate. 5) Section 35 (1) (h)amended to remove the chairperson of the Federation from being part of the Board of the Authority. The entire subsection (h) has been deleted. PBO Act Section 35 (1) (h) states the chairperson of the governing board of the Federation shall also be part of the Board of Authorities. Issues The Federation is the Umbrella organization for all PBOs. Why isn’t there representation in the board?If funds to be capped through the Federation, registration and recognition as well, structures should exist for synergy to be achieved 6) Section 35 (1) (g)has been deleted and amended to state that the PS to sit in the board as a public officer is the PS for matters relating to internal security. Why PS to matters relating to internal security? What is the rationale? PBO Act section 35 (1) (g) reads; one public officer representing the Principal Secretary responsible for such departments as the Authority shall determine will also be part of the Board 7) Section 35 (7)of the PBO Act has been deleted. It stated that the experts (3) who may have been brought in by the board to enable better discharge of its functions shall not be eligible to vote on any matter of the Board. Issue Does this mean that the experts will now be eligible to vote? Are these experts independent or are they most likely to vote in favour of the Board? Other general observations in the Schedules of both the PBO Act and the Miscellaneous Amendment Bill; The PBO Act and the Amendment Bill do not state a specific modality on how the Chairperson of the Board will be appointed in terms of engagement with industry players. (Hint: Unilateral? Cabinet Secretary, President?) No mention of any possible engagement/consultation of industry players by deleting paragraph 4 of the Third Schedule of the PBO Act and replacing it, implies that the Cabinet Secretary now has the unilateral role of determining and considering what names to be shortlisted. (Hint: It doesn’t matter who you lobby for, I am the final word) Para 4, Third Schedule of the PBO Act states; The Cabinet Secretary shall, within seven days of the expiry of the period prescribed under paragraph 1, convene a committee comprising of representatives of a broad spectrum of public benefit organizations for the purposes of considering the applications, interviewing and short listing twelve persons qualified for appointment as members of the Board. Paragraph 4 of the Amendment Bill states: The Cabinet Secretary shall, within seven days of the expiry of the period prescribed under Paragraph 1, consider applications and submit five names of persons qualified for appointment as members of the Board in accordance with Section 35 1 (b) and (h), and two names of persons qualified for appointment as Chairperson of the Board in accordance with Section 35 1 (a) Amending para 7 implies that the decision made under para 4, that originally meant to be a consultative process, but now the sole role of the cabinet secretary, can be quashed by the National Assembly. (Hint: depends on who is named etc.) Paragraph 7 of the Third Schedule of thePBO Act states; The National Assembly shall, within fourteen days of the receipt of names under paragraph 6, through an openand consultative vetting process, consider all nominations and approve the names of six nominees for appointment as members of the Board. Para 9 changes from submission, which in this case could be interpreted to mean fresh nominees, to resubmission, making it possible for the Cabinet Secretary to reintroduce the same names as those rejected. Paragraph 9 of the Third Schedule of the PBO Act states: Where the National Assembly fails to approve the minimum number of nominees required, the Clerk of the National Assembly shall within three days of the decision communicate the names of the approved nominees and those of the rejected nominees to the Cabinet Secretary for the submission by the Cabinet Secretary, within seven days, of fresh nominations in respect of the rejected candidates. Amendment Bill states that: The word “Submission” should be deleted and substituted with the word ‘resubmission’
Posted on: Wed, 06 Nov 2013 20:34:16 +0000
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