The High Court will soon be tasked to interpret the meaning of a clause in the NGO Act which requires proof of an NGO`s membership with Council for Non-Governmental Organization (CONGOMA) as one of the conditions for registering with NGO Board, after Counseling Adolescent and Youth Organization (CAYO) has gave notice to challenge the CONGOMA mandatory membership resolution alongside the section.
CONGOMA during its 2017 general assembly resolved to make its membership mandatory in order to align with section 20(3) (a) (v) of the NGO Act.
According to documents seen by Nyasa Times, CAYO represented by Doreen and Cuthbert Lawyers, wrote CONGOMA expressing intention to commence legal proceedings challenging the validity of the resolution made at CONGOMAs annual general assembly held on 16-17 November, 2017 adopting mandatory membership of all the NGOs to the Council.
CAYO is not a member of the Council and therefore fears that the resolution would infringe on its freedom of association as provided for in the constitution.
A response to a letter of intent to commence legal proceedings dated 15 December, 2017 addressed to Doreen and Cuthbert Lawyers from lawyer Allan J. Chinula acknowledges receipt of the notice.
Chinula in his response disagrees with the basis of CAYO`s claim observing that Section 20 as referred in the notice has neither been amended nor invalidated accordingly, in which case CONGOMA was enforcing the law as it was.
“Additionally, we are of the opinion that CONGOMA cannot assume liability for any lawsuit arising from the NGO Act unless it is proven that it had acted outside the law which to the best of our knowledge is not the case”. Reads part of the response adding CONGOMA finds the claim frivolous and without legal merit.
However, CAYO contends that although section 20(3) (a) (v) require that for an NGO to register, it should prove its membership with CONGOMA, that ought not to be mandatory since CONGOMA is just an association of NGOs.
CAYO further argue that Section 32(1) and (2) of the constitution promotes the right of freedom of Association and that no person may be compelled to belong to an association.
It adds that Section 5 of the constitution provides that any law that is inconsistent with the provision of the constitution shall to the extent of inconsistency be invalid, therefore the said section is inconsistent with the constitution, and therefore, its unconstitutional to compel NGOs to register with CONGOMA before registering with NGO Board.
Executive Director of CAYO, Frayson Chozi confirmed having instructed its lawyer to commence legal proceedings, questioning the legality of the section and CONGOMAs resolution saying these are in conflict with section 32 of the constitution of Malawi which provide for freedom of association.
He said he expected the lawyer to file the suit tomorrow (Wednesday) or any day within the week.
Asked on the impending lawsuit, Chinula denied knowledge of the issue and asked time to contact CONGOMA first before responding.
There have been calls from some NGOs, Stakeholders and the donor community to repeal the section or abolish the NGO Act which seems to duplicate the role of the NGO Board and CONGOMA.
In 2004, donors such as the United Nations Development Program (UNDP) and the Norwegian government, during the presentation of the State of Governance Report for Malawi held at Sanjika Palace in Blantyre, asked government to deal away with the section saying it was designed to marginalize the NGOs from democratic processes.
However in April, 2016, renown lawyer Justin Dzonzi pointed out legal pitfalls in the NGO Act observing that CONGOMA is a voluntary registering organization and therefore has no powers to force NGOs register with it,
He further observed then, that the republican constitution provides for freedom of association therefore forcing NGO to be members of CONGOMA which has no legal backing would be legally problematic.
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