Civic Space Case-Tracker

The Centre for Strategic Litigation (CSL), Change Tanzania Limited, and other NGOs are companies limited by guarantee focused on promotion and protection of human rights in Tanzania. Their work includes promoting and protecting good governance, rule of law, public accountability, strategic litigation, among others. However, since President John Magufuli came to power in 2015, the country has intensified the curbing of freedom of association and expression, undermining the work of the media and civil society. High-level officials, including the President himself, have made hostile statements regarding human rights issues while also implementing policies to silence government critics. Magufuli remained in the Presidency until his death on March 18, 2021.

Up until June 2019, several NGOs in the country were established as companies limited by a guarantee under the 2002 Companies Act, which guaranteed their existence because it was harder to de-register a company than it was to de-register an NGO established under the 2002 Non-Governmental Organizations Act. However, on June 27, 2019, the National Assembly passed Section 29 of the Miscellaneous Amendments Act No. 03 of 2019 and amended Section 2 of the NGOs Act to define an NGO as “’Non-Governmental Organization’ also known by its acronym “NGO” and which includes Community Based Organisation (CBO) means a voluntary grouping of individuals or organizations which is non-partisan or non-profit sharing established and operates for the benefit or welfare of the community or public, organized at the local, national or international levels for the purpose of enhancing or promoting economic, environmental, social or cultural development or protecting environment, good governance, law and order, human rights and lobbying or advocating on such issues.” 

Since the amendments were passed by the National Assembly on June 27, 2019, the work of civil society organizations, including CSL, became compromised. On July 12, 2019, the Registrar of Companies published a notice of intention to de-register all companies limited by guarantee based on the amended Law. As a consequence, the victims, being limited by guarantee, are facing deregistration hence the complaint.

The amendments further subjected civil society organizations (CSOs) to government control instead of internal control of their members, as has always been the case. The new regulatory framework makes it difficult for the organizations to raise funds for their work due to a need for outside approval, including having to report to various offices, making the process costly. Furthermore, the disclosure of funding sources makes donor confidentiality almost impossible, and grounds for de-registration became more flexible, such as individual actions by the organization’s directors. Therefore, under the new rules, organizations were moved to the NGO registry, where the regulatory framework is more stringent. 

The amendment to the Written Laws took place in the context of the Government seeking a firm grip on the nonprofit sector and shrinking of the civic and democratic space. The internet shutdowns that followed during elections are another indicator of governmental control of the space, and restricting the work of public advocates would definitely be one of the objectives.  

CSL fits in the new definition of NGOs and therefore stands to be transferred registries without risk of de-registration. The consequences are that CSL and similar NGOs formerly registered as companies limited by guarantee now need to be transferred to the NGO registry under the NGOs Act, which subjects them to a more restrictive regime than the previous regulation.

Because the amendments interfere directly with its work, CSL and Change Tanzania filed a constitutional challenge before the High Court of Tanzania. According to the petition, the new legislation violates several human rights, including freedom of association and the right to enjoy fundamental rights, both of which are safeguarded by the Constitution of the United Republic of Tanzania. The case was heard on merit and dismissed for being “frivolous and vexatious”, because the Court alleged that the petitioners failed to prove the violation of the Constitution beyond reasonable doubt (10 February 2020). The NGOs appealed the decision, but it has not been heard yet.

A favorable ruling in this case could be a challenge to the restrictive NGO regulatory framework set in place in Tanzania. In that case, the challenge will be more emblematic as the trend is that governments are increasingly adopting laws to keep NGOs under check, as well as to implement Financial Action Task Forces (FATF) Recommendations on anti money laundering and terrorist financing. Therefore, any challenge that targets such laws will draw interest from across the continent to inform proposed or on-going legal challenges.

The developments in this case should be understood in the context of ever-dwindling NGO space in Tanzania. In August 2018, a group of 30 CSOs addressed a letter to the Member and Observer States of the United Nations Human Rights Council, asking them to issue statements regarding the ongoing crackdown on civic space and human rights back­sliding in Tanzania. However, the space for human rights defenders, civil society, journalists, bloggers, the media, LGBTI persons, and opposition and dissenting voices continued to worsen. In 2019, Civicus called upon NGOs and other member states to make a collective statement on the state of civic space in the country during the 41st session of Human Rights Council.

According to a letter by the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Clement Voule, the amendments to the Written Laws are a source of worry. Particularly because they ban third-parties whether they are individuals, civil society organizations or even lawyers – from bringing public cases to court if they are not directly affected by the issue being discussed. If the petitioner cannot prove their/its connection to the matter presented before the Court, the case is considered inadmissible. As a result, the work of those litigating in public interest is limited, causing further violations to the rights of individuals, groups and communities in special situations of vulnerability. 

Tanzania ranks 123 out of 180 countries with a score: 48.28, in the 2022 Reporters Without Borders’ World Press Freedom Index. Even development agencies noted that the government has adopted and enforced laws and practices that severely restrict activities, resulting in the arbitrary deregistering or suspension of NGOs — including on accusations of violating Tanzanian “ethics and culture” — and the arrest and harassment of NGO workers.

For instance, in 2017 the government suspended the registration of new NGOs — which was regulated by the Ministry of Health, Community Development, Gender, Elderly and Children — and began a process of verifying existing NGOs. It introduced complex new requirements, such as submitting authorization letters from the regions or districts in which they work and declaring planned expenditures within 14 days of obtaining funds. Authorities threatened to deregister NGOs that could not comply.

In some cases, regional and district commissions have used their own powers to “arbitrarily block NGOs from accessing people residing within their jurisdictions,” often forcing NGO workers to seek multiple permits before they can travel or insisting that they are accompanied by government representatives. Yet in others, authorities have also used existing regulations around research permits and immigration visas to prevent some groups from operating. It is on the basis of this context that any law seen to be affecting the operations of NGOs, is associated with government intention to overreach on the not for profit sector.

Article19 noted that Tanzania’s new president, Samia Suluhu Hassan, has rolled back several measures taken by her predecessor, the late Pombe Magufuli, which undermined civic space. However, there is still a long way to go, because some threats to freedom of expression, association and assembly are still present, such as laws and policies that are still being used to crack down on critical voices, as well as ongoing harassment and prosecution of journalists.

• UN News, Rights experts call on Tanzania to end ‘crackdown’ on civic space (22 July 2020)
• Human Rights Watch, Public Interest Litigation Under Threat in Tanzania (18 June 2020)
• Amnesty International, Tanzania: Discard new law restricting human rights (21 June 2019)
• Breakthrough Attorneys, Corporate Law Update: Re-registration of NGOs formerly registered as companies limited by guarantee in Tanzania into NGOs registry (10 October 2019)
• FB Attorneys, ​​Companies Act amended by addition of controversial section 400A (11 July 2019)