Open Letter

To Mr Benjamin William Mkapa
President of the United Republic of Tanzania
Paris, 8 october 2003

The International Federation for Human Rights (FIDH) and the World
Organisation against Torture (OMCT), in the framework of their joint
programme, the Observatory for the Protection of Human Rights
Defenders, express their deepest concern with regards to the 2002 law
on NGOs (NGO Act) in Tanzania, which imposes serious restrictions to
freedoms of association and expression. The Observatory wishes to
express their support to the initiative of the Tanzanian NGOs against
the entry into force of the NGO Act, which is planned through its
publication in the Official Gazette before the end of October 2003.

The NGO Act was drafted by the Parliamentary Assembly of Tanzania
without any prior consultation with
national NGOs. Even though the mobilization of NGOs led to an amended
text, which took into consideration some of the propositions made by
the civil society, the NGO Act, adopted by the Assembly in November
2002, still includes serious restrictive measures, which violate
international and national human rights instruments. In December
2002, Your Excellency officially signed the NGO Act.

Obligation to register

Article 35(1) of the NGO Act provides for criminal sanctions against
NGOs that do not register. According to this article, any person who
operates an NGO without obtaining registration "shall on conviction
be liable to a fine not exceeding five hundred thousands shillings or
to imprisonment for a term not exceeding one year or to both such
fine and imprisonment". This provision is contrary to Article 1 of
the Declaration on Human Rights Defenders , adopted by the UN General
Assembly, on 9 December 1998, which provides that "Everyone has the
right, individually and in association with others, to promote and to
strive for the protection and realization of human rights and
fundamental freedoms at the national and international level". It
also contravenes Article 22(2) of the International Covenant on Civil
and Political Rights, which provides that "No restrictions may be
placed on the exercise of [the right to freedom of association] other
than those [.] which are necessary in a democratic society in the
interests of national security or public safety, public order, the
protection of public health or morals or the protection of the rights
and freedoms of others."

Considering the criminal sanctions attached to the non registration,
the situation is likely to become extremely dangerous for NGOs, all
the more so as the cases in which the registration can be refused are
not strictly defined. Indeed, the NGO Act provides that an "NGOs
Coordination Board" (NGO Board) may refuse to approve application for
registration of an NGO, particularly if its activities do not strive
for public interest.

However, the definition of "public interest" is extremely vague.
Indeed, according to Article 2 of the Act, "public interest includes
all forms of activities aimed at providing for and improving the
standard of living or eradication of poverty of a given group of
people or the public at large".

Moreover, the NGO Act provides that the director of the NGO Board is
appointed directly by the President of the Republic and contains no
other provision relating to the qualification of the members of this
Board nor on their election process.

Interferences with NGOs activities

According to the NGO Act, the NGO Board provides "policy guidelines
to NGOs for harmonizing their
activities in the light of the national development plan". However,
some of these national development plans are very controversial for
NGOs, with some organizations in fact advocating against some of
them, in particular regarding privatization or land acquisition.
Therefore, this obligation to harmonize NGOs activities with national
development plans is contrary to the mere non-governmental nature of
NGOs.

Moreover, Article 7 of the NGO Act also provides the NGO Board with
the right to "investigate and to inquire into any matter" in order to
ensure that NGOs adhere with their
own statutes.

Those provisions clearly violate the freedom from interference of
NGO and are therefore contrary to Article 18(1) of the Tanzanian
Constitution, which states: "subject to the
laws of the land, every person has the right to freedom of opinion
and expression, and to seek, receive and impart or disseminate
information and ideas through any media
regardless of national frontiers, and also has the rights of freedom
from interference with his communications".

Prohibition of national networks and coalitions of NGOs

Article 25 of the NGO Act establishes a National Council for NGOs
(the Council), which is a collective forum of NGOs, whose purpose is
the co-ordination and networking of
NGOs operating in Tanzania. However, Article 25(4) prohibits any NGO
to "perform or claim to perform anything which the Council is
empowered or required to do under the
act". This provision denies the possibility for NGOs to get together
voluntarily under an NGOs coalition, and prohibits already existing
coalitions of NGOs. Therefore Article
25(4) clearly denies the full enjoyment of freedom of association
among NGOs, in contradiction with Article 5 of the UN Declaration of
Human Rights Defenders, which
provides that everyone has the right, individually and in association
with others, "to form, join and participate in NGOs, associations or
groups".

The Observatory is very concerned with the provisions contained in
the NGO Act. The Observatory considers that this legislation
demonstrates a desire of the Tanzanian
authorities to control the activities of NGOs and interfere with
their work. The Observatory notes that the entry into force of the
NGO Act as it is drafted would violate Article
2(2) of Declaration on Human Rights Defenders, which provides that
"Each State shall adopt such legislative, administrative and other
steps as may be necessary to ensure
that the rights and freedoms referred to in the present Declaration
are effectively guaranteed". It would also contravene Article 3,
which provides that "Domestic law
consistent with the Charter of the United Nations and other
international obligations of the State in the field of human rights
and fundamental freedoms is the juridical
framework within which human rights and fundamental freedoms should
be implemented and enjoyed and within which all activities referred
to in the present Declaration for
the promotion, protection and effective realization of those rights
and freedoms should be conducted."

The Observatory urges Your Excellency to take the necessary measures
so that the NGO Act is not enforced and to return it to the competent
authorities in order to amend it, so as to ensure the full respect of
freedoms of association and expression, in accordance with
international and national human rights instruments.

Sidiki Kaba Eric Sottas
President FIDH OMCT