7.3 The law
There is a wide variation between countries in the extent to
which the general and specific issues concerning the blurring of the boundaries
of NGO activity with those of other sectors of society are recognised and given
attention. But on one aspect of this there is little variation:
The law lags badly behind the reality of NGO activities and
structures in many countries.
The essence of the problem here is that increasing NGO diversity
is generally not reflected in the laws under which they operate. In many
countries laws relating specifically to NGOs were framed years ago, and thus
reflect the NGO scene at the time the legislation was passed. In general this
means that the laws are suited to NGO work in care and welfare activities but
less so to others. The laws of many countries typically refer to NGOs as welfare
organisations or as charities. In doing so they reflect the context in which
19th Century charitable law was framed. In broad terms these allow NGOs to
pursue objectives which are related to the relief of poverty, the advancement of
education, and other objectives which are termed "beneficial to the community"
(including in some, the "advancement of religion"). In one African country, for
example, the legislation concerning "welfare organisations" (1967) defines these
"...any body or association of persons, corporate or
unincorporate, or any institutions, the objects of which include or are one or
a. the provision of all or any of the material, mental, physical
or social needs of persons or families;
b. the rendering of charity to persons or families in distress;
c. the prevention of social distress or destitution of persons
d. the provision of funds for legal aid;
e. the prevention of cruelty to, or the promotion of the welfare
f. such other objects as may be prescribed;
g. the collection of contributions for any of the foregoing..."
This example gives a flavour of how the language of the 19th
Century lives on in legislation across the world. That is one problem: the
language is outdated. It also illustrates how legal definitions, however
outdated their language, do nonetheless tend to be broad enough to allow many
NGO activities to be carried out, through terms such as "such other objects...".
But where the purposes of charitable or welfare organisations
are thus generally defined, as they are in many countries, they tend to permit
objectives, activities and organisations which some feel should not be within
the realm of NGOs. In some countries these may include proselytising religious
organisations and purely educational bodies, so that private schools can be
registered as charities. Yet even such broadly-framed law can exclude many
current NGO purposes and activities. Such terms as "other purposes beneficial to
the community" or "such other purposes as may be prescribed" are open to
They can therefore in practice be as restrictive as the
statements in some laws which enable administrators to disallow (to take the
words used in one country's laws) "such other bodies, associations or
institutions as may be prescribed".
One example of how even the enabling catch-all of "other
purposes beneficial to the community" produces restrictions is that the creation
of jobs or generation of income, even when these are to be done within
non-profit forms of organisation, is not allowed as a charitable purpose in part
of one country, yet is allowed in another part, where charitable law is
administered and interpreted differently.
The laws of some countries use more specific statements. In one
country for example no fewer than 27 different specified types of permitted
"charitable purpose" are set out in the relevant legislation, passed in 1985.
The legislation nonetheless permits charities in such fields as the "provision
of schools, colleges, universities and other like institutions" and "the
maintenance of the efficiency of the armed forces and the police force and their
This is not to single out particular countries for praise or
criticism, but to illustrate that the law does not reflect the current NGO
reality and causes confusion. The problem is that there are no laws which are
based upon the definition of NGOs set out in this report. In consequence some
legitimate NGOs and activities may not be recognised, and, conversely, some
illegitimate ones are permitted.
Many other problems and confusions regarding the laws under
which NGOs operate have been identified. These include:
- the ambivalent or restrictive attitude the law in many
countries has towards the realities of the control and management of NGOs, and
especially of participatory organisations.
Charity and welfare organisation law frequently vests
responsibility for the control of NGOs in a Board or committee of nominated,
worthy individuals who oversee paid staff or volunteers, who in turn attend to
the needs of what are often termed the beneficiaries. It thus broadly favours
the private form of NGO. The reality of such practices as empowerment of those
served, and of participatory forms of control and management is not reflected,
or in some cases the law often does not allow for them and even forbids them.
Thus it can restrain NGOs from adopting the activities, structures and systems
of management and control which they feel most truly reflect their objectives.
- the ambivalent or restrictive attitude the law has towards the
more political activities of NGOs. As noted previously it is possible to
distinguish between that form of political activity which emerges from NGO work
and that form of political activity which is usually termed "party politics". At
present, however, no example was found in which the law and the manner in which
it is interpreted reflects this. the changes in the ways NGOs secure their
income. In the charitable past, such income came from grants and donations,
including directly from the public. It was not, in other words "earned". Now
many NGOs derive income from payments for services rendered under contracts and
from trading. Again, the change is not adequately reflected in many laws: while
they commonly do not forbid trading by NGOs, they often permit it only to a
limited extent. in some countries there are no laws regarding NGOs.
In others the laws apply only to certain types of NGO, while
some leave the status of NGOs unclear.
- in some countries the laws are or have at times been very
restrictive. In some cases they disallow the existence of all forms of NGO. In
others there are demanding legal, registration, regulatory and other
institutional requirements that NGOs must satisfy. For example, some require
separate registration procedures for organisational purposes, for tax purposes,
and for purposes of obtaining foreign funding, currencies and imports. In some
countries NGOs have to satisfy the requirements of both national and
- in some other countries, at the opposite extreme, the
requirements are relatively undemanding, or even non-existent. This makes it
easy for unscrupulous or ambitious individuals to establish fraudulent NGOs and
for organisations which are not NGOs to represent themselves to be