Enabling legal conditions related to the registration of CSOs are related to the right to seek legal personality and to register; clear, undemanding and non-discriminatory requirements of registration with the right of appeal; speedy process of registration and independent registering authority with limited discretion to decide on the right to register.
The Right to get registered
Where registration is a process whereby CSOs attain their legal existence75 or other
benefits such as tax concession, the law needs to ensure that the rules governing registration facilitate the process of registration. Freedom of association dictates the right to form CSOs and the right to seek and to obtain legal personality. Thus once the conditions of registration are fulfilled registration should be automatic since the process of registration should serve as a process to facilitate but not impede the freedom of association. Hence the denial of registration, delay in registration or cumbersome procedures for registration is deemed as violation of the freedom.76
The right to be formed and to have legal personality entails the protection from unwarranted discretion of authorities to determine the formation and acquisition of personality. Thus for example the required documents for registration should be clearly defined and be limited to the principal governing documents such as the constitution or statute, bylaws or articles of association. These documents in addition to providing relevant information for third parties 77 also avails the opportunity for authorities to check the legality of the intended purposes of the organisation. Any other additional requirements for registration if at all necessary should also be based on ‘clear and
objective’ criteria so that discretional measures will not affect the existence and the independence of CSOs.78
75 This refers to the case where mandatory registration is required for CSOs existence as in the case of Ethiopia (Charities and Societies Proclamation No 621/2009, Article 64 (2) and 65 (4) ) , Zimbabwe (Zimbabwean Private Voluntary Organisations Act, Article 6 (1) (a) and (b) , Uganda (Republic of Uganda Non-Governmental Organisations Registration Act (Amended 2006), Article 2 (5) and (6) , Kuwait (State of Kuwait, Law 24 of 1962, Article 2. For a comparison, see Paragraph 28 of the Council of Europe’s Recommendation CM/Rec (2007) 14 on the legal status of NGOs in Europe.
76 See Sidiropoulos above n 20.
77 Public Interest Law Initiative, Enabling Civil Society: Practical Aspects of Freedom of Association,
source book 89 <http://pilnet.org/public-interest-law-resources/30-enabling-civil-society-practical- aspects-of-freedom-of.html> accessed 14 April 2015.
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Once CSOs are registered enabling legal conditions demand that its existence is protected for perpetuity. The registration process should thus be limited only as a process to facilitate the rights of individuals to form CSOs as a means of exercising their freedom to associate. Thus there should not be any process of repeated re- registration unless the organisation has made major amendments in its bylaws for instance regarding its purposes or structure; or the laws governing CSOs are changed and conditions demand the same.
Clear, undemanding and non-discriminatory registration requirements
A law will be enabling if it ordains that the registration process is undemanding and impartial. It therefore should be un-bureaucratic with no or limited discretion of authorities, expeditious and inexpensive to the extent that is possible and practical.79 The law itself that governs the registration process should also be well-defined with the utmost level of precision that avoids vagueness and ambiguity not to leave unwarranted discretion for decisions by authorities. Furthermore, the law must give CSOs an opportunity of a day in court to challenge the decisions of the registering authorities.
Expeditious registration process
As legal personality is the most important expression of freedom of association that enables individuals to jointly pursue a common interest, the facilitation and promptness of the process is just as important as the acquisition. An enabling law thus needs to ensure that the process of registration is not lengthy.80 It needs to provide the maximum time that the registration decision should take as it would otherwise expose CSOs to the exercise of the discretion of authorities and compromises their independence. Thus, there needs to be a prescribed time limit within which the responsible state agency should decide the application for registration. A law will be more enabling if it clearly provides that failure to decide within such prescribed period should be treated as a grant of legal personality with no additional requirements.81 This
79 Council of Europe’s Recommendation on the legal status of NGOs in Europe CM/Rec (2007) 14, s IV 28-29; See also, Leon Irish above n 62 at 26.
80 Richard Fries, ‘The legal Environment of Civil Societies’ in Helmut Anheier and others (eds), Global
Civil Society 2003 (LSE 2003) 221.
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is an important procedural guarantee for the exercise of the freedom of association since otherwise if CSOs registration would depend on the discretion of authorities, the existence and the autonomy of CSOs would be compromised. The right of an automatic presumption of registration is nonetheless not practical, if the purpose of registration is not to attain legal personality but to be qualified for some benefits as tax concessions.
Inexpensive Registration Fee
Registration fee should not pose a serious obstacle for the registration of CSOs. An enabling law must therefore ensure that the registration process should not demand unreasonable application processing fee. This is particularly important in jurisdictions where registration is mandatory, since the unaffordability of registration should not deny one to exercise one’s freedom of association. Unaffordability will also contradict the ‘universality’ of the freedom of association. Although the freedom to associate is a right that must be guaranteed to ‘everybody’ irrespective of the economic status or otherwise, the imposition of an unreasonable registration fee would systematically deny the rights of those people who are economically disadvantaged. Yet perhaps, the formation of CSOs is particularly relevant for those groups, from the democratization perspective, as the right to associate would offer them the chance to join hands and pool their limited resources to set the imbalance in interest representation influenced by money politics. Expensive registration fee will also generally deter the formation and the flourishing of CSOs. Moreover, in order to avoid subjectivity and partiality, the amount also needs to be predetermined and made known to the public to enable individuals make an informed decision before they start out the formation of CSOs.
Independent and Accountable Registering Authority
One of the enabling conditions for the registration of CSOs and their autonomous operation is the existence of a registering authority, which is transparent, efficient and independent of the government. The independence of the authority from the executives will enable CSOs engage autonomously. The most enabling legal approach is the establishment of a single specialised regulatory agency whose staff develop appropriate expertise and whose sole task is regulating CSOs. Such a specialised agency eliminates all too frequent inter-ministerial conflict and inconsistency. In addition, by developing a centralized expertise it helps ‘improve the understanding of the law affecting CSOs and enhances the professionalism of civic organisations by
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offering courses and training sessions.’82 This model is adopted in England and Wales where an independent specialized agency- The Charity Commission regulates the activities of Charities. Establishment of a specialised independent agency that may be constituted of representatives from government, CSOs and the public at large also ensure the continuity of policy despite changes of party. 83
Thus, although it is not necessarily the only way, the registration and regulation of CSOs by specialized regulatory agency is deemed as a sound model. It is also important that its decisions should be subject to judicial appeal.84 Regulation by a specialised
agency under a court review system facilitates the coordination and continuity of policies made by the executive while ensuring political insulation and unwarranted intrusion of its decisions on the rights of CSOs existence and engagements. Thus, an enabling legal environment for the registration of CSOs requires the establishment of a specialized registration body and a well-functioning independent court that could entertain appeals from the decision of the registering authority.
All these enabling conditions for registration are crucial since the process of registration that is unwarrantedly demanding and subjective affects the potential role that CSOs can play in democratization. Firstly, the demanding registration procedure discourages the formation of Charities and Societies and thus limits the growth of the social and political capital that could help the process of democratization through diverse interest representation and the nurturing of civic and democratic values. Secondly, the more vague and subjective the registration process is with unrestrained discretion of authorities, the more it risks the inherent autonomous quality of the sector that is indispensable for the democratization process. When the registration process highly impinges on the autonomy of CSOs, their capacity and role in holding the state apparatus accountable becomes doubtful. Moreover, if the right to form and the right to attain legal personality are left to the discretion of authorities, the registration process could be used as a screening mechanism for the state to filter out CSOs with a potential of influencing or challenging state action from entering the public sphere.
82 Leon Irish above n 62 at 33.
83 Robert Baldwin and Martin Cave, Understanding Regulation: Theory, Strategy and Practice, (Oxford University Press 1999) 7.
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