Review of the Legal Framework regarding the NGO sector in Mauritius

Pierre Rosario DOMINGUE

Chief Executive Officer

Law Reform Commission

Thursday, November 16, 2006

1

Research Methodology

• Legal Research– International Law– Constitution of Mauritius– Laws, regulations relating to NGO Sector– Court decisions affecting NGO Sector

• Field Research– Interviews with Stakeholders– Government bodies / NGO representatives / local and

international donor organizations

Definition: What do we mean by “NGO”?

• NGO = non-governmental organization dedicated to a not-for-profit mission

• Includes multiple organizational forms:– Associations (whether registered or informal groups)– Youth clubs / organizations– Sports clubs / organizations– Nonprofit companies– Charitable trusts– Waqf trusts– Certain organizations established by Act of Parliament

• Excludes some civil society organizations:– Political parties– Trade unions as regulated by the Industrial Relations Act– Cooperatives

Importance of Legal Framework

• To ensure that fundamental rights and freedoms (freedom of association) are made real

• To ensure groups can pursue wide range of legal goals, affirming stability, tolerance, pluralism

• To empower NGOs to meet social and community needs and public benefit and to fill the gaps in government services

• To ensure greater trust and cooperation between Government and NGO sectors

• By promoting civil society, democracy and stability, to strengthen the development of economic prosperity and a market economy

Importance of Legal Framework

• To define NGOs clearly (as distinct from government and from for-profit companies)

• To facilitate the establishment and registration of NGOs• To ensure integrity and good governance of NGOs:

internal standards• To ensure minimum standards of transparency and

accountability: external supervision• To ensure reasonable opportunities for financial

sustainability• To create a framework for meaningful NGO/Government

cooperation

Standards of Assessment

• Good regulatory approaches: Compliant with international law and “best practices”

• Problematic regulatory approaches: Divergent from “best practices” and not responsive to government/NGO concerns

Recommendation #1

• Introduce Legal Distinctions between Different Kinds of Organizations– Distinguish meaningfully between large and

small associations, which will trigger distinct regulatory treatment

– Provide for meaningful charitable status, with clear criteria and procedures, benefits and obligations

Recommendation #2

• Streamline Registration Process for Associations– Introduce time limits for government review of

registration applications (ex: 30 days)– Introduce simplified process for amendments

to governing documents (notification for non-substantial changes, approval within time limit for substantial changes)

Recommendation #3

• Improve the Transparency and Accountability of Associations– Ensure register of associations is genuinely

and easily accessible– Eliminate expenditure limits– Impose graduated reporting/auditing

requirements (based on size of association)– Include additional provisions relating to

conflict of interest, duties and liabilities of office bearers

Recommendation #4

• Improve Fiscal Framework for NGOs Engaged in Charitable Activity– Provide for clear definition of charitable status– Provide for clear procedures to attain status– Provide for clear benefits attached to status– Provide for accompanying transparency and

accountability requirements

Recommendation #5

• Improve Fiscal Framework for NGOs Engaged in Charitable Activity– Provide framework for financing of NGOs

Recommendation #6

• Elaborate and Implement Comprehensive Policy for Improved Government / NGO Cooperation– Unilateral government policy statement

toward NGOs or bilateral agreement with framework for cooperation

– To include issues such as communication, consultation, funding

Recommendation #7

• Technical assistance to law-drafters on specific changes

• Improved capacity for government staff to ensure smooth implementation of legal framework

• Education for NGO sector on rights and responsibilities under legal framework

Conclusion

• Gap between law as written and implementation

• Need for law Reform though Legal Framework Consistent with good regulatory practice in many ways