Why NGO registration may fail

Why an application for registration of an NGO in Uganda may be declined

The Bureau may refuse to register an organization for several reasons among them

(i) Where the objectives of the organization as specified in its constitution contravene the law.

(ii) Where the application doe not comply with registration requirements.

(iii) Where the applicant has given false or misleading information in the application.

What is an NGO?

What is a Non Governmental Organization (NGO) in Uganda?

A Non Governmental Organization (NGO) in Uganda is a legally constituted organization that may be a private voluntary grouping of individuals or associations established to provide voluntary services to the community or any part thereof but not for profit or commercial purposes. An NGO must be registered by the National Bureau for Non Governmental Organisations in accordance with the law. Additionally, an NGO must have a permit issued by the Bureau which mandates it to operate in a given geographical area and to carry out activities specified in the permit. It is illegal for an organization (NGO) to operate in Uganda with out a permit issued to it under the Act.

National Bureau for NGO Board

The Board of Directors of the National Bureau for Non Governmental Organisations

The Bureau has a board of directors as its governing body, appointed by the minister with the approval of cabinet. The board is constituted of a chairperson, vice chair person, two representatives from the Non Governmental Organisations Sector and three other persons who must be citizens of Uganda, and of high moral character with proven integrity. The board has committees and sub committees that may be assigned functions for efficient performance of its functions. 

The bureau also has management staff like the executive director, secretary and other staff. The Board members tenure is for only 3 years and are eligible for re election for another term.

Staffing of an NGO and employment of non citizens

Staffing of an NGO and employment of non citizens in Uganda

The law requires every organization to;
Submit to the Bureau a chart showing its organizational structure at the time of applying for registration.

• Indicating its foreign staff requirements 
• The period for replacement of foreign staff with qualified Ugandans. 
• Comply with Ugandan employment and labour laws. 
• Not employ a non citizen unless that person has been cleared by the Government of Uganda. 

The process of clearance requires the organization to forward to the Uganda government through the Ugandan Diplomatic Mission in that country the following for consideration of their suitability to work in Uganda;

Special obligations of an NGO operating in Uganda

Section 44 outlines the special obligations of NGO that an organization shall;-

a) Not carry out activities in any part of the country unless it has received the approval of the DNMCs and Local Government of that area and signed a memorandum of understanding with the Local Government to that effect.

b) Not extend its operations to any new areas beyond the area it is permitted to operate unless it has received a recommendation from the Bureau through the DNMC.

c) Co-operate with local councils in its area and the relevant DNMC and SNMC.

d) Not engage in any act which is prejudicial to the security and laws of Uganda.

e) Restrict its operations to the area in which it is permitted to operate under the permit.

f) Not engage in any act which is prejudicial to the interests of Uganda and the dignity of the people of Uganda.

g) Be non partisan and shall not engage in fundraising or campaigning to support of oppose any political party or support or propose to register a candidate for a political office.

h) Have a memorandum of understanding with its donors, sponsors, affiliates, local or foreign partners specifying the terms and conditions of ownership, employment, resource mobilization for the organization.

Self regulatory body for NGOs in Uganda

The Act allows NGOs to from a self regulatory body for purposes of exercising regulatory authority over them. Two or more organizations may come together and form a self regulatory body which must be registered with the Bureau. The organizations must agree that the body will regulate them and that they will abide by a set code of conduct, rules and procedures.

Registration with the Bureau is by way of application accompanied by a resolution of each of the organizations forming part of the body stating its willingness to be part of the self regulatory body and a code of conduct of the body. The code of conduct is adopted by a special meeting of the body. The body also has the liberty to adopt its own structure, rules, procedure for efficient administration. The body may also adopt self regulatory mechanisms that include rules, standards to govern the organizations.

Revocation of the permit to operate an NGO by the Bureau

The Bureau has powers to revoke the permit to operate an NGO where the organization does not operate in accordance with its constitution; or where the organization contravenes any of the conditions or directions specified in the permit.

Before the permit is revoked the Bureau must notify the permit holder and ask such permit holder to show cause why the permit should not be revoked. Where the Bureau revokes the permit, it must notify the permit holder and state the reasons for revoking the same. A permit holder whose permit has been revoked has the option to re apply.

Renewal of the permit

An organization is required to apply for renewal of the permit within 6 months before the expiry of the same. The Bureau may renew the same upon being satisfied that the organization has complied with the requirements (conditions and directions) in the previous permit.

It is also an offence for an NGO to operate without a valid permit s. 32 (6). The law requires that where an NGO’s permit expires and such NGO continues to operate without renewing the same, it is an offence that attracts pecuniary sanctions of a fine.

Regulatory Framework for NGOs

Regulatory frame work and regulatory body for NGO’s in Uganda?

(a) Regulatory Framework: Non Governmental Organizations (NGOs) are regulated by a legal regime of namely;

i. The Non Governmental Organizations Act 2016. This is the principal legislation on NGO’s in Uganda. The Act was recently passed by parliament and assented to by the president on 30th Jan 2016. S. 56(1) repealed and replaced the Non Governmental Organizations Act Cap 113.

ii. The Non Governmental Organizations Regulations SI NO 19/2009. These Regulations are saved under s.56 (2) of the 2016 Act which provided inter alia that the regulations shall remain in force in so far as they are consistent with the Act until expressly revoked by statutory instrument under the Act. The regulations provide for the procedure of implementing the parent Act. 

(b) Regulatory body

National Bureau for Non Governmental Organisations

The 2016 Act creates the National Bureau for Non Governmental Organisations as a body responsible for regulating the operations of NGOs in Uganda. The Bureau which is a new creature introduced by the Act replaced the Non Governmental Organizations Registration Board for all intents and purposes. 

Section 57 vested all rights and obligations of the Board into the Bureau, (including property, assets, money on board account, contracts, agreements, undertakings, securities, any proceedings etc) and former employees of the board continued in office as employees of the bureau on similar terms and conditions.

This bureau is established as body corporate with perpetual succession, common seal, power to sue and to be sued, purchase and hold property, enter into contracts and to do all lawful things a corporate body is capable of doing. The Bureau also has branch offices at every district. 

Registering an NGO in Uganda

Registration of Non Governmental Organisations in Uganda

Applications are made to the National Bureau of Non Governmental Organisations. This application form is addressed to the Secretary of the Bureau and contains the following;

(a) Name of the Organization.

(b) Country of origin.

(c) Proposed physical address.

(d) Telephone.

(e) Particulars of any affiliated organization whether within or outside Uganda.

(f) Objects of the organization.

(g) Classes of persons to whom the organization is open.

(h) Present number of members.

(i) Tittles of officers of the organization.

(j) Names, occupations and addresses of present or proposed officers of the organization.

(k) Sources of funding.

(l) Property (if any) and the manner in which it is held, acquired, or vested.

(m)Bankers of the organization.

(n) Any privileges, immunities or exemptions requested by the organization from government.

(o) Names, signatures and passport size photographs of the promoters.

(p) The form must be dated.

This form must be accompanied by

A. A certificate of incorporation (this applies where the organization is an already legally registered entity e.g. a company limited by guarantee).

B. A copy of the organization’s constitution.

C. A specification of the area of intended operation of the organization i.e. the geographical area, field of operation e.g. health, education, gender and sexuality, etc

D. A valid reservation of the organization’s name by the registrar of companies.

E. A chart showing the organizational structure of the organization.

F. A work plan and budget for the 1st year of operation.

G. Payment receipts for registration fees.

H. For local / indigenous organizations (NGOs wholly controlled by Ugandan citizens),they must additionally have ;

(i) A written recommendation to the Bureau by two sureties.

(ii) A written recommendation by the Senior Assistant Secretary (chairperson) of the SNMC of the area where the organization intends to operate.

(iii) A written recommendation by the RDC.

(iv) Where the organization intends to operate through out Uganda, a written recommendation by at least two of the above.

Upon compliance with the above requirements, the Bureau then registers the Organization and is issued a certificate of registration as NGO with a registration Name, Number and date.

Once an organization is registered, it remains so registered unless its registration is cancelled, voluntary deregistered or if it is wound up.

Registering an NGO outside Uganda

Registration of Non Governmental Organisations incorporated outside Uganda

A Non Governmental Organization registered outside Uganda may lawfully carry out its activities in Uganda as such as long as it is registered with the National Bureau of Non Governmental Organisations in Uganda. Registration is by way of;

a) an application in Form A accompanied by;-

b) the prescribed fees;

c) a certified copy of the certificate of registration of the organization from the country of incorporation,

d) a certified copy of its constitution, or charter or document governing the organization.

Where the organization fulfils these requirements, the Bureau is mandated to issue it a certificate of registration and a permit.

Permit required to conduct activities of an NGO in Uganda

Application for a permit

The law is express under s.31 that an NGO shall not operate in Uganda without a valid permit issued to it by the Bureau for that purpose.

An organization is required to apply to the Bureau for the permit. The law doe not however prescribe the form of application. Under the repealed Act, the permit was issued together with the certificate of registration. The permit may be issued within 45 days of application. It is issued with conditions or directions for a period not exceeding five years at a time. 

Where an organization is given a permit to operate in a given geographical area in respect of a given field of operation, it must limit its operations within such boundaries and where such organization would like to extend or shift its operations, it must apply to the bureau for review of the permit.

It is an offence for an NGO to operate without a permit issued by the Bureau for that purpose. The section which makes this prohibition does not expressly criminalize such act but such act may be captured under the general provisions on offences under the Act in particular s. 40(1) (d) which provided that an organization or a person commits an offence if they engage in any activity that is prohibited by the Act.

Offences under the Act

They are provided for under S.40 (1) and they include;

a) failure or refusal to produce to the Bureau a certificate, permit, constitution, charter or other document relevant for the purposes of the Act.

b) Knowingly giving false information for the purpose of obtaining a permit or other requirement.

c) Operating contrary to the conditions/directions specified in the permit.

d) Engaging in any activity prohibited under the Act.

Punishment for the above offences is a fine not exceeding 72 currency points (currency point is equivalent to 20,000/=) (1440, 000/=) or imprisonment sentence for a term not exceeding 3 years or both.

In case of a continuing offence, a fine not exceeding 15 currency points (300, 000/= ) per day of default.

Staff of the National Bureau for NGOs

Management and staff of the National Bureau for Non Governmental Organisations

   (a)            Executive director- appointed by the Minister on recommendation of the Board.

ED is the chief executive officer of the Bureau subject to general supervision and control of the Board.

His/her functions are to be responsible for

1. Day to day operations of the Bureau.
2. Management of the funds of the Bureau.
3. Administration and management of the property of the Bureau.
4. Supervisions and control of the officers of the Bureau.
5. Keeping a register of registered organizations (NGOs).
6. Implementing the decisions of the board.
7. Reporting to the Board on the operations of the bureau.
8. Certifying documents.

-etc

(ii) Secretary of the Bureau

1.       Is the principal legal advisor to the board; and responsible for;-
2.       Arranging business meetings
3.       taking minutes
4.       keeping records of decisions

(iii) Other staff/employees

Inspection of NGOs

Inspection of NGOS

An inspector from the Bureau may at any reasonable time inspect the premises of an NGO to ensure that the organization is in compliance with the law. An inspector is designated by the Bureau as such and his/her appointment must be publicized in the Gazette.

The inspector has powers to investigate any matter for purposes of compliance with the Act and where necessary subject it to prosecution by the DPP. (Under Article 120 of the constitution which gives the DPP powers to institute criminal prosecutions against a person or authority in any court of competent jurisdiction).

Powers of the NGOs National Bureau

Functions and powers of the National Bureau for Non Governmental Organisations
1. Functions
Among its functions the bureau is mandated to;-
(a) Advise the minister on policy relating to the operations of NGOs.
(b) Formulate, develop and issue policy guidelines for DNMCs and SNMCs for the effective and efficient monitoring of the operations of NGOs.
(c) To establish branch offices of the bureau.
(d) To formulate and develop policy guidelines for DNMCs and SNMCs.
(e) To make recommendations to relevant authorities with regard to employment of non citizens by an NGO; whether an NGO should be exempt from Tax; and other duties, privileges and immunities to be accorded to an NGO.
(f) To coordinate the establishment and functions of the National Non Governmental Organisations Consultative and dialogue platform.
(g) To establish and maintain a register of Organizations.
(h) To consider applications for issuance and renewal of permits. Etc.
(i) Perform any other functions under the Act or as may be directed by the minister.

Finances of the Bureau

Finances of the Bureau

Finances are sourced from money appropriated by parliament for that purpose.

•   All non tax revenues collected by the bureau are remitted to the consolidated fund.
•   The Bureau must keep proper books of accounts
•   Accounts are audited every financial year by auditor general
•   The Bureau is required to submit annual reports to the minister who forwards the same to cabinet.

Exemption of organizations from registration

Exemption of organizations from registration and permit requirements in cases of emergency

In emergency situations, the Minister in consultation with the Bureau may exempt an NGO from the requirements of registration and permit. Such exemption does not include fees. Such an organization is issued a provisional permit by the minister to operate for a period not exceeding six months.

NGO Monitoring Committees

District and Sub County Non Governmental Organisations Monitoring Committees

These are established at district and sub-county level respectively and are supervised by branch offices of the Bureau.

Dissolution of an NGO in Uganda

Dissolution of an NGO in Uganda

Under the repealed Non Governmental Organizations Registration Act cap 113 section 13; as amended by section 10 of the Non Governmental Organizations Registration (Amendment) Act 2006; the minister was empowered to make regulations among others prescribing the manner in which Organizations shall be wound up when they cease to operate. The procedure for dissolving NGOs was therefore not elaborated in the Act but in the regulations. 

Regulation 17 of the Non Governmental Organisations Regulations of 2009 regulations provided for dissolution of Non Governmental Organizations by way of voluntary dissolution where the members were required to pass a resolution according to the constitution of the organization requiring the organization to be dissolved. Dissolution would then follow in accordance with the dissolution clause in the constitution. Thus the manner in which an organization could be wound up/ voluntarily dissolved was laid out in its constitution. The assets and liabilities of the organization would then be dealt with in accordance with the relevant provisions of its constitution.

Criticism of the Act

Immunities of the Directors, officers and employees of the Bureau.

Section 42 of the Act bestows immunity from liability upon the directors, officers and employees of the Bureau against liability arising out of any acts or omissions done in good faith in the exercise of the functions of the Bureau. This will give wide range of powers to officers and employees of the Bureau from the top up to the sub county level, including inspectors that they may abuse or misuse under this umbrella to curtail the operations of NGO assured that they cannot be held responsible for their actions because of the protection guaranteed under this provision.

Ambiguity in respect to special obligations of NGOs.

Section 44 of the Act imposes special obligations on NGOs. It bars these organizations from doing anything that would be deemed prejudicial to the security of Ugandans and; the interests of Uganda; and the dignity of Ugandans. Contravention of the above amounts to a criminal offence under s.40 (1) (d) attracts penal sanctions under section 40 (2). This provision has been criticized as being vague for it does not meet the constitutional standard that requires every criminal offence to be well defined. It is not clear what acts may be deemed prejudicial to the security of Ugandans and; the interests of Uganda; and the dignity of Ugandans.

Critics have noted that security reasons has been commonly used as an excuse to clamp down on organizations and has been viewed as one that will achieve the same purpose which the Anti-Homosexuality Act was untended to achieve. It has in fact been viewed as one way of re-introducing the Anti-Homosexuality Act.

Taxes payable by NGOs

Taxes payable by NGOs in Uganda

The Non Governmental Organisations Act which is the parent legislation on NGOs in Uganda is itself silent about taxation of NGOs. However, NGOs like any other organization are subject to the tax regime of Uganda.

Income tax

In respect to income tax, NGOs are charitable organizations and are exempt from payment of income tax. Under the Income tax act, income of an exempt organization is exempt from income tax. An NGO is an exempt organization under the Act. Income tax is that tax which is chargeable a persons income for a year of income. Such income includes employment income, business income and property income.

Customs duties

NGOs are also exempt from customs duties under the EAC-CMA which is the law that regulates customs in all the EAC partner states. Customs duty is that tax payable on imports or exports. With respect to imports, the specific tax payable is called import duty. It is illegal to remove goods from a customs area at the Boarder entry point before they are duly reported and cleared. An owner or authorized agent (declarant) must on arrival at the customs boarder entry point declare to a customs officer the goods imported within 24 hours of arrival. However, NGOs are exempt from payment of customs duty on importation of goods for purposes of their operations. S. 114 of the EAC-CMA exempts from customs duty goods and equipment imported by international and regional organizations with diplomatic accreditation or bilateral or multilateral agreements with the partner states of the EAC for their official use.

Annual returns to be filed by NGOs

Annual returns to be filed by NGOs in Uganda

• An NGO is required to keep accounting records of its income, expenditure, assets and liabilities.
• To draw up a financial statement within 6 months of the close of every financial year.
• Submit a report to the Bureau on its compliance with accepted standard of accounting practice and how they were applied in preparing the statement.
• Submit to the Bureau annual returns and a report of the audited books of accounts by a certified auditor.
• Declare and submit to the District Technical planning committee, the DNMC, SNMC of the area in which it operates estimates of income and expenditure, budget, work plan, information on funds received and the source of such funds.

Community Based Organizations are also required to submit to the SNMCs in their areas of operation annual returns, a report of the audited books of accounts by a certified auditor and to declare to the SNMCs their budget, work plan, information on funds received and sources of such funds.

Affiliated organizations

An affiliated organization is one which is formally or closely connected to or controlled by a nationally or internationally incorporated organization or group. Such an organization cannot lawfully operate in Uganda unless it is also duly registered under the Act.

Adjudication and appeals mechanisms

The Act provides for the due process of adjudication of disputes and appeals mechanisms by NGOs. A person aggrieved/ dissatisfied by the decisions of the SNMC may appeal to the DNMC. A person aggrieved by the decision of the DNMC may appeal to the Bureau. The decisions given on such appeal must be in writing. A person aggrieved by the decision of the Bureau may appeal to the Adjudication committee of the Bureau. The adjudication committee of the Bureau is appointed by the minister and constituted of: a chair person who must be an advocate of the High Court with not less than 10 years standing; a representative or the Organization; a representative of the Bureau and two senior citizens. The adjudication committee has powers to confirm, set aside, vary, or quash the decision in question or require the Bureau to revise or review its decision or make such order as may be appropriate in the circumstances. A person who is dissatisfied with the decision of the Bureau may appeal to the High Court.