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The Non-Profit Sector in the Context of Law in Development in Africa

Published online by Cambridge University Press:  27 January 2014

Ada Okoye Ordor
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Abstract

The non-profit agency typifies the organizational form for civil society activity and this very fact recommends it as a medium for development processes. This article applies the non-profit organization model to the study of law in development, by identifying ways in which non-profit associations of civil society serve as useful channels for development and describing how the law can enhance their contribution. By combining multidisciplinary perspectives on the role of the non-profit sector with selected law in development approaches, the article also constructs an analytical framework for the study of the legal environment of the non-profit sector in Africa. Furthermore, using illustrations from Africa, it draws out nuanced aspects of non-profit sector activity in the developing world, an exercise which is critical to any effort to redefine law in development scholarship in Africa to include its non-profit sector ally.

Information

Type
Research Article
Information
Journal of African Law , Volume 58 , Issue 1 , April 2014, pp. 45 - 70
Copyright
Copyright © SOAS, University of London 2014 

INTRODUCTION

The task of development in African countries is one which has been approached using different models through successive governments. Since government's goal is the welfare of the governed, government is generally perceived as being primarily responsible for development activity. While the business sector is often drawn into policy-making on commercial activity, one entity that remains a constant partner in development is the association of persons, in other words constituencies of civil society, represented by non-profit organizations. Typically, the non-profit organization is the legal and structural form of associational life. Civil society formations serve a variety of empowering, supporting and supplemental roles in the conceptualization and delivery of development programmes. For example, they serve as an information bridge or channel, articulating and transmitting government policies and programmes to target recipients. In transition processes in new democracies in Africa, they maintain a necessary countervailing position to political power. In these capacities, the non-profit sector plays a major role in keeping government accountable to citizens, by urging and monitoring government's performance.

This article starts with a description of the characteristics of non-profit organizations and then identifies certain peculiarities of the non-profit sector in Africa. This defines the context for a discussion on people-centred development models based on rights of participation in the section “Discourses in law in development”. This section highlights the forms of organized associational life through which various rights of participation are exercised. The article then considers the elements and structure of a facilitating legal environment for the non-profit sector. Several models are discussed, following which the article takes a closer look at a model with qualities which recommend it to the African situation. It is important to observe that many of the issues raised in this discourse are also applicable to developing countries outside Africa.

THE NOMENCLATURE OF THE NON-PROFIT ORGANIZATION

Non-profit organizations have been classified in numerous ways, including by area of operation, spread of activity, sources of funding, size and structure. However, the common denominator of non-profit organizations is the fact that they are not established for the purpose of making and distributing profits; where profit is made, it is applied to further the organization's purposes.Footnote 1

In addition to the non-profit-distributing characteristic, Salamon identifies four other defining features of non-profit sector organizations: self-governance; a significant degree of voluntary participation; public benefit purposes; and private status in the sense of being institutionally separate from government.Footnote 2

Non-profit organizations have also been categorized on the basis of the reason for their establishment or continued existence. In this respect, Douglas identifies three broad motives that could lead to the establishment of a non-profit organization. The first is a self-motivated interest which seeks the benefit of collective action for its protection and advancement through mutual benefit organizations such as professional bodies.Footnote 3 Nonetheless, the fact that some non-profit organizations exist primarily for the community of those who create and sustain them does not make them any less public-serving, as such associational representation reflects the “republic of republics” notion.Footnote 4

Another common motive grows out of altruistic concerns, as for instance when a group of wealthy people or people with access to funds set up a non-profit organization to provide housing for the poor. This type of non-profit agency is generally known as the public benefit organization.Footnote 5 The third motivation derives from the need to keep government alive to its responsibilities. In this case, instead of making private provision of housing for the poor, a political action organization or pressure group may be constituted to press for government action to meet this need.Footnote 6 In all three scenarios, a non-profit organization is the result.

A corresponding situation in a developing country context would be where a non-governmental organization (NGO) involved in community development is faced with a choice between service provision and advocacy for service provision. For instance, such an organization may have to choose between direct provision of basic facilities like primary schools for underserved areas and pressing for redress, engaging in focused advocacy to bring the attention of government to the lack of such facilities.Footnote 7 Either way, the NGO operates in a non-profit capacity.

In relation to functionality, non-profit organizations are generally perceived as easier to work with, and as providing services that supplement the resources of family and informal networks of friends and neighbours.Footnote 8 In terms of what they are not, it is understood that the legitimate use of the term “non-profit” excludes associations that are engaged in criminal activities and organizations that have the ambition to govern, such as political parties.Footnote 9

A default characteristic of non-profit organizations is generally identified as the dearth of regulatory controls. Whereas the public sector in most countries has codes of practice, and the business sector has a discipline-inducing framework of profit, competition and product quality, there are few countries where non-profit organizations have sought to broker agreements on self-regulation or offer indicators of expected quality in their work.Footnote 10 Where such indicators are found, they usually do not relate to any regulatory requirements on the quality of an NGO's work, but very often result from independent effort to demonstrate the efficacy of organizational projects.Footnote 11

The lesser degrees of accountability, sometimes inadequate management and record-keeping and poor personnel practices, highlighted in critiques of non-profit organizations, have also been described as a trade-off between accountability in the public sector, and flexibility and diversity in the private sector.Footnote 12

Yet another classification of non-profit organizations in developed countries divides them into three generations, based on events or factors leading to their establishment.Footnote 13 The first category includes organizations concerned primarily with relief activities, while organizations engaged in activities aimed at self-reliance and capacity building make up the second category. The third generation organizations are focused on global advocacy and education and, according to this view, this category emerged primarily to create a conducive environment for the first two to thrive.Footnote 14

The study of non-profit sector organizations presents certain challenges. One problem is a lack of differentiation of organizations, resulting in the lumping together of entities with very little similarity apart from their non-profit status. As Anheier observes, “the fact that the Ford Foundation and the Progressive Young Farmers' Association are both non-profit does not imply that they necessarily reveal comparable organizational behaviour or face similar dilemmas”.Footnote 15 This disparity is further highlighted by Welch when he makes reference to “a sense of invidious comparison” between indigenous and international non-governmental organizations, distinguishing the multi-billion annual budgets of agencies such as Human Rights Watch and Amnesty International, from those of smaller local organizations.Footnote 16 This heterogeneity has constituted a significant challenge to the study of the sector as a whole, as scholars prefer to focus on one or two types of non-profit organizations.Footnote 17

An even less investigated aspect of the non-profit sector is its employment structure and the attendant dynamics. In this regard, it must be noted that the sector is characterized by non-unionism, fixed term contracts, limited terminal or withdrawal benefits, and a measure of trans-national funding and networking activity. While non-unionist and trans-national employment have been studied within the commercial context, these elements remain virtually untouched in non-profit sector studies.Footnote 18

Invariably, non-profit organizations straddle virtually every field of human endeavour and, like the elephant in the Six Blind Men of Hindustan,Footnote 19 are defined in terms that suit the particular context in which they are perceived. For instance the same organization may be described as a civil society organization in one classification and as a public interest law firm in another, based on the range of issues covered by the organization and the parameters used in the classification models.Footnote 20

The discussion in this section has highlighted general characteristics of non-profit organizations relevant to the subject of this article. Other scholars have also identified more specialized and complex characteristics rooted in the economic structure of non-profit organizations, as compared to business establishments.Footnote 21 The next section identifies certain dynamics that shape, affect or influence the character of organizations within the non-profit sector in developing societies, using illustrations from African countries.

THE NON-PROFIT SECTOR IN AN AFRICAN CONTEXT

Various socio-economic and political factors account for the concentration of certain kinds of non-profit organizations in particular African countries. In Nigeria for instance, more than three decades of military rule since independence in 1960 led to the emergence of human rights organizations as the archetype of the contemporary non-profit organization. Organizations such as the Civil Liberties Organization and the Constitutional Rights Project were established to give a voice to the disempowered citizenry and were at the forefront of the resistance to military dictatorship in Nigeria from the mid-1980s to the late 1990s.Footnote 22 In South Africa, the Women on Farms Project is a non-profit organization dedicated to improving the lives of women who live and work on farms, particularly by equipping them to engage in proprietary farming. The organization emerged in response to the apartheid legacy of widespread rights abuses on farms and invokes the complement of socio-economic rights in South Africa's Bill of Rights in its work.Footnote 23

Some general theoretical assumptions about the non-profit sector are challenged by evidence from developing countries such as those in Africa. In particular, certain findings question the adequacy of theories constructed around a particular political and socio-economic reality to explain the origins of non-profit organizations in a different environment.

For example, the theory on non-distribution of profits is considered unsatisfactory in explaining the phenomenon of the non-profit sector in parts of the world where “competition” in the provision of public services is not necessarily between the non-profit sector and the business sector, as much as between the non-profit sector and government. In relation to the non-profit sector in Africa, and other parts of the developing world, “competition” may not be an appropriate term to use as services are grossly inadequate and unevenly spread in the first instance.Footnote 24 Further, the theory does not explain the wide variations in the type of organizations comprised in the non-profit sector in different countries.Footnote 25

Another critique challenges the narrow “ahistorical” focus which tends to see the presence of voluntary organizations in Africa as a recent development that has arisen in response to the socio-economic malfunction of African countries, rather than a phenomenon pre-dating many African states.Footnote 26 Another aspect is the failure to engage with internal and external changes in the organizational environment of non-profits or to consider the effect of the larger political economy within which they exist.Footnote 27

In African societies, the civil society construct is influenced by the predominance of kinship values which tend to obscure and restrict individual rights and liberties.Footnote 28 This African civil society is found in traditional ethnic organizations that promote civic values as distinct from “elite-controlled cosmopolitan groups that enjoyed communication links and proximity with foreign donor agencies”.Footnote 29

Further, significant developments in national economies have progressively carved out new roles for non-profit organizations. Around the end of the Cold War, many African governments shifted from centralized large-scale planning, often monopolized by the state, to a more decentralized system of development. This led to the rechanneling of development finance to voluntary organizations, and thus induced growth in non-profit development organizations.Footnote 30

Furthermore, the perception of non-profit organizations as having more relevance in meeting the needs of people who are not reached by conventional state public service delivery systems has been shown not to have “wholesale” application. While this may be true of some informal grassroots associations, it is not necessarily so in respect of many others. A case in point is a research finding which showed that, in carrying out their activities, some development NGOs did not show the cultural sensitivity acclaimed as a key strength of grassroots development organizations. Instead of nurturing local organizations within their indigenous context, enhancing existing projects, and involving target recipients in project formulation, they “instigated” projects and carried them out.Footnote 31 This study, involving a sample of communities in Senegal, Togo and Nigeria, ultimately questioned assumptions about the participatory character of certain non-profit development organizations.Footnote 32

A discourse on the growth of indigenous human rights organizations in Africa in the 1990s linked this phenomenon to an increased respect for the rule of law.Footnote 33 The study demonstrates how the opening up of political spaces created an impetus for rights promotion activities in ways that necessitated the setting up of dedicated human rights organizations.Footnote 34 This distinct political factor, which is quite common to the non-profit sector in the developing world, is not emphasized in traditional political theories on the origins and growth of the non-profit sector.

Similarly, the economic argument of efficiency in service provision by non-profit agencies as well as the political argument that non-profit organizations are immune to changing political tides have also been questioned. For example, in Mali, certain non-profit organizations were found to have been set up by people who simply found themselves unemployed, such as retrenched government workers and recent graduates unlikely to find employment in government or the business sector.Footnote 35 In this way, many non-profit organizations emerged primarily as an expression of the employment needs of people or “the result of local entrepreneurship that, for one reason or another, cannot be realized in other sectors of the economy”.Footnote 36 This finding is supported by the following statement on non-profit organizations in developing countries:

“… the sharp increase in resources directed to the NGO world has directly spawned many new organisations in Southern countries, and a new concept of ‘opportunistic NGOs’ has entered the language. Many of these new organisations are driven by the hunt for money and employment before anything else; they are often started by unemployed professionals, increasingly casualties of the brutal reduction of the state sector. They will operate as sub-contractors for any job, and have little inherent commitment to, or experience in, working with grass roots communities … They feed particularly off the increasing demand for INGOs to take over areas of basic service provision. They are a logical response to the presence of resources in a climate of increasing structural middle class unemployment. But they bring in very different qualities and relational aspects to the sector, and they are particularly vulnerable to donor pressures and agendas.”Footnote 37

It is also noteworthy that, quite often, local communities benefit from the presence of non-profit agencies in indirect and incidental ways as much as from the direct and deliberate activities of those agencies. In West Africa for instance, the peculiarities of insufficient and unreliable funding, delays in grant processing, personnel shortages and lack of planning were found to hamper the continuity of projects.Footnote 38 Rather “the majority of economic benefits seemed to derive from the NGO presence in the village as such … employment, construction … and only secondarily because of project results”.Footnote 39

Incidental to the study of the origins of non-profit organizations in African countries, but increasingly relevant to their existence and activities, is the tendency of authoritarian governments to take over the visible and politically relevant associations of civil society, while those which manage to remain “irrelevant” are tolerated by the authorities. A clear example of this was the brazen take-over of trades unions and professional associations by successive military governments in Nigeria through the proscription and curtailment of their activities by means of military decrees purporting to “streamline” their operations and prevent duplication.Footnote 40 This tendency of governments to exploit the agenda of civil society associations is however not exclusive to non-profit organizations in developing countries. In the developed countries of the west, the motley range of economic and social attributes of non-profit organizations routinely give politicians room to support those that fit into their critique and interpretation of the “welfare state in crisis”.Footnote 41 Nonetheless, abundant evidence exists to justify the observation that relations in developing countries between government and civil society are often, though not always, characterized by suspicion and antagonism.Footnote 42

Furthermore, western scholarship on the subject of non-profit organizations has not been homogenous. While American scholars have tended to focus on the role and contribution of voluntary organizations in a democratic society, European scholars seem to emphasize their function in serving conservative goals in the 19th century.Footnote 43

In one sense, theories on the non-profit sector are as varied as the organizations and activities within the sector and, while earlier theories may not offer a complete explanation of the origins and rationales for the existence of the non-profit sector in developing countries, they do resonate with the theme of private initiative which underlies much non-profit activity. Next this article examines certain theories of the role of law in development as a precursor to discussing the ways in which the law affects the development of the non-profit sector.

DISCOURSES IN LAW IN DEVELOPMENT

As observed by a senior UN official, “it has long been recognized that law and development have intricate interrelationships, that the law has a role to play in advancing development objectives, while the latter, in turn, may have an impact on the evolution and application of the law”.Footnote 44 Invariably, for development policy to achieve its goal of generating development, economic and political analyses need to create the foundation for an “appropriate legal regime”.Footnote 45 The intersection of law with development processes occurs at numerous points, a number of which have been identified by scholars of law in development. This section discusses two approaches in the law in development discourse: the alternative development approach and the basic needs approach. The discussion serves as a precursor to examining the place of non-profit forms of association in development.

The alternative development approach

In the alternative development theory, development must be by people, not only for them. People must participate fully in the decisions and processes that shape their lives. “Legal processes will normally succeed to the extent that they are not complex or arbitrary, are based on a system of consultation with the people affected by them and are realistic in their reliance on existing institutions.”Footnote 46 And “[p]eople must be mobilized and helped by support groups to use new legal rules and resources, as neither the legislature nor the judicial process will activate these resources on their behalf.”Footnote 47

Leading law in development theorists have focused much attention on the ways in which law, in its various forms and sources, impacts on development processes, concluding that, although it has the potential to promote self-reliance and a more equitable allocation of resources, it more often seems to perpetuate the cycle of poverty, exploitation and exclusion.Footnote 48 These outcomes influenced the human development approach adopted by the UN as a response to the shortcomings of the traditional equation linking development exclusively to economic development.Footnote 49 Going further, the UN Human Development Report 1995 identified four components of development to be productivity, equity, sustainability and empowerment. This approach is a departure from the modernization theory of development which presumed a predetermined linear economic progression common to all states, and which formed the centre of earlier theories of law in development as critiqued by Perry.Footnote 50 In this expanded definition, the equity component introduces the gender dimension, while the empowerment principle invokes participation in decision making by those to be affected by the decision. The sustainability factor reinforces the environmental imperative of pursuing development within the capacity of nature, while also emphasizing the importance of considering the effect of economic decisions on future generations.Footnote 51

Taking the position that state-managed development programmes are creatures of law as well as of political economy and ideology, Paul and Dias identify six areas in which law plays a major role. These are: the design and enactment of programmes; the creation of institutions to carry out development programmes; the selection and control of actors who exercise the powers given to these institutions; the articulation of these powers given to institutions and delegated to actors; the prescription of processes and procedures for the exercise of these powers; and the establishment of structures to review decisions made in the exercise of these powers and for securing accountability of actors, institutions and reform programmes.Footnote 52 Given that this analysis is based on state-managed development programmes, the role of the private non-profit organization in development is not specifically mentioned. Nonetheless, it does spell out aspects of the law that impact on development processes.

In respect of rural development, for example, a variety of legal sources are identified as affecting development programmes.Footnote 53 These include primary sources such as organic statutes, subsidiary legislation and constitutional provisions. Secondary sources include administrative rules and directives and unwritten principles of public law drawn from constitutional practice. Other sources could be international or judicial. International sources include human rights instruments, while judicial sources are constituted by case law.Footnote 54 This arsenal of legal regulations certainly seems to narrow the space for the efficient execution of development programmes. However, the creation of rights to participate in the formulation of development plans has the effect of re-opening that space. These participation rights go beyond the assumption that the parliamentary system of government provides vehicles for effective participation.Footnote 55 Indeed, government monopolization of the development process is perceived as antithetical to core concepts of participatory development.Footnote 56

To start with, a multiplicity of actors, not just government officials, is essential for the process of participatory development; reliance on governments to meet needs connected with the deployment of organizational resources on behalf of civil society is often unrealistic.Footnote 57 This observation by law in development scholars corresponds with the economic theories of government failure as a reason for the growth of the non-profit sector.Footnote 58 Further, the recognition in law and development theory of the importance of progressive tiers of associational activity for development resonates with the economists' postulation of multi-level government arising as a result of the unmet needs of communities.Footnote 59

Actors in participatory development include, at the international level, the major economic powers and international organizations and, at the local level, the private sector and the non-profit sector.Footnote 60 Indeed, non-governmental organizations are seen as better positioned for the task of providing organizational resources to grassroots organizations.Footnote 61 It is to this point that the principle of alternative development is anchored. The alternative development approach resonates with the principle that not merely the framework of government, but also “[d]evelopment must be by people, not only for them. People must participate fully in the decisions and processes that shape their lives”.Footnote 62 In this respect, the rights of people to participate in their development may be formulated around a variety of legal obligations. For example: a requirement may be created for legislative proposals to be publicized, with opportunities for public discussion in accessible fora; public commissions representative of the disadvantaged may be established to review programmes; popular organizations may be accorded formal recognition to be heard in ministries and other executive agencies where key policies are made; and rights of access to the media may be provided.Footnote 63

These are of course, not exhaustive, but are indicative of the ways in which avenues for the exercise of participation rights can be created by law and policy. Proponents of alternative development acknowledge however that “promises of participation - legal and otherwise - will do little to help the very people who are supposed to be empowered unless they enjoy rights to participate through organisations”.Footnote 64

In the alternative development paradigm, the first identified task of development efforts is therefore a twin one of helping people form their own organizations, and then helping those organizations play a much more pervasive and dynamic role in the design and administration of development. In this regard, people must be mobilized and helped by support groups to use new legal rules and resources, as neither the legislature nor the judicial process will activate these resources on their behalf.Footnote 65 The corollary in this approach is that “legal processes will normally succeed to the extent that they are not complex or arbitrary, are based on a system of consultation with the people affected by them and are realistic in their reliance on existing institutions”.Footnote 66 The picture which emerges is one which reflects the rights of people to form non-state organizations through which to engage in different dimensions of development, as well as the rights of groups to participate in the design and administration of development programmes and processes.Footnote 67 In summary, the alternative development theory highlights three ways in which the law impacts on the development process. The first is by establishing regulatory frameworks for development programmes, the second by creating and protecting rights of participation, and the third by developing a conducive environment for formal civil society organizations to take root and grow.

Basic needs theory

The basic needs theory is similar and linked to the alternative development model in the sense that it promotes people centred development over economic development models which are often not considered comprehensive enough. This view involves some co-ordination between economic objectives and the constitutional order of a developing society. The basic needs approach studies the effect of economic growth on marginalized groups of people. It commences with the formulation of development policy by analysing the precise character of economically and socially underprivileged groups and continues by asking why the needs of such people are not met. The result is a highly decentralized planning process, based on the local community, involving local participation and answering local problems.Footnote 68

In theorizing on the subject, Slinn refers to the transformatory function of development policy and law in his analysis of French jurisprudence on law in development, which advocates that a body of law, which historically may have appeared as an instrument of oppression, may now serve as an instrument of social and other reform, promoting the “basic needs” of the disadvantaged.Footnote 69

A “basic needs” perspective may demand, in relation to a workplace community, for example, the observance of essential health and safety standards, the protection of wages, the freedom of association, and the provision of housing and public utilities.Footnote 70 The basic needs approach avoids some catches in classical legal analysis, such as the practice of placing the general needs of business and economy above basic human needs in economic law.Footnote 71 This issue is one which scholars from the developing world often attempt to highlight in development discourse, as described in the following statement: “[i]t is clear … that development is a total experience which impacts on all aspects of national life. It is much more than economic development to which it is reduced in daily discourse. Economic development is at best a means to an end, that is, using the benefits of economic development to ensure the qualitative transformation of the society and its peoples.”Footnote 72

One might add that it is at this stage of the development process, between the achievement of economic gain and its use for transformation, that much non-profit activity is located. The spirit of the basic needs approach is captured in the UN Charter which calls on member states to promote “higher standards of living, full employment, and conditions of economic and social progress and development”.Footnote 73 This provision and other similar ones contained in the Universal Declaration on Human Rights are described as “seeds of economic, social and cultural rights”.Footnote 74 Seeds, which, it might be added, are watered by the basic needs approach to development.

Further, the basic needs theory bypasses the traditional separation between international and national jurisdiction, which can work against the adoption into national law of the norms of “development law” originating in international instruments.Footnote 75 In this way, the basic needs approach operates as a political theory of justice, representing an attempt to build a new political consensus from which a new kind of law can emerge.Footnote 76

People's needs for resources and other forms of help in making self-reliant judgments at individual and organizational levels are also seen as basic needs, and “the rights of some people to seek and others to provide resources to satisfy these needs must be seen as essential human rights, which make possible the realization of other human rights”.Footnote 77 The thesis of the basic needs approach is summed up as follows:

“While the ‘basic needs’ theory accepts that class relations, founded on international capitalist relations of production, are a cause of underdevelopment, it does not accept the Marxist position that such relations are immutable and that the destruction of the capitalist system is the only solution. Instead the ‘basic needs’ approach is reformist in nature and argues that if development occurred within a politically accountable, pluralistic and decentralized form of state, a free market economy could be controlled for the gain of the poor.”Footnote 78

In summary, it is submitted that the basic needs theory of law and development may be described as the other side of, or at least, a stage in the alternative development model, compatible with the process of people-centred development. The next section highlights the ways in which the law in development discourse recognizes the role and value of the non-profit sector in development processes.

LAW, DEVELOPMENT AND THE NON-PROFIT SECTOR

As the discussion so far shows, theories of law in development are not primarily directed at explaining why people form non-profit organizations. Rather, they identify associational life as an essential by-product of people's quest for, and right to, development. This right was further entrenched by the UN Millennium DeclarationFootnote 79 which is described as having adopted human development as the true measure of the progress of nations and as the preferred development outcome.Footnote 80 “Perhaps recognizing that democracy is a mere rule of majority over minority, the Declaration provides also a reference menu of values thought as ‘essential’ in the 21st Century. These are freedom, equality, solidarity, tolerance, respect for nature, as well as shared responsibility.”Footnote 81

From this perspective therefore, grassroots civil society associations are not denoted by their non-profit status, as much as by the solidarity they offer to their members and communities. A generalized categorization typical of the way in which the law in development literature brushes at the subject is given by Paul and Dias in classifying local associations. They observe that “some are small and rooted in tradition; some simply provide organizational forms for mutual self-help, savings or construction of desired community facilities; some have evolved into vehicles of protest; some are in overt opposition to governments of the day”, and conclude that the law works through these dynamics “by recognizing the essential rights of people to form organizations and use them to pursue economic and political purposes”.Footnote 82

In this context, the role of the development lawyer is identified as essentially two-fold. The first is to place at the disposal of policy makers instruments and legal concepts, as suitable as possible, on which one can rely in discussions and negotiations. It needs to be emphasized that, in order to do this adequately, the lawyer must be versed in the concepts around people-centred development. The second role of the development lawyer is to contribute to the academic analysis of legal norms, especially by trying to adapt the process of the formation of norms in a way that preserves any useful potential of its technical quality.Footnote 83 This is all the more imperative in developing societies, when it is considered that inadequate legal processes and widespread corruption may be as much a cause of underdeveloped physical and educational infrastructure as they are a result of it.Footnote 84

The recognition of the right to development and the current redefinition of development by scholars have brought some new dimensions to the development discourse. The right to development is provided for in article 1(1) of the UN Declaration on the Right to DevelopmentFootnote 85 as follows: “[t]he right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.” This is reinforced by the provision that “[s]tates should undertake, at the national level, all necessary measures for the realization of the right to development. States should encourage popular participation in all spheres as an important factor in development and in the full realization of all human rights.”Footnote 86

However, by channelling issues of development and the calls for reform in international economic law into the programmes of international organizations, western powers avoid direct state action and contain the transformatory campaign of less developed states.Footnote 87 These international intergovernmental organizations, exemplified by global entities like the UN and regional blocs like the European Union, then carry out the deflected mission of government through local non-profit organizations in the areas where they operate. In a way, this is another manifestation of the economic theory of government failure as a factor for the growth of the non-profit sector.Footnote 88 In other words, where government fails in its administration of state-managed development, organized activity at the local level succeeds. Put differently, only through organization and support from groups can the primary targets of development, ie the poor and disadvantaged, hope to secure the benefits of governance, even within a democracy. Such benefits include “participation in the processes of design, access to and accountability from local officials, proper audits of public bodies, invocation of the remedial powers of the courts, access to the legislature or to investigative commissions”.Footnote 89

The creation of an effective legal system that promotes development will require a recognition of plural forms of legal administration and an optimal utilization of the opportunities offered by both. For example, legal rules can be enacted by the legislature and enforced by the police, the judiciary and other specialized agencies and regulatory bodies. In turn, disputes can be resolved by courts or private arbitration, and each of these can be organized, staffed and run in many different ways.Footnote 90 It is submitted that legal processes in developing countries are weak in the kind of efficient plurality described here, and consequently need external, non-state impetus, which the non-profit sector can provide, to develop and consolidate. Rather, as Webb observes, what obtains is a scenario where the role of law is confined to legitimizing the actions of a strong centralized government, reducing it to a vehicle for the exercise of authority by government instead of an instrument of accountability.Footnote 91

A development-friendly legal system should possess the key elements of simplicity of procedures, transparency of legal processes, participation of the affected people, and accountability of public officials, all of which enhance the legitimacy of the rules and contribute to the public's confidence in the legal framework as a whole.Footnote 92 All this must be present in the plural forms of legal administration mentioned earlier which, in the case of Africa, will include customary law and Islamic law.

Three steps can be identified in the task of developing a sound legal system in developing and transition countries:Footnote 93 creating laws that clearly set out individual responsibility and incorporate market friendly economic policies; establishing a broad set of supporting institutions; and creating incentives for individual market participants to take full advantage of their legal rights as well as the information and enforcement capacity provided by support institutions.Footnote 94 Support institutions in the context of this developmental recipe include formal governmental structures such as the judiciary and the police, as well as other semi-formal institutions which provide information essential to law enforcement and successful policy implementation. These semi-formal institutions, which play a complementary as well as watchdog role in relation to the formal institutions and the business sector, are defined to include alternative dispute resolution institutions, human rights associations, the press and the private bar.Footnote 95 As Gray observes:

“When they [watchdog institutions] work well, as in mature market economies, these institutions tend to be taken for granted. When they do not, they are sorely missed. The state's role in creating and supporting those watch-dog institutions varies and in many cases is rather limited. If private sector watch-dog institutions are to be successful, they need to arise in large part to meet social demand rather than being imposed from above by bureaucrats.”Footnote 96

This observation reinforces the demand-centred economic theory of the origins of the non-profit sector but, like other development theories, stops short of proceeding to discuss the legal environment required for these watchdog institutions and other similar agencies to function well. It is submitted that a subject such as this, which is identified as central to the working of society, business and government, deserves more research. The next section is therefore devoted to considering the principles that should inform the development of a conducive legal environment for the non-profit sector.

THE LEGAL ENVIRONMENT FOR THE NON-PROFIT SECTOR

The right of association is at the heart of civil society activity which non-profit organizations represent. In civil law countries, this right may be directly expressed in statutory law, whereas in common law countries it may be granted as an inherent product of rights provided in other laws and judicial decisions.Footnote 97 While legal regulation may be desirable for civil society associations, it must be provided in a way that empowers the non-profit sector, as any government attempt to “tidy up” the non-profit sector by preventing duplication or other such measures can easily go against democratic norms such as the freedom of association.Footnote 98 As De Tocqueville observed, “[n]o sooner does a government attempt to go beyond its political sphere and to enter upon this new track than it exercises, even unintentionally, an insupportable tyranny; for a government can only dictate strict rules … and it is never easy to discriminate between its advice and its commands.”Footnote 99

The legal issues around associational rights in the context of the non-profit sector in developing countries are further complicated by the intricacies of development financing where “at each step in the funding chain, the money meets different legal and accounting environments, and different organizational interests, but also funding flows from other private or official sources”.Footnote 100 This complexity in funding networks tends to present a real constraint to ensuring ownership of development activities by beneficiaries.Footnote 101 Further, while the term “private non-profit” appears to be an unambiguous legal category, the public-private breakdown of funding and management is much more mixed and continuous and, in reality, non-profit organizations are a public-private hybrid: a fact which makes the analysis of these organizations complex.Footnote 102

It is perhaps for these reasons that the subject of the legal environment for the non-profit sector did not receive in-depth scholarly attention until the 1990s. However, since then, scholars of the sector have increasingly noted the imperative of defining the law in this area of human activity with greater clarity.Footnote 103 Moreover, given the increasing level of cross-border work, the shared characteristics of public benefit activity and the trans-national character of donor funding, the necessity for legal clarity extends beyond national laws and makes a measure of harmonization, or at least modelling, between non-profit laws of various countries desirable.Footnote 104 In this respect, non-profit sector scholars offer a variety of approaches and suggest areas of immediate concentration. These are outlined next.

Models for developing the legal environment

Issues model

Salamon and Flaherty distilled ten priority issues for legal attention. These include the overall legal context (including protection for the right to associate), eligibility for non-profit status, internal governance requirements, and tax treatment of organizations and their income. Others are restrictions on personal benefits, organizational obligations to the public (such as reporting and other requirements), permissible business activity and key outstanding issues affecting the sector.Footnote 105

Organizational model

Silk describes the progressive way in which legal provisions become increasingly relevant as a non-profit activity progresses from the status of an unincorporated association to a registered association. In particular, he highlights issues surrounding the form of organization to adopt, concluding that the non-profit corporation has virtually replaced the unincorporated form of association and the charitable trust as the entity of choice for new non-profit organizations.Footnote 106 This is mainly because the unincorporated form contains few rules, offering little protection to practitioners, and leaves many operational questions unanswered, while the charitable trust is largely a creature of case law which often lacks the certainty of statutory law. The advantage of the corporate form for non-profit organizations is that “modern statutory rules governing organizational formation, operation, and termination contain protections against liability and provide comprehensive legal guidance to the directors and members of non-profit corporations”.Footnote 107

Framework model

Ferraro makes a multi-pronged case for comprehensive “framework” legislation on several grounds. First, the growth of the sector makes it necessary to provide an accessible, simple and easy to implement legal framework. Secondly, where non-profit organizations are governed by different laws, there is a risk of similar organizations being treated unequally under the law, in several respects, including eligibility for tax benefits or other fiscal regulations, especially where a particular law is not up to date. Thirdly, grassroots organizations, with which much of the literature on development is concerned, may not be able to afford the legal expertise needed to identify and analyse legal provisions that affect them.Footnote 108

In summary, while Salamon and Flaherty draw attention to the legal issues to be addressed in non-profit sector studies, Silk's approach suggests the need for a clear compendium of multiple statutory sources and Ferraro advocates one comprehensive primary set of legislation for non-profit organizations. These approaches are not contradictory, but rather work in synergy to advance the cause of improving the law of non-profit institutions. By way of illustration, an amalgam of these models may see a framework statute legislating on the issues identified by Salamon and Flaherty among others, while also indicating other laws with which each category of non-profits is required to comply. An example of a law which employs something of this integrated approach is the Non-profit Organisations Act 1997 of South Africa. Section 1(1) of this act defines “non-profit organisation” as “a trust, company or other association of persons established for a public purpose”. This provision recognizes the ways in which a non-profit organization can come into effect, ways which are already provided for under other South African laws.Footnote 109 By recognizing “other association of persons”, the act creates room for numerous civil society formations, including social movements not registered under any law, to come under its umbrella. This kind of umbrella proves particularly useful in contexts where legal governance of the non-profit sector is administered through an array of laws, as discussed in the next section.

DEFINING THE LEGAL ENVIRONMENT FOR THE NON-PROFIT SECTOR IN AFRICA

In developed countries, an assortment of laws dealing with organizations in the non-profit sector may not present as much of a problem as it would in developing countries. African countries in particular have plural legal systems deriving from colonial experiences and customary sources, resulting in a patchwork of laws on almost any subject. Country reports on the legal environment for the non-profit sector in some sub-Saharan African countries have been described as revealing “a multiplicity of regulatory approaches”.Footnote 110 It is obvious from these country reports that synchronizing existing provisions into one enabling law governing the registration of non-profit institutions is desirable.

In Kenya, for example, different kinds of non-profit associations are governed by different statutes.Footnote 111 Traditional non-profit institutions such as schools and healthcare organizations are registered as companies limited by guarantee under the Companies Act 1959.Footnote 112 Trusts and foundations which are often the funding face of the non-profit sector are established under the Trustees (Perpetual Succession) Act 1981Footnote 113 and also under the Companies Act as companies limited by guarantee. Societies and professional clubs and associations are registered under the Societies Act 1998.Footnote 114 Co-operative societies and unions are registered at the Department of Cooperatives under the Cooperative Societies Act.Footnote 115 The bulk of contemporary organizations known as NGOs in Kenya are however registered by the NGO Coordination Board under the NGO Coordination Act No 19 of 1990.Footnote 116 All these are distinct from the requirements of tax laws, with which non-profit agencies must comply.

The common thread that runs through the non-profit laws of various African countries is the freedom to form voluntary associations. While this civil liberty is usually enshrined in the constitution, specific laws often provide for its exercise. In Liberia for instance, the Associations Law,Footnote 117 which provides for the formation of unincorporated associations, dispenses with the corporate registration process. The unincorporated organizations formation process involves filing a certificate signed and sworn by the president and treasurer of the association, stating details of the organization such as its name, number of members, date of organization and a description of its purpose. A notice containing these details is also required to be published in a newspaper of general circulation. This process is completed with the filing of an affidavit of compliance in the same place where the certificate was filed.Footnote 118 In Zimbabwe, the Private Voluntary Organisations (PVO) Act,Footnote 119 like the Liberian Associations Law, sets out the process for the formal recognition of voluntary associations. This involves lodging an application with the registrar of PVOs for consideration by the PVO Board.Footnote 120 Despite the simplified registration procedures for non-profit organizations, numerous mutual benefit associations exist without ever being registered, actively supporting their members and only seeking to be formalized when they require outside intervention such as external funding, banking services or inclusion in government programmes.

The plurality of the regulatory framework for non-profit institutions in Africa presents something of a legal wilderness for scholars and practitioners, particularly where these sources of law relating to non-profit institutions are undocumented in literary texts. The closest model that seems suited to address this difficulty, also identified in some of the African country reports on the legal environment for the non-profit sector,Footnote 121 is the framework model applied in an integrated and enabling way as described above.Footnote 122 For this reason, a more detailed description of the model would be useful at this point.

In the framework legislation model, key terminologies would be defined to link provisions for broad categories of non-profit organizations under the same law. For example, where the classification of certain non-profit organizations as public benefit organizations and mutual benefit organizations is adopted, these and other classifications can be provided for under the same law, by first defining each term, and then including appropriate provisions for them accordingly.Footnote 123 In the integrated adaptation suggested in this article, instead of making detailed provisions on various categories of non-profits, clear reference may be made in the framework legislation to existing laws applicable to each identified category of non-profit institutions.

Four principles are identified as essential to framework legislation: the legislation should provide certainty, simplicity and administrability; the regulatory structure should embody local legal traditions and should be open to international models; non-profit organizations and their regulatory structures should be subject to transparency and accountability; and tax benefits should distinguish between public benefit and mutual benefit organizations.Footnote 124

The framework legislation model seems appropriate for countries where the concept of the “non-profit sector”, called by whatever name, is at an emerging stage. This position is implicitly supported by the observation, made in respect of the United States non-profit sector, that “[i]f we were starting from scratch, I would favor the creation of an independent agency … [empowered] with all aspects of the regulation of not-for-profit organizations, including the granting of tax exemption in the first place … We are not, alas, starting from scratch.”Footnote 125 For such countries with advanced non-profit sector structures and institutions, an independent agency, entrusted with all non-tax related matters of non-profit organizations should be seen as a “strategy of last resort” to introduce desired regulation to the non-profit sector.Footnote 126 Finally on the framework legislation model, the existence of a legal framework for non-profit organizations is perceived as an indicator of the strength of the sector in a particular country.

“Where we do not find a strong NGO sector it is easy for the government to deal with the sector piece by piece and law by law, and while these laws may cover the individual issues adequately, in the end they become difficult to implement. When the sector is important enough and the laws are all grouped together into a framework legislation, we recognize a willingness and interest on the part of the leaders to confront the issue, the strength of the sector in the country and the presence of a good legal environment for NGOs. The sector is perceived as real, defined and part of the fabric of the country. When laws are scattered all over there is not likely to be a clear definition of the sector and consequently the atmosphere for NGOs is less hospitable than it could be.”Footnote 127

It is quite possible for framework legislation to be more restrictive than enabling and, where non-profit organizations are subjected to such a law, the impact on the non-profit sector is retrogressive and the challenge just as bad as, if not worse than, that presented by a proliferation of laws. A case in point is the NGO Registration Act 2006 of Uganda which amended the NGO Registration Act 1989 in ways that have led to severe criticism on several important grounds, articulated as follows:

“The Act is premised on a very narrow definition and understanding of NGOs and what they can do and cannot do … It is also premised on an overbearing intent by the state to control the activities of NGOs and therefore provides for unfettered administrative discretion to the NGO Board and Minister of Internal Affairs … It unduly burdens NGO staff over and above what is acceptable in international law and even standard company law in Uganda … It does not recognize the important role, knowledge and expertise NGOs can make to their governance and so does not provide for NGO representation on the NGO Board to defend their interests … It does not make any provisions for remedy if an NGO feels aggrieved. Instead it vests arbitrary power in the office of the Minister of Internal Affairs … It does not provide adequate commitment by government to strengthen the capacity of the NGO Board to carry out its functions effectively and efficiently.”Footnote 128

“POLICING” THE LEGAL ENVIRONMENT FOR THE NON-PROFIT SECTOR

The legal scenario depicted above is eloquent testimony to the need for ongoing surveillance and safeguarding of a hard-won enabling legal environment. Recognizing that progressive laws do not always achieve positive outcomes, Paul and Dias play devil's advocate by pointing out how even a well thought-out legal framework can be applied in a way that suppresses associational activity, as reproduced below. This they do to emphasize the ultimate importance of the involvement of stakeholders who make up the non-profit constituency in the regulation of their own activities.Footnote 129 Thus, advocates and practitioners of law in development must keep in mind that:

“Laws which require registration and official approval of voluntary associations can be used to frustrate formation of ‘lawful groups’ … Penal laws [and] open-ended prohibitions against threats of disorder, often can be construed to legitimize suppression of group activities which cause no demonstrable harms – only the possibility in the minds of law enforcers. Similarly, licensing laws which regulate group activities – such as holding meetings – can be used to frustrate organisational activities, particularly when the law enforcers are vested with lawless discretion … and when people lack both tangible and intangible resources necessary to use courts as agencies to vindicate rights.”Footnote 130

Linking this to the preceding discussion on the legal environment for the non-profit sector within a developing society, it becomes clear that the law must possess not only the characteristic of clarity, but must be empowering and sustainable: empowering in the sense that it is not unduly technical, but leaves room for innovation, and sustainable in the sense that future developments in the sector are anticipated and accommodated by reference to intersectoral consultation and other similar processes. In the field of development therefore, it seems clear that law operates as part of a multi-faceted process, which significantly works through non-profit forms of association, rather than merely a normative system with its set of rules.Footnote 131

CONCLUSION

Scholarly writings indicate that civil society activity carried out through associational formations pre-dates the state, is essential to the health of a democracy, and is particularly useful in developing societies for giving expression to and drawing attention to the needs and preferences of people. This very fact means that the non-profit sector covers a spectrum of organizations addressing a multitude of issues, from domestic to vocational, social to religious, proprietary to patriotic, rights and duties and more. In Africa, certain developmental dynamics challenge but also contribute to scholarly theorization on the subject. These include the exaltation of the community over the rights of the individual, the effect of post-colonial development programmes on governments and communities, the perception of the non-profit organization as an employer of choice, the disparities between the expectations of non-profits and what they are able to deliver.

The low level of development education found in African rural communities no doubt adds to the complexity of these dynamics. However, this very factor is also what distinguishes an authentic grassroots support organization from other kinds of non-profit entities. It is the ability of the former to partner with indigenous civil society formations in a way that is at the same time educative, mobilizing and sustainable that makes it effective and validates its relevance and utility to the people in its sphere of operation. Sometimes this will involve drawing in other non-profits to provide services or interventions which the primary organization does not have the capacity to offer.

The literature on law in development shows that scholarly effort has traditionally focused on economic indices of development. More recently, concepts of development around the rule of law, human rights and the legal empowerment of the poor have been articulated.Footnote 132 However, only minimal attention seems to have been paid to studying the work of non-profit organizations through a law in development lens, or at the very least defining and improving the legal environment within which such organizations have to work. In response to this gap, this article has examined the law in development theories of alternative development and basic needs, with their emphasis on participatory development through organizations.

The alternative law of development reflects the view of some legal scholars on how the law of development at the international level is to be reconceptualised to avoid the unfavourable effects of past legal orders which gave primacy to the economic order as the chief indicator of development.Footnote 133 Within this rubric, the basic needs approach urges the development and application of the law in a way that addresses people's basic needs. Furthermore, this article has considered models for the development of the legal environment for the work of non-profit organizations in the developing world, highlighting factors that need policing in this process. To sum up, it is submitted that academic focus on the processes discussed is no more transitional than is the need for the law of development. As Maurice Flory observes: “[w]ould the international law of development be a transitional law? … Such an evolution would only be possible if underdevelopment had disappeared. But it is a fact that underdevelopment still exists and that after its third decade, many other decades might well follow. The international law of development is therefore settled for some time.”Footnote 134

If it be the case therefore that the law of development is anything but transitional, it follows that the study of the phenomenon of associational life as a medium of development activity, through the organizational vehicle of the non-profit entity, is also here to stay.

Footnotes

1 James, E “Economic theories of the non-profit sector: A comparative perspective” in Anheier, H and Seibel, W (eds) The Third Sector: Comparative Studies of Non-Profit Organisations (1990, Walter de Gruyter) 21 at 21.

2 Salamon, LAmerica's Non-Profit Sector: A Primer (2nd ed, 1999, The Foundation Center) at 10–11.

3 Douglas, J “Political theories of non-profit organisations” in Powell, W (ed) The Non-Profit Sector: A Research Handbook (1987, Yale University Press) 43 at 51.

4 Fleishman, J “Public trust in not-for-profit organisations and the need for regulatory reform” in Clotfelter, C and Ehrlich, T (eds) Philanthropy and the Non-Profit Sector in a Changing America (1999, Indiana University Press) 172 at 173.

5 Douglas “Political theories”, above at note 3 at 51.

6 Footnote Ibid.

7 De Feyter, KWorld Development Law: Sharing Responsibility for Development (2001, Intersentia) at 223–24.

8 Douglas “Political theories”, above at note 3 at 43.

9 De Feyter World Development Law, above at note 7 at 217.

10 Harding, DFrom Global to Local: Issues and Challenges Facing NGOs (1994, Olive Information Service, AVOCADO Series) at 22.

11 Footnote Ibid.

12 Douglas “Political theories”, above at note 3 at 50.

13 De Feyter World Development Law, above at note 7 at 220–21.

14 Id at 221.

15 Anheier, H “Private voluntary organisations and the third world: The case of Africa” in Anheier and Seibel (eds) The Third Sector, above at note 1, 361 at 368.

16 Welch, C “Human rights and development in Africa: NGOs” in Zeleza, P and McConnaughay, P (eds) Human Rights, The Rule of Law, and Development in Africa (2004, University of Pennsylvania Press) 198 at 204.

17 Seibel, W and Anheier, H “Sociological and political science approaches to the third sector” in Seibel and Anheier (eds) The Third Sector, above at note 1, 11.

18 See respectively on non-unionist employment and trans-national employment: McLoughlin, I and Gourlay, SEnterprise Without Unions: Industrial Relations in the Non-Union Firm (1994, Open University Press) and Morgenstern, FInternational Conflicts of Labour Law (1984, International Labour Office).

19 Old Indian folklore, reproduced in verse by Saxe, JG in The Poems of John Godfrey Saxe (Highgate ed, 1881, Houghton, Mifflin and Company).

20 For instance, the Constitutional Rights Project, which is popularly perceived as a civil society organization in Nigeria, was described as a public interest law firm in McQuoid-Mason, D “Legal aid and development: Lessons from South Africa and some thoughts for Nigeria” in Hatchard, J and Perry-Kessaris, A (eds) Law and Development: Facing Complexity in the 21st Century (2003, Cavendish Publishing Ltd) 207 at 215–16.

21 In this regard, see Anthony, R and Young, D “Characteristics of non-profit organisations” in Gies, D, Ott, JS and Shafritz, J (eds) The Non-Profit Organisation: Essential Readings (1990, Brooks / Cole Publishing Company) 216.

22 Momoh, A “Civil society and the politics of federalism in Nigeria” in Gana, A and Egwu, S (eds) Federalism in Africa Vol 2: The Imperative of Democratic Development (2004, Africa World Press) 163 at 171.

23 Information on various Women on Farms projects is available at: <http://www.wfp.org.za> (last accessed 20 July 2012).

24 James “Economic theories”, above at note 1 at 22.

25 Id at 23.

26 Anheier “Private voluntary organisations”, above at note 15 at 367–68.

27 Footnote Ibid.

28 Ekeh, P “Civil society and the construction of freedom in African history” in Onwudiwe, E (ed) African Perspectives on Civil Society (1998, Central State University) 27.

29 Onwudiwe, E “Civil society: A definition and an African perspective” in Onwudiwe (ed) African Perspectives, id, 1 at 14, note 6.

30 Anheier “Private voluntary organisations”, above at note 15 at 362–63.

31 Id at 367.

32 Footnote Ibid.

33 Welch “Human rights and development”, above at note 16 at 201–02.

34 Footnote Ibid.

35 Anheier “Private voluntary organisations”, above at note 15 at 364.

36 Footnote Ibid.

37 Harding From Global to Local, above at note 10 at 23.

38 Anheier “Private voluntary organisations”, above at note 15 at 364–65.

39 Footnote Ibid.

40 See Amadi, GA Legal Guide to Nigerian Trade Unions (1999, Afro-Orbis) at 23.

41 Seibel and Anheier “Sociological and political science approaches”, above at note 17 at 8.

42 De Feyter World Development Law, above at note 7 at 222.

43 Footnote Ibid.

44 Ramcharan, B “The role of the development concept in the UN Declaration on the Right to Development and in the UN covenant” in De Waart, P, Peters, P and Denters, E (eds) International Law and Development (1988, Martinus Nijhoff Publishers / Kluwer) 295 at 295.

45 Kennedy, D “Laws and developments” in Hatchard and Perry-Kessaris (eds) Law and Development, above at note 20, 17 at 19.

46 Shihata, I “Preface: Good governance and the role of law in economic development” in Seidman, A, Seidman, R and Walde, T (eds) Making Development Work, Legislative Reform for Institutional Transformation and Good Governance (1999, Kluwer) ix at xx.

47 Paul, J and Dias, C “State-managed development: A legal critique” in Carty, A (ed) Law and Development: The International Library of Essays in Law and Legal Theory, Legal Cultures 2 (1992, Dartmouth Publishing Company) 279 at 296.

48 Id at 286.

49 De Feyter World Development Law, above at note 7 at 4.

50 Perry, A “International economic institutions and the modern law and development movement” in Seidman, Seidman and Walde (eds) Making Development Work, above at note 46, 21.

51 De Feyter World Development Law, above at note 7 at 5.

52 Paul and Dias “State-managed development”, above at note 47 at 279–92.

53 Footnote Ibid.

54 Footnote Ibid.

55 Id at 280.

56 Paul, J and Dias, C “Alternative development: A legal prospectus” in Carty (ed) Law and Development, above at note 47, 303 at 305–16.

57 Footnote Ibid.

58 See id at 310. See also Salamon America's Non-Profit Sector, above at note 2 at 13.

59 See ibid, Paul and Dias. See also Weisbrod, B “Toward a theory of the voluntary non-profit sector in a three-sector economy” in Gies, Ott and Shafritz (eds) The Non-Profit Organisation, above at note 21, 23 at 27.

60 De Feyter World Development Law, above at note 7 at 309.

61 Paul and Dias “Alternative development”, above at note 56 at 309.

62 De Feyter World Development Law, above at note 7 at 4.

63 Paul and Dias “Alternative development”, above at note 56 at 284.

64 Id “State-managed development”, above at note 47 at 284.

65 Id at 296.

66 Shihata “Preface: Good governance”, above at note 46 at xx.

67 Paul and Dias “Alternative development”, above at note 56 at 305–16.

68 Muchlinski, P “‘Basic needs’ theory and ‘development law’” in Snyder, F and Slinn, P (eds) International Law of Development: Comparative Perspectives (1987, Professional Books) 237 at 238.

69 P Slinn “Differing approaches to the relationship between international law and development” in Snyder and Slinn (eds) id, 29.

70 Muchlinski “‘Basic needs’ theory”, above at note 68 at 247.

71 Id at 241.

72 Adewunmi, F “Workers' participation in the development process: Issues and options” in Adewunmi, F (ed) Trade Unions, National Development and Military Rule (1998, Friedrich Ebert Foundation and the Organisation of African Trade Unity) 22 at 23.

73 Art 55(a).

74 Udombana, N “Socio-economic rights and the Nigerian worker” (1999) 3/2Modern Practice Journal of Finance and Investment Law 398 at 402.

75 Muchlinski “‘Basic needs’ theory”, above at note 68 at 247.

76 Id at 241.

77 Paul and Dias “Alternative development”, above at note 56 at 308 and 318.

78 Muchlinski “‘Basic needs’ theory”, above at note 68 at 239.

79 Available at: <http://www.un.org/millennium/declaration/ares552e.htm> (last accessed 20 July 2012).

80 See the World Public Sector Report 2003 – E-Government at a Crossroads ( 2003, UN Dept of Economic and Social Affairs) at 5.

81 Id at 6.

82 Paul and Dias “Alternative development”, above at note 56 at 304–05.

83 Flory, M “A north-south legal dialogue: The international law of development” in Snyder and Slinn (eds) International Law of Development, above at note 68, 21.

84 Gray, C “Reforming legal systems in developing and transitional countries” in Seidman, Seidman and Walde (eds) Making Development Work, above at note 46, 61 at 62.

85 Res 41/128 of 4 December 1986, available at: <http://www.un.org/documents/ga/res/41/a41r128.htm> (last accessed 20 July 2012).

86 Id, arts 8.1 and 8.2 respectively.

87 Muchlinski “‘Basic needs’ theory”, above at note 68 at 242.

88 See James “Economic theories”, above at note 1.

89 Paul and Dias “State-managed development”, above at note 47 at 296.

90 Gray “Reforming legal systems”, above at note 84 at 63.

91 Webb, D “Legal system reform and private sector development in developing countries” in Seidman, Seidman and Walde (eds) Making Development Work, above at note 46, 33 at 35.

92 Shihata “Preface: Good governance”, above at note 46 at xx.

93 Gray “Reforming legal systems”, above at note 84 at 63–66.

94 Footnote Ibid.

95 Shihata “Preface: Good governance”, above at note 46 at xxi; see also Gray, id at 65.

96 Gray, ibid.

97 Ferraro, PLegal and Organisational Practices in Non-Profit Management (2000, Kluwer Law International) 25 at 29.

98 Douglas “Political theories”, above at note 3 at 52.

99 De Tocqueville, A “Of the use which the Americans make of public associations in civil life”, extract from De Tocqueville, ADemocracy in America (1835), republished in O'Connell, B (ed) America's Voluntary Spirit: A Book of Readings (1983, The Foundation Center) at 56.

100 Anheier “Private voluntary organisations”, above at note 15 at 372.

101 De Feyter World Development Law, above at note 7 at 221.

102 James “Economic theories”, above at note 1 at 25.

103 See Salamon, L and Toepler, SThe Influence of the Legal Environment on The Development of the Non-Profit Sector (2000, The Johns Hopkins University Centre for Civil Society Studies, working paper series no 17); see also Silk, T “The legal framework of the non-profit sector in the United States” in The Jossey-Bass Handbook of Non-Profit Leadership and Management (1994, Jossey-Bass Publishers) 65.

104 Ferraro Legal and Organisational Practices, above at note 97 at 25–26.

105 Salamon, L and Flaherty, S “Non-profit law: Ten issues in search of resolution” in Salamon, L and Toepler, S (eds) The International Guide to Non-Profit Law (1997, John Wiley & Sons Inc) 8.

106 Silk “The legal framework”, above at note 103 at 71.

107 Footnote Ibid.

108 Ferraro Legal and Organisational Practices, above at note 97 at 25–28.

109 See the Trust Property Control Act 1988, the Companies Act 1973 (now replaced by the Companies Act 2008) and sec 18 of the 1996 South African Constitution which guarantees freedom of association.

110 See “Introductory overview of sub-Saharan Africa country reports” (2010) 12/2International Journal of Not-For-Profit Law 1 at 5, available at: <http://www.icnl.org/research/journal/vol12iss2/special_1.htm> (last accessed 20 July 2012).

111 For a detailed discussion of this, see Gitonga, FK “Kenya” in “Special section on sub-Saharan Africa country reports” (2010) 12/2International Journal of Not-For-Profit Law 21.

112 Rev ed 2009, cap 486 Laws of Kenya.

113 Cap 164 Laws of Kenya.

114 Cap 108 Laws of Kenya.

115 No 12 of 1997, amended in 2004.

116 Gitonga “Kenya”, above at note 111 at 24–25.

117 Pt IV, chap 41, 1976 Liberian Codes of Laws Revised.

118 See C Griffiths “Liberia” in “Special section on sub-Saharan Africa”, above at note 111, 39 at 41–42.

119 General notice 99 of 2007.

120 See O Saki “Zimbabwe” in “Special section on sub-Saharan Africa”, above at note 111, 89 at 91–94.

121 “Special section on sub-Saharan Africa”, id at 37.

122 See summation in the last paragraph of the section on “Models for developing the legal environment”.

123 Ferraro Legal and Organisational Practices, above at note 97 at 28.

124 Id at 31.

125 Fleishman, J “Public trust in not-for-profit organisations and the need for regulatory reform” in Clotfelter, C and Ehrlich, T (eds) Philanthropy and the Non-Profit Sector in a Changing America (1999, Indiana University Press) 172 at 189.

126 Footnote Ibid.

127 Ferraro Legal and Organisational Practices, above at note 97 at 29.

128 L Sewanyana “Uganda” in “Special section on sub-Saharan Africa”, above at note 111, 78 at 88.

129 Paul and Dias “State-managed development”, above at note 47 at 296.

130 Paul and Dias “Alternative development”, above at note 56 at 307.

131 Slinn “Differing approaches”, above at note 69 at 28.

132 See for example: Kennedy “Laws and developments”, above at note 45 at 17; Sengupta, A “The human right to development” (2004) 32/2Oxford Development Studies 179; and Stephens, M “The commission on legal empowerment of the poor: An opportunity missed” (2009) 1 Hague Journal on the Rule of Law 132.

133 See Flory “A north-south legal dialogue”, above at note 83, for a detailed discussion of the “third world view” of the international law of development.

134 Id at 23.

Ibid
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