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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.

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

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References

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)Google Scholar 21 at 21.

2 Salamon, LAmerica's Non-Profit Sector: A Primer (2nd ed, 1999, The Foundation Center)Google Scholar 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)Google Scholar 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)Google Scholar 172 at 173.

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

6 Ibid.

7 De Feyter, KWorld Development Law: Sharing Responsibility for Development (2001, Intersentia)Google Scholar 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)Google Scholar at 22.

11 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 SectorCrossRefGoogle Scholar, 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)Google Scholar 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 SectorGoogle Scholar, 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)Google Scholar and Morgenstern, FInternational Conflicts of Labour Law (1984, International Labour Office)Google Scholar.

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

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)Google Scholar 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)Google Scholar 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)Google Scholar 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 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)Google Scholar 27.

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

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

31 Id at 367.

32 Ibid.

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

34 Ibid.

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

36 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 Ibid.

40 See Amadi, GA Legal Guide to Nigerian Trade Unions (1999, Afro-Orbis)Google Scholar 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 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)Google Scholar 295 at 295.

45 Kennedy, D “Laws and developments” in Hatchard and Perry-Kessaris (eds) Law and DevelopmentGoogle Scholar, 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)Google Scholar 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)Google Scholar 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 WorkGoogle Scholar, 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 Ibid.

54 Ibid.

55 Id at 280.

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

57 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 OrganisationGoogle Scholar, 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)Google Scholar 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)Google Scholar 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 LawGoogle Scholar 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)Google Scholar 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 DevelopmentGoogle Scholar, above at note 68, 21.

84 Gray, C “Reforming legal systems in developing and transitional countries” in Seidman, Seidman and Walde (eds) Making Development WorkGoogle Scholar, 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 WorkGoogle Scholar, 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 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)Google Scholar 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)Google Scholar, republished in O'Connell, B (ed) America's Voluntary Spirit: A Book of Readings (1983, The Foundation Center)Google Scholar 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)Google Scholar; 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)Google Scholar 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)Google Scholar 8.

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

107 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 5Google Scholar, 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 21Google Scholar.

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 189Google Scholar.

126 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 179CrossRefGoogle Scholar; and Stephens, M “The commission on legal empowerment of the poor: An opportunity missed” (2009) 1 Hague Journal on the Rule of Law 132CrossRefGoogle Scholar.

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.