Council for Non Governmental Organizations in Malawi (CONGOMA)
STANDARDS COMMITTEE PROCEDURES
18 Nov 2009
P O Box 480;Blantyre;
MALAWI
Tel: (265) 01 876 459; (265) 01 917 866/864
Fax: (265) 01 876 409
Email: info@congoma.org
Website: www.congoma.org
Prepared by Alide & Co. Funded by DFID
I. BACKGROUND INFORMATION
1.0 Introduction.
The Council for Non-Governmental Organisations in Malawi (hereinafter referred to as CONGOMA) is a membership organisation established by and for Non-Governmental Organisations in Malawi. It was established and is regulated by its constitution.
The general oversight over the activities of CONGOMA lies with the Board of Trustees. The Trustees are elected at the Annual General Meeting of the NGOs of CONGOMA.
The control, accountability and responsibility for all operations of CONGOMA are exercised by the Trustees, the Governing Council, Finance and Administration Committee, and a Standards Committee.
2.0 Standards Committee
The Standards Committee is established under section 58 of the CONGOMA Constitution. The main duty of the Committee as provided in section 59 of the CONGOMA Constitution is to ensure that all full members of CONGOMA are assisted to conform to the Non-Governmental Organisations (NGO) Code of Conduct.
The constitution prescribes the number of members of the Standards Committee to six. These members are elected at the Annual General Meeting of CONGOMA from only NGO’s in full membership of CONGOMA. Three of those members are obliged to retire annually.
It is further provided in the Constitution that the Standards Committee shall work within the Terms of Reference and Standing Orders set for it by the Governing Council. Further guidance can be sought in the general provision of the CONGOMA Constitution which has set out the main duty of the Standards Committee. To emphasise, the main duty of the Standards Committee is to ensure conformity of the NGO’s Code of Conduct by full members of CONGOMA.
3.0 NGO’s Code of Conduct
The NGO’s Code of Conduct outlines the purpose of the Standards Committee. It provides that the committee is charged with the responsibility of enforcing the Code of Conduct.
The Code of Conduct also outlines the Election of the Standards Committee, Meetings and Procedures, Functions of the Committee, Penalties and Incentives, Appeals Procedures and Transition of Provisions.
The Terms of Reference for the Committee can be deduced from paragraph 4 of the NGO Code of Conduct as follows:
1. To consider and determine any application, complaint or matter brought to it under the NGO Code of Conduct.
It is provided under this function, that the Committee is expected to consider and verify all the facts relating to any application or complaint brought before it so that necessary grounds for the application or complaint are established before the committee takes any action.
2. To review the Code from time to time and propose any necessary amendments to the General Assembly.
Under this head, the Standards Committee is empowered to propose changes to Code of Conduct to the General Assembly. The aim is to ensure that it is abreast of the changing times and must be able to capture and adapt to new developments so as to make the document a versatile regulatory instrument.
3. To carry out such functions as are authorised by this Code or by any other written law.
Under this head the Committee has been mandated to carry out its duties not only within the ambit of the Code but also in compliance with the Laws of Malawi. Accordingly there is need for the Committee to be mindful of its limits and apply the Code lawfully.
4. To carry out additional functions as the Governing Council may from time to time direct.
This provision directly makes the Committee subordinate to the Governing Council. What this entails is that the Council can mandate the Committee to carry out other duties as may be directed by it. However it must be noted that the power of the Council to direct the Committee to undertake these other functions must be limited to only those that directly deal with application and enforcement of the Code. The primary reason for the existence of this Committee as specified by the Constitution is to assist full members of CONGOMA to conform to the Code.
4.0 Justification
With reference to the terms of reference for the Committee, it is very clear that it needs to have procedures when dealing with issues that are presented before it. In addition, these procedures are not apparent in the CONGOMA Constitution and NGO’s Code of Conduct. Therefore, these procedures are necessary to fill this gap.
5.0 Considerations
In coming up with these procedures consideration was given to the Non Governmental Organisations Act, the Constitution of CONGOMA, and the NGO Code of Conduct.
The procedures have also considered and incorporated the Rules of Natural Justice in order to have fair, just and equitable process for the investigation and determination of complaints and allegations.
II. PROCEDURES FOR INVESTIGATING ALLEGATIONS, MAKING OF DETERMINATIONS AND DECIDING ON PENALTIES.
1. INTRODUCTION
These procedures have been adopted by the Governing Council of the Council of Non-Governmental Organisations in Malawi (CONGOMA) and are to be used for the investigation into an alleged breach of the NGO’s Code of Conduct by members of the CONGOMA, making determinations in respect thereof, and issuing of penalties where applicable.
No departure will be made from this procedure unless and until the Standards Committee has first notified the Governing Council and the NGO, against whom the allegation has been made, of the proposed variation to the procedure and the reasons for that variation.
2. DEFINITIONS
These procedures shall be interpreted in accordance with chapter 8 of the Constitution of Council of Non-Governmental Organisations in Malawi.
In these procedures:
“Code of Conduct” means the NGO Code of Conduct for Malawi ratified by the General Assembly of NGOs in Malawi on 25th of April 1997; and as amended from time to time.
“Complainant” means a Member of CONGOMA or any other organisation or person who has lodged a complaint against an NGO;
“CONGOMA” means the Council for Non-Governmental Organisations in Malawi;
“Executive Director” means the Executive Director of CONGOMA or any other person appointed as such by CONGOMA in an acting capacity;
“NGO” means a Non Governmental Organisation which is a member of CONGOMA;
“the Committee” means the Standards Committee appointed by the General Assembly for the purpose of enforcing the Code of Conduct;
3. SUBMISSION OF COMPLAINTS OR ALLEGATIONS.
3.1. All complaints and allegations relating to the breach of Code of Conduct by an NGO shall in the first place be referred to the Executive Director of the Council for Non-Governmental Organisations in Malawi.
3.2. The Executive Director shall:
(a) If it is an oral complaint, require it to be put in writing and provide any assistance to enable this to be done;
(b) Acknowledge receipt of the complaint in writing and explain the procedure to be followed when dealing with the complaint;
3.3. The Executive Director shall review the complaint in accordance with the Code of Conduct and shall:
(a) Where Executive Director determines that the complaint or allegation is frivolous or vexatious or contains no issue of breach of the Code of Conduct, he/she shall, with the approval of the Committee, inform the Complainant in writing within twenty five (25) working days of receipt of the complaint, of that decision, with reasons, and may provide advice as to other courses of action open to the Complainant.
(b) Where the Executive Director determines that the complaint or allegation may have or has an issue of breach of the Code of Conduct, he/she shall within fourteen (14) working days of receiving the complaint notify the Committee about the complaint.
4. PROCESS TO BE FOLLOWED BY THE STANDARDS COMMITTEE.
4.1 Upon receipt of the notification of a complaint or allegation from the Executive Director, the Committee shall within 21 working days notify, in writing, the NGO against whom the complaint or allegation has been made and advise as follows:
(a) that the allegation has been referred to the Committee for investigation and determination;
(b) the identity of the complainant making the allegation (unless identification of the complainant might prejudice the investigation or put the complainant at risk);
(c) the conduct of the NGO which is the subject of the allegation;
(d) of the section(s) of the Code of Conduct which appear to the
Committee to be relevant to the complaint or allegation;
(e) of the procedure which will be followed in respect of the
investigation of the complaint or allegation.
4.2 The Committee shall also notify the Complainant that the matter had been referred to the Committee for investigation and determination.
4.3 In notifying the NGO of receipt of the allegation in 4.1 above, the Committee shall also request the NGO to respond to the Committee in writing within 14 working days of the above notification as follows:
(i) advising the Committee whether the NGO admits or denies the breach of the Code of Conduct which is the subject of the complaint or allegation;
(ii) listing any documents which the NGO would wish the Committee to take into account in the investigation of the complaint or allegation, where possible providing copies of these documents, and informing the Committee of where the original documents may be inspected;
(iii) providing the Committee with the name, address and telephone number (or other appropriate contact details) of a person or organisation whom the NGO would wish the Committee to interview in the course of any investigation of the complaint or allegation, and
(iv) providing the Committee with any information which the NGO would wish the Committee to seek from any person or organisation.
4.4 In notifying the Complainant in 4.2 above, the Committee shall request the Complainant to acknowledge receipt of the notification from the Committee within 14 working days:
(i) listing any documents which the Complainant would wish the Committee to take into account in the investigation of the complaint or allegation, where possible providing copies of these documents, and informing the Committee of where the original documents may be inspected,
(ii) providing the Committee with the name, address and telephone number (or other appropriate contact details) of any person or organisation whom the Complainant would wish the Committee to interview in the course of any investigation of the complaint or allegation, and
(iii) providing the Committee with any information which the Complainant would wish the Committee to seek from any person or organisation.
5. CONDUCT OF INVESTIGATIONS.
5.1 Purpose of Investigation.
The purpose of the Committee’s investigation is to enable it to determine whether the NGO has acted in breach of the Code of Conduct and, where there has been a breach of the Code of Conduct, to determine whether any action should be taken against an NGO and the nature of the action.
5.2 Identification of Documents, Information and Explanations.
Following notification to the NGO and the Complainant, the Committee shall at the expiry of 14 working days, within which the Complainant or NGO are supposed to respond, identify an initial list of persons to be interviewed, organisations from whom information is to be sought and documents to be inspected as part of the investigation. The Committee shall include in this list each document, person and organisation referred to in that response or complaint, unless it is of the opinion that the inclusion of that document, person or organisation would only unreasonably delay the completion of the investigation rather than to contribute to the accuracy of the Committee’s investigations. The Committee may supplement or amend this list at any stage of the investigation.
The Committee may at its discretion proceed or terminate the investigation should there be no response from either party within the prescribed 14 working days.
5.3 Production of Documents, Information and Explanations.
In the course of the investigation, the Committee may make such enquiries from any person or organisation, and request any person or organisation to provide any document or information which is in his/her or its possession or control, or provide any explanation, as it thinks necessary for the purposes of carrying out the investigation.
5.4 Interviews.
(i) Requesting Attendance.
In the course of the investigation the Committee shall request the Complainant and the NGO to appear before it separately to present their respective arguments in respect of the complaint or allegation in question.
The Committee may further request any person to attend and appear before it to provide any information, document or explanation for the purpose of the investigation.
(ii) Representation.
The Complainant or the NGO or any person who appears before the Committee may arrange to be accompanied at their own expense by a representative, legal or otherwise.
(iii) Notes of the Interview.
Where practical, following the interview, the Committee shall produce a written note of the material points of the interview, and provide two copies of that note to the person interviewed. It shall then ask them to return one copy signed as a correct record of the interview, with such corrections or amendments as they may feel necessary for that purpose.
(iv) Costs.
The Committee may, where it considers as appropriate in order to facilitate the conduct of the investigation, pay an allowance or re-imburse costs to any person who incurs an expense in the provision of any document, information, advice or explanation in response to the Committee’s request, such fees or allowances as it considers appropriate, subject to any maximum set by the authority. This provision shall however apply to neither Complainant nor the NGO.
5.5 Completion and Termination of Investigation.
The investigation shall be deemed completed after the Committee’s consideration of all the documents and information presented to it by the Complainant and the NGO and all people invited to do so by the Committee, and after satisfying itself that it has obtained all the necessary information, as is likely to be reasonably capable of being obtained, which shall assist it to reach a determination as to whether the NGO is in breach of the Code of Conduct or not.
The Committee may however terminate its investigations at any point where it is satisfied that it has sufficient information to enable it come to a considered decision on the allegation.
5.6 Additional Matters.
Where in the course of its investigation, the Committee becomes aware of any other matter which appears to it to indicate that there is a breach of the Code of Conduct by the NGO other than the breach which it is currently investigating, the Committee shall invite the NGO to provide an explanation on the matter. The Committee shall then determine whether the explanation absorbs the NGO of such breach or not.
6. DETERMINATION.
After the completion or termination of the investigation the Committee shall deliberate and determine within twenty one (21) working days of completion or termination of investigation whether the NGO has or has not failed to comply with the Code of Conduct.
6.1 Where the Committee is split in terms of the decision, a vote may be carried to determine the same. The Executive Director shall not take part in the voting.
6.2 Where the votes tie, the Chairman of the Committee shall have the casting vote.
Upon determination of the matter the Committee shall inform the NGO and the Complainant of its decision in writing, providing reasons thereof, within three (3) working days of such determination.
7. PENALTIES.
Where the Committee finds the NGO in breach of the Code of Conduct the Committee may at its discretion, depending on the severity of the breach, impose any of the following penalties:
(i) Cautionary Letter.
A cautionary letter may be issued to the NGO advising that further repetition of the breach of the Code of Conduct will result in a formal warning.
(ii) Formal Written Warning / Admonition.
A formal warning letter may be written to the NGO spelling out an actual time span within which the warning will be deemed valid. The letter will further spell that during the specified time span, the NGO will be under monitoring to ensure that it complies with the whole Code of Conduct.
(iii) Imposition of a Fine.
The Committee may, at its discretion, impose a fine of up to a maximum of K100,000.00
(iv) Suspension.
The Committee may recommend to the Governing Council the suspension of the NGO for a specific period time within which the conduct of the NGO shall be reviewed.
(v) Loss of Representation in the Governing Council or any other Committee of CONGOMA.
The Committee may recommend to the Governing Council for the NGO to lose its representation in the Governing Council and /or any other committee of CONGOMA.
(vi) Expulsion from CONGOMA.
The Committee may recommend to the Governing Council that the NGO be expelled from CONGOMA.
(vii) De-Registration.
The Committee may recommend to the Governing Council that the NGO that has misconducted be de-registered.
8. APPEAL.
8.1 Any NGO that has been aggrieved by the decision of the Committee has the right to appeal to the Governing Council on the following grounds:
(i) If the NGO is of the opinion that the decision is unfair.
(ii) If the NGO is of the opinion that the punishment is not commensurate with the breach.
(iii) If new evidence or witnesses are available who may materially influence the decision of the Committee.
(iv) If the procedures as provided hereunder were not adhered to by the Committee.
8.2.1 Any NGO which would wish to exercise its right of appeal under 8.1 above shall be obliged to do so within fourteen (14) working days after being notified by the Committee of the said decision. No such appeal shall be allowed out of time.
9. AMENDMENT.
The Standards Committee may, by a majority vote, amend these rules subject to the approval of the Governing Council.
10. MISCELLANEOUS.
10.1 . Anonymous Complaints.
Where an anonymous complaint or allegation against any NGO has been made to the Executive Director, the same shall be treated in accordance with these rules mutatis mutandis.
10.1 Time
All the time limits hereof shall be of the essence of these procedures.
Dated this…Eighteenth ……day
of………November…2009
REV. MAC DONALD SEMBEREKA
CHAIRMAN – GOVERNING COUNCIL