State enacts laws to block groups from seeking foreign funds

By PAUL WAFULA

KENYA: The civil society now wants unregistered associations allowed to operate even as they hit out at Governments for enacting laws to block them from seeking, receiving or utilising foreign funds.

A new report by the Special Rapporteur on the rights to freedom of peaceful assembly and association says arguments put forward by the States to restrict foreign funding do not meet the threshold for restricting activism in the interest of national security or public safety.

The report released this week and authored by activist Maina Kiai instead wants states to ‘create and maintain, in law and in practice, an enabling environment for the enjoyment of rights to freedom of association and peaceful assembly.

Mr Kiai is concerned undue barriers to funding are being put in place, especially in a climate of harassment and exclusion of civil society actors on one hand, and in the context of a global financial crisis on the other.

“…the special rapporteur calls upon States to ensure any restriction complies with international human rights norms and standards, in particular in line with the strict test of necessity and proportionality in a democratic society, bearing in mind the principle of non-discrimination,” the report submitted to the Human Rights Council recommends.

Judicial review

The report wants the State to provide a detailed and timely written explanation for the imposition of any restriction, and that said restriction can be subject to an independent, impartial and prompt judicial review.

Kiai also wants governments to ensure those who violate rights of freedom of association and peaceful assembly are held accountable by an independent and democratic oversight body and courts of law.

But it is the demand to have governments adopt a regime where they are only notified of formation of associations and also allow for the existence of unregistered associations, that may face resistance.

“…the Special Rapporteur calls upon States to ensure associations – registered and unregistered – can seek, receive and use funding and other resources from natural and legal persons, whether domestic, foreign or international, without prior authorisation or other undue impediments,” the report reads in part.

If this is allowed, then pressure groups will have the freedom to start their operations and seek funds without necessarily being registered.

New requirement

This comes at a time when Kenya has set in motion a law that will see more than 8,000 NGOs forced to seek fresh registration after the Cabinet Secretary of Planning and National Development gazettes it to monitor their activities.

International charity organisations operating in Kenya or one that is using the country as a base for its operations in neighbouring states will also not be spared from this requirement.

The new law, the Public Benefits Organisation Act, allows the Government to support charity organisations through budget subsidies, grants for specific purposes and contracts to perform certain work.

Pressure groups argue that undue restrictions to funding, including percentage limits, is a violation of the right to freedom of association. The 22-page report further maintains that regulatory measures which compel recipients of foreign funding to adopt negative labels constitute undue impediments on the right to seek, receive and use funding.

It has also recommended that governments adopt measures to protect individuals and associations against defamation, disparagement, undue audits and other attacks in relation to funding they allegedly received.