Let the civil society be, or else…

By Kethi Kilonzo

Government on its own does not have the capacity to meet all the challenges that society faces. Non-profit organisations step in where private and government firms are unable to touch.

They achieve this by supporting development, promoting democracy, respect for the rule of law and contributing to good governance. The Government has a constitutional obligation to respect freedom of association and assembly. It has a duty to provide an enabling environment for establishment and operation of non-profit organisations.

It should permit them to exist and operate freely as they are indispensable to the full enjoyment of freedom of expression, association, assembly, demonstration, picketing and access to information. They are also a catalyst to the realisation of economic, social and political rights.

Not all non-profit organisations are engaged in political activism. There are those that protect the rights of women, children, and refugees. Others engage in the provision of easy access to education, medical services, water, and other basic social amenities. They are all are governed by the same Act – The Public Benefits Organisations Act of 2013.

In making any changes to this law, Parliament should take care not to throw away the baby with the bath water. By attempting to regulate non-profit organisations perceived to be engaged in political activism in the country, Parliament may unwittingly temper the benefits of organisations that only seek to improve the economic and social lot of Kenyans challenged by poverty.

The Statute Law Miscellaneous Amendments Bill 2013 proposes to make fundamental changes to the Public Benefits Organisations Act. That such far-reaching changes would be made under a “Miscellaneous” Amendments Bill is of itself telling. The Bill proposes to give the Government the power to impose terms and conditions on the registration and operation of public benefits organisations. These terms and conditions are not set out in the Bill. Their purpose is also not spelt out.

The Government would have discretionary and absolute power over such organisations without oversight mechanism. Such an ambivalent provision of law can only be applied retrogressively. Nothing progressive can come out of it. The Bill proposes that funding of non-profit organisations be made only through a federation in charge of such organisations. It is inconceivable that every organisation will have to open a “petty cash account” with the federation. The rationale for and mechanism of control of such funds by the federation is not provided for.

If the Bill is passed by Parliament, any funding from external donors shall not exceed 15 per cent of an organisation’s total funding. The Bill does not define who “external donors” are. There will no longer be a carte blanche to offer assistance to Kenyans in need as the Bill proposes to put a ceiling on overseas development assistance.

Beggars cannot also be dictators. It bears no logic to place ceilings on overseas development assistance, particularly where the government does not have the capacity to fund the targeted programmes. The Bill proposes that the government funds public benefits organisations. This would open a window for carrot and stick manipulation of their agenda. It would also transform the organisations into quasi-public bodies as they will be accountable to public authorities over use of those funds.

Not long ago, in the period between 2003 and 2012, civil society was largely forgotten. The top crusaders of civil society were poached by government agencies to lofty positions in the Executive, Parliament and Judiciary. Once freedom of speech, association, media, assembly, picketing, social and political rights became a daily reality civil society lost its revered place in Kenya. The best dose of medicine for civil society is not punitive or restrictive laws, but faithful and meaningful implementation of the Constitution. Only this will render them jobless.