State’s efforts to block law on NGO regulation ill advised

In August 2010, Kenyans promulgated a Constitution lauded as one of the most progressive in the world. It was an expression of a collective dedication to inclusiveness, transparency, democracy, freedom, accountability and respect for the rule of law and human rights. And a key constituent in the fight for constitutional reforms in Kenya has been the civil society.

Civil society groups, including NGOs, remain a critical voice in defending the rights of all Kenyans. During his tenure, former President Mwai Kibaki assented to the Public Benefits Organisations (PBO) Act of 2013 in keeping with the promise to regulate NGOs. The law was to establish a transparent regulatory and institutional framework within which Civil Society Organisations (CSOs) can operate.

CSOs have been pushing for commencement of the PBO Act, but the State refused to set a date for when the Act should come into force. Instead, taxpayers’ money has been squandered according to a task force collecting views on desired amendments even before the law is tested.

It is worth noting that Jubilee’s manifesto promised to introduce a Charities Act to, among other things, regulate political campaigning by NGOs, to ensure they only concentrate on issues that promote their core mandate without engaging in politics. And the PBO Act, as it stands suffices in this respect because it obligates CSOs to stick to their objectives and to be financially accountable.

The Act advances and demands good leadership by PBOs and provides for a framework for partnership between Government and PBOs. The law also allows PBOs to determine standards, certification and adherence to a professional code of conduct. Most importantly, it brings all types of PBO and CSOs under one legal regime.

Efforts by world governments to restrict the space in which civil society operates have grown at an alarming rate. Increasingly, governments are using laws to limit the work of CSOs.

During the UN Department of Public Information (DPI)/ Non-Governmental Organisation Conference in Korea, in May, 2016, UN boss Ban Ki-moon noted the freedom of NGOs to work without interference is under threat.

Interestingly, under the Jubilee administration, CSOs have been dubbed “evil society”. They have also been termed as agents of foreign masters and even active agents of terrorism. Yet CSOs continue to play a vital role in representing the marginalised and pressing for transparency by duty holders.

The Government has unsuccessfully tried to introduce amendments that encumber registration of CSOs, cap foreign funding to a maximum of 15 per cent, create a Government-run fund where monies would be kept on behalf of CSOs and institute a state dominated regulatory authority.

In response, in August 2015, a number of CSOs moved to court to compel the Devolution CS to trigger the commencement of the PBO Act without amendments. The court restrained the AG from making any amendments to the Act before the determination of the suit expected on 26th July, 2016.

The CS cannot stand in the way of a law passed by Parliament and assented to by the President simply because he does not like it. It is improper to deny Kenyans and the sector a law that was a product of wide stakeholder consultations.