This article captures the background and events of November 2013 in Kenya. A set of thirteen amendments to the Public Benefits Organisations Act 2013 were unexpectedly brought to the National Assembly. If they had passed, they would have fundamentally affected civic space, democracy and development. It offers lessons and reflections on the state of governance and civil society in Kenya and the challenges of protecting and advancing fundamental freedoms within a new constitutional order.

By Irũngũ Houghton and Stephanie Muchai[1] 

 “We said that Kenyans had enacted the best and most progressive Constitution in the world. The struggle for this Constitution was by the civil society….”Hon. Fatuma Ali, MP

“Regulation and accountability is important but let us … not take away the freedom and space within which the public benefit organisations act and operate.”

Hon. Oyugi, MP

“Alongside many of my colleagues here were the alumni of the civil society at one time…as we are trying to streamline those that are very wayward, we may end up suffocating the NGOs…”

Hon. Kabando wa Kabando, MP

SUMMARY

This article captures the background and events of November 2013 in Kenya. A set of thirteen amendments to the Public Benefits Organisations Act 2013 were unexpectedly brought to the National Assembly. If they had passed, they would have fundamentally affected civic space, democracy and development. It offers lessons and reflections on the state of governance and civil society in Kenya and the challenges of protecting and advancing fundamental freedoms within a new constitutional order.

BACKGROUND         

Post independent governments in Kenya systemically violated human rights and heavily curtailed freedoms of assembly, association and expression in particular. Members of civil society were systemically harassed, intimidated, tortured and killed for attempting to exercise these rights and pierce secrecy, corruption and nepotism veils.[2] Civil society organisations who attempted to research, advocate or support communities to advocate in the public interest were attacked, banned or de-registered by state agents on trumped up charges.

Among others, two critical moments mark a turning point in this ugly side of Kenya’s history. They are; the election of a liberal democratic Government in 2003 and the promulgation of a new constitution in August 2010.[3] This Constitution contains one of the world’s most comprehensive and visionary Bill of Rights which among other rights, guarantees freedoms of assembly, association and expression.

The adoption of a new constitution offered a re-set or re-boot button for the country. The PBO Sector was not exempt from this. Regulated by the NGO Coordination Act (1991) and a Sessional Paper (2006), the last two decades have seen the coordination of the sector atrophy under the weight of reduced funding, a weak apex body in the Kenya National Council of NGOs and its splinter bodies, growth of regional and sectoral networks, lack of public accountability and divisions between PBO actors. [4]

Among numerous attempts by the Government and PBOs to bring vision and effective leadership to the sector, several PBOs came together to form the CSO Reference Group to work towards the development and implementation of a legal and regulatory framework for organisations that do public benefit work[5]. This initiative sought to improve organisational accountability, internal governance and transparency. The Public Benefits Organisations bill sponsored by Member of Parliament Hon Sophie Abdi Noor [6] brought focus to all the formations seeking to transform the sector including the NGO Coordination Board, Government NGO Coordination Bureau, the NGO Council(s) and other various networks. [7]

While the PBO Act received Presidential assent by Mwai Kibaki in 2013, it is yet to be operationalised. Despite the stated aspiration of the Jubilee manifesto[8] to manage the State’s relationship with the PBO sector in accordance with internationally recognized best practices, the Cabinet Secretary has declined for over a year to announce the commencement of the Act. A central consequence of this is that the sector, state or the public cannot apply the regulatory and accountability framework contained in the Act. The sector, state and the public are in legal limbo.

WHAT HAPPENED?

Thirteen proposed amendments to the PBO Act were published in the omnibus Statue Law (Miscellaneous Amendments) Bill 2013 on Friday 1st November 2013.[9] This was met with disbelief within and outside of the PBO sector. The amendments signaled an intention to violate constitutional protections of freedom of association, [10]Sessional Paper on NGOs (2006),[11] the Jubilee Manifesto (2012)[12] and the Public Benefits Organisations Act (2013).[13]

Surprisingly, despite news coverage of the published bill in the People newspaper, most Members of Parliament (MPs) were initially unaware of the significance of the entire Bill for 49 laws already enacted by Parliament. On the other hand, those familiar with the Bill emphatically declared that the Jubilee majority in Parliament would pass this law regardless of any form of opposition from the PBO sector. Meeting for the first time on 7th November 2013, members of the CSO Reference Group resolved to raise public awareness, open dialogue with public officials and resist the draconian legislation.

How was the bill defeated?

The CSO reference Group met regularly from 7th November through to 6th December 2013. These meetings regularly attracted upwards of 50 representatives of development, human rights and governance PBOs. Both national and international PBOs attended each of the meetings. Indeed, that the Bill had produced such unity across such diversity must have been one of the most remarkable unintended impacts of the Bill. Four major strategies were deployed by different working groups; research, representation, media engagement and public street action.

A key pillar in the messaging around the Bill was derived from two impact assessments carried out by the CSO Reference Group and Health NGOs Network (HENNET).[14] The documents demonstrated that the proposed amendments to the PBO Act were set to cripple 8,260 organisations, endanger Kshs 80 billion in annual development assistance and lead to the entrenchment of 250,000 employees most of whom are primarily Kenyans. More broadly, without any alternative financing strategy by the Government, the bill would shut overnight hundreds of thousands of clinics, schools, housing, water projects, civic education and legal aid programmes. In the health sector alone, it was estimated that 47% of health funding would be drastically cut. 20 million Kenyans would lose access to basic health care. 6.8 million people would no longer have facilities for HIV testing and the 1 million Kenyans on ARV treatment would be at serious risk.

This analysis proved compelling particularly for those MPs drawn from constituencies with high poverty incidence particularly Rift Valley, Coast, Nyanza and North Eastern. MPs attributed 25% of the non-formal education in Garissa and 90% of the water-points in Ijara, northern Kenya to PBOs. To quote one of the Jubilee MPs, “this Bill is parliamentary suicide for us.” The Coast, Nyanza and North Eastern generally voted for the opposition CORD. It could not have escaped Jubilee political strategists that to deny largely opposition areas development assistance, would be to harden a future voter base against it in future.

Over the four weeks, members of the CSO Reference Group sought out or were sought by public officials from the Kenyan Executive, the National Assembly, Senate and Development Partners. In the National Assembly, both CORD and Jubilee MPs were informed on the importance of the Amendment bill. An analysis of the Assembly by the CSO Reference Group, revealed that no less than a third of the MPs in Parliament were former employees or beneficiaries of PBOs. These meetings were a key contributor to the rejection of the Bill.

Invoking the National Assembly Standing Orders, the Clerk invited public input on the bill. Several organisations submitted petitions calling for the rejection of the amendments. On the morning of 25th November, by invitation only, a single opportunity was offered for organisations to appear before the Justice and Legal Affairs Committee. Appearing before the Committee, PBO leaders and the Commission for the Implementation of the Commission pressed the Committee to withdraw the Miscellaneous Amendments altogether or drastically amend them. They argued that the Amendments would substantive changes to existing laws, were being rushed through National Assembly and were, in the case of the PBO Act amendments, anti-developmental.

Like the representation work, PBOs worked together across agencies to coordinate mass and new media work. A key pillar of this work was the publication of a petition for citizens to sign their opposition to the bill. The petition was launched in the city center marking the start of a public procession on 14th November 2013. The petition was also uploaded online to capture wider audiences. In total, 17,170 people had signed the petition online or in person within a week. The signatories came from a various counties most notably Nairobi, Kisumu, Siaya, Machakos, Makueni and Kitui. On 21st November, the petition was received in the National Assembly by Hon Members Gladys Wanga, John Mbadi and Keynan Adan among others. Additionally, 1,500 leaflets were circulated to MPs and members of the public highlighting in plain language the impact of the proposed amendments to the PBO Act to Kenyans and to the PBO sector. A number of press conferences and briefings took place on radio, television, as well as the national newspapers in English, Kiswahili and other Kenyan languages.

The CSO Reference Group noted that just prior to the proposed amendments to the PBO Act, retrogressive media laws had been tabled in Parliament.[15] The Media laws and the proposed amendments to the PBO Act signaled to the Group a deliberate legislative onslaught on the civic democratic space for association and expression. A combined media-PBO approach sought to raise public awareness of the proposed legal provisions affecting both sectors; the potential impact on the country and violations to constitutionally protected rights.

Indeed, the combined attack on media and civil society operational environments gave rise to the twitter hashtags #NGOMuzzle and #MediaMuzzle. Social media was highly effective in raising public awareness. The Twitter hashtag #NGOMuzzle trended on 14th November 2013. A week later @LGE_EastAfrica amusingly used the same hashtag to promote a 32 inch television set. The media covered and highlighted the two street actions that took place in Nairobi protesting the proposed amendments to the PBO Act and proposed media bills. The short notice and limited mobilization opportunity meant that there was a relatively low turnout of the public at the protest; however the coverage of the street actions raised awareness of the impending damage of the proposed changes to the PBO Act.

Power and Interests

Supporters of the proposed amendments to the PBO Act made two main arguments. Firstly, that the PBO sector chronically suffers from a lack of effective apex leadership and insufficient regulation. Poor public transparency, poor accountability to the state and possible duplication of efforts is the result. Secondly, that the sector is overly dependent on foreign donors “hostile” to the Jubilee Government and are being used to fight the President and Deputy President in the ICC trials.[16]

Although the amendments originated from the Ministry of Devolution and National Planning, the technical staff at the Ministry disowned a number of the amendments especially the 15% foreign funding cap. This was later to be repeated in conversations with senior public officials in the Office of the President and National Assembly. Indeed, it was initially unclear what economic and political public policy objective was being served by this restriction on foreign funding. Meeting with the CSO Reference Group, NGO Council and NGO Board on November 21, the Cabinet Secretary suggested that the 15% was a basement rather than a ceiling figure but offered no practical ways how this discretion would be operationalised. Nevertheless, this would pave way for national Government to seize 85% of the funding currently coming to PBOs.

Reaction to the bill came from a number of quarters in November. PBOs under the CSO Reference Group were quick to point out that the amendments substantively changed the spirit and letter of the PBO Act. The NGO Council expressed their concern with the 15% cap while encouraging Government to find ways of holding the sector accountable. The NGO Coordination Bureau[17] called for tighter regulation citing terrorism concerns. Staff from the secretariat of the Kenya Private Sector Alliance privately noted their concern with impact that this would have on service-providers such as banks, hotels, food and medicine distributors among others.

A leading business newspaper columnist noted that while he were not a “blind apologist for non-governmental organisations, civil society, or the voluntary sector in general…(he still found) the law which the government wants to introduce to regulate NGOs and civil society institutions is anachronistic to the extreme”. An evening news programme SMS poll found a slim majority of its viewers were in favor of the amendments. A political advisor noted that the amendments would present the President with another domestic and international credibility problem as he and his Deputy were trying to win back international support for his Presidency. Another pointed out that Government domestic development policy was being blindsided by the ICC process.

A Senator with a long history of participation in the sector noted that the proposed amendments to the PBO Act were the consequence of PBOs losing their oversight and leadership role. He urged that it was time for CSO introspection. How could they raise the performance bar, focus less on donors and more on citizens? Human rights activists argued that the amendments were symptomatic of a growing obsession to control institutions that contribute to checking excesses of the state. A Development Partner agency representative noted that the bill was being watched very closely in their capitals and its passing would have “consequences” not only for PBO funding but the state’s public budget as well.

In the end, the arguments that directly mattered came from a small number of vocal MPs from both sides of the National Assembly on Wednesday 4th December 2013 as the bill came for final reading. Nine legislators urged the house to reject the bill as it violated the constitution, attempted to pass substantive amendments to over 49 Acts bundled in a single bill and was anti-developmental.

Hon James Wandayi argued, “Some of the freedoms that we presently enjoy in this country; some of the freedoms that have made some Hon. Members [of Parliament] to sit here today, have been gained because of the contributions of the NGOs.” Hon James Nyikal stated, “We should even get a way of really getting rid of miscellaneous amendments, if it must be there then it really must be confined to what is explained as minor amendments that do not effect basic changes in Acts.” 164 out of 349 MPs were present. 83 voted against the bill, 73 voted for the amendments.[18] Narrowly, the National Assembly averted the destruction of a fifty year old sector.

With the power of hindsight, what actions ultimately proved to be most directly effective? While all actions contributed to the rejection of the bill by National Assembly Members, probably the most effective were those that related to relationship building, information sharing and face to face discussion with legislators. What proved least ineffective was the attempt to mobilise the public or beneficiaries to march or voice their concerns on the issue. A combination of limited resources and very short window for action may have been factors in this, but going forward this will require attention.

CONCLUSION

The amendments to the PBO Act 2013 threatened freedoms of association. In this regard, they were ultimately an attempt to simultaneously legalise rights violations and grab Kshs 68 billion from the PBO sector. The amendments are a powerful reminder that unless constitutionalism underpins a progressive constitution there are no guarantees.

In early February, unofficial reports state that the President urged MPs to support the Statute Law (Miscellaneous Amendments) Bill and especially the 15% cap when tabled again in Parliament later in 2014. At the time of writing the relationship between National Government and the PBO sector are still tense. The failure of the Cabinet Secretary for Devolution and Planning to announce a commencement date for the PBO Act ironically provides ammunition for those that say the sector is unregulated and the funding would be better managed by National Government. Or, just perhaps, is this the intention?

                                                                                                                                         March 2014


[1]Irũngũ Houghton and Stephanie Muchai work for the Society for International Development and Article 19 Eastern Africa respectively. While both authors are active members of the CSO Reference Group, this article is based on personal experiences and written in their personal capacity. They can be reached on twitter @irunguhoughton and @parchedoasis. They have chosen to use the new term of Public Benefits Organisations (PBOs) instead of the more familiar Non-Governmental Organisations (NGOs).

[2] In 2014, many key leaders in civil society, the political class, mass media and the private sector were active in rolling back the culture of silence, compliance and fear.

[3] Constitution of Kenya 2010 – http://kenyalaw.org/kl/index.php?id=398

[4] For a historical analysis of the Kenyan NGO Sector, see Prof. Patricia Kamere-Mbote “Operational Environment and Constraints for NGOs in Kenya” 2002, http://www.ielrc.org/content/w0002.pdf

[6] Before joining Parliament, Hon Sophia Abdi Noor was herself a PBO leader having led a women’s rights NGO Womankind in Garissa among other roles

[7] The divergent interests and tensions between the various formations could themselves be the subject of a detailed and interesting article. Some are not yet resolved. They include whether the existing structures of the Council and Board will automatically become the Federation and regulatory Body, the balance between vertical regulation by Government or more horizontal self-regulation by the PBOs, what roles international and Kenyan NGOs should play and even whether PBOs should

[10] Article 36, Constitution of Kenya 2010

[11]Sessional Paper No 1 of 2006 on Non Governmental Organisations – http://www.ngobureau.or.ke/Docs/sessional%20paper%20no%201%20of%202006.pdf

[15] Kenya Information Communications (Amendment) Bill 2013 and Media Council Bill (2013)

[16] The President and Deputy President of Kenya have been charged with for crimes against humanity at the International Criminal Court. The President’s case has since been suspended pending the Court’s request to collect more evidence to meet the high evidentiary standards required after key witnesses dropped out.

[18] See Hansard report on discussion of the Statute Law (Miscellaneous Amendments) Bill 2013 http://ow.ly/vbKeM

 

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