Kenya's security bill reinforces fears of NGO crackdown

Kenya’s move to deregister more than 500 nongovernmental organizations last week may have taken many from the international development community by surprise, but not organizations working on the ground. These groups have been battling crippling measures against the NGO community that the government has been trying to introduce for more than a year now. The security bill President Uhuru Kenyatta signed into law Friday is just the latest. Under the new legislation, which officially is the government’s response to the Somali militant group al-Shabab’s increased attacks in Kenya’s northeastern region, authorities are given the power to classify civil society organizations — dubbed public benefit organizations in Kenya — “in the prescribed manner.” It signals the creation of a new category to classify PBOs, but Emerson Sykes, legal adviser for Africa at the International Center for Not-for-Profit Law, is concerned that the legislation does not specify or indicate the implications of the provision. One worrying result is many organizations are already interpreting the law as one that aims to control their operations and may be subject to abuse. In an analysis submitted to parliament and members of the National Assembly, the Kenya National Commission on Human Rights and several CSOs argued that the clause does not relate to the issue of security at all, and suggested the following revision: “A stronger provision would be to allow the registering body to disallow registration on grounds that the objects and purposes of the PBO are a threat and then allow for deregistration if the activities can be deemed as a threat to security.” And these CSOs have cause for concern, as they’ve spent the past year battling proposed amendments to the Public Benefits Organization Act. The latest one proposed by the National Council of NGOs and the Ministry of Devolution and Planning in October brings back proposals that parliament previously rejected, such as capping a PBO’s foreign aid funding to 15 percent of its budget and empowering the PBO Regulatory Authority to impose terms and conditions for issuance of registration. The proposed amendments The 15 percent cap closely resembles Ethiopia’s law on charities and societies, although it is slightly higher and broader. Under the 2009 law, the Zenawi government capped foreign funding for organizations working in the areas of democracy promotion and human rights at no more than 10 percent of their budgets, which significantly limited the work to a few Ethiopian charities and societies. The proposed amendment in Kenya meanwhile does not, as of yet, clarify whether the foreign funding limitation is only for groups working on certain sectors. But it proposes that an organization that seeks to maintain more than 15 percent of its funding from foreign sources must register as a foreign PBO. The rationale behind it, according to an explanatory memorandum circulated by the council and the ministry and obtained by Devex, was “to ensure that PBOs carry out activities that are supported by the Kenyan people and foreign funding is not used to crowd out national priorities and agenda.” But there are more. The National Council of NGOs and the Ministry of Devolution and Planning have proposed to remove registration exemptions from organizations that do not implement programs in Kenya, but are based in the country to do work in the region. They also do not see the need to include provisions that compel the government to engage PBOs in policymaking or coordinate its work to ensure PBOs can “perform their functions,” or to honor earlier provisions in the PBO Act. These include tax incentives — such as tax exemptions for PBO employees and for income made from membership subscriptions, donations and gifts, and those acquired from income-producing activities — and preferential treatments in public procurement and contract bidding. Sykes said the incentives were laid out as government responsibility “in broad language” in the PBO Act, but “that responsibility has been deleted essentially” in the proposed amendment. Instead, the council and the ministry are proposing what CSOs claim as additional burden — and cost — to their work, such as publication of PBOs’ annual audited financial accounts in at least two daily newspapers of national circulation and submission of their financial accounts within three months instead of six after each financial year. These requirements would not only pressure groups to produce their financial accounts in a limited time frame, but also to allocate a significant portion of their budget for newspaper advertisement. CSOs estimate they will have to spend about 350,000 shillings ($3,900) per advertisement, as opposed to publishing audited accounts in their respective websites and just making hard copies available. Other amendments CSOs oppose or request for further analysis include: ▪ Increasing the number of Kenyans at PBO boards, including those of international NGOs, to two-thirds of membership. ▪ Stipulating PBOs to be a member of the National Council of NGOs. ▪ Giving the president the power to appoint the board’s chairman. ▪ Requiring organizations not just to register, but also be recognized by the government. ▪ Necessitating registry entry, not certificate, as conclusive evidence of an organization’s authority to operate in Kenya. Sykes said if these amendments are passed, it would be the beneficiaries of these CSOs — whether they are engaged in delivering services or in protecting people’s rights — who will “hurt most.” The potential ramifications In other countries where similar laws were passed, civil society actors were often subjected to increased government scrutiny. In Russia, for example, foreign-funded organizations that are involved in human rights work are required under the law to register as “foreign agents.” And those that refused to do so were subjected to numerous inspections and scrutiny. In Ethiopia, meanwhile, the number of human rights and democracy promotion groups has gone down. Some of them have repurposed their activities to work in sectors where there are no restrictions on foreign funding. “The fear is that in the regulations pursuant to the PBO Act, because it’s not spelled out especially clearly, there might be some provisions for what additional requirements or limitations may be applied to foreign PBOs,” Sykes said. “It’s hard to imagine they’ve laid that category if they didn’t have those restrictions in mind.” An aid official who spoke on condition of anonymity noted these efforts may also be due, in part, to the belief that if parliament approves these limitations, aid money that would normally be channeled to NGOs would be redirected to the government. An aid corruption scandal in 2010 had led a number of donors to suspend budget support to the Kenyan government. This included the United Kingdom, Kenya’s second-largest bilateral donor, which is still channeling all of its development assistance through nongovernmental channels. If Ethiopia’s case is anything to go by, however, a rerouting of aid money from NGOs to the government may just be a pipe dream. Instead of redirecting money to official channels, several donors to Ethiopia struck a deal with the government allowing them to set up a local fund for CSOs or focused their attention elsewhere. Although the PBO Act has been passed, it is yet to be implemented. And going by recent history, when none of the previous amendments went past the second reading in parliament, the changes the National Council of NGOs and the Ministry of Devolution and Planning want made — and what CSOs are objecting to — may not be approved as well. In addition, the government recently launched a multistakeholder task force, which includes several civil society actors, to evaluate the proposed changes to the PBO Act. The task force has a three-month mandate, according to Sykes. ICNL is working with the task force, helping provide input and supporting civil society members. “It remains to be seen how effective it will be. We hope that it will be an opportunity for a genuine dialogue in that they will take on board some of the concerns by different stakeholders, but it’s [still] very early,” Sykes said. Check out more insights and analysis provided to hundreds of Executive Members worldwide, and subscribe to the Development Insider to receive the latest news, trends and policies that influence your organization.