Legal limbo leaves Kenya civil society vulnerable to targeting

NAIROBI — One week after Kenya’s general election in August, five vans filled with members of the nation’s revenue authority and police force stormed the office of pro-democracy organization Africa Centre for Open Governance (AfriCOG), telling employees they had a search warrant to cart away their files and databases. The raid was planned the same day an umbrella network of NGOs, including AfriCOG, were to hold a press conference about the contested presidential vote.

The search warrant lacked key information, including the name of the judge or magistrate who issued the warrant, AfriCOG said. Earlier that week, the government’s NGOs Coordination Board deregistered AfriCOG, along with the Kenya Human Rights Commission, ordering a freeze on their financial accounts for administrative offenses, including, in AfriCOG’s case, failing to register as an NGO.

Yet Acting Interior Cabinet Secretary Fred Matiang’i had learned about the day’s events only through the news. He halted the raid, ordering that the financial accounts be unfrozen. In a letter to the head of the NGOs Coordination Board, he gave the organizations and stakeholders 90 days to work out the noncompliance issues with the board.

To many civil society organizations in Kenya, the whirlwind events were an all too common reminder of the complicated — and at times arbitrary — way that their activities are governed. Some believe the government prefers it that way; unclear rules offer leeway for authorities to target their work on governance and human rights.

Civil society organizations here register as NGOs, companies, societies, or trusts, an assortment that makes them vulnerable to deregistration and even banning. This confusing structure was supposed to change in 2013, after the passage of the Public Benefits Organizations Act. The law was meant to revamp and streamline registration and enhance the dialogue between civil society organizations and the government. Many civil society organizations applauded the legislation, welcoming the chance for a more constructive relationship with government.

But the law has yet to take effect, because the cabinet secretary of the Ministry of Interior and Coordination of National Government has not published the law in the official gazette, despite several Supreme Court rulings requiring it to do so.

The resulting legal limbo has contributed to a climate of mutual distrust between the government and civil society. Civil society organizations are perceived to wield influence in monitoring elections; AfriCOG, for example, questioned the nation’s preparedness in the lead up to the August vote, and KHRC was critical of the torture and murder of a key election official in the week leading up to the election. Samuel Kimeu, executive director of Transparency International Kenya, told Devex that President Uhuru Kenyatta and his government also distrust civil society for their perceived role in providing information to the International Criminal Court, which indicted Kenyatta in connection with violence following the 2007 election, although the charges were later dropped.

“I think [the attempts to deregister civil society organizations are] part of an on-going effort to silence civil societies. It seems President Uhuru Kenyatta wants obedience, silence, and loyalty,” said Harun Ndubi, a lawyer for AfriCOG.

Stalled legislation

In 2013, then-President Mwai Kibaki signed the Public Benefits Organizations Act, creating a more streamlined regulatory process for civil society organizations. The law clarified registration criteria, established timelines for how long an application can be processed, and limited the powers of the new body tasked with managing NGOs, the Public Benefits Organizations Regulatory Authority. Under the new law, this authority can only cancel or suspend registration of an organization under specific guidelines.

The CSO Reference Group, an umbrella network of local and international NGOs and civil society organizations operating in Kenya, played a key role in developing the legislation, providing the government with input on how to improve the sector. More than 1,500 civil society leaders offered their input over years of consultation.

Yet until the new law is implemented, civil society organizations remain regulated under the NGO Coordination Act of 1990, which empowers the NGOs Coordination Board to monitor and register organizations. The board has broad authority to refuse registration, and cancel or suspend a certificate of registration. The board also advises the government on the activities of NGOs in order to ensure they comply with national interest.

The government “takes advantage of the more restrictive NGO Coordination Act of 1990, still in place,” according to May 2017 report from the Observatory for the Protection of Human Rights Defenders.

In 2015, for example, the NGOs Coordination Board said that it did a forensic audit of more than 10,000 NGOs and found 957 of them noncompliant, saying that some had failed to account for funds they received. The board said it would deregister the NGOs and ordered the Central Bank to freeze their accounts.

KHRC, one of the NGOs found to be noncompliant, took the case to the country’s Supreme Court, which found that the NGOs Coordination Board’s actions were “unconstitutional and void.” Despite the ruling, however, the NGOs Coordination Board targeted KHRC again for deregistration in 2016 and in August.

Even after the PBO Act passed, civil society organizations say the government has tried to dilute it. In October 2013, under the new administration of President Uhuru Kenyatta, the attorney general of Kenya submitted the Miscellaneous Amendment Bill to the National Assembly, which was adopted by Parliament in November. The bill included 13 amendments to the PBO Act, aimed at restricting the activities of civil society organizations, including efforts to cap the amount of funds Kenyan NGOs can receive from foreign sources to just 15 percent of their budget.

“This is a country that has no history of local philanthropy. It basically puts these organizations out of existence,” said Dr. Alex Awiti, director of the East African Institute at The Aga Khan University in Nairobi.

This amendment was similar to Ethiopia’s 2009 Proclamation for the Registration and Regulation of Charities and Societies, which prohibits organizations that receive more than 10 percent of their funding from foreign sources to work on human rights issues.    

The CSO Reference group said the amendments would “brazenly undermine the spirit of the PBO Act.” After pushback from civil society, coupled by a detailed impact assessments on the negative impacts of the amendments in areas including health, education, sanitation, legal aid, and housing, Parliament rejected the bill during the second reading.

NGOs react

Amid the regulatory uncertainty, many civil society organizations try to register using the legal category least vulnerable to pressure.

Kenyan law creates four types of not-for-profit organizations: companies, societies, trusts, and nongovernmental organizations. Organizations such as AfriCOG register as companies “limited by guarantee,” so that they aren’t beholden to the whims of essentially one person, the executive director of the NGOs Coordination Board, said Kimeu of Transparency International Kenya. If a not-for-profit is registered as a company “limited by guarantee,” then its dismantling would have to be undertaken through a court process, he said. But even structuring their organization this way does not prevent them from becoming a target.  

To find a longer term solution, NGOs may need to be more transparent, and the government needs to clarify its procedures and rules, said Monica Asuna, head of Kenya’s Aid Effectiveness Secretariat and senior economist at the National Treasury. NGOs must communicate more clearly and transparently with the government about their work and how their funding is used, she said.

Civil society groups say they need a platform for that conversation, through which they can air grievances. Until a more permanent solution is found, the Civil Society Reference Group can serve as a unified platform to voice any concerns to the government, said Asuna.

Campaign promises

Opposition presidential candidate Raila Odinga signed a commitment that if elected, he would enact the PBO Act within 14 days, said Collins Odiwuor, a program officer at the CSO Reference Group. A planned rerun of the presidential election is scheduled for this month,  following the annulled August vote. But Odinga announced on Oct. 10 that he will not participate in the election, alleging that the problems present in August’s election have not been solved. The electoral commission will now meet to decide on how to proceed given Odinga’s withdrawal.

Civil society groups are not optimistic that under the status quo, relations between government and civil society will improve.

“The civil society in Kenya has come under spirited attacks and there is no sign that administrative and regulatory acts of intimidation are about to cease against the sector,” said Suba Churchill, presiding convener of the CSO Reference Group.  

The PBO would “give us freedom,” said Odiwuor. “Right now we are being gagged.”

Read more international development news online, and subscribe to The Development Newswire to receive the latest from the world’s leading donors and decision-makers — emailed to you free every business day.