BAD LAWS

No approval needed to prevent, counter violent extremism

Proposed amendment unconstitutional and violates fundamental rights and freedoms.

In Summary

• Reporting to and seeking the NCTC’s approval will erode public goodwill.

• In preventing and countering violent extremism, it is crucial CSOs and government maintain their separate identities.

Last Friday, President Uhuru Kenyatta assented to the Miscellaneous Amendment Bill, 2019. By so doing he brought into operation an amendment to the Prevention of Terrorism Action that requires all civil society organisations and international NGOs to report to and seek the approval of the National Counter Terrorism Centre to undertake their work on prevention and countering violent extremism.

This amendment is unconstitutional, and violates fundamental rights and freedoms. It is also unattainable considering the broad and massive reach of PCVE. CSOs from the Coast this week came out strongly to oppose this amendment and demand that it be expunged in totality.

Our reasons are simple and obvious. To begin with, with this new amendment the NCTC will be overstepping its original mandate as provided under Section 40A of the POTA Act. Section 40A does not bestow upon the NCTC powers to receive reports or approve CSOs’ PCVE work.

 

Secondly, as civil society organisations our mandate is to operate devoid of government influence, control and manipulation. This new clause will take away the autonomy and independence of CSOs, which play a crucial role. In PCVE work, it is imperative that CSOs remain independent as they do their work.

In the current political dispensation, CSOs remain the only independent voice of the people. They enjoy public goodwill and are approached by individuals and social groups for assistance. Having to report to and seek approval from the NCTC will erode this goodwill as they will be seen to be part and parcel of government. In PCVE, it is crucial for CSOs and government to maintain their separate identities.

Kenya’s civil society is broad and covers NGOs, CBOs, Trusts, grassroots organisations, funeral committees, football associations, etc. Will this provision cover all entities, including funeral committees, that may touch on PCVE?

Thirdly, all CSOs already report to a central government entity. This amendment will duplicate roles as NGOs will be required to report to two different state entities. Fourthly, the NCTC and government, in general, have no capacity to approve every PCVE activity. The nature of PCVE is that it is broad and engages all citizens. It is both at the individual and groups level, and as such it is impossible for any entity to approve every activity on PCVE.

Fifth, PCVE is broadly interpreted to include social, political and economic activities. To what extent will the reporting and approval be sought for? Further, Kenya’s civil society is broad and covers NGOs, CBOs, Trusts, grassroots organisations, funeral committees, football associations, etc. Will this provision cover all entities, including funeral committees, that may touch on PCVE?

Sixth, on confidentiality matters, CSOs work includes legal affairs where they receive certain information in confidence. This confidential information is given in trust and must be treated as such. Declaring that CSOs must report to State institutions will take away the confidentiality in PCVE work, which will erode the trust CSOs have with their clients.

Seventh, in the development of County Action Plans to Prevent and Counter Violent Extremism, the NCTC has clearly presented its principle of non–coercive approach. Through this approach, the NCTC has managed to ensure support, cooperation and coordination with CSOs. This new amendment introduces coercion in PCVE and will take away the voluntary partnership with CSOs that the NCTC has enjoyed so far.

As legal entities, CSOs and INGOs have guaranteed freedoms of association and assembly. This amendment takes away that freedom by forcing them to associate with certain actors. This violates the rights and freedoms guaranteed in Chapter 4 of the Constitution. For all the above obvious reasons, Coast CSOs fail to understand why the State went ahead with this ludicrous amendment.

 

Moving forward, the CSOs demand that the specific amendment touching on CSOs in the Miscellaneous Amendment Act be expunged in totality and the independence of CSOs to undertake PCVE work be assured and guaranteed by government, and in particular the NCTC.

We call on the authorities to take action to remedy the situation immediately. Failure to which we shall explore other options at our disposal to push for the deletion of the new clause, including seeking court’s intervention and exercising our rights under Article 37 of the Constitution to demonstrate and present petitions.

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