- CSOs in Kenya are very vulnerable to harassment, smear campaigns, threats and abusive de-registration procedures.
- It is urgent that the relevant Kenya Kwanza government take necessary measures and improve the environment in which civil society organisations operate.
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The Kenya Kwanza government Manifesto under Governance: Strengthening Leadership Accountability and De-Personalizing Politics commit to Operationalizing the Public Benefits Organizations (PBO) Act, 2013, and expanding space for government-NGO partnerships and collaborations. The Cabinet Secretary, Interior and Attorney General are yet to fulfil this promise.
Civil society sector also often referred as social sector is third sector after public and private sectors. It is an essential ingredient and building block for human development. Civil society is the space outside the family, market and state. The civil society sector plays pivotal role as services provider, public interest advocate, employer, development partner, resources mobiliser, global governance participant and monitor and watchdog. Civil society is a powerful partner in new global diplomacy.
As per Kenya Kwanza government manifestos civil society sector must be accorded a friendly and enabling working environment to operate. The PBO Act, which was signed into law by former President Mwai Kibaki on January 13, 2013, ensures a transparent and efficient regulation of civil space in Kenya. The law complies with the 2010 Constitution of Kenya, and with international best standards.
In spite of two court rulings ordering the commencement of the PBO Act, civil society in Kenya is still regulated by the restrictive framework set up by the 1990 NGO Coordination Act. The 1990 NGO Coordination Act is a retrogressive and archaic law inconsistent with 2010 Constitution. The Act was deemed repealed with signing into law of PBO Act and expiry of 14 days as set out in the Constitution for the new law to take effect.
All old order laws and regulations pre-existing before 2010 Constitution promulgation and whose timeline has expired need to expunged and removed from statutes. This includes the oppressive and repugnant NGO Coordination Act. The Parliamentary Constitution Implementation Oversight Committee ought to conduct a comprehensive audit of such old laws and take appropriate actions.
The High Court orders in 2016 and 2017 declared that the decision by the Ministry to appoint a Taskforce to amend and or propose amendments to the PBO Act, before it became operational, was illegal and contravened Articles 10, 94, 116(2), 129, and 153 (4) of the Constitution. The two High Court judgments ordering the commencement of the Act were blatantly ignored by the Government. This disobeying of court orders portray Government as rogue. Further, the Parliament rejected in total proposed amendments to the PBO Act. The PBO Act 2013, must be operationalized and implemented now to unlock the enormous benefits that the social sector bring to Kenyans.
The PBO Act was done through an intensive and long consultative process. It reflects the joint commitment of different stakeholders to enabling environment for civil society sector. PBO Act represents a progressive piece of legislation which would comply with national and international standards and contribute to ensure a transparent, efficient and accountable self-regulating civil society sector.
The Civil Society Reference Group, an umbrella of international and national CSOs in Kenya which has been leading the consultation process during the preparation of the PBO Act, is currently at the forefront of leading new campaign for the implementation of the Act. CSRG avers that civil society organisations in Kenya remain subjected to an outdated legislation, and failing domestic and international standards on democratic civic space and freedom of association.
CSOs in Kenya are very vulnerable to harassment, smear campaigns, threats and abusive de-registration procedures, broken promises put human rights defenders at risk. It is urgent that the relevant Kenya Kwanza government authorities take necessary measures and improve the environment in which civil society organisations operate by immediately implementing the PBO Act. The delay in implementing PBO Act is adversely affecting not only working environment but equally important investment in strengthening the capacities of CSOs and funding opportunities that the sector brings into the country. With PBO Act in operation, Kenya will be a key leader and hub of regional think tanks and NGOs with wealth of knowledge, expertise and resources.
By implementing PBO ACT, the Kenya government will put an end to the public stigmatisation of human rights defenders and civil society organisations. It will publicly recognise the legitimate and crucial role they play as pillars of development, service delivery, democracy and watchdogs of the rule of law. Further by enforcing the High Court rulings of 2016 and 2017 will put an end to the current legal limbo concerning the regulations of NGOs and immediately implement the PBO Act of 2013, without any restrictive amendment that could undermine the principles enshrined in the Act as signed into law on January 14, 2013.it will create the new necessary institutions, such as the PBO Authority and the National Federation of PBOs, and allocate them the required human and financial resources so they can fully implement the Act.
The new call by CSRG to the Kenya Kwanza government to fully bring into operation and implement of the PBO Act 2013 as originally passed and signed into law is watershed for the CSO sector in Kenya.
Transitional Justice and Human Security Fellow, @NdunguWainaina