INTRODUCTION
J
N Brass in 2010 concluded a 21 month study
of the impact of NGOs to the state of Kenya and found that NGOs have helped to
strengthen the Kenyan state. Territorially, NGOs have extended the reach
of the state by providing services in places that the government has been
unable to reach, particularly in arid, sparsely populated areas. NGOs have
improved state capacity by extending services to sectors or communities
for which public agencies do not have adequate resources. This extension can be
quite literal, as when NGOs provide fuel or vehicles for civil servants’
transportation to outlying areas. NGOs have also become increasingly active
partners in governance, helping to formulate national social policies
regarding service provision. Government actors often now mimic the tools
typically employed by NGOs, calling for participatory development and civic
education. This has instigated a slow turn toward more democratic governance
processes. Finally, NGOs have increased the legitimacy of the state, as
the provision of services lowers popular frustration below the point where
citizens might become alienated. Survey research shows, for instance, that
citizens associate NGOs’ good deeds with local government administration, which
often gets credit for bringing NGOs to the community.
It
is clear from the onset that if cooperation and a good working relationship
exists between the Government and the NGO sector exists the country benefits
and development occurs in leaps and bounds. However, the opposite is true; if
the NGO-state relationship is adversarial the losses increase exponentially
(both economic losses as well as development losses). This has been stressed even
by the World Bank. In an article authored by John Clark (World Bank, 1995)
it is stressed the importance as well as the foresaid benefits of the state-NGO
relationship. Clark continues to explain the barriers of this relationship to
include unfavorable legal policy.
Other
barriers identified here included Political jealousy. Governments may not want
to foster a healthier NGO sector for fear of bolstering the political
opposition. Another barrier is donor suspicion. A government might be more
suspicious of NGOs which are highly dependent on foreign funds and therefore
might impugn their motives as "guided by a foreign hand."
This
is the situation at present in Kenya. What is observed is an attempt at
severing the good relationship between the government and NGO sector. The
proposed amendment to the Public Benefits Organizations Act purports to clamp
the financial capacity of NGOs by making illegal foreign funding beyond 15%.
The 85% drop cuts out literally 85% of the NGOs’ budgets with the pretense that
government will cover these costs. The government has no financial backing to
meet these costs as it lacks funding even for its own projects like the early
primary ICT intervention of Laptops. The Laptop project was cancelled due to
lack of funding.
NGOs
on the other hand have managed to fund raise 100% of their Budgets. The amounts
so far raised even may not cover all costs required to run the NGOs’ programs.
The amounts raised have indeed provided the means for NGOs to operate and many
have achieved their objectives and core mandates in serving the people. By using statute to cut out NGO sources of
revenue the government will cut out operations. This notwithstanding, the costs
which have been privately met through donors will now be passed to the public
through taxes. It is worth noting that taxes are the only source of government
revenue. Otherwise the government also must rely on donors, an option which it
purports to deny NGOs by 85%. This is by unfavorable legal policy.
By
purporting to be sole provider of 85% of NGO revenue, the government seeks to
control operations of all NGOs. Control here can be read as undue and illegal
interference. Based on the premise that the funders of any project seek to
unduly influence the project, a notion wrongfully and politically instigated,
the government is seeking to unduly influence the operations of NGOs. If the
government denies this notion then it cannot rely on the premise that foreign
funding has any political bearing in terms of influencing the NGO sectorial agenda.
This thus illustrates the barrier of Political Jealousy. The reality is that if
the government is left to control the only system of holding it accountable to
its obligations of Human Rights and Good Governance, nothing will stop the
government from its violations.
The
second limb to the ongoing is that the government may fear to bolster a healthy
NGO sector since this may bolster the opposition side of government. It is
simple enough here to say that a government without an opposition side is
simply a dictatorship and not a democracy. A government without checks and
balances is a rogue government with no legitimacy whatsoever. This cannot be
said of the Jubilee government.
The Public Benefits
Organizations Act, 2013 (No. 18 of 2013)
The
PBOs Act is an Act of Parliament that provides for the establishment and operation
of PBOs, provides for registration of PBOs and establishes an administrative
and regulatory framework within which PBOs can conduct their affairs.
The
Act was developed as a result of the new Constitution of Kenya, 2010. The
development of this law was predicated on the need for a new law to govern
Civil Society Organizations (CSOs) that were previously governed by the
repealed Non-Governmental Organizations Co-ordination Act of 1990.
Unlike
in the past when the docket fell under the Ministry of Home Affairs, the
administrative and regulatory framework within which PBOs operate is now placed
under the Ministry of Planning and Devolution.
The law defines a public benefit
organisation as a voluntary membership or non-membership grouping of
individuals or organisations engaged in public benefit activities in any or a
combination of the following: legal aid; agriculture; rights and welfare of
children; culture, working with or for persons with disabilities, energy,
education; environmental conservation; gender issues, governance; poverty
eradication; health; housing and settlement; human rights; and HIV/Aids.
One
disadvantage of the Act is the requirement that all NGOs registered under the
NGO Act need to register afresh under the PBOs Act within a year after the
commencement date is published. This clause should be repealed and the same be
amended to state that all NGOs registered under the NGO Act need to ensure
compliance in accordance with the PBOs Act within a year after the commencement
date is published. This is because the PBOs Act deems all NGOs registered prior
to the commencement of the Act as PBOs under the PBO Act. As such the
requirement to register the same afresh is superfluous.
The Miscellaneous
Amendment Bill, 2013
This
Bill published on 30th October, 2013 seeks to amend The Public
Benefits Organizations Act, 2013 (No. 18 of 2013).
The
Bill seeks to cap the amount of foreign funds public benefit organization
receive from external donors to 15 % of their budget as outlined in Section 27 A. (2). NGOs will only
get more than 15% from foreign countries if they demonstrate legitimate and
compelling reasons for increasing the amount. This will require the approval of
the Cabinet Secretary responsible for Finance. Considering that most NGOs
receive almost 100% from foreign funding, this will clearly clamp down on the
activities of NGOs and cripple their source of funding which is
unconstitutional since Article 36 provides for freedom
of association.
Section 27 A. (1)
provides that: “Any funding of a public benefit organization shall be made
through the federation and not by an individual members’ organization.”
These
amendments seek to control the NGOs sectors which are deemed to be
anti-establishments in some quarters. Section
27 A. (4) and (5) provides that the Cabinet Secretary shall make
regulations to provide for funding by the Government which shall establish
percentage ceilings of funding to Public Benefits Organizations by overseas
development assistance.
The
big question is what criteria the Council is going to use to come up with
regulations which will provide facilitative mechanisms of funding the PBOs.
The Jubilee Manifesto
On
page 65 of the manifesto, it provides that: “The Jubilee
Coalition government will introduce a Charities Act to regulate political
campaigning by NGOs to ensure that they only campaign on issues that promote
their core remit and do not engage in party politics. This will also establish
full transparency in funding both for NGOs and individual projects.”
The
manifesto also provides for an establishment of a Charities Agency to provide
an annual budgetary allocation to the NGO sector.
This
provision seeks to curtail the freedom of expression under Article 33 of the
Constitution for NGOs which have been very vocal in their support of the
International Criminal Court (ICC) and their efforts to bring justice for the
victims of the 2007-2008 post-election violence.
The
realization of democratic governance reforms aspirations will stagnant once
human rights institutions are funded by the Government. UNDP which
envisions a democratic system as issue-based, people-centered, results oriented
and accountable to the public will be thrown to the dogs. Transformation of the
country’s political governance across five strategic areas; The Rule of Law;
Electoral and Political Processes; Democracy and Public Service Delivery;
Transparency and Accountability; Security, Peace Building and Conflict
Management will be non-existent once rights to freedom of expression, assembly and
association as per the Constitution are infringed upon.
The
Government should acknowledge that the culture of democratic
governance moves beyond the mere procedures of democracy and the establishment
of democratic institutions. It involves promoting the sustainability of
democracy which includes an enduring capacity for: the separation of powers and
independence of the branches of government; the exercise of power in accordance
with the rule of law; the respect for human rights and fundamental freedoms; and,
the transparency and accountability of a responsible civil service, functioning
at both the national and local levels.
A
state which identifies with the culture of democratic governance is one which
welcomes a wide scope of political participation embracing a pluralistic system
of political parties, a vibrant civil society and media.
Three major effects
of having NGOs controlled by Government funding
(1) Economical
The
Government is not able to wholly finance its own budget and relies on
concessionary loans from other countries to chip in the deficit. In the 2013/14
Kenyan budget, the overall deficit amounted to Ksh.356.9 Billion. The deficit
has been contributed over the years by the Government adopting an expansionary
fiscal policy to support medium to long-term growth objectives under the Vision
2030.
In
such a scenario, it places the NGOs sector in a precarious situation if the
amendments got through since they will be starved of funds creating operational
hitches and may ground them completely in their activities. The Government will
mostly fund activities on a need basis.
(2) Social
The
amendments will curtail the freedom of expression and association as espoused
in the Constitution of Kenya, 2010. This is majorly due to the fact that they
will have been reduced to dancing to the tune of the piper because for he who
pays the piper calls the tune.
Once
freedom of association and expression has been attacked, impunity will take
root where past and current human rights violations, including unlawful
killings will not be addressed adequately. Arbitrary arrests by police of human
rights defenders will be the order of the day. This is largely attributable to
the culture of impunity which Kenya has still not overcome.
In
the wake of the devastating terrorist attack on Westgate Mall in Nairobi on
September 21, many Kenyans and international human rights defenders are still
concerned about possible human rights violations by Kenyan security forces as
they investigate and seek accountability for the attack and future threats.
In
such a scenario, the NGOs being funded by the Government will not be in a
position to criticize the Government effectively since the counter-terrorism
actions which it undertakes will mostly be characterized by human rights
violations, including allegations of arbitrary detention, unlawful renditions,
physical abuse, and denial of due process rights.
Having
NGOs which are independent of Government control will ensure that the
Government is held accountable by pursuing counter-terrorism activities which
do not entail human rights violations.
Muzzling
the NGOs through controlling their budget will ensure that they do not publicly
disclose any violations thus legitimizing the human rights abuses and if they
do disclose, it will be more of a public relations stunt.
Access to information as espoused in Article
33 of the Constitution shall be curtailed since the State will not
allow publication and publicizing of any information which criticizes its
operations.
(3) Political
The
NGOs sector will be reduced to sycophancy where they will mostly promote the
interests of the Government instead of the people of Kenya. This is because the
Government will be contributing a large chunk of their budget and it is
difficult for one to bite the hands that feed them.
Human
rights violations will be committed unabated. The current Government is yet to
deal with or still grapples with four key human rights challenges in which the
administration should ensure that abusive security forces are held accountable,
protect independent voices, accelerate key police and land reforms, and
co-operate fully with the International Criminal Court (ICC).
A
Government which funds PBOs will have no political will to implement recommendations
in human rights abuse reports. A case in point is where the current Government
has been foot-dragging itself in the implementation of the recommendations of
the final report on Truth, Justice and Reconciliation Commission. Despite the
strict time lines outlined in the report released in May, 2013, none of the
recommendations have been acted upon and the Implementation Committee which was
to provide quarterly reports on the progress made is yet to be established.
The
Government seems to be suspicious of NGOs which are highly dependent on foreign
funds and therefore might impugn their efforts as “guided by a foreign hand”.
In
2003, Kenya National Commission on Human Rights (KNCHR) was set up as a
national human rights institution (Government owned human rights watchdog) with
a mandate to ensure Kenya’s compliance with international human rights
standards. In the KNCHR’s “Cry of Blood-Report on Extra-Judicial
Killings and Disappearances” published in September 2008,one of the key
findings was that forced disappearances and extra-judicial killings appeared to
be the official policy by the Kenya Police which constituted crimes against
humanity. On 5th March 2009, two human rights investigators who were
involved in the investigations documented in the report, Oscar Kamau Kingara
and John Paul were assassinated. The assassinations were attributed by the NGOs
to the security forces.
These
assassinations demonstrate that critiquing Government institutions places you
in a precarious position since they prefer atrocities committed to remain
unreported or to be poorly reported. This is done by placing excessive
restrictions on the work, operations, and funding of national human rights
institutions.
A
challenge facing Government owned human-rights watchdog which they fund is
uncertainty of political goodwill towards the promotion and protection of human
rights due to lack of commitment. This could affect their funding from both the
Government and development partners. In the KNCHR Strategic Plan ending 30th
June of 2013,the level of funding by the Government of Kenya and the donors was
at the ratio of about 50:50 basis. The Government funding has mainly
contributed to the financing of personnel emoluments and other operating
expenses while donor funds have been used in the programmatic work. In the
2013-2018 Strategic Plan, KNCHR will strive to advocate for increase of
Government to donor funding ratio of 50:50 to 70:30 per cent. The projected
funding of KNCHR is as presented in the table below:
Projected
Funding for the period 2013-2018
SOURCE
OF FUNDS
|
2013/2014
|
2014/2015
|
2015/2016
|
2016/2017
|
2017/2018
|
TOTAL
|
|
|
|
|
|
|
|
GOK
|
320,090,00
|
392,122,203
|
470,546,643
|
611,710,637
|
672,881,700
|
2,467,351,183
|
|
|
|
|
|
|
|
Donors
|
383,834,097
|
358,684,064
|
319,228,817
|
280,921,359
|
309,013,495
|
1,651,681,832
|
|
|
|
|
|
|
|
TOTAL
|
703,924,097
|
750,806,267
|
789,775,460
|
892,631,996
|
981,895,195
|
4,119,033,015
|
|
|
|
|
|
|
|
Development/Programme
|
364,924,097
|
369,856,553
|
380,553,609
|
430,211,304
|
473,232,434
|
2,018,777,997
|
|
|
|
|
|
|
|
Direct/Indirect
Overhead
|
339,000,000
|
380,949,714
|
409,221,851
|
462,420,692
|
508,662,761
|
2,100,255,017
|
|
|
|
|
|
|
|
TOTAL
|
703,924,097
|
750,806,267
|
789,775,460
|
892,631,996
|
981,895,195
|
4,119,033,015
|
Anticipated
risks of Government owned human rights watchdogs;-
Ø Strategic risks
Lack
of support from stakeholders in some of the proposed strategies and activities
since donors would not see the benefit of funding a Commission which plays to
the gallery of the Government.
Ø Operational risks
Most
Commissions funded by the Government have inadequate staff and high staff
turnover due to lack of a transparent and efficient recruitment process due to
political patronage. Currently, the KNCHR is facing a challenge in the
appointment of new commissioners which might present some functioning disharmony
if it is not properly handled. This has been majorly contributed to by the
political intrigues of the current Government.
Ø Financial risks
Inadequate
or delayed funding from the Government and development partners which leaves
them at the mercy of the Government who will now call the shots.
Case study of other
jurisdictions of NGOs exclusively controlled by the State
Ethiopia
The
Charities and Civil Societies Proclamation (CSO) Law proscribe human rights
organisations from getting more than ten per cent of their funding from abroad.
The
CSO Law designated any organisation receiving over 10% of its funding from
abroad as “foreign NGO”. Once designated as such, an organisation is not
allowed to engage in activities concerning democratic and human rights,
conflict resolution or criminal justice.
The
CSO law also provides for the establishment of a regulating body-the Charities
and Societies Agency-with extensive, albeit unclear and arbitrary powers over
the registration of charities and over how they work.
This
is draconian and is meant to crackdown on dissidents which limits the
legitimate activities of both local and international CSOs undertaking
developmental work.
Since
the CSO law was passed in 2009, the vast majority of
independent nongovernmental organizations working on human rights issues in
Ethiopia have been forced to discontinue their work, many prominent human
rights activists have fled the country, and human rights groups that have
attempted to continue their work are struggling to survive due to the funding
restrictions contained in the law.
Malawi and Togo
In
a press statement done in Geneva and released by the Network of African
National Human Rights Institutions (NANHRI) on behalf of all African National
Human Rights Institutions (NHRIs) on 21st March 2012, on events that
occurred in Malawi and Togo clearly demonstrated that Government owned human
rights watchdogs lacked independence as perceived by many.
In
the case of Malawi, the Chairperson of the Human Rights Commission of Malawi
then, Mr. John Kapito, was incarcerated by the State on alleged charges
resulting from his attempt to fulfill his Commission’s mandate.
In
the case of Togo, the chairperson of the Commission
National des Droits de l’Homme du Togo then, Mr. Koffi Kounte, was forced
to seek refuge in France after he released a report that the Togolese
Government considered unfavorable.
The
case studies above clearly demonstrate that even if the Commissions promote and
protect human rights within the ambits of the law and as set out in their
mandates, they are expected to play to the whims of the Government no matter
what, resulting in the Government being disrespectful of the institutions which
they themselves established.
CONCLUSION
Members
of Parliament seem to be keen to support any move which will weaken the Public
Benefits Organisation Act in particular provisions which relate to NGOs
engaging in public interest litigation and advocacy. For individual NGOs to
operate effectively, the most favorable policy setting is when legal
restrictions are minimized, when they have complete freedom to receive funds
from whomsoever they choose, to speak out as they wish and to associate freely
with whoever they select.
In
this view the Government is obligated to establish independent and credible
institutions that monitor and prevent human rights violations, corruptions and
maladministration. A healthy NGO sector is instrumental to manifest this
constitutional ideal. The cutting of 85% of self-obtained funding and
replacement by a promise from our Government and already suffering economy is
simply a lie and a self-deception. This can only result in a weak NGO sector,
something desired only by rogue governments. Kenya is not one of these.
