WHY NGOS ARE JITTERY OVER THE PUBLIC BENEFITS ORGANIZATIONS ACT 2013

OPINION:

By Suba Churchill

The recent appointment and subsequent swearing in of Cabinet Secretary for the Ministry of Planning and Devolution Anne Waiguru has set the stage for the commencement of the Public Benefits Organizations (PBO) Act, 2013. The PBO Act is one of the pieces of legislations passed by the 10^th Parliament just before its term lapsed in January 2013. The law provides for the establishment and operation of public benefits organizations previously known as Non-Governmental Organizations (NGOs)

Once the commencement date of the law will have been gazetted, the Non-Governmental Organizations Co-ordination Act of 1990 shall stand repealed, paving the way for a completely new legal regime in which non-state actors previously operating under the NGO Co-ordination Board will henceforth operate.

Civil Society activists demonstrate in the streets of Nairobi

Unlike in the past when the docket fell under the Ministry of Home Affairs, the administrative and regulatory framework within which public benefits organizations has now been placed under the Ministry of Planning and Devolution.

But ever since the law was enacted, and as the clock ticks towards its coming into force with its commencement date expected to be gazetted by the Cabinet Secretary concerned, anxiety has gripped a number of local and international civil society groups operating in Kenya.

The relationship between local NGOs and the Government of Kenya has always been characterized by mutual suspicion. Indeed, the first local NGOs like the Kenya Human Rights Commission (KHRC) had to be incorporated abroad before gaining acceptance locally as registered entities.

On page 65 of its manifesto, the Jubilee Coalition that formed the government after the March 4, 2013 elections has this curious provision: “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”

It is also not lost on keen observers that senior Jubilee government officials may not be happy with a number of NGOs that have been in the frontline supporting the Hague-based International Criminal Court in its efforts to bring those suspected to have been responsible for the post 2007 election violence.

CSO activists demonstrate against Kenyan MPs demand for a salary raise

More recently, local NGOs have rubbed members of Parliament the wrong way with their open and highly publicized support for the Salaries and Remuneration Commission that has reduced salaries for the MPs. There is suspicion that MPs can support any move to water down the Public Benefits Organization Act particularly those provisions that allow PBOs to engage in public interest litigation and advocacy.

 For starters, the new law defines a public benefit organization as a voluntary membership or non-membership grouping of individuals or organizations 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.

Other areas spelt out in the law that have traditionally been of interest to voluntary organizations and in which a PBO can engage in include information; informal sector; old age; peace building; population and public health; refugees; disaster prevention and preparedness; provision of relief services; pastoralism and marginalization; sports; water and sanitation; animal welfare and the youth.

For the avoidance of doubt and clarity, Section 5 (2) of the Act clarifies that trade unions as registered under the Labour Relations Act of 2007; political parties; religious organizations devoted to worship; co-operative and Sacco societies; micro-finance institutions and Community Based Organizations whose objective include the direct benefit of its members shall not be conferred the status of a Public Benefit Organization.

Part II of the Act deals with matters of registration of Public Benefit Organizations.

While the general public has always assumed that any civil society organization operating in Kenya is registered as an NGO under the Non-Governmental Organizations Co-ordination Act of 1990, the reality is that there have been various modes of registration for the many outfits working in the country. While a significant number have secured their registration under this law, a number have in the recent past seem to prefer registering as Trusts with the Ministry of Lands while some are registered as societies or better still, as non-profit making companies.

The Public Benefits Organizations Act provides that “no organization registered under any other law in Kenya shall be registered under this Act while its registration under that other law subsists” What this, therefore means is that if for instance an organization currently registered as a Trust applies for registration under the PBO Act, registration of that organization under the PBO Act shall render invalid its previous registration under any other written law.

CSOs play an important role in enhancing democracy

For purposes of registration and regulation, the law establishes the Public Benefits Organizations Authority, taking over the roles and powers of the NGO Coordination Board as a body corporate with perpetual succession and a common seal. There shall be a Board of the Authority comprising a Chairperson and a Vice-Chairperson; three other members and a host of Principal Secretaries from relevant government ministries.

The Chairperson of the Federation of Public Benefits Organizations – the new umbrella body for all PBOs that will take over the role of the National Council of NGOs shall also sit on the Board of the Authority.

International organizations intending to operate in Kenya shall also be required to apply to the Authority for a certificate to operate in the country whereupon the Authority can chose to exempt the organization from registration particularly in a case where the services of the applying organization are required as an emergency or where the applying organization does not intend to directly implement its activities or programmes in Kenya. But an international organization that intends to directly implement its activities in Kenya or in another country while based in Kenya will have to be registered under the PBO Act.

There have been concerns as to what happens to local and international organizations already working in Kenya before the effective date of the new law. Though a great deal of these concerns are likely to be addressed through provisions in the regulations, provisions of Section 7 (b) empowering the Authority to bestow the status of a public benefit organization should be brought to bear on such situations so that organizations already registered are not harassed unduly upon the coming into force of the new law.

• Suba Churchill is the Coordinator of the National Civil Society Congress. suba_churchill@yahoo.com    

AU/OAU 50 Anniversary Rekindles the Pan African Spirit and Hope for the Continent

A photo of the founding fathers of OAU at AU Hall, Addis

Africa has just marked the 50th Anniversary since the African Union/Organization of African Unity was founded 50 years ago on May 25, 1963. The continental organization, for decades known as the OAU became AU in 2002.

The week long celebrations at the AU headquarters in Addis Ababa, Ethiopia which peaked on May 25, 2013 with the AU Summit bringing together 118 heads of state and governments from both Africa and the rest of the world brought poignant memories of the 1960s of hope after a number of countries attained independence. 

The founding of the OAU in 1963 marked an important turning point for Africa with a number of nationalist leaders who had led their countries to independence from the colonial powers making a determined push for continental unity. 

The first few years were filled with hope and energy that the giant continent would unite and launch into the path of democratic governance, social and economic development. 

Haile Selasie of Ethiopia.

But a few years later, Africa was to witness violent coups and counter-coups, bad governance, ethnic rivalry, plunder of its resources and civil wars which have left the continent wounded. 

But 50 years on, there is renewed hope for Africa despite continuing problems in a number of countries. Military coups are now fewer, virtually all African countries have attained their independence from the colonial powers and some of the most enduring civil wars have ended in peace agreements. 

Patrice Lumumba of DRC Congo

The theme of the 50^th Anniversary Celebrations; “Pan Africanism and African Renaissance” could not have captured the prevailing mood better as there is renewed hope for unity,  peace, democracy and socio-economic development in most parts or countries of Africa. 

True problems continue in a number of countries including Somalia, Congo DRC, Mali, Sudan and Southern Sudan, Central African Republic, among others, but there are also concerted efforts within AU and the international community to deal with both the political and humanitarian challenges through dialogue, which are paying dividends.

Dialogue ended Africa’s longest running civil war in Sudan, resulting in the 2005 Comprehensive Peace Agreement which provided for the eventual cession of South Sudan from the Sudan. Teething problems between the two countries have are being dealt largely through negotiations under the auspices of the AU and the regional Inter Governmental Authority on Development (IGAD). 

Mwalim Julius Nyerere  of Tanzania

 

 

There is more political, social and economic engagement among African countries both at the bilateral level and within the framework of the various regional bodies such as East African Community (EAC) and Economic Community of West African States (ECOWAS), among others.

Africa is redefining its partnership and framework of engagement with the global community, including the US, Western Europe, China, Asia, and Latin America. Challenges remain but clearly, Africa is experiencing renewal.

The challenges of improving governance and democratic rule, service delivery, infrastructure, trade and consolidating unity remain but the 50^th Anniversary was also a time to take stock and plan strategies for moving forward.

Anti- Apartheid icon Nelson Mandela

    

There is growing worry over resurgence of interest in Africa and its resources. There is renewed competition between Western Europe, the US and the Chinese. 

During the AU Summit, there was a large delegation from China and also from the West, competing for attention and lobbying on the sidelines of the celebrations. Sudan, Kenya, Uganda, South Sudan and Ethiopia led an attack on the International Criminal Court (ICC), accusing it of haranguing African leaders. They led the process of passing a resolution calling for the referral of the cases facing Kenya's President Uhuru Kenyatta and his Deputy, William Ruto to Kenya's courts claiming there was no justice at the global level.

Below: The AU headquarters built with the assistance of the Chinese whose influence is growing in Africa.

African Political Parties Form Continental Council, Elect Zambian Chair

A two day conference of major political parties from 34 African Countries came to a close in Khartoum, Sudan, April 28,2013, with the formation of a continental body  -The Council of African Political Parties - as a platform for a more active engagement in the continent's social, economic and political initiatives  and challenges.

The two day constitutive conference held on April 27-28, 2013 formally launched the Council at the end of the marathon meeting and break- away committees and formed a 30 member Executive Committee consisting of six members each drawn from Eastern, Central, Southern, Western and Northern Regions of Africa.

Political leaders at the Khartoum Conference

Zambian Justice Minister Winter Kabimba who is also the Secretary General of the ruling Patriotic Front was elected the first chairman of the Council for a four year term.

The Council's headquarters and secretariat will be in Khartoum, Sudan with the country providing the Secretary General to steer the organization in realizing its goals and objectives , which they said will include complementing the efforts of the African Union in building peace, security and continental integration.

President Omar Al-Bashir formally opened the Conference on Saturday April 28, with a call to African states to choose its global partners carefully adding that some had shown unchecked greed for the continent's natural resources.

Delegates during break at the Conference in Khartoum

Al-Bashir, who is also the leader of Sudan's ruling National Congress Party (NCP)  recalled the struggles by the founding fathers of Africa adding that it was time the political parties to mobilize the people towards peace and sustainable development to ward off unwarranted external influence.

The conference, which was attended by representatives from the two major parties from 34 African countries discussed and adopted recommendations contained in 4 key working papers prepared over the lasts even months since the initiative was mooted.

The presentations dwelt on four key areas: The conceptual framework of the Council outlining the nature and objectives of the conference, the role of African political parties in enhancing democracy, development and integration, Africa and the 

technological revolution and Statute of the Council of African Political parties. 

The issue of the International Criminal Court (ICC) dominated the conference with both direct and indirect references to it as "a tool by the Western Countries to intimidate" African leaders and states.

The Deputy leader of the Sudanese ruling party NCP Dr.Nafie Ali Nafie said ICC had been rejected by Africans adding that the recent polls in Kenya, which saw two indicted politicians Uhuru Kenyatta and William Ruto elected president and deputy president respectively was "a vote against ICC".

Senior Sudanese political party leaders attended the conference

The conference was attended by observers which included a powerful delegation from the Chinese Communist Party along with representatives of the Asian Political Parties Council, representatives from Latin America and the Caribbean African Union and diplomats from different countries accredited to Sudan.

African Goverments urged to engage rich North on funding climate change interventions

A Pan African organization involved in advocacy and intervention for mitigation of climate change in the continent has called on African countries to take the issue of climate change seriously in their development planning.

In a message to the African heads of State and governments during the just concluded 50 Anniversary of marking the founding of the African Union (AU)/Organization of African Unity (OAU), Pan Africa Climate Justice Alliance (PACJA) called on African governments to adopt proactive measures to reduce the effect of climate change. 

PACJA Program Officer Philip Odongo(right) with journalist Oloo Janak

 “As scramble for resources to fuel global growth redefine Africa’s next phase of socio-political and economic development, the biggest challenge for the continent’s economic take-off is climate change, which threatens to roll back multiple gains attained over the past years,” PACJA said in a statement released in Addis Ababa.

The organization said climate change was defining challenge of African at this time adding that as the continent and its people struggled to pull out of poverty and bring prosperity in different countries, it had become extremely difficult for governments to attain national poverty reduction and sustainable development milestones.

“We find ourselves diverting money earmarked for development to respond to climate-inspired emergencies such as floods, famine, starvation, diseases and death,” the organization said in the statement released to journalists at a press conference on the sidelines of the AU Summit.

PACJA Programs Officer Philip Odongo who addressed journalists in Addis Ababa said Africa had contributed the least to the problem of climate change, yet the continent was now on the receiving end of its impacts due to the incapacity of the African people to adapt.

He said it was unfortunate that as the impact of climate change continued to emerge, those responsible for global warming continued to procrastinate and prevaricate on their obligations.

“Industrialised countries have not met their obligations both in the Climate Change Convention and Kyoto Protocol. We have seen shift of goalposts from meeting to meeting,” he said.

PACJA, he observed, had observed the goings-on within the international climate change dialogue process for the last three years and concluded that the North-South divide which denies poor communities a chance for a better future still continued to permeate the negotiations.

PACJA's Philip Odongo addresses journalists in Addis Ababa, Ethiopia

“The future, in our assessment, is quite uncertain as the momentum towards COP20 in Paris coming up in 2015 picks up. The negotiations around Durban Platform for Enhanced Action, which will lead us to the new regime to take effect by 2020 should strengthen the North-South conversation to bearing in mind that solving the climate problem is not a choice, but an urgent duty for all to preserve the health of the planet for the sake of future generations.  

PACJA believes that Africa need to see countries responsible for climate change responding responsibly and equitably and that it is the responsibilities of all countries to act to protect their citizens from climate change. 

According to the advocacy group the forthcoming negotiations on the ADP in Bonn (3 – 14 June 2013), is an opportunity to define an equitable global pathway that sees countries responsible for causing climate change carrying most responsibility to address its causes and impacts.

While efforts were being made by all to take action to cut emissions, PACJA sys it is incumbent on rich countries to take the greater share of action: at the moment it is developing countries, including those in Africa, that are doing more. 

PACJA suggested a five point agreement as a framework for a clear definition of equity that ensures those who have contributed more to climate change take more responsibility with:

• Urgent and sufficient action to stop temperatures increasing above 1.5 particularly by industrialized countries who are most responsible for contributing to climate change. 
•   Commitments from industrialized countries to deliver on climate finance to reach at least $100bn by 2020 including 50% going to adaptation in grant form; action to raise long term sources of finance; and that are new, additional and reliable. 
•  Mechanisms created to address the loss and damage in developing countries will face due to unavoidable warming that threatens to destroy millions of livelihoods of the poor. 
•   Prioritization of food security and small scale farmers who provide most of the food for the continent. 
•  Commitment by industrialized Countries to cut their emission levels by at least 40% by 2020

PACJA says efforts by African countries to invest in climate action were hampered by overstretched budgets focusing on such other key sectors as health, education and security to their citizens.

“By COP19 rich countries must commit the finance that they promised that is new, additional and from their own governments’ budgets.  At least 50% of climate funding should go to adaptation as grants that will not push our countries further into debt,” said PACJA in the statement to African heads of state.

The organization says the important role of the private sector in addressing climate change was recognized, rich countries should not transfer responsibility of delivering climate finance to the private sector who will see no rewards in supporting the most vulnerable people.

PACJA says climate change remains a threat to all aspects of development – including peace and security, there was growing concern that African leaders have not given it the due attention it deserves. Such urgent issues such as security hotspots in Somalia, Nigeria, South Sudan, DRC and Mali, does not mean that the biggest crisis on earth which is Climate Change finds itself at the periphery of priorities in the AU agenda.

“Following the pronouncement by the AU and her member States on developing a strategic work-plan for Africa for the next 3-5 years, we hereby urge the AU to ensure development of a strategic plan to adequately respond to Climate Change in Africa. A strategic Climate Change Plan of Action for Africa is indeed a felt need,” says PACJA.  

AU seat, Addis Ababa, venue of the 50 Anniversary summit

It calls on African states under the AU to establish Climate Change legislation, Policies, Strategies and Action plans and urges AU to provide leadership in this direction to not only address loss and damage but also put into place Climate Change Units in every Ministry to monitor and cushion the African poor from the consequences of Climate Change.  

“We urge the African Union to wake up to this reality and given the subject the necessary political attention it deserves. This will include establishment of climate change Ministries in African Countries, and strengthening the Conference of Heads of States and Governments on Climate Change, which unfortunately became inactive following the demise of the former Ethiopian Prime Minister HE Meles Zenawi,” adds PACJA.

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