OPINION: WHY NGOs ARE NOT CELEBRATING DESPITE DEFEAT OF CHANGES TO LAW

By Suba Churchill

January 14, 2004 was exactly one year since the Public Benefit Organizations (PBO) Act, 2013 was passed into law. But the day’s passage was rather unremarkable. Neither the civil society nor the National Governmental Organizations Coordination Bureau charged with coordinating the sector observed the day. 

Civil Society activists demonstrate in the streets of Nairobi last year

A visit to the Bureau offices on the material day confirmed my fears that the office may not have been aware of what ought to have been an auspicious occasion. Most of the Bureau’s staff members were reportedly out of the office, burning the midnight oil to meet some performance contracting deadlines. 

To the PBOs, the unremarkable passage of the day did not come by surprise. The sector had spent the second half of 2013 battling proposed amendments to the law. The mischievous amendments, tucked among 47 other odd pieces of legislation in the infamous Statute Law Miscellaneous (Amendments) Bill of 2013 had proposed draconian changes which would have adversely affected the environment within which the non-state actors operate. 

All these were happening despite what has been celebrated as the hallmark of a liberal democratic system that the Constitution of Kenya 2010 has supposedly heralded. In such a system, pressure groups and other forms of citizen formations should be able to influence government decisions without undue government control. This assumes that there is substantial amount of independence and freedom from government control of the mass media – radio, television and newspapers.

But some of the laws that have been enacted under the watch of the jubilee government ever since the ruling coalition came into power raise more concerns that fulfillment of the text and spirit of the Constitution. 

Article 34 (2) is explicit on freedom of the media with regard to State control, providing that  (a) “the State shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium”. In paragraph (b), the supreme law is even more explicit that “the State shall not penalize any person for any opinion or view or content of any broadcast, publication or dissemination”.

But the two laws that parliament has passed on the media have provisions that offend both the text and spirit of the Constitution by providing for hefty fines against individual journalists and the media houses they work for. There is also excessive government presence in the Media Council which, by its nature ought to be a self-regulating mechanism run and managed by the media practitioners.

It is such happenings, and the fact that the government does not seem to be keen to operationalize the Public Benefit Organizations Act one year since the law was enacted that keep the civil society on the edge.

During the debate that ensued as government pushed on with the proposed amendments, it emerged that a significant section of the public does not seem to appreciate what constitutes the civil society. For starters, the civil society is the arena outside of the family, the State and the market. In other words, any citizen formation that can not be called family, corporate business or government is what is broadly called the civil society. 

Civil society is thus created by individuals for the purpose of advancing collective actions as organizations and institutions. Broadly, they can be divided into developmental or pressure groups. While developmental or interest groups are preoccupied with the welfare of its members or a larger community or society overall. 

Pressure or lobby groups on the other hand aim to influence the political decision making process – from laws to policies and programmes that impact on society. This influencing of public policy is a legitimate mandate but which the proposed amendments sought to criminalize.

The Sixth Schedule of the PBO Act is an elaborate description of areas an organization may be registered as a PBO. It lists such noble causes as provision of legal aid, promotion of agriculture, rights of children, culture, disability, energy, gender, governance and information as some of the core areas of focus for which a group can form and register a PBO. 

Yet, by seeking to limit foreign funding to fifteen per cent of annual budget for PBOs without providing alternative local sources, the government was stealthily seeking to fundamentally alter the enabling environment for the PBOs by denying them the resources they need to effectively influence policy on these issues. 

The amendments would have effectively rendered many PBOs incapable of delivering on their mandate. Civicus - the World Alliance for Citizen Participation defines enabling environment as a set of conditions, whether individually or in an organized fashion to participate and engage in the civil society arena. 

That environment is determined by the legal and regulatory framework that includes the registration process that should be quick, easy and predictable. Such laws and policies should also make it easy for civil society groups to form, operate free from interference, express their views, and seek resources without undue hindrances.

Suba Churchill is a member of CSO Reference Group and Coordinator of the National Civil Society Congress. Suba_churchill@yahoo.com