Why Waiguru should drop task force report on PBO Act

It took me 20 minutes to read the report of the much-publicised Task Force on the Public Benefits Organisations Act that Cabinet Secretary Anne Waiguru set up at the beginning of the year.

Chaired by Sophia Noor Abdi, a former Member of Parliament, who was involved in the development of the original Public Benefits Authority Act that was passed in 2013, the task force was established to evaluate the views of stakeholders on the amendments to the PBO Act, which Jubilee attempted last year and then withdrew when those amendments were met with objections upon presentation to the National Assembly.

Those who thought the task force was a face-saving exit from the defeated legislative proposal are wrong because the task force suggests new proposals.

The report is 39 pages, 28 of which are devoted to describing the types of “public participation” that formed the work of the task force, included trips to 10 different towns around the country where at least 1,000 people attended meetings of the task force.

PUBLIC PARTICIPATION

The information about public participation is presented variously, in graphs and pie charts, and also in prose.

It is as though the only burden that the task force had to discharge was to demonstrate public participation and nothing else.

The report then devotes nine pages for a bullet-point summary of the views received about the various issues under consideration.

A list of 10 such issues is provided and includes amendment, registration, regulation, accountability, national security, and enabling environment.

Others are listed as transition unique issues, monitoring (listed twice) and capacity building.

What follows is a listing, rather than a discussion, of the views expressed by the public under these sub-headings.

The authors suggest the insertion of a table but then forgot to include one, an indication of the casualness of the report.

The report suddenly plunges into “recommendations.”

These are listed, rather than discussed, in three-quarters of a page and include a recommendation that a definition for a PBO should be provided, a recommendation that PBOs be registered under one legal regime, “bearing in mind that such harmonisation requires broader consideration as it has implications on other legislation.”

There are further recommendations, including that appointments to the Authority should be subject to the Public Corporations Act, the Authority be empowered “to effectively discharge its mandate and enhance public information disclosure by PBOs for public accountability through appropriate rules and regulations.”

Another recommendation requires transparency, accountability and monitoring of donors, stakeholders and beneficiaries, specifically on sources of funds.

There is a recommendation that “a percentage of donations received by PBOs be given to the Authority to ensure sufficient regulation.”

The report recommends that “national interests” and “national security” be addressed during registration and after the registration of PBOs.

This is the only recommendation that comes with a short elaboration that PBOs must uphold security, cultural and religious values of Kenyans and must not be involved in the promotion of the interests of other states or in the recruitment, training or incitement of persons to carry out terrorist activities.

Finally, the report recommended that a representative of the ministry in charge of national security should have a seat on the Authority.

What should be made of this report?

FACTS AND EVIDENCE

A report of this nature would usually contain the facts and evidence gathered and an assessment with clearly supported findings.

This report does not have even one sentence discussing or making findings on the various issues that fell under its resolution.

Instead, after bulleting the views received from the public, it plunges straight into recommendations, making it difficult to understand the basis of those recommendations.

One of the recommendations is that “a percentage of donations received by PBOs be given to the Authority to ensure sufficient regulation.” This percentage is not identified and could be a very large sum of money.

This model regulatory financing for PBOs is novel and has never been suggested before.
Unfortunately, no data supports the recommendation, and without a rationale being articulated, it is difficult to argue with the recommendation.

Another significant recommendation concerns the proposal for harmonised registration.

What this means is that certain forms of registration will be abolished and will be required to transition into the form of registration called the PBO.

However, these are not identified in the report, making it difficult to have a useful engagement with the recommendation.

Further, the suggested definition of PBO is not discussed, beyond a remark that “the PBO Act does not provide a concrete definition of what is a PBO; such a definition is important.”

The task force, therefore, leaves unresolved all the issues in this debate which are what is to be deemed as PBOs, what regulatory mechanism makes sense over them and how this is to be implemented.

READS LIKE PRIVATE NOTES

The report, which was supposed to be an authoritative document to guide policy, is lazy and reads like the private notes of an individual rather than a public document issued by the government.

It lacks intellectual rigour and CS Waiguru has been conned.

The little it says is no more than a regurgitation of reactionary lines like the need to control NGOs so that these do not spread terrorism.

Before this, Ms Abdi was a respected leader.

She has done her reputation immeasurable damage by putting her name to this woeful report.

As for Ms Waiguru herself, the position of strength that she enjoyed when she started the crusade to control NGOs has been weakened by the recent allegations of corruption touching on her ministry.

This would not be a good time for her to push forward the ideas contained in the task force report, which she must drop.