The man who has been fighting two non-governmental organisations since Monday is illegally in office together with his board, a State-funded human rights commission said on Wednesday.
Mr Fazul Mahamed, the executive director of the NGOs Coordination Board, could not be in office if the Cabinet had obeyed court orders to operationalise a Bill passed by Parliament and signed into law in 2013.
According to Ms Kagwiria Mbogori, the chairperson of the Kenya National Commission on Human Rights (KNHRC), the NGO Coordination Act that created Mr Mahamed’s body was replaced by the Public Benefits Organisations (PBO) Act 2013.
Despite the president assenting to the Bill and two court orders in November 2016 and May 2017, the responsible Cabinet secretary has not set its operationalisation date and that means it cannot take effect.
Ms Mbogori demanded an immediate operationalisation of the Act.
“Continued delay will only serve to create more uncertainty and disorder in the sector and perpetuate the illegal conduct of affairs by the defunct NGO Coordination Board,” she told journalists at a press conference at KNHRC’s offices in Nairobi.
Separately, Law Society of Kenya (LSK) president Isaac Okero called for the activation of the PBO Act, noting that the government’s failure since January 2013 to bring the rule into operation is not in the interest of the public.
“The existence of a vibrant independent civil society is a hallmark of a democratic and free nation,´ Mr Okero said at a press briefing at the LSK headquarters earlier on Wednesday.
“The failure to bring into operation the PBO Act leaves in place the absence of a clear statutory framework which encourages oppressive expressions of impunity.”
Both the law society and KNCHR asked acting Interior Cabinet Secretary Fred Matiang’i to effect the Act immediately.
At her press event, Ms Mbogori detailed the hurdles encountered so far in pushing forward the PBO Act.
In 2015, two years after its assent, various parties moved to the High Court in a case The commission was enjoined as a friend of the court to push for the actualisation of the Act.
On November 24, 2016, the court issued an order compelling Devolution Cabinet Secretary Mwangi Kiunjuri to effect the Act.
“This order was not complied with and instead the president immediately transferred the function of regulation of NGOs from the Ministry of Devolution and Planning to that of Interior Coordination and National Government,” she said.
“This transfer was irregular as Section 2(1) of the PBO Act places Public Benefit Organisations under the Ministry of Planning and Devolution.”
And in December 2016, the human rights commission and other parties went to court seeking orders that the Devolution or the Interior ministers be declared as having disobeyed court orders.
“On May 12, 2017, the court found that the Cabinet secretaries for the Ministry of Devolution and the Ministry for Interior had wilfully disobeyed a valid court order,” said Ms Mbogori, noting that the court gave the Interior minister 30 days to comply.
“Over 60 days have lapsed and the Cabinet secretary has persisted in defiance of court orders by refusing to operationalise the PBO Act,” she said.
“This level of impunity by a key government ministry in the Office of the President is appalling and gravely undermined the rule of law in the country.”
Mr George Morara, KNCHR’s vice chair, said if the PBO Act comes into effect, there will be sanity in the NGO sector.
“One of the biggest challenges that have been on the NGOs sector, and which was a challenge that was recognised by both the NGOs themselves and the government, was that there was no solid regulatory framework that would hold all the public benefit organisations accountable,” he said.
“I think the continued non-operationalisation of this Act is a disservice to the sector because we’re not getting its full potential.”
Ms Mbogori, who termed as “a breach of the right to fair administration” the NGO board’s attempts to de-register the African Centre for Open Governance and the Kenya Human Rights Commission, also mentioned the fact that Mr Mahamed had been found unfit to hold public office following an investigation by the Commission on Administrative Justice.
Mr Okero, on his part, said Mr Mahamed’s qualifications could be the reason why the commencement of the Act has been frustrated.
“There is obviously a hidden hand behind the actions of Mr Mahamed. His office is not a tax institution to purport to direct KRA, he lacks the authority to act as a principal in tax collection,” Mr Okero said.