Civil society groups are crying foul at what they see as a fresh onslaught from the Jubilee Government to check their activities after unsuccessful attempts last year to limit foreign funding.
Some activists point to the ongoing Kenyan cases at the International Criminal Court (ICC) as the main reason for the renewed efforts to shrink the political and legal space in which they operate.
Mr Christopher Gitari of the International Centre for Transitional Justice told the Sunday Nation that the clampdown on perceived anti-government and pro-ICC views among donors and civil society involves state officers who have refused to allow some meetings and are involved in efforts to limit funding for various organisations.
“For example, any efforts to hold meetings with victims of the (2007/2008) post-election violence (PEV) are usually closely monitored by police and intelligence officers and sometimes disrupted,” he said.
He gave the example of the arrest in Nakuru of an officer of the Journalists for Justice in April, apparently because she did not have a permit to meet with the PEV victims.
President Uhuru Kenyatta, his Deputy William Ruto and radio journalist Joshua arap Sang are facing charges at the ICC for their alleged role in the 2007/2008 elections-related violence, in which an estimated 1,133 people were killed, and 650,000 others uprooted from their homes.
They all deny the claims.
Lawyers of the two Jubilee leaders at the ICC have accused Kenyan human rights activists in conjunction with foreign financiers, like USAid, Open Society for Eastern Africa and the UK Department for International Development, of having funded those who procured and coached witnesses to testify.
There were further accusations in February when Secretary to the Cabinet Francis Kimemia accused USAid of planning to overthrow the government a day after the Kenya ni Kwetu demonstration against corruption and poor governance.
The protests were led by activist Boniface Mwangi, who later decided to assume a low profile. The US embassy denied the claims.
But to signal the government’s displeasure, a substantial portion of President Uhuru Kenyatta’s Mashujaa Day speech at Nyayo Stadium on October 20 was dedicated to castigating “countries and institutions abroad that seek to advance their economic and geopolitical goals to our disadvantage”.
“They fund and nurture various outfits whose actions and visions seem set to create cleavages between Kenyans and leave us despondent with their messages of pervasive failure,” Mr Kenyatta said.
He added: “These actors have positioned themselves as the gatekeepers and interpreters of Kenya in various capitals. If they were to succeed, they would so completely rob us of faith in each other that we would put our destiny in the hands of unelected, unaccountable institutions that answer to foreign powers.”
But Mr Haron Ndubi, a lawyer and human rights activist, says President Kenyatta’s fears are misplaced.
“If two or three people can bring down the government, then it only shows that the government is weak,” he said.
Just before its term ended, the 10th Parliament enacted the Public Benefits Organisations Act 2013, which provides for the establishment and operation of public benefits organisations (PBOs) as NGOs will now be known.
The new legal regime that is yet to be put into effect also sought to replace the NGO Coordination Board, which regulates the sector, with the Public Benefit Organisations Regulatory Authority.
An attempt last year to amend the Act through the Statute Law (Miscellaneous Amendments) Bill to prohibit NGOs from receiving more than 15 per cent of their funding from external donors was shelved following public outcry.
LIMIT FOREIGN FUNDING
However, a fresh amendment to the PBO Act sponsored by Gatundu South MP Moses Kuria is now in the works.
The amendments, if adopted, will limit foreign funding of NGOs to 15 per cent.
The groups will also be required to publish their financial accounts in at least two wide-circulation national newspapers.
“I am not seeking to limit any freedoms. All that I am seeking is that organisations whose foreign donations exceed 15 per cent seek a certificate of foreign agent. This follows international best practices in the US and UK,” Mr Kuria said.
In addition, the ministry of Devolution and Planning, under whose docket the NGOs are regulated, recently published new guidelines titled “Complementing Government’s Service Delivery” that seek to create a database of all funding and projects so that the government can easily keep track of them.
Mr Mohamed Fazul, an official at the Interior ministry who was involved in the crafting of the regulations, said the government was not re-inventing the wheel since accountability was recognised internationally.
“Civil societies are, by their very nature, supposed to complement the government and not work contrary to it. They fill gaps that the government is not able to occupy, perhaps because of funding. So, there is absolutely nothing strange about what we are doing,” he said.
But civil society groups argue that the changes the government is proposing are nothing but a continuation of the policy to harass and silence them into submission.
“There is a campaign of vilification of the civil society organisations that goes back almost two years,” said George Kegoro, the executive director of the International Commission of Jurists-Kenya.
Mr Kegoro claimed the campaign started in earnest with an opinion piece by James Kimalel, who described himself as a “political scientist”, published in the Daily Nation of March 18, 2013 under the headline “Foreign interests funding civil society to compromise Kenya’s sovereignty”.
Since then, he said, the plot has developed to include profiling of organisations and individuals on social media — with some branding them “Evil Society” — and criticism in speeches by government officials.
“The problem is that the leaders of the Jubilee Government lack the knowledge of Kenya’s political history. Where were President Kenyatta and Mr Ruto in the 1980s and 1990s when there was a united push for democratisation? An honest answer to this question will prove to Kenyans why the regime is behaving in this manner,” Mr Kegoro said.
A civil society actor who requested anonymity “due to sensitive relationships I am managing” described the Jubilee administration as the “most thin-skinned government in Kenya’s history”.
There are also indications that some key Western governments, through their embassies in Nairobi, may be shying away from speaking out against the government and funding programmes on human rights and democracy because of behind-the-scenes pressure from Kenyan authorities.
“Funding to governance generally and to 'controversial organisations' is also down. The imperatives here are strategic. First is security — Kenya is key in the war against terror. Second is commercial — the Chinese have won the first round in the battle for business as their 'ask-no-questions' and 'bribe-all-who-matter' model has stumped their Western competitors,” the source, who spoke on condition of anonymity, said.
According to Mr Kegoro, signs that Western donors may have succumbed to pressure from the government became evident during the presidential election petition at the Supreme Court in March last year.
“Some donors called to find out whether we were using their money. Some even went as far as publicly dissociating from us, a first in Kenya’s history,” he said. “When did demanding accountability become intolerance?”
The Gatundu South legislator also said the allegations that the government was targeting human rights organisations over their supposed linkages with the ICC were unfounded.
“What we are asking them is to declare that they are procuring witnesses. After all, theirs are public funds since they use the names of Kenyans to get money,” he said.
Mr Richard Chesos, the public relations officer of the NGOs Co-ordination Board, denied there was any harassment of civil society groups.
“The board continues to deal with NGOs within the parameters of relevant laws and policies. We are not aware of any law that seeks to intimidate or harass them,” he said.
Despite the immense pressure on them, Mr Gitari said the civil societies will not back down since they “know from history that the quest for constitutionalism has and remains a treacherous journey and cannot be abandoned”.