Those who are familiar with the perennial frosty relationship between the Government and NGO sector over the last quarter century are perhaps not too surprised by the latest attempt to cripple and hopefully kill the sector through draconian legislation.
The NGO Coordination Act, which the Public Benefit Organisations Act, 2013 is seeking to replace, was passed in 1990 at the height of the clamour for multi-party democracy when the Government believed, rightly or wrongly, that the multiparty campaigns were fuelled and funded by certain foreign governments and donors through NGOs.
To date, one of the documents required for the registration of an NGO is a budget showing the source of funds, how they are to be spent and in which district. No other form of registration of a legal entity is subjected to this odd requirement. Further, before any NGO is registered it must be vetted and its top officials interviewed by the National Intelligence Service (NIS).
Statute Law (Miscellaneous Amendments) Bill, 2013 proves that the more things change, the more they remain the same. This guillotine law was, among other things, widely expected to delete certain extremely controversial, confusing and impractical provisions in the Public Benefit Organisations Act, 2013.
One of these was the requirement that existing NGOs must apply for fresh registration within one year of the commencement of the Act. This oppressive and irrational requirement raised a huge public debate, prompting the NGO Board to declare and reassure the public that the provision was inserted in error and would be deleted in a forthcoming amendment of the law.
Indeed, the NGO Board published that assurance in a paid advertisement in the local dailies. Legal practitioners in turn assuaged the fears of their clients and, with the express encouragement of the NGO Board, proceeded with the registration of new NGOs believing it would not be necessary to repeat the exercise after a few months and at additional cost. NGOs themselves were relieved to learn that the operational, financial, legal and contractual implications entailed in undertaking a new registration would be avoided.
It therefore came as a rude surprise to learn that apart from leaving this vexatious provision on re-registration intact, the new Act introduced even more draconian requirements aimed at making it virtually impossible for the NGO sector to survive as we know it today.
NGOs, charities and faith-based organisations play a critical role in the social welfare of Kenyans, especially the most vulnerable and marginalised.
Therefore, when such organisations are forced to re-evaluate their continued involvement in Kenya, reduce the size of their programmes or relocate to another country owing to an unfriendly legal and political environment, the ultimate loser is not the Government but the common man whose life depends on the presence of these organisations in his remote village or slum area.
It is indeed quite a contradiction that the Government should, on one hand, be wooing foreign investors to bring in capital from outside while at the same time, prohibiting NGOs from fundraising abroad save to the extent of 15 per cent of their budgets.
When the law requires NGOs to raise 85 per cent of their funding locally, which local sources is the Government envisaging would provide enough funds to enable NGOs continue providing the services that they currently provide to the poor? Where are these Kenyan donors with the funds and philanthropic spirit to replace the current overseas donors?
With our myriad social and economic hardships as a developing country, what is so wrong in accepting genuine assistance from abroad? How about foreign universities which allocate huge budgets each year to research programmes in global health and have been spending millions of dollars in Kenya in the field of HIV/Aids and other tropical diseases?
Some of these reputable institutions have signed MOUs with the Government and support State facilities like hospitals, health centres and clinics. Are we asking them to raise funds locally? How about individual charities and philanthropic organisations such as the Bill & Melinda Gates Foundation, Clinton Foundation, ActionAid, Catholic Relief Services and others which already have funds dedicated to the alleviation of poverty, especially in the Third World? Are we telling them to look elsewhere?
We seem to have a knack for making ourselves uncompetitive for short term political gains, forgetting that our neighbours would welcome these charities with open hands.
The proposed law curiously provides that funding to a PBO cannot be made directly and must, instead, be channelled through the PBO Federation. For the uninitiated, this is the current NGO Council, a body that is so politicised and disgraced that it is almost impossible to tell who its true officials are or which of the numerous factions jostling for its control is the genuine NGO Council. What, pray, is the justification for such an odious requirement?
Is the NGO Council more credible in financial management than professional boards of directors of NGOs? What assurance does a donor have that funds channelled through the federation will ultimately reach the intended PBO intact or at all?
What the drafters of the new law have perhaps overlooked or forgotten is that registration under the PBO Act is not mandatory. Indeed the Act envisages the possibility of NGOs being registered under other laws.
Unless the three requirements — re-registration, restriction on fundraising and channelling funding through the PBO Federation are removed, there will be a massive exodus of NGOs from the jurisdiction of the PBO Act.
Organisations intending to set up in Kenya will most likely be advised to pursue other forms of registration and give the PBO Act a wide berth. The PBO Authority may end up with no one to regulate. Talk of throwing away the baby with the bath water.
The writer is an advocate of the High Court and partner at Iseme, Kamau & Maema.