Democracy and development under siege in Kenya

Since independence in 1963, the government of Kenya has encouraged the development of indigenous non-profit organisations, self-help societies and community-based organisations. These organisations have made a significant contribution to the socio-political, economic and cultural growth of the country.

The consolidation of the nation state and the broader democratic governance and constitutional steps that Kenya has made since independence, could not have been realised were it not for the immense contribution of these organisations.

Currently, the Ministry of Devolution and Planning has constituted a task force that is mandated to seek views and comments from stakeholders, including the general public, on the proposed amendments to the yet-to-be operationalised Public Benefits Organisations Act (PBOA) of 2013. These amendments seek to curtail the power and influence of non-governmental organisations (NGOs) by restricting foreign funding. However, this is largely seen as a public relation exercise as the government seems to have taken a stand on the debate, and appears set to introduce the amendments in Parliament.

Political leaders have consistently accused NGOs of serving foreign interests

Political leaders allied to the ruling Jubilee coalition have consistently accused NGOs of serving foreign interests and using foreign funds to undermine the sovereignty and security of Kenya. However, no evidence has been provided to substantiate these accusations.

Furthermore, what this move portends for Kenya – and potentially the region – in terms of democratic governance and constitutional development, seems not to be taken into consideration by the Act’s proponents. Nor, it would seem – judging by the silence coming from this sector – has the Kenyan public been made aware of the potential repercussions.

The proposed amendments to the PBOA are aimed at throttling the lifeblood of the sector by capping foreign funding for NGOs at 15% of their total budgets. This would result in the closure of a vast majority of NGOs, leading to potential job losses of over 290 000 and some KShs.152 billion that NGOs contribute towards development. Most NGOs in Kenya are funded by international sources (91%) or local private sources (8%). Only 1% of NGO funds are derived from the government of Kenya at the national or local level.

If passed into law, the impact of the amendments will be extreme and will extend to the entire East of Africa, Horn of Africa and Great Lakes region. A number of NGOs operating in Somalia and South Sudan, for instance, are based in Kenya. The move could cripple regional growth and risk the lives of millions of people who have, to a large extent, survived and relied on NGOs for socio-economic support and survival.

The amendments are in line with the pre-election campaign rhetoric of Jubilee Alliance, the ruling coalition of parties that has been calling for more accountability by NGOs and enjoys the support of all alliance members of Parliament.

The move could cripple regional growth and risk the lives of millions of people

These acts reflect a worldwide trend that seeks to undermine civil society and re-align NGOs to protect political interests, both domestically and internationally.

Despite the government’s unsubstantiated claims of NGOs funding terrorists, compromising Kenya’s sovereignty, there is little evidence that could warrant draconian legislation of this sort. In fact, the values and principles espoused and promoted by civil society are firmly enshrined in and protected by Kenya’s 2010 Constitution.

President Daniel Arap Moi attempted to take similar steps in the early 1990s by introducing a state-based NGO Coordination Board to oversee the registration and operations of NGOs. The current attempt to restrict NGO operations follows on a similar attempt that was defeated in Parliament in 2013. This move by the Kenyan government is viewed as reactionary, motivated by fear of the power and influence of the NGO sector, and aims to curtail their demands for transparency, accountability and justice in the management of public affairs.

The current siege on NGOs can be traced back to the 2007/8 post-election violence and the subsequent indictment by the International Criminal Court (ICC) of President Kenyatta and his Deputy, William Ruto. NGOs are perceived by the ruling Jubilee coalition and its supporters to have provided critical help to the ICC in collecting evidence and preparing witnesses in the ongoing Kenyan ICC cases, and consistently advocating for accountability and justice through the continuation of the cases.

A group of NGOs challenged in Court the suitability of Kenyatta and his deputy to run for the presidency in 2013 in the face of the ICC indictment. This would explain, at least in part, why the government/NGO relationship is largely characterised by enmity.

This kind of clampdown on civil society is the hallmark of authoritarian governments

The president’s speech during the recent Mashujaa Day celebrations on 20 October epitomises the political battle when he warned that, ‘there are those 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. 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 elsewhere.’

This kind of clampdown on civil society is the hallmark of authoritarian governments with a low tolerance for independent critical voices. The NGO Bill does not offer alternative funding for the sector; and neither is the government committing to cater for the 85% balance. The move would thus be an effective means of silencing civil society activism, leaving Kenya with a dearth of independent voices.

Dialogue and consultations with the NGO sector, on any and all legitimate grievances, could provide a less radical solution. Operationalising the PBOA and finding a mutually agreeable way forward should be the priority, and could include the creation of a special fund and encourage private sector philanthropy.

A strong, vibrant and independent civil society is critical in a representative democracy. The government should therefore focus on supporting NGOs in Kenya and inspire them to participate in civic affairs as a means of consolidating the nascent democratic governance and constitutional project in Kenya. Strengthening linkages between the state’s policy-making organs and NGOs should enable the latter to fulfil its role by providing a platform for structured policy dialogue. NGOs, on the other hand, should demonstrate transparency and accountability to the state and the citizens for legitimacy.

Peter Aling'o, Office Head and Senior Researcher, and Sebastian Gatimu, Researcher, Governance, Crime and Justice Division, ISS Nairobi