On October 30, 2013, the office of the Attorney General published the Miscellaneous Amendment Bill in the official gazette, in view of its introduction to Parliament.
If adopted in its current form, the new text would limit to a maximum of 15% the proportion of foreign funding that an NGO would be allowed to receive from external donors, and would impose any funding to be channelled through a new “Public Benefits Organisations (PBO) Federation”, rather than directly from donors.
The text would further allow the PBO Authority - a new official body whose chairperson would be appointed directly by the President of the Republic - to “impose terms and conditions for the grant of certificates of registration, permits of operation, and public organisations status”.
“This broadly worded bill poses serious threats to the very existence and functioning of NGOs in Kenya, contradicts the spirit and letter of the 2010 Constitution and blatantly violates regional and international standards” said Karim Lahidji, President of the International Federation for Human Rights (FIDH). “ In a country such as Kenya, where NGOs play a central role in the public debate and the efforts aimed at strengthening the rule of law, restricting their capacity to carry out their work would have disastrous impacts on all spheres of society”, he added.
This new bill would provide the government with the ability to control all funds coming into the country, and hence to attack the entire civil society sector. This would result in further isolation of the governance civil society organisations that have been keeping the government accountable.
“The very nature of the progressive Constitution recently adopted is build on broad civil society participation and human rights. Those are inherently Kenyan values not an international conspiracy ”, said Gerald Staberock, Secretary General of the World Organisation Against Torture (OMCT). “There should be no mistake. This is not a technical issue about a law. This is an alarm for democratic achievements in Kenya. The grip on the media extended, the National Human Rights Commission left in limbo and disabled with massive budgets cut, and now human rights defenders being framed. Today, sadly, it takes courage to work on critical human rights issues”, he added.
The Observatory highlights that in his first report to the Human Rights Council, the United Nations Special Rapporteur on the right to peaceful assembly and freedom of association recommended that “any associations, both registered or unregistered, should have the right to seek and secure funding and resources from domestic, foreign, and international entities, including individuals, businesses, civil society organizations, Governments and international organizations”. Earlier, the UN Special Rapporteur on the situation of human rights defenders had already emphasised that the UN Declaration on Human Rights Defenders protects the right to “receive funding from different sources, including foreign ones ”.
The Observatory is all the more concerned as the above-mentioned Miscellaneous Amendment Bill was introduced alongside an Information and Communications (Amendment) Bill on October 31, which would restrict advertising revenue, permit anonymous complaints that are prone to abuse, and create a government-appointed Communications and Multimedia Appeals Tribunal with unfettered powers to impose penalties on media practitioners, including revocation of accreditation, seizure of property, and heavy fines of up to 1 million Kenyan shillings (US$12,000) on journalists, and up to 20 million Kenyan shillings (US$235,000) on media companies. The Media Council Bill would also give the government powers to ban any media content that is “prejudicial to public or national interest” and impose penalties against the publishers of such content, while failing to clearly define “national or public interest”. The Information and Communications (Amendment) Bill was passed by Parliament but has not yet been signed by President Uhuru Kenyatta.
The Observatory calls upon the Kenyan authorities to comply with the provisions of the UN Declaration on Human Rights Defenders, as well as to fully implement the provisions of Resolution A/HRC/22/L.13 adopted by the UN Human Rights Council on March 15, 2013, calling upon States, in particular, to ensure that reporting requirements placed on individuals, groups and organs of society do not inhibit functional autonomy, and furthermore to ensure that they do not discriminatorily impose restrictions on potential sources of funding aimed at supporting the work of human rights defenders in accordance with the Declaration [on human rights defenders], and that no law should criminalize or delegitimize activities in defence of human rights on account of the origin of funding thereto.
The Observatory further urges the Kenyan authorities to abide by the provisions of the African Commission on Human and Peoples’ Rights (ACHPR) resolution on the right to freedom of association (Resolution 5, 1992), calling upon member States not to “override constitutional provisions or undermine fundamental rights guaranteed by the constitution and international standards; [and not to] enact provisions which would limit the exercise of this freedom” as well as the provisions of the ACHPR 2002 Declaration of principles on freedom of expression in Africa.