The Statute Law (Miscellaneous Amendments) Bill, 2013, that was under review by the Justice and Legal Affairs Parliamentary Committee – last stage before being passed by Parliament – posed serious threats to the respect and protection of the right to freedom of association in Kenya. The Bill, which was introduced in Parliament on October 30, 2013 and went through the second reading in Parliament on November 27, 2013, was seriously undermining the spirit and letter of the Public Benefit Organisation (PBO) Act, 2013 and was likely to jeopardize the ability of civil society organisations to carry out their activities effectively, independently and free from governmental interference.
In particular, the Bill, as presented to Parliament on 30 October, would have amended Kenya’s Public Benefit Organization Act of 2013 to prohibit NGOs – now to be known as Public Benefit Organisations (PBOs) – from receiving more than 15 % of their funding from external donors ; prohibit PBOs from receiving their funding directly from donors and would have rather imposed that all funds be channelled through a new « Public Benefits Organisation (PBO) Federation » ; alter the composition of the PBO Regulatory Authority’s governance body in favour of the executive ; and award the Authority discretionary powers.
The advocacy work carried out by FIDH, its member organisation in Kenya, the Kenya Human Rights Commission (KHRC) and other partner organisations, led to increased regional and international mobilisation on this issue, putting pressure on the Kenyan authorities.
For instance, on 3 December 2013, UN Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya, stressed that “the amendments to the regulations of associations contained in the draft law could have profound consequences for civil society organizations in Kenya, including for those involved in human rights work, and could deter individuals from expressing dissenting views,”. Maina Kai, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association cautioned that “The Bill opens the door to undue State interference in civil society affairs as it allows a closer Presidential oversight of the board commanding the associations’ regulatory body,”
Further, on 4 December 2013, the African Commission on Human and Peoples’ Rights (ACHPR) urged “Kenyan authorities to take necessary measures to re-examine the bills, in consultation with the various stakeholders, in order to adopt laws that are in accordance with the regional and international human rights instruments duly ratified by Kenya”.
On 5 December 2013, Kenyan Members of Parliament announced that the contentious amendments contained in Statute Law (Miscellaneous Amendments) Bill, 2013 and targeting PBOs would be withdrawn.
"The contentious amendments to the PBO Act were likely to seriously undermine freedom of association in Kenya. Their outright rejection is not only a victory for NGOs that have been mobilising for weeks, but also suggests some kind of political will to comply with constitutional obligations as well as regional and international commitments with regard to fundamental rights protection,” said Sheila Nabachwa, FIDH Vice-President. “We hope that this step forward will usher an enhanced cooperation between Kenyan authorities and civil society organisations,” she added.