CSO REFERENCE GROUP

LEGAL ADVISORY

THE KENYA INFORMATION COMMUNICATION

(AMENDMENT) BILL 2013

And;

THE STATUTE LAW (MISCELLANEOUS AMENDMENTS)

BILL 2013

November 2013

1. INTRODUCTION

The Constitution of Kenya 2010 guarantees and protects freedoms of association, expression,

information and media.1 Kenya has the same obligations in regional and international instruments namely;

The African Charter on Human and Peoples Rights2 The Declaration of Principles on Freedom of Expression in Africa adopted by the African

Commission on Human and Peoples Rights; The International Covenant on Civil and Political Rights3 and; The Universal Declaration of Human Rights4

However, despite Kenyas three tier obligation at national regional and international levels, there has been a recent legislative onslaught on these rights via the Kenya Information and Communication (Amendment) Bill 2013 now awaiting presidential assent, and; the proposed amendments to the Public Organisations Act 2012 via The Statute Law (Miscellaneous Amendments) Bill 2013.

The effect of these laws will be to unconstitutionally and unjustifiably shrink the civic and

democratic space for expression, information and association.

In particular, these Bills will;

End impartial media coverage by handing control of media houses and broadcasters to

the government; Give the government power to punish journalists at will by allowing a state controlled

media regulator to hand out excessive, harsh and punitive punishments for perceived violations

Place excessive limits on the right to practice journalism Silence journalists and Kenyans critical of the government or public officials Reduce the civic and democratic space that Kenyans have to hold their government and

public officials to account Immediately cut off vital services provided in by ngos in crucial areas like health,

education, water and many others through prescribed limitations on funding. Give the government power to change terms of grant of certificates of registration and

permits of operation of public benefits organisation status at their whims. Allow the government to collect ngo funds with no checks and balances on this power. Prevents Kenyans from accessing vital services and goods provided by public benefit

organisations filling Government gaps in distribution of resources Result in the loss of jobs for over 50,000 Kenyans working for public benefit

organisations

1 Articles 33, 34, 35 and 36 of the Constitution of Kenya 2010 - http://kenyalaw.org/kl/index.php?id=398 2Article 9

3 Article 19

4 Article 19

CONTENTS

1. Introduction ............................................................................................................................................ 2

2. THE KENYA INFORMATION COMMUNICATION (AMENDMENT) BILL 2013 .................... 4

2.1. EXECUTIVE SUMMARY ............................................................................................................... 4

2.2. RECOMMENDATIONS ................................................................................................................. 5

3. COMMENTARY .................................................................................................................................... 7

3.1. Independence of the Broadcast Regulator ................................................................................... 8

3.1.1 Membership and appointment process ................................................................................. 8

3.2. Establishment of a Communications and Multimedia Tribunal ............................................ 10

3.2.1 Duplication of Forums............................................................................................................ 10

3.2.2 Likely State Control over Media Hearings and Remedies ................................................ 10

3.2.3 Extreme Remedies ................................................................................................................... 11

3.2.4 Risk of Parallel Litigation ....................................................................................................... 11

3.2.5 Possible Conflict in the Scope of the Proposed Tribunal ................................................... 11

3.2.6 Appellate Function of the Tribunal ...................................................................................... 11

3.3. Local Content Requirement ......................................................................................................... 12

4. PROPOSED AMENDMENTS TO THE PUBLIC BENEFITS ORGANISATIONS ACT, 2013 (via

The Statute Law Miscellaneous (Amendments) Bill, 2013) ................................................................ 13

4.1. EXECUTIVE SUMMARY ............................................................................................................. 13

4.2. RECOMMENDATIONS ............................................................................................................... 14

4.3. COMMENTARY ........................................................................................................................... 18

4.3.1 Registration .............................................................................................................................. 18

4.3.2 Barriers To Funding ................................................................................................................ 19

4.4. Limitation of the Regulatory Bodys Independence ................................................................ 23

4.5. Alteration of the composition of the Regulatory Authoritys Governance body: Reduced

Role of Civil Society on the board. .................................................................................................... 24

4.6. CONTRIBUTERS AND SUPPORTERS ...................................................................................... 25

2. THE KENYA INFORMATION COMMUNICATION (AMENDMENT) BILL 2013

2.1. EXECUTIVE SUMMARY

The fifth schedule of the Constitution of Kenya 2010 requires that laws pertaining to freedom of the media5 be passed within 3 years of the promulgation of the Constitution. Therefore all media laws should have been passed by August 2013. However the Parliament extended the period of debate and passage of the laws to December 2013. Two Bills have been gazetted with this regard, the Kenya Information Communications (Amendment) Bill 2013 (KICA Bill)6 and the Media Council Bill 2013.7 The KICA Bill seeks to amend the Kenya Information and Communications Act, 1998.8 (herein after referred to as the Act). The KICA Bill passed the 2nd reading in Parliament on 31st October 2013 effectively closing off any input into the Bill. At the time of this advisory, the Bill was in the process of having the National Assembly amendments incorporated for onward transmission to the President. The main unconstitutional issues impeding media freedoms contained in the provisions of this Bill are;

The broadcast regulator is not free of state and political control as required by the Constitution9 State control is heavily present in the membership and appointment process of members of the Board of the Communications Authority of Kenya10 (hereinafter referred to as the Authority), severely compromising the independence of

the Authority.

The proposed appointment process, while engaging the peoples representatives the National Assembly, fails to secure meaningful public participation11 and hence brings into question the legitimacy of the Board of the authority.

The establishing of the proposed Communications and Multimedia Tribunal with a

mandate of arbitration of cases by or against publications, journalists and media enterprises as envisaged in an Authority whose independence is severely compromised,

5 Freedom of the media provision Article 34 of the Constitution of Kenya 2010. 6 http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/bills/2013/THEKENYAINFORMATIONANDCOMMUNICATIONSAMENDMENTBILL2013.pdf 7 http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/bills/2013/THEMEDIACOUNCILBILL.pdf 8 http://www.cck.go.ke/regulations/downloads/Kenya-Information-Communications-Act-Final.pdf 9 Article 34 (2) (a); (3) (b); and (5) (d). 10 The Authority is established to licence and regulate telecommunication, radio-communication and postal services. 11 Article 10 (2) (a) of the Constitution of Kenya enshrines public participation as a principle of Governance.

is also severely compromising of media freedoms. Likely state control over the hearing, resolve and remedies of media issues via this tribunal is a contravention of constitutionally guaranteed media freedoms.

The sanctions that the proposed Communications and Multimedia Tribunal can met out are extremely punitive fines that will stifle freedom of expression. Additionally, such power exercised by a Government controlled body on the right to practice journalism is impermissible and a violation of media freedoms.

The Bill requires radio and television broadcasters to ensure at least 45% of programs comprise local content. While the promotion of local content is laudable, there is no allowance for progressive implementation of the requirement in effect therefore, this will in effect instantly criminalize all broadcasters once the law is enacted.

2.2. RECOMMENDATIONS

Recommendation Justification

1. Amend Clause 7 inserting the new proposed S. 6B to provide that a selection panel be constituted to consider applications received advertisement for membership on the Board of the authority. This selection panel should be made of up of amedia representatives, civil society representatives, professional association representatives and a nominated representative of the Public Service Commission.

This will ensure meaningful public participation in governance as envisaged in Article 10 (2) (a) of the Constitution.

2. Deleting provisions of S. 6 (b) (d) that provide reserved positions for three Principal Secretaries on the board of the Authority.

This will ensure compliance with Article 34 (2) (a); (3) (b); and (5) (d) of the Constitution which require that the Authority be independent and free of any control by government. .

3. A new provision is inserted requiring members of the Board of the Authority to inform the chairperson of the Authority of any change to their status that may jeopardize their independent member status.

This will provide extra safeguards for the continued independence of the Authority during the term of Board members.

4. S.102 (1) of the Act remain as currently provided in the Act that the Appeals Tribunal

There currently exists a Complaints Commission established in law,12

12

S.23 of the Media Act 2007 - http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20411B

only arbitrate cases where disputes arise between parties under the Act. This will require a further amendment i.e. Deletion of Clause 34 which seeks to delete section 102 (which sets up the Appeals Tribunal in the Principal Act) and substitute it with the creation of a Communications and Multimedia Appeals tribunal.

carrying out the proposed scope of the proposed tribunal. The Complaints Commission is housed by the Media Council of Kenya (MCK). The MCK is a statutory press council set up to rightly regulate media and the conduct and discipline of journalists. The proposed tribunal wrongly seeks to regulate media that is not a party to the Bill or principal Act therefore it is erroneous for the proposed Tribunal to have authority to include them in their scope.

5. The risk of parallel litigation which exists by having a Tribunal hearing media matters relevant to the Authoritys mandate and the

Media Council of Kenyas Complaints

Commission should be addressed by a provision stating that a matter which is being or has been considered by the Authority cannot be brought before the Complaints Commission and vice versa.

This will address the risk of parallel litigation in Tribunals on media disputes.

6. The insertion of a provision to expressly provide for the progressive implementation of the 45% local content requirement

This will ensure that broadcasters are not criminalized upon enactment of the law. It also gives an opportunity for limiting sector factors in production of local content to be addressed.

7 Delete the Parliamentary Committees proposed newly inserted section 102F which seeks to give the Communications and Multimedia Tribunal appellate jurisdiction over the Media Council of Kenyas

Complaints Commission.

The creation of a state controlled appellate body on issues pertaining to media freedoms, that is not a court of law, creates an opportunity for overturning of rulings made by an independent media regulator and; Government influence in decisions at appeal. This is contrary to the provisions of Article 34 of the Constitution.

3. COMMENTARY

The right to freedom of expression includes both the right of broadcasters to be free of State, political or commercial interference and the right of the public to maximum diversity of information and ideas in broadcasting. Both regional and international standards recognize that although broadcast media cannot function without official regulation, a number of guarantees on freedom of expression must be in place, crucially the independence of the broadcast regulator. The Constitution of Kenya 2010 provides in Article 34 that; The State shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.13 It further provides that; Parliament shall enact legislation that provides for the establishment of a body, which shall be independent of control by government, political interests or commercial interests.14 Similarly to the provisions of the Constitution of Kenya, Principle VII (1) of the African Declaration requires:

Any public authority that exercises powers in the areas of broadcast or telecommunications regulation should be independent and adequately protected against interference, particularly of a political or economic nature.

In order to ensure the independence of a regulator a number of aspects must be in place. Guidelines have been developed15 based on comparative law and best practice which prescribe the guarantee of the institutional autonomy and independence of broadcast/telecommunications regulatory bodies as follows:

1. specific and explicit provisions of independence in the legislation which establishes the body and, if possible, also in the constitution;

2. by a clear legislative statement of overall broadcast policy, as well as of the powers and responsibilities of the regulatory body;

3. through the rules relating to membership;

4. by formal accountability to the public through a multi-party body; and 13

Article 34 (2) (a) and (b) 14

Article 34 (5) (a) 15

ARTICLE 19 - Access to the Airwaves: Principles on Freedom of Expression and Broadcast Regulation - http://www.article19.org/data/files/pdfs/standards/accessairwaves.pdf

5. in funding arrangements.

The main issues arising out of the KICA Bill 2013 as mentioned earlier are with regards to; the power of the Authority, rules relating to membership and appointments; and formal accountability to the public. These are discussed below in further detail.

3.1. Independence of the Broadcast Regulator

The KICA Bill contains an express guarantee of independence via repealing section 5A and replacing it with the following new section: The Authority shall be independent and free of control by government, political or commercial interests in the exercise of its powers and in performance of its functions. This proposed wording is a suitable guarantee of the independence of the authority in line with constitutional, regional and international standards. However, other provisions of the bill claw back this express guarantee of independence as discussed below.

3.1.1 MEMBERSHIP AND APPOINTMENT PROCESS The KICA Bill proposes a repeal of section 6 of the Act to be replaced with a new section stating that the management of the authority shall vest in a Board. This Board will consist of a chairperson appointed by the President, the Principal Secretary for Information and Communication, the Principal Secretary for Finance, the Principal Secretary for Internal Security and seven persons appointed by the Cabinet Secretary for Information and Communication.16 This provision in effect means that the broadcast regulator is not independent from political interests because its management Board is entirely made up of Government representatives. Management of the Board of the authority by Government representatives and seven other persons appointed by yet another Government representative severely and critically impedes the independence of the Authority. Furthermore, the proposed constitution of the Board provides for direct state control over the Authority. This provision not only flouts regional and international standards but is also unconstitutional and in direct violation of Article 34 (2) (a) of the Constitution of Kenya which states that:

The State shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium.

Attempts to mitigate this provision via the insertion of 6A (3) (ii) are futile to the goal of independence. That proposed section provides that a person cannot be a chairperson or

16

S.6 (1) (a) (e) KICA Bill 2013

member of the board if they are an office bearer or employee of any political party. It is pointless to restrict persons in political parties from being members of the Board but at the same time, reserve three permanent positions for Government representatives. Furthermore, the proposed Section 6A (3) (iii) stipulates that person shall not be qualified for appointment as a member of the board if that person is a public officer. The appointment procedure proposed for members of the Board in Section 6B of the KICA Bill have been amended by the Committee to provide that the Cabinet Secretary will advertise positions in the Gazette and two newspapers of national circulation. This will be followed by the invitation of public comments on applicants. After consideration of applicants, the Cabinet Secretary will in the case of the chairperson, forward three names to the President; and in the case of other members, nominate seven persons and submit their names to the National Assembly for vetting. In the case of the chairperson, the President will nominate a candidate for chairperson from the three candidates provided by the Cabinet Secretary and forward the nominee to the National Assembly for vetting. If the National Assembly rejects any of the nominees, fresh nominees will be submitted by the President or Cabinet Secretary as the case may be. Vacancy of the positions of chairperson or members of the Board either occurs by resignation, death, gross misconduct, absenteeism, or application for removal by any person. Such application is made to the Cabinet Secretary setting out alleged facts constituting grounds for removal. The Cabinet Secretary then asses the complaint, upon satisfaction that it discloses a prescribed ground submits the complaint with recommendations to the President in the case of the chairperson; and determines the complaint in the case of a member of the Board. The proposed appointment process, while engaging the peoples representatives the National

Assembly, fails to secure meaningful public participation and hence brings into question the legitimacy of the Board of the authority. Public participation is a successive theme in the Constitution of Kenya ranging from express requirements for it; as a national value and principle of governance, in both national and county legislative processes as well as in environmental and financial matters.17 In the provisions, letter and spirit of the Constitution therefore, simply inviting public comments on the appointment of members of an authority to oversee the functions of the public watchdog that is the media; cannot be justified as constituting public participation. Citizens should also be allowed to provide input through written comments, however also through representatives. Such representatives can take the form of a panel constituted for the purposes of recruiting members of the board. This panel would be made up of media representatives, civil society representatives, professional association representatives, and a representative of the Public Service Commission.

17 Articles 10 (2) (2) (a), 69(1) (d), 118, 196 (1) (b) and 201 (a)

Additionally, the proposed roles of the President and the Cabinet Secretary in the appointment process are inappropriate, and the power to remove members of the Board is even more so as this would potentially expose the Authority to substantial political pressure.

3.2. Establishment of a Communications and Multimedia Tribunal

The Parliamentary Committee18 (herein after referred to as the Committee) passed an amendment to the Appeals Tribunals set up in the principal act to create a Communications and Multimedia Tribunal. This new Tribunal is proposed to arbitrate cases where disputes arise between parties under the Act, to hear cases against any publications, conduct of journalists, media enterprises or; anything done against a journalist or media enterprise that limits or interferes with their freedom of expression. This provision presents the following issues;

3.2.1 DUPLICATION OF FORUMS There currently exists a Complaints Commission established in law,19 carrying out the proposed scope of function of the proposed Communications and Multimedia Tribunal. The Complaints Commission is housed by the Media Council of Kenya (MCK). The MCK is a statutory press council set up to regulate media and the conduct and discipline of journalists. The activities of the MCK are standard setting through the adoption of a code of conduct, education of media workers and the general public about this code, and; adjudication of complaints submitted by the members of the public. The Council, while running under a co-regulation approach, remains largely independent. It is not justifiable for the Authority to create a similar Tribunal thereby;

(i) potentially seeking to water down the existing complaints commission mandate and powers or;

(ii) potentially seeking to forcibly disband the existing complaints commission (iii) introducing state regulation to print media which violates prescribed regional and

international standards of non state regulation of print media.

3.2.2 LIKELY STATE CONTROL OVER MEDIA HEARINGS AND REMEDIES It has been discussed above that the current construction of the Authority is clamped with State control based on the failure in one of the foremost tests of independence in any institution appointments and membership. Therefore, the proposed creation the Communications and Multimedia Tribunal in such a body whose independence is severely compromised is equally severely compromising of media freedoms. Regardless of the proposed provision for seven members of the Tribunal to not be in the employ of the Government, potential state control over the hearing, resolve and remedies of media issues is a direct attack on constitutionally guaranteed media freedoms.

18Departmental Committee on Energy, Information and Communication 19

S.23 of the Media Act 2007 - http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%20411B

3.2.3 EXTREME REMEDIES Following the above discussion on the state control over media remedies, the sanctions that the proposed Tribunal can met out include extremely punitive fines as well as recommend the suspension or removal from the register of a journalist. The fine maximums of 20 million shillings on media enterprises and one million shillings on individual journalists are exorbitant and have the potential to shut down or greatly impede the operations of media houses and; effectively debilitate journalists receiving individual fines of maximum amounts. In addition to the remedies being extreme and punitive, such power exercised by a Government controlled body on the right to practice journalism is impermissible and a violation of media freedoms. Furthermore, it creates a menacing opportunity to be used as a political tool to impede or silence critical and independent journalists.

3.2.4 RISK OF PARALLEL LITIGATION The Kenya Information Communications Act 199820 entitles persons who have exhausted a broadcasters complaints handling procedure and is unsatisfied with the remedy offered or

action taken to appeal to the existing Communications Commission of Kenya (CCK). While at the same time, the media Council Complaints Commission may also in effect hear such a case. However this risk of parallel litigation is not a justifiable reason to create a body under the KICA Bill that handles all complaints against media. As highlighted earlier, the Authority as currently constructed is subject to heavy state control therefore cannot be the body hearing and prescribing remedies over all media issues. Complainants should not be limited to a state controlled body to resolve all media grievances.

3.2.5 POSSIBLE CONFLICT IN THE SCOPE OF THE PROPOSED TRIBUNAL There is no current or proposed definition of communications or multimedia. However the

name of the proposed tribunal is the Communications and Multimedia Tribunal. Despite the

provision that the Tribunal will hear cases in the scope of publications, journalists and media enterprises; the name of the Tribunal suggests that a broader scope into communications and

multimedia may be inferred. Given the lack of definition of these, it may result in the

Tribunal overstepping its mandate and doing so without any scope for accountability for prescribed limitations on freedom of expression and media freedoms.

3.2.6 APPELLATE FUNCTION OF THE TRIBUNAL The proposed Communications and Multimedia Tribunal will have an appellate function over the Complaints Commission of the Media Council of Kenya. The amendment provides that any

20 S. 42 (1) http://www.cck.go.ke/regulations/downloads/Kenya-Information-Communications-Act-Final.pdf

person aggrieved by an action or decision of the Media Council may make a claim or appeal to the Tribunal. To create a state controlled appellate body on issues pertaining to media freedoms that is not a court of law creates an opportunity for overturning of rulings made to preserve media freedoms to rulings in favour of other interests including political and commercial ones. Rulings of the Media Council Complaints Commission should be escalated to the High Court as needed at the election of involved parties.

3.3. Local Content Requirement

The Committee inserted an amendment to Section 46I of the Act by inserting a new subsection stating; A broadcaster licensed to distribute radio or television programme services shall ensure that at least forty five percent of the programmes broadcast on radio or television on any given day comprise local content. Additionally, that the programmes containing local content referred to in subsection (3) shall be broadcast between 6 a.m. and 10 p.m. on any given day. While the promotion of local content is laudable, this provision creates the following issues:

(i) It does not define local content (ii) It does not make allowance for progressive implementation of 45% local

programming. In effect therefore, every broadcaster will be liable for failure to provide 45% local content as soon as the KICA Bill is passed. This will in effect instantly criminalize all broadcasters.

(iii) The proposal does not take into consideration factors affecting the lack of more prominent local content which are (i) prohibitive costs and; (ii) limited local content generation

4. PROPOSED AMENDMENTS TO THE PUBLIC BENEFITS ORGANISATIONS ACT, 2013 (VIA THE STATUTE LAW MISCELLANEOUS (AMENDMENTS) BILL, 2013)

4.1. Executive Summary

In January 2006, Parliament passed Sessional paper No. 1 of 2006 on Non Governmental

Organisations (NGOs), also known as the National Policy on NGOs. The Paper recognises the

need for a policy framework for the regulation and enablement of NGOs. It called for the

review of the NGOs Coordination Act 1990. As a result, Civil Society Organizations (CSOs) in

Kenya engaged in ongoing conversations and consultations around the most desirable

regulatory and administrative framework for their operations.

During the course of these conversations, a broadly inclusive CSO Reference Group was created

in 2009 to mobilize CSO participation in the development of a new enabling legal, regulatory

and institutional framework for CSOs in Kenya. This process culminated in the development of

a Bill - the Public Benefits Organizations (PBO) Bill. Over 1,500 civil society leaders around the

country contributed to discussions on the PBO bill.

Emerging from the consultations were six critical issues, which participants felt they wanted to

be addressed as a matter of priority, during the development of the new law. These issues

included:

Transparency of Registration Procedures;

Meaningful Protection of Fundamental Rights and Freedoms especially the Freedom of

Association, Expression and Assembly;

The Independence of the Regulator;

NGO Accountability and Transparency; and

Advancement of effective Self-Regulation.

On 13th January 2013, the PBO Bill 2012 received Presidential assent to become an Act of Parliament the Public Benefit Organizations (PBOs) Act, 2013. The Act seeks to provide for the regulation, establishment and operation of PBOs.21 The Act is yet to be implemented. On 30th October, 2013, the Statute Law (Miscellaneous Amendments) Bill, 2013 was published. It is an omnibus bill and includes several amendments to the PBO Act. The bill contains provisions that would have significant impact on civil society in Kenya, including:

21

Public Benefit Organizations (PBO)s are a voluntary grouping of individuals or organizations that are organized and operated locally, nationally or internationally, to support or promote public benefit.

(i) Awarding the Regulator discretionary powers to impose terms and conditions for the grant of certificates of registration;

(ii) Prohibiting PBOs from receiving more than 15% of its funding from external donors;

(iii) Prohibiting PBOs from receiving funding directly, mandating that all funds are received by the Federation comprised of all registered PBOs; and

(iv) Altering the composition of the Regulatory Authoritys governance body in favour of the executive.

Kenya is a signatory to international and regional human rights instruments including the International Covenant on Civil and Political Rights (ICCPR) and its two Optional Protocols, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the African Charter on Human and Peoples Rights (African Charter). These instruments affirm the right to freedom of association, assembly and expression and impose obligations on the state to respect, to protect and to fulfill human rights. The Constitution of Kenya enshrines these freedoms in its Bill of Rights. It provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors... It is difficult to see how the proposed amendments can be deemed necessary in a democratic society.

4.2. RECOMMENDATIONS

Recommendation Justification

1. The proposed amendments S.7A (2) and S.10 (A) should be deleted. Section 8 (2) (f) of the PBO Act should be amended by inserting the words provided that these particulars will be directly and reasonably related to the categories explicitly provided under this Section of the Act

immediately after the words Act.

The proposed amendments if left in force will impede one of the PBO Acts objects, which is to ensure meaningful protection to the freedom of association through providing registration procedures, which are transparent, and which will facilitate the establishment of public benefit organisations while safeguarding freedom of association Section 3 (e). An element of uncertainty as to registration requirements and procedures is introduced by the proposed amendments.

2. The proposed amendment S.10 (2) to amend S.13 of the PBO Act that provides for, a certificate of registration to be replaced with an entry into the register as conclusive evidence of compliance for registration,

Detrimental or vexing requirements may be added to the registration process, potentially impeding a PBOs ability to

function lawfully.

should be deleted and Section 13 of the PBO Act retained as it is.

3. Proposed amendment 27A (1) any funding of a PBO shall be made through the Federation and not by an individual member organization. should be deleted.

While this proposal aims to ensure closer monitoring of financing of PBOs, the provisions in the PBO Act are adequate and on implementation, will serve to ensure transparency and effective enforcement of reporting requirements by the Regulatory Authority. The Act goes to great length in detailing how basic issues of protection of assets, good governance and accountability should be addressed.

4. The composition and functions of the Federation as envisioned in the PBO Act should be revisited to ensure that PBOs

independence is safeguarded.

5. Proposed amendment s. 27A (1) which states that any funding of a PBO shall be made through the Federation and not by an individual member organization should be deleted.

This proposal would create a barrier to accessing funding and compromise PBOs independence. The right to associate requires that the State ensure that those regulations do not impede, delay, or limit the creation or functioning of these organizations, lest the state become responsible internationally. In that regard, while those who wish to associate and exercise their rights must comply with the regulations provided, the regulations must not impose hindrances to the right to association and to the independent, free operation of the organizations.

6. Proposed amendment S. 27 A (2) which states that a public benefit organization shall not receive more than 15% of its total funding from external donors should be deleted.

Any restriction on foreign funding of PBOs is a limitation on the freedom of association. Access to resources in order to enable organizations to function effectively, including funding from international sources, to support those associations has been recognized internationally as an important

component of the freedom of association.22 In addition to being a contravention of

freedom of association, it would have a

dramatically devastating effect on

Kenyan beneficiaries. Even in the current

case where the government slightly

increased its funding to the CSO sector to

facilitate civic education during the last

elections, it does not have the capacity or

political will to substitute the funding

that many PBOs will lose with the

adoption of this amendment.

7. The proposed deletion of 27 (A) (2) requires then the consequent deletion of; Section 27 (A) (3) the Cabinet Secretary responsible for finance may approve an amount higher than 15% where there are legitimate and compelling reasonsfor increasing the limit. and Section 27 (A) (5) regulations shall establish percentage ceilings of funding to PBOs by overseas development assistance.

8. Proposed amendment S. 35 (1) (a) which states that the Chairperson of the Board of the Authority shall be appointed by the President be deleted and Section 35(1) of the Act amended by inserting the words through an open and competitive process, with the approval of the National Assembly immediately after the

word Cabinet Secretary.

This will meaningful ensure public participation as envisioned in Article 10 of the Constitution and remove State control from the Board of the Authority.

9. Proposed Amendment to delete S 35(7) of the PBO Act to allow co-opted experts to vote on the Board. The PBO Act categorically states that persons co-opted to the Board shall not have the right to vote.

Allowing co-opted experts to vote could be used as an avenue of achieving mandated voting thresholds, tilting decisions in favour of the executive. Again, this amendment creates the space

22

Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, A/HRC/23/39 (24 April 2013)

This provision should not be deleted and left as currently provided in the PBO Act

for increased government control over civil society.

10. Proposed amendment S. 45(1) and S. 45(6)

provide respectively that the Director General

of the PBO Authority shall be appointed and

removed by the Cabinet Secretary should be

deleted and the provisions retained as they

currently are in the PBO Act.

The Regulatory Authority will be subject

to the problems besetting many

Parastatals, such as vulnerability to

undue interference by the Executive and

incessant power struggles between the

Chairperson (a presidential appointee)

and Director General (an appointee of

Cabinet Secretary).

11. The proposed amendment of S 35(1) (g) for

the inclusion of the Principal Secretary for

internal security on the Board of the

Authority should be deleted.

This proposed amendment, in addition to the proposals above, enhances the Executives oversight and control of the operations of the PBO Regulatory Authority. The inclusion of security officials on the Board may suggest increased security oversight, to the detriment of PBO independence.

12. The Proposed Amendment to Section 35(1)

(b) which aims to reduce the number of

Board members who have rendered

distinguished service in the civil society,

appointed by the Cabinet Secretary from

three to two should be deleted.

It is not clear why the number of slots on the Board allocated to distinguished civil society colleagues is reduced, but it signals a reduced role for the valuable expertise and experience of civil society representatives in Board decision-making.

13. The Proposed Amendment to S. 36(1) (e)

which provides that only those with no

subsisting office or membership in the governing

body of a PBO can be appointed to the PBO

Regulatory Authority should be amended.

It should provide that candidates qualified

for appointment as a member of the Board

must declare any positions/membership

within the sector.

This amendment together with provisions that require the members of the Board to declare their interests (Schedule 4, Clause 3(1)) will address conflicts of interest.

4.3. COMMENTARY

4.3.1 Registration

(a) Proposed amendment to Section 10A provides that the PBO Regulatory Authority may from time to time impose terms and conditions for the grant of certificates of registration, permits of operation and PBO status.

(b) Proposed Amendment Section 7A (2) lists the particulars that must accompany an

application for PBO status. After listing four basic documents in sub-sections (a)-(d), the

Bill includes such other particulars or information as may be required by the

Authority. This language is identical to that used in Section 8(2) (f) of the PBO Act

setting out the requirements for registering a PBO.

The proposed amendments are not accompanied by objective standards and clear guidelines,

for example, on how and under what circumstances the Authority can formulate and impose

such terms and conditions and what issues the terms should relate to, or on the particulars that

PBOs should submit to the PBO Regulatory Authority.

Wide discretion is given to the Authority to formulate terms that may not necessarily be in line

with the registration requirements under the Act.

Freedom of association will be jeopardized since the consequences of non-compliance with the

terms and conditions would be dire, such as the cancellation of a certificate of registration.

(c) Proposed amendment S. 10 (2) to amend S.13 of the PBO Act provides for the substitution

of the words certificate of registration with an entry into the register as conclusive evidence

of compliance for registration.

Similarly, Sections 10(2) and 13(1) of the PBO Act declare that a certificate of registration is

conclusive evidence that a PBO is duly registered in accordance with the law. The proposed

amendment seeks to replace a certificate of registration with entry in register.

It is unclear whether this means there is a difference between a PBO that has a certificate of

registration and one that is entered in the register. Furthermore, it may provide leeway for the

introduction of additional registration steps that may encumber a PBOs registration process.

Kenyan laws on registration provide that the issuance of a certificate of registration shall be

conclusive evidence of registration. This proposal has no justification and basis in Kenyan law.

4.3.2 Barriers to Funding

(a) Proposed amendment s. 27A (1) states that any funding of a PBO shall be made through the

Federation and not by an individual member organization.

This proposal, which imposes a new funding and administrative role on the Federation, is

totally opposed to the envisaged roles of the Federation in the Act. The PBO Federation under

section 21(9) of the PBO Act is set up to primarily facilitate three things: coordination of self-

regulation, capacity building and representation of the sector at various fora.

One of the key objectives of the PBO Act is to to promote the development of self-regulation among

PBOs s. 3(c). However, framed as it is, the proposed provision will:

create a considerable barrier to the ability of PBOs to access funding;

diffuse the original intention and hence compromise, the purpose of the Federation in

the Act, which is to provide an effective framework for co-ordination and advancement

of effective of self-regulation;

compromise the independence of PBOs and unduly obstruct the legitimate work they

carry out;

result in severely reduced funding to PBOs. Given the vague guidelines accompanying

this proposed amendment, it is highly unlikely that development partners will be

willing to allow their funds to pass through a new, administrative body, whose pass-

through and/or approval mechanism for received funds is left to indeterminate

subsequent regulations.

constitute an unjustifiable interference with freedom of association. In order to enable organizations to function effectively, access to resources including funding from international sources to support those associations, has been recognized internationally as an important component of the freedom of association.23

While states are free to regulate the registration and oversight of organizations, the right to associate requires that the state ensure that those regulations do not impede, delay, or limit the creation or functioning of these organizations, lest the state become responsible internationally. In that regard, while those who wish to associate and exercise their rights must comply with the regulations provided, the regulations must not impose hindrances to the right to association and to the free operation of the organizations.

Restrictions to funding have been justified on the need to ensure greater transparency and accountability within the civil society sector. Combating fraud, embezzlement, corruption,

23

Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, A/HRC/23/39

(24 April 2013). The U.N. Human Rights Defenders Declaration in Article 13 states: Everyone has the right,

individually and in association with others, to solicit, receive and utilize resources for the express purpose of

promoting and protecting human rights and fundamental freedoms through peaceful means, in accordance with

article 3 of the present Declaration.

money-laundering and other modes of trafficking is legitimate. Nevertheless, this argument has, in some countries been used to exert extensive scrutiny over the internal affairs of associations, as a way of intimidation, harassment and as a pretext to silence critics, following minor violations of the law.

In Egypt, the Law on Non-Governmental Organizations (Law 84 of 2002) requires strict

governmental monitoring of foreign funding, under the surveillance of the General Federation

of Civic Associations. The law prohibits any association from receiving foreign funds without

advance approval from the Ministry of Social Solidarity. Violations of funding requirements

can result in severe penalties (including imprisonment) or an organisations dissolution. For

example, on April 27, 2009, the Egyptian Organization for Human Rights (EOHR) received a

dissolution decree, alleging that the EOHR received foreign funding without authorization; the

dissolution order reportedly came soon after EOHR published its 2008 Annual Report,

criticizing the Egyptian Government.

While this proposal aims to ensure closer monitoring of financing of PBOs, the provisions in the

PBO Act are adequate and on implementation, will serve to ensure transparency and effective

enforcement of reporting requirements by the Regulatory Authority. The Act goes to great

length in detailing how basic issues of protection of assets, good governance and accountability

should be addressed. It is designed in such a way as to facilitate more efficient compliance by

PBOs with the international standards of good governance and competence, as well as with

statutory regulations.

In addition to the provisions in the PBO Act, financial reporting requirements demanded by most development partners, are basically effective in ensuring transparency. In addition, many NGOs already have in place institutional mechanisms which contribute to transparency, and to an understanding of how funds are spent, transmitted and received by NGOs.

(b) Proposed amendment prohibiting PBOs from receiving more than 15% of its funding

from external donors.

The proposed amendment S. 27 A (2) states that a public benefit organization shall not receive more

than 15% of its total funding from external donors.

This limitation is in contravention of international norms and would likely have a

dramatic effect on Kenyan civil society. Many large PBOs may be forced to shut down

and smaller organizations (most of which rely heavily on one or two external funders)

might likewise be severely constrained.

Even though the government slightly increased its funding to the CSO sector to facilitate civic

education during the last elections, it does not have the capacity or political will to substitute

the funding that many PBOs will lose with the adoption of this amendment.

The proposed provision will:

Lead to a dip in the economy: Civil Society contributed to 15% of the Economy in 2012.

Public Benefit Organizations, in particular Civil Society Organizations accounted for Ksh

152 Billion (15% of the 1 Trillion national budget) in 2012, the bulk of which is within the

health and education sector.

Result in a significant drop in foreign exchange earnings: Over 90% of the 152 Billion

was received in foreign exchange, making this sector a significant earner of foreign

exchange.

Severely affect the quality of the services provided: For example, 47% of health care in

the country is delivered through the private sector including NGOs and Faith Based

Organizations (churches). In addition, the national health budget is funded to tune of

55% by external funding through NGOs. These funds will not be channeled through

Government by many donors. The Government will have to find funds to inject into the

health sector and will find it difficult to meet its MDG Health goals.

Increase the rate of unemployment across the country as a result of PBOs shutting

down and render more 200,000 Kenyans jobless. The PBO Sector employs

approximately 240,000 Kenyans. This will reduce tax returns realized from these jobs

and purchasing power in the economy.

Lead to a mass exodus of organisations from the NGO registration regime as many

PBOs could opt to wind-up and register under alternative CSO registration

frameworks.24

Already, a number of International NGOs have received directions from their

headquarters to consider relocation of their offices to alternative countries. This will

severely and detrimentally impact millions of Kenyans especially in marginalised areas,

who depend solely on NGOs to provide vital services like education, health, food and

water.

The PBO Act [section 3(g)] aims to facilitate mechanisms for government support to PBOs, such as

funding of PBOs activities and involvement of PBOs in the implementation of government projects. This

is in line with the National Policy on NGOs [Objective 3(i) (VI)] and international best practices

where governments acknowledge the significant role that PBOs play in meeting citizens needs

and as a result, provide them with incentives to encourage their contributions towards

development.

24 Statistics from HENNET factsheet

To encourage more public benefit CSOs to register themselves and to operate under the PBO

Act, the government will need to consider providing tax and other incentives that will advance

but not impede the contribution of PBOs.

(c) Proposed amendment S. 27 (A) (3) provides that the Cabinet Secretary responsible for

finance may approve an amount higher than 15% where there are legitimate and compelling

reasonsfor increasing the limit.

There are no clear guidelines for the Cabinet Secretarys decision-making process and it is

therefore not sufficiently precise for PBOs to anticipate how the provision will be applied and

how they can be compliant. Further, the wide discretion afforded to the Cabinet Secretary is

open to abuse and invites arbitrary and subjective decision-making that has no basis in law.

(d) Proposed amendment Section 27(A) (5) provides that regulations shall establish

percentage ceilings of funding to PBOs by overseas development assistance.

It is not clear how these regulations will relate to the 15% cap outlined in S 27A (2) and this

provision invites the further imposition of arbitrary limits on funding from outside of Kenya.

Moreover, the restriction on overseas development assistance is particularly noteworthy in

light of the Jubilee Governments stated goal of securing $8bn in foreign direct investment. The

government is seeking to ease access to international funds to pursue private interests while,

through these amendments, it is imposing restrictions on receiving funding from abroad to

pursue public benefit activities.

In Ethiopia three laws, which were passed within months of each other, place excessive restrictions on the rights of freedom of expression and freedom of association, limiting Ethiopian individuals abilities to participate in the political life of the country and

particularly, to criticize the government. These include the Freedom of the Mass Media and Access to Information Proclamation, the Anti-Terrorism Proclamation and the Proclamation for the Registration and Regulation of Charities and Societies 2009. The later law introduced a broad range of requirements and restrictions, and provides that domestic civil society organisations that receive more than 10% of their funding from outside Ethiopia are prohibited from engaging in activities related to the advancement of human and democratic rights Today, the countrys leading human rights organizations have lost almost all of their income

because of the funding restrictions. Further, these organizations have been subjected to enforced

changes of mandate, programme activities or the name of their organization. Even development

organizations have had to revise their approaches, and change their activities because of the

restrictions on human rights work. The impact of the law has therefore been to substantially

undermine and weaken the promotion and protection of human rights in Ethiopia.

4.4. Limitation of the Regulatory Bodys Independence

Proposed amendment S. 35 (1) (a) stipulates that the Chairperson of the Board of the

Authority shall be appointed by the President.

This is a troubling sign of closer Presidential oversight of civil society affairs. In the PBO Act,

the power to appoint the Chairperson rests with the Cabinet Secretary.

Proposed amendment S. 45(1) and S. 45(6) provide respectively that the Director General

of the PBO Authority shall be appointed and removed by the Cabinet Secretary.

The PBO Act Section 45(1) and (6) give the Board of the Regulatory Authority the duty to

appoint and remove the Director General. Given that the Director Generals position is

contractual, decisions on his appointment and removal should be left to the Boards decision.

This is in line with good governance practices.

If these proposed amendments sail through, the Regulatory Authority will be subject to the

problems besetting many Parastatals, such as vulnerability to undue interference by the

Executive and incessant power struggles between the Chairperson (a presidential appointee)

and Director General (an appointee of Cabinet Secretary).

Proposed amendment S 35(1) (g) is deleted and substituted by the inclusion of the

Principal Secretary for internal security on the Board of the Authority.

This proposed amendment, in addition to the proposals above, enhances the executives

oversight and control of the operations of the PBO Regulatory Authority. The inclusion of

security officials on the Board may suggest increased security oversight, to the detriment of

PBO independence.

Proposed Amendment to delete S 35(7) of the PBO Act. The PBO Act categorically states

that persons co-opted to the Board shall not have the right to vote.

The proposed amendment runs contrary to good governance practices which limit voting

privileges to members of the governing bodies.

Allowing co-opted experts to vote could be used as an avenue of achieving mandated voting

thresholds, tilting decisions in favour of the executive. Again, this amendment creates the space

for increased government control over civil society.

The cumulative effect of these changes may be to diminish PBOs voice within the Board of the

Authority.

4.5. Alteration of the composition of the Regulatory Authoritys Governance body: Reduced Role of Civil Society on the board.

Proposed Amendment to Section 35(1) (b) aims to reduce the number of Board

members who have rendered distinguished service in the civil society, appointed by

the Cabinet Secretary from three to two. It is not clear why the number of slots on the

Board allocated to distinguished civil society colleagues is reduced, but it may signal a

reduced role for civil society representatives in Board decision-making.

Proposed Amendment to S. 36(1) (e) provides additional criteria to the list of persons

disqualified from appointment to the PBO Regulatory Authority - persons serving in

governing bodies of PBOs. A person shall be qualified for appointment as a member of the

Board if such person (e) has no subsisting office or membership in the governing body of a PBO.

The proposed amendment to Section 36(1) (e) will exclude anyone from sitting on the Board if

they have any existing link to civil society (through employment, membership or governance).

This effectively implies that those nominated by the Federation to sit on the Board (s. 35(1) (i))

and those with previous civil society experience (s. 35(1) (b) will either have to be persons who

are working in other sectors, self-employed or retired from service in the CSO sector.

Essentially, this will severely minimise the participation of persons who have experience,

knowledge and the best interests of the sector at heart, on the board of the Regulatory

Authority.

4.6. CONTRIBUTERS AND SUPPORTERS

The Following Organisations Are Members of the CSO Reference Group and Have

Contributed to or Support This Legal Advisory:

1. ACT! 2. ACTION AID 3. AKIBA UHAKI 4. AMNESTY INTERNATIONAL 5. AMREF 6. ARTICLE 19 EASTERN AFRICA 7. COALITION FOR CONSTITUTION IMPLEMENTATION 8. CCI 9. CONSTITUTION & REFORM EDUCATION CONSORTIUM (CRE-CO) 10. DIAKONIA SWEDEN KENYA 11. FIDA 12. INTERNATIONAL COMMISSION OF JURISTS KENYA (ICJ-KENYA) 13. KATIBA INSTUTUTE 14. KCOMNET/PAMFORK 15. KENYA HUMAN RIGHTS COMMISSION 16. KESUDE TRUST 17. INUKA KENYA 18. KENYA CIVIL SOCIETY CONGRESS 19. NATIONAL CIVIL SOCIETY -CONGRESS 20. OXFAM 21. RIGHTS PROMOTION AND PROTECTION CENTER 22. RSM ASHVIR 23. THE INSTITUTE FOR SOCIAL ACCOUNTABILITY 24. THE NUBIAN RIGHTS FORUM 25. TRANSPARENCY INTERNATIONAL 26. UNGA REVOLUTION 27. URAIA