Kenya’s civil society has faced a myriad of challenges but it has grown resilient and vibrant over the decades. Njeri Kabeberi explores the role of the state in shrinking political spaces for civil society organisations in Kenya.
Born in the toughest of times, under the repressive regime of Daniel arap Moi (1978–2002), Kenya’s civil society has grown resilient and vibrant over the decades. Dominated by youth and with strong links to growing social movements, it has become a beacon of hope to the many Kenyans who continue to struggle for the full realisation of their political, social and economic rights and freedoms. Together with a bold mainstream press and highly interactive social media, it works to hold those in positions of power to ac- count and to enhance citizens’ participation in the political process.
However, many influential leaders in the sector left to join government after a euphoric 2002 election, weakening civil society’s ability to speak out and engage within and outside the sector. Questions have also been raised about its accountability and transparency to its constituencies, in particular to the communities and the public in whose name (and need) they seek funding from donors. This issue has been used and abused by the Jubilee Coalition that came into power in March 2013.
The anti-NGO sentiment of the cur- rent administration should not come as a surprise. President Uhuru Kenyatta and his deputy William Ruto were elected on a largely anti-foreign platform that took particular aim at the International Criminal Court (ICC), which probed the two’s involvement in the post-election violence of 2007–08. The notion of NGOs conspiring with the ICC against Kenyan leaders delivered politicians the justification for calls to reduce NGO freedoms and access to funds. Civil society soon became “evil society” in public discourse.1
The Public Benefit Organisation Act
A core objective of the Public Benefits Organisations (PBO) Act is to encourage public benefits organisations to maintain high standards of governance and management through effective self-regulation.
The long-awaited Act was to replace the NGO Co-ordination Act of 1990, which had been enacted at a time of mutual suspicion between government and the civic sector. The legislation was greatly flawed and did not provide an enabling regulatory and institutional framework for the effective growth and development of civil society organisations in Kenya.
From 2009, several civil society organisations (CSOs), under the umbrella of the Civil Society Organisations Reference Group, spearheaded a campaign to mobilise CSOs to help develop and implement a new legal, regulatory and institutional framework. The new PBO Act was eventually enacted into law in 2012 and assented to by then-President Mwai Kibaki in January 2013.
Unfortunately, notwithstanding the good efforts of the 10th Parliament and the Kibaki administration to create a conducive relationship between civil society and the state, the law remained mute and inoperative for three and a half years. Only on 9 September 2016 did the government of Kenya finally sign the PBO Act of 2013 into life.
The extended period of ambiguity caused by this delay had led CSOs to petition the High Court against both the cabinet secretary for devolution and planning and the attorney-general. Their petition, filed in late August 2015, argued that the delay in bringing the law into operation undermined the constitution and had led to illegal con- duct by the Non-Governmental Organisations Coordination Board. Established by the 1990 NGO Co-ordination Act, the board is responsible for regulating and enabling the NGO sector, with the NGO Bureau acting as its executive arm.2 Today, the lines between board and bureau have become blurred, such that the executive director of the bureau is misusing his authority to harass the civic sector under a defunct law.
Over the past three and a half years, and in cahoots with the cabinet secretary, the bureau helped to draft four sets of harmful amendments to the PBO Act that would cap foreign funding at 15 percent, under- mine self-regulation, and impose excessive national executive regulation.
Over the past three and a half years, and in cahoots with the cabinet secretary, the bureau helped to draft four sets of harmful amendments to the PBO Act that would cap foreign funding at 15 percent, under- mine self-regulation, and impose excessive national executive regulation. In December 2014, the bureau deregistered 540 organisations, only to reinstate 179 of them two weeks later after they proved they were in full compliance with the law.
With the rise of terrorist activity in Kenya, security issues took a greater part in justifying the shrinking of civic space. In June 2015, on the recommendation of the bureau, the government froze the accounts of Muslims for Human Rights (Muhuri) and another human rights organisation called Haki-Africa, citing allegations that they fund terrorist activities. Less than two months later, the High Court found that the two organisations had no case to answer.
On 31 October 2015, the CSO Reference Group reacted to threats of deregistration against another 970 NGOs with a press statement that the “bureau has been acting in an alarmist and punitive manner” and that the sector is slowly being choked to death by clumsy, short-sighted legislation and a smear campaign.
In May 2016, newly appointed Cabinet Secretary Mwangi Kiunjuri attempted to introduce new amendments, in total dis- regard of conservatory orders issued by the High Court in August 2015 to prevent any amendments until the CSO Reference Group’s petition is heard substantially and ruled on. That highly anticipated judgment, which was expected to be delivered in July 2016, was postponed indefinitely. In light of the surprising gazetting of the law in September, one may assume that the government realised that it could not win the case, which has now been rendered redundant.
The Reference Group’s legal battle gained additional strength from a second approach mounted through the leg- islature. In April 2016, MP Agostinho Neto proposed an amendment to the PBO Act 2013 that would cause the Act to come into force within 14 days of its publication. This amendment was informed and motivated through the engagement between the Reference Group and the Kenya Parliamentary Human Rights Association (KEPHRA), of which Neto is a member. The Bill proposed to remove the powers conferred upon cabinet secretary to determine when the Act will come into force. At the time of writing, Neto’s bill had gone through the first and second readings.
All in all, the attempted or threatened amendments to the legal and institutional framework have served to intimidate the media, which induces self-censor- ship and undermines the role of the media as the guardian of civic spaces.
Most recently, Kenyan-based international NGOs have also come under attack. While the government’s demands that inter- national NGOs hire locals first and address salary disparities may sound “reasonable” to the ears of the public, beneath the surface one soon encounters a systematic anti-foreign and anti-NGO sentiment. In addition, a number of local and international NGOs reportedly have been forced to pay to be removed from the NGO Bureau’s deregistration list and to receive work permits for their international staff.
Attacks on Media
Amidst the worst chaos ever witnessed in a Kenyan parliament3, Speaker of the National Assembly Justin Muturi bulldozed parliament into passing one of the most controversial laws in independent Kenya: the Security Laws (Amendments) Bill. Despite robust constitutional protections for freedom of expression, Kenyan legislators enacted legislation on 18 December
2014 that not only threatened to curtail media coverage of terrorist attacks and security operations in the country but also amended 21 other laws, among them the Penal Code, Criminal Procedure Code, Evidence Act, Prevention of Terrorism Act, and the National Police Service Act. The president signed this controversial bill into law a day after the chaotic parliamentary sitting and it was gazetted three days later.
The celebrations of the ruling coalition were, however, short-lived. Two months later, the High Court ruled in favour of a petition brought by the Kenya National Com- mission on Human Rights that challenged many of the Bill’s provisions on grounds that they violated free speech, media freedom and other civil liberties. The court struck down Section 12 of the Act (which curtailed rights to publish, broadcast and distribute materials through print, digital or electronic media and to report on action/investigation of security operations by security forces) for “violating the freedom of expression and the media guaranteed under Articles 33 and 34 of the Constitution”.4
Two other restrictive laws had been adopted in late 2013: the Kenya Information and Communication (Amendment) Act (KICA) and the Media Council Act, which created a government-appointed Communication and Multimedia Appeals Tribunal with the power to hear appeals on complaints initially handled by the statutory Media Council of Kenya. The tribunal is “authorized to withdraw media accreditation and seize any property or other assets to cover fiscal penalties. Individual journalists face fines of up to 500 000 shillings [USD 5 000], and media companies up to 20 million shillings [USD 200 000], if they are found in breach of a government-dictated code of conduct drafted by legislators”.5
These legislative changes serve as the backdrop against which a general attack against free forms of media can be observed. From January to September 2015, the inter- national human rights organisation Article 19 recorded 65 cases where individual journalists and social media users were threatened with physical violence, threats by phone and text, summons by police, or legal restrictions. Of these, 22 cases related to journalists covering corruption, 12 to pro- tests, and eight to terrorism and crime stories. Only three of these 42 cases have been investigated and the perpetrators taken to court, which is, as the director of Article 19 in Nairobi Henry Maina has argued, “an unacceptably high level of impunity”.6
All in all, the attempted or threatened amendments to the legal and institutional framework have served to intimidate the media, which induces self-censorship and undermines the role of the media as the guardian of civic spaces.
Article 37 in Chapter 4 of the Constitution provides that “Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities”. Yet despite this very clear and progressive provision, Kenya has witnessed unprecedented police brutality. The recent torture and killing of a human rights lawyer affiliated to International Justice Mission, his client, and their driver are a sign of how deeply entrenched the culture of impunity is.7 The incident led to nation- wide protests. In July 2016, Human Rights Watch released a report documenting 34 cases of Kenyans who disappeared at the hands of security agencies between 2013 and 2015. These cases have occurred on the pretext of fighting the armed Islamist group Al-Shabaab. In the same period, at least 11 bodies of people last seen with security officers were discovered.
Police brutality has a more immediate political utility, too. During protests against Kenya’s controversial electoral commission in May and June 2016, police officers shot live ammunition towards these largely peaceful gatherings, killing at least 5 people and wounding 60 others. Human Rights Watch reported that uninvolved bystanders, students in school or on their way home, and people at work or in their homes were seriously injured or killed in situations where lethal force was unnecessary. One witness said police shot a man coming out of a bank and appeared to take his money. The shootings have violated Kenyan law and international guidelines on the use of force by law enforcement officials.8 In an absurd turn of events, presidential spokesman Manoah Esipisu claimed those shot during the recent protests had been looting supermarkets.9
The police’s unfettered discretion in their use of force systematically threatens to create a police state.
The Road Ahead
The Kenyan government has shown a disturbing determination to clamp down on independent and dissenting voices. As Human Rights Watch’s Otsieno Namwaya noted in reaction to the police’s heavy- handed response to protests, “[t]hese images rekindle memories of the repression in the 1990s when the KANU administration tried to suppress civil society leaders and the political opposition’s campaign for reforms to enshrine basic rights in Kenya’s Constitution.”10
Threats to civil society’s operating space and existence are set to continue. Ahead of the August 2017 elections, political interests are likely to drive the desire to control independent voices, domestic and international. However, Kenya’s civics have proven to be resilient and undeterred in the face of the worst oppression. Their recent success in arm-twisting the government to gazette the PBO Act is strong testimony to that.