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THE KENYA INFORMATION COMMUNICATION (AMENDMENT) BILL 2013
THE STATUTE LAW (MISCELLANEOUS AMENDMENTS) BILL 2013
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
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 Kenya‟s 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 ngo‟s 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
Articles 33, 34, 35 and 36 of the Constitution of Kenya 2010 - http://kenyalaw.org/kl/index.php?id=398
Article 9 Article 19 4 Article 19
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 Body‟s Independence ................................................................ 23 4.5. Alteration of the composition of the Regulatory Authority‟s 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 people‟s 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,
Freedom of the media provision – Article 34 of the Constitution of Kenya 2010.
http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/bills/2013/THEMEDIACOUNCILBILL.pdf http://www.cck.go.ke/regulations/downloads/Kenya-Information-Communications-Act-Final.pdf Article 34 (2) (a); (3) (b); and (5) (d). The Authority is established to licence and regulate telecommunication, radio-communication and postal services. 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.
Recommendation 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. Justification This will ensure meaningful public participation in governance as envisaged in Article 10 (2) (a) of the Constitution.
Deleting provisions of S. 6 (b) – (d) that This will ensure compliance with Article provide reserved positions for three Principal 34 (2) (a); (3) (b); and (5) (d) of the Secretaries on the board of the Authority. Constitution which require that the Authority be independent and free of any control by government.
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.
S.102 (1) of the Act remain as currently There currently exists a Complaints provided in the Act that the Appeals Tribunal Commission established in law,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 carrying out the proposed scope of the between parties under the Act. proposed tribunal. The Complaints Commission is housed by the Media This will require a further amendment i.e. Council of Kenya (MCK). The MCK is a statutory press council set up to rightly Deletion of Clause 34 which seeks to delete regulate media and the conduct and section 102 (which sets up the Appeals Tribunal discipline of journalists. in the Principal Act) and substitute it with the creation of a Communications and The proposed tribunal wrongly seeks to Multimedia Appeals tribunal. 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. The risk of parallel litigation which exists by This will address the risk of parallel having a Tribunal hearing media matters litigation in Tribunals on media disputes. relevant to the Authority‟s mandate and the Media Council of Kenya‟s 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. The insertion of a provision to expressly This will ensure that broadcasters are not provide for the progressive implementation criminalized upon enactment of the law. of the 45% local content requirement It also gives an opportunity for limiting sector factors in production of local content to be addressed. Delete the Parliamentary Committee‟s The creation of a state controlled proposed newly inserted section 102F which appellate body on issues pertaining to seeks to give the Communications and media freedoms, that is not a court of Multimedia Tribunal appellate jurisdiction law, creates an opportunity for over the Media Council of Kenya‟s overturning of rulings made by an Complaints Commission. independent media regulator and; Government influence in decisions at appeal. This is contrary to the provisions of Article 34 of the Constitution.
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
Article 34 (2) (a) and (b) 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
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 people‟s 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.
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) (ii) (iii) potentially seeking to water down the existing complaints commission mandate and powers or; potentially seeking to forcibly disband the existing complaints commission 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.
Committee on Energy, Information and Communication
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 broadcaster‟s 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
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) (ii) It does not define local content 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. 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:
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) (ii) (iii) (iv)
Awarding the Regulator discretionary powers to impose terms and conditions for the grant of certificates of registration; Prohibiting PBOs from receiving more than 15% of its funding from “external donors”; Prohibiting PBOs from receiving funding directly, mandating that all funds are received by the Federation comprised of all registered PBOs; and Altering the composition of the Regulatory Authority‟s 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”.
Recommendation Justification The proposed amendments S.7A (2) and S.10 The proposed amendments if left in force (A) should be deleted. will impede one of the PBO Act‟s objects, which is to ensure meaningful protection Section 8 (2) (f) of the PBO Act should be to the freedom of association through amended by inserting the words “provided providing “registration procedures, which that these particulars will be directly and are transparent, and which will facilitate the reasonably related to the categories explicitly establishment of public benefit organisations provided under this Section of the Act” while safeguarding freedom of association” immediately after the words Act. Section 3 (e). An element of uncertainty as to registration requirements and procedures is introduced by the proposed amendments. Detrimental or vexing requirements may be added to the registration process, potentially impeding a PBO‟s ability to function lawfully.
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,
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.
The composition and functions of the Federation as envisioned in the PBO Act should be revisited to ensure that PBOs‟ independence is safeguarded. Proposed amendment s. 27A (1) which states This proposal would create a barrier to that any funding of a PBO shall be made through accessing funding and compromise the Federation and not by an individual member PBOs‟ independence. organization should be deleted. 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. 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 22 association.
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 reasons…for increasing the limit. and Section 27 (A) (5) “regulations shall establish percentage ceilings” of funding to PBOs by “overseas development assistance.” 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. 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.
This will meaningful ensure public participation as envisioned in Article 10 of the Constitution and remove State control from the Board of the Authority.
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
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 for increased government control over as currently provided in the PBO Act 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).
The proposed amendment of S 35(1) (g) for This proposed amendment, in addition the inclusion of the Principal Secretary for to the proposals above, enhances the “internal security” on the Board of the Executive‟s oversight and control of the operations of the PBO Regulatory Authority should be deleted. Authority. The inclusion of security officials on the Board may suggest increased security oversight, to the detriment of PBO independence. 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. 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. 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 decisionmaking. 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 PBO‟s 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 selfregulation, 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 passthrough 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,
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 organisation‟s 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.
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 reasons…for increasing the limit. There are no clear guidelines for the Cabinet Secretary‟s 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 Government‟s 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 country‟s 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 Body’s 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 General‟s position is contractual, decisions on his appointment and removal should be left to the Board‟s 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 executive‟s 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 Authority’s 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. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. ACT! ACTION AID AKIBA UHAKI AMNESTY INTERNATIONAL AMREF ARTICLE 19 EASTERN AFRICA COALITION FOR CONSTITUTION IMPLEMENTATION CCI CONSTITUTION & REFORM EDUCATION CONSORTIUM (CRE-CO) DIAKONIA SWEDEN KENYA FIDA INTERNATIONAL COMMISSION OF JURISTS KENYA (ICJ-KENYA) KATIBA INSTUTUTE KCOMNET/PAMFORK KENYA HUMAN RIGHTS COMMISSION KESUDE TRUST INUKA KENYA KENYA CIVIL SOCIETY CONGRESS NATIONAL CIVIL SOCIETY -CONGRESS OXFAM RIGHTS PROMOTION AND PROTECTION CENTER RSM ASHVIR THE INSTITUTE FOR SOCIAL ACCOUNTABILITY THE NUBIAN RIGHTS FORUM TRANSPARENCY INTERNATIONAL UNGA REVOLUTION URAIA
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