Is the Government going in circles over PBOs?

An abridged version of this article was published in the The Star Newspaper, 22-07-15

The establishment of a Taskforce to review the Public Benefits Organisations Act (2013) by Cabinet Secretary Anne Waiguru in November 2014 broke what was becoming a predictable tradition of “NGO legislation by ambush”. It was hoped that consensus could be built on any necessary changes. It was also hoped that the Act, already dormant for two years, would finally be commenced. Seven months from the establishment of the Taskforce, it is difficult to see whether Kenyan taxpayers have got value for money.

The Taskforce Chairperson Sophia Abdi Noor handed over the Taskforce report to the Cabinet Secretary in the presence of the full Taskforce and the Media on May 21st. The report was not shared with the other 13 Taskforce Members, the Press, the 1,943 men and women who gave their views or the public. Only after three terse PBO press conferences, social media pressure and lobbying, did NGO Coordination Bureau Director Fazul Mahamed finally release the report to the public on July 6th by twitter.

28 of the report’s 40 pages are devoted to an unbelievably large number of pie-charts and matrices of those that participated in the consultations between January and April 2015. If you have ever wondered how many different ways you could describe the participation of 1,943 men and women in ten regional meetings, this part of the report is for you. Granted that a wide range of citizens, citizens groups, public benefits organisations, foundations, public officials and development partners had an opportunity to speak before the Taskforce, but did we need ¾ of the report to cover this?

The remaining ten pages contains the substance of the issues generated by the Taskforce. This is probably the most disappointing part of the report. Under eleven headings, the report regurgitates without coherency, seemingly random thoughts and ideas many of them not deserving of legislative attention. Little attempt is made to forge a clear set of recommendations that improve on the existing Act.

The first of the recommendations is that the Act needs to concretely define what a PBO is. The Taskforce however makes no suggestion nor explains why the clear definition that is in the Act, namely “all organisations serving the public or acting in the public interest” is insufficient. Five of the ten recommendations relate to strengthening executive control, introducing new taxes and representation of the Interior Ministry within the PBO Authority, the entity to replace the NGO Coordination Bureau. Another of the recommendations bizarrely addresses the danger of NGOs promoting terrorism and “indecent acts” in a single sentence. Do we still wonder why our efforts to counter extremist violence seems to lack singular focus?

The ten recommendations fall short of what we might expect from a process that pre-occupied the attention and time of 14 otherwise busy civil servants, PBO leaders and experts and the Kshs 20 million it probably cost. More tragically, the outcome that the Cabinet Secretary probably had in mind in establishing the Taskforce was lost. The consultations offered an opportunity to end the mistrust caused by clumsy legislative attempts to restrict civil space over 2013 and 2014. The decision by NGO Coordination Bureau Director Fazul Mahamed to not release the report to the public has now punctured any progress that had been made by the Taskforce.

The three PBO bodies on Taskforce namely the National Council of NGOs, The Inter-Religious Council of Kenya and the Kenya CSO Reference Group have now disavowed sections of the report, claiming manipulation by the NGO Coordination Bureau. They have also called for the Cabinet Secretary to immediately commence the Act that was passed nearly three years ago by the 10th Assembly.

Whether you hold the view that the sector is critical for eradicating poverty, fighting corruption and advancing human rights or is so corrupt that it needs closer regulation, nothing can explain why the Ministry of Devolution and National Planning has shown little resolution in closing the thirty six month legal vacuum. The Cabinet Secretary’s argument that she requires changes seems fair until you compare the public accountability provisions in the PBO Act (2013) and NGO Coordination Act (1990). The comparison is like a Porsche racing a Vitz on Mombasa road. As someone said recently of the impasse, “If you aren’t confused, you ain’t paying close enough attention”.

Many of the structures and the functions established in the NGO Coordination Act (1990) have expired or become redundant. The terms of the Chairperson and members of the NGO Coordination Board have long expired, the Board has not met in several months. Only the Bureau still exists. The important work of registering NGOs, processing work permits and applications for tax exemption no longer passes through the Board. The Bureau, where it does take action, runs the risk of overstepping its legal mandate. Where it does, many NGOs have complained about the inordinate delays in processing applications or receiving a response from the Bureau.

More recently, some international organisations have received visits from Bureau staff to press them to establish local governance boards with at least three of the Directors being Kenyan. While this is a desirable provision in the PBO Act (2013), it is not a provision in the NGO Coordination Act (1990). It would seem that the Bureau wants to selectively use some provisions while ignoring others.

While Kenyans wait a few more months for yet another set of amendments to the PBO Act (2013), the sector continues to work in legal limbo. The one-man show of a NGOs Coordination Board will continue to operate without the guidance of its Directors long gone. Important national and county level partnerships that could be forged to eradicate poverty and build institutions of integrity both within PBOs themselves and in the State will remain adolescent. Lastly, Kenya will continue to reflect hostility to a forty year old sector to the international community ahead of its hosting of the next Global OECD High Level Forum on Aid Effectiveness in 2016.

Having said this, the 1,493 men and women who gave their recommendations can be happy to hear that the Taskforce has buried many of the destructive recommendations in previous amendments. Gone is the 15% cap on foreign funding, compulsory re-registration of faith-based organisations and foundations and restrictions on domestic philanthropy and freedom of association. Let’s hope that the process of developing an amendment bill does not allow for them to be re-introduced against the wishes of Kenyans.

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