By Ndung’u Wainaina
Worth Noting:
- A public benefit organization may also express it’s views on any issue or policy that is or may be debated or discussed in the course of a political campaign or election (S 66(2)) of PBO Act. Consistent with its obligation to respect the freedoms of association and assembly, it is the duty of the Government to provide an enabling environment for public benefit organizations to be established and to operate (S 4(1) of the PBO Act).
- The PBOs Regulatory Authority cannot and has no legal powers to suspend freedom of expression and association guaranteed by the Bill of Rights. Further, the Authority and any government official and statutory bodies are bound by Articles 3 and 10 of the Constitution.
It is crucial to defend and expand the space for civil society. This is really about democracy.
The current trends against democracy and diminishing civil society space are dangerous as civil society is an integral component of democracy, development and services.
Democracy is never safe. The empowerment of civil society actors is fundamental to sustainable democracy.
The Public Benefits Organizations (PBOs) Act, 2013 is underpinned by creating an enabling predictable friendly environment and strengthening civil society. The Act in its preamble states, “Cognizant that laws permitting public benefit organizations to exist and operate freely are indispensable to the full and meaningful implementation if the freedom of association, expression, and peaceful assembly in the Constitution, as well as increased development effectiveness through better service delivery and empowerment of Kenyans.”
When governments fail to act in the public interest, and opposition parties are unwilling or unable to offer a credible alternative, it is up to civil society organizations to identify abuses and advocate for reforms and democratic accountability. Restrictions that hamstring civil society activity form part of a broader strategy adopted by anti-democratic regimes to narrow democratic space and prevent challenges to the rule of strongmen and governing parties.
The PBO Act further appreciates the central of civil society and guarantees its independence. The objects and purposes of the PBO Act are to give meaningful protection to the internationally recognized freedoms of expression, association and peaceful assembly. A public benefit organization may engage freely in research, education, publication and advocacy with respect to any issue affecting the public interest including criticism of the policies or activities of the state or any officer or organ thereof ( S 66(1)) of the PBO Act
A public benefit organization may also express it’s views on any issue or policy that is or may be debated or discussed in the course of a political campaign or election (S 66(2)) of PBO Act. Consistent with its obligation to respect the freedoms of association and assembly, it is the duty of the Government to provide an enabling environment for public benefit organizations to be established and to operate (S 4(1) of the PBO Act).
The PBOs Regulatory Authority cannot and has no legal powers to suspend freedom of expression and association guaranteed by the Bill of Rights. Further, the Authority and any government official and statutory bodies are bound by Articles 3 and 10 of the Constitution.
In this regard, Authority’s actions are ultra vires to the Constitution and the PBO Act, 2013.
Finally, the PBO Act establishes an internal dispute mechanism to resolve any matter arising between the Authority and PBO including adhering to procedures of fair administrative action. Thus the Authority is operating outside the clear provisions of the Constitution and the PBO Act.
The PBO Act, 2013 become law in accordance with Article 115 of the Constiution. Further, several Courts’ rulings directing the implementation of the Act have been disregarded. The domino effects is that since 2013 both the Authority (and its predecessor NGO Coordination Board) have been non-existence.
They were repealed. Thus the people purporting to the officials of Authority are aliens. They are strangers in law.
According to the Schedule three of the PBO Act 2013, the Authority itself ought to have been reconstituted afresh. This has not happened, meaning that the Authority itself is in office illegally, hence their directives and administrative actions including the alleged Inquiry are illegal and unconstitutional.
The Schedule Five of the PBO Act provides that those organizations that were exempted from registration by the repealed NGO Coordination Act had three months from the date of operationalization of the PBO Act to apply for registration to the PBO Regulatory Authority or write to the Authority expressing their intention to operate as PBOs. Such a move is only possible with the enactment of Regulations under section 69. This has not happened hence there is no group operating illegally. Furthermore, the Authority is yet to advertise for that exercise. The Authority as is currently constituted is not independent as envisaged under section 42 of the PBO Act which is a clear violation of the PBO Act.
The illegal Authority has become an errand agent of the state to threaten, harass, criminalize and stigmatize the civil society. It must stop operating on the software of the yesterday years. The procedures for suspension of and cancellation of PBO certificate are well elaborated in S 18 and 19 of the PBO Act. It is not the function of the Authority to refer cases to other state bodies. It is not within the jurisdiction of the Authority to investigate and refer cases involving PBOs and Organizations registered though other laws to other state Agencies.
The Authority is required to publish information quarterly on the registered and deregistered PBOs, yet they have not published any list. S 18 and 19 of the PBO are clear on the process of suspension and cancellation. Due process should be followed, if any breaches have been done by any Organization. The Authority should provide proof of any breaches and not issue wild allegations. The PBO Act establishes a Dispute Resolution Tribunal to handle any disputes arising in the PBO Sector. This is yet to be established. An illegal Authority is operating and making ultra vires decisions.
The Writer is Transitional Justice and Human Security Fellow @NdunguWainaina
