Last warning from the court to implement the PBO Act 2013 within 30 days

THEOBSERVATORY - PRESS RELEASE

On May 13, 2017, Nairobi High Court judge Mativoordered the Interior Cabinet Secretary, Mr. Joseph Nkaissery, to publish in theGazette within the next 30 days, the commencement date of the Public BenefitOrganisation (PBO) Act 2013[1].The judge declared that the Kenyan government was clearly in contempt of court overits failure to comply with a similar ruling eight months ago. However, the judgedecided to give it a last chance to the government to implement the beforetaking legal measures.

Last week’s court order was not the first. It followeda similar ruling issued on October 31, 2016, by another High Court judge, LouisOnguto, which gave 14 days to the Cabinet Secretary for Devolution andPlanning, Mr. Mwangi Kiunjuri, at that time in charge of the regulation of thecivil society sector, to commence the PBO Act[2].On September 9, 2016, Mr. Kiunjuri had already given notice of commencement ofthe PBO Act, putting the hopes of Kenyan civil society high again after yearsof waiting. However, after the ruling, no further development followed, andinstead, the control of the non-governmental sector was moved under theportfolio of the Ministry of Interior, rendering the Court order inapplicable.

“Sucha manœuvre clearly aims at escaping the High Court order and at neutralisingthe goodwill expressed by the Cabinet Secretary for Devolution and Planning.This is very worrying, particularly in a democratic State claiming to upholdthe rule of law” declared Mr. Gerald Staberock, OMCTSecretary General. “It shows the levelof arbitrariness exercised by the Kenyan government to control civilsociety and the blatant disrespect of the Executive for the judiciary”,he added.

This second High Court ruling, which was, as theprevious one, triggered by civil society legal action trying to hold the Kenyangovernment accountable for its inaction, was originally scheduled on March 15,2017. However, the several failures by the three respondents, the CabinetSecretary for Devolution and Planning, the Ministry of Interior and theAttorney General, to file their response, forced Justice Mativo to postpone thecase until May 23, 2017. Finally, to avoid further delays and not wait untilthe physical hearing at the end of May, counsel for the applicants and therespondents were asked to make written submissions since, according to thejudge, the matter was quite straight forward.

“Aftermore than four years of inaction the Kenyan authorities should operationalisewithout any further delay the PBO Act 2013, and put an end to any form ofarbitrariness and abuses against Kenyan civil society”, said FIDH Vice-President, Ms. Sheila Nabashwa.

The PBO Act 2013 is a lawseeking to provide a more enabling environment for NGOs, with clear criteria regarding NGOs’ registration,enhanced accountability, set timelines for processing applications, as well astax incentives and benefits for organisations conducting “public benefitactivities”. It was passed by the Parliament in 2012 and signed into law by thethen President Mwai Kibaki on January 14, 2013, but has notbeen operationalised yet under the Kenyatta administration, while severalattempts have been made to introduce new restrictive amendments prior to itsofficial commencement.

On May 3, 2017, the Observatory published aninternational fact-finding mission report entitled “Kenya: 2017 elections:broken promises put human rights defenders at risk”, which provides aseries of recommendations addressed to the authorities to improve the space forcivil society engaged in the promotion and protection of human rights, amongwhich the call for the immediate operationalization of the PBO Act 2013[3].

The Observatory for the Protection ofHuman Rights Defenders (the Observatory) was created in 1997 by FIDH and OMCT.The objective of this programme is to prevent or remedy situations ofrepression against human rights defenders. FIDH and OMCT are both members ofProtectDefenders.eu, the European Union Human Rights Defenders Mechanismimplemented by international civil society.

For moreinformation, please contact:
• OMCT: Chiara Cosentino: +41 228 09 49 37

• FIDH:Samuel Hanryon: +33 6 72 28 42 94 / Audrey Couprie: +33 6 48 05 91 57

[1] The PBO Act is available on: http://pboact.or.ke/resources/documents/category/3-legislation.

[2] See the Observatory Press Release issued on November4, 2016.

[3] See the Observatory Press Releaseissued on May 3, 2017.