Legislative moves put civil society at risk!

On October 30, 2013, theoffice of the Attorney General published the Miscellaneous Amendment Bill inthe official gazette, in view of its introduction to Parliament.

If adopted in its currentform, the new text would limit to a maximum of 15% the proportion of foreignfunding that an NGO would be allowed to receive from external donors, and wouldimpose any funding to be channelled through a new “Public BenefitsOrganisations (PBO) Federation”, rather than directly from donors.

The text would furtherallow the PBO Authority - a new official body whose chairperson would beappointed directly by the President of the Republic - to “impose terms andconditions for the grant of certificates of registration, permits of operation,and public organisations status”.

“Thisbroadly worded bill poses serious threats to the very existence and functioningof NGOs in Kenya, contradicts the spirit and letter of the 2010 Constitutionand blatantly violates regional and international standards”said Karim Lahidji, President of the International Federation for Human Rights(FIDH). “In a country such as Kenya, where NGOs play a central role inthe public debate and the efforts aimed at strengthening the rule of law,restricting their capacity to carry out their work would have disastrousimpacts on all spheres of society”, he added.

Thisnew bill would provide the government with the ability to control all fundscoming into the country, and hence to attack the entire civil society sector.This would result in further isolation of the governance civil societyorganisations that have been keeping the government accountable.

“The very nature of the progressive Constitutionrecently adopted is build on broad civil society participation and humanrights. Those are inherently Kenyan values not an international conspiracy”, said Gerald Staberock, Secretary General of the WorldOrganisation Against Torture (OMCT). “There should be no mistake. This is not atechnical issue about a law. This is an alarm for democratic achievements inKenya. The grip on the media extended, the National Human Rights Commissionleft in limbo and disabled with massive budgets cut, and now human rightsdefenders being framed. Today, sadly, it takes courage to work on criticalhuman rights issues”, he added.

TheObservatory highlights that in his first report to the Human Rights Council, the United Nations Special Rapporteur on the right to peaceful assembly and freedom of association recommendedthat “any associations, both registered or unregistered, should have the right to seek and secure funding and resources from domestic, foreign, and international entities, including individuals, businesses, civil society organizations, Governments and international organizations”. Earlier, the UN Special Rapporteur on the situation of human rights defenders had alreadyemphasised that the UN Declaration on Human RightsDefenders protects the right to “receive funding from different sources, including foreign ones”.

The Observatory is all themore concerned as the above-mentioned Miscellaneous Amendment Bill wasintroduced alongside an Information and Communications (Amendment) Bill onOctober 31, which would restrict advertising revenue, permit anonymouscomplaints that are prone to abuse, and create a government-appointedCommunications and Multimedia Appeals Tribunal with unfettered powers to imposepenalties on media practitioners, including revocation of accreditation,seizure of property, and heavy fines of up to 1 million Kenyan shillings(US$12,000) on journalists, and up to 20 million Kenyan shillings (US$235,000)on media companies. The Media Council Bill would also give the governmentpowers to ban any media content that is “prejudicial to public or nationalinterest” and impose penalties against the publishers of such content, whilefailing to clearly define “national or public interest”. The Information andCommunications (Amendment) Bill was passed by Parliament but has not yet beensigned by President Uhuru Kenyatta.

The Observatory calls uponthe Kenyan authorities to comply with the provisions of the UN Declaration onHuman Rights Defenders, as well as to fully implement the provisions of ResolutionA/HRC/22/L.13 adopted by the UN Human Rights Council on March 15, 2013, callingupon States, in particular, to ensure that reporting requirements placed onindividuals, groups and organs of society do not inhibit functional autonomy,and furthermore to ensure that they do not discriminatorily impose restrictionson potential sources of funding aimed at supporting the work of human rightsdefenders in accordance with the Declaration [on human rights defenders], andthat no law should criminalize or delegitimize activities in defence of humanrights on account of the origin of funding thereto.

The Observatory furtherurges the Kenyan authorities to abide by the provisions of the AfricanCommission on Human and Peoples' Rights (ACHPR) resolution on the right to freedom ofassociation (Resolution 5, 1992), calling upon member States not to “overrideconstitutional provisions or undermine fundamental rights guaranteed by theconstitution and international standards; [and not to] enact provisions which wouldlimit the exercise of this freedom” as well as the provisions of the ACHPR2002 Declaration of principles on freedom of expression in Africa.

Formore information, please contact:

· FIDH:Audrey Couprie: + 33 (0) 1 43 55 25 18

• OMCT: Delphine Reculeau: + 41 (0) 22 809 49 39