Kenya plays an influential role in shaping human rights culture throughout the Great Lakes Region of Africa. There are roughly 10,000-15,000 registered civil society organizations (CSOs) in Kenya. In 2010, the government adopted a new constitution with a strong Bill of Rights (see Article 4) that guarantees the right of CSOs to receive donor funding. However, the Kenyan government has a history of suppressing CSOs through formal and informal restrictions on the freedoms of assembly, association, and expression. According to a World Movement survey, the Kenyan government justifies its attempts to restrict the ability of CSOs to receive funding on the grounds that it is protecting national sovereignty, claiming that CSOs that receive funding from abroad serve the interests of foreign donors.
Following the signing of the constitution, Kenyans formed the CSO Reference Group to develop and implement a legal regulatory framework for organizations working for the public’s benefit. The Group included representation of civil society and the government and sought to improve the governance, accountability and transparency of the civil society sector. The CSO Reference Group met regularly, and played a major role in the drafting and passing the 2013 Public Benefits Organization (PBO) Act, which created a healthy regulatory environment for CSOs in Kenya. Unfortunately, the government has failed to fully implement the PBO Act, which has limited its effectiveness.[i]
Following the signing of the PBO Act, the government attempted to restrict the rights of CSOs by passing a series of amendments to the Act. Among the amendments was a restriction on the amount of funding a CSO could receive from foreign donors to 15% of an organization’s total budget. The amendment would have virtually eliminated the civil society sector, which struggles to generate revenue from domestic sources.
Importantly, Kenyan civil society enjoys broad support from the public. The CSO Reference Group and other civil society activists relied on this support to successfully challenge the amendments by developing diverse partnerships with the public and private sectors, the media, and international organizations. Together they raised public awareness of the impact that the amendments would have on society; sought out and engaged in public dialogue with representatives of Kenya’s executive office, National Assembly, and Senate; and developed a sense of unity among a broad swath of society.
The CSO Reference Group highlighted the benefits of the civil society sector to a diverse group of key individuals from various professions who were asked to share their concerns about the amendment with colleagues and with the media. Members of civil society collected case studies demonstrating how repressive tactics in neighboring countries, such as caps on foreign funding, had negatively affected their population. Kenyans illustrated urgency by drawing comparisons with Ethiopia, where repressive CSO laws choke civil society and negatively affect citizens.
Civil society worked with researchers to assess and demonstrate the devastating effects the amendments would have on the health sector in particular, which CSOs play a particularly vital role in supporting. The research argued that the amendments were anti-development, which Members of Parliament representing impoverished districts reportedly found compelling.
“[Research] demonstrated that the proposed amendments to the PBO Act were set to cripple 8,260 organisations, endanger [Kenyan Shillings] 80 billion in annual development assistance and lead to the entrenchment of 250,000 employees most of whom are primarily Kenyans. More broadly, without any alternative financing strategy by the Government, the bill would shut overnight hundreds of thousands of clinics, schools, housing, water projects, civic education and legal aid programmes. In the health sector alone, it was estimated that 47% of health funding would be drastically cut. 20 million Kenyans would lose access to basic health care. 6.8 million people would no longer have facilities for HIV testing and the 1 million Kenyans on ARV treatment would be at serious risk.” [ii]
The CSO Reference Group asked citizens to sign public petitions voicing their opposition to the amendments, which were presented to the National Assembly, and encouraged citizens to take to the streets in protest. CSOs also conducted a highly effective social media campaign called #NGOMuzzle, which, along with the street protests, received prominent media coverage. At the same time, negative media coverage about the amendments threatened the government’s international reputation and credibility.
In 2015, the CSO Reference Group used the occasion of United States President, Barak Obamatrip to Kenya to attend the Global Entrepreneurship Summit to pressure the Government of Kenya to respect CSO rights. Ahead of the Summit, they sent a letter to President Obama describing how Kenyan CSOs are subject to the seizure of documents, freezing of bank accounts, suspension of insurance coverage and de-registration. The letter asked President Obama to urge the Government of Kenya to implement to PBO Act as it was drafted, without the restrictive amendments sought by Kenyan President Uhuru Kenyatta. Similarly, a number of international and African organizations signed a joint letter asking President Obama to meet and express solidarity with democracy and human rights activists during his visit.
Although the amendments were defeated, Kenyan CSOs remain vigilant, relying on strong partnerships to defend their rights. For example, following a mass shooting in 2015 that killed 147 students at a university in Kenya, the government manipulated fears of terrorism to freeze the bank account and shut down the office of Kenyan CSO HAKI Africa accusing it of being an agent of Al-Shabaab. The government presented no evidence or explanation to support this allegation, and placed onus on HAKI Africa to disprove the allegation. The government insisted that international donors stop funding HAKI Africa. However, major funding agencies from the United States, Great Britain, Germany and Finland issued a joint communication stating that they would not end funding for HAKI Africa unless the government provided evidence that it supported terrorism. HAKI Africa also received support from international organizations such as Human Rights Watch and Amnesty International which called on the government unfreeze the HAKI Africa’s accounts. Finally, HAKI Africa identified and lobbied pro-reform actors within the government who support civil society’s right to operate without intimidation or interference. Ultimately, the charges were dropped and HAKI Africa resumed its activities. HAKI Africa found that developing strong partnerships with other Kenyan and international organizations, donor agencies and sympathetic actors in the government protected their right of association. For this reason, HAKI Africa joins as many CSO forums and professional networks as possible.
In January 2017, the Ministry of Interior and National Coordination again tried to limit the rights of CSOs by instructing County Commissioners through Kenya to shut down those that were not properly licensed or were implementing projects that they had not been registered to carry out. In response, CSOs convened a Public Benefit Organizations Summit to provide a constructive platform for leaders of CSOs, as well as their allies in government, to express their concerns about the directive and make public pronouncements on issues relating to civic space. Unfortunately, the Ministry officials did not participate in this meeting.
International and regional treaties to which Kenya is a party: