Why NGOs are jittery over the Public Benefit Organizations Act 2013
The recent appointment and subsequent swearing in of Cabinet Secretary for the Ministry of Planning and Devolution Anne Waiguru has set the stage for the commencement of the Public Benefits Organizations (PBO) Act, 2013. The PBO Act is one of the pieces of legislations passed by the 10th Parliament just before its term lapsed in January 2013. The law provides for the establishment and operation of public benefits organizations previously known as Non-Governmental Organizations (NGOs).
Once the commencement date of the law will have been gazetted, the Non-Governmental Organizations Co-ordination Act of 1990 shall stand repealed, paving the way for a completely new legal regime in which non-state actors previously operating under the NGO Co-ordination Board will henceforth operate.
Unlike in the past when the docket fell under the Ministry of Home Affairs, the administrative and regulatory framework within which public benefits organizations has now been placed under the Ministry of Planning and Devolution.
But ever since the law was enacted, and as the clock ticks towards its coming into force with its commencement date expected to be gazetted by the Cabinet Secretary concerned, anxiety has gripped a number of local and international civil society groups operating in Kenya.
The relationship between local NGOs and the Government of Kenya has always been characterized by mutual suspicion. Indeed, the first local NGOs like the Kenya Human Rights Commission (KHRC) had to be incorporated abroad before gaining acceptance locally as registered entities.
On page 65 of its manifesto, the Jubilee Coalition that formed the government after the March 4, 2013 elections has this curious provision: “the Jubilee Coalition government will introduce a Charities Act to regulate political campaigning by NGOs to ensure that they only campaign on issues that promote their core remit and do not engage in party politics. This will also establish full transparency in funding both for NGOs and individual projects”
It is also not lost on keen observers that senior Jubilee government officials may not be happy with a number of NGOs that have been in the frontline supporting the Hague-based International Criminal Court in its efforts to bring those suspected to have been responsible for the post 2007 election violence.
More recently, local NGOs have rubbed members of Parliament the wrong way with their open and highly publicized support for the Salaries and Remuneration Commission that has reduced salaries for the MPs. There is suspicion that MPs can support any move to water down the Public Benefits Organization Act particularly those provisions that allow PBOs to engage in public interest litigation and advocacy.
For starters, the new law defines a public benefit organization as a voluntary membership or non-membership grouping of individuals or organizations engaged in public benefit activities in any or a combination of the following: legal aid; agriculture; rights and welfare of children; culture, working with or for persons with disabilities, energy, education; environmental conservation; gender issues, governance; poverty eradication; health; housing and settlement; human rights; and HIV/AIDS.
Other areas spelt out in the law that have traditionally been of interest to voluntary organizations and in which a PBO can engage in include information; informal sector; old age; peace building; population and public health; refugees; disaster prevention and preparedness; provision of relief services; pastoralism and marginalization; sports; water and sanitation; animal welfare and the youth.
For the avoidance of doubt and clarity, Section 5 (2) of the Act clarifies that trade unions as registered under the Labour Relations Act of 2007; political parties; religious organizations devoted to worship; co-operative and Sacco societies; micro-finance institutions and Community Based Organizations whose objective include the direct benefit of its members shall not be conferred the status of a Public Benefit Organization.
Part II of the Act deals with matters of registration of Public Benefit Organizations.
While the general public has always assumed that any civil society organization operating in Kenya is registered as an NGO under the Non-Governmental Organizations Co-ordination Act of 1990, the reality is that there have been various modes of registration for the many outfits working in the country. While a significant number have secured their registration under this law, a number have in the recent past seem to prefer registering as Trusts with the Ministry of Lands while some are registered as societies or better still, as non-profit making companies.
The Public Benefits Organizations Act provides that “no organization registered under any other law in Kenya shall be registered under this Act while its registration under that other law subsists” What this, therefore means is that if for instance an organization currently registered as a Trust applies for registration under the PBO Act, registration of that organization under the PBO Act shall render invalid its previous registration under any other written law.
For purposes of registration and regulation, the law establishes the Public Benefits Organizations Authority, taking over the roles and powers of the NGO Coordination Board as a body corporate with perpetual succession and a common seal. There shall be a Board of the Authority comprising a Chairperson and a Vice-Chairperson; three other members and a host of Principal Secretaries from relevant government ministries. 2
The Chairperson of the Federation of Public Benefits Organizations – the new umbrella body for all PBOs that will take over the role of the National Council of NGOs shall also sit on the Board of the Authority.
International organizations intending to operate in Kenya shall also be required to apply to the Authority for a certificate to operate in the country whereupon the Authority can chose to exempt the organization from registration particularly in a case where the services of the applying organization are required as an emergency or where the applying organization does not intend to directly implement its activities or programmes in Kenya. But an international organization that intends to directly implement its activities in Kenya or in another country while based in Kenya will have to be registered under the PBO Act.
There have been concerns as to what happens to local and international organizations already working in Kenya before the effective date of the new law. Though a great deal of these concerns are likely to be addressed through provisions in the regulations, provisions of Section 7 (b) empowering the Authority to bestow the status of a public benefit organization should be brought to bear on such situations so that organizations already registered are not harassed unduly upon the coming into force of the new law.