The Role of the State in Shrinking Political Spaces for CSOs in Kenya

Born in the toughest of times, under the repressive regime of Daniel arap Moi (1978–2002), Kenya’s civil society has grown resilient and vibrant over the decades. Dominated by youth and with strong links to growing social movements, it has become a beacon of hope to the many Kenyans who continue to struggle for the full realisation  of their political, social and economic rights and freedoms. Together with a bold mainstream press and highly interactive  social media, it works to hold those in positions of power to ac- count and to enhance citizens’ participation in the political process.

However,  many  influential  leaders  in the  sector left to  join  government after  a euphoric 2002  election, weakening civil society’s  ability  to  speak out  and  engage within and  outside the  sector. Questions have also been raised about its accountability and  transparency to its constituencies, in particular to the  communities and  the public in whose name (and need) they seek funding from  donors. This  issue  has  been used and  abused by the  Jubilee  Coalition that came into power in March 2013.

Depty President of Kenya, William Ruto, said Kenya has no place for homosexual people. Photo: World Trade Organization

The  anti-NGO sentiment  of  the  cur- rent administration should not  come as a surprise. President Uhuru Kenyatta and his  deputy William  Ruto  were  elected on a  largely  anti-foreign platform that took particular aim  at the  International Criminal  Court (ICC),  which probed the  two’s involvement in the  post-election violence of 2007–08.  The notion of NGOs conspiring with  the  ICC against Kenyan leaders delivered  politicians the justification for calls to reduce NGO freedoms and  access to funds. Civil society soon became “evil society” in public discourse.1

The Public Benefit Organisation Act

A core   objective of  the   Public   Benefits Organisations (PBO) Act is to  encourage public benefits organisations to maintain high standards of governance and  management through effective self-regulation.

The  long-awaited Act was  to  replace the  NGO Co-ordination Act of 1990, which had  been enacted at a time  of mutual suspicion between government and  the  civic sector. The  legislation was  greatly  flawed and  did not  provide an enabling regulatory and  institutional framework for the  effective growth and development of civil society organisations in Kenya.

File picture: Kenyan President Mwai Kibaki greets the crowds from his convoy as he arrives for the 49th Madaraka Day celebration at Nyayo Stadium in central Nairobi, Kenya, 01 June 2012. Tens of thousands of Kenyans from all over the country gathered in Nairobi to commemorate the day that Kenya attained internal self-rule from Britain in 1963. Photo: ANP EPA/DANIEL IRUNGU

From  2009, several civil society organisations  (CSOs),  under the   umbrella  of the  Civil Society  Organisations Reference Group, spearheaded a campaign to mobilise CSOs to help  develop and  implement a  new  legal,  regulatory and  institutional framework. The new PBO Act was eventually enacted into  law in 2012 and  assented to by then-President Mwai Kibaki in January 2013.

Unfortunately, notwithstanding the good  efforts  of the 10th Parliament and  the Kibaki administration to create a conducive relationship between civil society and  the state, the  law remained mute and  inoperative for three and a half years. Only on 9 September 2016 did the  government of Kenya finally sign the PBO Act of 2013 into life.

The extended period of ambiguity caused by this  delay  had  led CSOs to petition the High Court against both the cabinet secretary for devolution and  planning and the attorney-general. Their petition, filed in late  August  2015, argued that the  delay  in bringing the law into operation undermined the  constitution and  had  led to illegal con- duct by the  Non-Governmental Organisations Coordination Board.  Established by the 1990 NGO Co-ordination Act, the board is responsible for regulating and  enabling the  NGO sector, with  the  NGO Bureau acting as its executive arm.2  Today,  the  lines between board and  bureau have  become blurred, such that the  executive director of the bureau is misusing his authority to harass the civic sector under a defunct law.

Over the past three and a half years, and in cahoots with  the  cabinet secretary, the bureau helped to draft  four  sets  of harmful amendments to the PBO Act that would cap  foreign funding at 15 percent, under- mine self-regulation, and  impose excessive national executive regulation.

Over the past three and a half years, and in cahoots with  the  cabinet secretary, the bureau helped to draft  four  sets  of harmful amendments to the PBO Act that would cap  foreign funding at 15 percent, under- mine self-regulation, and  impose excessive national executive regulation. In December 2014, the  bureau deregistered 540 organisations, only  to reinstate 179 of them two weeks  later  after  they  proved they  were  in full compliance with the law.

With  the  rise  of  terrorist activity in Kenya,  security issues took  a greater part in justifying the shrinking of civic space. In June  2015, on  the recommendation of the bureau, the government froze the accounts of Muslims for Human Rights (Muhuri) and another human rights organisation called Haki-Africa, citing allegations that they fund terrorist activities. Less than two  months later,  the  High  Court found that the  two organisations had no case to answer.

Kenyan soldiers arrive at the Central Police Station in Mombasa where three women were shot dead by police after trying to stage an attack in the port city of Mombasa, Kenya, 11 September 2016. Photo: ANP/ EPA/STR

On  31 October 2015,  the  CSO Reference Group reacted to threats of deregistration against another 970 NGOs  with  a press statement that the “bureau has  been acting in an alarmist and  punitive manner” and  that the  sector is slowly being choked to death by clumsy, short-sighted legislation and  a smear campaign.

In May 2016, newly appointed Cabinet Secretary Mwangi Kiunjuri attempted to introduce new  amendments, in total  dis- regard of  conservatory orders issued by the  High  Court in August  2015 to prevent any  amendments until  the  CSO Reference Group’s petition is heard substantially and ruled on. That highly anticipated judgment, which was expected to be delivered in July 2016, was postponed indefinitely. In light of the  surprising gazetting of the  law in September, one  may  assume that the  government realised that it could not win the case, which has now been rendered redundant.

The Reference Group’s legal battle gained additional strength  from   a  second  approach mounted through the  leg- islature. In April 2016, MP Agostinho Neto proposed an  amendment to  the  PBO Act 2013 that would cause the Act to come into force within 14 days of its publication. This amendment was informed and  motivated through the  engagement between the  Reference Group and  the Kenya Parliamentary Human Rights  Association (KEPHRA), of which Neto  is a member. The Bill proposed to remove the  powers conferred upon cabinet secretary to determine when the Act will come into  force.  At the time  of writing, Neto’s bill had  gone  through the  first  and second readings.

All in all, the attempted or threatened amendments to the legal and institutional framework have served to intimidate the media, which induces self-censor- ship and undermines the role of the media as the guardian of civic spaces.

Most  recently, Kenyan-based international NGOs have  also come under attack. While the government’s demands that inter- national NGOs hire locals  first and  address salary disparities may sound “reasonable” to the  ears  of the  public, beneath the  surface one  soon encounters a systematic anti-foreign and  anti-NGO sentiment. In addition, a number of local and  international NGOs reportedly have  been forced to  pay  to  be removed from the NGO Bureau’s deregistration list and to receive work permits for their international staff.

Attacks on Media

Amidst   the  worst   chaos ever  witnessed in  a  Kenyan parliament3, Speaker of the National Assembly Justin Muturi bulldozed parliament into  passing one  of the  most controversial laws  in independent Kenya: the  Security Laws (Amendments) Bill. Despite robust constitutional protections for freedom of expression, Kenyan legislators  enacted legislation on  18 December

2014  that not  only  threatened to  curtail media coverage of  terrorist attacks and security operations in the  country but  also amended 21 other laws,  among them the Penal Code,  Criminal Procedure Code,  Evidence Act, Prevention of Terrorism Act, and the  National Police  Service  Act. The president signed this  controversial bill into  law a day after the chaotic parliamentary sitting and  it was gazetted three days later.

Policemen arrest a man protesting the passing of a controversial new security legislation that would crack down on terror suspects and curtail journalists’ freedoms if they’re deemed to “undermine” investigations, on December 18, 2014 in Nairobi. The legislation was proposed after a string of attacks in Kenya by Somalia-based Shebab insurgents that have put pressure on the government to find a way to confront the Islamist militants. Photo: AFP/ANP SIMON MAINA

The celebrations of the ruling coalition were,  however, short-lived. Two  months later, the High Court ruled in favour of a petition  brought by the Kenya  National Com- mission on Human Rights  that challenged many of the Bill’s provisions on grounds that they  violated free  speech, media freedom and  other civil liberties. The  court struck down Section 12 of the Act (which curtailed rights to publish, broadcast and  distribute materials through print, digital or electronic media and to report on action/investigation of security operations by security forces) for “violating the freedom of expression and the media guaranteed under Articles 33 and  34 of the Constitution”.4

Two  other restrictive laws  had  been adopted in late  2013: the  Kenya  Information  and   Communication (Amendment) Act  (KICA) and   the  Media Council Act, which created a  government-appointed Communication and  Multimedia Appeals Tribunal with the power to hear appeals on complaints initially handled by the  statutory Media Council of Kenya. The tribunal is “authorized to withdraw media accreditation  and  seize any property or other assets to  cover  fiscal  penalties. Individual journalists face fines  of up  to 500 000 shillings [USD 5 000], and media companies up to 20 million shillings [USD 200 000], if they  are found in breach of a government-dictated code of conduct drafted by legislators”.5

These  legislative changes serve  as the backdrop against which a general attack against free forms of media can be observed. From  January to September 2015, the inter- national human rights organisation Article 19 recorded 65 cases  where individual journalists and  social  media users were threatened with  physical violence, threats by phone and  text, summons by police, or legal restrictions. Of these, 22 cases  related to journalists covering corruption, 12 to pro- tests,  and  eight  to terrorism and  crime stories. Only three of these 42 cases  have  been investigated and  the  perpetrators taken to court, which is, as  the  director of Article 19 in Nairobi Henry Maina has argued, “an unacceptably high level of impunity”.6

All in all, the  attempted or threatened amendments to the  legal and  institutional framework have  served to  intimidate the media, which induces self-censorship and undermines the  role  of the  media as  the guardian of civic spaces.

Police Brutality

Article 37 in Chapter 4 of the  Constitution provides that “Every person has  the  right, peaceably and  unarmed, to  assemble, to demonstrate, to picket, and  to present petitions to public authorities”. Yet despite this very clear and  progressive provision, Kenya has witnessed unprecedented police brutality. The recent torture and killing of a human rights lawyer affiliated to International Justice Mission, his client, and  their driver  are a sign of how deeply entrenched the culture of impunity is.7  The incident led to nation- wide  protests. In July 2016, Human Rights Watch  released a report documenting 34 cases  of Kenyans who  disappeared at the hands of security agencies between 2013 and 2015. These cases  have occurred on the pretext of fighting the armed Islamist group Al-Shabaab. In  the  same period, at  least 11 bodies of people last seen with  security officers were discovered.

Kenyan journalists react after police fired tear gas at them during a demonstration by anti-corruption protesters demanding President Uhuru Kenyatta to act on corruption or resign, in downtown Nairobi, Kenya, 03 November 2016. Kenyan police fired tear gas at protesters, led by a prominent civil rights activist Boniface Mwangi, and at journalists who were covering them. Hundreds of protesters gathered in response to reports by local media that some 50 million US dollars were misappropriated at the health ministry. Photo: ANP/ EPA/DAI KUROKAWA

Police  brutality has  a more immediate political utility,  too. During protests against Kenya’s controversial electoral commission  in May and  June  2016, police officers shot  live ammunition towards these largely peaceful gatherings, killing at least  5 people and  wounding 60 others. Human Rights Watch reported that uninvolved bystanders, students in school or on  their way home, and  people at work or in their homes were seriously injured  or  killed  in  situations where lethal force  was  unnecessary. One witness said  police shot  a man coming out of a bank and  appeared to take  his money. The  shootings have  violated Kenyan law and  international guidelines on the  use  of force  by law enforcement  officials.8 In an absurd turn of events, presidential spokesman Manoah Esipisu claimed those shot during the recent protests had  been looting supermarkets.9

The  police’s unfettered discretion in their use  of force  systematically threatens to create a police state.

 The Road Ahead

The Kenyan government has  shown a disturbing determination to clamp down on independent and  dissenting voices.  As Human Rights  Watch’s Otsieno Namwaya noted in  reaction to  the  police’s heavy- handed response to protests, “[t]hese images rekindle memories of the repression in the  1990s when the  KANU administration  tried to suppress civil society leaders and  the political opposition’s campaign for reforms to enshrine basic  rights in Kenya’s Constitution.”10

Threats to civil society’s operating space and  existence are set to continue. Ahead  of the  August  2017 elections, political interests  are likely to drive  the  desire to control independent voices,  domestic and  international. However, Kenya’s civics have  proven to be resilient and  undeterred in the face of the  worst  oppression. Their  recent success in arm-twisting the  government to gazette the PBO Act is strong testimony to that.

This article was first published in Perspectives magazine by the Heinrich Boll Foundation