Launch of PBO Act bodes well for civil society growth
The Public Benefit Organisations (PBP) Act came to force on 14 May, 2024. The PBO Act was passed by Kenya’s then unicameral Parliament in November 2012, and signed by President Kibaki on 14 January 2013, just before he left office in April.
With Kibaki’s action happening a few months before that year’s elections, the onus of implementing the law fell squarely on the Jubilee coalition of Uhuru Kenyatta and his Deputy William Ruto, who had taken over power on 9 April 2013.
Suggestions that Kibaki’s administration frustrated the enactment of the new law are ill-informed. It was during Kibaki’s tenure that civil society thrived in Kenya, with the number of NGOs peaking in the 2011/2012 financial year before taking a nosedive in 2012/13 after Kibaki left.
The enabling political and public environment that existed during Kibaki’s time valued and encouraged civic participation in governance processes, contributing to the progressive trend. The office of then prime minister Raila Odinga periodically hosted ‘Prime Minister’s Roundtables’ with civil society, the private sector and other non-State actors to harness their contribution to public policy formulation, implementation and review.
When Kibaki’s National Rainbow Coalition government came to power in 2002, the process of developing Sessional Paper No. 1 of 2006 on Non-Governmental Organisations – the first ever on the sector – began.
The policy was adopted by Parliament and the Cabinet in February 2006, setting the stage for review of the Non-Governmental Organisations (NGOs) Coordination Act of 1990 and its archaic 1992 Regulations. Enacted in 1990 at the zenith of one-party dictatorship, with the numbers of dissenters expelled from the ruling Kani growing, the government entrenched claw-back provisions in the NGOs Act that enabled the regulator to cancel the registration of organisations on a whim, especially if it was suspected that Kanu renegades and underground political operatives could be using an NGO to advance a political cause.
The promise of a revitalised legal and regulatory framework as envisaged in the Sessional Paper inspired a wave of optimism. But signs that this state of geniality and bonhomie the sector enjoyed under Kibaki had come to an abrupt end reared its ugly head when, rather than announce the adoption of the law, the Jubilee government proposed a raft of retrogressive amendments to the law.
For the better part of Jubilee’s first term, attempts to amend the law hounded the sector but none of them succeeded, thanks to equally strong-willed civil society campaign, resistance and resilience.
Between 2015 and 2016, the NGOs Coordination Board annulled the registration of 2,468 organisations under its watch, as the State abandoned its duty to protect freedoms of association, expression and assembly, orchestrating smear campaigns that characterised the sector as ‘evil society’ and ‘foreign agents’.
In 2015, civil society groups sued in the High Court seeking a declaration that the government’s failure to appoint a date for the adoption of the PBO Act, and the decision to form a task force to propose amendments to the law, were unconstitutional. In May 2016, Justice John Mativo concluded that the Executive was in contempt after failing to put to effect the PBO Act as had been directed by Justice Joseph Onguto.
On 31 October 2016, Justice Onguto agreed with the petitioners, finding that through the aforementioned acts of commission and omission, the Cabinet secretary had not only been derelict in his duties and obligations, but had also acted in a manner inconsistent with the Constitution.
It’s against this backdrop that the coming into force of the PBO Act on 14 May is significant, clearing the way for implementation of a new regulatory framework that provides for registration within stipulated timeframes.
— The writer is the Executive Director of the Kenya National Civil Society Centre; [email protected]
