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The International Journal
of Not-for-Profit Law

Volume 11, Issue 4, August 2009

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Special Section: Restrictions on Foreign Funding of Civil Society

Closing the Door on Aid
Rebecca B. Vernon

Articles

Living in a Lie and Dying in Silence: The Trauma of Civil Society in the Middle East and North Africa
Ibrahim Saleh

NGO Law in Kenya
Rahma Adan Jillo and Faith Kisinga

State Policy Toward the Civic Sector in Poland
Marek Rymsza

Corporate Social Entrepreneurship
James Austin and Ezequiel Reficco

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NGO Law in Kenya

On a continent frequently shaken by political instability and repressive authorities, African non-governmental organizations (NGOs) often find themselves subject to laws that range from inconvenient to incapacitating. In Kenya, NGOs have complained about faults with their own laws. They have criticized the unaccountable authority vested in government officials and opined inadequate definitions for distinguishing different types of organizations from each other. Kenyan government officials, NGO leaders and many others have developed a consensus that Kenya's 1990 NGOs Co-ordination Act is gravely flawed. However, precisely how to reform the law has inspired intense and prolonged debate. Finally, two decades of advocacy and exhortations to comprehensively reform the NGOs Coordination Act may be close to fruition.
               
Two experts from Kenya's NGO sector and the regulatory body overseeing the sector visited ICNL's headquarters in July 2009 to conduct research on the reforms and suggest the next steps the reform process should take. Faith Kisinga, Consultant for the Government-CSO Collaboration Program—PACT International, argues that the process must be as inclusive as possible. There is a wide range of stakeholders in Kenya's NGO sector, including NGOs, government agencies, parliament and the media. Broad participation, she argues, is crucial for a successful new law. She proposes specific strategies for cultivating the participation of the numerous stakeholders. Rahma Adan Jillo is an attorney with the NGOs Coordination Board, the agency responsible for regulating the NGOs sector and enforcing the NGOs Coordination Act. Ms. Jillo examines the substance of the NGO law. She critiques the current NGOs Act, compares the virtues and faults of NGO laws elsewhere in Africa, and articulates features the new law ought to include to support a vibrant and accountable NGO sector. Their work presents a snapshot of a contentious and potentially productive reform process. As the process advances, it has become evident that the consequences of the Kenyan reform project may affect developments elsewhere in Africa for years to come.

NGO Law Reform in Kenya: Incorporating Best Practices

Rahma Adan Jillo
ABBREVIATIONS
CEDAW Convention on the Elimination of All Forms of Discrimination Against Women
CBOs Community-Based Organization
CSO Civil Society Organization
EAC East African Community
GDP Gross Domestic Product
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICNL International Center for Not-for-Profit Law
NED National Endowment for Democracy
NGO Nongovernmental Organization
NPO Not-for-Profit Organization
PBO Public Benefit Organization
UDHR Universal Declaration of Human Rights
US United States of America
UK United Kingdom
WMD World Movement for Democracy

CHAPTER 1: INTRODUCTION

This article is a product of a fellowship offered by the International Center for Not-For-Profit Law (ICNL)2 with the financial support of USAID. It considers the legal and regulatory concerns that underpin the review of NGO laws in Kenya. Because of the great significance of NGOs in any country, we argue in this paper that it is important to ensure that “best practices” guide such a reform. We intend to examine the gaps in the NGO laws in Kenya and determine how appropriate international best practices can fill such gaps.

The NGOs Co-ordination Act was drafted without due consideration of best practices despite NGOs’ significance in Kenya’s growing economy.

We settled on a working definition of NGO and CSO since they are a largely elusive concept. Further, information on NGOs and CSOs in Kenya is scarce. There is no data on the output of the sector other than data found in publications by ICNL and The University of Nairobi’s Institute for Development Studies.3

The research was primarily library-based. Primary sources included statutes, while secondary sources included textbooks, articles, journals, newspaper articles, and internet sources. Primary data was also obtained by face-to-face interviews based on open-ended questionnaires. A sample of respondents was interviewed based on their experience in the sector. This article has also incorporated two case studies. This article has found that it is paramount that international best standards are consulted when drafting NGOs laws for any country.

1.1 Background

Kenya has a rich tradition of philanthropy and volunteerism with roots in the communal relationships of a rural African society. This tradition was augmented by a host of educational and social welfare institutions established by the 19th-century Christian missionaries, by the social clubs created to serve the British colonial settlers, by the social, political, and protest organizations that arose to combat British rule, and by the networks of self-help or harambee (pooling together) groups promoted by the first post-independence government.4 Civil society in Kenya owes its origins to three major sources: African communal traditions and values, early Christian missionaries, and British colonialization during the 19th century.5 Civil society organizations in Kenya have operations that are broad and diverse ranging from relief and social services to human rights.  

In 1990 the government of Kenya enacted the NGOs Coordination Act6 (hereinafter referred to as the Act) to be a central reference point for registration of all NGOs (both local and international) operating in Kenya.7 Prior to this, NGOs in Kenya were registered in different legal regimes. These are operational agreements with the Kenyan Government through the Ministry of Culture and Social Services,8 Legislation,9 the Department of Social Services,10 and the Attorney General’s Office, seeking registration as Societies,11 Companies Limited by Guarantee,12 or Trusts.13 Due to the multiple registration frameworks available for registration, NGOs in Kenya operate in diverse forms and operational structures, making consistent regulation difficult.

In its Sessional Paper of 2006, the Government of Kenya explicitly recognized that NGOs are potent forces for social and economic development, important partners in national development, and valuable agents in promoting the qualitative and quantitative development of the Gross Domestic Product (GDP). This Sessional Paper has come more than fifteen years after the enactment of the NGOs Coordination Act. The Act was enacted without a policy paper. It is, however, an important policy document that sets the legal basis for the needed review of the Act. The Sessional Paper provides an opportunity to expand the definition as provided in the Act and achieve the objective of bringing together all NGOs under a single definition and a consistent regulatory regime.

1.2 Definitions

For the purposes of this paper we will attempt to identify a definition of Nongovernmental Organizations (NGOs) and Civil Society Organizations (CSOs). There are as many definitions of NGOs and CSOs as there are numbers of people who attempt to define them. There is no single right definition. However, common themes run through most definitions, and we therefore adopt the following as working definitions:

Nongovernmental Organization refers to an association, society, foundation, charitable trust, non-profit corporation, or other juridical person that is not regarded under the particular legal system as part of the governmental sector and that is not operated for profit – viz., if any profits are earned, they are not and cannot be distributed as such. It normally does not include trade unions, political parties, profit-distributing cooperatives, or churches,14 which are usually regulated under separate legislation.

Civil Society is the sphere of institutions, organizations, and individuals located among the family, the state, and the market, in which people associate voluntarily to advance common interests.15 In this sense, it includes (but is not limited to) legal entities such as the various forms of NGOs (associations, societies, companies limited by guarantee, foundations, trusts, etc.) as well as trade unions, political parties, cooperatives, and churches.
All voluntary associations are CSOs, while NGO specifically refers to the above definition.

1.3 Theoretical Framework

Civil Society is a complex and multifaceted concept
—Volkhart “Finn” Heinrich and Kumi Naidoo

Civil Society is probably one of the most elusive concepts used in the social sciences and in development discourse today. Since NGOs represent one form of CSO it is necessary to understand civil society conceptually.
Civil society and legal traditions differ widely in different countries and cultures. This certainly is a consequence of the vast heterogeneity of civil society actors and the location of civil society in the midst of multiple spheres of influence of the state, market, and family.16 Or in Cohen’s words, “there is no sufficiently complex theory that is available today.”17 Anheir states that only a multidimensional approach is able to describe the various kinds of interplay between the dimensions as well as the specific strengths and weakness of civil society.

Many theories have developed that are helpful for understanding civil society. Civil Society theories can be summarized as follows:18

  1. Civil society may be perceived as a part of society distinct from states and markets, formed for the purposes of advancing common interests and facilitating collective action. Often referred to as the “third sector,” civil society in this sense encompasses all associations and networks between the family and the state except firms. However, there is no assumption that these diverse forms of associational life share a normative consensus or a common political agenda.
  2. Civil society may be defined in normative terms, as the realm of service rather than self-interest and a breeding ground for the “habits of the heart”: attitudes and values like cooperation, trust, tolerance, and non-violence. In this sense, civil society means a type of society that is motivated by a different way of being and living in the world or a different rationality, identified as “civil.” Although it is often conflated with the first set of theories in circular arguments about “forms and norms,” this model must be seen as separate for two interrelated reasons: first, associations have different normative agendas, and second, the same normative agendas are also shaped by differing sets of institutions—government and the market as well as voluntary associations.
  3. Civil society may be defined as an arena for public deliberation, rational dialogue, and the exercise of “active citizenship” in pursuit of the common interest—in other words, as the “public sphere.” Though often ignored in the policy and practice of governments, international agencies, and even parts of academia, civil society cannot be completely understood without a full appreciation of the role played by the public sphere in democracy and development.

    These different schools of thought are not per se contradictory. On the contrary, they are complementary and differ only in emphasis or explanation as opposed to the underlying principle at work.

     

1.3.1 Role of CSOs

Civil society has recently emerged as a central topic of discussion among policy makers and practitioners. In the US, officials have launched civic renewal projects to counteract increased social isolation and distrust among citizens. The German parliament has implemented programs to revitalize volunteerism. The UK Cabinet Office has attempted to modernize the voluntary sector to the World Bank’s new approach to economic development. The European Union encourages a “citizens’ Europe.” And NATO operates a program to seek ways of constructing a civil society in countries torn by civil war. All of these are indications of heightened policy relevance.19 Civil society is the platform in which people associate voluntarily to advance their common interests. As these examples demonstrate, civil society plays different roles in different countries because individuals’ needs differ from country to country.

The important role played by NGOs must be emphasized. For instance, since the enactment of the Act, Kenya has experienced a general increase in the economic importance of NGOs as providers of health, educational, social, and environmental services. The NGO sector in Kenya employs almost half (43%) as many people as the entire public sector.20 Further, it accounted for $270 million in expenditures as of 2000.21 The workforce (paid and volunteer) represents over 290,000 full time employees. This constitutes 2.1 percent of Kenya’s economically active population.22

A strong NGO sector provides many benefits for a country; a supportive legal and regulatory framework is one of the pillars sustaining the sector.

1.3.2 Legal Barriers to Civil Society Organizations

Many jurisdictions around the world, including Kenya, have provisions in their laws that restrict the space in which CSOs thrive. These are designed to intimidate, suppress, and control CSOs and their activities. Civil society is facing serious threats today across the globe.23

These legal constraints fall broadly in five categories:24

  1. Barriers to entry
    These are restrictive legal provisions that are used to discourage the formation and/or registration of CSOs. These barriers include limits to the right to associate, prohibitions against unregistered groups, restrictions on founders, burdensome registration procedures, vague grounds for denial, and barriers preventing international organizations from operating in the country.25
  2. Barriers to operational activity
    These are obstacles in the law that directly prohibit or otherwise constrain legitimate activities. These barriers are direct prohibitions against spheres of activity, invasive supervisory oversight, government harassment, criminal sanctions against individuals, failure to protect individuals and organizations from violence, termination and dissolution, and establishment of government-organized NGOs.26
  3. Barriers to speech and advocacy
    These are legal restrictions against expression of speech mainly in advocacy and policy engagement. They include prior restraints and censorship, defamation laws, broad or vague restrictions against advocacy, criminalization of dissent, and restrictions on freedom of assembly.27
  4. Barriers to contact and communication
    These are legal restrictions hindering the free flow of information and communication. They include barriers to the creation of networks, to international collaboration, and to communication as well as criminal sanctions against individuals.28
  5. Barriers to resources
    These are legal provisions that hinder the ability of NGOs to secure resources to carry out their activities. These barriers include prohibitions against funding, requirements for advance government approval, and policies to route funding (especially from foreign sources) through the government.29

State regimes around the world have tried to justify these legal restrictions under the pretext of promoting NGO accountability, protecting state sovereignty, or preserving national interest. These justifications are not only rigid but they also confer a variety of meanings. For instance, a concept like “national interest” is particularly prone to abuse. Further, governments often offer flimsy excuses as illustrations for such interferences. Prof. Mbote states, “The Board (NGOs) inextricably links national interest to public security with the appalling result that more than 100 NGOs have reportedly been denied registration on grounds of ‘national interest’ or ‘public security.’”30

1.3.3 International Principles Protecting Civil Society Organizations

Rights of individuals to form, join and participate in CSOs are protected under international law. These rights are enshrined in the Universal Declaration of Human Rights,31 the International Covenant for Civil and Political Rights (ICCPR),32 the International Covenant on Economic Social and Cultural Rights (ICESCR),33 and other international agreements like the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child, the African Charter on Human and Peoples’ Rights, etc.

First, in order to be exercised, freedom of association cannot be made dependent on registration or legal status. Under international law, individuals are free to associate without formal legal status, and the state should enable organizations to obtain legal status if they so desire.

Second, once formed, CSOs have a right to operate free from unwarranted state interference.34 However, there are permissible grounds for some restrictions on the grounds of national security, public order and morality, and the protection of the rights and freedoms of others. Such restrictions must be expressly provided for by law and they must be “necessary in a democratic society.”

Third, as noted above, CSOs themselves, as legal persons, enjoy the right to freedom of association as articulated in international law.

Fourthly, CSOs have a right to communication and cooperation with their affiliates and through any medium.

Fifth, CSOs have a right to seek and secure funding from any legal resources.

Last, States have a duty to promote and respect human rights and protect the rights of CSOs.

All these principles are clearly articulated under international law. They are the foundation upon which states strive to protect and promote to effectively build an enabling legal environment for CSOs in their countries. There are a variety of reasons why countries like Kenya have to ensure the existence of strong, independent, and dynamic CSOs; the key is to protect the internationally recognized freedoms of association.

CHAPTER 3: THE KENYAN REGULATORY FRAMEWORK OF NGOS

Background

Internationally, Kenya embraces the Universal Declaration of Human Rights of 1948 that enshrines the freedom of association. Kenya is also a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) since January 3, 197635 and to the African Charter on Human and Peoples’ rights. Regionally, Kenya is also a party to the East African Community Treaty (EAC) which guarantees freedom of association.

The Constitution of Kenya promotes and respects the freedom of association as provided for by these international and regional legal instruments.36 The Constitution guarantees the right to assemble freely and associate with other persons. However, there are exceptions to this right. The right to freedom of association can be restricted if necessary for public defense, public morality, public health, public order, public safety, rights and freedoms of other persons, or for the imposition of reasonable conditions relating to registration and martial law.37

The legal and regulatory framework in Kenya for NGOs is the NGOs Co-ordination Act of 1990 and its Regulations of 1992.38 The intention of this law was to act as a single authority for registration and regulation of all NGOs in Kenya.39 The Act commenced its operations on 15 June 1992. It provided for a six-month transition period40 and later extended this period by three months to 15 February 1993 during which all existing NGOs were required to register with the NGOs Coordination Board.

3.2 The NGOs Co-ordination Act No. 19 of 1990 and Its Regulations of 1992: A Critique vis-a-vis Best Practices

It should be noted at the outset that the Act provides for mandatory registration of NGOs. It outlaws any activity for unregistered NGOs—these requirements clearly constitute limitations on the freedom of association and appear to abridge rights guaranteed by the Constitution.41

As discussed in Chapter 1, civil society organizations in Kenya were registered under different legal regimes before and after the enactment of the Act. They function and render their services according to their different policy and legal structures. Such a diverse process of registration leads to difficulties in establishing an equitable regulatory system. The Act argued for the case of unification of the legal regimes. This noble intention has not been realized until today.

The main reason why the Act was not able to bring all these organizations under its umbrella is because of legal gaps that exist in the law. In this subheading we shall identify these key issues and how they are dealt with under the Act vis-a-vis best practices.

3.2.1 Definition

An NGO has been defined in the act to mean “a private voluntary grouping of individuals or associations not operated for profit or for other commercial purposes but which have organized themselves nationally or internationally for the benefit of the public at large and for the promotion of social welfare development, charity or research in the areas inclusive but not restricted to health relief, agricultural, education, industry and supply of amenities and services.”42 This is a weak operational definition of an NGO. This definition has failed to encompass all the other CSOs that are for public benefit. As a result, these other organizations have been forced to seek registration in the other legal regimes that fit their definition. Examples include trusts. In Kenya, trusts are for all intents and purposes public benefit organizations; however, not having members, they do not fit the definition provided by the Act. Therefore, they are registered under the Trustees Act. A definition that encompasses all public benefit organizations under one single regulator will simplify the regulatory regime.

3.2.2 Arbitrary powers

Under the act, both the Board and the Bureau43 of the NGOs Coordination Board are permitted excessive discretion. For example, no guidelines have been provided for the formulation of the terms and conditions attached to a certificate of operation.44 This absence of guidelines may be subject to abuse. Further, the process of refusal of registration45 as provided in the Act may be abused by the Board. Permissible restrictions on associational rights as provided under the Kenyan Constitution must meet some certain and unambiguous requirements. First, the restriction must be accomplished under the authority of the law, and second, it must be reasonably justifiable in a democratic society. Unfortunately this “national interest” exception has been used to unjustifiably curtail the rights of NGOs in Kenya.46

Wide discretionary powers are given to the Board and the Minister in Sections 12, 14, 19, and 32,47 which subject the exercise of the associational rights granted under section 80 of the Constitution to unreasonable prior restraint for registration to obtain legal status. The law ought to provide explicit guidelines in these provisions. Sections 10, 11,48 and 12 require all organizations that fit the description of an NGO to apply for a certificate of registration. The law does not specify the length of time of an application may be considered by the Board. In practice this process can take as long as two years. This slow process represents another barrier to the operations of NGOs.

3.2.3 Non-Governmental Organizations Council

The NGOs Council is established under section 23 of the Act. Its role49 is to advise the Board on the code of conduct of NGOs in Kenya. The Law states that once an NGO is registered it automatically becomes a member of the NGOs Council. This provision is contrary to section 80 of the Constitution which provides for the freedom of association. The Act compels NGOs to become members of the NGOs Council once they are registered. This provision raises serious constitutional issues. It is unlawful to compel someone to associate with those with whom they do not wish to. Instead such an “umbrella” organization should be voluntary for its members, for the promotion of good practices through, for example, the adoption and enforcement of principles of voluntary self regulation as may be enshrined in its code of conduct. It is in line with best practices to have umbrella organizations for NGOs; however, such organizations ought to be voluntary and draw legitimacy from membership and not the law, as is the situation in Kenya.

3.2.4 Taxation

NGOs in Kenya contribute approximately 80B Kenya Shillings annually to the GDP.50 This is a tremendous contribution towards complementing government’s efforts in the delivery of services. Unfortunately, these organizations are not in practice exempt from taxation. The process of exemption from taxation in Kenya for NGOs is tedious and confusing. Prof. Kameri Mbote says “accessing this facility can be a cumbersome process and submission of a request does not necessarily mean that such a request will be granted.”51 To encourage philanthropy and charity, donors and NGOs should be entitled to a reasonably generous income or profit tax preference with respect to donations made, and PBOs should be exempt from payment of income or profits tax on their earnings. In addition, the law should provide for adequate exemptions and deductions from duties for NGOs.52

3.2.5 Regulation

The functions of the Board are set out under section 7 of the Act. Among them is facilitating and coordinating the work of all NGOs operating in Kenya. In carrying out this function the Board is expected to coordinate with other government agencies. But this provision raises problems. First, the term “coordinate” is ambiguous and undefined under the Act. The term can be misused by a Board under the pretexts of ensuring national security and stability. Further, it may serve to restrict on NGO activities.

Second, for a number of reasons other than registration, not much regulation actually takes place at the Board. The physical capacity of the Board in terms of human resources and financial resources is limited. The Bureau’s office is currently situated in Nairobi and it is expected to serve all the NGOs in the country. It has a staff of 50 and a clientele of approximately 6,000. Its annual budget covers only operational costs.
The Board also lacks technical capacity. The role of the Board in registration of NGOs is perfunctory. There is no clear understanding of the sector by either the government or other stakeholders. The law may not necessarily address this issue; however, it is critical that stakeholders are aware of the principles that underpin this sector, especially management and governance structures of NGOs.

Finally, due to the multiplicity of forms of registration available in Kenya, it is safe to state that there is unnecessary duplication across the multiple regulators. There is no collaboration between the different registration state agencies.

CHAPTER 4: COMPARATIVE ANALYSIS

4.1 Introduction

In addition to Kenya, several other countries have recently undertaken reform of their NGOs laws. This chapter provides a comparative case study of two nearby countries in the developing world where such reform has been undertaken: Rwanda and South Africa. It is important to note that there is no perfect model for NGOs laws in the world. However, there are positive attributes to these laws that have encompassed best practices. In this section we will highlight these principles when drawing the comparative lessons.

4.2 Rwanda53

CSOs are protected under the Rwandan Constitution. The law regulating them is Law No. 20/2000 of 26/07/2000 relating to Non Profit Making Organizations (NPOs).

The law makes reference to Article 1154 of the Constitution. Article 33 of the Rwandan Constitution protects the freedom of thought, opinion, conscience, religion, worship, and public assembly. Article 25 further protects freedom of association which shall be exercised under conditions determined by law. What have not been made clear are these conditions.

Article 2 of Law No. 20/2000 recognizes the freedom of association as enshrined in the constitution. It states that “every person is free to form an association with others ... but not founded for an illicit objective, contrary to laws, public order or morality.”

An NPO in Rwanda is formed by at least three members presenting aims and plans of action to the local authority at the place it intends to work in order to get provisional agreement.55 Thereafter, an application requesting legal entity is addressed to the Minister of Justice six months following the date of a provisional permit. Legal entity is granted on the signing date of the ministerial decree six months from the date the request was made by the Minister of Justice. In case the legal entity is not granted the reasons must be communicated to the organization within six months of the application request. Further, every foreign organization has to be authorized to operate in Rwanda.56 The Ministry of Local Government regulates all local NPOs while the Ministry of Internal Affairs regulates all International NPOs. Every NPO submits a detailed report on its achievements, balance sheet and financial situation by April 30 of every year. Non-submission of annual reports may lead to a suspension of the organization’s activities. Further, any NPO may be dissolved on a decision taken by a two-thirds majority of the registered members of the judiciary.

This law has positive aspects. Of importance, it expressly asserts the freedom of association, it anticipates organizations serving as vehicles for advocacy on matters of public interest, it provides for government support of service providers through the relevant ministries’ budgets, it provides for tax benefits to help sustain the organizations. Further, the rules for registration are adequate, providing for sensible time limits, a deadline for the registrars to act or the organization will be deemed registered, and it has a sound appeals process including in conflict situations the possible use of mediation.

4.3 South Africa

There are a number of laws that govern CSOs in South Africa. These are:57

  1. Common and statutory law that recognize voluntary associations, trusts and Sec 21 Companies58 as legal entities;
  2. The NPOs Act;
  3. The Income Tax Act; and
  4. PBOs that apply for the right to receive tax deductible donations, called donor deductable status.59

An advantage to this type of arrangement is the different levels of requirements to form these organizations. For instance, to form a voluntary association the only requirement is an agreement between three or more people to have a common objective other than making profits. This agreement may be written or oral.60 This voluntary association is a product of the common law and is not regulated by statue. It can be established within a period of one to two days since no registration with a government department is required. There is no better way of ensuring freedom of association than this way. The other forms, Trusts and Section 21 Companies, have more requirements. For instance, a company is an incorporated entity while a trust is not a separate entity; it lacks a legal personality as it only holds property in the name of the trustees. Incorporating a company requires a memorandum of association together with a number of prescribed forms which takes two weeks to register. A trust is incorporated by lodging the trust deed with the master of the high court which takes a week to lodge.61

To seek registration as an NPO is voluntary for these organizations. There are, however, conditions required. They must be established for a public purpose and they must be non-state actors. Section 30 of the Income Tax Act of South Africa creates the framework for NPOs to be approved as PBOs. They must set out in their founding documents the organizational structures and mechanisms for governance.62 In Section 6, the Directorate for NPOs prepares and issues codes of good practice for NPOs and those persons, bodies, and organizations making donations and grants to NPOs. Further, Section 30 of the Income Tax Act imposes other conditions on the governance and operations of PBOs. For instance, the organization’s constitution must provide that there are at least three unrelated persons with fiduciary responsibility for the organization and no single person directly or indirectly controls the decision making powers relating to the organization.63

There are attempts underway to simplify this registration process. Nonetheless, the South African model enshrines the principle for the protection of fundamental freedom of association. Further, it asserts a sound governance structure which is core in constituting CSOs, especially those of public benefit.

CHAPTER 5: CONCLUSIONS AND RECOMMENDATIONS

5.1 Conclusions

Kenya is at an important phase of its history with the intended review of its NGOs law. It is very important that key principles are identified to guide this important review process. In this last chapter and in the next subheading, we identify key principles that must guide the review process to ensure that a fair and enabling legal and regulatory framework forms the foundation and function of NGOs to sustain the sector.

The Act currently gives wide discretionary powers to the Board and the Minister. There are no guidelines provided under the Act on the terms and conditions attached to the certificate of registration. This subjects the freedom of association enshrined in the constitution to unreasonable prior restraint for registration and deregistration of NGOs. Informal groups with common interests should be allowed to engage in lawful activities without having to acquire a legal identity which is viewed as a barrier to entry.

5.2 Recommendations

ICNL has developed a checklist of principles that should be included in legislation governing CSOs. This checklist is based on research collected over 150 countries and analyzed to ascertain to prevailing international practices.64

5.2.1 Protecting Fundamental Freedoms – Freedom of Association

International law protects and promotes the rights of individuals to form, join, and participate in CSOs. It is important to note that this freedom does not require one to become a legal entity in order to enjoy it. Once registered as an NGO as defined in the act,65 an organization should be permitted to engage in activities for the benefit of its members in line with public benefit or other charitable activities. Finally, the highest governing body of the CSO should be permitted to voluntarily terminate its activities.

5.2.2 Integrity and Good Governance

Certain minimum provisions should be included in the governing documents of CSOs. These provisions are internal reporting and supervision, duties and liabilities of their members, prohibition on conflicts of interest, and prohibition on the distribution of profits and other private benefits. Methods of voluntary self regulation could be encouraged, through establishment of a listed code of standards, which an umbrella organization should enforce.

5.2.3 Financial Sustainability

CSOs have a right to seek resources from legal sources. Furthermore, they are permitted to engage in profit making activities to sustain themselves provided that their core business remains that of public benefit. These organizations should be exempt from taxation, and donations made by individuals or companies should be entitled to income tax benefits to encourage a Kenyan philanthropic environment.

5.2.4 Accountability and Transparency

CSOs should by law be required to file annual reports on their finances and operations to the relevant state law office. Large organizations should be required to provide independent audited financial reports. All such reporting is subject to auditing by the authority provided it is not used to badger these organizations. Information provided should be accessible to the public, especially from those organizations that receive substantial support from the public through direct contributions or through tax benefits or government grants.

REFERENCES

INTERNATIONAL LEGAL INSTRUMENTS

  1. The African Charter on Human and People’s Rights
  2. The Universal Declaration of Human Rights
  3. The International Covenant for Civil and Political Rights
  4. The International Covenant on Economic Social and Cultural Rights
  5. The International Convention on the Elimination of all Forms of Racial Discrimination
  6. The Convention on the Elimination of all Forms of Discrimination Against Women
  7. The Convention on the Rights of the Child

STATUTES AND POLICIES

  1. The Constitution of Kenya
  2. The Companies Act Cap. 486 of the Laws of Kenya
  3. The Societies Act Cap. 108 of the Laws of Kenya
  4. The Trustees Act Cap. 167 of the Laws of Kenya
  5. The NGOs Co ordination Act No. 19 of 1990 of the Laws of Kenya
  6. The NGOs Co ordination Regulations of 1992 of the Laws of Kenya
  7. Sessional Paper No. 1 of 2006 of Kenya
  8. Law No. 20/2000 of 26.07.2000 relating to Non Profit Making Organizations of Rwanda
  9. Non Profit Organizations Act 71 of 1997 of the Republic of South Africa
  10. Income Tax Act of 1962 of the Republic of South Africa

BOOKS AND ARTICLES

  1. Kanyinga, Karuti, Winnie Mitullah, Walter Odhiambo, S. Wojciech Sokolowski, and Lester M. Salamon (2004) “Kenya,” Global Civil Society. Eds. Lester M. Salamon, S. Wojciech Sokolowski, and Associates, Vol. Two, Ch. 3, p. 95. Johns Hopkins Comparative Nonprofit Sector Project.
  2. The International Center for Not–for-Profit Law (1997) Handbook on Good Practices for Laws Relating to NGOs: The World Bank Publication.
  3. The London School of Economics and Political Science (LSE) (2001) How to measure Civil Society.
  4. Anheier, Helmut K. and CIVICUS (2004) Civil Society: Measurement, Evaluation, Policy, Earthscan.
  5. Cohen, J.L., & Arato (1992) Civil Society and Political Theory: Cambrige, MA: MIT Press.
  6. Rutzen, Doug and Adam Kolker, “International Civil Society Law,” Law 732 – 001-08A, University of Pennsylvania Law School, pp. 10- 11, Spring 2008.
  7. Edwards, Michael (2004) Civil Society: Polity Press.
  8. Kanyinga, Karuti and Winnie Mitullah (2007) The Non Profit Sector in Kenya: What we Know and What We Do Not Know, The Institute for Development Studies, University of Nairobi.
  9. The International Center for Not-For-Profit-Law and the World Movement for Democracy, (2008) Defending Civil Society: A Report of the World Movement for Democracy.
  10. Kameri-Mbote, Patricia, Dr., (2000) “The Operational Environment and Constraints for NGOs in Kenya: IELRC Working Paper.” International Environmental Law Research Centre.
  11. Tengera, Gloria (2008) NGO Law Formulation, A guide for Rwandan NGOs (Ms. Tengera was a fellow at ICNL in August 2008).
  12. Brewis, Tessa: The legal environment for nonprofit organizations in South Africa, NPO Management Programme May 2007 at p. 2.
  13. Legal and Policy Division in South African Revenue Service, Tax Exemption Guide for Public Benefit Organizations in South Africa. Date of third issue, 10 October 2007.
    The International Center for Not-For-Profit-Law, www.icnl.org.

The Process of Reviewing the NGO Coordination Act, 1990: A Step-by-Step Road Map66

Faith Kisinga

Introduction

This article comes in the wake of increasing acknowledgment by Government of Kenya (GoK) and Non-Governmental Organization (NGO) actors of the need to revise the outdated NGO Coordination Act of 1990.

An enabling environment cannot be created simply through legislation or policy statements. Of key import to legislative reforms is the need for improvement in the way government and other stakeholders relate to each other. This article seeks to answer the question: What is the best way to ensure that NGOs participate effectively in the review process? It also seeks to answer the question: Is the participation of NGOs useful for the development of a sustainable and effective legislative framework?

The following are the Key Objectives:

The article makes the following hypotheses:

The term Civil Society Organizations (CSOs) is used generally in Kenya to refer to the wide array of organizations that operate in the realm between the individual and the state and are formed to promote the interests of their members or the public good. NGO is used to specifically refer to entities that are registered by the NGO Coordination Bureau. Though NGOs are just a small part of the larger CSO sector, they are the most visible. Under the NGO Coordination Act of 1990, NGOs can be established for the benefit of the public at large and for the promotion of social welfare, development, charity or research in the areas inclusive of, but not restricted to, health, relief, agriculture, education, industry, and the supply of amenities and services.

This article will focus on the participation of NGOs in the review of the Non-Governmental Organizations Coordination Act of 1990. It is expected, and proposed by Sessional Paper No. 1 of 2006 on Non-Governmental Organizations,67 that the reforms to the NGO Coordination Act will result in a more inclusive definition and legal framework for civil society organizations (CSOs). The Sessional Paper broadly defines an NGO as “a voluntary organization or grouping of individuals or organizations which is autonomous and not-for-profit sharing; operating in the voluntary sector; organized locally at the grassroots level, nationally or internationally for the purpose of enhancing the legitimate economic, social and/or cultural development or lobbying or advocating on issues of public interest or interest of a group of individuals or organizations; but shall not include Trade Unions, social clubs and entertainment sports clubs, political parties, private companies or faith propagating organizations”.

Outline of the Article

The article has three main parts.

In Part One, the article briefly outlines the history of the process that led to the current legislative framework for NGOs in Kenya and the role played by NGO and Government stakeholders in it. It also gives the prevailing context behind the review of the NGO Coordination Act. This section also uncovers the risks facing the review process and the legal and policy framework for participation of NGOs will be pointed out. In addition, this part discusses the rationale (legal, socio-political, or other) for a participatory legal reform process. It also makes the case for a participatory process. Reference will be made to participatory and representative democracy and an attempt will be made to offer sound reasons for a participatory process.

In Part Two, the article discusses the broad principles for effective legislative processes. The broad principles are reinforced by comparative practice.

Part Three sketches or proposes a road map for the legal review process based on the principles delineated in Part Two and grounded on the local context. It identifies the key stakeholders in the process and their roles as well as the methods that are required to bring them on board and enable them to participate effectively. Key activities of the process will also be outlined.

Research Method

This research has been conducted through secondary research and consultation of NGO law experts at the International Center for Not-for-Profit-Law (ICNL) as well as NGO practitioners from a variety of NGOs in the USA. Secondary data was obtained through a desk study of publications at ICNL with a bearing on the agreed study issues. The study has also used secondary data to show examples of international best practice in NGO law development from around the world. This research report has been prepared with specific recommendations for the legislative process in Kenya. It will serve as a basis to make a case for a participatory and inclusive reform of the current NGO legislation.

PART ONE

Context and History

The NGO Coordination Act of 1990 is the product of Government and NGO efforts to provide a legal framework for NGOs. The context in which the Act was promulgated was, however, not conducive for NGOs. Mistrust between the Government and NGOs was very high. The Government proposed and passed the NGO Coordination Act in an attempt to regulate the sector. Members of the NGO sector reacted strongly to the law, claiming that its provisions were not enabling but aimed at stifling and controlling the sector. A frenzied series of consultations in the sector resulted in proposed changes which were presented to the Government. The two sectors deliberated on the proposals and eventually reached a compromise. A draft bill was then developed. It formed the basis of the NGO Coordination Act of 1990.

Though NGOs participated in the development of the law, they did so belatedly and with strong suspicions about the Government’s intentions. The Act therefore reflected the desire by NGOs to self-regulate and limit the Government’s role to coordination of the sector. Hence, some of the problems being faced by the sector today are as a result of limitations within the self-regulation mechanism that was envisioned. Others are as a result of issues that were never anticipated, for instance, the contending factions within the sector, the sector’s deteriorating reputation, the exclusive nature of the definition of NGO, and the exponential growth of the sector.68

Many in the Government and NGO sector later questioned the efficacy of having a law on NGOs in the absence of a national policy on NGOs. Where the law was silent or gave rise to confusion, there was no general framework to which to refer. In 1996, the NGO Coordination Board decided that there was a need for a national policy on NGOs.69 The executive committee of the NGOs Council, the national umbrella body of NGOs,70 also reaffirmed its commitment to the development of the policy.

During the second half of 2000, the NGO Council conducted a survey. The results showed that NGOs desired a policy to guide the sector’s operations. NGOs also called for a review of the NGO Coordination Act of 1990 once the policy was formulated. In May 2001, the Government’s interest in an NGO Policy was rekindled. It called for a brainstorming meeting, of Government and NGO representatives, which was followed by the preparation of a concept paper on the proposed strategy for developing the NGO Policy.

The NGO Council led the process of drafting the paper. A steering committee was established, including members of the NGO Council and the NGO Coordination Board, the Vice President, and key government officials The process was to be participatory and inclusive of NGOs, Government, and the private sector. The paper observed that the NGO Act of 1990 came into force before a national policy was developed. The lack of an agreed-to policy framework inhibited the implementation of some provisions of the Act, leading to lack of coordination, facilitation, and harmonization in the NGO sector. There was general agreement that a comprehensive policy would facilitate the formulation of a sound legislation on the NGO sector. In September of 2001, the structures for facilitation of the process for development of the Policy were established. A technical committee was constituted.

By 2002, the process of developing a national policy on NGOs was in full swing. It was led by the Government with input from NGOs through the NGO Council. This process continued for about a year. Input from the discussions was then consolidated in a report, which served as a basis for the preparation of a draft policy. A consultant was commissioned to develop the draft policy. He presented it to the NGO Coordination Board, which was tasked to ensure that the paper went through the government mechanisms and became policy.

This process depended heavily on the Government’s leading. Though NGOs were eager to participate in the process, they were not able to effectively mobilize themselves to engage fully in the policy making process, right through to the end. It was not until January 2006 that Sessional Paper No. 1 of 2006 was released. The paper contains the National Policy on NGOs.

Today, the environment is more conducive for collaboration between the Government and NGOs. On one hand, there is generally willingness by the Government to engage with NGOs on broad issues ranging from service provision to constitutional and legal reforms. The Government views NGOs as vital partners in the realization of sustainable development and crucial watchdogs in fostering good governance. It is expected that government goodwill will continue, as well as its willingness to provide space for NGOs to engage and participate in activities that promote the public good. On the other hand, there is generally willingness by large NGO networks to mobilize support from their constituencies for the review process.

It is therefore necessary to ensure that a more deliberate engagement and participatory process is undertaken. NGOs and Government need to participate from a mutually informed and empowered position. Only then will the results from the process be sustainable.

Legal and Policy Framework for Participation

National development policies have consistently affirmed and appreciated the role of the NGO sector in national development. Civil society organizations, the private sector, and other actors are increasingly expected to participate in the formulation, implementation, monitoring, and evaluation of development policies and plans.

Several policies provide the framework and space for participation of CSOs generally and NGOs in particular in the broad development agenda. Vision 2030, which is the country’s blueprint for development, envisions the participation of all stakeholders in the realization of its objectives. The participation of Kenyans from all sectors—government, private, and voluntary sectors—was vital in the formulation and completion of the framework. Consultation forums were held in nearly all parts of the country to collect the views of a diverse range of Kenyans. The team that coordinated the development of Vision 2030 was also representative of the broad sectors. Vision 2030 was launched at a national public meeting where the endorsement of Kenyans was sought. Efforts were then made to disseminate the Vision around the country.

Participation of stakeholders was not limited to the formulation of Vision 2030 but was also emphasized in its implementation. For example, the business sector and the Government are partnering to implement various projects under Vision 2030, through public-private partnerships (PPPs). The regulatory and institutional frameworks for PPPs are currently being developed. Similarly, NGOs in the health sector worked closely with the Ministry of Health Services to develop the health sector’s strategic plan. The plan foresees increased engagement of civil society organizations in its realization.

The National Accord, which was the result of the National Dialogue and Reconciliation Process following the post-election violence in Kenya in 2008, has four main agendas. The agendas are significant for the creation of an enabling environment for a stable, democratic, and prosperous country. NGOs and civil society in general are expected to participate in initiatives aimed at realizing Agenda Four.

As outlined in Sessional Paper No.1 of 2006, the NGO Sector Policy anticipates review of the NGO Coordination Act and the participation of NGOs in the review process. Recently, a working group of Government and Civil Society Organization representatives developed principles for GOK-CSO Collaboration.71 The principles are expected to serve as guidelines that will empower GOK and CSO actors at all levels to pursue their collaborative initiatives. They form an important basis for the legislative process as they provide the main stakeholders – GoK and NGOs – with principles for engagement.

Further support for participation by NGOs in decision making processes is found in bilateral agreements and international resolutions. Article 2 of the Cotonou Agreement describes participation of Non State Actors (NSAs) as a “fundamental principle” of African, Caribbean, and Pacific (ACP) and European Union cooperation. Kenya is one of the ACP countries. The agreement aims to facilitate and promote a broad-based and wide-ranging people-centered partnership through empowering NSAs and creating conditions to enable them to play an active role in development and democracy building amongst other processes.

Kenya is a member of the United Nations. Hence, resolutions made by organs of the international body are applicable in the country. In February 2001, the General Assembly of the UN adopted a resolution which stated that:

“There is no one universal mode of democracy … but democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives....”(GA Resolution to Promotion and Consolidation of Democracy of February 28, 2001)

Notwithstanding the space provided under these international, regional, and national legal and policy frameworks, effective participation by NGOs is fraught with challenges due to weak internal capacity and a deficient legal framework. If the NGO sector is to be fully strengthened to play an effective role in the legislative review process, it will need to have a clear understanding of its role in the process and how it should relate with other stakeholders. It will also need sufficient information to enable it to contribute substantively with regard to the specific reforms that are required.

Challenges and Risks

The NGO Sector is faced with a number of challenges which have considerably reduced its capacity to effectively engage in legislative, policy, and other reform processes, including the following:

Theoretical Framework for Participation

Participatory democracy is a process that emphasizes broad participation (decision making) of constituents in policy formulation and direction through the operation of political systems. It strives to create opportunities for all members of a political group to make meaningful contributions to decision-making, and seeks to broaden the range of people who have access to such opportunities (Johns, 2005).

Participatory democracy assumes that all citizens are political actors and will spend considerable time in defense of their interests and ideas. Representative democracy, however, rests heavily on the idea that almost every citizen delegates participation to a public agent, a member of parliament, thereby increasing the obligation of the citizen to be vigilant and active in the selection of candidates for office and oversight of representatives once elected.

Rosemann posits that democracy has shifted from a right to elect representatives to a right of participation within processes that have a direct or indirect impact on individuals’ lives (Rosemann, 1969). 73 The desire by citizens to take a greater role in determining their future lies at the heart of the desire to “democratize” democracy as a means of restoring faith in the institutions of government. According to Ron Miller, the term “participatory democracy” has been used by people who seek to reclaim the essence of democratic idealism in a society that has grown over-organized, hierarchical, and authoritarian and represents a renewed faith in the intelligence and moral judgment of common citizens pursuing their daily lives and interests. (Miller, 2005). Hence, one of the stimulants to this interest in participatory democracy is the apparent “reduce(d) trust in public and private institutions, especially disillusionment with politicians, political parties, and political institutions” ( Pharr, Putnam and Dalton, 2000).

While public participation in democratic society is vital, it is also problematic. Sometimes governments seek extensive public input in numerous forms only to ignore the public’s comments later. Some public meetings are so dysfunctional that observers end up wishing someone in charge would bring an end to the chaos and misery (Co-intelligence, 2008). In the absence of a sure direction, the consensus method so typical of participation becomes less likely to produce good policy.

Accordingly, Johns proposes that the quality of the democracy will be measured by the ability to incorporate and resolve issues, not just voice them (Johns, 2005). In his view, the emphasis should be on ensuring transparent relations between organized voices and the government. These organized voices represent civil society.

It has been argued that the involvement of civil society in democratization will give the people ownership over their institutions of governance in a way that was not possible without it (Roland, 2006). This view finds support in the GA Resolution on Promotion and Consolidation of Democracy of 2001, which states that democracy needs guaranteed mechanisms for consultations with and the contribution of civil society in processes of governance and encouraging cooperation between local authorities and nongovernmental organizations (GA Resolution to Promotion and Consolidation of Democracy of February 28, 2001).

Several attempts have been made to give direction to participatory democracy. The following section outlines the principles for effective participation by CSOs in legislative processes.

PART TWO: BROAD PRINCIPLES FOR EFFECTIVE LEGISLATIVE REFORM PROCESSES

There will always be initiatives geared at revising or developing laws to govern a variety of aspects of life. Some may result in laws that are widely accepted and respected. Others may end in laws that are rejected by certain segments of society or even ignored.

Whether a legislative reform process is successful or not is dependent on a variety of factors, including the context in which the process is undertaken, the commitment and interest of the stakeholders, and the resources available. Over and above this, however, certain basic guidelines or principles must be observed to ensure that legislative reform processes are successful. They include the following:

  1. The process must be indigenous. This principle is an answer to the question: For whom is the law being reviewed? To be successful, the process must be led and owned by those for whom the law is being created—local institutions and individuals. Only then will the law be applicable and reflect the social, economic, and political realities experienced by the people it affects. Local institutions and people are generally very good at working out solutions to their own problems if they are given the time and resources to do so.
  2. The process must be inclusive. The voices and views of the actors and sectors that will be affected by the law – the stakeholders – must be represented. Otherwise, the legitimacy of the process may be questioned or even threatened. It is therefore vital for organizers and participants to have a sound understanding of the prevailing social dynamics. Selection of representatives to the process must also be transparent.

    A process that is representative of the views of NGOs, government officials, parliamentarians and others can lead to good laws, a stronger likelihood of enactment, and a vested interest among participants in continuing the reform process. (Rutzen, ICNL 2008)
  3. The process must be participatory. A participatory process promotes sustainable decisions by recognizing and communicating the needs and interests of all participants, including decision makers. To the extent that people feel involved in creation or ratification of democratic decisions, they will support the implementation of those decisions.

    The process should therefore give stakeholders the chance to provide input through a variety of methods including consultation, dialogue, information, or partnership.

    An example of the effective use of various tools for participation is found in Hungary, where an NGO-Government drafting group published its draft law in a leading Hungarian newspaper. This encouraged input from both NGO representatives and the broader public. The drafters then organized town meetings around Hungary to promote further public participation. Comments were codified and reflected in the final version of the draft, which was enacted in 1997.

    The parameters for participation must also be clear: for instance, participants must have knowledge and skill to carry out the tasks but also be sufficiently representative of the various constituencies to provide their perspectives.
  4. The process must be transparent. Participants need to be well informed in order to participate in a meaningful way in the discussions on reform. The process must therefore provide information to the broad constituencies of the stakeholders and be employed as a channel for disseminating information and opinions from those stakeholders. In addition, it should provide participants with information about how the input they provide will be used. Where transparency is a key element of the process, trust will readily be nurtured amongst the stakeholders.
  5. The process must be accepted as valid across the country. The need for legal reform must be expressed widely in the sector if the law is to be broadly and readily accepted and applied. To foster widespread support, it will be crucial to begin the process by laying emphasis on the common goal. This will help to minimize conflict and reinforce the cultivation of respect among the stakeholders.
  6. The process must be empowering. The process will be most effective if associated with a broad capacity building effort that ensures that the constituency at large as well as those directly participating in the legislative process are reasonably knowledgeable of and proficient in articulating the concerns and wishes of the constituency. It must give those involved the chance to develop their capacities to organize and influence change in their respective fields, thus leading to reforms on a larger scale.
  7. The process must be collaborative. The process must involve a reciprocal relationship among decision makers and stakeholders in which all parties listen as well as talk and contribute towards achieving a mutually agreed objective. Central to this principle is the need to ensure that stakeholders are deliberately and actively involved and share responsibilities for various elements of the review process.
    In Afghanistan, the legislation drafting process in 2005 was government-led and allowed for civil society input only reluctantly. Moreover, the process was quite hurried. Consequently, the law that was ultimately enacted, although a big step toward a more enabling environment, was not enabling as it would have been if the process had been collaborative.
  8. There must be wide consultation throughout the review process and fair utilization of all relevant input. This will ensure that decisions reached are sustainable and have legitimacy. The failure to invite sufficient input may cause the resulting law to lose the benefit of valuable perspectives and insights. In addition, some NGOs may perceive the reform initiative as the work of an elite group, thereby undermining the legitimacy of the reform effort. Hence, stakeholders should be convinced that their participation will achieve something worthwhile in order for them to buy into the process.

The following example highlights how wide consultation was undertaken during the tax reform process in South Africa. Between 1998 and 2000 the Non-Profit Partnership (NPP),74 together with the Legal Resources Center (LRC), the South African Grantmakers’ Association (SAGA), and other representatives of the nonprofit sector launched a tax campaign targeted at improving the tax legislation governing nonprofits as the nation’s tax laws came under review. The campaign involved liaising with dozens of nonprofit organizations, preparing discussion papers and reports, and drafting submissions for the Finance Portfolio Committee of Parliament to consider. By July 2002, the Revenue Act repealed large portions of the existing tax framework and created a more favorable tax environment for the sustainability of nonprofits.

Nonetheless, the legislation still did not address some of the concerns highlighted by the group in their position papers and draft submissions. Between 2001 and 2006 therefore, the NPP and its partners strengthened their campaign by initiating dialogue with the South African Revenue Service (SARS) and the Ministry of Finance to promote further cooperation and development of favorable tax laws for the nonprofit sector. Biannual meetings and, later, annual meetings were held between the actors. The NPP produced discussion papers to highlight the continuing objectives of the Tax Campaign. Ongoing consultations aim to bring gradual and holistic changes to the tax framework, which support the continued survival and development of the nonprofit sector.

A similar example of wide consultation is found in Rwanda. In general, the NGO law reform process was open and participatory. The Ministry of Local Government, Community Affairs and Social Affairs (MINALOC) initiated work on four draft laws governing national NGOs, international NGOs, religious organizations, and political parties. The process was opened up to solicit input from CSOs, other stakeholders and the public through various channels including consultative meetings and public hearings in parliamentary committees. Changes to the draft were made on the basis of the participant recommendations.

These consultative efforts in South Africa and Rwanda were crucial in securing the buy-in of stakeholders during the revision of the Tax and NGO laws.

PART THREE: THE ROAD MAP

I. STAGE ONE

Assessment of the legal framework

Local and international practice has shown that many reform initiatives are informed by identified issues, which have been captured and condensed in the form of research reports, and used to mobilize support. The first stage of the review process will therefore consist of conducting research on constraints, gaps, and challenges of the legal framework for NGOs in Kenya in order to build a strong case for the creation of a more enabling environment for NGOs.

The research will be conducted through a desk study. It will identify the key issues of concern and propose legislative solutions that will be linked to the sections of the law that require amendment. It will also compare the legal framework in Kenya with international good regulatory practice around the world and will utilize information from the globally acknowledged International Centre for Not-for-Profit Law (ICNL).

Since research has already been undertaken, the task will be to package the findings into a report format that is useful for stakeholders. For example, policy briefs will be prepared for government officials. Other promotional information, education, and communication (IEC) and behavior change communication (BCC) materials will also be developed and targeted at NGO and GOK audiences.

This report will be used to inform stakeholders’ consultations. It will also be disseminated widely beyond those who will participate in stakeholder discussion forums, to affected members of the NGO community and government circles. The report will therefore play a crucial role in setting the reform agenda.
Dissemination of the research will be done through broadcast radio and TV, as well as through leading national newspapers, identified NGO network focal points, and a website dedicated to the law review initiative. The dedicated website will be created and monitored by a technical team.75 The site will have comprehensive access to additional relevant documents and will post announcements on activities related to the review process as well as other information updates. It will also have an email account that interested stakeholders can use to provide input. The input will be passed on to the Working Group for consideration.76

II. STAGE TWO

During the second stage of the review process, comprehensive discussions within and between the NGO sector and Government on the changes needed for an enabling legal framework for NGOs will be facilitated and convened by an NGO Law Working Group. The Working Group will be composed of representatives from the NGO sector, government, the NGO Coordination Board, the NGO Councils, the National Civil Society Congress, NGO sectoral or thematic networks, and other persons selected by dint of their professional/technical experience or on some other strategic basis.

A technical team will be established to support the Working Group. It will be composed of persons with deep knowledge of the local environment and the requisite technical experience for managing policy and legal reform programs, together with skills in communicating with a wide spectrum of participants. The technical team will be hosted by the NGO Coordination Board and/or by an organization that commands respect widely across Government and the NGO sector. Financial support for the initiative will be mobilized by members of the NGO sector and the NGO Coordination Board prior to the start of the first phase of the review process.

Selection of the members of the Working Group will be by stakeholders, during the first joint consultation meeting. Participants at the first consultation meeting will also jointly develop a road map for the participatory review process and agree on the key objectives for the process. Additional stakeholders will also be identified at later meetings.

Further activities throughout this stage will include the following:

  1. Consultative meetings with NGOs: The NGO Law Working Group will meet with representatives of the NGO Councils and key civil society networks such as the National Civil Society Congress (NCSC) and the Kenya Civil Society Alliance (KCSA) to seek comments, views, and feed-back from their constituencies, to develop sectoral consensus and to mobilize support for the review process.
  2. Intra-sectoral consultation workshops will be convened to facilitate comprehensive discussions by NGOs and consolidate the case for an enabling environment. In particular, the forums will raise awareness on NGO sector law and policy. They will aim to build consensus on the most effective model for self-regulation in the NGO sector, to complement the development of a truly enabling legislative framework. The Working Group will convene the workshops and will pay particular attention to ensure the participation of representatives from a spectrum of NGOs that will be affected by the reforms.
  3. Engagement with government and parliamentary officials. The Working Group will engage with government and parliamentary officials to secure buy-in for a progressive NGO legal framework consistent with policies formulated and agreed to throughout the process. This activity will begin as early as possible and include the following steps:
    • Identification and engagement of relevant parliamentary committees. The Working Group will establish relationships with members of relevant parliamentary committees such as the Departmental Parliamentary Committee on Health, Housing, and Labour & Social Welfare as well as with members of parliament who are allies of the sector, in a bid to build support for reform.
    • Strategic meetings to get buy-in from relevant parliamentary committees and Members of Parliament allied to the sector. These meetings will be geared toward creating awareness amongst the Parliamentarians with regard to the value of the NGO sector and of an enabling environment for their activities.
    • Strategic meetings with relevant government officials: These will secure buy-in from relevant government agencies for the reforms.
    • Engagement of the President and the Office of the Prime Minister.

      Early efforts will be made to contact these offices, especially the President, whose assent will be crucial in determining whether the draft law (bill) finally gets enacted.
  4. To build consensus between the NGO sector and Government on specific changes needed in the NGO Coordination Act, fifteen (15) cross-sectoral region-wide dialogue forums will be convened. From these joint dialogue forums, specific proposals will emerge.

    The fora will also help to improve the understanding of both sectors with regard to their reciprocal roles in the review process, their respective realities and their common objectives, thereby promoting mutual appreciation.

Recommendations from all these forums will be captured and consolidated to develop definitive proposals for reform. The forums will also serve as primary communication conduits between the initiative and stakeholders, allowing for the gradual and essential “buy-in” by all affected parties as the process proceeds. Additional information channels will be dedicated to providing free information on the process to the public. These will include identified NGO network focal points and a website dedicated to the law review initiative.

III. STAGE THREE

During the third stage, the revisions to the NGO Coordination Act will be agreed to, drafted, and endorsed by stakeholders.

Due to the busy schedule of Parliamentarians and the technical nature of the proposals sought, it will be crucial to ensure that the proposal submitted before Parliamentarians is as clear and complete as possible. This will reduce the amount of time that will be required to have the law appropriately drafted, understood, debated, and enacted.

Recommendations from the consultation forums will be used to inform the development of the draft law. The draft law will then be disseminated to the wider NGO community through various channels, including email, broadcast, and print media, NGO network focal points, and the dedicated website. Since it is crucial to secure buy-in from stakeholders at every stage of the process, feedback will be consistently solicited and used to further refine the draft law.

The activities in this stage will include the following:

IV. STAGE FOUR

The revised NGO Coordination Act will be passed during the final stage of the review process. The following activities will take place:

THE STAKEHOLDERS IN THE REVIEW PROCESS

The NGO Coordination Act review process will be inclusive and participatory. The following is a description of the main stakeholder organizations as well as their mandate and responsibilities in the review process.

The NGO Law Working Group

The NGO Law Working Group (comprising both government and nongovernmental stakeholders) will take the lead in the review process. It will play a key role in convening or facilitating the consultation forums as well as other activities. Representation on the group will be broad and include many categories of NGOs (thematic sector and regional network representatives), civil society networks, persons with technical expertise, the NGO Coordination Board, and the NGO Councils.

Selection of the Working Group members will be by stakeholders, during the first joint consultation meeting. The working group will, however, be open to invite additional members of key stakeholder constituencies who will be identified and proposed later in the process. The inclusive structure of the Working Group will reflect both the diversity of the NGO sector and the fact that no single NGO represents the whole sector. The Working Group will therefore have an advantage over other institutions in reinforcing trust amongst the stakeholders in such a process. Its composition will also help to secure the legitimacy and success of the initiative.

The Working Group’s brief will be to facilitate wide, inclusive consultations with a variety of stakeholders, including NGOs, relevant Government agencies, parliamentarians, and parliamentary committees. The consultations will be geared towards building multi-sectoral consensus on the changes needed for a conducive legal framework for NGOs. The Working Group will also consider the findings of the research report on the legal framework for the NGO sector. It will also consider and consolidate feedback from stakeholders, make recommendations, and seek endorsement of the recommendations from the stakeholders.

Through its secretariat or technical support team, the Working Group will ensure easy and open access to relevant, accurate and timely information on the process and content of the review. It will therefore play a pivotal role in catalyzing civic engagement for the review process.

To augment the progress of the review process, the NGO Law Working Group will, after consultations and dialogue forums have taken place, work with a draftsperson to develop a draft of the NGO Coordination Act. The Working Group will submit the draft law before the relevant parliamentary committee(s) and follow-up on its progress in Parliament.

The NGOs Coordination Board

The NGOs Coordination Board is a semi-government agency, established by the NGO Coordination Act, 1990. Its main mandate is to streamline the registration and coordination of NGOs. Among its many responsibilities is providing policy guidelines to NGOs for harmonizing their activities with the National Development Plan for the country so that NGOs avoid activities which contradict state programs.

The NGOs Coordination Board will be the link between the Working Group and government institutions in the course of the implementation of the review process. The Board will coordinate activities that relate to securing consensus among Government institutions and agencies on the need for a positive NGO legal framework. It will also play a key role in helping to move proposals through the necessary legal reform channels and in ensuring that the laws are subsequently implemented accordingly. In addition, the Board will participate as a member of the NGO Law Working Group. It will provide the Working Group with access to up-to-date accurate and timely information on the progress made by the bill during the legislative process.

Being a semi-autonomous government agency, the Board will need to rely on NGOs to undertake activities with regard to the mobilization of the sector. Hence, NGO networks will mobilize the NGO sector to engage in the review of the NGO Coordination Act.

Civil Society/NGO Networks

As already mentioned, it is imperative that the initiative get the buy-in of a diverse range of organizations in the NGO sector for it to be successful. The Working Group will therefore work with key Civil Society networks such as the National Civil Society Congress (NCSC), and the Kenya Civil Society Alliance (KCSA), and the two de facto NGO Councils to develop sectoral consensus, mobilize support for an improved working environment for NGOs, and sustain demand for change. It will take advantage of platforms provided by the NGO networks’ ongoing initiatives, for instance the NGO Week, the NGO of the Year Award, and the Civil Society of the Year Award amongst others. The NGO networks will also use a variety of channels for mobilizing their members including forums, posters and leaflets, websites, and media releases. The Working Group, through infrastructural organizations, will provide the NGO networks with assistance in the form of training on how to build and effectively coordinate sustainable sector-wide reform campaigns.

Media

The value added through the participation of the broadcast and print media is their powerful role in shaping public opinion and reaching a critical mass of supporters for the campaign. Media participation will help frame the case for the need of an enabling environment for NGOs and presenting it to the public.

Most of the opinions associated with the poor image of the NGO sector are mainly held by those in urban areas, usually as a result of media coverage.

It will therefore be vital to establish a system for dissemination of information on the initiative to broadcast and print media. The Working Group and NGO network representatives will seek opportunities to convey the need for a more enabling legal framework through speaking on broadcast media. The broadcast media will also be requested to feature a forum through which public debate on the topic will be conducted. During this forum, an NGO and Government official will be invited to speak and a media survey will be conducted. The results from the survey will be deemed to reflect the views of a sample of the Kenyan population on the issues discussed. Information to be published in leading newspapers will include the draft law or a summary of proposals for reform of the NGO Coordination Act.

Members of Parliament Who Are Allies of the NGO sector and Parliamentary Committees

The Working Group will establish relationships with members of relevant Parliamentary Committees, for instance the Departmental Parliamentary Committee on Health, Housing, Labour and Social Welfare, as well as with Members of Parliament who moved from the NGO sector in a bid to build support for reform.

The parliamentary select committees will need to have their knowledge about the sector and its contribution to society fostered. Former NGO members will be reminded of where their real mandate comes from. The Working Group, through consulting with these stakeholders, will therefore build their understanding of and appreciation for the need for reform of the legislative framework for NGOs. This will ensure that in future, the parliamentarians will have the capacity to effectively champion the cause of the sector.

Capacity building will be carried out through specific workshops, designed for the parliamentary committee members and through invitations to participate in NGO functions and meetings where the issue of an enabling legal environment is being discussed. The parliamentary committee members and identified members of Parliament will also provide the Working Group with access to information and updates on the progress being made in the decision-making process of the revised law.

Government Institutions and Agencies

These include government actors with a bearing on NGO operations and those likely to have direct influence in the final decisions about legal reform, e.g., the Ministry of State for National Heritage and Culture, the State Law Office, the Office of the Prime Minister, and the Office of the President, as well as agencies currently regulating other forms of CSOs, e.g., trusts, societies, CBOs, etc. These agencies will play an important role in the consultations leading to the development of the draft law as well as in determining the speed with which the proposals move through the legislative process and their eventual success. They will also have an important role to play in the implementation of the amended laws after the reforms. Capacity building efforts will be vital to ensure that these stakeholders understand their role in the review process and in the implementation of the reformed law vis-à-vis other agencies and actors, so as to ensure harmonious participation and implementation.

BIBLIOGRAPHY

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Notes

1 This study is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents are the responsibility of the author and do not necessarily reflect the views of USAID or the United States Government.

2 The International Center for Not-for-Profit Law (ICNL) is an international not-for-profit organization that promotes an enabling legal environment for civil society, freedom of association, and public participation around the world. See www.icnl.org.

3 ICNL; Kanyinga, Karuti and Winnie Mitullah (2007) “The Non Profit Sector in Kenya; What we Know and What We Do Not Know,” The Institute for Development Studies (IDS), University of Nairobi.

4 Kanyinga, Karuti, Winnie Mitullah, Walter Odhiambo, S. Wojciech Sokolowski, and Lester M. Salamon (2004) “Kenya,” Global Civil Society. Eds. Lester M. Salamon, S. Wojciech Sokolowski, and Associates, Vol. Two, Chap. 3, p. 95. Johns Hopkins Comparative Nonprofit Sector Project.

5 Ibid, p. 99.

6 No. 19 of 1990 of the Laws of Kenya.

7 This has not been achieved to date.

8 An example is Plan Kenya before its registration at the NGOs Coordination Board. This agreement is filed at the Bureau’s registry, File No. OP/218/051/9242.

9 An example is the Kenya Red Cross Society Act CAP 256 of the Laws of Kenya.

10 Ministry of Gender and Youth.

11 The Societies Act CAP 108 of the Laws of Kenya.

12 Companies Act CAP 486 of the Laws of Kenya.

13 Trustees Act CAP 167 of the Laws of Kenya.

14 The International Center for Not-for-Profit Law, (1997) “Handbook on Good Practices for Laws Relating to NGOs,” The World Bank.

15 The London School of Economics and Political Science (LSE), “How to Measure Civil Society,” 2001, http://fathom./se.ac.uk/features/122552, accessed on May 26, 2009. This definition has also been adopted by Helmut K. Anheier and CIVICUS, Civil Society: Measurement, Evaluation, Policy, published by Earthscan in the UK and USA in 2004 at p. 22.

16 Anheier, Helmut K. and CIVICUS, (2004) Civil Society: Measurement, Evaluation, Policy, Earthscan.

17 Cohen, J.L., & Arato. (1992) Civil Society and Political Theory, Cambridge, MA, MIT Press.

18 Rutzen, Doug and Adam Kolker, “International Civil Society Law,” Law 732 – 001-08A, University of Pennsylvania Law School, pp 10- 11, Spring 2008. This classification was adopted from Civil Society by Michael Edwards, published by Polity Press USA, 2004.

19 Supra Note 2, at p. 2

20 Supra Note 18, at pp. 96 – 97.

21 Ibid.

22 Ibid.

23 The International Center for Not-For-Profit-Law and The World Movement for Democracy, (2008) Defending Civil Society: A Report of the World Movement for Democracy, p. 3.

24 Ibid, at p. 10.

25 Ibid, at pp. 10- 12.

26 Ibid at pp. 13 – 15.

27 Ibid at pp. 15 17.

28 Ibid at pp. 17 18.

29 Supra.

30 Kameri-Mbote, Patricia, Dr., (2000) “ Dr. Patricia Kameri – Mbote, The Operational Environment and Constraints for NGOs in Kenya: IELRC Working Paper International Environmental Law Research Centre, p. 17. (citing NGO Council (1995) “Kenyan based NGOs: Rising to the Challenge.” Report of the workshop held at the Fairview hotel, July 13-14, 1995, at p. 7.

31 http://www.ohchr.org/english/about/publications/doc/fs2.htm. Adopted by the General Assembly Resolution 217a (III) of 10th December 1948.

32 http://www.ohchr.org/english/law/ccpr.htm. Adopted by the General Assembly in Resolution 2200A (XXI) of 16 December 1966.

33 http://www.unhchr.ch/html/menu3/b/a_cescr.htm. Adopted by the General Assembly in Resolution 2200A (XXI) of 16 December 1966.

34 Supra footnote 29, at p. 30.

35 The date of its inception.

36 Chapter V section 80 providing for protection of the freedom of association and assembly.

37 Sec 80(2) of the Constitution.

38 Supra Note 6.

39 Sec 25(2) states that all NGOs presently registered under any written law in Kenya shall, within the period specified in subsection 1 (six months), apply and obtain a certificate under the Act.

40 Sec 25 states that “there shall be a transitional registration period not exceeding six months from the date of the commencement of this act; provided that the Minister may extend the period upon application by a NGO. All NGOs that are presently registered under any written law in Kenya shall, within the period specified in sub section 1 apply and obtain a certificate under this Act.”

41 See note 35, supra, and Sec. 5.2.1, infra.

42 Section 2 of the Act.

43 The Board is established under Sec 3 of the Act while the Bureau is established under Sec 5 of the Act.

44 Sec 12 subsection 4 provides that the certificate of registration may contain such terms and conditions as the board may prescribe.

45 Sec 14 on refusal of registration states, “The Board may refuse registration of an applicant if: it is satisfied that the proposed activities and procedures are not in the national interest, or it is satisfied that the applicant has given false information on the requirements of subsection (3) of section 10; or it is satisfied, on the recommendation of the council, that the applicant should not be registered.”

46 See footnote 29.

47 Sec 12 Certificate of registration, Sec 14 Refusal of registration and Sec 32 Ministerial rules on Regulation.

48 Sec 10 Registration of NGOs and Sec 11 Fees.

49 Sec 23(1).

50 NGOs Board Annual Report of 2002.

51 Supra footnote 29, p. 11

52 Regulation 29 provides that an NGO shall apply to the Minister responsible in Finance for exemption from Taxation after they prove that the foreign exchange they use cannot be raised in Kenya among others. Ibid Note 44 At pg. 11 it states that “a cursory look at these provisions evinces the main rationale for these regulations as to preserve foreign currency within the country.”

53 It should be noted that the laws of Rwanda are currently under review, with amendments before parliament in August, 2009.

54 “All Rwandans are born and remain free and equal in rights and duties. Discrimination of whatever kind based on, inter alia, ethnic origin, tribe, clan, colour, sex, region, social origin, religion or faith, opinion, economic status, culture, language, social status, physical and mental disability or any other form of discrimination is prohibited and punishable by law.”

55 Article 4 and Article 8, paragraph 1, respectively.

56 Article 32.

57 Brewis, Tessa: The legal environment for nonprofit organizations in South Africa, NPO Management Programme May 2007, p. 2.

58 Companies Act 61 of 1973 of the Laws of South Africa.

59 Income Tax Act, Sec. 18A

60 Brewis, op.cit., p. 3.

61 Supra note 53, p. 5.

62 Sec 2 of the Non Profit Organizations Act 71 of 1997 encourages NPOs to maintain adequate standards of governance, transparency and accountability and to improve those standards.

63 Tax Exemption Guide for Public Benefit Organizations in South Africa: Legal and Policy Division in South African Revenue Service. Date of third issue, 10 October 2007.

64 Access to information about various countries, including individual country laws and regulations, codes of ethics, and information about government – CSO partnerships can be obtained through ICNL’s website at www.icnl.org.

65 See sec. 3.2.1, supra

66 This study is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents are the responsibility of the author and do not necessarily reflect the views of USAID or the United States Government.

67 This article contains the National Policy for NGOs in Kenya.

68 NGOs grew by over 400 percent in the period between 1997 and 2006 – from 836 entities in 1997 to a significant 1,234 organizations in 1999 and to about 4,500 in 2006. Today, there are more than 6,000 registered NGOs in Kenya.

69 The NGO Coordination Board is a Government Agency which exists to register, coordinate and facilitate the work of all national and international NGOs operating in Kenya.

70 The NGO Coordination Act of 1990 recognized the creation and role of a national umbrella body for NGOs in the country.

71 The Working Group on Government and Civil Society Organizations (CSO) collaboration was constituted in December 2008. The Group comprises eight Government Ministries that work in close collaboration with NGOs and twelve NGOs. The Group is facilitated by a coordinating committee made up of the NGO Council, the Ministry of State for National Heritage and Culture, and Pact Kenya, an NGO. Through a series of discussions, the Working Group has deliberated on the challenges to Government and CSO collaboration and developed principles for Government-Civil Society Organization Collaboration.

72 Pact Kenya and the Poverty Eradication Network are two of these.

73 Herbert states that only through participation is it possible to build and consolidate democracy.

74 A coalition organization for non-profit organizations in South Africa

75 See stage 2 for further information on this technical team.

76 See stage 2 for further information on the Working Group.

 

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