The International Journal
of Not-for-Profit Law

Volume 1, Issue 1, September 1998

ICNL will shortly be publishing a book by Edward A. Adiin Yaansah, a Ghananian barrister, entitled: An Experiment in NGO Self-Regulation in Kenya. The following is a summary of the text. For further information on the book, please contact infoicnl@icnl.org.

An Experiment in NGO Self-Regulation in Kenya

by Edward A. Adiin Yaansah

SUMMARY

1. This research, funded by the Nuffield Foundation and the Polden-Pucham Trust, is a study of the experiment by Kenya’s non-governmental organisations (NGOs) in self-regulation. It makes comparisons with self-regulatory schemes in Zambia and Britain. The analysis is based on the following sources of information:

(i) primary source materials (codes of practices/ethics, rules and regulations and other legislation) collected through the governments and non-governmental organisations (NGOs);

(ii) interviews conducted in person;

(iii) academic publications and journal articles.

2. The study focuses on certain key provisions of the self-regulatory framework, for example, the ‘core values’ which are concerned with standards setting for NGOs, and with ensuring that they are transparent and accountable in their activities; provisions dealing with the lodging and disposal of complaints to the Regulatory Committee; provisions dealing with sanctions against NGOs; and governance structures of the NGO Council. These provisions are discussed in the context of the inter-relationship between self-regulation and government regulation and appropriate procedural rules that would ensure the fair hearing of complaints.

3. There are many forms of self-regulatory arrangements. Like the concept of non-governmental organisations (NGOs), self-regulation varies in structure, strategy and in the way that it relates to government regulation. Generally, as the Kenya model shows, self-regulation may consist of internal rules that govern the operations of NGOs, rules of conduct for their Boards, and their internal financial practices. The Kenya self-regulatory framework is regulated in part by law and by norms (code of conduct, and rules and regulations), which NGOs have adopted.

4. Two major factors have contributed to the development of self-regulation in Kenya. The first, is the improvements in government-NGO relationships which have resulted in changes in the government’s perception of NGOs as a threat to its sovereignty, thus, enabling meaningful dialogue (including discussions concerning the desire of NGOs to regulate themselves) to be developed. The second, is donor pressure, particularly from the IMF and the World Bank, who are increasingly imposing as part the conditions for the grant of aid, the reform of laws and the introduction of regulatory frameworks that would improve the governace capacity of recipient countries. (The IMF has recently suspended aid to Kenya until the government has been able to put in place satisfactory structures to deal with alleged corruption in the government.)

5. The Kenya self-regulatory framework is unique; it is the first time in Commonwealth Africa (and perhaps in Africa in general), and outside of professional organisations such as Law Societies, the medical and accountant professions, that a government has expressly given power to non-governmental organisations (NGOs) to regulate themselves. Such delegation by the government of its powers, is an attempt to strike a reasonable balance between the freedom of NGOs to regulate themselves without undue political interference and the government’s duty to protect its citizens from the activities of unscrupulous NGOs.

6. The Kenya legislation covers a broad range of issues including: provision for the creation of the right environment for NGO activities; the maintenance of integrity of NGOs; the upholding of ‘core values’; provision for technical and financial management training for its members; strengtheneing communication channels between NGOs and government; ensuring that NGO activities are consistent with national policy objectives; setting guidelines for NGO fund-raising and other programmes; and improving NGOs’ networking activities. All these provisions are simply a way of establishing openness, fairness and impartiality in NGO decision-making.

7. Self-regulation by the NGO sector is important because of the role that it can play in enhancing democratic participation by NGOs in the management of their affairs. Among the claims made for it are the following: (i) it allows for flexibility in rule-making and change – a quality which is said to be lacking in government legislation; (ii) it is a useful way of pre-empting the threat of legislation from government; (iii) it provides a way to involve both NGOs and government; and (iv) it supplemented regulations without determining an exclusive mode of compliance. The inter-relationship between government regulation and voluntary regulation is complex. A fundamental requirement of this relationship is that there is meaningful dialogue between NGOs and government.

8. Self-regulation is not simply a matter of applying codes of practices and rules and regulations to facts objectively given; fundamentally, it involves the problem of devising procedures that will work impartially. This is a practical problem of administration, to be solved empirically, rather than by the analysis of theoretical issues. At the heart of the Kenyan self-regulatory framework, are the ‘core values’. These are not intended simply as theoretical ideals, but as a means (among others) of giving practical content to the attempt by NGOs to carry out their activities in a transparent and accountable manner and with integrity.

9. The limitations of the model have been noted in this study. Two shortcomings particularly stand out: (a) its lack of an independent review body, and (b) the fact that at the time of this research, no procedural rules had yet been formulated for dealing with complaints to the Council. Whether the provisions of the Code of Practice, and rules and regulations are best secured by the trial-type procedures which the model adopts, and by allowing NGOs themselves to adjudicate on complaints, or by setting up an independent body to deal with complaints (the technique widely used in many Commonwealth jurisdictions) remains to be seen.

10. The broad conclusions and recommendations drawn from the analysis of the Kenyan self-regulatory framework are that: (a) there is need for an amendment of the legislation to provide for an independent body (outside of the Council) to whom individuals or organisations who remain dissatisfied with the Council’s decisions can appeal; (b) other amendments (eg. provision for a limited indemnity to the Regulatory Committee), that would alley the fears of the Council in its adjudicative functions have also been recommended; (iii) Finally and more importantly, there are the procedural rules that are to be formulated for dealing with complaints. The rules should meet minimum international standards of fairness. Given that a large proportion of the beneficiary community is not literate, the procedural rules should seek to address this power imbalance; be simple, non-bureaucratic and easy to understand and facilitate the expeditious hearing of complaints. The rules should also spell out clearly, the rights, duties and obligations of the parties to the proceedings.