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In Kenya, averting a move to strangle civil society with the financial noose

In October Kenya introduced legislation capping foreign funding to NGOs and requiring that money be channeled through a government body. Though narrowly defeated, the law looked to be a death-knell for a vibrant civil society sector. But Kenya – and the region – is not out of the woods yet. A contribution to the openGlobalRights debate on Funding for Human RightsFrançais

Six months ago, I presented a report to the UN Human Rights Council asserting that the freedom of association cannot be enjoyed without resources, and that to enjoy this freedom, there was an accompanying right to solicit, receive and use financial resources. The report was in response to a growing trend of States restricting civil society’s access to funds, especially from foreign sources.

The report documented laws across the world designed to restrict civil society’s ability to receive funding, and thereby strangle them out of existence. It also emphasized the fact that similar restrictions did not apply to the for-profit sector or to the government itself.

Of the laws we studied, a few stood out as particularly draconian.

There was Ethiopia, where a law bars nongovernmental organizations working in rights-based areas from receiving more than 10% of their funding from foreign sources. There was Russia, where a 2012 law requires foreign-funded non-commercial organizations engaging in “political activities” – a vague and broadly defined term – to register as “foreign agents.” And there was Algeria, where civil society groups cannot receive any foreign funding without a special agreement from the government.

Imagine my shock, then, when about six weeks ago it looked as if my country Kenya was about to join that club. 

In late-October, the Kenyan government quietly introduced a bill to amend the Public Benefit Organizations (PBO) Act of 2012. The language was hidden in an omnibus amendment bill that would ordinarily be used for minor statutory cleanups. But these changes were anything but minor.

The bill proposed a cap on foreign funding for Kenyan PBOs (a category that includes NGOs) limiting such funds to 15% of their total budget. It would have also required that all funding for PBOs be channeled through a government body, which would alone decide which organization got funding and for what purpose.

Thankfully, the amendments were narrowly defeated on December 4 after massive local and international outcry. But the fact that such potentially devastating legislation was introduced is shocking, and it underscores the growing threat to civil society, both in Kenya and in the region. 

Civil society is under attack across Africa. The 2009 NGO law in Ethiopia reportedly caused the number of registered civil society groups to shrink by 60% just a year after its implementation. It essentially eliminated all rights-based groups, including those working for women’s and children’s rights. In South Sudan, meanwhile, the government is close to passing a law that would give it broad authority to control civil society. Zambia too is pushing forward to implement an NGO law that gives the government excessive powers to control where NGOs work and to enforce mandatory registration.

And Kenya is certainly not out of the woods yet. There is a good chance that this legislation will rear its head again. But we can learn from this, both in understanding the threat, and hopefully in helping to combat it elsewhere.

The path to Kenya’s poisonous crossroads

In Kenya, the threat came quietly and quickly: There was no prior warning that amendments to Kenya’s PBO Act were in the pipeline, nor any consultations with civil society as required by the constitution.

But perhaps stealth was to be expected: The bill was essentially an attempt to assassinate the NGO sector. The CSO Reference Group estimated that it could have resulted in 240,000 lost jobs. The humanitarian impact would have also been immense: Up to 20 million Kenyans could have lost access to basic public health care, while other services would have seen drastic cuts. NGOs working in human rights and accountability would probably have disappeared altogether, or perhaps taken their activities underground. And it would have deprived Kenya of at least US $5 billion in foreign exchange that comes through the sector annually.

How did Kenya arrive at such a poisonous crossroads, where legislators would seriously consider eviscerating civil society overnight?

The answers could fill a book, and they have in fact filled many newspaper pages of late. President Uhuru Kenyatta and deputy-president William Ruto, in office for less than a year after coming to power in flawed elections, stand accused of crimes against humanity before the International Criminal Court. These charges stem from their alleged involvement in atrocities from the 2007 elections, when organized violence killed aver 1,000 and displaced another half-million. And since they took power, the entire focus of their governance has been to find ways to escape these charges.  

The reputation of their ruling coalition took a further blow following the terrorist attack at the Westgate Mall, with the botched siege and looting by soldiers sent in as part of the rescue mission.

And this regime is especially allergic to criticism and dissent, persistently calling on Kenyans to “speak with one voice,” that voice, of course, being theirs alone. This may have worked in the 1970s and 1980s through harsh dictatorial rule, but it is considerably more difficult now, with a more globalized and informed society and a new constitution that emphasizes human rights.

They are nevertheless determined to roll back these gains and fatally damage the constitution. First it was the media, with a bill that proposed to create a government tribunal to regulate, fine and even suspend independent journalists. After a massive outcry, President Kenyatta said he would not sign it and promised alterations that would make it fair and constitutionally acceptable. But the alterations he made were even worse!

Then they took aim at civil society. Targeting foreign funding is an effective way to silence civil society, both in Kenya and elsewhere. There is no widespread culture of philanthropy, and poverty remains widespread. Moreover, business, which is the traditional alternative to state and foreign funds, is tightly linked to the state. Few businesses want to cross paths with the regimes in power, leaving foreign funding as the backbone for all NGOs.  

A cynical play for popular support

One disturbing aspect of the campaign to force this law through was the playing of the “anti-imperialism” card, never mind that those using it are totally wired with the West. Civil society was already being referred to as “evil society,” and Kenyans working in the human-rights sector  increasingly depicted as foreign lackeys. Critics, particularly on social media, resort to crude imagery, depicting rights leaders as traitors and money scavengers chasing foreign cash. Of course they make no mention of the fact that foreign funds keep millions alive and healthy, and have brought a high degree of consciousness through civic education.

This red herring argument is an issue throughout Africa and in other developing countries.

A somewhat muted example of this poisonous tack appeared in the Nov. 26 edition of the Daily Nation, Kenya’s largest newspaper. In an editorial, the paper wrote “If some NGOs behave as if they are acting at the behest of foreigners, then they cannot expect easy accommodation by governments.” This is a publication – majority owned by a foreigner – that earned its reputation through fearless reporting stretching back to 1960. Suddenly, it was defending legislation designed to kill off the NGO sector.

Worse yet, the paper intimated that democracy, human rights, accountability, freedom of association and a host of other issues advocated by “some NGOs” are “foreign” values. How insulting to every Kenyan citizen. These rights are universal rights, and embedded within our own constitution. How can it be “un-Kenyan” to stand for them?

Part of the right to freedom of association is the right to solicit, receive and utilize resources. Any attack on that right is a full frontal assault on democracy. It doesn’t matter whether the money comes from home or abroad. There is no legal or logical basis for this distinction, as the for-profit sector has shown.

The way forward

Kenya dodged a bullet this time, but Ethiopia did not. Meanwhile, the clock is ticking in South Sudan and Zambia. Saddened as I was to see Kenya reach this point, our experiences may be instructive. 

The first lesson from Kenya is that we must resist anachronistic anti-colonial politics designed mainly to destroy democracy and dissent. We need to use the language of human rights as a universal standard, and move towards a rights-based approach to development, rather than a results-based one. Kenya’s proposed PBO amendments ran counter to national and international law, and it is not unpatriotic to point this out. Nor is it unpatriotic for civil society to enlist international partners to help fight this battle. Often they are best situated to protect civil society in places where it is fragile, and where their contribution to the national budget is significant.

We must also resist the suggestion that ordinary citizens somehow don’t deserve an independent civil society, and that their leaders somehow know better. It is abusive to suggest that this sort of state paternalism is part of someone’s “culture.” These arguments are the refuge of dictatorial regimes.  

The prevailing international funding cycle paradigm must also be re-imagined. Annual proposals with quarterly reports may work in environments that are enabling, but in those that are not, they create more problems than solutions. It is time to move toward “investment funding”, especially for civil society groups that are most at risk. This can enable them to survive threats and gives them a financial foundation to build on. This is not a new idea: it was prevalent during the Cold War—from both sides. We may need to see the war against civil society as a new cold war.

And we must do a better job of educating people about the breadth and depth of civil society. It is not just about big international NGOs. Civil society is also grassroots groups, local preservation societies, human rights groups, and, more than that, it is any group of people that comes together to work for the common good, to improve their community or to hold their leaders accountable. And it is time that these groups worked together closely, linking up their functions to create synergy so that health care providers, for instance, work with accountability groups to avoid a narrow “charity” mentality and move into one informed by human rights.

Civil society is possibly the best mechanism we have to ensure pluralism, broadmindedness, tolerance, civic participation, and democracy. It is not just a single voice, it is a chorus. If the government silences this chorus, they will have taken away people’s autonomy. And it is never treasonable to defend this right. 

About the author

Maina Kiai is the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association. He has more than 20 years experience working in civil society and human rights in Kenya, Africa and globally.

Maina Kiai es el Relator Especial de las Naciones Unidas sobre el derecho a la libertad de reunión pacífica y de asociación. Cuenta con más de 20 años de experiencia de trabajo con la sociedad civil y los derechos humanos en Kenia, África y el mundo.

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