OPEN LETTER THE STATUTE LAW (MISCELLANEOUS AMENDMENTS) BILL, 2013: WHY IT IS A BAD LAW FOR THE COUNTRY AND WHY KENYA’S CIVIL SOCIETY ORGANIZATIONS WILL RESIST IT Members of the CSO Reference Group, a network of civil society organisations (CSOs) working in a wide range of arenas for the public benefit across the country, are deeply disappointed with the recent publication, by the Attorney-General of the Republic of Kenya, on October 30, 2013, of the Statute Law (Miscellaneous Amendments) Bill, 2013 and particularly of the proposed amendments to the Public Benefit Organisations (PBO) Act, 2013. The Bill seeks, amongst other things, to amend parts of the Act (No. 18 of 2013), popularly known as the PBO Act, a progressive legislation that the 10th Parliament passed before the March 2013 General Elections. CSOs have played a critical role in promoting and delivering socio-economic development, promoting social justice, good governance and democratic development, rights of participation, fundamental rights and freedoms and a wide variety of other outcomes for the benefit of Kenyans. The Statute Law (Miscellaneous Amendments) Bill proposes among other things to cap external funding of PBOs to not more than fifteen percent of the total funding. If passed and implemented, the Bill will have serious negative impacts on Kenya’s social and economic development. It will not only constrain the civil society’s contribution to national development but also make the attainment of socio-economic rights that much more difficult. If one looks at the fact that civil society contributes over KSh 100 billion to the economy, employs more people than the manufacturing sector per capita, benefits millions of Kenyans throughout the country and especially the vulnerable and marginalized amongst others, it is difficult to see how the Jubilee government will achieve many of its campaign promises, let alone Vision 2030. Since September 2009, the CSO Reference Group has mobilized, informed and consulted widely on the reform of the NGO Act and provided recommendations on the development of the new PBO Act. The Reference Group sincerely appreciated the spirit of cooperation afforded by the government, Parliamentarians and other stakeholders in the formulation and passing of the PBO Bill into law. The PBO Bill was the product of a foresighted Member of Parliament, the Hon. Sophia Abdi Noor, who consulted representatives of the country’s development sector, key government departments like the Non-governmental Organizations Coordination Board, and led the development of a new law that was not only in conformity with the Constitution of Kenya, 2010 but was also reflective of a shift in government-civil society relations. The Statute Law (Miscellaneous Amendments) Bill’s proposed amendments to the PBO Act are ill advised, unconstitutional in their overall scope and content, and brazenly undermine the spirit of the PBO Act. Consequently, they should be re-drafted before the Bill is tabled in the National Assembly. With the publication of the amendments, the overarching objectives of the Act are under jeopardy. Key among these have been: 1. The re-birth of a sector guided by national values and principles, and upholding high standards of accountability and transparency, in the pursuit of the public benefit; Page 1 2. The meaningful protection of the freedoms of association, expression and assembly, which would enable individuals and groups to freely pursue their goals, in collaboration with others for the benefit of Kenyans; 3. The re-structuring of the legal and institutional framework for self-regulation, in order to ensure that the sector governs itself more effectively and engenders public trust; and 4. The facilitation of principled and constructive collaboration between the Government and Civil Society to address the numerous complex challenges facing society today. The overall thrust, content and import of the proposed amendments is to place the country’s civil society under even tighter control of the state than was the case for CSOs under the infamous Nongovernmental Organizations Co-ordination Act (No. 19 of 1990), which the PBO Act repealed. That this is happening even before the Cabinet Secretary responsible for Planning and National Development gives the PBO Act a commencement date, and while the necessary regulations had been drafted and were under discussion with representatives of the civil society, is clearly a set-back to an otherwise positive policy process. It is common knowledge that the latest set of amendments are a narrow-minded attempt at restricting the activities of a few organizations that have rubbed the new administration the wrong way, and are therefore excessively disproportionate in their overall scope. Granted, the relationship between civil society and the state will not always be smooth, especially because of the former’s oversight and demand-based work. However, there is no reason why there should not be a structured, functional relationship based on shared development goals and other principles. To design legislation that aims to punish a few, whatever the state’s impression of the utility of their work, and then end up debilitating an entire sector is something the state would be well-advised to avoid. Because of the foregoing, it should be abundantly clear that civil society will resist these latter-day attempts to stifle the sector and shrink Kenya’s hard-won democratic space vigorously. Kenyan civil society is aware of the risks of working in an illiberal environment, where the state determines what can or cannot be done, and the fact that the Kenyan state has borrowed from regional and international worst practice with respect to the latest amendments. It is also aware that this latest move is part of a broader scheme to generally restrict the exercise of rights, including the freedoms of expression and association. It will therefore mobilize effectively to resist these attempts and strive for a meaningful development partnership with the state under-pinned by respect for rights and freedoms rather than subservience to the state. As long as CSOs do not break the law, they should be allowed to operate freely in the multiparty democratic society that the Constitution proclaims Kenya to be. Page 2