NGOs jittery about Public Benefits Organisations Act

What you need to know:

The relationship between local NGOs and the government has always been characterised by mutual suspicion.
There is suspicion that MPs can support any move to water down the PBO Act, particularly those provisions that allow PBOs to engage in public interest litigation and advocacy.

The recent appointment and subsequent swearing in of the Cabinet secretary for the Ministry of Planning and Devolution Anne Waiguru has set the stage for the coming into force of the Public Benefits Organisations (PBO) Act, 2013.

The PBO Act is one of the legislations passed by the 10th Parliament just before its term lapsed in January 2013.

The law provides for the establishment and operation of public benefits organisations, previously known as non-governmental organisations (NGOs).

Once the commencement date of the law has been gazetted, we will have a new legal regime in which non-state actors previously operating under the NGO Co-ordination Board will henceforth operate.

New ministry

Unlike in the past, the administrative and regulatory framework for public benefits organisations has now been placed under the Ministry of Planning and Devolution.

But ever since the law was enacted, and as the clock ticks towards its coming into force, anxiety has gripped a number of local and international civil society groups operating in Kenya.

The relationship between local NGOs and the government has always been characterised by mutual suspicion. Indeed, the first local NGOs like the Kenya Human Rights Commission (KHRC) had to be incorporated abroad before gaining acceptance locally.

Page 65 of the Jubilee manifesto has this curious provision: “The Jubilee Coalition government will introduce a Charities Act to regulate political campaigning by NGOs to ensure that they only campaign on issues that promote their core remit and do not engage in party politics. This will also establish full transparency in funding both for NGOs and individual projects.”

It is also not lost on keen observers that senior Jubilee government officials may not be happy with a number of NGOs that have been in the frontline supporting the International Criminal Court in its efforts to bring hold to account those responsible for the 2008 post-election violence.

More recently, local NGOs have rubbed Members of Parliament the wrong way with their open and highly publicised support for the Salaries and Remuneration Commission, which has reduced salaries for the MPs.

There is suspicion that MPs can support any move to water down the PBO Act, particularly those provisions that allow PBOs to engage in public interest litigation and advocacy.

For starters, the new law defines a public benefit organisation as a voluntary membership or non-membership grouping of individuals or organisations engaged in public benefit activities in any or a combination of the following: legal aid, agriculture, rights and welfare of children, culture, working with or for persons with disabilities, energy, education, environmental conservation, gender issues, governance, poverty eradication, health; housing and settlement, human rights and HIV/Aids.

Other areas spelt out in the law that have traditionally been of interest to voluntary organisations and in which a PBO can engage in include information, informal sector, old age, peace building, population and public health, refugees, disaster prevention and preparedness, provision of relief services, pastoralism and marginalisation, sports, water and sanitation, animal welfare and the youth.

Section 5 (2) of the Act clarifies that trade unions, political parties, religious organisations devoted to worship, co-operative and Sacco societies, micro-finance institutions and community-based organisations whose objectives include the direct benefit of members shall not be PBOs.

While the general public has always assumed that any civil society organisation operating in Kenya is registered as an NGO, the reality is that there have been various modes of registration for the many outfits.

A number have in the recent past seemed to prefer registering as trusts with the Ministry of Lands while some are registered as societies or better still, as non-profit making companies.

Double registration

The PBO Act provides that “no organisation registered under any other law in Kenya shall be registered under this Act while its registration under that other law subsists”.

For instance, when an organisation registered as a trust applies for registration under the PBO Act, this shall render invalid its previous registration under any other law.

The law establishes the PBO Authority, taking over the roles and powers of the NGO Coordination Board. The authority shall have a board comprising a chairperson and a vice chairperson; three other members and a host of principal secretaries from relevant government ministries.

The chairperson of the Federation of Public Benefits Organisations — the new umbrella body for all PBOs that will take over the role of the National Council of NGOs — shall also sit on the board.
International organisations intending to operate in Kenya shall also be required to apply to the authority for a certificate to operate in the country.

The authority can chose to exempt the organisation from registration, particularly in emergency cases or where an organisation does not intend to directly implement its activities or programmes in Kenya.

There have been concerns as to what happens to local and international organisations already working in Kenya before the effective date of the new law.

Though a great deal of these concerns are likely to be addressed through provisions in the regulations, provisions of Section 7 (b) empowering the authority to bestow the status of a public benefit organisation should be brought to bear on such situations so that organisations already registered are not harassed unduly.

Suba is the co-ordinator of the National Civil Society Congress. Email: [email protected]