5 January 2016

Kenya: Think Again - Civil Society in Kenya Is Down, but Not Out

analysis

Kenyan non-governmental organisations (NGOs) head into 2016 facing a deeply uncertain future as their government intensifies its effort to crack down on an independent civil society. Between administrative harassment, legislative hurdles and a public campaign to tarnish their reputation, many NGOs are finding it harder and harder to perform their core function of holding the government to account.

The civil society sector in Kenya has long been one of Africa's bravest and most vocal, and a model for others on the continent. The proliferation of effective NGOs in the country has placed civil society at the heart of efforts improve governance, but it has also, at times, put NGOs in direct conflict with the government.

The most serious example of this - the situation that precipitated the current uneasy atmosphere - is the prominent role played by NGOs in facilitating justice for the 2007-2008 post-election violence, which left more than 1 100 people dead.

When Kenyan authorities showed little sign of taking action against the perpetrators, NGOs led the calls for the matter to be referred to the International Criminal Court (ICC). These NGOs have since been vocal in demanding that Kenya cooperate and fulfil its legal obligations to the court.

Their concerns only grew louder as two of the individuals implicated, Uhuru Kenyatta and William Ruto, ran for Kenya's highest office, and won. They are now president and deputy president, respectively, and have spent much of their first term contesting the charges. ICC prosecutors dropped the charges against Kenyatta in December 2014, complaining that Kenya had blocked the case by not cooperating with the investigation.

Kenyatta's administration has not forgotten civil society's role in its troubles with the ICC, and has returned the favour by making life very difficult for NGOs in an effort to diminish civil society's influence.

'The atmosphere has been that of apprehension and suspicion, with civil society increasingly becoming apprehensive and suspicious that the Jubilee administration of President Kenyatta is aiming at closing the space,' said Otsieno Namwaya, Kenya researcher for Human Rights Watch.

'The government on the other hand has been very hostile towards NGOs, and particularly the human rights discourse, accusing them of promoting foreign interests. Because of this, the Jubilee party had made it very clear it would seek to control NGOs when it comes to power. To most people, this seems to be what Jubilee is doing.'

There are three main elements to this crackdown. The first, and most effective in the short term, is using the NGO Coordination Board - the state body that registers and monitors all NGOs - to threaten the existence of some NGOs. This is achieved by deregistering some NGOs, or threatening to do so - sometimes for spurious reasons.

Most recently, in October, the board threatened to deregister an incredible 959 NGOs for various reasons, including alleged misappropriation and embezzlement of donor funds, diversion of donor funds, undeclared foreign funding, money laundering and terrorism financing. The list included highly respected NGOs, such as the Kenyan Human Rights Commission (KHRC).

Although the notice of deregistration against these 959 organisations has since been suspended, it has not been cancelled. It hangs like a sword of Damocles over the NGOs implicated, who know they could be shut down at any moment.

'At first, when this happened in December 2014 and April 2015, it looked like the pattern was to target human rights NGOs that have been at the forefront of documenting human rights abuses in the government's counter-terrorism campaign,' said Namwaya. 'With the inclusion of KHRC in the October list, it looked like this pattern was being maintained. But the October decision was also very confusing, as there were also very respected humanitarian organisations on the list. Government has tended to target mainly governance organisations, as opposed to humanitarian ones.'

The second prong of the government's crackdown on NGOs is to undermine proposed new legislation that governs the operation and funding of NGOs.

The original bill, known as the Public Benefits Organisation Act, was designed to help NGOs fulfil their function, but successive amendments introduced by the government will have the opposite effect. Most notably, the government has been pushing hard for a 15% cap on foreign funding of NGO budgets, which would cripple many NGOs.

'Despite NGOs calling for the Public Benefits Organisation Act to be enacted in its original form, it's still unclear whether the government will listen to these requests or go forward with amending the Public Benefits Organisation Act. This now two-year saga of amendments has placed a cloud of dread over the civil society of Kenya,' said analyst Akshan de Alwis for The Diplomatic Courier.

Finally, the government is also trying to turn public opinion against NGOs by repeatedly linking them with terrorist activity. 'NGOs are painted extremely negatively in the face of the public.

The narrative is that NGOs are not patriotic; they go to the West to look for money, they deploy this money for their own selfish ends, they are not using it for the public, they are not accountable to anybody, they are using that money to support terrorist and criminal activity. So public sympathy is increasingly in favour of the government's negative perception of civil society in Kenya,' said Peter Aling'o, a senior researcher at the Institute for Security Studies in Nairobi.

This three-part plan to crush civil society may sound familiar to citizens of other African countries, but not to Kenyans, said Aling'o. 'Ordinarily, governments appreciate the value that comes from civil society and try to protect that space - at least governments that claim to be democratic like Kenya. It is a different ball game completely in a country like Ethiopia, but for a country like Kenya that boasts a new constitution and prides itself on citizen engagement, it is extremely surprising.'

Aling'o added, however, that civil society may be down, but it is far from out. 'Civil society remains vigilant, and are not going to give up. The good thing about civil society in Kenya is that they are so resilient, so vibrant, and nothing can stop them. I don't think that any attempt by President Kenyatta to close the civil society space will succeed,' he said.

Simon Allison, ISS Consultant

Kenya

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