Shadow Report - Sofia Abdi Task Force

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CSO Reference Group (CSORG) Shadow Report On Sophia Abdi Task Force

ON SOPHIA ABDI TASK FORCE

ON PBO ACT 2013 AMENDMENTS

The Civil Society Reference Group (CSO-RG)

SHADOW REPORT

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List of Abbreviations

CBOs Community Based Organizations

CIDP County Integrated Development Plan

CS Chief Secretary

CSOs Civil Society Organizations

CSORG Civil Society Organizations Reference Group

DFID Department for International Development

GOK Government of Kenya

ICC International Criminal Court

INGOs International Non Government Organizations

IDPs Internally Displaced persons

KANU Kenya African National Union

NANGOS National Non Government Organizations

NDI National Democratic Institute

NGOs Non-Governmental Organizations

PBO Public Benefit Organization

PBOS Public Benefit organizations

PEN Poverty Eradication Network

PEV Post Election Violence

UNDP United Nations Development Programme

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Abbreviations ................................................................................................................................................ ii

A: PREAMBLE ................................................................................................................................................ 1

B: SOPHIA ABDI TASK FORCE ........................................................................................................................ 1

C: WAY FORWARD PBO ACT 2013................................................................................................................. 3

D: PUBLIC PARTICIPATION ............................................................................................................................ 5

E: OPERATIONAL CONTEXT OF PUBLIC BENEFIT ORGANISATIONS ............................................................... 7

F: REGULATION & SELF REGULATION OF PUBLIC BENEFITS ORGANISATIONS ............................................. 8

G: PUBLIC BENEFIT ORGANISATIONS REGULATORY AUTHORITY ................................................................. 9

H: NATIONAL FEDERATION OF PUBLIC BENEFITS ORGANISATIONS ........................................................... 10

I: REGISTRATION OF PUBLIC BENEFITS ORGANISATIONS ........................................................................... 11

J: TRANSPARENCY AND ACCOUNTABILITY .................................................................................................. 13

K: NATIONAL SECURITY ............................................................................................................................... 14

L: FUNDING & TAX INCENTIVES .................................................................................................................. 15

M: ENABLING ENVIRONMENT .................................................................................................................... 16

N: PUBLIC BENEFIT ORGANISATIONS ACT 2013.......................................................................................... 17

O: AMENDMENTS OF THE NON GOVERNMENTAL ORGANISATIONS COORDINATION BOARD ................. 19

P: TASKFORCE REPORT ............................................................................................................................... 21

Q: CONCLUSIONS AND RECOMMENDATIONS ............................................................................................ 22

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A: PREAMBLE

1. The Public Benefit Organizations Act 2013 was passed by Parliament in 2012 and assented into

law on January 14th, 2013 by the then President Mwai Kibaki. This law provides for the establish-

ment, operation and regulation of Public Benefits Organizations (PBOs) currently referred to as

NGOs. Once in force, the new law is supposed to repeal and take over the place of the Non-

Governmental Organizations Coordination Act of 1990. The PBO Act holds the sector to public

disclosure of information and transparency standards and also facilitates collaboration between

the Government and PBOs; ensuring leadership standards in the sector are aligned with Chapter

6 of the Constitution of Kenya on leadership and integrity. It also creates room for PBOs to en-

gage in income generating activities, provided that proceeds are ploughed back into an organiza-

tion.

2. However, since the PBO Acts assent into law, its implementation has stalled following the coming

into power of a new government in the 2013 general elections. The new government under Presi-

dent Uhuru Kenyatta has since sought to amend the law even before it comes into force. The first

attempt to amend the law came in 2013 whereby 13 amendments, most of them draconian and

aimed at crippling the voluntary sector were defeated on the floor of Parliament after the CSO

Reference Group (CSO-RG) and other groups sympathetic to the cause campaigned against those

proposed changes to the legislation.

3. Another attempt is the 2014 joint memo by the Ministry of Devolution and Planning. These latest

amendments are 54 in total and have the potential to completely mutilate not only the PBO Act

but cripple PBOs; undermine the Constitution and gains made in the last decade; and hence un-

dermine critical service delivery to Kenyans. Analysis by the CSO-RG shows that 32 of the 54 pro-

posed amendments are harmful and change the letter and spirit of the PBO Act and go against

relevant provisions of the Constitution. Sixteen of the 32 harmful amendments have the capacity

to destroy and cripple the sector altogether. They include the provision that PBOs that will raise

more than 15 per cent of their annual budgets from outside the country be categorized as foreign

organizations. Other proposed amendments require all PBOs, including Community-Based

Organizations operating on small budgets to publicize their financial reports in two national

newspapers every financial year, and in default, risk deregistration.

B: SOPHIA ABDI TASK FORCE

1. In the wake of these proposed amendments to the PBO Act 2013, the Government under the

Ministry of Devolution and Planning put in place a Task Force headed by Sofia Abdi to have public

hearings on the amendments. The PBO taskforce was gazetted on 7th of November 2014 and in

line with the Constitutional requirement of public participation set up a series of public meetings

in diverse regions in the country to collect views from stakeholders on the proposed amendments

to the Act. These included the public; PBOs; community/neighborhood associations; the private

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sector; religious bodies; professionals, donors and diplomatic corps. The intention was that all these

stakeholders would give their opinion on the PBO Act and how they would want it to be implement-

ed as it has not yet been put into operation.

2. The taskforce held public sittings between the months of January and March 2015 in central loca-

tions to cover the entire 47 counties. These were Nakuru, Mombasa, Meru, Garissa, Nyeri, Eldoret,

Kitui, Kakamega and Kisumu.

3. Members of the Taskforce included Sophia Abdi as Chair accompanied by the following members:

a. Jennifer Shamalla

CSO Representatives in a serious dialogue over PBO Act 2013 in December 2014

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b. Gerald Macharia

c. Fazul Mahamed Yusuf

d. Sarah Muhoya - League of Women Voters

e. A representative from the Ministry of Interior and Co-ordination of National Government

f. A representative from the Non-Governmental Organizations Co-ordination Board

g. A representative from the Inter-Religious Council of Kenya

h. A representative from the National Council of Non-Governmental Organizations

i. A representative from the Civil Society Organizations Reference Group

j. A representative from the New Partnership for Africas Development/Africa Peer Review Mecha-

nism, Kenya

The following views and presentation were made to the Task Force:

C: WAY FORWARD PBO ACT 2013

1. The Public Benefits Organisations Act 2013 (PBO Act) received presidential assent on January 14th

2013 but has yet to be commenced via gazettement. In their submissions, stakeholders commented

on proposed amendments to the PBO Act as follows:

2. Proposed amendments to the Act disproportionately impact civil society in the democratic govern-

ance sector and are an affront to democratic freedom in Kenya. They are inconsistent with the spir-

it of the Constitution of Kenya 2010 and rollback constitutional gains by limiting freedom of associa-

tion as enshrined in Article 36, Constitution of Kenya. Proposed amendments were said to mirror

the Ethiopian approach, which has had the effect of killing civil society in the democratic govern-

ance sector of Ethiopia.

3. Proposed amendments were also said to have a detrimental impact on devolution as they dispro-

portionately impact PBO operations at county level denying county governments much needed

support particularly in civic engagement and accountability. Additionally, that proposed amend-

ments infringe on the mandate of county governments as espoused in the Constitution of Kenya on

public participation and community coordination.

4. A call was made not to introduce any amendments that go against the letter and spirit of the PBO

Act 2013 and the Constitution of Kenya 2010.

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5. Two positions were submitted on the com-

mencement of the PBO Act, one to immedi-

ately commence the PBO Act as is without

amendments and the other to amend the law

prior to commencement.

6. On the call for immediate commencement, it

was submitted that the continued lack of

commencement falls short of constitutional

best practice which states that a law comes

into force on the fourteenth day after its pub-

lication in the Gazette. Also, that lack of com-

mencement is not fair administrative action

(i.e. expeditious, efficient, lawful, reasonable

and procedurally fair) as provided for in the

Constitution of Kenya 2010. Furthermore, that

it has been impossible for the sector, members

of the public and; national/county Govern-

ments to benefit from the impact and changes

that the law seeks to bring.

7. Finally, that immediate commencement would

enable a proper evaluation of the successes and

shortcomings of the Act before any proposals

for its amendment can be made.

There has been a wide consultation on PBO Act: CSO leaders updates the media on the PBO Act and the reason why they

are calling for full implementation and the challenges of the ongoing amendments in December 2014

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D: PUBLIC PARTICIPATION

1. On the call for amendment prior to commencement, it was submitted that the PBO Act did not under-

go sufficient public participation. In this regard there were calls for wider public participation and input

into the Act prior to commencement, a process that was achieved to some degree through the Sophia

Task Force Process. It was however noted that the PBO Task Force process undermined principles of

inclusiveness and public participation as per Article 10 of the Constitution of Kenya.

2. The taskforce was said to have failed to provide timely access to crucial information on dates/venues

of the meetings in adequate time, and through media with wide circulation. Furthermore, there was a

failure to make available a compilation of amendments that have been proposed so far to the PBO Act

to facilitate informed deliberations and presentations.

Our Stand: A woman gives her views to the task force in Garissa County. The Task Force Consulted Widely

and received views from many groups included women, youth, Persons With Disabilities, CSO and Faith

based Organisations.

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3. Generally, it was also noted that more public awareness and participation on the Act was needed.

4. In addition submissions called upon the taskforce to: Consult with Commission of Revenue Alloca-

tion (CRA) with a view to establishing the nexus between the work of PBOs and the impact on de-

velopment if a 15% cap on foreign funding proposal is made law.

5. Consult with Members of the National Assembly and Senate to assess the desirability or otherwise

of proposals to the PBO Act 2013. This was said to be proposed because members of parliament

represent areas where large segments of the population still depend on the work of local, national

and international NGOs not just for development but livelihoods as well.

6. Proposals were also submitted for the development and circulation for public consultation of draft

rules and regulations for implementation of the law.

Experts too had an opportunity to air their views in April 2015, and strongly recommending upholding the initial Act that was

signed into law by the President in 2013. If there are amendments , they should not remove the spirit of the law but rather

strengthen it.

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E: OPERATIONAL CONTEXT OF

PUBLIC BENEFIT ORGANISATIONS

1. Various submissions were made citing exam-

ples of the operational context of Public Ben-

efit Organisations (PBOs). Highlighted below

are the submissions on strengths, weakness-

es, misconduct, challenges and gaps.

2. Strengths mentioned included the role of

PBOs in providing oversight and vigilance on

the implementation of the Constitution; their

key contributing sector to Kenya's develop-

ment and governance milestones; humanitar-

ian and development assistance in areas

where State and private actors do not provide

the same and technical and livelihood sup-

port for special interests groups, e.g. women

and youth.

3. Weakness mentioned included duplication of

activities and saturation of programs with

overlapping objectives; inadequate transpar-

ency and public accountability and weak gov-

ernance and succession planning.

4. The biggest threat included failure to submit

audited accounts at all or within stipulated

timelines, falsifying financial and activity doc-

uments; misuse of funds as well as Criminal

activities including threats to national security

and human trafficking and 'briefcase PBOs

purporting to be supporting communities and

development .

5. Gaps were also cited in enhancing enabling

environment. These included inadequate con-

sultation with communities on program de-

velopment; weak linkages between donors

and PBOs for a devolved engagement ap-

proach; disparity between activities and im-

pact of activities in communities and assis-

tance to some special interest groups are

under prioritized - particularly cited were

persons living with Albinism, widows, elder-

ly persons and marginalised groups in arid

and semi- arid areas.

F: REGULATION & SELF-

REGULATION OF PUBLIC BENEFITS

ORGANISATIONS

1. Submissions emphasized the importance of

attaining the critical balance of preserving

the work and independence of PBOs, with

the need for increased accountability and

transparency in regulation of PBOS. Further

emphasized was the need to safeguard an

enabling environment for the work of PBOs

PBO Act 2013 according to many presenters is a very pro-gressive from 1990 NGO Act that has governed the sector

for many years and it is important that it is fully imple-mented if the sector has to fulfill its mandate and the val-

ues that the Act is enhancing.

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and their complementary role to Govern-

ment.

2. The need to promote a culture of self-

regulation by PBOs to complement the

efforts of the National Federation of Pub-

lic Benefits Organisations was under-

scored. A culture of self-regulation by

PBOs was said to advance more effective

operations of PBOs and better delivery of

goals. An existing PBO peer review and

award self-regulation mechanism was

presented as an example of self-

regulation efforts and frameworks.

3. Regulation standards, frameworks and

guiding principles cited in submissions

were international, regional and national.

The Universal Declaration of Human

Rights (UDHR) and the International Cove-

nant on Civil and Political Rights (ICCPR)

enshrine the freedom of association, in-

cluding the right to form and operate or-

ganizations. Both of these legal instru-

ments were noted to establish that any

restriction on the freedom of association

must pass a three-part test: they must be

1) prescribed by law; 2) necessary in a

democratic society;3) pursue specified

legitimate aims.

4. Regionally, the African Charter on Human

and Peoples Rights and the African Char-

ter on Democracy, Elections and Govern-

ance were cited and noted to use similar

language to describe the right to freely

associate at the regional level. On the na-

tional level, Article 36 of Kenyas 2010

Constitution was cited as enshrining the

right to freedom of association. Lastly,

was Sessional Paper No. 1 of 2006 on

Non-Governmental Organisations , which strongly

supported self-regulation.

Earlier governors had given their views. Governor Cheruiyot of

Kericho County, I will put my vote against these amendments when time comes. These amendments, especially the 15% capping

on foreign funding are illegal and unconstitutional

Why such a law in our age? If president Moi did not introduce such a law, why now? These amendments go against the

spirit of the Constitution. It is illogical to criminalize the en-tire sector because of misdeeds of a few: Governor Rutto,

Bomet County and Chair, Council of governors in an earlier discussion.

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G: PUBLIC BENEFIT ORGANISATIONS REGULATORY AUTHORITY

1. The following submissions were made with regards to the Public Benefit Organisations Regulato-

ry Authority (The Authority).

2. Appointment of members of the Board: To safeguard the independence of the Authority, retain

judicial and parliamentary oversight on appointments of members to the Board of Authority. The

appointment of Director General should be by the Board of Authority. Submissions were also

made against proposals to vest appointment powers in the President to appoint the Chairperson

of the Board of the Authority and the Cabinet Secretary to appoint and remove the Director Gen-

eral.

3. A proposal was also made to remove the existing requirement in the PBO Act for a selection com-

mittee comprised of representatives of PBOs for purposes of considering applications, interview-

ing and short listing qualified for appointment as members of the Board.

4. Sector representation in the Board of the Authority: Two positions were submitted on the sector

representation on the Board via representatives of the sector as members of the Board. One po-

sition called for the retention of existing sector representation as provided for the in the PBO Act.

This was proposed to safeguard the independence of the Board and ensure sector relevant en-

gagement by the Board. On the contrary, a position proposed removal of sector representatives

from the Board of the Authority and maintain sector representation in the Federation.

5. Devolved service delivery: Submissions were made with proposals to de-centralise the offices of

the Authority to have presence in each of the 47 counties or an office for a cluster of counties.

6. Funding of the Authority: It was proposed that a percentage of PBOs income be paid to the Au-

thority to assist it to ensure effective regulations, transparency and accountability. Two proposed

percentages were submitted, either 5% or 10% of PBO income should be submitted to the Au-

thority.

7. Protection of assets: The Authority was said to require more prominent role in protection of as-

sets held by PBOs upon deregistration.

8. Powers of the Authority: The powers of the authority should be increased to allow the authority

to freeze bank accounts of organisations as well as blacklist rogue PBO officials.

9. Transition: Three positions were submitted on transition: One that the transition of the NGO Co-

ordination Board as provided for in the Act should be retained; the second that the provision

providing for the transition of the Board should be deleted; third, that the Board should only

transition for a period of time until a Chairperson of the Authority is elected, after which a new

Board should be constituted.

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10. Capacity Building: The Authority should

capacity build national PBOs especially

those in rural areas on leadership, man-

agement and resource mobilisation.

H: NATIONAL FEDERATION OF

PUBLIC BENEFITS ORGANISA-

TIONS

1. The following submissions were made

with regards to the National Federation of

Public Benefits Organisations (The Federa-

tion).

2. Independence: No executive representa-

tion or control in the Federation

3. Membership: Proposals were submitted

that membership to the Federation

should be compulsory. Other proposals

stated that membership to the Federation

should be optional in line with Article 36

of the Constitution.

4. Powers: Empower the Federation to di-

rectly propose 50% of nominees to the

PBO Authority and; grant powers to audit

reward and/or punish PBOs.

5. Devolved service delivery: Devolve the

Federation to counties by creating County

PBO Federation Forums.

6. Funding: It was proposed that the Gov-

ernment fund the Federation. Proposed

County PBO Forums should be supported

by Government by allocating 2% of the

County Revenue collection to them.

7. Transparency: Federation should provide an online

platform for promotion of transparency and ac-

countability in respect to grants.

8. Transition: Some submissions recommended the

transition of the National Council for NGOs (NGO

Council) to the Federation while others recom-

mended a fresh leadership be constituted under

the Act with no transition of the Council.

9. Whistle blower protection: The Federation should

offer adequate protection for whistle blowers.

10. Capacity Building: NGO Council should capacity

build national NGOs especially those in rural areas

in leadership, management and resource mobilisa-

tion.

11. Coordination and Linkages: Federation officers

should not duplicate the work of Social Develop-

ment Officers, Assistant County Commissioners

and Chiefs in terms of oversight of PBOs and re-

porting.

Governor Cheboi of Baringo County (right): The 15%

cap on foreign funding to PBOs as presented in the amend-

ments is a killer. To many of us in Arid-lands it is like cut-

ting the hand that feeds us. He spoke for many poor commu-

nities, who cannot access vital services without the support

of Civil Society

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I: REGISTRATION OF PUBLIC BENEFITS ORGANISATIONS

1. On registration processes as a whole, it was submitted that organizations currently registered under

the NGO Coordination Act 1990 should automatically be considered registered under the PBO Act

when it comes into force. No further burden should be placed on PBOs to register afresh under the

PBO Act.

2. Submissions both supported and rejected proposals to register all charitable institutions under one

regime. It was further proposed in the case of a one regime registration, that a grace period for reg-

istration of organisations under different regimes be granted.

Civil Society itself has had its share of challenges and although there was consensus that the sector must puts its house together, there

was a rousing consensus that the PBO Act 2013 provide adequate proposals on how to curb myriad challenges facing the sector

including the importance of self regulation , transparency and accountability to its stakeholders. CSOs actors in an earlier engagement

on the PBO Act.

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3. In submissions in support of voluntary migra-

tion under the Act, it was submitted that the

Act was conceptualized as a voluntary regis-

tration framework and that, an unintended

consequence of compulsorily forcing the sec-

tor to migrate to a new law could lead to the

loss of millions of shillings. 'Compulsory mi-

gration' to a new legal regime will attract a 4%

stamp duty on all non-movable assets and re-

al estate.

4. It was submitted that procedures for registra-

tion of PBOs remain clear and leave no room

for arbitrariness. Terms and conditions for the

grant of certificates of registration, permits of

operation and public benefits organisation

status should be clearly defined in rules and

regulations to ensure they are not selectively

and arbitrarily applied. This was noted as be-

ing important to ensure that freedom of asso-

ciation is not jeopardized.

5. It was proposed that the power to make

terms and conditions for registration of PBOS

should be vested in the Cabinet Secretary and

not the Authority. The Cabinet Secretary is

then proposed to gazette regulations on the

same.

6. A single registration regime for all organisa-

tions and entities doing public benefit activi-

ties was proposed and indicated to require

the amendment of the Companies Act, Trus-

tees Act, Societies Act and any other law that

registers charitable institutions. This proposal

was opposed by other submissions which sup-

ported multiple registration regimes for PBOs

based on their objectives and nature of opera-

tions.

7. Also cited was the high financial detriment by

way of a 4% stamp duty on all non-movable

assets and real estate to some PBOS if com-

pelled to change legal identity as proposed.

Proposals were further submitted to retain

provisions of the PBO Act that provide for vol-

untary migration to the Act based on cited in-

herent freedom to opt for best suited legal reg-

istration under freedom of association.

8. It was submitted that proposals to amend the

registration process to add an element of

'recognition' so that organisations must be

"registered and recognized" introduces a lack

of administrative clarity, operational uncertain-

ty, and possible confusion for both the Author-

ity and those seeking registration. Other sub-

Hon. Sophia Abdi Nur, Chair of the Task Force appointed by

Chief Secretary Devolution and Planning to get public views

on the amendments to PBO Act 2013, gives her views

during a Stakeholders Forum in Dec 2014.

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missions were made that if a provision for 'recognition" was added to the PBO Act, then clear and

foreseeable rules should be made to detail the process and status of "recognition."

9. In terms of activities, it was submitted that the Act should ensure that the registration status of PBOs

matches organisational activities and; ensure that PBOs revise Memoranda and Articles of Associa-

tion when their activities and focus changes.

10. On de-registration of PBOs by the Authority, it was proposed that this should be done in consultation

with the National PBOs Federation.

J: TRANSPARENCY AND ACCOUNTABILITY

The following submissions were made with respect to transparency and accountability:

1. Reporting: The Authority should publish an annual "State of the PBO sector" report to strengthen

PBO, State and public understanding and accountability.

Experts and development partners have also added their views. Representatives from Development partners (donors ) in

Kenya and Institute of fund raisers making their contributions in an earlier consultation.. We should not allow the sector to be

split into sectors or into bad or good classification. Such a split would make the work of development partners harder.

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2. Corruption: Expand the mandate of the Ethics and Anti-Corruption Commission to deal with corruption

in private sector and civil society.

3. Disclosure of information: PBOs should be made to disclose information pertaining to the objectives of

projects, timelines, allocated funds and source of funding. The Authority should then ensure transpar-

ency and compliance by publicly displaying key accountability documents including audited reports,

annual reports, plans and budgets.

4. It was further submitted that a proposal for the requirement of PBOs to publish their financial ac-

counts in two newspapers would place an undue burden on PBOs and should be deleted.

5. Review of PBOs: In the event of reasonable suspicion of mismanagement in a PBOs affair, the Auditor

General can be called upon to review the case and make recommendations.

6. Financial accountability: Enforce annual returns by a certified company secretary for NGOs with fund-

ing of over $100,000 a year to provide oversight, check concentration of power in governance struc-

tures and allow for perpetual and rational use of an organisation's resources. PBOs should also be re-

quired to conduct annual independent audit and have audit committees in place.

7. The establishment of a regulatory/governing institution was proposed to oversee the expenditure of

PBO funding to ensure that it is utilised for the same objectives it was raised for.

8. Financial capacity building: Establish accounting training program for both PBOs and donors.

9. Donor code of conduct: Donors should subscribe to a code of conduct for purposes of donations,

grants and sponsorship in order to cap corruption, insecurity and money laundering.

10. Penalties: Fines should be stipulated for failure to properly prepare and submit financial reports in re-

quired timelines. However, reporting requirements should not be burdensome as to constrain a PBOs

ability to conduct its activities.

11. Disposal of Assets: At the end of projects, disposal of assets should be monitored to ensure leaders are

not beneficiaries.

12. Classification: Sources of funding should not be used as a basis of classifying national and international

NGOs, other appropriate parameters should be used.

K: NATIONAL SECURITY

1. Consider representation of the Inspector General and Director General (NIS) on the Board of the Au-

thority to facilitate carrying out background checks on PBOs as well as handle any security matters that

may arise.

2. Create more offences in the Act to deal with PBOs that engage in criminal activities.

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3. Adopt measures to deal with PBOs that fund or engage in acts of terrorism, radicalization and human

trafficking.

L: FUNDING & TAX INCENTIVES

1. The following submissions were made with respect to funding and tax incentives:

2. Funding restrictions: PBOs note that their services and other engagement towards the development

and humanitarian landscape of Kenya was largely reliant on foreign funding. Furthermore that much

of this work and operations would have to cease if proposals to cap foreign funding are adopted. Any

restrictions to foreign funding on the PBO sector will jeopardize key partners in the Government's

capacity to deliver on the Medium Term Plan (MTP) and Vision 2030. Submissions were made

against a funding cap on foreign funding rather PBOs should be able to source all funds both locally

and internationally.

3. It was also submitted that the debate on a local funding requirement percentage should be subject to

debate. Should a percentage be set, it should be set depending on the size of the organisation with

larger PBOs required to raise more funds locally. This should be implemented on an incrementally

increasing basis to give organisations time to grow and strategize for local funding.

We the Women: A woman representative gives her views on what the law should reflect on women and other marginalized

groups. There were views that the sector must tame errand PBOs that misuse resources given to it on behalf of citizens.

Transparency and accountability is a must in creating an enabling environment for the sector.

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4. Basket funding: Proposals to require de-

velopment partners to channel funding

for public benefit organisations through a

single agency are unworkable based on

development partners policies. Such pro-

posed restrictions fall short of interna-

tional best practice.

5. Tax incentives and concessions: Retain

clauses in the PBO Act that promote phi-

lanthropy through tax incentives (Section

65 and Schedule 2). Additionally, that do-

nor funding should be taxed before it's

given to NGOs

6. Concessions: Provide a uniform system

for PBOs of benefitting from Government

concessions

M: ENABLING ENVIRONMENT

1. It was noted that sustainable develop-

ment of Kenya requires continuous and

structured involvement of PBOs and de-

velopment partners in the work of the

Government of Kenya. Government

should therefore foster an environment

where PBOs thrive and work together

with Government for Kenyans. The fol-

lowing submissions were made with re-

spect to an enabling environment:

2. Enabling environment: Retain obligation

on the State to provide an "enabling envi-

ronment for PBOs, "consult PBOs on pub-

lic policy," and "PBO participation except

through their representatives."

3. Freedom of association: Any future law

governing PBOs to comply with Articles

36 and 37 of the Constitution of Kenya on freedom of association and collective action

The Act must strong espouse self regulation as mantra. Self

regulation is not only a constitutional rights but also a

management standard world wide. Further more the 2006

sessional paper no. 1 on NGos is still prevailing governance

mechanism for NGOs in Kenya and the new Act must espouse this

principle.: Erastus Omolo of Erastus Howard and company in an

earlier presentation , a position which many CSO presntations

supported

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4. Balance: Strike a balance between mechanisms that preserve the work and independence of CSOs

with the need for increased accountability and transparency.

5. Human rights and public interest: The State should endorse PBOs through a policy framework that le-

gitimizes the work of Human Rights Defenders and PBOS recognizing their right to independence and

freedom of action, and to be able to speak out on issues of public concern.

6. Local context: Ensure express safeguards for the hiring local staff to design programs in the Kenyan

context.

7. Self-regulation: PBOs should be encouraged to self-regulate similar to other professional associations.

8. Collaboration and notification: PBOs should be required to pay courtesy calls to county authori-

ties/governments while implementing activities. County authorities should also be required to provide

security from PBOs implementing activities in the county.

N: PUBLIC BENEFIT ORGANISATIONS ACT 2013

1. General submissions were received on existing provisions of the PBO Act as follows:

2. The Act was developed through consultative and participatory process. It was cited to be both a pro-

gressive and adequate legislative framework to increase the transparency of registration of PBOs and;

improve the procedures for self-regulation and accountability. It was noted that the Act will facilitate

greater compliance by PBOs with the international standards of good governance and competence, as

well as with statutory regulations.

3. Retain clauses which strengthen self-regulation and accountability to the public including provisions

which provide for maintaining authentic accounting records, annual filing of accounts with the PBO

Regulatory Authority, making accounts publicly available on the Internet or physically upon demand

and; retaining the accounts for at least five (5) years.

4. Domestic philanthropy and corporate social responsibility: Retain the Second Schedule of the Act as it

encourages domestic funding, reduce over reliance on overseas development assistance, increase

funding diversification and enhance long term financial sustainability.

5. Elections: Retain provisions for the Independent Electoral and Boundaries Commission (IEBC) to over-

see elections of the Federation.

6. Public Private Partnerships: Retain clauses that enshrine public-private partnerships (Section 4, Sec-

tion 66 (4) and the First Schedule of the Act

7. Entry permit - Provision requiring PBOs wishing to obtain entry permits in respect of prospective em-

ployees to apply in writing to Principal Immigration Officer in accordance with provisions in Immigra-

18


tion Act should be revised. The office of immigration is not qualified to determine experts needed for

charitable sector.

8. Regulations: Revise S. 69 (4) of the Act to make regulations the responsibility of the Cabinet Secretary

and Authority alone

9. Investigations: In some circumstances, permit ex parte orders. Also, empower the Authority to access

premises for the purpose of investigations.

Denying |PBOs to self regulate is contrary to past and current practicessin Kenya and the region. There is no way in which the

government alone can carry the burden of being the only regular in such a diverse environment.

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O: AMENDMENTS OF THE NON GOVERNMENTAL ORGANISATIONS

COORDINATION BOARD

1. The following is a summary of the proposed amendments to the PBO Act by the NGO Coordination

Board.

2. Enabling environment and collaboration - delete the entire First Schedule of the Act detailing Gov-

ernment duty to provide an enabling environment for PBOs, principles of collaboration between

PBOs/Government and duties of PBOs. This included removal of joint committee with shared repre-

sentation from Government and PBOs in pursuance of the provisions of the principles.

3. Compulsory migration to the PBO Act - deletion of provisions bestowing PBO status and registration

of all charitable institutions under the PBO Act.

4. Evidence of registration - introduce an entry into a register as conclusive evidence of registration.

5. Removal of online copy of register of all PBOs - delete requirement for Authority to make available a

copy of its register of PBOs online.

6. Terms and conditions attached to registration certificates - insert a new provision giving the Authori-

ty power to either on its own motion, or petition by at least 5 PBOs, determine the terms and condi-

tions attached to certificates of registration.

7. Term of Board of Federation: Reduce term of members of the Board of the Federation from 5 years

to 3 years.

8. Appointment of Chairperson of the Board of the Authority: Presidential appointment of the Chairper-

son of the Board of the Authority.

9. Appointment Director of the Authority - Proposed to be appointed and removed by the Cabinet Sec-

retary, not the Authority as currently provided.

10. Removal of Director of Authority - It is proposed that removal of the Director follow the process pro-

vided for in the State Corporations Act. Current provisions of the PBO Act on the same are proposed

to be deleted.

11. Procedure for Nominating Board of the Authority - Delete entire third schedule that provides the pro-

cedure for nominating the Board of the Authority. Adopt process in State Corporations Act.

12. Removal of Federation representation on the Board of the Authority: Change the composition of the

Board of the Authority by removing the Chairperson of the Federation and the two nominated mem-

bers of the governing board of the Federation.

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All forum included presentations by Persons with Disabilities. A representative of Persons With Disabilities makes his views known in

Kisumu.

21


13. Transition of the NGO Council - Delete provision providing for transition of NGO Council to continue

in office as members of the governing board of the Federation.

14. PBO Disputes Tribunal: Deletion of existing provisions for all members to be appointed by the Chief

Justice and approved by National Assembly. Proposal for; Chairperson to be appointed by Judicial

Service Commission (JSC), two advocated nominated by the Law Society of Kenya, and two persons

with specialised knowledge recommended by the Cabinet Secretary for matters relating to PBOs. It is

also proposed that the prohibition for member/staff of the Authority to be a member of the Tribunal

be deleted. Insertion of a new provision for the JSC to appoint a Chief Executive Officer of the Tribu-

nal.

15. Disposal of Assets: Give the Authority power to make decisions on the transfer of assets to PBOs after

an organisation is deregistered, wound up or dissolved.

16. Powers of investigation: Insert new provisions to allow the Authority access into premises of its own

initiative or upon receiving a complaint from members of the public. Additionally, to empower the

Authority to get a court order in the absence of a representative of an organisation/relevant party (ex

parte order). This court order will allow an officer of the Authority to enter a premises and conduct

an audit of the organization's records. An ex parte order will be sought after notification of the Au-

thority's purpose, authority and demand of admittance is duly made and the officers of the Authority

cannot otherwise obtain admittance.

17. Financial contribution of PBOs to Authority: It is proposed that all PBOs registered under the PBO Act

shall contribute 1% of their earnings or donations to the Authority.

18. Tax exemptions & incentives - Remove majority of tax exemptions and incentives in the Act and re-

place with a new provision which provides that the Authority may make recommendations to the

Kenya Revenue Authority to grant tax exemptions to PBOs.

19. Registration of local offices by international PBOs - proposal that international PBOs no longer use

authorized agents in Kenya but be required to register local offices.

20. Regulations - Delete requirement for the Cabinet Secretary to gazette intention to make regulations

and provide information on where a copy of the draft regulations may be obtained. Delete require-

ment for one month period for public comments and express requirement for consideration of public

comments before making the regulations.

P: TASKFORCE REPORT

1. Submissions called for the making public of the taskforce report for public accountability and; a na-

tional validation conference with stakeholders drawn from the 47 counties to harmonize the PBO Act

proposals.

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Q: CONCLUSIONS AND RECOMMENDATIONS

1. The CSO Reference Group makes the following recommendations with regards to the Public Benefits

Organisations Act 2013 (PBO Act):

2. Commence and operationalise the PBO Act 2013 immediately. Any proposals to amend the PBO Act

should be considered after a proper evaluation of the successes and shortcomings of the Act have

been made. Such an evaluation should be undertaken after a sufficient and appropriate period of op-

eration of the Act has lapsed.

3. Develop draft rules and regulations for the operationalisation of the PBO Act. Gazette notice of these

regulations and call for public comment over a period of at least one month to ensure sufficient public

participation. Draft rules and regulations should, like the PBO Act, be appropriately enabling.

4. Retain voluntary migration to the PBO Act to provide for the broadest possible realisation of freedom

of association for Kenyans and; protect the important input of public benefit organisations through

the best suited mechanisms for their objectives.

5. Retain registration procedures and terms which are transparent, foreseeable and facilitate better co-

ordination of PBOs while safeguarding the freedom of association.

6. Retain provisions of the Act that promote and advance domestic philanthropy, tax incentives and cor-

porate social responsibility. This will encourage domestic funding, diversify funding, enhance long

term financial sustainability and reduce reliance on international development assistance.

7. Pursuant to internationally, regionally and nationally protected principles of freedom of association,

protect the right of PBOs to seek and secure funding from any legal source including; individuals, busi-

nesses, local and international partners as well as other civil society actors.

The consultation catered for

the needs of Persons With

Disabilities and provided sign

language interpreters in all the

forums. A sign language

interpreter in Kakamega

23


8. Retain the obligation of the State to provide an enabling environment for Public Benefit Organisations

and; principles of collaboration between Public Benefit Organisations and Government.

9. Retain clauses that strengthen self-regulation and accountability to the public. This is essential in

building ownership, responsibility and effectiveness in the sector.

10. Safeguard the independence and credibility of the Public Benefit Organisations Regulatory Authority

by retaining clauses that provide for public, parliamentary and judicial oversight over the appoint-

ments of members of the Board.

11. Strengthen information disclosure of PBOs for public accountability through appropriate provisions in

the Rules and Regulations that will be developed to operationalise the Act.

12. Ensure any future amendments to the PBO Act comply with Kenya's international, regional and consti-

tutional obligations under Freedom of Association as enshrines in the Universal Declaration of Human

Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Cove-

nant on Economic Social and Cultural Rights (ICESCR), the African Charter on Human and Peoples

Apart from consultation on Constitution of Kenya 2010, few laws have reached the depth of engagement and consultations

hat the PBO Act took with initial far reaching engagement by many CSOs Actors including Poverty Eradication Network and

CSO Reference Group in 2014 and now the Sofia Abdi Task Force on PBO Act in 2015. In essence we can say that the citizens

have spoken and must be heard.

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Rights, the African Charter on Democracy, Elections and Governance , the Constitution of Kenya 2010

and Sessional Paper No. 1 of 2006 on Non-Governmental Organisations.

13. Ensure that any present or future restrictions to freedom of association comply with the internation-

ally prescribed three part test. This test requires that any that any restriction on the freedom of asso-

ciation must pass all parts of the three-part test which provide that restrictions must be: 1) pre-

scribed by law; 2) necessary in a democratic society; 3) pursue specified legitimate aims.

In Nakuru, this elder had a candid point to make. Fighting right and justly, not with a cane but with his words.

25


Why should government that is struggling to feed its people, struggling to provide

education and health to its children, that they can even think and even try to stop

anyone (local of foreign) from helping suffering people? This is ridiculous!

26


Sir. Francis Ibiam House 6th Floor AACC Compound, Waiyaki Way, Westland P. O. BOX 4932 Nairobi Kenya

CSO Reference Group c/o Poverty Eradication Network (PEN)

Phone: +254-20 8164164 Fax: +254 - 20 440880 Cell: +254 - 720 600656/734 450645

Enhancing Enabling Environment

www.pboact.or.ke

Documents

Shadow Report - Sofia Abdi Task Force