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Kenya: Rejection of Bill Capping NGO Foreign Funding and Giving Spy Agency Broadened Surveillance Powers

(Dec. 12, 2013) On December 4, 2013, Kenya’s parliament rejected the Statute Law (Miscellaneous Amendments) Bill, 2013, which, if passed, would have amended various laws resulting, among others, in the limiting of funding streams of nongovernmental organizations (NGOs) in the country and the expansion of surveillance powers of Kenya’s National Intelligence Service (NIS). (Jeremiah Kiplang’at, MPS Throw Out Bill Targeting NGOs, DAILY NATION (Dec. 4, 2013); David Mwere, National Assembly Votes Out NGOs Funding Limit, THE STAR (Dec. 5, 2014).)

Public Benefits Organizations Act

A key provision in the defeated legislation sought to make drastic changes to the way in which NGOs are funded by introducing a new article to the Public Benefits Organizations Act of 2013 (available on the Kenya Law website) that would have capped foreign funding for NGOs at 15% of an organization’s total budget. (The Statute of Law (Miscellaneous Amendments) (No. 2) Bill, 2013 [hereinafter the Bill], KENYA GAZETTE SUPPLEMENT No. 147 (Oct. 30, 2013), Kenya Law website.) The bill also sought to give the country’s Minister of Finance discretionary control over any increased foreign funding, by according the Minister the power to allow foreign funding above the stated amount “where there are legitimate and compelling reasons for increasing the amount.” (Id.)

Another notable provision in the legislation gave the government powers to impose registration requirements stating “[t]he Authority may from time to time impose terms and conditions for the grant of certificates of registration, permits of operation and public benefits organization status.” (Id.) According to Maina Kiai, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, the ambiguity of this provision would create a situation in which the government is able to influence decisions and activities of NGOs. (Kenya: Statute Law Bill Poses Grave Threat to Civil Society and Must Be Rejected – UN Rights Experts, Office of the High Commissioner for Human Rights website (Dec. 3, 2013).)

The above provisions were highly criticized by other human rights groups as well. Civil society groups in Kenya, which accused the government of attempting to use the bill to take punitive action against certain non-governmental organizations, had promised to stage demonstrations and challenge the measure in court. (NGO’s [sic] React to Funding Bill That Limits Foreign Funding at 15 Per Cent, STANDARD DIGITAL (Nov. 9, 2013).) Human Rights Watch alleged that the proposed law is part of a continuing pattern of harassment of NGOs, particularly those that have voiced their support for International Criminal Court (ICC) cases against Kenya’s President Uhuru Kenyatta and his Deputy President William Ruto. (Kenya: New Laws Would Undermine Basic Rights, HUMAN RIGHTS WATCH (Nov. 12, 2013).)

A group of U.N. Special Rapporteurs noted that this type of legislation is not unique to Kenya stating “[t]he Bill is an evidence of a growing trend in Africa and elsewhere, whereby governments are trying to exert more control over independent groups using so-called ‘NGO laws.'” (Kenya: Statute Law Bill Poses Grave Threat to Civil Society and Must Be Rejected – UN Rights Experts, supra.) In 2009, for example, Ethiopia enacted a similar law, the Charities and Societies Proclamation, No. 621/2009 (FEDERAL NEGARIT GAZETA (Feb. 13, 2009), Ethiopian Legal Brief website), capping foreign funding of NGOs that engage in human rights and advocacy activities at 10% of each such organization’s budget. (Hanibal Goitom, Ethiopia: New Law on Nongovernmental Organizations Passed, GLOBAL LEGAL MONITOR (Jan. 13, 2009).) NGOs, especially those that involved on human rights advocacy, are subjected to similar restrictions in various other countries including Egypt, Sudan, Uganda and Zimbabwe. (End Restrictions on NGOs Access to Funds for Human Rights Advocacy, INTERNATIONAL SERVICE FOR HUMAN RIGHTS (May 29, 2013).)

National Intelligence Service Act of 2012 (NISA)

The legislation had also sought to introduce a new provision in the NISA, aimed at shielding from oversight the surveillance program of the NIS. Currently, the Act allows monitoring of communications of persons “suspected to have committed an offence” but requires a warrant for doing so. (National Intelligence Service Act No. 28 of 2012, § 36, KENYA GAZETTE SUPPLEMENT, No. 143 (Oct. 5, 2012), Kenya Law website.) Had it been enacted, the legislation would have expanded the pool of individuals whose communications may be subject to monitoring, beyond those suspected of having committed an offense, to include anyone “who is subject to investigation by the Service.” (Bill, supra.) Significantly, it would also have eliminated the requirement for warrants by repealing the relevant provision in the NISA. (Id.)

Although, following the Westgate mall incident, a recent attack involving hostage-taking in a shopping center in Nairobi, Kenya by members of the Somalia-based Al Shabab terrorist group, there were calls to expand NIS’s role beyond just gathering intelligence, the legislation did not include a provision to that effect. Leaders in Parliament and other public figures had urged that the NIS’s powers be broadened to include taking action on the intelligence it gathers, after the agency released a report indicating that it had warned the Police Service of the impending attacks at the mall. (Julius Kithuure, Calls Grow to Expand Powers of Kenya’s National Intelligence Service, SABAHI ONLINE (Oct. 14, 2013).)Currently, the NIS serves purely as a research institution. It is prohibited from, among other activities, engaging in police functions, undertaking paramilitary activities, or committing acts of violence against individuals. (National Intelligence Service Act, § 5.)