When all three arms of government are on one side, the Fourth Estate is meant to assert the power of the people and ensure that the State is held to account. Traditionally, this role has been played by the media but many argue that an organised civil society could be equal to such an important task. However, both the media and NGOs in Kenya (which includes Civil Society) are largely unregulated, often finding themselves consumed by profit-making and promoting partisan agendas. For today, the focus shall be on NGOs.
Currently, the Non-Governmental Organisations Bill 2012 published a few weeks ago is the hot topic of discussion in many public and private circles. To understand how this Bill proposes to rein in NGOs and clean up the sector, we must recall some of the issues that this Bill is trying to address. Firstly the definitional issue, and then the major issue of regulation both state regulation of NGOs and self regulation of NGOs amongst themselves.
First and foremost, there has been the problem of definition. What is a NGO? The not government part is clear enough but what about its form and more importantly, its objectives? Should a NGO be non-profit? Not for profit? For public benefit? Many construe the differences between these terms to be as follows. A non-profit NGO is basically a NGO which doesn’t make any profit at all whereas a not-for-profit NGO is a NGO that carries out its objectives without the intention of making any profit however if profits happen to be realised, they are ploughed back into the NGO. A NGO for public benefit or a public benefit organisation is similar to what other countries would call a Charity. Unlike a not for profit NGO, all benefits (including profits) in a NGO for public benefit are shared with the public and are not absorbed as part of the NGOs assets. The Bill seems to have opted for a hybrid definition that includes both not for profit and for public benefit.
And now the central issue of regulation. The state’s regulatory role should be both as a gate-keeper and a monitor of all registered NGOs. In past, the NGO regulatory framework focused more on vetting and scrutinizing applications for registration of NGOs rather than monitoring and regulation of NGOs. This history is largely attributable to the rise of NGOs in the area of human rights and governance during the 1990s. The government of the day perceived these entities seeking NGO registration as conduits for the Opposition and a threat to the regime’s grip on power. Therefore the NGO Coordination Act of 1990 was largely unpopular and the NGO Board, which operated from the Office of the President, was seen as lacking independence and registration depended almost entirely on clearance from NSIS. There was no appeal or review mechanism to challenge any decision made by the NGO Board, which further explains that unpopularity of the current law.
Such legal and administrative barriers to registration have resulted in the proliferation of NGOs in Kenya registered under a number of different legal regimes, such as companies limited by guarantee, societies and trusts. Therefore there have been calls to repeal the NGO Coordination Act of 1990 and enact a new law that is the outcome of a consultative process between all stakeholders and not merely a government project. Furthermore, there is a real need to ensure that the new law governing NGOs is in line with the Constitution particularly the provisions on national values and principles of governance, leadership and integrity and freedom of association. Registering a NGO ought not to be unnecessarily lengthy, cumbersome and bureaucratic. The criteria of registration ought to be clearly defined, together with the terms and conditions of registration and timelines for registration. Within regulation, a gaping hole in the current law is the non-regulation of international NGOs. Although these international NGOs ought not to be entitled to diplomatic/consular privileges and immunities, in practice we are aware that special agreements have been reached these entities and the Ministry of Foreign Affairs granting them diplomatic/consular immunities in exchange for setting up their headquarters in Kenya.
The crux of the problem in the current regulation of NGOs is the assumption that what is declared by the NGO through its returns is a true and accurate reflection of the situation on the ground. Most NGOs only file returns in order to appear compliant but may not be living up to their public benefit objectives. Therefore the challenge of the new NGO regulator is to ensure that NGOs are monitored so that persons behind NGOs do not subvert its objectives for private benefit. The lack of proper regulation has led to the widely held perception of an NGO as a vehicle for accessing donor funding, much in the same way as political parties are now cynically viewed merely as a means of getting into public office. In the context of NGOs, it has been suggested that the founders and members of NGOs should plough in their own money into the entity so that they remain true its objectives instead of simply living off the NGO. Therefore the NGO regulator must constantly monitor and audit NGOs to ensure that their declared budget is in line with its declared sources for funding. It has been suggested that the new NGO regulator must be given powers of inspection to allow it to enter any premises of a NGO and call for any information from the person in charge.
Finally, on the question of self-regulation, we must acknowledge that it ought to supplement state regulation. Currently self-regulation of NGOs is a misnomer since NGO Council is widely seen as an extension of the NGO Board and lacks the necessary independence and autonomy to act for the registered NGOs. Therefore the new law ought to provide for NGOs to come up with their own self-regulation mechanisms; this will free the NGOs from the NGO Council whom they have been forced to become members by the current Act contrary to the freedom of association under the Constitution. NGOs ought to be allowed to establish self regulation bodies outside the Act which can promote self-regulatory goals and ethical standards for the furtherance of public confidence in the NGO sector. The merit of this option is that these NGO umbrella bodies are far less likely to become political since they are not embedded in the law and are organized and operated by NGOs themselves.
In order for NGOs to contribute positively to national development, donors and development partners must be confident that there is a robust and responsive regulatory framework in place to ensure that all NGOs in operation are adhering to their public benefit objectives. Within society, we must begin to rebuild public confidence in NGOs and their ability to carry out their functions in a democratic, open, transparent and accountable way for the benefit of all Kenyans.