The document summarizes events in Kenya in November 2013 when proposed amendments to the Public Benefits Organizations Act were brought before the National Assembly. The amendments would have significantly restricted civic space and foreign funding for NGOs. Through research, representation, media engagement and public protests, a CSO Reference Group was able to defeat the bill. Key strategies included impact assessments showing the development harm, meetings with MPs, an online petition, and social media campaigns. Narrowly, 83 MPs voted against the bill compared to 73 who voted for it, preserving the independence of Kenya's civil society sector. The conclusion warns that constitutionalism must underpin such progressive laws to prevent future threats to civic freedoms.

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Protecting Civic Space Against #NGOMuzzle Laws in Kenya(1)
Submission to SID Journal Issue on Governance
By Irũngũ Houghton and Stephanie Muchai(1)
Running Header: Protecting Civic Space
Abstract: This article captures the background and events of November 2013 in Kenya. A set of
thirteen amendments to the Public Benefits Organizations Act 2013 were unexpectedly brought to the
National Assembly. If they had passed, they would have fundamentally affected civic space, democracy
and development. It offers lessons and reflections on the state of governance and civil society in Kenya
and the challenges of protecting and advancing fundamental freedoms within a new constitutional
order.
Keywords:
Human rights, CSOs, civic space, Kenya, development, democracy, CSO Reference Group,
#NGOMuzzle, Society for International Development, Kenya Dialogues Project
‘We said that Kenyans had enacted the best and most progressive Constitution in the world.
The struggle for this Constitution was by the civil society….’ Hon. Fatuma Ali, MP
‘Regulation and accountability is important but let us … not take away the freedom and space
within which the public benefit organisations act and operate.’ Hon. Oyugi, MP
‘Alongside many of my colleagues here were the alumni of the civil society at one time…as we
are trying to streamline those that are very wayward, we may end up suffocating the NGOs...’
Hon. Kabando wa Kabando, MP
Introduction
Post independent governments in Kenya systemically violated human rights and heavily
curtailed freedoms of assembly, association and expression in particular. Members of civil
society were systemically harassed, intimidated, tortured and killed for attempting to exercise
these rights and pierce secrecy, corruption and nepotism veils.(2) Civil society organizations
who attempted to research, advocate or support communities to advocate in the public
interest were attacked, banned or de-registered by state agents on trumped up charges.
Among others, two critical moments mark a turning point in this ugly side of Kenya’s history;
the election of a liberal democratic Government in 2003 and the promulgation of a new
constitution in August 2010.(3) This Constitution contains one of the world’s most
comprehensive and visionary Bill of Rights which among other rights, guarantees freedoms of
assembly, association and expression.
The adoption of a new constitution offered a re-set or re-boot button for the country. The PBO
Sector was not exempt from this. Regulated by the NGO Coordination Act (1991) and a
Sessional Paper (2006), the last two decades have seen the coordination of the sector atrophy
under the weight of reduced funding, a weak apex body in the Kenya National Council of
NGOs and its splinter bodies, growth of regional and sectoral networks, lack of public
accountability and divisions between PBO actors.(4)

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Among numerous attempts by the Government and PBOs to bring vision and effective
leadership to the sector, several PBOs came together to form the CSO Reference Group to
work towards the development and implementation of a legal and regulatory framework for
organizations that do public benefit work(5). This initiative sought to improve organizational
accountability, internal governance and transparency. The Public Benefits Organizations bill
sponsored by Member of Parliament Hon Sophie Abdi Noor(6) brought focus to all the
formations seeking to transform the sector including the NGO Coordination Board,
Government NGO Coordination Bureau, the NGO Council(s) and other various networks.(7)
While the PBO Act received Presidential assent by Mwai Kibaki in 2013, it is yet to be
operationalized. Despite the stated aspiration of the Jubilee manifesto(8) to manage the
State’s relationship with the PBO sector in accordance with internationally recognized best
practices, the Cabinet Secretary has declined for over a year to announce the commencement
of the Act. A central consequence of this is that the sector, state or the public cannot apply the
regulatory and accountability framework contained in the Act. The sector, state and the public
are in legal limbo.
What happened?
Thirteen proposed amendments to the PBO Act were published in the omnibus Statue Law
(Miscellaneous Amendments) Bill 2013 on Friday 1 November 2013.(9) This was met with
disbelief within and outside of the PBO sector. The amendments signaled an intention to
violate constitutional protections of freedom of association(10), Sessional Paper on NGOs
(2006)(11), the Jubilee Manifesto (2012)(12) and the Public Benefits Organizations Act
(2013).(13)
Surprisingly, despite news coverage of the published bill in the People newspaper, most
Members of Parliament (MPs) were initially unaware of the significance of the entire Bill for
49 laws already enacted by Parliament. On the other hand, those familiar with the Bill
emphatically declared that the Jubilee majority in Parliament would pass this law regardless
of any form of opposition from the PBO sector. Meeting for the first time on 7 November
2013, members of the CSO Reference Group resolved to raise public awareness, open dialogue
with public officials and resist the draconian legislation.
How was the bill defeated?
The CSO reference Group met regularly from 7 November through to 6 December 2013. These
meetings regularly attracted upwards of 50 representatives of development, human rights and
governance PBOs. Both national and international PBOs attended each of the meetings.
Indeed, that the Bill had produced such unity across such diversity must have been one of the
most remarkable unintended impacts of the Bill. Four major strategies were deployed by
different working groups; research, representation, media engagement and public street
action.
A key pillar in the messaging around the Bill derived from two impact assessments carried out
by the CSO Reference Group and Health NGOs Network (HENNET).(14) The documents
demonstrated that the proposed amendments to the PBO Act were set to cripple 8,260
organizations, endanger Kshs 80 billion in annual development assistance and lead to the

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entrenchment of 250,000 employees most of whom are primarily Kenyans. More broadly,
without any alternative financing strategy by the Government, the bill would shut overnight
hundreds of thousands of clinics, schools, housing, water projects, civic education and legal
aid programmes. In the health sector alone, it was estimated that 47 percent of health funding
would be drastically cut. Twenty million Kenyans would lose access to basic health care. 6.8
million people would no longer have facilities for HIV testing and the 1 million Kenyans on
ARV treatment would be at serious risk.
This analysis proved compelling particularly for those MPs drawn from constituencies with
high poverty incidence particularly Rift Valley, Coast, Nyanza and North Eastern. MPs
attributed 25 percent of the non-formal education in Garissa and 90 percent of the water-
points in Ijara, northern Kenya to PBOs. To quote one of the Jubilee MPs, ‘this Bill is
parliamentary suicide for us.’ The Coast, Nyanza and North Eastern generally voted for the
opposition CORD. It could not have escaped Jubilee political strategists that to deny largely
opposition areas development assistance, would be to harden a future voter base against it in
future.
Over the four weeks, members of the CSO Reference Group sought out or were sought by
public officials from the Kenyan Executive, the National Assembly, Senate and Development
Partners. In the National Assembly, both CORD and Jubilee MPs were informed on the
importance of the Amendment bill. An analysis of the Assembly by the CSO Reference Group,
revealed that no less than a third of the MPs in Parliament were former employees or
beneficiaries of PBOs. These meetings were a key contributor to the rejection of the Bill.
Invoking the National Assembly Standing Orders, the Clerk invited public input on the bill.
Several organizations submitted petitions calling for the rejection of the amendments. On the
morning of 25 November, by invitation only, a single opportunity was offered for
organizations to appear before the Justice and Legal Affairs Committee. Appearing before the
Committee, PBO leaders and the Commission for the Implementation of the Commission
pressed the Committee to withdraw the Miscellaneous Amendments altogether or drastically
amend them. They argued that the Amendments would substantive changes to existing laws,
were being rushed through National Assembly and were, in the case of the PBO Act
amendments, anti-developmental.
Like the representation work, PBOs worked together across agencies to coordinate mass and
new media work. A key pillar of this work was the publication of a petition for citizens to sign
their opposition to the bill. The petition was launched in the city center marking the start of a
public procession on 14 November 2013. The petition was also uploaded online to capture
wider audiences. In total, 17,170 people had signed the petition online or in person within a
week. The signatories came from a various counties most notably Nairobi, Kisumu, Siaya,
Machakos, Makueni and Kitui. On 21 November, the petition was received in the National
Assembly by Hon Members Gladys Wanga, John Mbadi and Keynan Adan among others.
Additionally, 1,500 leaflets were circulated to MPs and members of the public highlighting in
plain language the impact of the proposed amendments to the PBO Act to Kenyans and to the
PBO sector. A number of press conferences and briefings took place on radio, television, as
well as the national newspapers in English, Kiswahili and other Kenyan languages.

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The CSO Reference Group noted that just prior to the proposed amendments to the PBO Act,
retrogressive media laws had been tabled in Parliament.(15) The Media laws and the proposed
amendments to the PBO Act signaled to the Group a deliberate legislative onslaught on the
civic democratic space for association and expression. A combined media-PBO approach
sought to raise public awareness of the proposed legal provisions affecting both sectors; the
potential impact on the country and violations to constitutionally protected rights.
Indeed, the combined attack on media and civil society operational environments gave rise to
the twitter hashtags #NGOMuzzle and #MediaMuzzle. Social media was highly effective in
raising public awareness. The Twitter hashtag #NGOMuzzle trended on 14 November 2013. A
week later @LGE_EastAfrica amusingly used the same hashtag to promote a 32 inch
television set. The media covered and highlighted the two street actions that took place in
Nairobi protesting the proposed amendments to the PBO Act and proposed media bills. The
short notice and limited mobilization opportunity meant that there was a relatively low
turnout of the public at the protest; however the coverage of the street actions raised
awareness of the impending damage of the proposed changes to the PBO Act.
Power and interests
Supporters of the proposed amendments to the PBO Act made two main arguments. Firstly,
that the PBO sector chronically suffers from a lack of effective apex leadership and insufficient
regulation. Poor public transparency, poor accountability to the state and possible duplication
of efforts is the result. Secondly, that the sector is overly dependent on foreign donors ‘hostile’
to the Jubilee Government and are being used to fight the President and Deputy President in
the ICC trials.(16)
Although the amendments originated from the Ministry of Devolution and National Planning,
the technical staff at the Ministry disowned a number of the amendments especially the 15
percent foreign funding cap. This was later to be repeated in conversations with senior public
officials in the Office of the President and National Assembly. Indeed, it was initially unclear
what economic and political public policy objective was being served by this restriction on
foreign funding. Meeting with the CSO Reference Group, NGO Council and NGO Board on 21
November, the Cabinet Secretary suggested that the 15 percent was a basement rather than a
ceiling figure but offered no practical ways how this discretion would be operationalized.
Nevertheless, this would pave way for national Government to seize 85 percent of the funding
currently coming to PBOs.
Reaction to the bill came from a number of quarters in November. PBOs under the CSO
Reference Group were quick to point out that the amendments substantively changed the
spirit and letter of the PBO Act. The NGO Council expressed their concern with the 15 percent
cap while encouraging Government to find ways of holding the sector accountable. The NGO
Coordination Bureau(17) called for tighter regulation citing terrorism concerns. Staff from the
secretariat of the Kenya Private Sector Alliance privately noted their concern with impact that
this would have on service-providers such as banks, hotels, food and medicine distributors
among others.

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A leading business newspaper columnist noted that while he were not a ‘blind apologist for
non-governmental organisations, civil society, or the voluntary sector in general…(he still
found) the law which the government wants to introduce to regulate NGOs and civil society
institutions is anachronistic to the extreme’. An evening news programme SMS poll found a
slim majority of its viewers were in favor of the amendments. A political advisor noted that
the amendments would present the President with another domestic and international
credibility problem as he and his Deputy were trying to win back international support for his
Presidency. Another pointed out that Government domestic development policy was being
blindsided by the ICC process.
A Senator with a long history of participation in the sector noted that the proposed
amendments to the PBO Act were the consequence of PBOs losing their oversight and
leadership role. He urged that it was time for CSO introspection. How could they raise the
performance bar, focus less on donors and more on citizens? Human rights activists argued
that the amendments were symptomatic of a growing obsession to control institutions that
contribute to checking excesses of the state. A Development Partner agency representative
noted that the bill was being watched very closely in their capitals and its passing would have
‘consequences’ not only for PBO funding but the state’s public budget as well.
In the end, the arguments that directly mattered came from a small number of vocal MPs
from both sides of the National Assembly on Wednesday 4 December 2013 as the bill came for
final reading. Nine legislators urged the house to reject the bill as it violated the constitution,
attempted to pass substantive amendments to over 49 Acts bundled in a single bill and was
anti-developmental.
Hon James Wandayi argued, ‘Some of the freedoms that we presently enjoy in this country;
some of the freedoms that have made some Hon. Members [of Parliament] to sit here today,
have been gained because of the contributions of the NGOs.’ Hon James Nyikal stated, ‘We
should even get a way of really getting rid of miscellaneous amendments, if it must be there
then it really must be confined to what is explained as minor amendments that do not effect
basic changes in Acts.’ 164 out of 349 MPs were present. 83 voted against the bill, 73 voted for
the amendments.(18) Narrowly, the National Assembly averted the destruction of a 50 year
old sector.
With the power of hindsight, what actions ultimately proved to be most directly effective?
While all actions contributed to the rejection of the bill by National Assembly Members,
probably the most effective were those that related to relationship building, information
sharing and face to face discussion with legislators. What proved least ineffective was the
attempt to mobilize the public or beneficiaries to march or voice their concerns on the issue. A
combination of limited resources and very short window for action may have been factors in
this, but going forward this will require attention.

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Conclusion
The amendments to the PBO Act 2013 threatened freedoms of association. In this regard, they
were ultimately an attempt to simultaneously legalize rights violations and grab Kshs 68
billion from the PBO sector. The amendments are a powerful reminder that unless
constitutionalism underpins a progressive constitution there are no guarantees. In early
February, unofficial reports state that the President urged MPs to support the Statute Law
(Miscellaneous Amendments) Bill and especially the 15 percent cap when tabled again in
Parliament later in 2014. At the time of writing this article the relationship between National
Government and the PBO sector are still tense. The failure of the Cabinet Secretary for
Devolution and Planning to announce a commencement date for the PBO Act ironically
provides ammunition for those that say the sector is unregulated and the funding would be
better managed by National Government. Or, just perhaps, is this the intention?
Notes
1 While both authors are active members of the CSO Reference Group, this article is based on personal
experiences and written in their personal capacity. They can be followed at @irunguhoughton and
@parchedoasis The authors have chosen to use the new term of Public Benefits Organizations (PBOs) instead
of the more familiar Non-Governmental Organizations (NGOs).
2 In 2014, many key leaders in civil society, the political class, mass media and the private sector were active in
rolling back the culture of silence, compliance and fear.
3 Constitution of Kenya 2010 - http://kenyalaw.org/kl/index.php?id=398
4 For a historical analysis of the Kenyan NGO Sector, see Prof. Patricia Kamere-Mbote ‘Operational Environment
and Constraints for NGOs in Kenya’ 2002, http://www.ielrc.org/content/w0002.pdf
5 http://www.pboact.or.ke/the-pbo-act/cso-reference-group
6 Before joining Parliament, Hon Sophia Abdi Noor was herself a PBO leader having led a women’s rights NGO
Womankind in Garissa among other roles.
7 The divergent interests and tensions between the various formations could themselves be the subject of a
detailed and interesting article. Some are not yet resolved. They include whether the existing structures of the
Council and Board will automatically become the Federation and regulatory Body, the balance between
vertical regulation by Government or more horizontal self-regulation by the PBOs, what roles international
and Kenyan NGOs should play and even whether PBOs should.
8 http://issuu.com/jubileemanifesto/docs/jubilee_manifesto
9 http://www.penkenya.org/UserSiteFiles/public/Proposed%20PBO%20ACT%20Ammendments%202.pdf
10 Article 36, Constitution of Kenya 2010
11 Sessional Paper No 1 of 2006 on Non Governmental Organizations -
http://www.ngobureau.or.ke/Docs/sessional%20paper%20no%201%20of%202006.pdf
12 http://issuu.com/jubileemanifesto/docs/jubilee_manifesto
13 http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%2018%20of%202013
14 http://www.csakenya.org/index.php?option=com_content&view=article&id=86&Itemid=89
15 Kenya Information Communications (Amendment) Bill 2013 and Media Council Bill (2013)
16 The President and Deputy President of Kenya have been charged with for crimes against humanity at the
International Criminal Court. The President’s case has since been suspended pending the Court’s request to
collect more evidence to meet the high evidentiary standards required after key witnesses dropped out.
17 http://www.ngobureau.or.ke/
18 See Hansard report on discussion of the Statute Law (Miscellaneous Amendments) Bill 2013
http://ow.ly/vbKeM