In 2010, Kenya passed one of Africa's most progressive constitutions, designed to shepherd Kenyans into a brighter future. As President Obama declared during his visit to Kenya last Friday, “Africa is on the move”; praising progress toward democracy and economic growth; and marveling over the changes he saw on the streets of Nairobi. However, President Obama was rightfully blunt over the human rights situation in Kenya. In particular, he focused on gay rights and Kenya's counter-terrorism measures. "If in reaction to terrorism, you're restricting legitimate organizations, reducing the scope of peaceful organization, then that can have the inadvertent effect of increasing the pool of recruits for terrorism," Obama said. But the pressure on President Uhuru Kenyatta's government ended there. Obama only "gingerly tried to nudge them to change their ways," as the New York Times described. Obama's comments on counter-terrorism come after years of serious abuses by the Kenyatta government. A Human Rights Watch report this year accused the Kenyan government of "extrajudicial killings, arbitrary detentions and torture by security forces." MUHURI and HAKI Africa, the two human rights organizations working to document abuses in counter-terrorism operations at the coast of Kenya, have faced an onslaught of administrative harassment, including arbitrary searches and seizure of documents, freezing of bank accounts, and suspension of insurance coverage. The Obama administration has repeatedly tried to support the two organizations, and even with the recent visit and increased scrutiny on the Kenyatta government, both organizations' bank accounts remain frozen despite an interim court order forbidding the government from associating them with terrorist groups. While Obama could not go too far with his censuring of the human rights situation in Kenya, he failed to capitalize on a chance to help the struggling civil society sector in the country. In an attempt to alleviate some of the troubles of NGOs within the country, the Kenyan government created the Public Benefits Organizations (PBO) Act in 2013 following extensive consultations between government and civil society. The original act has not yet been implemented, but the recent Kenyatta government has been trying to amend the law to undermine the PBO’s original purpose. The PBO is a powerful law for civil society. It creates an enabling environment for civil society while enhancing transparency and accountability and strengthening collaboration between the government and civic groups. However, there have been numerous attempts to neutralize this law through different amendments, leaving NGOs with little hope for the future. In late 2013, the government pushed for the Statute Law (Miscellaneous Amendments) Bill, 2013, which contained several amendments to the PBO Act, including proposals to cap the amount of funding NGOs can receive from external donors at 15% of their budget. While this bill failed to be passed, some of its features would return in the Statutes Law Miscellaneous (Amendments) Bill, 2014, which included its own restrictions on NGOs. There were proposals to give the PBO Regulatory Authority wide discretionary power to impose terms and conditions for the granting of certificates of registration. There were also proposals to limit the independence of the PBO Regulatory Authority by giving the executive greater say in making appointments to the board of the Regulatory Authority. Further, the voice of civil society was to be greatly reduced as the proposals sought to cut down the number of representatives to the board. After public scrutiny of the bill, the PBO aspects of the bill were removed. However, civil society organizations still are not safe. A Task Force by the Ministry of Devolution and Planning, which oversee NGOs, is in the process of reviewing 54 proposed amendments to the PBO Act. These amendments include many of the proposals delineated in the earlier attempts to amend the PBO, like restricting the amount and sources of income available to PBOs, and removing the requirement for the government to provide financial, tax incentives, benefits, and other support to PBOs. Despite NGOs calling for the PBO 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 PBO. This now two-year saga of amendments has placed a cloud of dread over the civil society of Kenya. President Obama's visit posed an important opportunity to impact the future of NGO work in Kenya, and help ensure that Africa does keep moving forward in different ways. Obama very much needed to reaffirm that civil society is a partner rather than an obstacle in counterterrorism efforts and stress the role civil society can play in addressing the underlying challenges and gaps that drive extremism, giving a voice to marginalized groups. Unfortunately, it remained a missed opportunity.
The views presented in this article are the author’s own and do not necessarily represent the views of any other organization.