The terrorist attack that killed at least 147 people at Garissa University on April 2nd was another tragic milestone in Kenya’s ongoing battle with the al-Shabab terrorist group based in Somalia. In response to several other brutal attacks on civilians, Kenya’s government recently passed and proposed harsh new laws that are alarming environmental activists, non-governmental organizations (NGOs), the media, opposition politicians and the public.
Stakeholders contend that the government is overreacting to the terrorist threat with laws that will shut down NGO operations, outlaw public demonstrations and gag the media — endangering conservation programs and the environment, doing serious economic harm to the country, while weakening independent voices and rolling back democratic gains.
The legislation includes the Security Laws (Amendment) Bill, 2014 and the Information and Communications (Amendment) Act, 2013 — both recently signed into law by President Uhuru Kenyatta; plus amendments to the Public Benefits Organisation Act, 2013 and Parliamentary Powers and Privileges Bill, 2014 – currently being debated by the National Assembly.
Putting Kenya’s environmental, health and service NGOs out of business
Proposed amendments to the Public Benefits Organization Act (PBO) are directly aimed at restricting the activities, and even dismantling, Kenya’s 15,000 registered NGOs, including 3,000 international groups.
Among the pending law’s provisions, is a 15 percent cap on foreign funding to NGOs, with the other 85 percent required to come from local Kenyan sources. Another provision would require that all NGO funding be drawn from a single pool managed by the PBO Federation, which is heavily controlled by the federal government.
Critics assert that President Kenyatta’s administration is trying to weaken vocal NGOs, silencing their views on national political issues ranging from environmental conservation to constitutional rights, and the corruption that continues to rock the Kenyatta regime. They say that the laws will adversely affect environmental parks and reserves, endangered species like rhinos and elephants, and will hamstring environmental programs.
Environmental NGOs feel especially threatened because many get the bulk of their funding from foreign organizations and donors, and would be forced to cease operation in Kenya if the PBO Act is approved. Among the environmental groups operating in Kenya that will be affected are the Wildlife Conservation Society (WCS), World Wide Fund for Nature (WWF), Action Aid International, International Union for Conservation of Nature (IUCN), and the Pan African Climate Justice Alliance (PACJA).
These NGOs are working in many different parts of Kenya, and in many different fields. WCS researchers, for example, are examining how human communities adjacent to Kenya’s coastal reefs are adapting to the impacts of climate change. When reefs die off, their valuable fish stocks disappear and tourism slumps. WCS researchers are finding ways to help reduce climate change impacts and potentially increase the resilience of marine ecosystems through improved fishing management. This, and other environmental research programs will be jeopardized by the new law.
WWF Kenya Country Director Mohammed Awer said that CSOs (Civil Society Organizations) are important in planning, decision-making and good governance of environmental programs.
“WCS has partnered with CSOs in Kenya on many environmental related programs,” said Awer. “This includes building their advocacy and institutional capacity and providing grants to effectively participate in policy analysis and influence, advocacy and dissemination of information. If funding is limited, it is akin to killing the universe, which is home to people, flora and fauna.”
Awer added that the new laws threaten important partnerships, such as WWF’s alliance with the Kenya Wildlife Services to do active rhino monitoring, and to use forensic DNA technology and other methods to track and audit every live rhino and rhino horn in Kenya.
Phillip Kilonzo, technical advisor with ActionAid Kenya International said that the new laws are a threat to environmental conservation. “High temperatures, droughts and extreme weather events in Kenya and the world… are a foreshadowing of things to come if we fail to address the climate crisis proactively,” said Kilonzo. “If not urgently addressed, climate change is likely to place millions more people at risk of increased hunger, disease and disasters. This requires money from all sources. If the government stops funding from [foreign] sources, the country risks more climate-related disasters.”
New laws will harm Kenya and Kenyans
“Capping funding for NGOs is a gimmick by the government to weaken their operations,” said Erick Mutua, chairman of the Law Society of Kenya. “Without the financial muscle, NGOs will not be able to undertake advocacy.” He contends that half the provisions in the new laws are unconstitutional, and null and void.
“The government is denying Kenyans their rights,” said Mutua. “It has deregistered some NGOs who are critical of it, and wants to use insecurity to promote dictatorship. [It is] now like in the apartheid days when police assaulted and killed people, but hid [behind] the law.”
Last December, the government deregistered 525 NGOs and froze $3.4 million in funding, accusing the nonprofits of being conduits of terrorism and of financing money laundering. The NGOs refuted the claim, and said that they have been targeted because of their stance on corruption and conservation programs.
Prof. Lukoye Atwoli, Dean of the Moi University School of Medicine asserts that the government is fighting imaginary enemies and shadowboxing instead of running the country well to create an environment for stability and growth.
“The government is wallowing in corruption, but demonizing NGOs and media,” said Atwoli. “It will be impossible to run major environmental programs in the country when funding to NGOs is restricted. The government [doesn’t have] enough money, so depends on foreign funding to run these programs.”
The dean urges politicians to stop viewing NGOs as rabble rousers, but rather as agents of positive growth. He believes that people will take to the streets to protest the restrictive legislation.
Critics of the new laws fear the wide powers vested in government-controlled agencies such as the PBO Federation will be used to further check NGOs or penalize organisations that fall out of favor with the authorities.
Davis Malombe, Deputy Executive Director at the Kenya Human Rights Commission and a member of the Civil Society Organisations of Kenya said that the government is punishing environmental NGOs because they alert the public to the plundering of forests and to land grabs by the government’s political cronies.
“The proposed PBO Act amendments are dangerous for Kenyans,” said Malombe. “The government risks violating CSOs’ freedom… to operate free from unwarranted state intrusion or interference.” In addition, “NGO funding provides millions of Kenyans with important interventions to support their livelihoods and helps to build skills and knowledge to equip Kenyans to be active, engaged and informed members of society.”
Malombe predicted that the new laws will deprive Kenya of $1.7 billion in foreign CSO contributions to its development programs, that 20 million Kenyans will lose access to basic health care — nearly half the nation’s population — 6.8 million will not be tested for HIV, and a million HIV infected Kenyans will be denied treatment. He added that 240,000 people will likely lose their jobs, and that government will be denied significant taxable income.
The amendments to the PBO Act were sponsored by Gatundu South MP Moses Kuria, a close ally to President Kenyatta. Opposition legislator Opiyo Wandayi said that he worries that the ruling government will continue to use its numerical strength in the National Assembly and Senate to pass bad laws.
Restricting civil liberties, gutting the Constitution
The already passed Security Laws (Amendment) Bill, 2014 has hampered Kenyan environmentalists by banning public demonstrations. It has, for example, made it very difficult for activists in the Rift Valley region to rally 2,000 families forced to leave Mau Forest, Kenya’s largest watershed, ostensibly so restoration work could be done there. The families were driven out by the government without being given alternative settlement. They have lived in difficult conditions at Kusumek and Chebugen refugee camps since 2009, while government-connected agents have profited from the refugees’ rightful resettlement lands.
Ndung’u Wainana, Executive Director of the International Centre for Policy and Conflict, said that the legislative changes will end fundamental freedoms, and come as Kenya’s human rights defenders and NGOs are experiencing increased government hostility, harassment and threats because of their positions in opposition to forest degradation and support for pending International Criminal Court (ICC) cases in Kenya.
President Kenyatta and his Deputy William Ruto were indicted by the ICC following post-election violence in 2007/08. The president’s case has been withdrawn due to what ICC chief prosecutor Fatou Bensouda called a lack of co-operation by the government in giving crucial information about presidential involvement. Ruto’s case is ongoing.
Legal experts like Erick Mutua assert that the new laws are unconstitutional and infringe on the right to freedom of assembly and association, expression and communication, access to justice, the rights of arrested persons, the right to privacy and protection against non-refoulement — the removal of refugees from a rightful refuge, putting them in jeopardy.
Mutua sees the laws as a backdoor approach to gutting the Kenyan Bill of Rights, making sweeping illegal changes that require a public referendum according to the national Constitution. The Security Law, for example, has amended 22 sections of the Kenyan Constitution, one of which removes environmental and land use oversight from federal agencies, putting it instead in the hands of often corrupt county officials.
Newly approved clauses to the Security Law also give powers to the Security Cabinet Secretary Minister to designate where and when public gatherings or protest marches may be held, in direct opposition to the constitutional right to assembly.
Another new clause makes it illegal to publish or distribute “offensive material” likely to cause fear and alarm to the general public or disturb public peace, an abridgment of the right to free speech. Still other provisions allow detention without charge or trial for a up to 90 days, and eliminate constitutional requirements for arrest warrants.
Severe restrictions on media
The recently approved Communications (Amendment) Act, 2013 creates a government-controlled Communications and Multimedia Appeals Tribunal empowered to revoke journalists’ accreditation, seize property and impose hefty fines of more than $11,000 on journalists and up to $227,000 on media companies for a variety of offenses.
The law also gives the newly created Communications Authority power to dictate the content of local radio and television broadcasts. It caps at 55 percent the amount of Kenyan media advertising revenue allowed from foreign companies. With numerous media organizations competing for limited advertising revenue, and most of that coming from government and non-Kenyan companies, the restrictions could force the closure of some media outlets, said Oscar Obonyo, chairman of the Kenya Union of Journalists.
Another bill targeting media currently in the National Assembly, called the Parliamentary Powers and Privileges Act, 2014, seeks to shield parliamentarians from media scrutiny. It would impose a $5,700 fine or jail term on journalists who, in the judgement of parliamentarians, publish stories defaming parliament. The law also limits the broadcasting of parliamentary proceedings and House committee sessions.
The government recently used the already passed Communications Act to shut down the broadcasting signals of leading Kenyan television stations, including KTN, NTV, QTV and Citizen TV. The stations are owned by the Nation Media Group, Standard Group, and Royal Media Services, the leading independent media houses in Kenya which reach 90 percent of the nation’s viewership.
The stations have now resumed broadcasting, but only to Nairobi, not to the entire country. That means that the people are deprived of TV programs that discuss environmental and civil society matters, such as KTN’s Morning Express, NTV’s Food Friday and Voice of Justice. With the March-May rainy season now underway, Food Friday is an especially big loss since it teachers farmers environmentally friendly and sustainable growing techniques.
Kenyan media houses are also contesting the inequitable distribution of broadcasting frequencies which are considered a national resource, with the lion’s share of allocations going to the PANG Chinese media group. The government has allocated 120 of Kenya’s 197 broadcasting frequencies to PANG, a wholly foreign-owned company.
The Kenya Broadcasting Corporation (KBC) and GoTV have been allocated just 51 frequencies, and Radio Africa 11 frequencies. The consortium of Nation Media Group, Standard Group, and Royal Media Services were allocated just 5 percent. As a result, most Kenyans are now only able to watch government-controlled KBC TV and K24 TV, both owned by the President.
In 2013, President Kenyatta visited China and held talks with his Chinese counterpart, Xi Jinping. The two nations signed business deals worth $5 billion, and the Chinese leader said he wholeheartedly, “supports Kenya’s quest for industrialization.”
Observers see the media shutdown and frequency reapportioning to China’s PANG as a ploy to punish Kenyan media houses who have highlighted government failings, while rewarding government-friendly stations, and also increasing China’s foreign influence. The opposition Coalition for Reforms and Democracy leader and former Prime Minister Raila Odinga has accused the government of gagging media.
“The current farce over distribution of digital broadcast frequencies is to punish and control local news media,” Raila said. “I urge Kenyans to remain reminded of the words of James Madison: ‘A popular government, without popular information or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both.’ We are rushing in the direction of farce, tragedy and collapse, through what is clearly an ill-informed effort to consolidate power and business by curtailing and controlling media freedom.”
Raila called on the people of Kenya to stand up and demand fairness when it comes to access. He urged the government to recognise that the regulation of news and information is a delicate business that can decide the destinies of nations.
Senators Moses Wetangula, James Orengo, Prof. Anyang Nyong’o, Boni Khalwale, Lesuuda Naisula and Billow Kerrow have accused the government of curtailing democratic rights. They also accuse it of creating media monopolies and favoring foreign media. By switching off the popular stations, the senators say the government has denied Kenyans their constitutional rights under the Bill of Rights.
These senators also condemned an incident in which Members of Parliament (MPs) and residents from Narok County were roughed up by police, arrested and held for questioning in the Maasai Mara National Reserve. One person was killed. The MPs and residents had held a peaceful demonstration to petition the national and county government over corruption and misappropriation of funds, and the government’s illegal allocation of reserve land to private developers. The Maasai Mara game reserve is adjacent to Serengeti National Park, and is famous for its spectacular annual wildebeest migration.
Growing opposition to government crackdown
Media owners and journalists have gone to court to challenge the new communications laws. Late in February 2015, Kenya’s High Court declared portions of the new Security Laws unconstitutional, saying that the provisions violated fundamental human rights and that the rules did nothing to improve national security and fight terrorism. Provisions limiting media freedom, permitting random revoking of identity cards, and allowing government phone tapping were nullified.
Maina Kiai, UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and Association, agreed that the proposed law restricting NGO funding and the new law that silences the media are descriminatory and therefore also unconstitutional.
“We live in a global village and what the government is doing is uncalled for,” Kiai said. “The government is moving us back to where we were in the 1990s as a one-party state. But even during that period, we never saw attempts to muzzle the NGOs and media like now.” He believes that if the new laws are allowed to stand, Kenya’s democracy will be suffocated, its people harmed and environment ruined.
Those interested in the new laws can review them at www.cickenya.org/legislation.