November 23rd 2017

Opinion / Commentaries

NGO board and KRA lack authority to summon NGOs

It is clear that Katiba Institute is being targeted for litigating on matters of great public interest touching on elections, good governance and accountability by the government.

By Free Press Reporternewsdesk@kenyafreepress.comTuesday, 07 Nov 2017 11:58 EAT

Kenya Gazette Notice No. EACC/EL/INQ/13/2016 of March 31, 2017.

CIVIL SOCIETY REFERENCE GROUP ADVISES NGOS TO IGNORE SUMMONS BY THE NGO COORDINATION BOARD: REGULATOR LOST LEGAL AND MORAL AUTHORITY TO REGULATE ORGANIZATIONS REGISTERED UNDER THE NGO COORDINATION ACT

The Non-Governmental Organizations Coordination Board as currently constituted and the Kenya Revenue Authority (KRA) lack the legal and moral authority to summon any organization, let alone regulating the sector.

KRA lost any pretence to autonomy as a tax collector when its senior officials allowed themselves to be used as the registered officials of Friends of Jubilee Foundation, which coincidentally is also registered as an NGO under the NGO Coordination Act. Officials of another NGO cannot summon officials of another NGO in the pretext of enforcing tax compliance.

But even if the NGO Board were to have the powers to summon any organization, its current composition that lacks representation of the NGO Council as provided for under Section 4 (1) (i) of the NGO Coordination Act requiring that such a board must have 7 representatives of the NGO Council to constitute a quorum.

The Civil Society Reference Group (CSRG)*, would, therefore, like to advise public benefit organizations that have been summoned by the Non-Governmental Organizations Coordination Board to ignore the summons and this time around seek a court order barring the Board from constantly interfering with their work.

The Board lost its legal status when the Public Benefit Organizations Act was passed by the 11th Parliament and assented to by President Mwai Kibaki on January 14, 2013 just before his retirement. By purporting to summon even organizations that have never been registered under the outdated law, the NGO Board is acting tyrannically in breach of the law, and usurping the regulatory powers of other government agencies that also regulate not-for-profit organizations in the country.

The Public Benefit Organizations Act effectively repealed the outdated NGO Coordination Act of 1990, and renders futile any powers that the NGO Board purports to have under the law to regulate, let alone summon organizations registered under the repealed NGO Coordination Act. This legal position is further buttressed by the two High Court rulings on Petition No. 351 of 2015. Justice Joseph Onguto on October 31, 2016 that the PBO Act be implemented within 14 days and again by Justice John Mativo on May 12, 2017 that the law be commenced in 30 days.

This is the only way the affected organizations can avoid being distracted by the NGO Coordination Board that has over the years become a nuisance and a puppet at the disposal of the Executive to harass and intimidate the civil society sector.

The timing of the summonses that have been directed at Inuka Kenya led by John Githongo; Katiba Institute led by Prof. Yash Pal Ghai and Muslims for Human Rights (MUHURI) under the leadership of Khalef Khalifa and Hassan Abdille are reminiscent of previous attacks on local and international human rights and governance organizations that are perceived to be working to improve the electoral process in Kenya.

It is clear that Katiba Institute is being targeted for litigating on matters of great public interest touching on elections, good governance and accountability by the government.

Its recent application (October 17, 2017) in the High Court that stopped the government from publishing its achievements in print and electronic media pending full hearing and determination of the case, and the case against the Presidential Delivery Unit after they failed to respond to queries on how much money was spent on #JubileeDelivers advertisement campaign, in line with the Right to Access to Information as provided for in Article 35 of the constitution seem to be the reasons for summons against the organization.

Katiba Institute is also in Court challenging the constitutionality of the recently passed amendments to the Election Act and the Election Offences Act. It is also not lost on the CSRG that Khalef Khalifa and Hassan Abdille both of MUHURI were part of the application in the Supreme Court seeking a postponement of the October 26, 2017 repeat presidential elections to provide more time for resolution of issues impeding the holding of free, fair, credible and verifiable elections.

These acts of intimidation, attacks and charges that monotonously revolve around failure to comply with tax returns are not different from those that have been levelled against International Federation of Electoral Systems (IFES), the Kenya Human Rights Commission KHRC), African Centre for open Governance (AfriCog), and more recently the International Development Law Organization (IDLO) Kenya office that has been working in partnership with the government since 2009.

These summons are a cover up for investigations into the academic qualifications of the NGO Board Executive \Director Fazul Mohamed who the Ethics and Anti-Corruption Commission (EACC) has since established did not have the requisite academic qualifications at the time of appointment in to the position (see Kenya Gazette Notice No. EACC/EL/INQ/13/2016 of March 31, 2017 attached).

Signed on this 5th Day of November 2017 by:

Suba Churchill.

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