Shadow Report - Sofia Abdi Task Force

CSO Reference Group (CSORG)
Shadow Report On Sophia Abdi Task Force
SHADOW REPORT
ON SOPHIA ABDI TASK FORCE
ON PBO ACT 2013 AMENDMENTS
The Civil Society Reference Group (CSO-RG)
List of Abbreviations
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CBOs
Community Based Organizations
CIDP
County Integrated Development Plan
CS
Chief Secretary
CSOs
Civil Society Organizations
CSORG
Civil Society Organizations Reference Group
DFID
Department for International Development
GOK
Government of Kenya
ICC
International Criminal Court
INGOs
International Non Government Organizations
IDPs
Internally Displaced persons
KANU
Kenya African National Union
NANGOS
National Non Government Organizations
NDI
National Democratic Institute
NGOs
Non-Governmental Organizations
PBO
Public Benefit Organization
PBOS
Public Benefit organizations
PEN
Poverty Eradication Network
PEV
Post Election Violence
UNDP
United Nations Development Programme
Abbreviations ................................................................................................................................................ ii
A: PREAMBLE ................................................................................................................................................ 1
B: SOPHIA ABDI TASK FORCE ........................................................................................................................ 1
C: WAY FORWARD PBO ACT 2013................................................................................................................. 3
D: PUBLIC PARTICIPATION ............................................................................................................................ 5
E: OPERATIONAL CONTEXT OF PUBLIC BENEFIT ORGANISATIONS ............................................................... 7
F: REGULATION & SELF REGULATION OF PUBLIC BENEFITS ORGANISATIONS ............................................. 8
G: PUBLIC BENEFIT ORGANISATIONS REGULATORY AUTHORITY ................................................................. 9
H: NATIONAL FEDERATION OF PUBLIC BENEFITS ORGANISATIONS ........................................................... 10
I: REGISTRATION OF PUBLIC BENEFITS ORGANISATIONS ........................................................................... 11
J: TRANSPARENCY AND ACCOUNTABILITY .................................................................................................. 13
K: NATIONAL SECURITY ............................................................................................................................... 14
L: FUNDING & TAX INCENTIVES .................................................................................................................. 15
M: ENABLING ENVIRONMENT .................................................................................................................... 16
N: PUBLIC BENEFIT ORGANISATIONS ACT 2013.......................................................................................... 17
O: AMENDMENTS OF THE NON GOVERNMENTAL ORGANISATIONS COORDINATION BOARD ................. 19
P: TASKFORCE REPORT ............................................................................................................................... 21
Q: CONCLUSIONS AND RECOMMENDATIONS ............................................................................................ 22
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A: PREAMBLE
1. The Public Benefit Organizations Act 2013 was passed by Parliament in 2012 and assented into
law on January 14th, 2013 by the then President Mwai Kibaki. This law provides for the establishment, operation and regulation of Public Benefits Organizations (PBOs) currently referred to as
NGOs. Once in force, the new law is supposed to repeal and take over the place of the NonGovernmental Organizations Coordination Act of 1990. The PBO Act holds the sector to public
disclosure of information and transparency standards and also facilitates collaboration between
the Government and PBOs; ensuring leadership standards in the sector are aligned with Chapter
6 of the Constitution of Kenya on leadership and integrity. It also creates room for PBOs to engage in income generating activities, provided that proceeds are ploughed back into an organization.
2. However, since the PBO Acts assent into law, its implementation has stalled following the coming
into power of a new government in the 2013 general elections. The new government under President Uhuru Kenyatta has since sought to amend the law even before it comes into force. The first
attempt to amend the law came in 2013 whereby 13 amendments, most of them draconian and
aimed at crippling the voluntary sector were defeated on the floor of Parliament after the CSO
Reference Group (CSO-RG) and other groups sympathetic to the cause campaigned against those
proposed changes to the legislation.
3. Another attempt is the 2014 joint memo by the Ministry of Devolution and Planning. These latest
amendments are 54 in total and have the potential to completely mutilate not only the PBO Act
but cripple PBOs; undermine the Constitution and gains made in the last decade; and hence undermine critical service delivery to Kenyans. Analysis by the CSO-RG shows that 32 of the 54 proposed amendments are harmful and change the letter and spirit of the PBO Act and go against
relevant provisions of the Constitution. Sixteen of the 32 harmful amendments have the capacity
to destroy and cripple the sector altogether. They include the provision that PBOs that will raise
more than 15 per cent of their annual budgets from outside the country be categorized as foreign
organizations. Other proposed amendments require all PBOs, including Community-Based
Organizations operating on small budgets to publicize their financial reports in two national
newspapers every financial year, and in default, risk deregistration.
B: SOPHIA ABDI TASK FORCE

1. In the wake of these proposed amendments to the PBO Act 2013, the Government under the
Ministry of Devolution and Planning put in place a Task Force headed by Sofia Abdi to have public
hearings on the amendments. The PBO taskforce was gazetted on 7th of November 2014 and in
line with the Constitutional requirement of public participation set up a series of public meetings
in diverse regions in the country to collect views from stakeholders on the proposed amendments
to the Act. These included the public; PBOs; community/neighborhood associations; the private
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CSO Representatives in a serious dialogue over PBO Act 2013 in December 2014
sector; religious bodies; professionals, donors and diplomatic corps. The intention was that all these
stakeholders would give their opinion on the PBO Act and how they would want it to be implemented as it has not yet been put into operation.
2. The taskforce held public sittings between the months of January and March 2015 in central locations to cover the entire 47 counties. These were Nakuru, Mombasa, Meru, Garissa, Nyeri, Eldoret,
Kitui, Kakamega and Kisumu.
3. Members of the Taskforce included Sophia Abdi as Chair accompanied by the following members:
a. Jennifer Shamalla
b. Gerald Macharia
c. Fazul Mahamed Yusuf
d. Sarah Muhoya - League of Women Voters
e. A representative from the Ministry of Interior and Co-ordination of National Government
f. A representative from the Non-Governmental Organizations Co-ordination Board
g. A representative from the Inter-Religious Council of Kenya
h. A representative from the National Council of Non-Governmental Organizations
i.
A representative from the Civil Society Organizations Reference Group
j.
A representative from the New Partnership for Africas Development/Africa Peer Review Mechanism, Kenya
The following views and presentation were made to the Task Force:
C: WAY FORWARD PBO ACT 2013

1. The Public Benefits Organisations Act 2013 (PBO Act) received presidential assent on January 14th
2013 but has yet to be commenced via gazettement. In their submissions, stakeholders commented
on proposed amendments to the PBO Act as follows:
2. Proposed amendments to the Act disproportionately impact civil society in the democratic governance sector and are an affront to democratic freedom in Kenya. They are inconsistent with the spirit of the Constitution of Kenya 2010 and rollback constitutional gains by limiting freedom of association as enshrined in Article 36, Constitution of Kenya. Proposed amendments were said to mirror
the Ethiopian approach, which has had the effect of killing civil society in the democratic governance sector of Ethiopia.
3. Proposed amendments were also said to have a detrimental impact on devolution as they disproportionately impact PBO operations at county level denying county governments much needed
support particularly in civic engagement and accountability. Additionally, that proposed amendments infringe on the mandate of county governments as espoused in the Constitution of Kenya on
public participation and community coordination.
4. A call was made not to introduce any amendments that go against the letter and spirit of the PBO
Act 2013 and the Constitution of Kenya 2010.
There has been a wide consultation on PBO Act: CSO leaders updates the media on the PBO Act and the reason why they
are calling for full implementation and the challenges of the ongoing amendments in December 2014
5. Two positions were submitted on the commencement of the PBO Act, one to immediately commence the PBO Act as is without
amendments and the other to amend the law
prior to commencement.
6. On the call for immediate commencement, it
was submitted that the continued lack of
commencement falls short of constitutional
best practice which states that a law comes
into force on the fourteenth day after its publication in the Gazette. Also, that lack of commencement is not fair administrative action
(i.e. expeditious, efficient, lawful, reasonable
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and procedurally fair) as provided for in the

Constitution of Kenya 2010. Furthermore, that
it has been impossible for the sector, members
of the public and; national/county Governments to benefit from the impact and changes
that the law seeks to bring.
7. Finally, that immediate commencement would
enable a proper evaluation of the successes and
shortcomings of the Act before any proposals
for its amendment can be made.
Our Stand: A woman gives her views to the task force in Garissa County. The Task Force Consulted Widely
and received views from many groups included women, youth, Persons With Disabilities, CSO and Faith
based Organisations.
D: PUBLIC PARTICIPATION
1. On the call for amendment prior to commencement, it was submitted that the PBO Act did not undergo sufficient public participation. In this regard there were calls for wider public participation and input
into the Act prior to commencement, a process that was achieved to some degree through the Sophia
Task Force Process. It was however noted that the PBO Task Force process undermined principles of
inclusiveness and public participation as per Article 10 of the Constitution of Kenya.
2. The taskforce was said to have failed to provide timely access to crucial information on dates/venues
of the meetings in adequate time, and through media with wide circulation. Furthermore, there was a
failure to make available a compilation of amendments that have been proposed so far to the PBO Act
to facilitate informed deliberations and presentations.
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Experts too had an opportunity to air their views in April 2015, and strongly recommending upholding the initial Act that was
signed into law by the President in 2013. If there are amendments , they should not remove the spirit of the law but rather
strengthen it.
3. Generally, it was also noted that more public awareness and participation on the Act was needed.
4. In addition submissions called upon the taskforce to: Consult with Commission of Revenue Allocation (CRA) with a view to establishing the nexus between the work of PBOs and the impact on development if a 15% cap on foreign funding proposal is made law.
5. Consult with Members of the National Assembly and Senate to assess the desirability or otherwise
of proposals to the PBO Act 2013. This was said to be proposed because members of parliament
represent areas where large segments of the population still depend on the work of local, national
and international NGOs not just for development but livelihoods as well.
6. Proposals were also submitted for the development and circulation for public consultation of draft
rules and regulations for implementation of the law.
E: OPERATIONAL CONTEXT OF
PUBLIC BENEFIT ORGANISATIONS
1. Various submissions were made citing examples of the operational context of Public Benefit Organisations (PBOs). Highlighted below
are the submissions on strengths, weaknesses, misconduct, challenges and gaps.
2. Strengths mentioned included the role of
PBOs in providing oversight and vigilance on
the implementation of the Constitution; their
key contributing sector to Kenya's development and governance milestones; humanitarian and development assistance in areas
where State and private actors do not provide
the same and technical and livelihood support for special interests groups, e.g. women
and youth.
3. Weakness mentioned included duplication of
activities and saturation of programs with
overlapping objectives; inadequate transparency and public accountability and weak governance and succession planning.
4. The biggest threat included failure to submit
audited accounts at all or within stipulated
timelines, falsifying financial and activity documents; misuse of funds as well as Criminal
activities including threats to national security
and human trafficking and 'briefcase PBOs
purporting to be supporting communities and
development .
5. Gaps were also cited in enhancing enabling
environment. These included inadequate consultation with communities on program development; weak linkages between donors
and PBOs for a devolved engagement approach; disparity between activities and im-
PBO Act 2013 according to many presenters is a very progressive from 1990 NGO Act that has governed the sector
for many years and it is important that it is fully implemented if the sector has to fulfill its mandate and the values that the Act is enhancing.
pact of activities in communities and assistance to some special interest groups are
under prioritized - particularly cited were
persons living with Albinism, widows, elderly persons and marginalised groups in arid
and semi- arid areas.
F: REGULATION & SELFREGULATION OF PUBLIC BENEFITS

ORGANISATIONS
1. Submissions emphasized the importance of
attaining the critical balance of preserving
the work and independence of PBOs, with
the need for increased accountability and
transparency in regulation of PBOS. Further
emphasized was the need to safeguard an
enabling environment for the work of PBOs
and their complementary role to Government.
Non-Governmental Organisations , which strongly

supported self-regulation.
2. The need to promote a culture of selfregulation by PBOs to complement the

efforts of the National Federation of Public Benefits Organisations was underscored. A culture of self-regulation by
PBOs was said to advance more effective
operations of PBOs and better delivery of
goals. An existing PBO peer review and
award self-regulation mechanism was
presented as an example of selfregulation efforts and frameworks.
3. Regulation standards, frameworks and
guiding principles cited in submissions
were international, regional and national.
The Universal Declaration of Human
Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR)
enshrine the freedom of association, including the right to form and operate organizations. Both of these legal instruments were noted to establish that any
restriction on the freedom of association
must pass a three-part test: they must be
1) prescribed by law; 2) necessary in a
democratic society;3) pursue specified
legitimate aims.
4. Regionally, the African Charter on Human
and Peoples Rights and the African Charter on Democracy, Elections and Governance were cited and noted to use similar
language to describe the right to freely
associate at the regional level. On the national level, Article 36 of Kenyas 2010
Constitution was cited as enshrining the
right to freedom of association. Lastly,
was Sessional Paper No. 1 of 2006 on
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Earlier governors had given their views. Governor Cheruiyot of

Kericho County, I will put my vote against these amendments
when time comes. These amendments, especially the 15% capping
on foreign funding are illegal and unconstitutional
Why such a law in our age? If president Moi did not introduce
such a law, why now? These amendments go against the
spirit of the Constitution. It is illogical to criminalize the entire sector because of misdeeds of a few: Governor Rutto,
Bomet County and Chair, Council of governors in an earlier
discussion.
G: PUBLIC BENEFIT ORGANISATIONS REGULATORY AUTHORITY

1. The following submissions were made with regards to the Public Benefit Organisations Regulatory Authority (The Authority).
2. Appointment of members of the Board: To safeguard the independence of the Authority, retain
judicial and parliamentary oversight on appointments of members to the Board of Authority. The
appointment of Director General should be by the Board of Authority. Submissions were also
made against proposals to vest appointment powers in the President to appoint the Chairperson
of the Board of the Authority and the Cabinet Secretary to appoint and remove the Director General.
3. A proposal was also made to remove the existing requirement in the PBO Act for a selection committee comprised of representatives of PBOs for purposes of considering applications, interviewing and short listing qualified for appointment as members of the Board.
4. Sector representation in the Board of the Authority: Two positions were submitted on the sector
representation on the Board via representatives of the sector as members of the Board. One position called for the retention of existing sector representation as provided for the in the PBO Act.
This was proposed to safeguard the independence of the Board and ensure sector relevant engagement by the Board. On the contrary, a position proposed removal of sector representatives
from the Board of the Authority and maintain sector representation in the Federation.
5. Devolved service delivery: Submissions were made with proposals to de-centralise the offices of
the Authority to have presence in each of the 47 counties or an office for a cluster of counties.
6. Funding of the Authority: It was proposed that a percentage of PBOs income be paid to the Authority to assist it to ensure effective regulations, transparency and accountability. Two proposed
percentages were submitted, either 5% or 10% of PBO income should be submitted to the Authority.
7. Protection of assets: The Authority was said to require more prominent role in protection of assets held by PBOs upon deregistration.
8. Powers of the Authority: The powers of the authority should be increased to allow the authority
to freeze bank accounts of organisations as well as blacklist rogue PBO officials.
9. Transition: Three positions were submitted on transition: One that the transition of the NGO Coordination Board as provided for in the Act should be retained; the second that the provision
providing for the transition of the Board should be deleted; third, that the Board should only
transition for a period of time until a Chairperson of the Authority is elected, after which a new
Board should be constituted.
10. Capacity Building: The Authority should

capacity build national PBOs especially
those in rural areas on leadership, management and resource mobilisation.
H: NATIONAL FEDERATION OF
PUBLIC BENEFITS ORGANISATIONS
1. The following submissions were made
with regards to the National Federation of
Public Benefits Organisations (The Federation).
2. Independence: No executive representation or control in the Federation
3. Membership: Proposals were submitted
that membership to the Federation
should be compulsory. Other proposals
stated that membership to the Federation
should be optional in line with Article 36
of the Constitution.
4. Powers: Empower the Federation to directly propose 50% of nominees to the
PBO Authority and; grant powers to audit
reward and/or punish PBOs.
5. Devolved service delivery: Devolve the
Federation to counties by creating County
PBO Federation Forums.
6. Funding: It was proposed that the Government fund the Federation. Proposed
County PBO Forums should be supported
by Government by allocating 2% of the
County Revenue collection to them.
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Governor Cheboi of Baringo County (right): The 15%

cap on foreign funding to PBOs as presented in the amendments is a killer. To many of us in Arid-lands it is like cutting the hand that feeds us. He spoke for many poor communities, who cannot access vital services without the support
of Civil Society
7. Transparency: Federation should provide an online

platform for promotion of transparency and accountability in respect to grants.
8. Transition: Some submissions recommended the
transition of the National Council for NGOs (NGO
Council) to the Federation while others recommended a fresh leadership be constituted under
the Act with no transition of the Council.
9. Whistle blower protection: The Federation should
offer adequate protection for whistle blowers.
10. Capacity Building: NGO Council should capacity
build national NGOs especially those in rural areas
in leadership, management and resource mobilisation.
11. Coordination and Linkages: Federation officers
should not duplicate the work of Social Development Officers, Assistant County Commissioners
and Chiefs in terms of oversight of PBOs and reporting.
Civil Society itself has had its share of challenges and although there was consensus that the sector must puts its house together, there
was a rousing consensus that the PBO Act 2013 provide adequate proposals on how to curb myriad challenges facing the sector
including the importance of self regulation , transparency and accountability to its stakeholders. CSOs actors in an earlier engagement
on the PBO Act.
I: REGISTRATION OF PUBLIC BENEFITS ORGANISATIONS

1. On registration processes as a whole, it was submitted that organizations currently registered under
the NGO Coordination Act 1990 should automatically be considered registered under the PBO Act
when it comes into force. No further burden should be placed on PBOs to register afresh under the
PBO Act.
2. Submissions both supported and rejected proposals to register all charitable institutions under one
regime. It was further proposed in the case of a one regime registration, that a grace period for registration of organisations under different regimes be granted.
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3. In submissions in support of voluntary migration under the Act, it was submitted that the
Act was conceptualized as a voluntary registration framework and that, an unintended
consequence of compulsorily forcing the sector to migrate to a new law could lead to the
loss of millions of shillings. 'Compulsory migration' to a new legal regime will attract a 4%
stamp duty on all non-movable assets and real estate.
4. It was submitted that procedures for registration of PBOs remain clear and leave no room
for arbitrariness. Terms and conditions for the
grant of certificates of registration, permits of
operation and public benefits organisation
status should be clearly defined in rules and
regulations to ensure they are not selectively
and arbitrarily applied. This was noted as being important to ensure that freedom of association is not jeopardized.
7. Also cited was the high financial detriment by

way of a 4% stamp duty on all non-movable
assets and real estate to some PBOS if compelled to change legal identity as proposed.
Proposals were further submitted to retain
provisions of the PBO Act that provide for voluntary migration to the Act based on cited inherent freedom to opt for best suited legal registration under freedom of association.
8. It was submitted that proposals to amend the
registration process to add an element of
'recognition' so that organisations must be
"registered and recognized" introduces a lack
of administrative clarity, operational uncertainty, and possible confusion for both the Authority and those seeking registration. Other sub-
5. It was proposed that the power to make

terms and conditions for registration of PBOS
should be vested in the Cabinet Secretary and
not the Authority. The Cabinet Secretary is
then proposed to gazette regulations on the
same.
6. A single registration regime for all organisations and entities doing public benefit activities was proposed and indicated to require
the amendment of the Companies Act, Trustees Act, Societies Act and any other law that
registers charitable institutions. This proposal
was opposed by other submissions which supported multiple registration regimes for PBOs
based on their objectives and nature of operations.
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Hon. Sophia Abdi Nur, Chair of the Task Force appointed by

Chief Secretary Devolution and Planning to get public views
on the amendments to PBO Act 2013, gives her views
during a Stakeholders Forum in Dec 2014.
Experts and development partners have also added their views. Representatives from Development partners (donors ) in
Kenya and Institute of fund raisers making their contributions in an earlier consultation.. We should not allow the sector to be
split into sectors or into bad or good classification. Such a split would make the work of development partners harder.
missions were made that if a provision for 'recognition" was added to the PBO Act, then clear and
foreseeable rules should be made to detail the process and status of "recognition."
9. In terms of activities, it was submitted that the Act should ensure that the registration status of PBOs
matches organisational activities and; ensure that PBOs revise Memoranda and Articles of Association when their activities and focus changes.
10. On de-registration of PBOs by the Authority, it was proposed that this should be done in consultation
with the National PBOs Federation.
J: TRANSPARENCY AND ACCOUNTABILITY

The following submissions were made with respect to transparency and accountability:
1. Reporting: The Authority should publish an annual "State of the PBO sector" report to strengthen
PBO, State and public understanding and accountability.
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2. Corruption: Expand the mandate of the Ethics and Anti-Corruption Commission to deal with corruption
in private sector and civil society.
3. Disclosure of information: PBOs should be made to disclose information pertaining to the objectives of
projects, timelines, allocated funds and source of funding. The Authority should then ensure transparency and compliance by publicly displaying key accountability documents including audited reports,
annual reports, plans and budgets.
4. It was further submitted that a proposal for the requirement of PBOs to publish their financial accounts in two newspapers would place an undue burden on PBOs and should be deleted.
5. Review of PBOs: In the event of reasonable suspicion of mismanagement in a PBOs affair, the Auditor
General can be called upon to review the case and make recommendations.
6. Financial accountability: Enforce annual returns by a certified company secretary for NGOs with funding of over $100,000 a year to provide oversight, check concentration of power in governance structures and allow for perpetual and rational use of an organisation's resources. PBOs should also be required to conduct annual independent audit and have audit committees in place.
7. The establishment of a regulatory/governing institution was proposed to oversee the expenditure of
PBO funding to ensure that it is utilised for the same objectives it was raised for.
8. Financial capacity building: Establish accounting training program for both PBOs and donors.
9. Donor code of conduct: Donors should subscribe to a code of conduct for purposes of donations,
grants and sponsorship in order to cap corruption, insecurity and money laundering.
10. Penalties: Fines should be stipulated for failure to properly prepare and submit financial reports in required timelines. However, reporting requirements should not be burdensome as to constrain a PBOs
ability to conduct its activities.
11. Disposal of Assets: At the end of projects, disposal of assets should be monitored to ensure leaders are
not beneficiaries.
12. Classification: Sources of funding should not be used as a basis of classifying national and international
NGOs, other appropriate parameters should be used.
K: NATIONAL SECURITY
1. Consider representation of the Inspector General and Director General (NIS) on the Board of the Authority to facilitate carrying out background checks on PBOs as well as handle any security matters that
may arise.
2. Create more offences in the Act to deal with PBOs that engage in criminal activities.
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We the Women: A woman representative gives her views on what the law should reflect on women and other marginalized
groups. There were views that the sector must tame errand PBOs that misuse resources given to it on behalf of citizens.
Transparency and accountability is a must in creating an enabling environment for the sector.
3. Adopt measures to deal with PBOs that fund or engage in acts of terrorism, radicalization and human
trafficking.
L: FUNDING & TAX INCENTIVES

1. The following submissions were made with respect to funding and tax incentives:
2. Funding restrictions: PBOs note that their services and other engagement towards the development
and humanitarian landscape of Kenya was largely reliant on foreign funding. Furthermore that much
of this work and operations would have to cease if proposals to cap foreign funding are adopted. Any
restrictions to foreign funding on the PBO sector will jeopardize key partners in the Government's
capacity to deliver on the Medium Term Plan (MTP) and Vision 2030. Submissions were made
against a funding cap on foreign funding rather PBOs should be able to source all funds both locally
and internationally.
3. It was also submitted that the debate on a local funding requirement percentage should be subject to
debate. Should a percentage be set, it should be set depending on the size of the organisation with
larger PBOs required to raise more funds locally. This should be implemented on an incrementally
increasing basis to give organisations time to grow and strategize for local funding.
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4. Basket funding: Proposals to require development partners to channel funding

for public benefit organisations through a
single agency are unworkable based on
development partners policies. Such proposed restrictions fall short of international best practice.
5. Tax incentives and concessions: Retain
clauses in the PBO Act that promote philanthropy through tax incentives (Section
65 and Schedule 2). Additionally, that donor funding should be taxed before it's
given to NGOs
6. Concessions: Provide a uniform system
for PBOs of benefitting from Government
concessions
M: ENABLING ENVIRONMENT
1. It was noted that sustainable development of Kenya requires continuous and
structured involvement of PBOs and development partners in the work of the
Government of Kenya. Government
should therefore foster an environment
where PBOs thrive and work together
with Government for Kenyans. The following submissions were made with respect to an enabling environment:
2. Enabling environment: Retain obligation
on the State to provide an "enabling environment for PBOs, "consult PBOs on public policy," and "PBO participation except
through their representatives."
The Act must strong espouse self regulation as mantra. Self

regulation is not only a constitutional rights but also a
management standard world wide. Further more the 2006
sessional paper no. 1 on NGos is still prevailing governance
mechanism for NGOs in Kenya and the new Act must espouse this
principle.: Erastus Omolo of Erastus Howard and company in an
earlier presentation , a position which many CSO presntations
supported
3. Freedom of association: Any future law

governing PBOs to comply with Articles
36 and 37 of the Constitution of Kenya on freedom of association and collective action
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4. Balance: Strike a balance between mechanisms that preserve the work and independence of CSOs
with the need for increased accountability and transparency.
5. Human rights and public interest: The State should endorse PBOs through a policy framework that legitimizes the work of Human Rights Defenders and PBOS recognizing their right to independence and
freedom of action, and to be able to speak out on issues of public concern.
6. Local context: Ensure express safeguards for the hiring local staff to design programs in the Kenyan
context.
7. Self-regulation: PBOs should be encouraged to self-regulate similar to other professional associations.
8. Collaboration and notification: PBOs should be required to pay courtesy calls to county authorities/governments while implementing activities. County authorities should also be required to provide
security from PBOs implementing activities in the county.
N: PUBLIC BENEFIT ORGANISATIONS ACT 2013

1. General submissions were received on existing provisions of the PBO Act as follows:
2. The Act was developed through consultative and participatory process. It was cited to be both a progressive and adequate legislative framework to increase the transparency of registration of PBOs and;
improve the procedures for self-regulation and accountability. It was noted that the Act will facilitate
greater compliance by PBOs with the international standards of good governance and competence, as
well as with statutory regulations.
3. Retain clauses which strengthen self-regulation and accountability to the public including provisions
which provide for maintaining authentic accounting records, annual filing of accounts with the PBO
Regulatory Authority, making accounts publicly available on the Internet or physically upon demand
and; retaining the accounts for at least five (5) years.
4. Domestic philanthropy and corporate social responsibility: Retain the Second Schedule of the Act as it
encourages domestic funding, reduce over reliance on overseas development assistance, increase
funding diversification and enhance long term financial sustainability.
5. Elections: Retain provisions for the Independent Electoral and Boundaries Commission (IEBC) to oversee elections of the Federation.
6. Public Private Partnerships: Retain clauses that enshrine public-private partnerships (Section 4, Section 66 (4) and the First Schedule of the Act
7. Entry permit - Provision requiring PBOs wishing to obtain entry permits in respect of prospective employees to apply in writing to Principal Immigration Officer in accordance with provisions in Immigra-
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tion Act should be revised. The office of immigration is not qualified to determine experts needed for
charitable sector.
8. Regulations: Revise S. 69 (4) of the Act to make regulations the responsibility of the Cabinet Secretary
and Authority alone
9. Investigations: In some circumstances, permit ex parte orders. Also, empower the Authority to access
premises for the purpose of investigations.
Denying |PBOs to self regulate is contrary to past and current practicessin Kenya and the region. There is no way in which the
government alone can carry the burden of being the only regular in such a diverse environment.
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O: AMENDMENTS OF THE NON GOVERNMENTAL ORGANISATIONS

COORDINATION BOARD
1. The following is a summary of the proposed amendments to the PBO Act by the NGO Coordination
Board.
2. Enabling environment and collaboration - delete the entire First Schedule of the Act detailing Government duty to provide an enabling environment for PBOs, principles of collaboration between
PBOs/Government and duties of PBOs. This included removal of joint committee with shared representation from Government and PBOs in pursuance of the provisions of the principles.
3. Compulsory migration to the PBO Act - deletion of provisions bestowing PBO status and registration
of all charitable institutions under the PBO Act.
4. Evidence of registration - introduce an entry into a register as conclusive evidence of registration.
5. Removal of online copy of register of all PBOs - delete requirement for Authority to make available a
copy of its register of PBOs online.
6. Terms and conditions attached to registration certificates - insert a new provision giving the Authority power to either on its own motion, or petition by at least 5 PBOs, determine the terms and conditions attached to certificates of registration.
7. Term of Board of Federation: Reduce term of members of the Board of the Federation from 5 years
to 3 years.
8. Appointment of Chairperson of the Board of the Authority: Presidential appointment of the Chairperson of the Board of the Authority.
9. Appointment Director of the Authority - Proposed to be appointed and removed by the Cabinet Secretary, not the Authority as currently provided.
10. Removal of Director of Authority - It is proposed that removal of the Director follow the process provided for in the State Corporations Act. Current provisions of the PBO Act on the same are proposed
to be deleted.
11. Procedure for Nominating Board of the Authority - Delete entire third schedule that provides the procedure for nominating the Board of the Authority. Adopt process in State Corporations Act.
12. Removal of Federation representation on the Board of the Authority: Change the composition of the
Board of the Authority by removing the Chairperson of the Federation and the two nominated members of the governing board of the Federation.
19
All forum included presentations by Persons with Disabilities. A representative of Persons With Disabilities makes his views known in
Kisumu.
20
13. Transition of the NGO Council - Delete provision providing for transition of NGO Council to continue
in office as members of the governing board of the Federation.
14. PBO Disputes Tribunal: Deletion of existing provisions for all members to be appointed by the Chief
Justice and approved by National Assembly. Proposal for; Chairperson to be appointed by Judicial
Service Commission (JSC), two advocated nominated by the Law Society of Kenya, and two persons
with specialised knowledge recommended by the Cabinet Secretary for matters relating to PBOs. It is
also proposed that the prohibition for member/staff of the Authority to be a member of the Tribunal
be deleted. Insertion of a new provision for the JSC to appoint a Chief Executive Officer of the Tribunal.
15. Disposal of Assets: Give the Authority power to make decisions on the transfer of assets to PBOs after
an organisation is deregistered, wound up or dissolved.
16. Powers of investigation: Insert new provisions to allow the Authority access into premises of its own
initiative or upon receiving a complaint from members of the public. Additionally, to empower the
Authority to get a court order in the absence of a representative of an organisation/relevant party (ex
parte order). This court order will allow an officer of the Authority to enter a premises and conduct
an audit of the organization's records. An ex parte order will be sought after notification of the Authority's purpose, authority and demand of admittance is duly made and the officers of the Authority
cannot otherwise obtain admittance.
17. Financial contribution of PBOs to Authority: It is proposed that all PBOs registered under the PBO Act
shall contribute 1% of their earnings or donations to the Authority.
18. Tax exemptions & incentives - Remove majority of tax exemptions and incentives in the Act and replace with a new provision which provides that the Authority may make recommendations to the
Kenya Revenue Authority to grant tax exemptions to PBOs.
19. Registration of local offices by international PBOs - proposal that international PBOs no longer use
authorized agents in Kenya but be required to register local offices.
20. Regulations - Delete requirement for the Cabinet Secretary to gazette intention to make regulations
and provide information on where a copy of the draft regulations may be obtained. Delete requirement for one month period for public comments and express requirement for consideration of public
comments before making the regulations.
P: TASKFORCE REPORT
1. Submissions called for the making public of the taskforce report for public accountability and; a national validation conference with stakeholders drawn from the 47 counties to harmonize the PBO Act
proposals.
21
Q: CONCLUSIONS AND RECOMMENDATIONS

1. The CSO Reference Group makes the following recommendations with regards to the Public Benefits
Organisations Act 2013 (PBO Act):
2. Commence and operationalise the PBO Act 2013 immediately. Any proposals to amend the PBO Act
should be considered after a proper evaluation of the successes and shortcomings of the Act have
been made. Such an evaluation should be undertaken after a sufficient and appropriate period of operation of the Act has lapsed.
3. Develop draft rules and regulations for the operationalisation of the PBO Act. Gazette notice of these
regulations and call for public comment over a period of at least one month to ensure sufficient public
participation. Draft rules and regulations should, like the PBO Act, be appropriately enabling.
4. Retain voluntary migration to the PBO Act to provide for the broadest possible realisation of freedom
of association for Kenyans and; protect the important input of public benefit organisations through
the best suited mechanisms for their objectives.
5. Retain registration procedures and terms which are transparent, foreseeable and facilitate better coordination of PBOs while safeguarding the freedom of association.
6. Retain provisions of the Act that promote and advance domestic philanthropy, tax incentives and corporate social responsibility. This will encourage domestic funding, diversify funding, enhance long
term financial sustainability and reduce reliance on international development assistance.
7. Pursuant to internationally, regionally and nationally protected principles of freedom of association,
protect the right of PBOs to seek and secure funding from any legal source including; individuals, businesses, local and international partners as well as other civil society actors.
The consultation catered for

the needs of Persons With
Disabilities and provided sign
language interpreters in all the
forums. A sign language
interpreter in Kakamega
22
8. Retain the obligation of the State to provide an enabling environment for Public Benefit Organisations
and; principles of collaboration between Public Benefit Organisations and Government.
9. Retain clauses that strengthen self-regulation and accountability to the public. This is essential in
building ownership, responsibility and effectiveness in the sector.
10. Safeguard the independence and credibility of the Public Benefit Organisations Regulatory Authority
by retaining clauses that provide for public, parliamentary and judicial oversight over the appointments of members of the Board.
11. Strengthen information disclosure of PBOs for public accountability through appropriate provisions in
the Rules and Regulations that will be developed to operationalise the Act.
12. Ensure any future amendments to the PBO Act comply with Kenya's international, regional and constitutional obligations under Freedom of Association as enshrines in the Universal Declaration of Human
Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic Social and Cultural Rights (ICESCR), the African Charter on Human and Peoples
Apart from consultation on Constitution of Kenya 2010, few laws have reached the depth of engagement and consultations
hat the PBO Act took with initial far reaching engagement by many CSOs Actors including Poverty Eradication Network and
CSO Reference Group in 2014 and now the Sofia Abdi Task Force on PBO Act in 2015. In essence we can say that the citizens
have spoken and must be heard.
23
Rights, the African Charter on Democracy, Elections and Governance , the Constitution of Kenya 2010
and Sessional Paper No. 1 of 2006 on Non-Governmental Organisations.
13. Ensure that any present or future restrictions to freedom of association comply with the internationally prescribed three part test. This test requires that any that any restriction on the freedom of association must pass all parts of the three-part test which provide that restrictions must be: 1) prescribed by law; 2) necessary in a democratic society; 3) pursue specified legitimate aims.
In Nakuru, this elder had a candid point to make. Fighting right and justly, not with a cane but with his words.
24
Why should government that is struggling to feed its people, struggling to provide
education and health to its children, that they can even think and even try to stop
anyone (local of foreign) from helping suffering people? This is ridiculous!
25
CSO Reference Group

c/o Poverty Eradication
Network (PEN)
Sir. Francis Ibiam House 6th Floor
AACC Compound, Waiyaki Way,
Westland
P. O. BOX 4932
Nairobi Kenya
Phone: +254-20 8164164
Fax: +254 - 20 440880
Cell: +254 - 720 600656/734
450645
www.pboact.or.ke
Enhancing Enabling
Environment
26

Shadow Report - Sofia Abdi Task Force

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CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

The Civil Society Reference Group (CSO-RG)

CSO Reference Group (CSORG)

Community Based Organizations

County Integrated Development Plan

Civil Society Organizations

Civil Society Organizations Reference Group

Department for International Development

International Criminal Court

International Non Government Organizations

Internally Displaced persons

Kenya African National Union

National Non Government Organizations

National Democratic Institute

Public Benefit Organization

Public Benefit organizations

Poverty Eradication Network

Post Election Violence

United Nations Development Programme

Shadow Report On Sophia Abdi Task Force

CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

B: SOPHIA ABDI TASK FORCE

CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

A representative from the Civil Society Organizations Reference Group

C: WAY FORWARD PBO ACT 2013

CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

and procedurally fair) as provided for in the

CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

F: REGULATION & SELFREGULATION OF PUBLIC BENEFITS

CSO Reference Group (CSORG)

and their complementary role to Government.

Shadow Report On Sophia Abdi Task Force

Non-Governmental Organisations , which strongly

2. The need to promote a culture of selfregulation by PBOs to complement the

Earlier governors had given their views. Governor Cheruiyot of

CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

G: PUBLIC BENEFIT ORGANISATIONS REGULATORY AUTHORITY

CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

10. Capacity Building: The Authority should

Governor Cheboi of Baringo County (right): The 15%

7. Transparency: Federation should provide an online

CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

I: REGISTRATION OF PUBLIC BENEFITS ORGANISATIONS

CSO Reference Group (CSORG)

Shadow Report On Sophia Abdi Task Force

7. Also cited was the high financial detriment by

5. It was proposed that the power to make

Hon. Sophia Abdi Nur, Chair of the Task Force appointed by