Why Limiting NGO Funding Is Not Just About The ICC Cases

A version of this article has been published in The Star.

It is easy to dismiss Moses Kuria. The Member of Parliament for Gatundu South has pretty extreme and downright stupid opinions on issues ranging from the effects of foreskin on mental faculties to the relationship between the opposition CORD coalition and the terror group, Al Shabaab. However it would be a mistake to not keep an eye on what he and his ilk are doing in Parliament.

Recently he has vowed to reintroduce an amendment to the Public Benefit Organisations Act to have non-governmental organisations whose foreign funding exceeds 15 percent of their budget classed as foreign agents. In doing this, he is resurrecting a similar bill that was introduced and withdrawn last year that also sought to limit foreign funding for local NGOs to 15 percent of their budgets. The move seems to be part of a determined effort by the ruling Jubilee coalition, whose manifesto does call for such a cap, to bring to heel the organised civil society groups that have been the bane of the UhuRuto candidature and administration. 

The proximate cause of this, as identified by Ngunjiri Wambugu in his Monday column in The Star, is the prosecution of the President and his deputy before the International Criminal Court. Mr Wambugu claims that it is Kenyan civil society that provoked hostilities with the government by “criminalizing the state” though he does not explain exactly what he means by this. Apparently he believes that the fact that the state was itself implicated in the 2007-8 post election violence and the push by civil society to secure accountability for this is equivalent to delegitimizing the state. Thus, he argues, the Kenyan state is responding, albeit in a misguided fashion, to an (unwarranted) attack.

This analysis ignores several facts of history. It was not civil society that opened the door to the Hague. In fact, as the violence was unfolding, the Party of National Unity and the Orange Democratic Movement each threatened to institute proceedings against the other at the Hague. Further, the Waki Commission, which was established as part of the National Accord that put a stop to the violence, itself recommended that the ICC be brought in if the political elite was unable or unwilling to establish a local process to try high-level suspects. The loud shouts of “Don’t be vague, it’s The Hague” did not come from civil society either but from the political elite themselves. The Deputy President himself was one of those who rejected a local process to try perpetrators.

Further, as Mr Wambugu notes in passing, the war of the state against organised civil society did not begin in the run up to the 2013 election. It has been part of a wider attempt by the Kenyan elite to avoid any manner of scrutiny and accountability for its penchant to impoverish and brutalise the population. It is important to make this distinction for outside the arena of accountability, the state has actually been instrumental in encouraging the growth of NGOs.

As Jennifer Naomi
 Brass notes in her PhD thesis, titled Surrogates forGovernment? NGOs and the State in Kenya, both local and international NGOs have a long history in Kenya.
Since independence, the government has encouraged the development of indigenous not‐for‐profit organizations, self-help societies and community-based organisations. This happened even as the state was seeking to restrict citizen participation in politics and government. In this way, as the title suggests, NGOs did become surrogates for government, offering services where government was not either unable and unwilling to do so. Through them, the reach of the state was extended and “in many ways,” she avers, “NGOs have had a positive impact on government and their existence has helped to make the Kenyan state stronger.”

The government was happy to piggyback on this as long as NGOs stuck to “development” and did not question the goings-on in the halls of power. They were expected to deliver services to the people, but not to introduce subversive and un-African ideas of democracy and accountability. It is precisely when the started to do so, especially with the emergence of governance NGOs in the 90s that the state begun to decry foreign funding and foreign agendas.

Of course, as Mr Wambugu notes, it was a fight the state was doomed to lose. However, the cooption of many of the leading lights of civil society into politics and government in 2003, left the movement floundering and blurred the distinction between the political NGOs and those competing for state power. It is this blurring that has seen civil society, just as happened with the church and to a lesser extent, the media, vulnerable to accusations of being merely a stepping stone to political power and thus of having nefarious schemes of regime change.

In the last decade, though, many governance NGOs have tried to reclaim the pedestal they once had and to refocus their efforts to core issues of governance. However, we still have a political elite, much of it infused with their former colleagues, that is not interested in enduring scrutiny or having its opportunities to “eat”extinguished. This elite has focussed its guns on preventing the re-emergence of civil society as a real check on government excess. The focus, as we are once again reminded daily, should be on “development” and “peace” and that we should guard against foreign agendas lurking around every corner.

In the end, this is what Moses Kuria’s proposed amendments are about. Not just the doomed cases at the Hague, but also protecting the avenues for patronage and enrichment at home. It is clear that the changes are not meant to make the sector more transparent, since all Mr Kuria would need to do is insist that the PBO Act- which already calls for NGOs to publish their audited accounts annually- is gazetted and implemented. They are in fact meant, as he himself acknowledges, to continue the delegitimization of, according to Ms Brass, organisations "the overwhelming
 majority of whose employees, leaders and advocates in Kenya are Kenyans, advancing Kenya‐specific social agendas –
 even when their funding is foreign".

So we should not dismiss Mr Kuria, tempting as that may be. We should take him seriously when he says that the goal of his amendments is to "control civil society".  We should all pay attention if we are to prevent a slide back to the dark days of the KANU dictatorship. As Plato once said, “the price good men pay for indifference to public affairs is to be ruled by evil men.”