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Grasping Opportunities in Kenya: Using OGP to Improve the Operating Environment of CSOs

Churchill Ongere|

In early December 2018, the government of Kenya submitted its third national action plan (NAP 3) covering the years 2018-2020 to the Open Government Partnership (OGP) highlighting the priority areas it seeks to improve and ensure better transparency, accountability, and responsiveness to citizens in its operations.

In its third NAP, Kenya has made 6 commitments along the lines of Beneficial Ownership, Open Contracting, Open Geo-Spatial Data for Development, Public Participation, Improvement of Public Sector Performance through governance indices, and Building Open Government Resiliency.

But this 6th commitment on Building Open Government Resiliency is unique in this NAP as it offers an opportunity for critical intervention on the operating environment of civil society, one of the critical actors in Kenya’s OGP journey.

A key ambition of commitment 6 is the consolidation of democratic gains. It was expected that after 2010 when Kenya promulgated the current constitution, a better working environment for civil society organizations would be delivered, not just in abiding to the letter and spirit of the constitution, but also in realizing and promoting the practicality of a robust CSO community to monitor the government’s activities.

The present situation is a far cry from this ambition. Despite the good working relationship between government and CSOs within the OGP framework as seen in the recent NAP 3 co-creation phase, there exists animosity between the government and the sector, best seen through the continued non-commencement of the Public Benefits Organizations (PBO) Act 2013. These tensions were particularly heightened during the 2017 general elections environment where the NGOs regulator unlawfully de-registered key CSOs working on human rights.

The PBO Act 2013 is a legislation aimed at creating a better operating environment for PBOs (formerly CSOs) and promoting a good working relationship between the state and the PBO sector. The legislation was enacted by the government in 2013 yet more than 5 years later, it is yet to be commenced, in complete disregard to constitutional provisions and court orders.

CSOs are key actors in building OGP resilience and without a good operating environment for them, processes towards creating a structured local and regional OGP ecosystem will be largely ineffective.

First, CSOs are key transparency and accountability actors. The lobby for the creation of solid transparency and accountability frameworks such as OGP where they also monitor state’s participation and deliver key recommendations for improvement. In this regard, the local OGP processes should take a more proactive approach in realizing the commencement of the PBO Act 2013 as an indicator of realistic commitment to a resilient OGP process.

Second, one of the key merits of PBO Act 2013 is that it also emphasizes on openness in the Public Benefits Organizations’ sector. As such, there is already an appreciation within the sector that transparency and accountability is not an obligation for government only, but also those who monitor the state. Thus, there will be cross-learning and exchange between the state and PBOs in a scenario where advantages presented by OGP and PBO Act 2013 are both in motion.

Third, past OGP successes were also due to the relentless advocacy, lobbying, and participation of PBOs. The passage of the Companies (Amendment) Act 2017 and the Access to Information (ATI) Act 2016 both anchored in Kenya’s NAP 2 as indicators for commitments 5 and 8 respectively.  The former legislation introduced for the first time disclosure of beneficial information for both public and private companies. The passage of the ATI Act 2016 was the culmination of close to two decades of advocacy by CSOs for a legal framework through which citizens could access information held by government.

Both legislations are critical in Kenya’s current intensive anti-corruption drive and also de-risking pursuit of the Big 4 Agenda, Vision 2030, the 2030 agenda for sustainable development (SDGSs), and the African Union’s Agenda 2063. In this regard, the facilitation of a good operating environment for PBOs through the commencement of the PBO Act 2013 will not only enable them to do more work towards the realization of more commitments, but significant progress in the above mentioned development plans.

Under NAP 3, PBOs participation as supported by a good working environment will be critical in development of regulations to operationalize the beneficial ownership legislation (Commitment 1), improving Access to Government Procurement Opportunities (Commitment 2), fast-tracking enactment of the Public Participation Bill 2018 (Commitment 4), developing a tracker for available governance indices like the Africa Peer Review Mechanism and Corruption Perception Index (Commitment 5), and establishment of a multi-stakeholder OGP Secretariat (Commitment 6).

In light of the above, while the NAP 3 co-creation process was the most inclusive so far, with a broadened base that included diverse constituencies of participants unlike before, there’s need to encourage more technical participation of organizations that have actively lobbied for commencement of the PBO Act 2013 as this blog highlights the direct link between the success of NAP 3’s commitment 6, and the commencement of the PBO Act 2013.

Here, consortia such as the Civil Society Reference Group (CSRG), and the National Coalition for Human Rights Defenders –  Kenya (NCHRD-K), and the  Constitution and Reform Education Consortium (CRECO) come to light. These collectives also serve as a meeting point for CSOs that work at both national and local level hence they will be critical in cascading the gospel of open governance to local level even as we expect domestically to have more sub-national units join the open government partnership.

The County Government of Elgeyo Marakwet joined OGP in 2016 and submitted its 5 commitments 2nd Local Action Plan in November 2018, highlighting projected action for achievement of transparency in public procurement, expanded opportunities for civic participation, public healthcare service delivery, county budget and development data, and youth empowerment.

Lastly, in the Open Government Declaration, one of the critical documents CSOs signatories accede to when joining OGP, governments commit to protecting in their work. Kenya thus has to follow up on this by commencing the PBO Act 2013 as it currently offers the best legal operational framework for CSOs. Encouragingly, these discussions can now be had more proactively along Commitment 6 of Kenya’s NAP 3.

In OGP: The Guide to Opening Up Government; An Enabling Environment for Civil Society Organizations, a report by the International Center for Not-For-Profit Law, a list of recommendations for best practice in CSOs regulations have been listed. Encouragingly, the provisions of the PBO Act 2013 mirror most if not all of the best practices listed in the report. To mention a few, county examples are drawn from Estonia, Netherlands, Sweden, the United Kingdom, Romania, and South Korea which are OGP members.

Kenya, as one of the pioneers of OGP in Africa, should also follow suit and create a good operating environment for its CSOs through the commencement of PBO Act 2013.

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