Civil Society Organizations and Government An Illustration of Practical Evolution Kenya /20/12

Introduction Key: Creation of a relationship of trust Government-CSO collaboration is a process, not a “given.” Governments frequently view civil society as a nuisance, even a threat, and not a partner. Freedom of Association includes the freedom of people to work together to achieve self- selected goals, which may or may not be compatible with Government plans.

Kenya NGO Act - Background Key “ACTORS”: – GOK – NGO Coordinating Board, Ministries, Parliamentary Committees – CSOs – NGO Council, PEN, CSO Reference Group – Consulting Partners: Charity Commission, ICNL, WMD

Timeline 2006 – Gov’t study of operation of NGO Act of 1990 …. “Sessional Paper” – Found many problems with current regulation … e.g., confusing and duplicative regulatory authority, Council representing CSOs failed, costly reg. process, laxity and discretion…. – Recommended thorough review and change

2008 – Board undertook mandated review – GOK (NGO Coordinating Board) requested technical assistance from Charity Commission (CC), and ICNL asked to participate. – Partnership established betew Board and CSOs for establishing ground rules for review process. CC and Board selected PEN to gather CSO reps to participate in review – Council seen as ineffective

Review process agreed to, but funders did not make this process a priority. – CSO Reference Group - coordinate CSOs’ engagement – Lawyers for GOK and CSOs (w/ CC and ICNL TA) undertook legal review – Regional Conversations with stakeholders, but (for insufficient funding), handled separately.. Board held 3, CSOs held more. – ICNL hosted GOK and CSO lawyers as “fellows”: drafted papers on key issues and on to process forward to develop legislative process. – General regulatory principles agreed to.

Major emphasis in 2010 – ADOPTION OF NEW CONSTITUTION – 8/27 CSOs and GOK focused on const’l reform Successful collaboration betw. Elements of GOK and CSO in terms of drafting and ultimate adoption of liberal constitution – Reinforcement and strengthening of individual and collective Freedoms and Rights, and limitations on powers of gov. Required Parliament to adopt measures to implement Const. within 2 years

Draft NGO Laws prepared by both Board and by CSO Reference Group during 2010 – Contrasting approaches Little direct contact between Board and CSO Ref. Group A second CSO-sponsored Bill drafted and circulated among stakeholders – The Public Benefit Organization Bill, providing for much less GOK regulatory oversight and eliminating the Council.

– Legislative Process – CSO Reference Group expands mandate to include broad range of CSOs – Contacts made with key Parliamentarians (esp. relevant Committees) and Law Reform Comm. – Continued improvements in draft PBO Bill – vetted across country. – Board uncommunicative, but ministries engaged. – Bill introduced in Parliament as Member’s Bill, but under sponsorship of Chair of Comm. on Labor and Soc. Welfare.

Final Collaboration After PBO Bill introduced, before Board draft was, contacts resumed betw. Board and CSO Reference Group. Joint working group has completed amendments to enable a single Bill, acceptable to Board and CSO community to proceed on fast track… as an Bill to implement Constitution, and before 2013 elections.

Conclusions Process toward collaboration between government and CSOs rarely easy “straight line.” Early engagement among stakeholders essential, even if it cannot be maintained throughout. Working knowledge of one another can lead to trust, even without agreement.

Door always left open to re-engage, and keeping other side informed as much as possible can be helpful, even w/o continuing response. Essential to hold support among constituency, through vetting, asking for opinions, meetings, etc… and this can be expensive. Care taken in process, up to and including well-constructed leg. effort, can have lasting impact on all stakeholders.

Civil Society Organizations and Government An Illustration of Practical Evolution Kenya /20/12