The Civil Society Reference Group shares in the frustrations by the Executive that impunity is emerging as one of the biggest threats to the rule of law in Kenya.

On 10th March 2021, Interior and Coordination of National Government Cabinet Secretary Dr. Fred Matiang’i and the Inspector General of the Police Service Hillary Mutyambai expressed their frustrations with the judiciary for being a stumbling block in the war against impunity and crime in the country.

The grouse by Dr. Matiang’i’ and Inspector General Mutyambai is that courts continue to release suspects charged with serious crimes such as drug trafficking and political violence on bail without considering their past criminal records. The CSRG feels for the two top security bosses. H.E. President Uhuru Kenyatta has also time without number expressed similar frustrations.

However, the Civil Society Reference Group wants to remind the Cabinet Secretary that the Executive of which he and the Inspector General are prominent members, has been in contempt of court, not once but severally on account of failing to operationalize the Public Benefits Organizations Act as was first directed by the late Justice Louis Onguto on 31st October 2016 and by Justice John Mativo on 13th May 2017.

In his ruling delivered on 31st October 2016, the late Justice Onguto made the following findings:

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i. That in failing to appoint a commencement date for the PBO Act within a reasonable time, the Executive had not only been derelict in its duties but also acted in a manner inconsistent with the Constitution and contrary to the expectations of Parliament that had only delegated to the Executive the power to gazette a commencement date for the law;

ii. That the Executive was not empowered to engage in the process of amending the PBO Act, the appointment of task force, while consistent with the Executive’s duties was inconsistent with the Constitution and as such the Executive’s powers in so far as the task force duties were also tied to the appointment of a commencement date. The Executive has no power to amend the PBO Act prior to its commencement and the attempts to do so equate irrationality;

iii. That the Executive had a duty delegated by Parliament to appoint a commencement date for the PBO Act. For irrelevant factors taken into consideration, the Executive has failed to act. This is quite contrary to the aspirations, values, and principles of the Constitution. This must also be contrary to the wishes of Parliament. The PBO Act has a central role to play in the regulation of the NGO world in Kenya. The PBO Act may have defects, patent and latent, but the defects may only be addressed after the Act has been operationalized and only through Parliament.

iv. That the Executive in failing to act has effectively abused its discretion and has not advanced any plausible reason for the failure to act;

In his conclusion of the case, the late judge:

i. Issued a declaration that the Executive’s failure to appoint a date for the coming into operation of the Public Benefits Organizations Act, 2013 is in violation of Articles 1, 10, 73, 94, 116(2), 129, and 153(4) of the Constitution of Kenya, 2010;

ii. Issued a declaration that the decision of the Executive to appoint a Task Force to amend and/or propose amendments to the Public Benefits Organizations Act, 2013 before bringing the Act into operation is illegal and ultra vires and otherwise in contravention of Articles 10, 94, 116(2), 129, and 153(4) of the Constitution of Kenya, 2010;

iii. Issued an order of mandamus compelling the Executive to within the next fourteen days from 31st October 2016, appoint and gazette a date for the coming into operation of the Public Benefits Organizations Act, 2013 (Act No. 18 of 2013).

These orders were extracted and the Executive through the Ministry of Interior and Coordination to which the NGO Coordination Board had been sneakily transferred was duly served. The Executive never acted as directed by the Court.

Being believers in the rule of law, the civil society went back to court after the Executive showed no signs of complying with the authority of a court of law established and exercised in accordance with the Constitution.

On May 13, 2017, Nairobi High Court judge John Mativo ordered the Ministry of Interior and Coordination of National Government, to publish in the Gazette within the next 30 days, the commencement date of the Public Benefits Organization (PBO) Act 2013.

The judge declared that the Executive was clearly in contempt of court over its failure to comply with a similar ruling eight months earlier. However, the judge decided to give it a last chance to the government to implement the law before taking further legal measures.

It is odd that CS Matiang’i is lamenting about impunity in 2021, more than five years since Justice Onguto (now deceased) directed in 2016 that the Executive commences the Public Benefits Organizations Act.

It is now three years since Justice Onguto died yet it does not seem to occur to Dr. Fred Matiang’i that failure by the Ministry that he heads, and which domiciles the NGO Coordination Board is impunity!

It is a case of the pot calling the kettle black when Dr. Matiang’i conveniently forgets that it is almost four years since Justice John Mativo found his Ministry in contempt, in and of itself an act of impunity, for failing to implement the Public Benefits Organizations Act within 30 days from the 13th of May, 2017 when the orders were issued.

As the umbrella organization that has been spearheading the campaign for the establishment and realization of an enabling policy, legal and regulatory environment for the citizens and their organizations operating in Kenya and the region, the CSRG, therefore, calls on Interior CS Dr. Fred Matiang’i to lead by example and act on the numerous court orders of which his Ministry remains in contempt for years and operationalize the Public Benefits Organizations Act before pointing fingers of accusations at others of being stumbling blocks in the war against impunity.

Suba Churchill is the Presiding Convener, Civil Society Reference Group (CSRG) and Coordinator, National Civil Society Congress (NCSC).