What you need to know:
- KHRC chairman Makau Mutua said that they will be back in court over the decision to shut down KHRC, which he termed illegal.
- Mr Fazul Mahamed instructed the directors of AfriCOG to cease operations with immediate effect until it acquires a certificate of registration.
- High Court judge Joseph Onguto had, on April 29 last year, declared a similar attempt to deregister KHRC unconstitutional.
Non-governmental organisations believe they were shut because they were preparing to challenge President Uhuru Kenyatta’s re-election in court.
Officials of Kenya Human Rights Commission (KHRC), which was deregistered on Monday, said they had been holding consultations within the civil society to determine if to file a presidential petition by the Saturday deadline, which is set by law.
KHRC chairman Makau Mutua, while commenting on the petition, said he would not rule out anything.
“For now, we believe that they are going after us because they believe we have the wherewithal to challenge the (presidential) outcome,” said Professor Mutua from New York.
The don added that they will be back in court over the decision to shut down KHRC, which he termed illegal.
Formed in the early 1990s, KHRC is one of the leading indigenous human rights organisations in Africa with programmes covering nearly every aspect of life. One of its early executive directors, Dr Willy Mutunga, went on to serve as a respected Chief Justice.
Its board members are usually individuals of international renown in advocacy and scholarship.
Prof Mutua, the KHRC board chairman since 1992, is a distinguished law scholar at the State University of New York (SUNY) and, until recently, the dean of the Buffalo Law School at the reputed institution of higher learning. He is one of the world’s foremost authorities on human rights.
On Tuesday, a KHRC official who asked no to be named said: “It (challenging President Kenyatta’s victory) is a discussion we have been having within civil society and we will take a position (on it). There will be a press conference tomorrow (Wednesday).”
On Monday, the NGOs Coordination Board deregistered KHRC and the State agency’s executive director, Mr Fazul Mahamed, circulated a letter the organisation said it only read on social and mainstream media.
And on Tuesday, Mr Mahamed wrote to the Directorate of Criminal Investigations (DCI) asking it to shut down the Africa Centre for Open Governance (AfriCOG) and arrest the directors for allegedly operating illegally.
In the letter addressed to Director of Criminal Investigations Ndegwa Muhoro, Mr Mahamed alleged that AfriCOG “is not registered under the NGOs Coordination Act 1990 as required by law.
AfriCOG is and continues to operate as a charitable organisation in direct contravention of Section 22, which according to the Act is an offence punishable by law.”
He quoted Section 25 and Regulation 75 of the Act and the attendant regulation, which requires all organisations engaging in charitable activities to rescind their various registrations and obtain fresh registration.
“The purpose of this communication, therefore, is to urge your office to move with speed to close down the operations of this organisation and further arrest the directors and members of AfriCOG for contravening the foregoing provision, and with a view to arraigning and prosecuting them in a competent court of law,” wrote Mr Mahamed.
The board’s boss further instructed the directors of AfriCOG to cease operations with immediate effect until it acquires a certificate of registration.
And, just like he did with the KHRC case, Mr Mahamed asked the Central Bank of Kenya to freeze all bank accounts belonging to AfriCOG.
The board had accused KHRC of failing to pay taxes amounting to Sh100 million to Kenya Revenue Authority, having illegal bank accounts and employing expatriates illegally.
But the organisation, while reacting to the letter, said the particulars cited in the letter were “baseless allegations that have been directed at KHRC since 2015”.
KHRC executive director George Kegoro said the organisation had been condemned unheard by the board, in violation of the Constitution.
“It is a travesty of justice that the board, and in particular Mr Mahamed, would insist on flagrant abuse of office in total disregard of KHRC’s constitutional rights and the authority of the courts,” said Mr Kegoro.
High Court judge Joseph Onguto had, on April 29 last year, declared a similar attempt to deregister KHRC unconstitutional.
He criticised the board for wrongfully deregistering the commission and said that failure to either give notice or a hearing to the organisation before arriving at a decision to cancel its registration was a violation of its constitutional rights.
KHRC board member Maina Kiai said Mr Mahamed himself was illegally in office as the Commission on Administrative Justice had initially recommended that he be sacked.
The commission, better known as the Office of the Ombudsman, last November said Mr Mahamed should be compelled to pay the Sh8.5 million he had earned in cumulative salary.
The Ombudsman also wanted Mr Mahamed barred from holding public office, saying he was hired without the relevant academic documents and because he had “violated Chapter 6 of the Constitution of Kenya on Leadership and Integrity”.
Devolution Cabinet Secretary Mwangi Kiunjuri then sent Mr Mahamed on compulsory leave and dissolved the board but the NGO board chief did not abide by his boss’s order.
Instead, a week later, President Kenyatta moved the coordination of the NGO sector to the Ministry of Interior in an October 28 directive.
“He continues to invoke powers his office has never possessed and purports to instruct other State agencies such as the Kenya Revenue Authority and the Central Bank to execute his unconstitutional directives,” said Mr Kiai.
Mr Mahamed’s position in the board, and public service, has consistently been questioned by State actors, civil society organisations and others.
The Ethics and Anti-Corruption Commission (EACC), in a March 31, 2017 gazette notice, declared that Mr Mahamed was not fit to hold office because of his questionable academic credentials.
Other leaders of human rights bodies who spoke out in support of KHRC included director of Independent Medico-Legal Unit (IMLU) Peter Kiama, Kenya National Commission on Human Rights (KNCHR) secretary Patricia Nyaundi and Transparency International executive director Samuel Kimeu.
Anglican Church of Kenya primate Jackson ole Sapit noted that the church was concerned with State-led threats to civil society organisations.
“We condemn the deregistration of these civil society watchdogs and urge the government to review these decisions,” said Archbishop Sapit.
On social media, the NGO board was roundly condemned with several critics suggesting that it was frustrating organisations thought to have criticised the government before, during and after the just-concluded General Election.