A section of Parliament Buildings, Nairobi.
State and public officers will soon be required to get mandatory licenses to engage in harambees if a proposed legislation is passed by Parliament.
The Public Fundraising Appeals Bill, 2024 sponsored by Senator Aaron Cheruiyot seeks to provide a legal framework for the regulation of the conduct of public fundraising appeals; and to promote transparency and accountability in the carrying out of fundraising appeals to foster greater philanthropy.
The Bill also seeks to cushion the Kenyans from fraudulent, misleading and coercive harambees and provide a framework for public literacy to make informed decisions in making voluntary contributions.
It further seeks to impose stiffer penalties on those in breach of the law.
“A State officer or an appointed public officer who contravenes the provisions of this section shall be liable to a fine not exceeding five million shillings,” Section 13 of the new Bill states, and classifies it as an election offence, which could also lead to one being barred from vying.
Also barred from the harambees are any politician who intends to vie for public office, with the caveat being at least within three years preceding a General Election.
The law also compels any beneficiary of a harambee to specify the source of such contributions, as well as declare in their Kenya Revenue Authority filings in the income tax returns.
“A person who – either makes a contribution to a fundraising appeal shall specify the source of the contribution; and/ or receives funds as a beneficiary or for the benefit of a beneficiary who is a child pursuant to a fundraising appeal shall declare such contribution in the income tax returns submitted by such person pursuant to the Income Tax Act,” the new Bill says.
Failure to follow these rules for non-state officers and public officers will result in a fine not exceeding Sh2 million fine, or imprisonment for a term not exceeding three years.
The Bill comes at a time when some of the grave concerns raised by youth protesters, mainly of the Gen-Z generation, typically born between 1996 and 2012, including the opulence and flamboyance nature of Kenya Kwanza politicians at sack-carrying cash at harambees which had been a norm.
“The Bill is developed against the need to maintain the altruistic rationale that public appeals (Harambees) serve in the Kenyan society while addressing the shortcomings that have accompanied this process,” the Bill reads.
The Bill seeks to repeal the Public Collections law, whose instrumental architecture does not align with the devolved structure of the constitution and is not sufficiently robust to address corruption tendencies associated with harambees.
According to Senator Cheruiyot, the Bill is also based on the need to rescue the culture of dependency that harambee has imbued in society, extending even essentially private affairs to the larger public.
“The Bill seeks to restrict its application to private fundraising appeals except where such appeals fall within public appeals for public purposes. Its passage will promote the use of devolved structures as entities for promoting structured social development by ensuring that the conduct of public appeals is approved by assessing their links to the needs and priorities of the counties and their decentralized structures,” argues Mr Cheruiyot.
He explains that to support voluntary contributions, “it is imperative that the State grants incentives to such givers. The current regulatory regimes are limited in their financial incentives and essentially exclude private individuals. This Bill will provide frameworks within which financial incentives can be issued to voluntary contributions.”
Kapseret MP Oscar Sudi, was singled out over his Sh 20 million harambee generosity triggering an uproar among Gen-Zs, forcing president William Ruto to crack the whip by halting harambees by state and public officers and tasking the then Attorney General (AG) Justin Muturi to come up with a proposed legislation to address the protesting youth’s concern.
The Bill was made public on July 12th, days after the breach of parliament of June 25th, at the height of the anti-government protests against the Finance Bill, 2024 and a to-do list of the grievances they needed the president to address.
On July 5, the President said no state or public officer would be allowed to participate in fundraising activities, directing the affected officers to keep off philanthropic activities.
On July 11th, bowing to pressure from Gen Z to dissolve his inaugural cabinet, a week later, President Ruto said the proposed legislation barring State and public officers from engaging in Harambee was now ready.
He spoke from State House, Nairobi when he also dissolved his Cabinet, sending home all Cabinet Secretaries and Attorney General.
A week early, he stated, "The Attorney General is hereby directed to prepare and submit legislation to this effect and develop a mechanism for structured and transparent contribution for public, charitable and philanthropic purposes.
On July 10, he mandated all Service Commissions and state office holders to monitor compliance.
In a memo dated July 7 and marked confidential, Chief of Staff and Head of Public Service Felix Koskei restated that whereas the spirit of Harambee continues to propel its noble ideal of nation-building, the same has come into disrepute through perceptions of corruption and abuse of office.
“In that regard, it is notified that His Excellency the President has directed that ‘No State officer and public servant shall participate in public collections (Harambees) henceforth," he stated then.
“Accordingly, all public officers are required to adhere to the highest standards of ethical conduct and to secure their strict compliance with the directive as well as compliance by all officers under their supervision, direction, or control.”
The memo copied to all state officers including clerks of assemblies, governors, AG, CS and PSs, DPP, auditor general, controller of budget, chief registrar of Judiciary and chairpersons and CEOs of state corporations and constitutional commissions, Mr Koskei said this was in upholding the national principles and values of governance as enshrined in Article 10 of the Constitution and various laws, including the Public Officers Ethics Act, the Public Service Commission Code of Conduct and Ethics, and the Public Collections Act.
Senator Cheruiyot, a close ally of the President, sponsored the Bill that was tabled and read for the first time in the Senate on August 1st and committed to the committee on labour and social welfare.
The Bill seeks to regulate the conduct of state and public officers in participation in harambees by providing standards for persons and entities involved.
It seeks to establish regulatory mechanisms at the national and county levels, which will oversee the conduct of harambees by providing license and regulation as well as provision for fiscal incentives as a means of encouraging donations and voluntary contributions.
According to the Kericho senator, he argues that the original spirit of harambee was that individuals would voluntarily contribute their resources in the form of cash, although labour and other materials we also welcome towards the provision of communal good.
The harambee motto in Independence Kenya became more than a motto, it symbolized Kenyan unity, patriotism and more importantly the future
According to Busia senator Okiya Omtatah, the noble course was abandoned and the process was hijacked, especially by the political class.
“What started as an altruistic way to unify the nation has often bred corruption, with government officials sometimes soliciting donations for their own means and trying to evoke harambee to enact programs paid by private donations,” faulted Senator Omtatah.
He stated, "Harambee contributions are often times used as a ticket for politicians to get their way into public offices only for them to compensate themselves by engaging in corruption once elected to public office.”
Cognizant of the current laws, the Senator notes that the Public Collections Act, Cap 106 and Public Officers Ethics Act Cap 185B sought to address this vice but there are still challenges.
The Public Collection law, enacted in 1960 sought to provide for the regulation of collections of money and property from the public.
“The Act has however been overtaken by events and has been unable to address issues of corruption associated with harambees,” stated Senator Omtatah.
Then, the Public Officers Ethics law is meant to advance the ethics of public officers and outlaw the personal involvement of public officers in organizing harambees.
Under the Bill, the Cabinet Secretary (CS) responsible for social development and CECM, shall both be tasked with the operationalization of the law within 60 days of commencement and table annual reports to parliament and county assemblies on the activities.
“The Cabinet Secretary shall not later than three months after the end of each financial year prepare and submit, for tabling before Parliament a report containing information including a comprehensive statement of the purpose of the appeals, the public funds raised and the monetary value of all the donations received by beneficiaries through fundraising appeals,” clause 5 of the Bill, while clause 6 makes reference to the CECM’s role.
The harambees are classified as public and private.
