wdt-elementor-addon domain was triggered too early. This is usually an indicator for some code in the plugin or theme running too early. Translations should be loaded at the init action or later. Please see Debugging in WordPress for more information. (This message was added in version 6.7.0.) in /home/hjqatszm/gwrifa.com/wp-includes/functions.php on line 6170a) Unified Framework for PBOs The Act creates a single, cohesive identity for various civic organizations, including NGOs, foundations, trusts, and occupation-based associations. This consolidation aims to organize and streamline the civil society sector, making it more efficient.
b) Enhanced Accountability and Transparency Aligned with Chapter 6 of the Kenyan Constitution, the Act emphasizes public disclosure and higher accountability standards for PBOs. This is expected to increase public trust and legitimacy of these organizations by making their operations more transparent and accountable.
c) Improved Regulatory Environment Replacing the outdated NGO Coordination Act of 1990, the PBO Act introduces a more supportive regulatory environment. It establishes the Public Benefit Organizations Regulatory Authority (the Authority) to oversee PBO registration and regulation, streamlining processes and reducing bureaucratic obstacles.
d) Inclusive Policy and Consultative Processes Developed through four years of consultation between the state and NGOs, the Act reflects a balanced and supportive regulatory framework. The 2022 electoral campaigns and the 2024 CSO UN Summit for the Future highlighted the political will to operationalize the Act.
Kenya's civil society, one of the most vibrant in Eastern Africa with over 50,000 organizations, will benefit significantly. The Act provides a clear regulatory framework, enhancing the capacity and sustainability of PBOs to contribute to national development.
a) Promoting Development and Advocacy The Act supports PBOs in delivering development, capacity building, and advocacy services, fostering cooperation between national and county governments, development partners, and the public. This collaborative environment is crucial for addressing social issues and promoting inclusive development.
b) Addressing Public Complaints The Act establishes mechanisms for addressing public complaints against PBOs through independent regulation and membership agencies. This provision maintains public confidence by ensuring PBOs adhere to ethical standards and best practices.
c) Legal Certainty and Operational Clarity The Act repeals the NGO Coordination Act and provides a clear transition process for NGOs. Organizations registered under the old Act are now considered PBOs and have up to one year to re-register, while previously exempt entities have three months. This transition ensures continuity and legal certainty for existing organizations.
d) International Participation Specific provisions for international organizations include requiring at least one-third of directors to be Kenyan residents and maintaining an office in Kenya. This ensures international PBOs are integrated into the local context, promoting greater accountability and local involvement.
Despite the delayed operationalization, the PBO Act's implementation is a landmark achievement for Kenya's civil society. It provides a modern, supportive, and transparent framework that enhances PBOs' capacity to contribute to social, economic, and cultural development. The Act’s successful implementation depends on forthcoming regulations and the continued commitment of all stakeholders to uphold its principles and objectives, marking a significant step towards a more robust and effective civil society sector in Kenya.
For more information on the Public Benefit Organizations (PBO) Act, please contact Jackson Gichunge at info@gwrifa.com or gichunge@gwrifa.com.
Not quite. The content put out by the likes of Abel Mutua and co. falls under the category of audio-visual works. An audio-visual work is media that contains both sound(audio) and pictorial/video(visual) components. According to the Films and Stage Plays Act (told you this law would come in handy) audio-visual works are included in the broader definition of the term film. And, as per Section 4 of the Act, no one is allowed to make films in the country for public consumption without a filming licence.
So, who issues these filming licences you ask? That mandate belongs to the Kenya Film Classification Board through authorized licensing officers. However, (insert Ian Mbugua’s voice), there are a couple of things to note about obtaining a filming licence. Most notable is that the licences are not blanket permits issued one-off to filmmakers or which operate for a specific period. Every film warrants a new licence which application is made by submitting a full description of the scenes and the script. If any of these is in a language other than English, then a translation must be provided. The licensing officer will examine the requested documents and use his discretion (fancy word for wisdom) to issue or refuse to issue a licence. He can also demand that certain conditions be met before issuance of the licence. Creative freedoms are almost non-existent when it comes to these licences because filmmakers are not allowed to make any alterations to the films without the prior consent of the licensing officer.
A strict reading and interpretation of the Films and Stage Plays Act shows that KFCB was well within its mandate to issue the letters. This strict adherence to the literal words as used in any law or regulation is referred to as keeping to the letter of the law. Consequently, and in keeping with the letter of the law, the content creators were required to obtain filming licences before making and distributing their content on the various platforms.
The letters issued by KFCB only tell one side of the story; that of the licensing authority. The recipients of the letters also told their side by posting them on social media and the revocation by KFCB shows that their story was more compelling. Context is important and none more so than the digital age we live in. The advent of over-the-top (OTT) and social media platforms has drastically reduced mainstream film production and the arduous processes that come with it. Audio-visual works are shot on smartphones and go-pro cameras and very quickly uploaded on the World Wide Web.
Demanding filmmakers to obtain licences for every video uploaded on YouTube or TikTok sounds borderline impossible. Content creation has become a source of livelihood for many. Demanding compliance with the strictures of the Films and Stage Plays Act seems retrogressive in a country where so many youths are struggling with unemployment. The demands by KFCB seem even more punitive when platforms such as YouTube, TikTok and Facebook Watch have their own community/user guidelines on the content that can be uploaded and shared. These guidelines are usually backed by local laws and tend to vary from country to country. It would therefore seem that KFCB need to adopt a more lax approach to the implementation of the law and consider the drafters’ intention (spirit of the law).
For more insights on media law, please contact Wahome Wilson at wahome@gwrifa.com or info@gwrifa.com
The Finance Bill 2023 was assented to on 26 June 2023. This confirmed its status as law and set the wheels in motion for amendments to 12 different legislations, with many of the provisions set to ultimately raise taxes. 11 Constitutional petitions that sought to challenge the process leading to the enactment and constitutionality of the new provisions quickly followed. The petitions were consolidated and upon hearing the matter, several provisions of the Act were found to be unconstitutional. The appeals that arose to challenge the decision of the High Court regarding the unconstitutionality of various sections eventually led to Civil Appeal E003 of 2024.
The rationale of public participation is to afford the public a meaningful opportunity to participate in the legislative process and strengthen the legitimacy of laws in the eyes of the people. The principle of public participation is that those affected by a decision have the right to be involved in the decision-making process. In Kenya and most other jurisdictions, Parliament has a constitutional obligation to facilitate public involvement in legislative processes.
Proper public participation in the legislative process is a fundamental constitutional requirement. This process must be both genuine and meaningful, extending beyond a mere procedural formality. According to the judgment, public participation should be infused with transparency and accountability, reflecting the core principles of democratic governance outlined in Article 10 of the Constitution. This includes ensuring the public's views are not only solicited but also given proper consideration.
There are also set out components of public participation including:
Parliament is obligated to provide reasons for adopting or rejecting public proposals. This duty ensures the legislative process remains transparent and accountable, aligning with the constitutional values of democracy, good governance, and respect for public contributions. Insulating Parliament from the need to justify its decisions would undermine the purpose of public participation and could render it superficial.
For more insights, please contact Wahome Wilson or Gichunge Jackson at wahome@gwrifa.com or gichunge@gwrifa.com.
Tuesday, 18th June 2024: The first round of protests against the Finance Bill 2024 begins with numerous protestors turning up.
Thursday, 21st June 2024: Second round of protests that attract larger crowds from various parts of the country
Friday, 22nd June 2024: A program indicating the activities lined up by the protestors dubbed 7 Days of Rage is released.
Tuesday, 25th June 2024: The largest group of demonstrators came out in 35 counties across the country.
Many people have labeled this a Gen-Z fight, but the truth is that plenty of millennials have been at the forefront. The seasoned human rights defender and photographer Boniface Mwangi (40 years) and Shadrack Kiprono (aka Shady, 35 years) are two of the older faces associated with the ‘tribeless, leaderless, and partyless’ movement. What sets this movement apart from so many before it is its unity of purpose. Since the first round of protests, their objective has been one: #RejectFinanceBill2024.
The movement has also been spurred by X (formerly Twitter). The social media platform has formed the base of resistance, with much of the communication and logistical planning happening there. It has also been a powerful mobilization tool, as evidenced by the call for donations to support the families of the first two victims of the protest, Rex Masai and Evans Kiratu. The call was honored, and organizers were able to raise 2 million shillings in about 5 hours.
“If you think tribalism is our biggest threat then wait until the young, unemployed populace get hungry and angry! That will be the day.” @SheilaBirgen on X
Sheila’s statement on X encapsulates part of the current situation in the country. The youth are both hungry and angry. Unemployment levels are through the roof, and to compound matters, the current government has been on a relentless mission to raise revenue, resulting in overly aggressive tax policies. The government insists that these measures are necessary to reduce the country’s debt distress.
However, Kenya’s debt situation is just part of the problem (at least according to Kenyans). Whatever issues we face as a country are exacerbated by the government’s unnecessary expenditure, waste, and corruption that, if resolved, would greatly aid in managing the country’s affairs. To help paint a picture, the president’s travel budget for the first nine months of the 2023/2024 financial year was 18 billion shillings (USD 139.3 million). It was 14 billion for a similar period during the previous financial year (USD 108.3 million). 32 billion shillings is the amount that was spent to construct the Thika Super Highway. The president is also pushing to legalize the position of Chief Administration Secretary (CAS), which is not recognized under the Constitution and presents yet another avenue for unnecessary expenditure in what appears to be a move to reward loyalties. This year’s Appropriation Bill (which basically tells us where taxpayer monies will go) indicates that the Office of the President will get 4.2 billion shillings,
For a movement without a leader, the levels of coordination have been frighteningly accurate. So good has been the coordination that on Tuesday, 25th June, protests were synchronized across 35 counties. while 4.5 billion and 8 billion will be directed to the office of the Deputy President and State House, respectively. Another unconstitutional office – Prime Cabinet Secretary - will get about 1.2 billion.
So, it pains the youth to see, hear, and read stories of corruption, and a few people benefitting from it should ideally be meant for everyone. It hurts even more when people put in positions where they are meant to represent your interests end up advancing their selfish causes or those of their “superiors.” Still, it hurts when people take what is yours and spit on your face through ostentatious and unethical displays of wealth. But what perhaps hurts the most is that there seems to be no punishment for failing the citizens. By contrast, they are rewarded by systems that they have set up to protect themselves.
All the anger and hunger came to a head on Tuesday, 25th June, when Parliament was invaded, and people went to the kitchen to fill their empty stomachs.
Regardless of what follows next, two things are evident: the fearless youth are a force to be reckoned with, and Kenya will never be the same again.
For more insights on media law, please contact Wahome Wilson at wahome@gwrifa.com or info@gwrifa.com
The Kenya Film Classification Board (KFCB) has had an interesting relationship with content creators in 2024. In May this year, KFCB sent demand letters to several content creators threatening to take legal action against them if they did not comply with the Films and Stage Plays Act, including a provision to take out licenses for the content they produce. However, the letters were quickly revoked, and the content creators were allowed to carry on with their business.
Fast forward to September, and the KFCB embarks on a digital literacy awareness campaign to empower creatives. The campaign dubbed the Creatives in Art and Film Literacy (CAFIL) Program, is aimed at helping creatives in Film and Art create content that upholds the country’s moral and cultural values (whatever this means). One of the speakers at the event was the acting Chief Manager of Corporate Services, Ms. Nelly Muluka, who encouraged content creators to obtain the requisite licenses. This revived the debate that had started in May: Should Content Creators be Regulated by the Kenya Film Classification Board?
It is crucial to understand that the term content creator covers a broad spectrum. Anyone who makes content for distribution through mediums such as websites, blogs, and social media platforms, including YouTube, TikTok, and Twitter, can be termed as a content creator. In the same vein, those who create audio, visual, and audiovisual works for distribution on mainstream platforms are also content creators.
The Film and Stage Plays Act that created the Kenya Film Classification Board was initially designed with traditional forms of media like films and stage productions in mind, where content was distributed through cinemas, television, or public performances. Applying this framework to digital platforms, where individuals can easily create and share content globally, introduces complex challenges.
A compromise between the two opposing sides might be self-regulation by platforms like YouTube and TikTok, which already have content policies and Community Guidelines that prohibit harmful content. Instead of requiring licenses for every content creator, Kenya could work with these platforms to ensure that local content aligns with national standards without placing an undue burden on creators.
Alternatively, Kenya could develop specific regulations for certain types of online content, such as ethnicity or content aimed at children, rather than applying the full scope of the Film and Stage Plays Act to all creators.
In conclusion, while some form of regulation for online content is worth considering, using the Film and Stage Plays Act to impose licensing on all digital creators could be overly restrictive and impractical. A more tailored approach that protects public interests while encouraging innovation and creativity would be preferable.
For more insights, please get in touch with Wahome Wilson or Gichunge Jackson at wahome@gwrifa.com or gichunge@gwrifa.com.