The Growing Involvement Of Foreign NGOs In Setting Policy Agendas and Political Decision-Making In Africa by Mike Norton-Griffiths First published by Blackwell Publishing, Oxford Institute of Economic Affairs 2010 Introduction Non-governmental organizations (NGOs) and civil society organizations (CSOs) are big business in Kenya (IDS, 2007), growing from some 840 organizations in 1997 to some 4,100 in 2005. Although statistics are a bit vague, the entire sector would appear to provide some 300,000 full-time jobs, equal to almost 50% of the entire public service workforce, and contributing some 3% of GDP. More than 80% of all NGO funding in Kenya is provided by multilateral and bilateral donors (IDS, 2007). There has been a marked trend since the 1990s for NGOs and CSOs to evolve from primarily service delivery organizations to direct action, advocacy and involvement with setting government policy agendas and other political decision-making. This gradual involvement of NGOs in the body politic rather than the body civic raises a raft of questions concerning representation and accountability – especially when the NGOs and/or CSOs in question are foreign or are funded by foreign organizations. Two contemporary case studies from Kenya illustrate the potential dangers that arise when foreign NGOs become too involved in the formulation and drafting of domestic policy and political decision-making. The first deals with the recent review of current wildlife conservation policy, the drafting of a new wildlife conservation policy, and the drafting of a new wildlife conservation and management Bill. The second deals with the formulation and drafting of the Draft National Land Policy. In both cases, the involvement of foreign NGOs has gone past what many would deem appropriate, especially in promoting their own special agendas rather than those of ordinary Kenyans. They also demonstrate how fine the line is that divides super-efficient political lobbying from malfeasance. Case study 1: wildlife conservation and management policy Despite hundreds of millions of dollars of wildlife rents captured by the tourism industry and tens of millions of dollars pumped into conservation by donors and NGOs, Kenya today is facing a genuine conservation crisis. Eighty per cent of her wildlife has vanished over the last 30 years, indicative perhaps that all is not well with conservation policy (Norton-Griffiths et al., 2008; Western et al., 2009). There is a strong economic component to this loss of wildlife. Loss rates are lower where tourists go than where they do not; lower on adjudicated compared with unadjudicated land; lower where there is transparent revenue-sharing between protected areas and surrounding communities; and there are no losses – indeed even increases in wildlife – where landowners manage their own tourism ventures rather than rely on outside agents The diversion of the great majority (certainly 95%) of wildlife rents away from the producer side to the service side of the industry undermines incentives to conserve wildlife. The uncompetitive returns from wildlife compared with those from livestock or agriculture create incentives for landowners to convert any rangeland with agricultural potential to cultivation, with the elimination of wildlife These perverse incentives are created, or at least exacerbated, by restrictions on landowners’ ability to benefit from investments in conservation, especially by the ban on all consumptive uses of wildlife. Since 1977 it has been illegal to use wildlife for sport hunting, cropping, ranching, live capture and sale, or any of the value-added industries of taxidermy, trophies and souvenirs. Although the great majority of wildlife in Kenya is found outside the state-owned Protected Areas on the 500,000 km2 of land owned and used primarily by Kenyan pastoralists, the wildlife-based, photo-tourism sector is restricted to just 5% of this wildlife habitat. Outside this small area wildlife became purely a cost to landowners and users. These costs are high: wildlife adds 17% to livestock operating costs and reduces operating profits by 50%. The first effort to improve matters came in December 2004 when the national assembly passed the Wildlife (Conservation and Management) (Amendment) Bill (2004). Key amendments to the existing 1976 Act were that the Kenya Wildlife Service (KWS) should be answerable to its Board rather than to the government; that landowners and users should have Board representation and more influence in running the KWS; and that compensation for wildlife damage to life and property should be increased. The response of the animal welfare lobby in Kenya was immediate: ‘spontaneous’ street demonstrations erupted and ‘million-signature petitions’ were submitted to State House, supported (and funded) by the International Fund for Animal Welfare (IFAW), ActionAid and the Born Free Foundation along with a plethora of local conservation NGOs. The President was also subjected to intensive lobbying by IFAW and the US-based Humane Society. These groups argued that the Bill would lead to the reintroduction of sport hunting and they threatened to use their influence to dissuade tourists from visiting Kenya if that happened. The lobbying was successful. The Bill was presented for Presidential assent on 31 December 2004, but assent was refused on 3 January 2005. Clearly, the overseas animal welfare lobby had more power in Kenya than did the Kenyan parliamentarians themselves. In September 2006 the government announced a major review of conservation policy with the objective of drafting a new policy and a new bill. A steering committee was established, the National Taskforce on Wildlife Policy, along with a drafting team, and opinion was sought throughout the country in the course of two national seminars and 22 regional meetings. From the outset it was clear that the animal welfare lobby was already well prepared. Not only did they achieve a strong over-representation on the National Taskforce but ActionAid (which in Kenya is vehemently anti private landowners and supports extreme minority land rights issues) brought in paid activists that reduced each of the national seminars and most of the regional meetings to sterile shouting matches about the reintroduction of sport hunting.4 IFAW also orchestrated a genuinely brilliant anti-sport hunting media campaign on television, radio and in the press, with anti-hunting posters in the streets and at Nairobi’s international airport. Equally effectively, they were able to deny access to the media for mainstream conservation organizations to present their views. Finally, there appeared as if from nowhere, a plethora of grassroots conservation NGOs, all with strong anti-sport hunting agendas. For example, the Kenya Wildlife Conservation and Management Network and the Kenya Coalition for Wildlife Conservation and Management shared between them 70% of their NGO members, not one of which had been registered with the Kenyan NGO Co-ordination Board. Bizarrely, neither had IFAW itself registered so it was technically operating illegally within Kenya. Nonetheless, the still largely independent drafting team did produce a draft Wildlife (Conservation and Management) Policy (2007) which recognized the need for economic incentives for landowners to husband and invest in wildlife conservation. The door was left open for the reintroduction of a whole range of consumptive uses, although sport hunting itself was specifically placed far away in the future. The response of the animal welfare lobby to the new policy document was chilling. At a meeting of the Kenya Wildlife Conservation and Management Network held at the Nomad Hotel on the Kitengela on 13 March 2007, funded by ActionAid, it was resolved that were sport hunting to be reintroduced into Kenya then field militia would be armed to track down the hunters in the field and shoot them to death. The response of the animal welfare lobby was also very practical. The drafting team of the Steering Committee, which was by then working on the draft Bill, was summarily dismissed and the Bill was drafted by a single IFAW consultant. The resulting draft Wildlife (Conservation and Management) Bill (2007) in no way expressed the spirit of the Policy, pandered solely to the interests of the animal welfare lobby and completely ignored the very real conservation issues facing Kenya. In discussions with the animal welfare lobby it was clear they had no real interest in wildlife conservation. If wildlife continues to disappear because of the lack of incentives to land users they are indifferent, just so long as consumptive use is not reintroduced. And if the Bill perpetuates rural poverty by denying wildlife revenue streams to marginalized, pastoral communities they are indifferent so long as sport hunting, bird shooting and sport fishing is not allowed. Case study 2: the National Land Policy The Draft National Land Policy (DNLP) started as Chapter 7, the ‘land chapter’, in the ‘Bomas’ draft constitution which was rejected in the national referendum in November 2005. There was strong cross-party rejection of Chapter 7 which was widely seen to represent an outright attack on private property and tenure rights by shifting the control over land from owners and users to central government. An important actor in drafting the Land Chapter was ActionAid which was instrumental in creating and funding the Kenya Land Alliance (KLA), an umbrella group of NGOs all active in the field of poverty alleviation, land issues, gender issues, youth and HIV/AIDS. However, not only is the KLA itself not listed on the NGO Co-ordination Board database,8 only 20 of the 60 NGO members listed on its website9 are registered. The Ministry of Lands established in 2005 a National Land Policy Secretariat, working through six thematic groups and sub-groups. These groups were technically open to wide participation by government agencies, NGOs and CSOs, but always with the Kenya Land Alliance playing a prominent, gatekeeper role. As a result, private sector interests were rarely represented. In the course of 2005 and 2006 some 14 Regional Consultations on land issues were held around the country, the results of which were ‘. . . subject to extensive commentary from stakeholders and considerable publicity and broad public consultation . . .’ (KLA, 2008). A final draft on the DNLP received ‘unanimous approval’ at a stakeholder symposium in Nairobi in April 2007 and, despite the expression of significant reservations by a number of parties, the Draft National Land Policy (2007)10 was approved by the Ministry of Lands in May 2007. In addition to this, the KLA held a further five regional workshops, and formulated for the Land Policy Secretariat a Civil Society Position Paper and five Policy Briefs on a range of issues including historical injustices, land management and administration, community and minority rights issues . The Ministry of Lands was clearly of the opinion that it had opened the policy formulation process as widely as possible to all stakeholders, that it had publicized the process both to the body politic and the body civic, and that it had run a genuinely participatory process. Yet despite the claimed wide consultative process, more than 87% of the population at large, especially those in the commercial agricultural, banking, legal and manufacturing sectors, remained completely unaware that any land policy formulation process was even under way. Many are now of the opinion that the over-reliance by the Ministry on a single organization, the Kenya Land Alliance, created either by accident or by design a self-selecting group with a restricted and unbalanced agenda and which actively excluded the participation of those with different and conflicting views. By concentrating primarily on minority rights, social issues and historical injustices, an imbalance has been created in the DNLP, especially with regards to the rights and expectations of private leaseholders and freeholders in agricultural lands, and of customary, group and private land users in pastoral lands. Specific provisions of real threat to economic well-being and to the protection of property rights11 include the confiscation (without compensation) of all pastoral land rights and their transfer to a centralized bureaucracy; the confiscation (without compensation) of 999-year leaseholds, and conversion to 99-year leaseholds; the confiscation (without compensation) of all freeholds owned by non-citizens and conversion to 99-year leaseholds; the imposition of severe encumbrances on the transfer of freehold titles; and the repeal of the Registered Land Act (1963),12 thus opening every land title to legal challenge. The DNLP thus stands a good chance of alienating some nine million pastoralists and the 36 MPs making up the Pastoral Parliamentary Group, along with some 3.5 million holders of agricultural, commercial and domestic freehold titles. In a way, each of these provisions does address a real injustice or problem, but there is now a very real danger that, to redress the misfortunes and injustices of the few, the DNLP will create even greater misfortunes and injustices for the many. A major consequence of many of the provisions in the DNLP will be to seriously weaken the property rights of landowners and landusers, whether pastoral, agricultural, commercial or domestic, and concentrate the ownership, management and control of land within a centralized government bureaucracy. Perversely, the DNLP will be creating the very conditions under which political and economic elites find it easiest to alienate and appropriate land (i.e. steal it) from their rightful owners and users. Lessons from the case studies We are dealing here at best with circumstantial evidence: smoke and mirrors rather than smoking guns. Each individual action of these NGOs is in a way above reproach, just the sort of thing NGOs should be doing. Yet when looked at as a strategy they present a more malign picture. The same four key elements are present in both case studies: the foreign NGOs; the façade of local organisations to give a semblance of political legitimacy; embedding in the body politic; and controlling the policy formulation process by manipulating access to meetings and to the media. Foreign NGOs: In both case studies the policy agendas were in reality being driven by well-funded and highly motivated foreign NGOs rather than by the hopes and aspirations of Kenyan citizens. The draft Wildlife (Conservation and Management) Policy (2007) and the Wildlife (Conservation and Management) Bill (2007) were driven by the determination of the International Fund for Animal Welfare and their allies not to allow consumptive use of wildlife to be reintroduced into Kenya, whatever the consequences might be for wildlife conservation or rural poverty. Similarly, the main provisions of the Draft National Land Policy (2007) were driven by ActionAid, working through the façade of the KLA, which in Kenya campaigns viscerally against the private ownership of land while supporting extreme minority land rights issues through advocacy and direct action. The façade of local NGOs and CSOs: ‘Upper-case’ NGOs are assumed to represent the public interest. To create a semblance of political legitimacy for their policy agendas both IFAW and ActionAid established close networks with existing local NGOs: IFAW established them with Born Free, Youth for Conservation and the Sheldrick Trust; and ActionAid established them with the Kenya Land Alliance. More controversially, both were instrumental in creating and funding a plethora of new local NGOs, all looking and sounding good and all promoting the same policy agendas. However, on closer inspection, many of these NGOs seem to exist on paper only and few appear to be registered with Kenya’s NGO Council or elsewhere. These unregistered NGOs, including IFAW and the KLA themselves, are technically acting illegally in Kenya. The KLA also claimed widespread endorsement for the DNLP from ‘lower-case’ NGOs, a wide range of professional bodies, associations and trades unions. Too often, the endorsement of a professional body for the DNLP turned out to be that of an individual member speaking solely on his own behalf. There was no evidence that the membership of any of these professional associations had in fact been polled. Embedding in the body politic: Both IFAW and the KLA became deeply embedded within the body politic. IFAW did this within the Kenya Wildlife Service and the Ministry of Forestry and Wildlife by providing funding for projects and programs, equipment and salary supplements; the KLA did so within the National Land Policy Secretariat of the Ministry of Lands by providing (donor-funded) logistical support for the 14 regional seminars and five regional workshops, and drafting a Civil Society Position Paper and five Policy Briefs. Acquiring control over the policy formulation process: From these privileged positions it proved straightforward to obtain control over the policy formulation process. In both cases, access to the body politic was closely controlled especially for groups with alternative ideas and agendas. There was over-representation on the policy Steering Committee (IFAW) and on the Policy Drafting Team (KLA); control of access to the policy and drafting meetings (KLA); disruption to national and regional seminars and meetings (both ActionAid and IFAW); and launching ‘on behalf of the government’ a strong media campaign while simultaneously denying media access to those holding contrary views. Finally, in the case of IFAW, there was actual involvement in drafting the new Wildlife (Conservation and Management) Bill (2007). The role of donors: The National Land Policy Secretariat in the Ministry of Lands and Housing has received significant and consistent support from the donor community. The position of the donors is very straightforward: they claim to be ‘enabling’ the policy formulation process with financial and logistical support, all as part of agreed bilateral or multilateral support for the government of Kenya. What Kenya actually does with the funds and logistical support is up to them, and they (the donors) have no input at all into the policy itself, just to the formulation process. In arguing this the donors are disingenuous in two respects. Firstly, when donors openly boast of their support and sponsorship for a policy formulation process, and when this process goes so disastrously wrong, as this one clearly has, then errors of commission and omission on their behalf are near certain, despite protestations to the contrary. Secondly, as the groundswell of opinion challenging a number of provisions in the DNLP developed and formalized, first through the somewhat unlikely vehicle of the Machakos and Makueni Ranchers’ Association and later through the Kenya Landowners’ Association (KELA), the response of the donor community, especially the UK government’s Department for International Development and also UN Habitat, was at first dismissive but rapidly became actively hostile, to the extent of denying admittance to representatives of the Kenya Landowners’ Association at key meetings and seminars, and actively lobbying against KELA within the body politic. Despite protestations to the contrary, the donor community (with the notable exception of USAID) was in fact highly biased against and partisan with regard to any meaningful involvement by private sector interests in the policy formulation process. Issues of NGO governance in Kenya NGOs are regulated in Kenya under the Non-Governmental Organizations Co-Ordination Act (No. 19 of 1990) and the Non-Governmental Organizations Co-Ordination Act Regulations of 1992. Under Section 10 of this Act it became mandatory for all NGOs and CSOs to register with the Non-Governmental Organizations Co-Ordination Board and illegal to operate an organisation that fell within the definition of an NGO or CSO unless it had been so registered. After registration they must apply for membership of the NGO Council, a national umbrella organisation responsible for representing the interests of its members, for devising self-regulation policies and for enforcing compliance. To date, only 606 of the 4,100 NGOs are registered with a further 620 in the process of registration. The 1995 Code of Conduct for NGOs issued by the NGO Council was very general, stipulating, for example, that ‘. . . every registered organization shall observe the cardinal values of probity, self-regulation, justice, service, co-operation, prudence and respect . . .’. These were defined in such vague terms as to be not very useful. Further guidelines dealing primarily with the constitution and operation of NGO Boards were issued in 2001. The current Act, and its regulatory infrastructure, is by general agreement now seen to be badly outdated and simply unable to cater for the contemporary numbers, growth and diversity in the NGO sector. Matters have been made worse by the endless wrangling for position within the NGO Council; by a marked decline in professional standards throughout Kenya; and by the continuing dependence in the NGO sector for finance from outside the country: as noted in the introduction, more than 80% of all NGO funding is provided by multilateral and bilateral donors (IDS, 2007).In Sessional Paper No. 1 of 200622,23 the government created the legal basis for reviewing and replacing the current Act and the regulatory environment, and for harmonizing the overlapping and often contradictory legislation under which different kinds of NGOs and CSOs can register and operate. The paper also recognizes the need to significantly strengthen the abilities of the regulatory committee of the NGO Council both to set standards and to monitor and enforce compliance. To this extent, the government of Kenya is in tune with worldwide trends in the regulation of NGOs and CSOs. However, while all these initiatives primarily address issues of accountability to beneficiaries and supporters, quality and effectiveness of programs, financial management and governance, there seem to be no moves to address the problems of representation and accountability when NGOs and CSOs become involved with setting policy agendas and political decision-making. There is little doubt that, in both case studies, these foreign NGOs have deliberately pushed through their single-issue agendas which will result in unbalanced policies and legislation that are not in the real interest of either Kenya or of its citizens. This focuses on an important point concerning governance. These NGOs have power without accountability. This is a heady and dangerous mix. They fail the most basic test of good governance in that they are neither elected nor transparent, nor are they accountable to those whose interests they claim to represent. It is this matter of representation that is so critical, for people who are not elected and who are not accountable to any duly elected and broadly representative legislature simply cannot claim any representative status. The notion that an NGO or CSO – whether international or national – has any rights to speak ‘on behalf of ’ the people of a country has no basis, especially when that country has a democratically elected and responsible Government . The most they can claim is to speak on behalf of a special-interest group with all that implies. By what right can the million or so members of IFAW in North America and Europe impose on Kenya their views on the consumptive use of wildlife, especially if wildlife then continues to decline from a lack of economic incentives to landowners and users? Similarly, by what right can ActionAid impose on Kenya its views on the socialization of land, especially if weakened tenure and weakened property rights lead to even more corrupt land deals by a centralized and unaccountable bureaucracy. What redress does Kenya have if these policies turn out to be ‘wrong’. Why did this happen in Kenya? The impact of corruption is more than the mere diversion of public or donor funds to meet private ends. This is relatively trivial. The true legacy of the Kenyatta and Moi eras has been the gradual degradation of the body politic into a tight network of complicity, supported and shielded by lazy and compliant donors, the gradual erosion of the legal system to create a culture of impunity; and the degradation of the body civic, primarily through the erosion of educational standards. This legacy of corruption has had two major impacts on Kenya. Firstly, a massive Diaspora of more than a million of the best educated and most entrepreneurial of Kenyans. Secondly, a political and moral vacuum within Kenya into which foreign NGOs with their single-issue agendas find it easy to insinuate themselves.