In considering the role of civil society in the implementation of the
constitution, it is important to appreciate civil society’s contribution in the
wider democratisation process… But first we need to appreciate there is
no common definition of civil society. Civil society organisations encompass a wide
array of actors with diverse mandates: cultural, professional and trade associations – faith based, nongovernmental and community-based organisations. They may be
small, big, rural, urban, elite, grassroots, local or international. They work
in all sectors – service delivery, humanitarian assistance, governance,
development. Some work collaboratively with government, whilst some are
confrontational towards government.
Despite their wide array, a defining
characteristic is that civil society is driven by values and not profit. And,
while they also work in the public sphere they derive their authority from
outside the state. Most importantly civil society serves as a countervailing force to government – and oftentimes
to the private sector as well. Civil society is dedicated to protecting the
public good. They should not be compromised by private sector or government
interests, although civil society is sometimes co-opted to serve as an
apologist for interests that may go against the public good.
With this in mind we therefore observe that civil society’s contribution
to democratisation in Kenya goes as far back as the struggle for independence,
when civil society actors such as the Mau Mau, Kavirondo Taxpayers’ Welfare
Association, Ukambani Members Association and Taita Hills Association engaged
the colonial government using both peaceful and violent means in the liberation
struggle. However, the ideals of liberation were betrayed by the post-independence
Kenyatta government, which used the unjust tools of colonial domination (such
as skewed land and economic policies) to
enrich a small elite. In JM Kariuki’s
words Kenya became a country of ‘10
millionaires and 10 million beggars’ and continues to be one of the world’s
most unequal countries to date.
Civil society picked up the post-independence struggle for Kenya’s
second liberation through the action of scholars, NGOs and religious leaders. Eventually
civil society joined forces with the political opposition and together they
were able to topple the tyrannical and oppressive one party Moi regime. However,
Kenya’s first democratic government, the National Rainbow Alliance Coalition government, floundered and the democratic transition process stalled as
tribal politics came into play. Civil society continued the quest for comprehensive
constitutional reform as the basis for truly democratic governance in Kenya,
and eventually this was achieved in the constitution of Kenya 2010. But only
after the bloodshed of the post-election violence which claimed more than 1,200
lives and displaced more than 600,000 Kenyans.
The constitution of Kenya establishes a foundation of democratic,
accountable, devolved government, based on principles of inclusivity,
separation of powers and equitable distribution of resources. As is expected of
any democratic transition, the new dispensation is facing stiff resistance from
those who benefited from the old order.
The Constitution, Article Three, states that every person has an obligation
to respect, uphold and defend it. The first call to civil society is therefore
in defence of the constitution. The constitution has one of the most
progressive bills of rights in the world. This is important because it protects
Kenyans from the state harassment and victimisation that was commonplace in the
past.
This is why civil society was very quick
to condemn the Security Laws (Amendment) Bill 2014, passed by the National
Assembly in late December 2014. Whilst appreciating the need to tighten
security legislation, civil society has argued that counterterrorism and
security efforts be implemented in manner that balances the imperatives for
security against respect for human rights. Many of the security amendments were
ultimately declared unconstitutional by the court as inconsistent with the
constitution on important matters of human rights including: Article 37 on freedom of assembly,
demonstration, picketing and petition, Article 25 on fundamental human rights
that may not be limited, Article 50 on fair hearing, Article 31 on privacy,
Article 29 on freedom and security of the person and Article 49 rights of
arrested persons.
Civil society has also been vigilant in
monitoring the implementation of devolved government in Kenya. The devolution
of power is premised on the need to ensure equitable and inclusive development
and bring service delivery closer to the people. Civil society has an active
role in civic education to assist members of the public to understand their
rights and responsibilities under devolved government. Civil society has also
made active use of the courts when attempts have been made to infringe the
mandates of county governments. These include the action of the Senate (county
development boards), National Assembly (Constituency Development Fund) and the national
government which is still holding about Sh350 billion which should be used
for service delivery at county level.
Civil
society has also been vigilant in monitoring the implementation of Chapter 12
on public finance. Article 201 provides the principles of public finance, key among
which are equity, prudence, accountability and public participation. Civil society
has been working at both county and national level to monitor the adherence of government
to these principles through the use of citizen monitoring groups, social
audits, score cards and other accountability tools. Civil
society has also established community networks to enable communities to negotiate
effectively for the protection of their interests in natural resource
management as provided under Chapter 5.
Civil society has also been involved in
monitoring leadership accountability standards under Chapter Six. The law suit
against the former chair of the Ethics and Anti-Corruption Commission is one
such example. The ‘m-pigs’
demonstration staged by civil society to protest the National Assembly’s
attempts to increase their salaries is another. Civil
society also continues an active engagement in ensuring good leadership through
a strengthening of election laws and election monitoring processes as provided
under Chapter Seven of the constitution of Kenya.
However, despite considerable efforts, civil society today is confronted
by an intransigent government ideologically opposed to the ideals of the
constitution. The Jubilee administration is using the
war on terror as an excuse to curtail personal freedoms through draconian
legislative amendments in the security and media laws.
Furthermore the civil society regulatory framework under the NGO Coordination Act of 1990 is fundamentally dysfunctional
undermining the effectiveness of the sector. It was against this backdrop that civil society worked closely with the
Kibaki administration to develop the Public Benefits Organisation (PBO) Act
2013. However, the Minister for Devolution and Planning introduced amendments to
the Public Benefits Act which seek to place the sector under government control
and curtail funding for the sector. So far the Act has not been brought into
force. The Jubilee government has also worked relentlessly to discredit civil
society and its leaders.
Civil society is
also operating in a context of selfish and poor leadership due to poor voting
choices of the public. Kenyans not only vote in unworthy leaders, they also do
not monitor their performance in between elections. Political leadership has
become extremely predatory, whilst using ethnic rhetoric to mask its conduct.
Ultimately the success of the democratisation process will be realised when
ordinary Kenyans ensure they elect accountable leaders; and when ordinary
citizens both defend and claim their constitutional rights.
Despite these challenges civil society has achieved significant gains
over the past 20 years, and must not relent especially when the democratic ideals enshrined in the supreme law of the land
are under sustained attack.
Civil society must embrace the slogan Aluta continua, vitoria e certs – the
struggle continues, victory is certain.

The author is
the National Co-ordinator of The Institute for Social Accountability.
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