Civil Society and the Post Handshake Politics in Kenya

May 2019

REPORT: VOLUME 1 2019 CIVIL SOCIETY AND THE POST HANDSHAKE POLITICS IN KENYA

EXECUTIVE SUMMARY

The paper explores the nature of civil society in politicians and civil society appears to have no Kenya in the changing political environment by role in it. An observation was made that civil examining the impact of the ‘handshake’ as well society in Kenya is deeply divided and therefore as the internal and external capacities of civil unable to realize its potential, including failure to society organizations to articulate responses to mobilize mass support in addressing challenges challenges facing the country today. Individual facing the country today. The study also found and focus group interviews were conducted with out that a recent crackdown by government and thirty six members from selected organizations inadequate funding have significantly affected with ongoing programs in different parts of the civil society activities. The study concludes country focusing on democracy, governance that despite all these, the role of civil society and human rights. The study found that there in Kenya remains critical especially now in the is flooding of organizations engaging in work absence of a formidable political opposition, but aimed at raising public awareness compared to civil society organizations should forge a unity of advocacy work. Interviewees pointed out that purpose and formulate a strategy of taking up the power to control and give direction to the this opportunity. political agenda of the country is dominated by

INTRODUCTION The Concept of Civil Society social life networks, norms and trust that enable participants to act together more effectively There is no agreed meaning of civil society; to pursue shared objectives”1. He equates civil therefore the concept remains ambiguous with society to social capital which influences public diverse interpretations. The concept was first participation in the social set ups, thereby introduced by Alexis de Tocqueville in his analysis determining government’s operations. Edward of American democracy, as non-political social (2005) conceptualizes civil society in 3 ways. organizations either “religious, moral, general First as the “associational life of society” or restricted, enormous or diminutive” that that develops values such as tolerance and fortify democracy curbing misuse of power. cooperation among people. Second, as “the good Tocqueville argued that civil society promotes society” based on social contracts negotiated social norms through social capital by educating between government, business, and citizens. people about benefits of a free society. Robert Third, as the “public sphere” that cares about the Putnam describes civil society as “features of common good, with shared interests, willingness

1 The Book ‘Making Democracy Work’, and his article, Tuning In, Tuning Out: The Strange Disappearance of Social Capital in America

1 to accommodate others with opposite views Civil Society and Democracy and work together to pursue common goals. Heyden (1996) states that civil society refer to The word democracy is derived from two 4 a vast network of private and public associations ancient Greek words: demos (the people) and 5 that are free of state control and have the right kratos (strength). Democracy therefore means to organize, mobilize as well as influence political the rule of the people. From this it is clear that decisions. Some scholars however argue that democracy connects power with the people, civil society has to do with family and blood although this relationship can take many forms. associations or groups but this does not include As a principle of democracy, the people and political groups (Nzomo 2003). In such a case, their will are inseparable from politics in the informal associations in the rural areas can be context of politics as “an activity through which considered as civil society. people create, maintain and change the rules by which they live.”6 Democracy can only exist In Kenya, non‐governmental organizations when people are actively participating in political (NGOs), faith‐based organizations, self‐help and social activities7. Therefore civil society is groups, professional associations, cooperatives, expected to promote democracy by using their social clubs, the media, and community‐based democratic rights in acting to correct the flaws organizations are all considered to be civil society in the political and government systems (Jasmin organizations (CSOs). These organizations have 2015). very different characteristics and approaches making it problematic to arrive at a uniform Liberal democracy, which is the predominant concept of civil society in the Kenya. political system in the world after the fall of communism, has become the theoretical understanding of democracy today. It has given civil society too much power and responsibility The Role of Civil Society (Jasmin 2015), making it is difficult to distinguish CSOs are agents of development playing between political formations/parties and the a significant role politically, socially and political activities of groups in the civil society, economically2. Politically, they improve the be they interest groups or religious bodies but quality of governance by pushing systems which are intermittently mobilized in pursuit 8 of governments to apply the principles of of political goals . In this case, two challenges accountability, transparency and openness as emerge, first the perceived lack of democracy well as advocating for good governance3. Socially and secondly the abuse of the role of civil society. they improve decision making processes through Researchers such as Simon Chambers warn that provision of information and education. They also contemporary theories fail to see the threats civil guarantee social protection through integration society to democracy. He argues that voluntary of human rights. Economically, they bridge the associations of civil society do not always have unemployment gap by providing employment to the promotion of democracy on their agenda, many individuals in developing countries as well some civic associations can employ underhanded as advocating for the implementation of better financial systems in government to curb misuse 4 Although demos refers to „people“, the Greeks used this term to denote „the poor“ or „mob“. of public resources (Maureen and Winnie, 2016) 5 Robertson, David: The Routledge Dictionary of Politics. Routledge, London, 2004. p.136. 6 Ibid. 12. 7 Abraham Lincoln determined the democracy as government of the people, by the people, for the people. However it seemed clear, this implies different types of government 2 An International Multidisciplinary Journal, Ethiopia Vol. 8 of the people. Government by the people includes the idea (1), Serial No. 32, January, 2014:205-227 of popular participation in government, while government 3 Yohannes, D. (1997). Opening Remark at a UNDP and UN for the people implies that the government must act in the ECA Sponsored Regional Consultation entitled- building public interest. partnerships towards a common agenda for governance in 8 Foley, Michael W. and Edwards, Bob: The Paradox of Civil Africa, held in Addis Ababa 23-24 May 1997 Society. Journal of Democracy, Vol. 7 (1996), No 3., 38-52.

2 tactics in the pursuit of special privileges or Civil Society and Human Rights private interests while others are destructive groups such as racists, ultra-nationalist and There was an unprecedented growth of CSOs religious fundamentalists seeking to suppress involved in the promotion and protection of th the democratic rights of others9. human rights during the latter half of the 20 century due to increased global focus on human right issues and the number of international human rights instruments adopted after the Civil Society and Governance Second World War10. The United Nations Charter Governance is a process through which (UNC) is significant in the history of international decisions are made and implemented in running human rights regime. It stated that the rights a government or any other organization. of human beings are matter of international It begins with citizens participating in the concern and no longer a matter within the 11 governance process by putting forward their exclusive jurisdiction of a state . It further made opinions, followed by the aggregation of these the ‘respect of human rights and fundamental opinions for development of public policy, and freedoms for all without distinction as to then the means for holding policy implementers race, sex, language or religion’ one of the main accountable for their decisions and actions purposes of the United Nations (UN) alongside (Heyden 1996). These three variables can be the maintenance of peace and international used to define the relationship between the security12. Under the UN, the Commission on rulers and the ruled. Regimes that uphold this Human Rights (UNCHR)13 was entrusted with culture would be considered democratic whereas the task of developing a document including the ones that does not would be considered as the most fundamental human rights, along with authoritarian (Wanyama 2002). Principles of appropriate mechanisms for their protection good governance include participation, rule of which eventually led to the drafting of the ‘Bill law, transparency, responsiveness, consensus, of rights’ comprised of Universal Declaration of equity, inclusiveness, efficiency, effectiveness Human Rights (UDHR) first and consequently and accountability. A study conducted by Jane the International Covenant on Civil and Political and Thakhathi (2017) revealed that CSOs Rights (ICCPR) and International Covenant on have challenges and weaknesses in their Economic, Social and Cultural Rights (ICESCR). A capacity to assist communities participate in number of human rights instruments concerning good governance. Political leaders and senior the right of specific groups or specific rights were government officials perceive CSOs as a source adopted under the UN human rights system of threat and treat them with suspicion to an and numerous human rights conventions under extent of violently undermining their activities. the framework of the UN led to the creation There is lack of harmonization and understanding of a wide range of mechanisms for monitoring of expectations between the CSOs and the compliance with the standards agreed upon. The public, this is manifested for instance, when participation of CSOs in these conventions and participants demand for allowances before in the mechanisms for monitoring compliance attending meetings. A study by AGDI (2008) is significant as argued by Hegarty and Leonard revealed that CSOs lack clear guidelines on (1999), that in the human rights field CSOs drive how they should relate with other stakeholders the UN human rights bodies and without their including beneficiaries. Poor internal governance 10 A Hegarty ‘Non-governmental organisations: the key to within the structure of the CSOs was also change’ in A Hegarty & S Leonard (eds) Human rights: An observed as another obstacle that weakened agenda for the 21st century (1999) 267 11 P Cumper ‘Human rights: history, development and their capacities. classification’ 12 Article 1 of the United Nations Charter (UNC) 13 Currently replaced by UN Human Rights Council through 9 Chambers, Simone and Kymlicka, Will: Alternative the adoption of a General Assembly resolution (A/ Conceptions of Civil Society. Princeton Univeristy RES/60/251) on 15 March 2006 Press, Princeton, 2002., p.101. 3 participation these special mechanisms and policy change to demand for accountability. treaty monitoring bodies would grind to a halt. In the 1990s, there was liberalization of the economic and political spaces, leading to more tolerance of CSO activities allowing for Historical Perspectives of Civil Society many more organizations to be formed (Sall in Kenya 2009). Illegitimate elections, pilferage of public resources through corruption, land grabbing, and The history of CSOs in Kenya dates back to colonial high salaries for elected leaders among other times. Common organizations were mainly issues triggered CSOs to push for change in early religious and philanthropic organizations focused 1990s through demand for reintroduction of on welfare due to oppression by the colonialists. multiparty democracy (Wanyande et al. 2007). Mbote (2002) argues that in the 1930s and As Kanyinga (2007) points out, there has been 1940s there were charitable organizations, transition without any serious changes in the which were initiatives of Christians, among governance and administration of the country them the Young Men Christian Association and since independence. Among serious governance the Young Women Christian Association. There issues that CSOs have actively intervened are were also ethnic based organizations that were the post election violence of 2008, several welfare in nature involved in self‐help activities corruption scandals and electoral injustices. mainly in urban areas. Secular CSOs emerged However the impacts of such interventions have after the Second World War among them not been comprehensively interrogated. the War Veterans’ Association and the Kenya Farmers Association. Originally, Kenya Farmers Association was a white settlers association Role of Civil Society in the Post but after independence African farmers were Handshake Politics: A case study of involved. Others that existed in the 1930s and the April 4, 2019 State of the Nation 1940s in Kenya were the occupational and Address. professional bodies. Many women groups were also formed in the 1940s. As an annual practice, the state of the nation address began in the Philippines in 1935. Section Due to the post independence challenges of 5, Article 7 of their constitution (1935) stated building a new Kenya, there was a buildup of civil that “The President shall from time to time give unrest when the public felt that the government to the Congress information on the state of the and market forces had failed to meet their needs. Nation, and recommend to its consideration This led to an exponential growth of CSOs in the such measures as he shall judge necessary and 1970s and the 1980s. These CSOs were not expedient.” Therefore the annual address to the well tolerated by the State because they were Legislature became known as the State of the perceived as a threat to national security. Mbote Nation Address14. In Africa, South Africa is the (2002) further argues that there was a sharp pioneer of the practice, having their first state economic decline after the 1982 attempted of the nation address in 1990. In Kenya, the first coup which set the stage for further CSO growth State of Nation Address was made in 201415. as these organizations were viewed by many as This is also a requirement of the laws of Kenya. the solution to problems affecting lives of the Article 132 (c ) (i) of the Constitution of Kenya people of Kenya. One of the problems facing requires that once every year, the President shall people was the unequal distribution of resources. report, in an address to the nation, on all the During this period, there was the emergence measures taken and the progress achieved in the of political activism where leaders of CSOs mobilized protests to push for social and political 14 See https://www.esquiremag.ph/politics/the-historical-evo lution-of-the-sona-a00203-20180720-lfrm change. Others were involved in advocacy for 15 See https://www.nation.co.ke/news/State-of-the-Nation- address-by-President-Kenyatta/1056-2259718-istyfsz/index. html

4 realisation of the national values, international offering the country an oversight role and obligations and the status of the country’s providing checks and balances to the exercise national security Constitution of Kenya 2010). of powers by the state18. The current political In a democracy, the state of the nation address environment denies the country an opportunity is a tool for accountability16. of having a political opposition and expression of divergent views. There were some responses from the civil society in Kenya on the April 2019 state of the nation address. For example, organisations and religious groups called on President Uhuru Kenyatta not METHODOLOGY to relent in his war on corruption and enumerate An extensive literature review was done to measures that will ensure the fight is sustained provide a deep understanding of the concept and suspects convicted. Mr Ronald Sunguti, the of civil society, historical perspectives of civil coordinator lay apostle at the Catholic Diocese society in Kenya and the roles of civil society of Nakuru, said he expects the President to show in democracy, governance and human rights. how he intends to slay the corruption dragon Databases including EBSCO-political science and recover stolen assets. The Supreme Council complete, Public Affairs Index and Google of Kenya Muslims (SUPKEM) vice chairman Scholar were searched for reports focusing on Hassan ole Naado said the public expects a the topic. This provided a theoretical framework concrete action plan on corruption. “Since the for a situational analysis and framing of research war started, there has been too much talk but questions. Data was collected through in no tangible action.” Mr Naado said. depth face to face interviews and focus group discussions. Interview guides were developed by the lead researcher and pretested to maintain Problem Statement the relationship between the guide and the research questions. Studies have shown that the nature and organization of civil society may change over Interviewees were selected based on their time as the political terrain changes (Bjork and involvement in CSO activities in Kenya starting Goebertus, 2011). In Kenya, the political terrain with known individuals in active CSOs and has changed since the March 2018 ‘handshake’ allowing them to suggest other interviewees between President Uhuru Kenyatta and the from within and outside their organizations. The opposition leader Hon. Raila Odinga. The unity target interviewees were activists and organizers of the two political leaders has reduced political from known and active CSOs working in the temperatures and allowed economic prosperity. areas of democratic governance, transparency However, it has also created political tensions and human rights with ongoing programs in within the ruling party leading to the disruption of different parts of the country. A team of three Jubilee’s development agenda which is popularly research assistants were recruited to conduct known as the ‘big 4 agenda’17. The relative peace the interviews then trained on strategies for resulting from the political unity may be good for qualitative interviews and how to design and the country in the short term but in the long conduct focus group interviews. The average term may ruin Kenya’s democracy by disrupting interview length was one hour seven minutes. growth of opposition politics. A political The data set consisted of materials collected opposition should be a government in waiting, from sixteen persons who were interviewed through the face to face in depth interviews 16 See https://anceasterncape.org.za/the-state-of-the-nation- address-an-important-tool-for-accountability-and- and twenty others through the focus group democracy/ interviews. In some instances, more than one

17 Rawlings and Winfred. How Kenyan Politics Have Changed 18 Editorial, For Goodness Sake, Handshake Should not Kill Since ‘Handshake’. The Standard April 5, 2019 our Democracy, The Standard November 15, 2018

5 respondent was chosen form one organization 2022 has been dominated by politicians. What to allow for a range of opinions and a degree of triggered the calls for a referendum was a Bill triangulation. before Parliament in February 2018 by Member of Parliament for Tiaty constituency seeking to amend the Constitution to create the positions FINDINGS of a Prime Minister and President as a way of diffusing political tensions during and after The study sought to find out if the nature of elections. This was followed by, mounting calls civil society in Kenya has changed in response to by politicians including the opposition leader political changes. First by examining the impact Hon. Raila Odinga for a referendum to change of the march 9, 2018 handshake between the Kenyan Constitution in order to rearrange President Uhuru Kenyatta and Hon. Raila Odinga the executive structure, strengthen devolution and then how CSOs have articulated responses and fix election related conflicts. Meanwhile, it is to challenges facing the country in the areas of alleged that in the March 9, 2018 Memorandum democracy, governance and human rights since of Understanding (MoU) there is an agreement March last year. A case study of the state of the that when the Building Bridges Task Force is ‘State of the Nation address’ of April 2019 was done with collecting views, a referendum be held used and the extent to which CSOs participated to address longstanding governance issues19. is examined. The study then looks at the current Another example where politicians dominate the internal and external capacities of the CSOs to agenda is the recent fight against corruption mobilize around issues of concern to the society whose momentum seems to be sustained by today. political interest. Opponents of the Deputy President keep on adding fuel to the fire by Study findings revealed that there are numerous making corruption allegations against him with Kenyan NGOs and grassroot organisations an intention of tainting his image. CSOs have countrywide engaging in work aimed at raising not given a credible and coherent response to public awareness on devolution, health, human the war on corruption, therefore allowing the rights and access to services. The ongoing ‘political’ war on corruption to prevail. civic education has thus raised the capacity of the public to understand and participate in the The study also found out that there is a failure process of governance. On the other hand, the of civil society to mobilize mass support. This study also revealed that there is a saturation was observed to be largely due to their failure of civic educators. This finding is confirmed by to link their objectives to prevailing situations Nzomo (2003) who observed that there are in the social and economic sectors such as many ‘”briefcase’’ organisations and individuals, poverty, lack of access to shelter, water and who in recent times have “discovered” that they health services. This is despite the observation have the capacity and commitment to educate that majority of the respondents had acquired Kenyans on rights. Indeed, the civic education post secondary level of education implying that project has become an industry with too leaders and members of CSOs have a relatively many “experts” and opportunists and too little high capacity to grasp issues and act on them. expertise and genuine commitment. In this case, The findings are in agreement with those of a there is a risk of civic education project failing to report by Jane and Thakhathi (2017). meet their objectives. There was an interesting finding indicating Another finding of the study is that CSOs have that civil society in Kenya is deeply divided and once again lost to politicians the power to unable to muster an impact commensurate to control and give direction to the political agenda its potential. These findings have been confirmed of the country. For instance, the debate for a 19 The East African, ‘Kenya Split Over Calls to Change Law change of law before the expected transition in Before 2022’. The Star October 6, 2018

6 by Nzomo (2003) who also argues that the society in Kenya. The actors and their activities divisions reduce their capacity for employing are not well defined in the spaces they operate in diverse approaches in promoting public good as particularly those in democracy and governance. well as their ability to mobilise resources to fund There is doubt in the understanding that civil specific programs. There was an observation society should be a remedy for correcting the that these divisions mirror those of the larger wrongs in society, this may be attributed to society and therefore largely attributed to the the lack of distinction between the activities political-ideological divides. of politicians and the activities of civil society groups pursuing political goals. There is need for The study revealed that in the recent past, there further studies to determine the reasons for a was a crackdown by the government on CSOs failure of civil society to mobilize mass support in three ways (a) first, and most effective in the attributable to their failure of linking their short term, was using the NGOs Coordination objectives to prevailing situations in the society. 20 Board to threaten the existence of some The findings of this study were not conclusive on NGOs. This was achieved by deregistering some some of the reasons. NGOs, or threatening to do so (b) second was to undermine the implementation of the proposed There are weaknesses in the organization of Public Benefits Organisation (PBO) Act21 intended CSOs in Kenya; these include internal divisions, to govern the operation and funding of NGOs (c) social fragmentation, poor orientation and third was to try to turn public opinion against lack of outreach capacity in addition to lack of NGOs by repeatedly linking them to terrorist institutional capacity. In the recent past, there activity. Peter Alingo argues that this crackdown has been an unfavorable political environment was successful in bringing down the civil society for CSOs, first with the crackdown by the in Kenya22 government the followed by the perceived diminished role of the civil society after the On funding of CSOs, the study revealed that ‘handshake’. Despite all these the role of civil civil society in Kenya is currently poorly funded. society in Kenya remains critical especially in Other studies have suggested that donors have the current situation where there is absence of significantly reduced their funding for CSOs in a political opposition. The need for lobbying and Kenya. This is attributed to two main factors; mobilizing popular participation in governance (a) the political transition in 2003 which brought and development with an aim of providing the about an improvement in relations between necessary oversight as well as checks and the Government and CSOs when meaningful balances cannot be underscored. The challenge dialogue and increased engagement between becomes how to formulate a strategy of the two sectors began to take place (b) lack of becoming the de facto opposition in Kenya. competence, sustainability, and credibility within civil society organizational structures. There are challenges with sustainability, however with proper orientation and strong institutional capacity, CSOs will attract long term funding CONCLUSIONS: Opportunity for Civil which will also ensure that CSOs are able to Society in Kenya establish alternative sources of funds including income generating activities to support their The analysis shows that there is no clarity in the programs. conceptual and operational framework of civil

20 the state body that registers and monitors all NGOs

21 The original law was designed to help NGOs fulfill their functions, but successive amendments introduced by the government will have the opposite effect 22 See https://issafrica.org/iss-today/think-again-civil-society- in-kenya-is-down-but-not-out

7 REFERENCES

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