“Uhuru Kenyatta’s assumption of the presidency has injected fresh energy into his family’s commercial empire, putting a number of its units on an expansion mode that is expected to consolidate its position as one of the largest business dynasties in Kenya”
Business Daily, Monday, November 11, 2013.
A few days ago, the Dairy Board of Kenya published, then recalled, draft regulations that sought, among other things, to outlaw and criminalize farmer-to-consumer raw milk sales. Essentially farmers would be compelled to sell milk to processors or other intermediaries (cooperatives or businesses) licensed and regulated by the Board. The withdrawal was in response to a huge public blowback, including a trending hashtag #Kenyattamilkbill, mobilising for the reactivation of the boycott against Brookside Dairy products. It was notable that the Dairy Board’s reversal of its draft regulations followed a press release by Brookside Dairies objecting to the regulations citing specifically the levies that the Board proposed on dairy businesses. Tellingly, Brookside’s statement was silent on the question of outlawing farmer to consumer raw milk sales.
This story is about an even more audacious scheme in the Kenyatta empire’s “expansion drive”, the most egregious case of policy and regulatory capture I have encountered…
As a previous column, Crony Capitalism and State Capture: The Kenyatta Family Story observed, Uhuru Kenyatta’s presidency has delivered remarkable returns-on-investment for the family enterprise:
“During Uhuru Kenyatta’s first term the consumer price of milk increased 67 percent (from KSh 36 to KSh 60 per half-litre packet), while producer prices remained unchanged at Sh 35 per litre), effectively increasing processors’ gross margin by 130 percent (from Sh37 to Sh 85 per litre). Given the industry’s 400m litre annual throughput and Kenyatta family’s market share, which stands at 45 percent, the consumer squeeze translates to an increase of the Kenyatta Family’s turnover from KSh 13 billion to KSh 22 billion, and gross margin from KSh 6.7 billion to KSh 15 billion a year.”
Not enough, not by a long shot.
The platform will offer micro and small enterprises an overdraft facility of up to KSh 50,000, and a loan of up to 12 months with a limit of KSh 200,000. The initiative targets five million sign-ups, and two million users in the first year. How it plans to do this is a frightening demonstration of the workings of state capture in the Uhuru Kenyatta era.
Kenya’s annual milk production is estimated at 3.5 billion litres, of which 80 percent is consumed or traded informally. Put another way, only 20 percent, about 600,000 litres, is handled by processors. If these regulations were only to double the processors intake to 50 percent, we are talking of growing Brookside’s turnover and gross margin to KSh100 billion and KSh 67 billion respectively.
But this column is not about the milk, at least not literally – even if the milking metaphor is quite apt. This story is about an even more audacious scheme in the Kenyatta empire’s “expansion drive”, the most egregious case of policy and regulatory capture I have encountered, and I have been round this block a few times. What follows is based on an internal document entitled ‘Restoring Credit Access to Micro and Small Sized Businesses’ shared by whistleblowers in institutions that have been corralled into the scheme by force.
The Huduma Number connection starts with an innocuous statement in a slide presentation titled “How Customers will Qualify” that ends with a bullet point stating that “customers that don’t immediately qualify can opt into a credit access plan”.
The name of the scheme is Wezesha (‘enable’). It is a proposed mobile phone lending platform described as a “collaborative initiative to bridge the access to credit by micro and small enterprises”. It will be managed by five banks, namely NIC Bank, Diamond Trust Bank (DTB), the Kenya Commercial Bank and Cooperative Bank under the leadership of the Kenyatta Family-owned Commercial Bank of Africa. CBA is in the process of acquiring NIC, alongside the smaller microfinance oriented Jamii Bora bank. KCB, Kenya’s largest bank by asset base, and Cooperative Bank, are quasi-public banks, while Diamond Trust Bank is associated with the Aga Khan. The platform will offer micro and small enterprises an overdraft facility of up to KSh 50,000, and a loan of up to 12 months with a limit of KSh 200,000. The initiative targets five million sign-ups, and two million users in the first year. How it plans to do this is a frightening demonstration of the workings of state capture in the Uhuru Kenyatta era.
When it was launched we were threatened that Kenyans who did not register would be denied public services. We are compelled to ask whether this threat, and its prominence in this scheme are related. Are the president’s commercial interests the force behind the Huduma Number?
First observation: the contentious Huduma Number initiative features prominently in the scheme. The Huduma Number connection starts with an innocuous statement in a slide (the documentation is a powerpoint presentation) titled “How Customers will Qualify” that ends with a bullet point stating that “customers that don’t immediately qualify can opt into a credit access plan (consumer education).” How so, is elaborated in another slide titled “Customer Education At Huduma Universal Service Kiosk” complete with the Huduma Kenya logo. Further along, in another slide titled “Functional Schema” a bullet point: “Distribution: An integrated network of GoK Huduma Centres, Bank Branches and agent locations to ‘onboard’ customers and offer information and advice to capital and business opportunities.”
When Huduma Number was launched we were threatened that Kenyans who did not register would be denied public services. We are compelled to ask whether this threat, and its prominence in this scheme are related. Are the president’s commercial interests the force behind the Huduma Number?
But perhaps the question is already answered in another slide titled “Phase 2 Support for Scalability”: New Huduma ID to be integrated once it is ready. This scheme could be used as a registration incentive.”
The funding partners propose that the GoK establishes a credit risk guarantee fund, that is administered by the Central Bank of Kenya, to provide mezzanine credit risk cover for any credit losses above three percent, up to the prevailing NPL rate.
Also to be leveraged for scaling: “Moratorium from KRA Pin and Tax payment”. This statement requires some thought. What would give a private business scheme the audacity to propose a tax compliance waiver as a tactic to attract customers?
But the crux, is this:
“The funding partners propose that the GoK establishes a credit risk guarantee fund, that is administered by the Central Bank of Kenya, to provide mezzanine credit risk cover for any credit losses above three percent, up to the prevailing NPL rate.”
Some background is necessary. The cost of bank credit is arrived at as follows:
Cost of funds + Target income + Loan loss provision (NPLs)
Cost of funds is the interest the bank pays on deposits. Target income is the bank’s calculated profit margin that will translate into an acceptable return on investment. Loan loss provision is
the income that the bank sets aside to compensate for loans that are not repaid. Banks are required by the regulator to “provide” from their income equivalent to non-performing loans (NPLs).
Based on this costing, the Scheme’s promoters seem to have arrived at the conclusion that the initiative is not commercially viable. They appear to have determined this in the following way: The lending rate is set at nine percent arrived at by setting cost of funds, target income and a target loan loss provision at three percent each. Next, the Scheme factors in the Kenyan banking sector’s actual NPL rate, which was 11.6 percent at the close of 2018. They then calculate that at 9 percent the initiative would have run at loss of 5.6 percent (9 – 3-11.6 = -5.6).
This is how the case for a public credit guarantee scheme is made. In the computation provided, the public credit risk guarantee would cover the difference between banks’ target and the industry NPL. In the documents that we have seen, an example is provided in which the target NPL is set at three percent as above; the industry NPL at 10 percent and the actual NPL of the lending scheme is set at 12 percent. In this case, the public would pay seven percent (10% – 3%) and the banks would absorb five percent, the target income is projected at three percent, and the additional two percent that is over and above the industry NPL of 10 percent.
Let me illustrate. If for argument’s sake, the scheme lent out KSh 100 billion at nine percent, a 12 percent NPL reduces the performing portfolio to KSh 88 billion, which translates to an interest income of KSh 7.92 billion. A 12 percent loan loss provision (KSh 12 billion) changes that to an interest income loss of KSh 4 billion. But above three percent NPL the public credit insurance kicks in and injects KSh 7 billion, making a total revenue of KSh 14.92 billion (less KSh 12 billion loan loss provision) leaving a net revenue of Sh. 2.92 billion. This translates to a loss of KSh 0.8 million, given that the cost of funds is KSh 3 billion.
What are we missing?
This is a very strange way of pricing a product. The conventional way is to do one of two things: (a) cost the product and compare it with the market price; or (b) take the market price and work backwards to see whether you can beat the price. Sometimes, the product may cost more than the completion, then it becomes a question of whether it can be sold at a premium, like for example, an iPhone, or a Ferrari.
Either way, one arrives at a break-even interest rate of 17.6 percent by adding up the cost of funds (three percent), the targeted income (three percent) and industry NPL rate (11.6 percent).
The next question is whether they would get sufficient uptake of the product at say 18-20 percent. The answer is an unequivocal yes.
For mobile money loans, the money is not in the interest rate but in the transaction fees.
So, why would these banks price the loans to SMEs, the riskiest segment of the market, at 9 percent (about the same as Treasury Bill rate), which for all intents and purpose is the risk-free rate?
For mobile money loans, the money is not in the interest income charged on loans but in the transaction fees. In fact, most products do not charge interest at all. The pricing structure varies widely. To get the actual cost of the loans, we need to calculate a standardized rate known as the Annual Percentage Rate (APR). The APR is obtained by adding up all the cost of the loan and converting them to the equivalent annual interest rate, for example a three month, KSh 10,000 loan with a 5% fee and interest of 2.5% per month costs 1250 (Sh. 500 fee plus Sh. 750 interest) which annualizes to KSh 5000 (Sh. 1250 x 4), which is an APR of 50%. KCB charges a 2.5 percent transaction fee and interest rate of 1.16 percent a month for loans ranging from one to six months which works out to APR of 19% to 44% for the six and one month loans respectively. In general, the shorter the term, the more expensive. CBA charges a 7.5 percent fee for a one-month Mshwari loan. This is an APR of 90 percent. The recently launched Fuliza overdraft tariff range from 5/- a day for amounts below KSh 500 to KSh 30 per day for amounts above KSh. 2500. A Sh.10,000 Fuliza overdraft at KSh 30 per day translates to an APR of 110 percent.
When fees are factored in, the case for public credit insurance collapses like a house of cards.
Let’s go back to the monetary illustration. Assume the scheme achieves its borrowing target of two million customers. Our portfolio of KSh100 billion works out to an average individual loan of KSh. 20,000. Further, assume they churn the funds six times a year, that is, each of the customer borrows and repays a loan every two months on average. A five percent transaction fee translates to an income of KSh12 billion a year, and a total income of KSh19.92 billion — well above the 18 percent required for the scheme to meet its profit target.
So what is going on here? First, Wezesha is simply a scheme to fleece the public. In today’s financial lingo, the Scheme is fully “de-risked”…par for the course in “public-private partnership” (PPP) business, where the profits are privatized, but the losses are socialized (i.e. borne by the public). The second, is to see Wezesha as a strategy to finance undercutting the competition by pricing below cost at entry, with the intention of charging monopoly prices once the competition is driven out of business.
The nine percent interest is a bait. Its purpose is to make the case for the proposed government credit insurance scheme by purporting to offer SMEs affordable credit.
So what is going on here? There are two ways to look at it. First, Wezesha is simply a scheme to fleece the public. In today’s financial lingo, the Scheme is fully “de-risked.” This is par for the course in “public-private partnership” (PPP) ventures, where the profits are privatized, but the losses are socialized (i.e. borne by the public).
The second, is to see Wezesha as a strategy to finance undercutting the competition by pricing below cost at entry, with the intention of charging monopoly prices once the competition is driven out of business. In competition economics, we call this predatory pricing. It is illegal under competition law. In this case, the public insurance serves both as a financial cushion as well as insurance from regulatory scrutiny.
The CBA already controls consumer credit data on account of its Safaricom partnership. This Scheme is designed to make the CBA the gatekeeper for the entire banking and financial services to micro-and small-enterprises.
As students of economics and finance know from the concept of information asymmetry, the most important asset in credit markets is information about customers’ creditworthiness. On the strategy for “scaling up” the documents refer to “integration to other financial institutions and service providers.” The intention is clear. First, use the government machinery and public money to drive customer acquisition. The CBA already controls consumer credit data on account of its Safaricom partnership. This Scheme is designed to make the CBA the gatekeeper for the entire banking and financial services to micro-and small enterprises, and I quote: “CBA Digital shall play a lead arranger role to develop and operate the credit risk management model for the full credit lifecycle.”
Even if there was an economic rationale for a credit insurance scheme of this kind, no government in its right mind would confer such a market advantage to some players. It is instructive that, in what looks like a case of the tail wagging the dog, KCB the crown jewel of public banks has been brought into the scheme. We should not be surprised if down the road, it turns out to be an acquisition target.
Uhuru Kenyatta’s sole accomplishment after extricating himself from the ICC may turn out to be framing the corruption issue exclusively as plunder of the budget, perhaps even deliberately giving his associates leeway in that theatre—recall “mnataka nifanye nini” (what do you want me to do)— as he provides cover for the Family to do the more serious boardroom stuff. Plunder of the budget ends once the thieves leave office. Wholesale enclosure of large chunks of the economy will keep the dynasty in the black long after he has left office.
Welcome to the Kenyatta Republic Inc.
Why #EndSARS Matters in an Era of Increasing Militarisation and Repression
In Nigeria, protests against police brutality are mounting. In Kenya, however, new security laws that undermine police and military accountability are being passed.
The death of George Flyod in the United in May 2020 mobilised a global response around racialised police brutality. The manifestation of racism in policing in the US struck a chord across the world because it recuperated conversations on structural racism across Europe in particular. Europe had opportunistically argued that the nature of racism in the US was unique because of slavery. In this process, European countries set aside their colonial histories to elide responsibility for vestiges of structural racism left in former colonies, embedded in contemporary global economic and political systems and existing within their territories today. The rise of neo-nationalist and fascist political parties across Europe offers the starkest reminder of the folly of racism denialism.
At the height of the Black Lives Matter protests, I was asked why “Africans are not protesting in solidarity”. There was an implicit assertion in these comments that because Africans were not on the streets en masse at a time when COVID-19 restrictions had just been instituted, conversations on policing and security are not a well-developed site of activism, policy influencing and scholarly work in Africa. The comments also reflected ignorance of the fact that a critical security analysis would show how colonial pasts have shaped policing and militarisation of the continent today.
The ongoing #EndSARS protests in Nigeria foreground the similarities in the architecture that shaped the Black Lives Matter movement and the #SayHerName campaign, which raises awareness about the often invisible names and stories of black women and girls who have been victims of racist police violence The similarities here lie in the regimes of carcerality that shape how black people are policed globally. Carcerality refers to the collision of ideological, economic and legislative initiatives that develop punitive frameworks to inform how governments understand, use, respond to, and create “crime”. Massive financial investments in law enforcement, surveillance technology and a commitment to aggressive punishment regimes form part of this framework. Carceral regimes are always racialised, gendered and classed, and driven by a logic that large sections of the population need to be violently managed through the regularisation of securitisation regimes, ostensibly to protect the privileged.
As we hold space for Nigerians agitating for better ways to govern their security and safety, I turn to Kenya to draw similarities to these carceral regimes. The central argument here is that we cannot delink the conversations to defund the police in the US and #EndSARS in Nigeria from broader debates around increasing militarisation across African countries as part of a claim to dealing with insurgent groups. The convergence between increased security expenditure, surveillance and domestic policing occurs in contexts (as I have argued elsewhere), where the socio-economic conditions that impoverish the majority remain ignored by the political class while security expenditure is ramped up. The contradiction between increasing resources to criminalise and incarcerate people impoverished by government policies rather than curb the conditions that create a lack of freedom, safety and security is stark.
Securitisation and militarisation of Kenya
In chronicling the legislative amendments and tracing the accompanying increases in security expenditure in Kenya, I offer a window into how governments develop and sustain paramilitary and/or policing units that operate extrajudicially. Parliaments, as primary sites within which these laws are passed, and the politicisation of security generate the power for units such as Nigeria’s Special Anti-Robbery Squad (SARS) to act outside the law.
Kenya’s military expenditure rose to Sh121.82 billion in 2019, up from Sh116.19 billion in 2018. This is a rise from the 2018/19 spending of Sh109 billion to Sh121 billion. In 2017, the Kenya government received, Sh1 billion worth of drone equipment to help with anti-terrorism surveillance. This increased expenditure occurs against the backdrop of legal amendments in 2015 that increased the role of the Kenya Defence Forces (KDF) in domestic security and that removed the role of Parliament in providing parliamentary oversight on the budget and functions of KDF and the requirement for the Defence Cabinet Secretary to report to Parliament. The amendments also gave the chief of the defence forces the authority to deploy KDF in civilian operations and established an auxiliary reserve force comprising forest guards and the National Youth Service to be deployed alongside KDF in situations of emergency, unrest and disorder.
The convergence between increased security expenditure, surveillance and domestic policing occurs in contexts where the socio-economic conditions that impoverish the majority remain ignored by the political class while security expenditure is ramped up.
This increase in military expenditure and legislative cushioning is extended to the militarisation of the police through the modernisation programme. In 2017, the government unveiled 500 police vehicles, including 25 mine resistant personnel carriers and 30 armoured personnel carriers, which were to be deployed to various “hot spot areas”. During the 2017 general elections, paramilitary units, such as the General Service Unit (GSU), the administration police and the Kenya Wildlife Service, used excessive lethal force to disperse protests mainly in opposition areas, which led to loss of life.
The range of security amendment laws in Kenya undermine accountability measures embedded in the 2010 constitution that were aimed at rectifying a history of police brutality under a broader climate of repression. For example, the 2014 omnibus of Security Laws (Amendment) Act, which included the Prevention of Terrorism Act, was passed with limited public participation. The Act imposes exorbitant fines and prison sentences that impact the freedom of the press and independence by making it harder to expose and criticise human rights violations by security forces and by prohibiting the public broadcasting without police permission information “that is likely to undermine security operations”. The Act also places restrictions on freedom of assembly and association in a context characterised by government hostility to non-government organisations. Within these amendments, the National Intelligence Service (NIS) Act expanded the powers of the NIS to arrest and detain suspects, to carry out covert operations, to search and seize private property, and to monitor communications in any act that poses a threat to national security without a court warrant. These are provisions that closely mirror UK and US counterterrorism laws.
These amendments have also watered down the oversight responsibilities of the Independent Policing Oversight Authority (IPOA), which was established in 2011 to provide independent oversight of the police by conducting investigations, audits and monitoring. The 2015 Statute Law (Miscellaneous Amendments Bill) amends section 14 of the Independent Policing Oversight Authority (IPOA) Act by limiting access to information and evidence against rogue officers. It effectively reduces IPOA’s power to check police excesses and places its investigative capabilities in the hands of the police command. Further power was handed to the President to remove the chairperson or members of IPOA by sidestepping the need for a recommendation from a tribunal, thereby concentrating power in the Executive and the presidency.
As calls to hold the Nigerian government accountable get louder, we should equally pay attention to the commonalities in the policing architecture across Africa and the logics that underpin them. We should also track the international financial and training resources that go towards security sector reform and modernisation projects across Africa. It is in a broader conversation about transnational security regimes – which criminalise, securitise and police through “othering” – that effective transnational solidarity and collective action can emerge.
Climate Politics: The Grand Plan to Save Forests Has Failed
Communities that live and work in African woodlands must become central to conservation efforts.
At the 13th Conference of the Parties (COP 13) in 2007, parties to the United Nations Framework Convention on Climate Change (UNFCC) agreed to a grand plan to use forests to “save the world” from the climate change crisis. Reducing emissions from deforestation and forest degradation in developing countries (named REDD+) was born out of the recognition that forest conservation can significantly reduce greenhouse gases (GHGs). The premise for REDD+ is straightforward: tropical forests are the world’s lungs, storing roughly 25 percent (300 billion tons) of the planet’s terrestrial carbon dioxide—a greenhouse gas. However, since 1990, more than 420 million hectares of forests have been chopped down to make way for farms, housing and shopping malls, releasing carbon dioxide into the atmosphere and reducing the storage capacity of the forests.
REDD+ proposes a simple solution. Developed countries do not want developing countries to “make the same mistake” of forest-dependent economic development and so are willing to compensate developing countries for this “lost opportunity.” For example, the US cleared up 90% of its virgin forests between 1600 and 1900 on its way to industrialization. As part of reducing their emissions, rich countries and their corporations can help “save” a tropical forest and claim the resulting carbon credits. Practically saving or conserving a forest could mean funding for the conversion of forests into protected areas, paying local communities to move from forest-dependent livelihoods to alternative livelihoods, or a focus on conserving forests and tree species—like Grevillea robusta, Pinus radiata, Spekboom or Eucalyptus—that are good for the capture of carbon but of little tangible value to local communities.
While the rationale and mechanism of REDD+ seem straightforward, the implementation and the results have been unsatisfactory and mired in controversy. Twelve years of REDD+ have been unable to significantly reduce deforestation. In places like Mai-Ndombe in the Democratic Republic of the Congo (DRC), REDD+ has failed to both halt deforestation and benefit local communities. While architects of the program, who mostly reside in the West, are concerned with clean air and greenhouse gasses, custodians of the majority of the forests in developing countries, including indigenous people and forest-dependent communities, are thinking about where the next meal will come from.
As part of my research on Malawi, for example, I have shown that forests are important for the nutrition of forest-dependent communities. Such custodians of the forests, however, were not fully involved in the design of REDD+, nor its implementation on the ground. As Abdul-Razak Saeed and others pointed out, “while communities were engaged in the REDD+ projects, their engagement was often in an ad-hoc fashion. Decisions were taken before communities were consulted to gauge their reaction.” In Peru, local communities were only consulted after the project was approved, while in Kinshasa, projects were developed before being shared with communities.
At the core of the REDD+ are neoliberal and corporate-friendly ideas. These ideas are aimed at evading the problem caused by the real polluters by creating a market for carbon to continue to extract profits unabated. Africa as a whole only contributes 3% to GHGs. REDD+ is functioning as a form of governance—a particular framing of the problem of climate change and its solutions that validates and protects the ways of life of capitalism while marginalizing the lives of forest dependent communities and shifting the development trajectory of the developing countries away from what most developed nations did. It is, as others have labeled it, “CO2loniasm.”
As many critics have argued, REDD+ secures the property rights of global North fossil fuel users while maintaining the opportunities for corporate profit over forest-dependent communities. REDD+ in this context is part of a longer history of neoliberalism, which represents the marginalization of vulnerable groups of people similar to conservation projects, and where success is measured by the number of locals who can be persuaded with money to give up their livelihoods, birthrights, and other forms of identity that are heavily interwoven with forests. These communities have to take up other ways of life that can save the forest beyond what would be required to make the community carbon neutral for the benefit of Western elites.
As some projects that have been implemented under REDD+ have shown, the negative impacts on indigenous and forest-dependent people are rampant. For example, in the DRC, which is one of the early experimental sites with several projects, researchers found that the projects were leading to land grabs. Another example is in Uganda where a Norwegian company bought huge tracts of land to plant fast-growing plants. However, the commercial plantations in this project barred local households from harvesting any timber or other NTFPs, resulting in loss of income for the entire community.
Furthermore, REDD+ links forest conservation and more than one billion people who depend directly on forests to global carbon markets—exposing them to volatile commercial power structures. The communities would be at ransom to the price of carbon and the vicissitudes of the financial sector. Whenever the price of carbon increases, the demand for carbon credits rises in tandem pushing more people out of their traditional lands and ways of life.
Solutions arrived at in the big conference halls of the West, implemented in developing countries without the full participation of the people, are bound to fail. New ideas that explicitly involve the forest-dependent communities are imperative. Ongoing research by the Center for International Forestry Research (CIFOR) on the impact of REDD+ initiatives on community livelihoods highlights the need for policies that respond to the unique ways that local communities use their forests. As Alain Fréchette of the Rights and Resources Institute notes, “strong indigenous and community land rights and a clear understanding of who owns forest carbon are vital prerequisites for climate finance to succeed in its goals of reducing poverty and protecting forests.”
“To succeed, these projects must include the communities that have managed these forests for generations,” says Chouchouna Losale of the DRC’s Coalition of Women Leaders for the Environment and Sustainable Development. Western countries will have to face the grim reality that saving the world from the climate catastrophe will not come from African countries, but by addressing the source of the greenhouse gases within their boundaries. African governments need to protect the marginalized and have the right to determine their own path to sustainable development. This will happen when negotiations are balanced and inclusive. For example, a pilot REDD+ project in Nepal was billed as successful because it fully involved the national and community level institutions in decision making and forest conservation. As the authors of the study reported, “participating communities were enthused…and met more frequently to make community decisions related to forests.”
The Role of Kenyan Civil Society in Democratic Governance
Kenyan civil society has played a critical role in holding the State to account and in promoting a human rights-based approach to governance.
In defense of democracy, human rights and the rule of law is the motto of conscientious human rights defenders. A human rights defender is any person fighting for a cause to improve the well-being of human beings or to correct a violation to human dignity or breach of law for remedy. Human rights are rights that belong to everyone simply because they are human beings. By belonging to everyone it means that every person is a holder of these rights and they may not be taken away or denied because of a person’s social or economic status. Human rights are universal. They belong to everyone. They are interrelated, interdependent and indivisible. No right is greater than the other.
The primary obligation to promote and protect human rights rests with the State. However, every individual, and other non-State actors also have the responsibility and duty to respect the rights of his or her fellow human being. It is vital that in the establishment of a human rights culture that no one is excluded and that the most vulnerable are included. For democracy to prevail, it is imperative that it reaches every citizen. It is often said that it is easier to struggle for democracy but more difficult to sustain it.
This is critical especially in situations where people have limited respect for and trust in the government. The world is facing the greatest test – the COVID-19 pandemic. It is my personal experience that pandemics or upheavals in countries and societies have always had serious consequences to human trights democracy and rule of law. In most cases, such occurrences exacerbate existing human rights violations. It is the moment when human rights defenders in their active and vibrant civil society are necessary to hold the State accountable, especially because the State capitalises on such calamities to grab more power and cause egregious violations.
A new United Nations report on the global response to COVID-19 has noted the central role of a human rights-based approach to the pandemic. “This is not a time to neglect human rights; it is a time when, more than ever, human rights are needed to navigate this crisis in a way that will allow us, as soon as possible, to focus again on achieving equitable sustainable development and sustaining peace,” stated the report. This is a time when, more than ever, government needs to be open and transparent, responsive and accountable to the people they are seeking to protect. Civil society organisations, particularly grassroots community-based organisations, are better placed to reach exposed populations quickly and in ways that factor in the specific sensitivities of each community and that ensure that critical information reaches diverse segments of the society.
Perhaps the biggest challenge that human rights defenders and civil society in general have faced during this pandemic is the State taking advantage of the pandemic to grab and consolidate more power. States have turned COVID-19 into a security matter, giving themselves enormous powers to curtail crucial freedoms and rights while remaining covertly opaque in their decision-making processes. This poses a dilemma for civil society on how to respond while being sensitive to the public’s concerns.
Who constitutes civil society?
In my own understanding, civil society is not what many Kenyans see as particular individuals and/or the organisations they work for. No! Civil society should been seen in the context of the heterogeneity of an entire range of organised groups, individuals, and institutions that are independent of the state, voluntary, and at least to some extent self-generating and self-reliant. This includes those individuals and organisations that the majority of Kenyans see as the being the civil society, as well as independent media, think tanks, universities, and social and religious groups.
To be part of civil society, such individuals and groups, formally or informally, must have respect for the rule of law, for the rights of individuals, and for the rights of other groups to express their interests and opinions, and must also exercise tolerance and the accommodation of pluralism and diversity of ideas and formations.
States have turned COVID-19 into a security matter, giving themselves enormous powers to curtail crucial freedoms and rights while remaining covertly opaque in their decision-making processes.
There is consensus that civil society in all its different formations and characters needs to ensure its own legitimacy, openness and transparency. Legitimacy stems from several sources:
Firstly, from a strong moral conviction, through acting on the basis of universally-recognised rights and freedoms of speech, assembly and association to articulate public concerns that are inadequately addressed by the government.
Secondly, from a political and civic legitimacy or credibility, through approval of the community or constituency represented by the voluntary association, asserting people’s sovereignty and community control.
Thirdly, from competence or performance legitimacy, by delivering results through being closer to local reality than governmental institutions, helping to bridge a government-community gap and promoting social cohesion.
Fourthly, from legal recognition, although laws may prevent truly independent civil society from functioning, or formal registration may undermine rather than enhance their reputation.
And finally, and most importantly, from the legitimacy that comes from accountability and transparency in its work.
A strong civil society is one in which voluntary formations are effective and strategic organisations that work cohesively in influential networks or coalitions in an environment governed by civil norms, such as respect, reciprocity, tolerance and inclusion. Such norms promote open discourse and citizens’ engagement in informed dialogue.
A narrow view of civil society results in a failure to develop civil society organisations that keep the government in check and nurture democratic practices and values as a multi-generational effort. A broader view of civil society requires cultural and attitudinal changes to help people understand, support, and protect civil society organisations as representatives of their interests. Yet goverments are able to keep replenishing and tapping good ideas and brains to help them overcome citizens’ pressure. Civil society, which is facing very turbulent times on many fronts, will have to become more innovative in enabling collaboration and improving practices in order to remain relevant and effective in influencing public policy. It cannot remain conventional with the same traditional approaches.
In my view, there are several important principles to follow in seeking to strengthen civil society. Firstly, it is critical to start where civil society is: measures to strengthen its capacities need to be based on local needs, assets and institutional ecosystems. Civil society organisations need to know their own strengths. Outsiders cannot necessarily connect with local society.
Secondly, decision-making needs to be in the hands of those undertaking the strengthening measures, so it is informed by indigenous values, concerns and environment. Thirdly, action must be based on well documented and analysed data and evidence and sustainable resources to inform local engagement across sectors and levels. A people-oriented participatory approach is key. It creates constituency and legitimacy. Fourthly, action should support and reinforce existing compatible interventions. This will need to have a combination of multidimensional tools for execution. For instance, how do online actions combine and reinforce offline actions? Fifth, there should be realistic time horizons since institutional development does not occur instantaneously.
Finally, building alliances within a sector or domain will support individual sector members or issue-based communities. This leads to improved information through sharing best practices and avoiding duplication. Through collaborative action in alliances there can be a greater impact at the policy level, and a means to set standards in accountability. Alliances and networking create solidarity. Bridge-building across sector boundaries strengthen both by generating a larger body of interest and also new resources, for example, through cooperation with the public or private sector. Transnational or international engagement enhances civil society roles in different spheres of public discourses.
In my experience with civil society, I see have seen it playing pivotal roles of advocacy, watchdog and service provider of public goods. The roles are intertwined. Perhaps what have been different are approaches, which has created unnecessary frictions and misunderstanding. As dynamic and multidimensional entities, civil society moves from one role to another and/or assumes several roles. This can be illustrated by an organisation whose initial role is service delivery; it turns to advocacy to overcome problems it meets in fulfilling its service provision role; and it subsequently becomes a watchdog in trying to prevent the recurrence or worsening of the problems while continuing to provide its original services. The role of service delivery is regarded, at least by governments, as the least controversial function of civil society. However, many people express concern that while civil society is performing a crucial activity, the government can take advantage of this service provider role and fail to assume its own responsibilities and obligations.
Most agree that Kenyan civil society has contributed enormously towards both the substance and process of democracy and human rights. Civil society has been an important driver of the State’s democratisation process by providing a vital link between citizens and the State as well as by mobilising communities for collective actions. It also provides an environment that can be used to enhance community cohesion and decision-making. Information is vital to civic participation and also encourages inclusive development and participatory democracy. When people get better informed, they are more likely to participate in policy discussions and communicate their ideas and concerns freely.
Achievements of Kenyan civil society
The following is a summary on the role civil society played in Kenya in advancing human rights, democracy and the rule of law in different contexts. (The list is not exhaustive.)
First, civil society has been an incubator and supplier of ideas on content and strategies on State transformation and building an open pluralistic society. Perhaps the struggle for multipartyism and a new constitutional order culminating in the progressive Constitution of Kenya 2010 amplifies this critical role of civil society. Today, there is a growing movement of civil society on the implementation of the constitution and championing of devolution of powers and resources under the banner of Tekeleza Katiba Movement. Further, civil society has not shied away from working and organising political parties into a formidable socio-political movement. This capacity was demonstrated in 1997 and 2002.
The role of service delivery is regarded, at least by governments, as the least controversial function of civil society. However, many people express concern that while civil society is performing a crucial activity, the government can take advantage of this service provider role and fail to assume its own responsibilities and obligations.
Secondly, civil society has been a strong deterrent and catalyst in defanging the power of the State. A true democracy needs a well-functioning and legitimate State. Kenyan civil society has been highly successful in deploying different methods to ensure that the State is tamed through checking, monitoring, and taking actions to restrain the power of political leaders and State officials. Civil society actors have been aggressive watchdogs on how State officials and agencies use their powers through raising public concern and awareness about any abuse of power and robustly taking advocacy actions ranging from public demonstrations to picketing and litigation.
Thirdly, research and documentation to expose the corrupt conduct of public officials and demands for accountability and improved governance have been a great success. This is also very important in collection and preservation of evidence. Civil society in its different formations has been a leading light in tackling corruption, especially through push for public access to information, whistle blowing and public campaigns. This is upon realising that even where anti-corruption laws and bodies exist, they cannot function effectively without the active support and participation of civil society. Civil society have come up with transparency and accountability tools as some potential solutions to some of the corruption problems in that they allow communities to identify breakdowns and hold responsible agents or decision makers to account. A fourth function of civil society is to promote political and public participation. Civic education on citizens’ rights and obligations has been a bulwark in developing citizens’ skills to work with one another to solve common problems, to debate public issues, and express their views.
Fifth, civil society has been a major player in conflict mitigation efforts and propagating values of democratic life, such as tolerance, moderation, compromise, and respect for opposing points of view. Without this deeper culture of accommodation, democracy cannot be stable. Civil society understands that these values cannot simply be taught; they must also be experienced through practice and interlocutors. Civil society has developed formal programmes and training of trainers to relieve political and ethnic conflict and teach groups to solve their disputes through bargaining and accommodation. This brings the crucial connection between policy and practice in civil society work.
Sixth, civil society has been an arena for the expression of diverse interests. One role of civil society organisations has been to push for the needs and concerns of their members, as women, students, farmers, environmentalists, trade unionists, lawyers, doctors, and so on. Civil societies, in all their diversity, have been presenting their views and those of different constituencies they represent to different State institutions for redress. They also establish a dialogue with relevant government ministries and agencies to lobby for their interests and concerns. And it is not only the resourceful and well-organised whose voices have been heard. Over time, groups that have historically been oppressed and confined to the margins of society have organised to assert their rights and defend their interests.
Kenyan civil society has been highly successful in deploying different methods to ensure that the State is tamed through checking, monitoring, and taking actions to restrain the power of political leaders and State officials.
Seventh, different civil society platforms have been vital focal points for strengthening democracy in actions by providing new diverse forms of interests and solidarity. For civil society, democracy cannot be stable if people only associate with others of the same social, political or status identity orientation. When people of different religions, ethnic identities, professionals backgrounds and sectors come together on the basis of their common interests as women, artists, doctors, students, workers, farmers, lawyers, human rights activists, environmentalists, and so on, civic life becomes richer, more complex, and more tolerant. Civil society has very efficiently provided this platform. Historically, groups and individuals never saw themselves as part of civil society; today there find crucial space for civic engagement.
Eighth, civil society provides a training ground for political, civic and private leaders. Civil society has helped to identify and train new types of leaders who have dealt with important public issues and are recruited to run for political office at all levels and to serve in local and national positions, both in politics and private/professional sectors. Evidence shows that civil society has been a particularly important arena from which to recruit and train women leaders in different fields.
Ninth, civil society has helped to inform the public about important public policy issues. This is not only the role of the mass media, which is also part of civil society, but individuals or groups of organisations coming together to provide fora for debating public policies and disseminating information about issues that affect the interests of different groups, or of society at large, using different methods. Civil society leads in taking action that safeguards public interest like litigating and drafting petitions and policy papers and presenting those policy positions to the relevant State institutions.
Tenth, civil society organisations have played vital role in monitoring electoral processes and management. This has seen a broad coalition of organisations unconnected to political parties or candidates deploying neutral monitors at all the different polling stations to ensure that voting and vote-counting is entirely free, fair, peaceful, and transparent. It is very hard to have credible and fair elections in a democracy unless civil society groups play this role. The outcomes of such vital civil society processes have been useful as evidence in electoral disputes.
Twelfth, civil society has been very instrumental in advocating for fair rules in the digital world and influence at the policy level. This has been important in establishing spaces for civil society to engage and bring social change through digital activism.
Finally, it is important to stress that civil society is not simply in tension with the State. Because civil society is independent of the State does not mean that it must always criticise and oppose the state. In fact, by making the State at all levels more accountable, responsive, inclusive, and effective, and hence more legitimate, a vigorous civil society strengthens citizens’ respect for the State and promotes their positive democratic engagement with the State. However, Kenyan civil society is in the state of fluid transition as global dynamics shift.
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