On 13th May, the Constitutional and Human Rights Division of the High Court of Kenya handed down its judgment in David Ndii and Others v Attorney General and Others (the BBI Judgment). Through the course of the judgment, the Court examined a fascinatingly broad range of issues, including the question of whether the Kenyan Constitution of 2010 has an un-amendable “basic structure”, the extent and limits of public participation in law-making, and political representation and the alteration of constituencies. For this reason, and for the clarity of its analysis, the BBI Judgment is a landmark judicial verdict that will be studied by students of constitutional law across the world in the days to come.
The primary issue in the BBI judgment involved a set of contentious proposals to amend the Kenyan Constitution. After winning power in 2017, in a controversial general election (the results were set aside by the Supreme Court the first time, and the Opposition boycotted the rerun), Kenyan President Uhuru Kenyatta created a “Building Bridges to Unity Taskforce” (BBI Taskforce), which was mandated to come up with “recommendations and proposals for building a lasting unity in the country”. After the BBI Taskforce submitted its report, the president appointed a sixteen-member “BBI Steering Committee”, whose terms of reference included “administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the Taskforce Report”. The Steering Committee’s report finally turned into a Bill for bringing about wide-ranging amendments to the Kenyan Constitution (“The Constitution of Kenya Amendment Bill, 2020).
Under Article 257 of the Kenyan Constitution, one of the ways to amend the Constitution is by “Popular Initiative”, which requires – as a starting point – the signatures of one million registered voters (Article 257). Consequently, the BBI Secretariat commenced the process of gathering signatures. At this point, the entire process – as a whole, as well as its constituent parts – was challenged before the High Court through a number of petitions. All these petitions were consolidated, and the High Court eventually struck down the whole of the BBI process as unconstitutional.
The Court framed a total of 17 issues for disposal.
The basic structure
As the challenges were to (proposed) constitutional amendments, at the outset, the High Court was called upon to answer a crucial – preliminary – question: was there any part of the Kenyan Constitution that was un-amendable, i.e., beyond the amendment processes set out in the constitution itself (the “basic structure” question).
The constitutional provisions
To understand this better, let us briefly consider Articles 255 to 257 of the Kenyan Constitution, that deal with constitutional amendments. Articles 256 and 257 set out two methods of amending the constitution: through parliament, and through Popular Initiative. The Parliamentary Process is contained in Article 256, which requires amendments to be passed by a two-thirds majority of both Houses of Parliament. The Popular Initiative process is contained in Article 257. It requires the signature of one million registered voters, followed by a range of procedural and substantive steps, such as certification by the Independent Electoral and Boundaries Commission (IEBC), approval by a majority of county assemblies, and approval by a majority in both Houses of Parliament (failing which, the proposal can be put to a referendum).
Article 255 of the Kenyan Constitution places a further requirement for certain types of amendments. If an amendment falls into one of the ten categories set out in Article 255(1) (including Kenyan territory, the Bill of Rights, presidential terms, etc.), then in addition to the processes described in the previous paragraph, it must also be approved in a referendum by a simple majority (and under certain quorum rules). A perusal of the categories under Article 255(1) reveals – unsurprisingly – that they pertain to core structural issues, and are therefore deemed more important (in a way), or – dare we say it – more basic than the other constitutional provisions.
The text of the Kenyan Constitution, therefore, sets out two processes of amendment: Parliament (Article 256) and People and Parliament (Article 257). It also divides the constitution into two sets of provisions: those that can only be amended following a referendum, and those that do not need a referendum (Article 255). The key question in the BBI Judgment was whether Articles 255 to 257 were exhaustive when it came to constitutional amendments, or whether there was a third set of provisions that could not be amended even if the scheme under these articles was scrupulously followed.
To answer this question, the High Court embarked upon a detailed analysis of Kenyan constitutional history. It noted that if there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a “model . . . of participatory constitution building process”. This meant that the public was meant to be involved in every step of the constitution-making process, as opposed to the “20th century model”, where constitutions drafted by experts were submitted for public approval, giving the people a say over only the final version.
Indeed, the 2010 Constitution – the Court argued – was designed to respond to two sets of pathologies that had plagued Kenyan constitutionalism in its previous iterations (starting from independence in 1963). The first was a “culture of hyper-amendment”, where presidents amended constitutions with such ease and such frequency, that the document became little more than a “hollow shell”, creating a raft of “constitutions without constitutionalism”. This was especially true in the 1970s and 1980s, when Kenya effectively became a one-party state, and this was at the heart of demands for constitutional reform when multi-party democracy returned in 1991.
If there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a model of participatory constitution-building process.
The second piece of constitutional history that culminated in the 2010 document was a two-decade emphasis on a citizen-led process. The High Court’s account of this history – starting at paragraph 411 of the judgment – is deeply fascinating, and repays careful study. Despite strong pushback from the political executive – with the president sarcastically asking “What does Wanjiku [i.e. the common Kenyan] know about the Constitution?” – efforts to centre the citizen in the constitution-making process remained undeterred. The Constitution of Kenya Review Act of 1997 specified that constitutional review had to be “by the people of Kenya”, and went on to provide a framework for public participation – insulated from legislative and executive interference – at every stage of the drafting process. The Constitution of Kenya Review Commission (the CKRC) implemented this at the ground level through a sequential process that involved civic education, research, public consultation, preparing the draft bill, and considering the commissioners’ report. After a long process that included considering more than 35,000 submissions from the people, a draft constitution was prepared by 2002. This process was, however, short-circuited when the then President Daniel arap Moi dissolved Parliament before the 2002 general election.
In the 2002 elections, however, President Moi lost power, and the opposition coalition that entered into government committed to continuing with the constitutional process. After further consultations, a draft called “the Bomas Draft” was prepared; however, the government attempted to significantly alter the draft through a non-participatory parliamentary process that resulted in a fresh document called “the Wako Draft”. Attempts to force through the Wako Draft were forestalled when, in 2004, the High Court of Kenya famously held that the draft would have to be put to a referendum. In 2005, when the referendum did take place, the Wako Draft was voted down 58-42.
Constitutional reform came back on the table after the large-scale violence in the aftermath of the 2007 general election, which needed international mediation. The legal framework for this was provided by the 2008 Constitution of Kenya Review Act, which again placed public participation at the centre (although its implementation in this regard was criticised). On 4th August 2010, the new draft constitution was passed with 68.55% of Kenyans voting in its favour.
Relying upon this constitutional history – i.e., the pathologies of hyper-amendments and the two-decades-long struggle for public participation – the High Court concluded that “these principles of interpretation, applied to the question at hand, yield the conclusion that Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments.”
This was buttressed by the fact that the Wako draft – which did not respect the principle of public participation – had been voted down by the Kenyan people. Over the course of the years, it had become clear that participation in the constitution-making process required four distinct steps: civic education to equip people with sufficient information to meaningfully participate in the constitution-making process; public participation in which the people – after civic education – give their views about the issues; debate, consultations and public discourse to channel and shape the issues through representatives elected specifically for purposes of constitution-making in a Constituent Assembly; and, a referendum to endorse or ratify the Draft Constitution.
The Court thus found:
What we can glean from the insistence on these four processes in the history of our constitution-making is that Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through a similarly informed and participatory process. It is clear that Kenyans intended that each of the four steps in constitution-making would be necessary before they denatured or replaced the social contract they bequeathed themselves in the form of Constitution of Kenya, 2010.
The Court labeled this the “primary constituent power” – i.e., the power possessed by the people themselves, as a constituent body – as opposed to the “secondary constituent power” (the Popular Initiative + Referendum process under Articles 255 and 257) and the “constituted power” (amendment only by Parliament under Article 256). The “primary constituent power” was located outside of the constitution’s amendment provisions, and was plenary and unlimited. It followed that there were substantive limitations upon which amendments the secondary constituent power or the constituted power could bring about: such amendments could not “destroy the basic structure of the Kenyan Constitution”, because that right – i.e., to make or radically alter the fundamentals of a constitution – lay only with the primary constituent power, i.e., with “the People.”
Thus, while the High Court affirmed the basic structure doctrine in the Kenyan context, it also went one step beyond. In its classical iteration, the basic structure stops at saying that constitutional amendments cannot damage or destroy the basic structure. It hints at the possibility that such alterations can be brought about only through revolution or by a complete destruction of the existing order but – for obvious reasons – does not spell that out. The assumption is that if a constitution is to be replaced altogether, then it can only be done extra-constitutionally – and presumably through great revolutionary upheaval. The Kenyan High Court on the other hand – drawing from Kenyan history – spelt out a concrete, four-step process that could be resorted to if the People did want to change the basic structure of the Kenyan constitution. There is, of course, an interesting question: now that the Court – a body that owes its own existence to the 2010 Constitution – has spelt out the process, is it “extra-constitutional” in any genuine sense? Or is it simply a third kind of amendment process that owes its existence solely to the judiciary? This is no doubt a debate that will be joined intensely, both in Kenya and elsewhere, in the days to come.
It is nonetheless important to note, therefore, that the High Court did not actually hold that any provision or principle of the constitution is entirely un-amendable (the default position under classical basic structure doctrine). Every constitutional provision is hypothetically amendable, but some – that the Court called “eternity clauses”, borrowing form Germany – can only be amended by “recalling the Primary Constituent Power“, in accordance with the four-step process that the Court set out. As is now familiar to students of the basic structure, the Court declined to set out an “exhaustive list” of eternity clauses, noting only that this would have to be determined on a case-to-case basis, while providing illustrative examples: constitutional supremacy, the role of international law on the one hand (eternity clauses), and the number of constituencies on the other (not an eternity clause).
A final point: it is particularly fascinating to note that the High Court derived its articulation of the basic structure not from a textual interpretation of the word “amend”, or from structural arguments about implied limitations, but from Kenyan social history. Its entire analysis was focused on how Kenyans struggled for – and won – the right to public participation in constitution-making, and that was the basis for holding that the core of the constitution could not be altered without going back to the people. A crucial argument of transformative constitutionalism is that constitutional interpretation needs to work with an expanded interpretive canon, which centres people – and social movements – in its understanding of constitutional meaning. The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.
The popular initiative and the BBI process
A second key issue that fell for determination was the exact meaning of Article 257(1) of the Kenyan Constitution. Article 257(1) states that “an amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.” The BBI Taskforce and Steering Committee, however, had been set up by the President. Consequently, was it legal for it to start gathering the one million signatures needed for triggering amendment by Popular Initiative?
The High Court held that it was not. Going back to the constitutional history outlined above, it held that through multiple iterations of constitutional drafts, it had been clear that the intent of the provision that finally became Article 257(1) was that the power to initiate a constitutional amendment lie in the hands of voters. Here, the president’s direct involvement – including establishing the Taskforce and Steering Committee through gazette notifications – made it clear that the amendment bill had not been initiated by the voters. This was also impermissible because the scheme of Article 257 made the president the adjudicating authority of whether or not a referendum was to take place – thus making that authority both the “player and the umpire in the same match”, if he was also allowed to initiate proceedings.
Thus, as the Court summed up:
It is our view that a Popular Initiative being a process of participatory democracy that empowers the ordinary citizenry to propose constitutional amendment independent of the law making power of the governing body cannot be undertaken by the President or State Organs under any guise. It was inserted in the Constitution to give meaning to the principles of sovereignty based on historical past where the reservation of the power of amendment of the Constitution to the elite few was abused in order to satisfy their own interests.
While I find this clear and persuasive, it is – I think – an open question about how effective this part of the ruling will be. One can imagine all too easily how – without further safeguards and judicial good sense – such rulings can be subverted through use of proxies as “initiators” of the process. Whether or not that plays out in the future will be interesting to see.
In this case, however, it meant that the BBI process – insofar as it contemplated the Steering Committee recommending “constitutional changes” as part of its terms of reference – was illegal. An executive-led amending process was unknown to the constitution: it had to be parliament (Article 256) or people and parliament (Article 257).
The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.
The Court also found the BBI process to be unlawful for another reason – it violated Article 10’s requirement of public participation in law-making. Over the years, the Kenyan judiciary has developed a rich and substantive jurisprudence around public participation under Article 10, that requires meaningful participation, and all that it entails (intelligibility, enough time, substantive exchange of views etc.). Here, however, the Court found a very straightforward violation: the Constitutional Amendment Bill had been made available only in English, whereas Kiswahili and Braille were constitutionally-mandated languages.
Thus the Court held:
The copies also ought to have been made available in other communication formats and technologies accessible to persons with disabilities including Kenya Sign Language as required under Article 7(3)(b) of the Constitution. Only then would the voters be deemed to have been given sufficient information to enable them to make informed decisions on whether or not to append their signatures in support of the proposed constitutional amendments.
Constituency apportionment and delimitation
A significant portion of the Constitutional Amendment Bill dealt with effective alterations to Article 89 of the Kenyan Constitution, which deals with “delimitation of electoral units”. The Bill sought to introduce 70 new electoral constituencies – but also directed the IEBC to complete the delimitation within a specified time, and the basis of delimitation (“equality of [the] vote.”). The roots of this, again, lay in pre-2007 distortions of constituencies that had severely compromised the one-person-one-vote principle. To correct this, in the run-up to the 2010 Constitution, the Interim Independent Boundaries Review Commission (IIBRC) had presented a detailed report, which recognised the importance of stakeholder participation in any constituency or electoral boundary review process, and set out five principles of delimitation that were eventually incorporated into Article 89.
The Constitutional Amendment Bill gave the High Court an immediate opportunity to apply the basic structure doctrine that it had just crafted. The Court found that while the number of constituencies was not part of the eternity clauses, the provisions dealing with the method of delimitation were:
Both the text and the history of the Article makes it clear that Kenyans were very particular about the criteria of the delimitation and apportionment of constituencies. This was because the apportionment and distribution of electoral units has a bearing on both the right to representation (which is a political right) as well as the distribution of national economic resources (which is an economic right). The reason for this, as outlined above, is that a substantial amount of national resources distributed to the regions by the national government is done at the constituency level . . . Given this history and the text of the Constitution, we can easily conclude that whereas Kenyans were particular to entrench the process, procedure, timelines, criteria and review process of the delimitation of electoral units, they were not so particular about the determination of the actual number of constituencies.
Thus, the Constitutional Amendment Bill’s departure from the stipulated processes – in particular, by detailing how and when the IEBC had to do its job – was unconstitutional. Lurking underneath this reasoning, one senses an undercurrent of concern about institutional independence: it appears clear that the Constitutional Amendment Bill amounted to an encroachment upon an independent, fourth-branch institution’s sphere of work, and – indeed – interfered with how the ground rules of the democratic processes were set. This is evident in the Court’s – correct – observation that the Bill attempted to amend Article 89 “by stealth”, setting up a parallel process of boundary delimitation, as well as dispensing with public participation and taking away the guaranteed constitutional right of individuals to challenge delimitation (also under Article 89):
We say it is an attempt to amend the Constitution by stealth because it has the effect of suspending the operation of Article 89 without textually amending it. The implications of such a scheme if allowed are at least two-fold. First, it creates a constitutional loophole through which the Promoters can amend the Basic Structure of the Constitution without triggering the Primary Constituent Power. Second, such a scheme creates a “constitutional hatch” through which future Promoters of constitutional amendments can sneak in fundamental changes to the governing charter of the nation for ephemeral political convenience and without following the due process of the law.
Although the Court did not put it in so many words, this is – in many ways – a classic checks-and-balances argument: democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference (and, in the Kenyan case, buttressed by requirements of public participation). Distortion or undermining of fourth-branch institutions (whether explicitly or implicitly) would amount to undermining the ground rules of the democratic game, which are what render democratic outcomes legitimate. Thus – once the Court has committed to identifying a set of constitutional provisions as “eternity clauses”, provisions governing political representation are prime candidates. It is perhaps therefore rather fitting that it was Article 89 that was the basis of the High Court’s first application of the basic structure doctrine.
There were a number of other issues, all of which deserve a detailed analysis of their own, but which we do not have further space to examine here. These include the finding that there was no suitable legislative or regulatory framework to collect signatures and to conduct the referendum; the (fascinating) holding that amendments would have to be presented separately in multiple referenda, and not as a bloc; and the finding that County Assemblies could not alter or modify a Popular Initiative proposal (so as to avoid political capture), but were only allowed to consider and vote on it. All of these holdings raise a range of important questions that will no doubt be discussed in detail in the coming days.
Democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference.
If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender. While the High Court joins the family of courts that have adopted a variant of the basic structure doctrine, it does so in an entirely unique – and compelling – manner: relying upon social and constitutional history in order to craft a three-tiered hierarchy of constituted power, secondary constituent power, and primary constituent power; it then utilises that same social history to spell out in great detail what the components of primary constituent power would look like, thus taking on the (seemingly) paradoxical task of constitutionalising revolutionary power.
If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender.
But even more than that, what is perhaps most heartening about the judgment is how it uses constitutional silences and the interpretive openness of constitutional text to advance an interpretation that in concrete and tangible ways seeks to empower citizens against the executive. From its spelling out of the basic structure, to its interpretation of Article 257, and to its reading of Article 89, at every step, the Court is keenly aware of the power difference between a powerful executive and the individual citizen, and at every step, the judgment works to mitigate that powerful imbalance upon the terrain of the constitution. In a world that is too full of Imperial presidencies and quiescent courts, the BBI Judgment is an inspiring illustration of courts and constitutions at their very best.
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Will Ruto Resist the Temptation to Marginalize Civil Society?
William Ruto’s administration has an opportunity to distinguish itself from its predecessor as a defender of civil society’s independent role.
When scholars speak of “civil society”, they usually mean all organized groupings of people that are neither part of government nor part of business. Sometimes media groups are also included. Using this definition, Kenya’s civil society sector is rich and diverse. It ranges from neighbourhood chamas, to churches and mosques, to international NGOs with billion-shilling budgets. Yet it is the highly focused governance and democracy-promoting civil society organizations (CSOs) that usually have the most prominent voices in Kenya. Around the world, the 1990s heralded an “opening” of space for such organizations, but that space eventually began to close. Kenya is no exception to this experience.
There has also grown some confusion in the country about the role that civil society ought to play. In the 1990s, CSOs were perceived by wananchi as primarily interested in fairness, accountability, and human rights—not political power—as they pushed to make Kenya a democracy. But as the new millennium has unfolded, prominent CSO leaders have increasingly been seen as “taking sides” in the political arena, whether in supporting the International Criminal Court indictments and the challenge to the 2022 presidential results, or in themselves running for political office. Although most NGOs and community-based organizations remain apolitical, these changes can make CSOs in general appear to be less united with wananchi as a whole. And this leaves CSOs in a more precarious position.
With the new William Ruto administration, the country now sits at a possible inflection point. Will Ruto follow in the footsteps of his immediate predecessor, Uhuru Kenyatta, in threatening to close the space for CSOs, or might he take an approach similar to Mwai Kibaki, under whose leadership vocal Kenyan civil society largely thrived?
As a candidate, Ruto ran as a proponent of accountability. If he wishes to continue in the same vein as president, he will facilitate Kenyan civil society and free media. Doing so will not only help to guarantee his legacy among Kenyans, it will also help to retain Nairobi as a regional leader and an employment hub for the large Eastern Africa and Horn development sector. And it could bring more politicians with a CSO background to his side.
Here, we present a brief history of the space allowed for civil society over the past sixty-plus years and under the three previous administrations, followed by a discussion of possible trajectories for Ruto and their potential outcomes.
Kenya’s rich history of civil society since before independence
Kenya has had a reputation for being home to a strong civil society sector—arguably the strongest in East Africa. This reputation stems from the long-standing culture of harambee, which encourages people to work together to better the community. The sector has also grown in part out of the country’s religious communities. But it has also grown from the decolonization movements that included educational institutions, trade unions, and ethnic associations, among others fighting for self-rule.
Kenya’s CSOs are diverse, yet they all share at least one thing in common: the space in which they can operate is determined by government regulation—and sometimes by a government’s whims. During colonial times, space was exceedingly limited. The colonial government restricted education and assembly in order to maintain its illegitimate power. During the Jomo Kenyatta administration, local community based organizations and harambee groups were granted more space, but also something of a responsibility to provide self-help solutions.
Closed space: repression and resilience under Moi
For more than two decades, civil society was tightly controlled by the Daniel arap Moi administration. After the 1982 coup attempt, Moi learned to carefully monitor society for potential sources of alternative power, including from nongovernmental organizations and the media.
Given flat economic growth and increasing calls for economic liberalization and budget downsizing from powerful Western donors, however, Moi also recognized the benefits of some types of civil society actors. He recognized that they could provide social services like healthcare, education, and sanitation services where the state could not.
Moi skilfully developed regulations that allowed such apolitical service-provision organizations to offer needed services, while maintaining the ability to take credit for their work. At the same time, the creation of the governmental NGO Board in 1989 gave his administration an organizational authority to shut down or intimidate democracy, human rights, and governance organizations that he perceived as threatening him politically, while the NGO Act, passed in 1990, provided the legal justification. Media was similarly repressed while harambee organizations, meant to be an avenue for self-help, became politicized tools for support and mobilization.
Moi skilfully developed regulations that allowed such apolitical service-provision organizations to offer needed services, while maintaining the ability to take credit for their work.
Yet individual proponents of opening up the civic space, like Wangari Maathai, Oginga Odinga, and Kenneth Matiba, could not be fully deterred. Under Moi, they were largely based in professional organizations like the Law Society of Kenya, religious ones, like the National Council of Churches of Kenya, national movements like Greenbelt, or banned political parties like FORD. From these havens, they pushed for political opening and democracy for Kenyans.
And, importantly, they attracted popular support from wananchi wanting to live without fear of government. Activists and Kenyans together sought basic political and civic rights.
Opening space: CSOs in the Kibaki administration
When Mwai Kibaki came to power in 2002, he brought with him many allies from civil society. Kibaki’s regime not only hired many CSO leaders like Maina Kiai, Willy Mutunga, Kivutha Kibwana, and John Githongo into government, but also deliberately worked more openly with those who stayed in the third sector. Many thought Kibaki’s technocratic background allowed him to adopt a hands-off approach.
These strong relationships soured somewhat when Githongo was run out of the country in 2005. And tensions grew after the 2008 post-election violence, when some governance, human rights, and media leaders were harassed or restricted, and even murdered.
Yet Kibaki signed the Public Benefit Organization (PBO) Act of 2013 into law before leaving office. The progressive law, which aims to ensure transparency and accountability for organizations in Kenya, has been lauded by civil society advocates, but is yet to be operationalized nearly a decade later.
Further, beyond civil society leaders moving into administrative offices, during Kibaki’s time some civil society leaders began to seek their own political ambitions as well. New research shows that NGO work can act as a pipeline to politics for potential candidates by placing them in politics-adjacent roles and providing them with deep community connections and relevant expertise. Civic activism can align well with opposition politics. This trend of CSO activists making the leap into politics could erode a focus on human rights and the collective good. In seeking political advancement—especially in a country where MPs are among the highest paid in the world—former activists-turned-politicians may muddy the waters of civil society, blurring the line between governance and accountability.
Contracting space: Uhuru warns CSOs
The start of the Uhuru Kenyatta administration in March 2013 was in many ways overshadowed by the indictment in the preceding months of both Uhuru and his deputy, Ruto, at the International Criminal Court on charges of crimes against humanity in relation to the violence that followed the 2007 elections. Although service-providing civil society organizations were largely unaffected, and most NGOs stayed out of the conversation, many prominent governance and human rights organization leaders supported the ICC investigations. They petitioned for the courts to bar Uhuru and Ruto’s candidacy on account of the indictments and demanded that the trials move forward even after the two were in office. They focused on the worrying “culture of impunity” in the wake of the 2008 post-election violence.
This trend of CSO activists making the leap into politics could erode a focus on human rights and the collective good.
This had caused tension even before the 2013 election. Uhuru’s rhetoric troubled many CSOs as he supported calls for limits on foreign funding of NGOs. Public support for restrictions on NGO funding rose in some quarters as Uhuru supporters suggested that civil society had evolved into an “evil society.”
In the coming years, the space grew more hostile. Uhuru made sharp statements threatening to defund NGOs and restrict foreign worker permits. His administration also stridently refused to implement the PBO Act of 2013, even when ordered to do so by the High Court.
The administration was even willing to use the NGO Board, which the PBO Act abolishes, for political purposes. It sent harassing letters from the Board in an attempt to silence human rights and governance NGOs that had spoken out against Chris Msando’s brutal murder in the lead-up to the 2017 election.
These challenges were compounded by the government’s support of a controversial media bill which would have forced journalists to reveal their sources and, unsurprisingly, drew immediate protests. These efforts to restrict free expression led to reports that Kenya was experiencing significant free speech backsliding,
Yet these setbacks for civil society occurred as Kenyan legal institutions grew stronger. The courts’ empowerment culminated in the Supreme Court’s historic ruling on the 2017 election, annulling Uhuru’s win and requiring that the election be rerun. This dramatic democratic showing buoyed the CSO sector, reassuring governance groups that they were not operating alone, but rather had powerful allies on the march toward a stronger democracy. In so doing, however, did these prominent governance organizations increasingly politicize themselves?
New space: greater autonomy and accountability on the horizon?
The future prospects for Kenyan civil society now depend a great deal on how Ruto decides to lead. We see a unique opportunity for this new administration to distinguish itself from its predecessor as a defender of civil society’s independent role. In so doing, he may thwart further politicization of the sector.
Will President Ruto follow Candidate Ruto’s roadmap? While campaigning, Ruto worked hard to separate himself from prior administrations. He presented himself as an “outsider” candidate, immune to dynasty politics. His opposition to the Building Bridges Initiative suggested wariness of the strongman politics of years past and signalled an openness to robust government accountability, a point he has made at home and abroad.
Candidate Ruto appeared to extend a hand to civil society groups, in contrast to Uhuru’s contentious engagement with the sector. He promised that they would be free to operate without government interference. He explicitly invited them to hold the Kenya Kwanza government to account, referring to the sector as a key accountability mechanism, essential for good governance.
Yet during the same period, Candidate Ruto’s team was accused of media harassment that threatened progress toward a more robust democratic space for all. Prominent CSOs called for an opening of civic space with an eleven-point list of demands. They noted that Civicus, a global alliance of civil society organizations, had rated Kenyan civil society as “obstructed” while Ruto was deputy president.
The future prospects for Kenyan civil society now depend a great deal on how Ruto decides to lead.
It remains unclear what hand Ruto may have had in marginalizing civil society during the Kenyatta administration. And he may still harbour a grudge against CSOs for their support of the ICC trials. Regardless, the relationship between his administration and CSOs is off to a rocky start, as it is well known that prominent civil society groups strongly supported Ruto’s opponent, Raila Odinga, in the August general election. After the election, leading civil society activist (and The Elephant founder) John Githongo, claimed to have evidence that the IEBC could have been hacked easily. Githongo’s affidavit, which the court ruled could amount to perjury, was a prominent part of the larger, unsuccessful, effort to overturn Ruto’s win.
Moreover, compared to past periods, activists such as Githongo and Boniface Mwangi have been more open about their partisan leanings, which may make it easier for citizens to discount their calls for reform. Even former Chief Justice Willy Mutunga has advocated that civil society actors form a political party, a move which would further muddy the waters. Through these explicitly political dabblings, and by betting on Odinga in the August poll, the civil society sector may have inadvertently undermined its future relationship with the Ruto government.
Nevertheless, as president, Ruto can choose whether to see civil society as a continued opponent or not. At least publicly, he has not moved to restrict the sector in retaliation, and has called for civil society and media to work hand in hand with government to amplify the voices of Africa globally with regard to climate change. Yet after more than two months of the Kenya Kwanza government, it is not clear that the administration is going to heed its own calls.
If the new administration can put aside its election-related differences with prominent civil society actors and submit to accountability meted out by CSOs, Ruto will find an undeniably effective way to prove the anti-dynasty politics for which he campaigned. This may prove fruitful if he plans to seek re-election in 2027. It could also endear him to Western allies, who have historically encouraged democracy.
Activists such as John Githongo and Boniface Mwangi have been more open about their partisan leanings, which may make it easier for citizens to discount their calls for reform.
Indeed, abstaining from undermining civil society freedoms while also choosing to embrace criticism from CSOs could distinguish Ruto’s leadership internationally. The West is facing challenges with declining democratic credibility both at home and abroad. The US and UK spoke out in support of the ICC cases, yet took a “business as usual” approach to relations with the Uhuru/Ruto administration. Western leaders also praised the 2017 elections before they were annulled by the Kenyan Supreme Court. If Ruto shuns the temptation to ignore the warnings of civil society, his administration could be a model on the international stage that would needle at older democracies that may be leaning away from accountability.
On an even more practical note, re-opening space for civil society could help Ruto fulfil his vow to reinvigorate the Kenyan economy. The international humanitarian and development sector comprises a nontrivial part of the economy. There are not only UN agencies based in Nairobi, but also around 12,000 active NGOs countrywide, who employ an estimated quarter of a million people. The sector brought in KSh185 billion in donations in the 2019/2020 financial year.
Abstaining from undermining civil society freedoms while also choosing to embrace criticism from CSOs could distinguish Ruto’s leadership internationally.
Research shows that development sector organizations like international NGOs tend to locate in democratic countries more than in authoritarian ones. Thus a welcoming environment for civil society could help to retain Nairobi as a leader and an employment hub of the large Eastern Africa and Horn development sector.
Ruto must decide which legacy to leave for the history books. Ultimately, his administration, like those of his predecessors, may find itself unable to resist the temptation to frustrate and marginalize civil society actors who opposed his presidency. If that happens, we expect the sector to grow ever more nimble, adapting to restricted space just as it has in the past.
Philosophy for the People
For philosophy to be relevant in Africa, it must democratize and address contemporary social problems.
In late September 2022, a consortium of universities hosted by the Universite’ Catholique d’Afrique Centrale in Yaounde, Cameroon held an “Ethicslab” to deliberate on the theme, “Justice, Democracy and Diversity.” The meeting brought together doctoral candidates in philosophy from Cameroon, Canada, Nigeria, Chad, and the Democratic Republic of Congo to be mentored by experts. Some of those experts included Dany Rondeau (Canada), Geert Demuijnck (France, based in the Netherlands), and Bernard Gagnon (Canada).
The driving force behind the event was Thierry Ngosso, a young Cameroonian philosopher based at the University of St Gallen, Switzerland. Ngosso’s dream has been to deliver important philosophical lessons in a readily digestible way to younger African scholars while at the same time aiming for social transformation.
The study of philosophy in the continent is marked by all-too-familiar colonial linguistic and political divisions: the anglophone sector fastened to the thought of figures such as John Rawls and analytic philosophy, while francophone countries usually follow the dictates of continental philosophy. Ngosso thinks it is time to collapse these age-old colonial divisions. Also, philosophy seems removed from pressing issues, such as poverty. It can certainly be successfully re-energized by interrogating topics such as ethics and health, ethics and education, ethics and business, politics, the environment, and so on to broaden and deepen linkages between the discipline and urgent contemporary issues.
Nonetheless, philosophy has always been valued in Cameroon’s education system. As early as high school, students are introduced to the discipline. At postgraduate levels, there are various social media forums where students debate philosophical concerns of mutual interest. These debates are usually vibrant and engrossing.
Since its inception in 2019, the Ethicslab has been inviting two or three keynote speakers from disciplines such as sociology, political science and history to brainstorm about the intellectual concerns it seeks to tackle. The Ethicslab is concerned with issues of normativity and social change. Such an approach obviously grants philosophy an urgency, purpose and social transformational energy.
The Ethicslab is an intellectual experiment to identify the future stars of theoretical thought on the continent. During the 2022 edition of the event, quite a few promising upcoming scholars further etched their names; Benjamin Olujohungbe (Nigeria), Charles Dine (Cameroon/Canada), Hammadou Yaya (Cameroon), Opeyemi Gbadegesin (Nigeria), Elisanne Pellerin (Canada), Tatiana Nganti (Cameroon), Henri Gbadi Finimonga (DRC), Kakmeni Schaller (Cameroon), Eric Vernuy Suyru (Cameroon) and Ndedi Emma Maximine Ndjandjo (Cameroon). All these individuals are not only being trained in the rigors of theoretical reflection but also in the ethics of mutuality and reciprocity. Although they come from varied national, linguistic, and institutional backgrounds, the objective is to establish commonalities based on universally accepted cultural and human values.
Ultimately, Ngosso is interested in effecting meaningful social change in African communities through the study and use of philosophy. He plans to find funding for about ten doctoral students and thirty postdoctoral scholars in the discipline within the next five years. He also intends to shift the nodes of perception regarding the African continent from an ostensibly external locus to largely endogenous sources. To realize these grand aims, Ngosso has had to battle with numerous bureaucratic obstacles. The quest to change societies from within also entails transforming the traditional character and functions of academic institutions and establishments. This is no small task. What Ngosso has been able to do is wrest a degree of flexibility in how he operates within and amongst institutions. He is currently employed by the University of Maroua, Cameroon, holds an ongoing research fellowship at the University of St. Gallen, where he is based, and is a research associate of Universite’ Catholique d’Afrique Centrale. Within an African context, and perhaps any other setting in the world, such institutional flexibility and mobility are rare. But this is precisely the sort of liberty Ngosso requires in accomplishing his stated mission of social change.
Perhaps as part of ongoing efforts to demystify the study of philosophy, Ngosso arranged a trip to Kribi for all the participants of the 2022 Ethicslab. Kribi, a coastal town, is a perfect spot to unwind. Its coast is replete with tourist attractions such as the magisterial Lobe Falls, a pristine array of waterfalls nestled within Kribi beach. The Atlantic ocean is always enticingly open for a swim after intense brainstorming or away from the diurnal pressures of everyday life. There are also amazing seaside resorts and restaurants and the most delightful varieties of seafood to savor.
In 2024, Ngosso plans a grand event to mark the fifth anniversary of the Ethicslab. In this, he will have accomplished the entrenchment of modern philosophy in Africa, concomitant globalization of its multicultural potentials and tentacles, and finally, a re-configuration of the discipline for the myriad demands and expectations of the 21st century.
War of the Worlds: Africa’s Next Great War
The international community’s limited attention span is laser-focused on jihadism in the Sahel and the imploding Horn of Africa. But interstate war is potentially brewing in the eastern DRC.
It’s happening again. A Rwandan-backed rebel force threatens the Congolese provincial capital of Goma while foreign intervention is cobbled together to bail out the struggling Congolese army. Unlike the last two or three times this happened, the conflict faces the prospect of horrific escalation into interstate war. Rwandan and Kenyan troops are racing headfirst into a confrontation. As Kenya airlifts troops into the east under the flag of the East Africa Community (EAC), the Rwandan soldiers embedded within the M23 rebellion show no signs of backing down. These two African states, each claiming to have the most professional force in the region, will soon trade blows.
Nearly thirty years of complex, multilayered, and tragic war in the Great Lakes have led to this latest escalation. The eastern DRC never recovered from the deadly inferno that was “Africa’s great war,” a bitter conflict that drew in nine countries and killed as many as five million. While peace was declared in 2003, the embers of war continued to burn in the eastern DRC, where the war had injected violence into local politics. Local violence continues to blend with national- and regional-level politics. Rwanda, which has complex and often competitive relationships with Uganda and Burundi, has a history of repeatedly creating and supporting rebellions in Congo. While this current M23 rebellion has many Congolese members with genuine grievances, the force is historically constructed and supported by the Rwandan state. While it is unclear what exactly motivated this offensive, some point to Rwandan concerns over the growing influence of rival Uganda in the DRC. The relationship between Uganda and Rwanda is not straightforward, and there are reports that Ugandan elements have supported M23. The regional tensions at play here are unclear, as the Ugandan and Congolese states are not unitary actors. According to leaked UN reports, Rwanda is directly assisting this latest iteration of M23 with infantry, artillery, and logistics. It has easily beat back the Congolese regulars and their militia allies and downed UN and Congolese military aircraft.
In response to the escalation, the regional EAC has announced the deployment of a military force at the invitation of the DRC, its newest member. Kenya seems to have been the power player behind this intervention and has begun deploying its forces into the fight. The international community has slowly lost interest in the region, writing off the turbulence in the Great Lakes as an endemic low-intensity conflict, ignoring the possibility of an explosion. Some in Kenya, the regional economic powerhouse, dream of an East African unified market where a pacified region ensures that Kenyan goods are supplied to Congolese consumers. Rwanda believes that it can only be secure if it has influence in Eastern Congo, where various rebel forces opposing the Rwandan regime have sheltered. When that influence wanes, Rwanda backs a rebellion to ensure that its influence continues.
Whether you believe that Rwandan meddling and Kenyan-backed EAC intervention are valid responses to the insecurity on their western flanks, the current escalatory track is dangerous. No one is backing down until blood is spilled. Both sides seem to underestimate the other’s will and ability.
The new kid on the block, Congolese President Felix Tshisekedi, demands a military solution and proclaims negotiations a failure. He is inviting foreign armies across the region into the country to bring him the peace he needs to salvage his falling popularity. All the while, the badly needed security sector reform remains stalled by the great Congolese patronage machine. Under the EAC regional force’s flag, Ugandan and Burundian forces are now in the DRC to pursue their own enemies on Congolese soil, raising the possibility of inciting countermobilization. The eastern Congolese conflict ecosystem often reacts to foreign bodies with a violent immune response that would further inflame the conflict.
The limited attention span that the international community reserves for Africa is laser-focused on jihadism in the Sahel and the imploding Horn of Africa. Former US National Security Council Africa lead Cameron Hudson pronounced on Twitter and to The Telegraph that the war in Tigray was “the new great war for Africa.” Unfortunately, the ashes of the last great war are being stoked yet again. Few players in the international game seem to realize the stakes.
The US did send its top diplomat, Secretary of State Antony Blinken, to talk to both the Congolese and Rwandans. Blinken’s public statements were ripe with both-sidesisms and seemed to accept Rwandan behavior as a response to Congolese support to the genocidal Rwandan FDLR rebel group—a problematic assumption. The Congolese political elite, when being generous, complain that the US position is muddled and confused. This reasonable view is much less popular than theories that accuse the Americans of actively backing Rwandan president Kagame’s plots. Unfortunately, these conspiracy theories are grounded in real historical US blindness to—and occasional support for—destructive Rwandan interventionism in the late 1990s.
The apathetic international response to the crisis stands in marked contrast to the global response to the previous M23 rebellion nearly ten years ago, when the US publicly pressured Rwanda to withdraw support for the group. In 2013, a combination of the Southern African Development Community’s intervention under the UN flag, the rise of a capable Congolese army colonel, and US pressure led to successful negotiations with Rwanda and the defeat of M23. This time, attempts by the EAC to bring a diplomatic solution have failed thus far, and it seems that military pressure is the only effective tool the community can bring to bear.
This conflict is not doomed to descend into a larger interstate war, but the region as a whole will have to grapple with the consequences if it does. The international community must bring more diplomatic levers to bear, and the EAC must question the sweeping mandate of their current intervention. Regardless, the war is on an escalatory path, and the Congolese of North Kivu will suffer first as foreign forces battle over their home yet again.
Evan Nachtrieb graduated with an honors bachelor’s degree in political studies from Pitzer College last May, where he wrote his thesis on protest and insurgency trends south of the Sahara. He is currently in California.
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