Previously, I have discussed the concept of constitutional statutes. Recall that a constitutional statute is a law that is “enacted in pursuance of the State’s positive obligation to fulfil a constitutional right.” While certain constitutional rights are self-enforcing (such as, for example, the right to free speech ipso facto prohibits the State from engaging in arbitrary censorship), others – by their very nature – require a statutory framework to be made effective. For example, the right to vote cannot be made effective without an infrastructure in place to conduct free and fair elections, including the existence of an independent, non-partisan Election Commission. Insofar as such a legislative framework is not in existence, the state is arguably in breach of its positive obligations to fulfil the right in question. Thus, to refine the definition further, a constitutional statute is a statute that “provides a statutory framework towards implementing a fundamental right, thereby fulfilling the state’s positive obligation to do so.”
What follows from the finding that a particular law is a constitutional statute? On this blog, we have discussed constitutional statutes in the context of amendments to the Right to Information Act, which have sought to undermine the independence of the Information Commissioners. We have argued that, insofar as constitutional statutes stand between the individual and the State, mediating the effective enforcement of rights, legislative amendments that prevent them from fulfilling this function, are thereby unconstitutional. Furthermore, once a constitutional statute has been enacted, the principle of non-retrogression applies – that is, the legislature cannot simply repeal the law and go back to a position where the right in question was unprotected. Another example discussed on this blog is the recent judgment of the Kenyan Court of Appeal in David Ndii, where it was held that the implementation of the Popular Initiative to amend the Kenyan Constitution required a legislative scheme, as also its discussion of the previous judgment in Katiba Institute, where an attempt to reduce the quorum for resolutions of the Independent Electoral and Boundaries Commission was held to be unconstitutional.
The judgment of the High Court of Kenya of 14 October 2021 – also titled Katiba Institute – provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute. Katiba Institute arose out of the efforts of the Government of Kenya to implement a national biometric identification system called NIIMS, and the judgment of the High Court with respect to a challenge to the constitutionality of NIIMS (Nubian Rights Forum), which we discussed on this blog back in 2019. Recall that in Nubian Rights Forum, after a detailed analysis, the High Court struck down a part of NIIMS, and allowed the government to go ahead with the rest of the programme subject to the implementation of an effective data protection law. Therefore, as I had noted in that post:
The High Court’s decision – at least in part – is a conditional one, where the (legal) future of the NIIMS is expressly made dependant on what action the government will take. Thus, there remain a significant number of issues that remain open for (inevitable) litigation, even after the High Court’s judgment.
Notably, Kenya had enacted a data protection law in between the hearings and the judgment, but the High Court – in its verdict – was insistent that until the point of effective implementation, the continued rollout of NIIMS could not go on. And this was at the heart of the challenge in Katiba Institute: the applicant argued that NIIMS had been rolled out, in particular, without complying with Section 31 of the Kenyan Data Protection Act, which required a Data Impact Assessment as a pre-requisite to any data collection enterprise. In response, the state argued that the data collection in question had already been completed before the passage of the Data Protection Act, and that therefore – in accordance with the general principle that statutes are not meant to apply retrospectively – Section 31 was inapplicable to this case.
Engaging in impeccable constitutional statute analysis, Justice Jairus Ngaah noted that the Data Protection Act was “enacted against the backdrop of Article 31 of the Constitution.” Article 31 of the Constitution of Kenya 2010 guarantees the right to privacy. As the learned Justice noted, in its very preamble, the DPA stated that its purpose was to “give effect to Articles 31(c) and (d) of the Constitution.” Justice Ngaah then rightly observed, “The need to protect the constitutional right to privacy did not arise with the enactment of the Data Protection Act; the right accrued from the moment the Constitution was promulgated.”
The judgment of the High Court of Kenya provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute.
It therefore followed that, on the balance, an interpretation that gave the DPA retrospective effect was to be preferred over one that did not. A contrary interpretation would mean that the state was entitled to collect data and infringe the right to privacy even in the absence of a legislative scheme. Or, in other words, having failed to implement its positive obligation to enact a constitutional statute to give effect to the right to privacy, the state could then take advantage of its own failure by nonetheless engaging in data collection enterprises anyway. This, naturally, could not be countenanced. And in any event, given that Article 31 had always existed, it followed that:
. . . there was always the duty on the part of the State to ensure that the Bill of Rights . . . is respected and protected. Section 31 of the Act does not impose any more obligation or duty on the state than that which the state, or the respondents . . . have hitherto had to bear.
On this basis, Justice Ngaah therefore held that NIIMS had been rolled out in breach of Section 31, and therefore, first, quashed the rollout itself, and secondly, issued a mandamus restraining the State from rolling it out again without first complying with Section 31.*
The judgment in Katiba Institute does not, of course, answer the number of questions that still remained to be resolved after the Nubian Rights Forum judgment, including some problematic aspects of the DPA itself. Those questions were not, however, before the court in this instance; on the other hand, the court’s finding that constitutional statutes apply retrospectively – and the reasons for that finding – make it a landmark judgment. Katiba Institute adds to the growing comparative discussion around constitutional statutes, Fourth Branch bodies, and “Guarantor Institutions”, and therefore ought to be keenly studied by students of comparative constitutional law.
* One cannot, of course, help comparing this with the judgment of the Indian Supreme Court in the Aadhaar case, where despite the fact that Aadhaar data was collected for more than five years without any law whatsoever, it was retrospectively validated by the Supreme Court.
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Why Voluntary Clean-up of Plastic Waste by Companies is Trash Talk
Manufacturers should be held liable for the harm caused by their products and they should be made responsible for the collection, recycling and final disposal of plastic waste.
By global standards, Kenya is generally not a wasteful society. Estimated in 2018 at 11 kilograms per person per year, the country’s waste generation is just over a third of the world average of 29 kilograms. In places like Nairobi, up to a fifth of that waste is plastic and relatively little of that is properly disposed of. However, only around 7 per cent is recycled. The rest, from bottles, caps, and food packaging to illegal plastic bags, finds its way to dumpsites, rivers and the ocean, or clogging up drains and littering the environment, into the stomachs of animals, birds and fish, and eventually into our own bodies.
With the problem set to get much worse—estimates are that by 2060, plastic generation will have nearly tripled—the question of what to do about it, and specifically who is responsible for cleaning it up, has become contentious. After all, pretty much all the plastic we have is produced by private industry. For example, a 2020 study shows the industrial sectors that produce the most plastic waste are food, packaging, textiles, and automotive tires. But the companies involved have long foisted the responsibility for the clean-up on their customers and on public entities.
Basically, the issue is framed in moral terms. If only people were more careful about where they disposed of their plastic bags and bottles, we wouldn’t have this problem. It is the end user who bears responsibility and thus needs to change. But this ignores that people don’t always have the resources, knowledge, choices and ability to safely dispose of plastics. On the other hand, the companies that saturate the market with convenient plastics can be among the largest, most powerful and wealthiest in the world.
According to the 2021 Brand Audit Report, a global audit of plastic trash conducted by the Break Free From Plastic movement, “fast moving consumer goods companies (FCMGs) such as Coca-Cola, PepsiCo, Nestlé, Mondelēz, Danone, Unilever, Colgate-Palmolive, Procter & Gamble, and Mars buy packaging from manufacturers supplied with plastic resin from fossil fuel companies like ExxonMobil, Shell, Chevron Phillips, Ineos, and Dow”. The audit involved over 11,000 volunteers cataloguing and counting the branding on plastic waste across 45 countries in six continents to help identify the companies that created it.
What responsibility do these global corporations, and their local partners and competitors, have for mitigating the harm their products cause? The idea behind the concept of Extended Producer Responsibility (EPR) is that product manufacturers and distributors are responsible for the entire lifecycle of products and packaging they bring to the market, even after the consumer is through with them. Introduced by Thomas Lindhqvist in Sweden in 1990, it moves the burden for dealing with waste away from individuals and society, to the businesses that profit from its production. Lindhqvist, who presented his research to Sweden’s Ministry of the Environment, theorized that companies responsible for their products would make them more recyclable and reusable, making the overall system less wasteful. In his doctoral thesis written a decade later, he listed models for EPR including holding manufacturers liable for the harm caused by their products, making them pay for—or physically responsible for—their collection, recycling and final disposal, and requiring them to provide information to consumers about the environmental damage they cause.
EPR seeks to make environmental costs visible. Lindhqvist calls it “a necessary condition for reflecting the essential life cycle costs in the price of the product” and alerting buyers to them. “With the exception of a few EPR systems, costs connected to waste collection, recycling, or final disposal, for instance, are not reflected in the price of the products. Consequently, these costs run the risk of being [overlooked] by the consumer when he is making the buying decision. Indeed, they are beyond the control of the consumer today and will not be influenced by his actions. Equally important, the manufacturer of the product may [overlook] such costs when designing the product”.
According to an article by Neil Seldman, co-founder of the Institute for Local Self-Reliance and director of the Waste to Wealth Initiative, not all EPR systems are born equal. Potentially good EPR programs can become bad because of poorly crafted implementation, especially when public oversight and control is handed over to business. As he notes, “corporate objectives for maximizing profits are not always compatible with achieving the highest environmental values,” offering examples when such programs have either gone awry or been deliberately sabotaged or undermined by corporate interests.
“With the exception of a few EPR systems, costs connected to waste collection, recycling, or final disposal, for instance, are not reflected in the price of the products.”
In Kenya, efforts to tackle plastic waste have faced fierce resistance from local manufacturers and distributors of plastic. In the mid-2000s, attempts to increase taxes on “flimsy” plastics bags (with a thickness of under 30 microns) were met with widespread protests by traders, as were similar efforts in 2011 by the National Environmental Management Authority and the Kenya Bureau of Standards to ban bags below 60 microns. The 2017 ban on plastic bags also faced stiff opposition, with the Kenya Association of Manufacturers (KAM) and several traders filing an unsuccessful petition at the High Court to block its implementation.
Since 2019, the government has sought to transition the country from a linear economy, where raw materials are collected and transformed into products that consumers use and discard as waste, to a circular economy, where products have an extended shelf life and are built so they can be repaired and recycled. The latest policy and legislative interventions in this regard are meant not only to strengthen the overall waste management landscape in the country but to also tackle the growing problem of plastic waste. These include draft regulations that seek to establish a mandatory EPR scheme whereby producers are legally responsible for the entirety of their product’s life cycle.
In a typical bid to head off regulation by the state, Kenyan corporates have set up voluntary EPR schemes such as PETCO, which identifies itself as “the Kenyan PET plastic industry’s joint effort to self-regulate post-consumer polyethylene terephthalate (PET) recycling” and the Kenya Producer Responsibility Organisation (KEPRO) which was established 2021. However, the Talking Trash report published by the Changing Markets Foundation in 2020 describes PETCO as a ploy by “FCMGs such as Unilever and Coca-Cola . . . to ensure they can continue to sell single-use plastic products in the country” and to push responsibility and blame for pollution onto consumers by urging them to “#do1thing. Recycle”. The companies have fiercely resisted introduction of a mandatory Deposit Return Scheme for plastic beverage containers, where consumers leave a small deposit which they recover when they return the empty bottle or can, which was how Kenyans for a long time bought their drinks in the era of glass bottles. By far the world’s top polluter according to the Brand Audit Report, Coca-Cola has claimed the scheme would be inappropriate for the country despite a finding by KAM in its 2019 Kenya Plastic Action Plan that while not suitable for collection of a wide range of plastic products, DRS was nonetheless feasible for collection of beverage containers. It is important to note that KAM frames DRS as an incentive or reward scheme for consumers behaving in an environmentally decent manner rather than a way for polluters to fix the mess they have created.
The behaviour of local and global corporates validates Seldman’s point that businesses cannot be trusted to voluntarily implement EPR as the profit motive does not always align with environmental objectives. For example, according to the Talking Trash report, Coca-Cola “has a double incentive to stymie DRS—every refillable glass bottle that is displaced from the market is replaced by 25 single-use plastic bottles, and, in Kenya, the advent of single-use plastic bottles has outpaced local glass bottlers—which would also bottle beverages from local soda brands, stifling the company’s competition”.
Further buttressing the point, local activist organizations, such as Clean Up Kenya, have accused PETCO of “continuing to piggyback on the existing system to score public relations points while spending millions of shillings in media campaigns to green-wash what is already a PET bottle recovery scandal”. In a May 2020 open letter, Clean Up Kenya described the pay per kilo for PET bottles—KSh10—offered to collectors as “almost laughable” and said PETCO had relegated collectors to “slaves of the system” having to gather a pick-up load of bottles just to earn KSh100, with reports of many “in peripheral areas being stuck with as much as 2000 kilos of PET bottles after months and months of hard corporate slave labour”.
KAM frames DRS as an incentive or reward scheme for consumers behaving in an environmentally decent manner rather than a way for polluters to fix the mess they have created.
Around the world, there is little evidence that voluntary targets by industry ever contribute to significant plastic clean up. Worse, it perpetuates the myth that the plastic problem can be addressed through recycling. Yet globally, as reported by The Intercept, “the value of recycled plastic is undercut by “virgin,” or newly produced plastic, which is cheap both because of the low cost of the subsidized fossil fuels used to make it and because its pricing doesn’t reflect the cost of cleaning it up”. Kenya is no exception. In a September 2020 interview, PETCO Country Manager Joyce Gachungi claimed the company had collected and recycled 7,700 metric tons of PET, or over 320 million bottles the previous year, and a further 3,500 metric tons in the first 9 months of 2020. It sounds impressive until one remembers that the industry generates 40,000 tonnes of new PET every year!
In the same interview, Gachungi admitted that PETCO was formed to head off a ban on PET. “When the government banned plastic bags they said that were also planning to ban PET bottles as well. . . [T]he government does not need to ban anything. All companies need to do is to join or form organizations such as PETCO that can be able to hold them accountable,” she said. On mandatory EPR legislation, she says such should only obligate companies “to join organizations that would make rules” which would leave the industry free to set its own targets and priorities.
The fact is, despite the flowery rhetoric, recycling and voluntary EPR schemes are not about companies living up to their responsibilities, but just ways to delay and frustrate the goal of a world free of plastic waste and to socialize the cost and responsibility for cleaning up existing plastic waste while continuing to profit from generating ever more plastic. In the end, only legislation forcing them to actually pick up after themselves rather than foisting the burden on consumers, and that moves towards a full and complete cessation of plastic production, will do.
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.
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