The Frameworks for Civic Engagement in Kenya

3.0 The Frameworks for Civic Engagement in Kenya

Kenya ushered an era of expanded civic space with the passage of a new constitution in August 2010. The 2010 Constitution not only guarantees the right to civic engagement, but it also included provisions for active civic engagement in public decision-making processes, including public finance management through the various mechanisms of public participation. The county governments, themselves a creation of the 2010 constitution have a clear obligation to promote effective civic engagement. They were expected to come up with not just additional locally contextualized enabling legal, policy and regulatory frameworks but also specific instruments for encouraging and promoting civic engagement. More than ten years since the enactment of the 2010 constitution and the establishment of the county governments, what has happened to expand space for civic engagement? This section looks at the constitutional, legal, policy and regulatory frameworks which have been enacted at the two levels of government in Kenya for promoting civic engagement.

3.1 The Constitutional, Legislative and Regulatory Framework for Civic Engagement

When Kenya enacted the new constitution in 2010, it was clear that both the citizens and the CSOs would be playing a critical role in the realization of their fundamental rights in a free and democratic society. In both letter and spirit, the constitution of Kenya (CoK), 2010 provides numerous guarantees for civic space. Not only does it provide the core principles meant to promote good governance and accountable use of power, but it also has many provisions that directly protect and nurture Kenya’s civic space. Through various Articles (27 and 35), the constitution provides for the rights of everyone to enjoy all rights provided in the constitution and to access information. It also compels all arms of government such as the parliament, judiciary, and state institutions to conduct their businesses in a participatory way and that which guarantee civic access (Articles 118 and 119). Further, the introduction of devolution and its institutions among them the county assemblies has promoted people’s selfgovernance and acted as avenues for increased participation by both citizens and CSOs (Articles 201 and 232). In the fourth schedule part 2(14), the CoK sets out the functions and powers of the county, one of which is to coordinate and ensure the participation of communities in governance. This in overall has enabled ordinary citizens to challenge government both at national and county levels, and compelled government to ensure meaningful public participation.

Similarly, observers and growing literature contend that the drafting and enactment of various legislation that operationalizes the provisions of the constitution have hugely led to increased civic participation and vibrant civil society. 1 In particular, The County Government Act, 2012 while operationalizes the devolved system of governance also provides key guarantees for civic space, even within the setting of devolved governance. Specifically, Sections 94, 95, 96, of the act compels county governments to establish mechanisms to facilitate public communication and access to information using media with the widest public outreach and to designate an office for ensuring access to information. Sections 100, 101, and 119, obliges county governments to create an institutional framework for civic education and citizens service centers. In sections 105 and 115, the Act further obliges county governments to ensure the ‘meaningful engagement of citizens in the planning process. Overall, the CG Act improves on the constitutional provisions, making them clearer. For instance, it defines what ‘public’ means.2 It vests responsibility for civic engagement in a clear institution, the county government.

The enactment of the Access to Information Act, 2016 and Public Finance Management (PFM) Act 2012 have not only opened up the country’s financial management system to civic engagement but also established mechanisms to ensure that public and private bodies provide information in compliance with constitutional principles. The Access to Information Act 2016 empowers the Commission on Administrative Justice (CAJ) as the responsible institution for the enforcement of the act, limiting access to information only in cases to do with national security, commercial interests, and the country’s foreign policy. The act rests the responsibility for access to information in each public entity on the entity’s chief executive officer, who it designates as information access officer. While the operationalization remains ad hoc at the national level, it has been domesticated to some extent in several counties.

Sections 10, 35, and 125 of the Public Finance Management Act, for instance, compel the Parliamentary Budget Office, the Cabinet Secretary for Finance, and the County Executive Committee member for finance to observe the principle of public participation in budgetary matters at both national and county government levels. Section 137 establishes the County Budget and Economic Forums (CBEFs) as the main forum for county government consultation with the public on economic policy and financial management. Besides the CBEF, the PFM Act also establishes key dates and moments in the budgeting process and the key documents whose production must involve the public.

While the aforementioned pieces of legislation have guided civic engagement both at the national and county levels, its nuanced and complex context has shown the need for a national framework or policy to guide public participation. As a result, in 2016, the Ministry of Devolution enacted Public Participation Guidelines3 to create uniform standards for institutionalizing public participation across the country. By contrast, the guidelines do not have an enforcement mechanism that would compel counties to follow the broad principles that they lay out for public participation. Indeed, the guidelines acknowledge this fact and state that it is not expected to replace the existing policy and regulatory framework for public participation.4

1 A report on Shrinking Space for Civil Society published by Forumsyd in 2017

2 The residents of a particular county; the rate payers of a particular city or municipality; any resident civic organization or non-governmental, private sector or labour organization with an interest in the governance of a particular county, city or municipality; and non-resident persons who because of their temporary presence in a particular county, city or municipality make use of services or facilities provided by the county, city or municipality.

3 The Republic of Kenya. Ministry of Devolution and Planning & Council of Governors. The County Public Participation Guidelines available at https://www. laibuta.com/constitution/county-public-participation-guidelines/

4 Jane Marine (2016), A Preliminary Comparative Study of Public Participation Acts in Kenya: A Case Study of Meru, Elgeyo Marakwet & Machakos Counties, African Studies Association of Australasia and the Pacific (AFSAAP)

Similarly, the process of the enactment of the Public Participation Policy was finalized in 2018 but is still under debate to-date. The policy sets the standards for public participation and emphasize the government’s commitment to civic engagement. It defines civic engagement at both the national and county governance levels, as well as within all arms of government, government ministries and agencies (MDAs), constitutional commissions and independent offices, other public entities and private bodies and other non-state actors. It sets out eight objectives aimed at enhancing civic engagement and identifies priorities towards enhancing civic space, among them timely access to accurate information; adequate capacity in civic engagement for government, non-governmental actors, and the people; adequate civic awareness and education to engender value-based participation; adequate planning, sufficient budgeting and full implementation of the policy; adequate funding for public participation at the two levels of government, and every arm and agency of government; inclusion of special interest groups; monitoring, research and evaluation mechanisms; userfriendly feedback and reporting mechanisms and friendly and accessible complaints and redress mechanisms. For civil societies, the enactment of the Public Benefit Organizations (PBO) Act in 2013 heralded a new era in the harmonization of the regulatory regime for CSOs, including NGOs, CBOs, trusts, and foundations sector. Within CSOs themselves, the PBO Act shall increase transparency and accountability, and this would in turn increase their legitimacy in the country. Prior to the Act, the civil society sector had multiple and overlapping legal and regulatory regimes. With the PBO Act, it was envisaged that Kenya’s civic space would be strengthened due to its progressive provisions. These include helping the sector overcome difficulties in monitoring compliance and accountability of CSOs in the sector, providing adequate mechanisms and processes for CSO self-regulation through the independent registration and regulation agency. It also aimed at addressing leadership and integrity issues, in line with Chapter 6 of the CoK 2010 and setting up an independent body to provide checks and balances in cases where the self-regulatory mechanism fails. Besides, the Act sets up complaints and dispute resolution mechanism for CSOs and their members and provides a general framework of principles for collaboration between the government and CSOs. Lastly, it establishes a regulatory and institutional framework within which public benefits organizations can conduct their affairs and allows PBOs to engage in commercial activities.

If fully operationalized, the PBO Act will ensure rights to information, association, operation, and increased access to resources for public benefit organizations. It will also ensure proper registration of CSOs and provide an extra layer of protection to the civil society against destruction and harassment by those in power. It will also provide a basis for litigation against the Public Order Act of the 1960s, which is a major impediment to civil society operations. However, a major setback to the PBO Act is that although it was officially unveiled in early 2013, it has never come into full effect. More worrisomely, there have been numerous attempts by the government to amend the PBO Act, with the government showing extreme discomfort with its progressive provisions. This brings forth the question of whether it would ever be operationalized.

In sum, there is a strong indication that the existing laws and regulatory frameworks on civic engagement in Kenya are robust with most of them well anchored at the national level. Within the counties, there is a growing interest to further develop critical laws and frameworks with some of the counties having already developed public participation and access to information Acts as later described in Section 4. However, the operationalization of these laws and regulatory frameworks remains ad hoc and slow.

3.2 Executive Pronouncements and Judicial Rulings on Public Participation

Protecting the expanding civic space like the case of Kenya is highly dependent on the government of the day. In many instances and as extensively discussed in the subsequent section, state authorities have exercised restrictive laws and judicial pronouncement to disrupt civic actions in Kenya. On the contrary, the Executive through the Head of State has occasionally affirmed the government’s appreciation and commitment to civic engagement. 5 His speeches have highlighted the importance of public participation, including its contribution to the government’s development agenda and the achievement of sustainable development goals. It should be noted, however, that although the government has indicated a formal commitment to civic engagement, actual practice tells a different story.

The judiciary has been another important platform for protecting and affirming the existence of civic space in Kenya. This has been demonstrated in at least two significant rulings delivered by the courts, which set the basic standards of what the judiciary expected to be the guidelines for civic engagement.6 In Kiambu, for instance, the Kiambu Finance Acts of 2013, 2014 and 2015 were declared unconstitutional, null and void on grounds that no public participation was conducted before their assent. It emerged that the enactment of the Kiambu Finance Act, 2014 happened without public participation despite being subject to Petition No. 603 of 2014. Whereas in Bomet County, the court declared that the county government’s budget-making process for the financial year 2014- 2015 was unconstitutional, having flouted provisions of the 2010 Constitution and other related legislations for civic engagement.7 The rulings in the two-county cases were instrumental in setting the precedence towards conducting civic engagement, ensuring that the county governments effectively organize and facilitate civic engagement processes.

3.3 Key Observations and Reflections on the Civic Space in Kenya

Generally, the legal environment for civic action is supportive of civic engagement. The passage of the CoK 2010, in particular, transformed the landscape. Indeed, between 2010 when the constitution was passed and 2013 when some of the most important legislations such as the CG Act 2012 and PFM Act 2011 were enacted, civic space in Kenya enjoyed growth and expansion. The recognition and inclusion of the rule of law, democracy, and participation of the people as national values and principles of governance set a strong signal for engagement. Further, as highlighted in the preceding section, the legal environment has multiple laws, policies, and regulatory frameworks implemented by different ministries. The PBO Act 2013 aimed at providing a more conducive legal framework for civil society operations and accountability, the enactment of Access to Information Act, 2016 and the public participation policy are key results of this receptive space. Despite the existence of these progressive laws, a national public participation law is considered to add a strong layer of legal protection to civic engagement in the country and its civic space. However, the government of the day has been slow to conclude work on a Public Participation Bill, with at least two versions pending, one before the senate and the other in the national assembly.

5 This was in October 2018, during the 7th Annual Conference for Constitutional Commissions and Independent Offices, which took place in Meru County. 6 http://kenyalaw.org/caselaw/cases/view/122154

7 http://kenyalaw.org/caselaw/cases/view/109724/

Repeated attempts to close the civic space

Civic space remains fragile, especially ever since the 2013 ascent to power of the Jubilee Administration. The administration has employed legal and administrative means to harass, deregister and even introduce complex bureaucratic mechanisms, especially to civil societies perceived to be promoting human rights activities. This initially was based on three main factors:

• First, civil society organizations had been prominent in providing evidence and support to the International Criminal Court (ICC) in the initial days when the court was framing the crimes against humanity charges against the two main candidates fronted by the jubilee coalition.

• Secondly, a section of the civil society had gone to the High Court to challenge the candidacy of the two (jubilee candidates) prior to the 2013 elections, arguing that having been indicted for crimes against humanity by the ICC, they were not fit to run for the country’s highest political offices under Chapter 6 of the CoK 2010.

• Thirdly, soon after the 2013 elections, a section of civil society was part of the petitioners who challenged the validity of the election.

These three actions by the Civil Society were thus interpreted as being hostile to the jubilee administration when it eventually ascended into power in 2013.

Upon assuming power, the jubilee administration embarked on several measures meant to restrict the activities of civil society. First, it declined to operationalize the PBO Act 2013. Instead, between 2013 and 2017, it lined up at least 54 amendments to the Act to remove the special protections it offered to the civil society.8 Among the provisions targeted for removal included clauses encouraging closer collaboration between government and civil society, limiting the amount of funding available to CS to only 15% of their annual budget, prohibiting PBOs from receiving funds directly from donors as all funds would be channelled through an established PBO federation. Besides, the amendments sought to alter PBOs’ current governance body in favor of an executive with veto powers over NGOs. It also set up a taskforce, incidentally, led by Sophia Abdi Nur, the former MP who had spearheaded the passage of the Act, to collect views aimed at amending the law.9 Civil society reacted by mobilizing both locally and internationally to fight off the government’s attempts to kill the Act. It even went to court and was granted at least two orders by the courts compelling the government to operationalize the Act. The government ignored the court orders. In all, although civil society was able to stem off the government’s attempts at amending the PBO Act, the Act remains unimplemented to-date.10

8http://www.kelinkenya.org/wp-content/uploads/2018/08/SHRINKING-SPACE-OF-CSOS-KENYA.pdf; KI with a member of CSO Reference Group

9http://www.kelinkenya.org/wp-content/uploads/2018/08/SHRINKING-SPACE-OF-CSOS-KENYA.pdf

10https://www.omct.org/files/2018/07/24955/kenya_briefing_note_july_2018.pdf

Administrative and Physical Intimidation in Clampdown on Civil Society Actors

Civic space is not only restricted by policies and legislations. Administrative and physical harassment has also been used to further suppress civil societies. The second action from the government which sought to shrink the Kenyan civic space was the appointment of a hostile director at the NGO Coordination Board, one Fazul Mahamet.11 The appointment itself was judged irregular by the law courts and the Commission for Administrative Justice (CAJ, also taken as the country’s official Ombudsman), having been based on false academic certificates. Yet during his tenure at the Board, the Director was accused of deliberately carrying out a hostile policy against established entities within Kenya’s civic sphere. There were four main accusations leveled against him during his tenure at the Board:12

• First, he disrupted smooth operations at the board by disregarding human resource protocols, intimidating staff, and hiring others on an unprofessional basis.

• Secondly, he deployed the terrorism argument to constantly harass CSOs, intimidating them with deregistration and delaying the registration of some entities, among them the National Gay and Lesbian NGO.

• Thirdly, he was reportedly the one behind the shift of the board from its parent ministry at the Ministry of Devolution to the Ministry of the Interior when he fell out with the Cabinet Secretary of the former, thus securitizing the regulatory environment for CSOs.

More ominously, he lined up to 1,500 NGOs and civil society entities which were targeted for deregistration

11KI with a member of CSO Reference Group

NGOs and Civil Society entities were targeted for deregistration 1500

while registration of some entities such as the National Gay and Lesbian NGO were significantly delayed. Additionally, civil societies who actively participated in challenging the elections as well as those active on demand for government accountability such as the Kenya Human Rights Commission (KHRC) and the Africa Centre for Open Governance (AfriCog) faced harassment and deregistration.13 This move signified the intimidation of CSOs viewed as operating against the government interests. Other organizations that reportedly faced similar predicament included Inuka Kenya, Katiba Institute, and Muslims for Human Rights (MUHURI), all of which were accused of money laundering and employing foreigners without valid work permits. This culminated in the banning of the operations of “Kura Yangu, Sauti Yangu”, an election campaign initiative by a coalition of civil society groups, and, “We the People!” a citizen’s alliance that focuses on good governance, for allegedly operating illegal bank accounts and funding political operations in Kenya.14 By using state institutions such as the NGO Coordination Board mandated to safeguard and create a conducive environment for CSOs engagement, this depicts how government authorities are supported by the state power to employ illegal bureaucratic mechanisms to frustrate civil societies.

12Anonymous, ‘NGOs board boss Fazul Mahamed out to silence State critics,’ Daily Nation, August 15, 2017; Jane Zawadi, ‘NGOs board director Fazul Mohamed hit by hiring, funds scandal,’ The Star, July 25, 2016; Dominic Wabala, ‘Uhuru appointee Fazul Mohamed’s Degree is Fake,’ The Star, November 9, 2015; KI Interview with a member of CEA, CSO Reference Group; William Otiende Ogara and Beryl Okumu, Evaluation of the Change the Game Academy Programme, Kenya Country Report, June 2020

13http://www.kelinkenya.org/wp-content/uploads/2018/08/SHRINKING-SPACE-OF-CSOS-KENYA.pdf)

14English translation: - My Vote, My Voice

Safeguarding the National Security Interests used to Restrict the Space for Civic Engagement

A third development under the current administration that negated the consolidation and expansion of civic space has been the application of laws that clawback at the gains made in advancing civil rights. Transparency International, for instance, indicated that the government’s use of the Official Secrets Act continues to impede the right to access information.15 The Kenya National Commission on Human Rights (KNCHR) reached a similar conclusion concerning the state’s attempts to set up the Security Law (Amendment) Act of 2014, which was seen as singularly targeted at diminishing Kenya’s civic space.16 Fortunately, the law was contested in the law courts by both CSOs and the political opposition and the courts ruled some of its provisions as unconstitutional.17 Article 19, on the other hand, cites the labeling of CSOs as ‘evil society’ and ‘agents of foreign masters’ as detrimental to Kenya’s civic space.18

On a grim note, both the Kenya Human Rights Commission (KHRC) and the Kenya National Commission for Human Rights (KNCHR) reported cases of arbitrary misuse of power, which had a direct impact on the operations within Kenya’s civic space. According to KHRC’s 2018 report, members of the public and CSOs experienced different human rights issues which included unlawful and politically motivated killings, forced disappearances, torture, harsh and life-threatening prison conditions, arbitrary arrests and detention. The report established that impunity (including limited access to information) at all levels of government continued to be a serious problem, with CSOs failing to get the data required to hold state security organs to account.19

KNHCR also found several government institutions engaging in activities that impacted negatively on civic freedoms. In its 2013/2014 Annual Report, the commission found the county government of Uasin Gishu, the Independence Electoral and Boundaries commission (IEBC), the NGO Coordination Board (in a case documented by the Human Rights Watch -HRW) and parliament as among some of the government institutions which outrightly violated the country’s civic space. The commission itself also identified some obstacles which hindered it from discharging its mandate including the protection of civic rights. Some of the challenges cited were personnel transition in the commission, reduced funding, limited national presence, political interference, non-responsiveness or limited response of duty bearers and other agencies to its summonses and lack of feedback mechanisms with the general public.20

15https://tikenya.org/wp-content/uploads/2017/06/adili-155-access-to-information-in-kenya.pdf

16Coalition on Restoration of Democracy, an outfit that participated in the 2013 general elections

17Section 12 of the law struck out by the court for violating the freedom of expression and the media guaranteed under articles 33 and 34 of the constitution.

18https://www.article19.org/resources/annual-report-2017-defending-freedom-expression-information-around world/; https://www.article19.org/ wpcontent/uploads/2018/04/ARTICLE19_Annual_report_2017.pdf

19https://www.state.gov/wp-content/uploads/2019/03/Kenya-2018.pdf

20KNCHR Annual Report 2017/2018; Human Rights Watch is a Washington, US, based human rights lobby that operates across the globe.

State Agencies and CSOs as Watchdogs in Reclaiming and Protecting the Space

On a positive note, at least one government agency, the Commission of Administration of Justice (CAJ) attempted to secure civic rights through two significant measures:

• First, it somewhat distracted the hostile NGO Coordination Director from doing extensive damage to Kenya’s civic space by indicting his academic qualifications.

• Secondly, it became the institution fully mandated to ensure compliance with the right to access to information provided for by the CoK 2010 and the Access to Information Act of 2018. It has since campaigned vigorously for these provisions to be respected by all state entities and has carried out sensitization campaigns for ordinary citizens on the right to access information.21

A more encouraging development has been from civil society itself. Although it faces many frailties among them still being governed by an act formulated in 1991 and being seen as useful only when it brings resources to the negotiating table, the civil society vigorously fought off attempts by the government to muzzle it. This was through deploying Public Interest Litigation (PIL) to help expand the civic space, as was the case with Kituo Cha Sheria and Legal Resources Foundation Trust who litigated and got prisoners the right to vote in the 2017 general elections.22

To further mobilize and protect the fragile civic space, civil societies must build strong accountability mechanisms. This means they must work towards being recognized by the same people they support as legitimate actors. Mobilizing and building the networks will sustain the narratives which resonate with the plights and concerns of ordinary citizens.

21https://www.ombudsman.go.ke/index.php/ati-centre/category/24-ati-law

22KI

The Handshake and the Constitutional Change Process

During the second term of the jubilee administration, especially after the ‘handshake’ between the President Uhuru Kenyatta and the opposition leader Raila Odinga in March 2018 which culminated in the Bridging Bridges Initiative (BBI),23 the negative pressure against civil society somewhat eased. In fact, by early 2020 during the launch of the NGO Sector Report for 2018/2019, Interior Cabinet Secretary not only attended the event but also pledged the government’s commitment towards implementing the PBO Act 2013. However, this has not yet happened, and the fate of the act is unclear. With the official opposition working very closely with the ruling party under the handshake initiative, the civil society has also lost a critical ally in extracting accountability from the government and its institutions.

Overall, civic space in Kenya remains fragile and vulnerable to reversals and rollback.24 Although the constitutional, legal and regulatory frameworks on which it is anchored are fairly strong and well-defined, the actual power relations between CSOs and power holders remain skewed in favor of the power holders, and they invariably use this advantage to curtail civic freedoms. Nevertheless, windows of opportunity for advancing and protecting these freedoms from being rolled back open once in a while. For instance, the current conversation around constitutional consolidation which has been ignited by the BBI process offers such a window of opportunity. If the opportunity is seized upon, for instance through insisting on the operationalization of the PBO Act 2013 as a pre-condition for supporting the BBI process, this can go a long way in ensuring CSOs secure their space in the country’s development and civic agenda.