A Presentation by ndolo asasa Esq.
To
SUPPORT FOR TROPICAL INITIATIVES IN POVERTY ALLEVIATION(STIPA)
Staff End Year Retreat at Camunya Hotel, Ugunja on Sunday 19th December, 2010.
1) The Nation’s Make-Up.
This is the start of the New Constitution and is specifically referenced by the Preamble, Chapter 1- Sovereignty of the people, Chapter 2- The Republic and Chapter 3 which is on Citizenship.
The Preamble is a self declaratory statement by the people of Kenya acknowledging themselves “We, the people of Kenya…” and confirming their intentions and aspirations as a people the role they have played in creating the constitution for themselves and their progeny.
By Chapter 1, all implementing authority of the nation is squarely in the hands of wananchi ONLY. This authority may be exercised by the people directly or through representatives to be used by three state organs ONLY; namely the Legislature, the Executive and Judiciary. This use and exercise of power is recognized to be at both the national and county levels.
It is the duty of each and all Kenyans to respect, guard and protect the constitution.
The superiority of the constitution is asserted in this chapter, in addition to recognizing the role of other laws, rules and international order within which Kenya exists and operates.
The Collective existence of Kenya and its values, political units, language and artifacts are stipulated in Chapter 2.
It demarcates the autonomy of counties, the relation between the counties and with the national government. It is in this chapter that Kiswahili is specifically categorized as the ONLY National language, though both Kiswahili and English are recognized as official languages for the nation.
This chapter also establishes the National Symbols (The flag, anthem, coat of arms & seal) and National Days (Madaraka, Mashujaa & Jamhuri Days on 1st June, 20th October and 12th December respectively).
The population of Kenya is defined in Chapter 3.
All those born of Kenyan parent/s are recognized as Kenyans by birth. Other recognized mechanisms by which Kenyan citizenship may be acquired include registration (marriage and naturalization).
Kenyans are allowed dual citizenship.
2) The Nation’s Character
The national behavior, mannerism and being of the Kenyan person is established in the Bill of Rights (Chapter 4) and Chapter 6 on Leadership and Integrity.
The Bill of Rights asserts that the rights are not given by anybody including the state and thus cannot be taken away by anyone or authority. This chapter applies to all laws, meaning all laws must be in compliance with the provisions of this chapter. Special attention is given to the Economic and Social Rights (Art 43); while the state is expected to progressively ensure that this provision is adhered to it (the state) is charged to specifically ensure that they are realized {Art.20 (5)} and Art.21
While the state is expected to enhance the enjoyment of all the fundamental rights as stipulated in the chapter, it is the duty of the citizen to actively seek their enjoyment and even enforcement through individual, group, direct and indirect actions of demand and courts of law. (Art 20, 21, 22, 23, 27, 28 and 37).
The rights and freedoms that are expressly provided for in the constitution include ;
• Right to life
• Equality
• Freedom from discrimination
• Dignity
• Security
• Freedom from slavery
• Privacy
• Freedom of conscience
• Freedom of expression
• Freedom of media
• Access to information
• Freedom of Association
• Assembly
• Political freedom
• Freedom of movement
• Protection of right to property
• Labour relations
• Environment
• Social and Economic rights
• Language & culture
• Family
• Consumer rights
• Fair administration
• Access to justice
• Rights of arrested persons
• Fair hearing
• Rights of detained persons
• Children’s right
• For people with disabilities
• Youth
• Minorities and marginalized groups
• Old persons and
• State of emergency.
All these are established in Chapter 4, Articles 26 – 58.
3) The Nation’s Wealth
The national wealth is categorized in the constitution as Land (Chapter 5) and Public Finance (Chapter 12)
In Chapter 5, land is categorized and defined as public, private and communal. Foreigners are restricted from owning land on a freehold basis or leasing for a period longer than 99 years. The public.
Any kind of discrimination is prohibited in the use, access or ownership of land whilst the state has the final authority on all land so long as it is acting in the interest of the larger public good (Art.60).
Public finance shall be raised through ordinary revenue, taxes, charges, loans, grants, fines and public debts. That in sharing the burden of taxation, it shall be shared fairly and revenue raised shall be shared equitably for equitable development (Art. 201). Public participation is guaranteed for the public while the state is conducting management of public finances – which should be responsibly, openly and with accountability.
There is provision for equitable sharing of the fiscal resources between the national and county governments with the county government being allocated no less than 15% of all the ordinary national revenue (Art 203).
The constitution establishes structures for the said management of finances for the realization of equitable development that include;
• Equilisation fund
• Commission on Revenue allocation
• Consolidated fund
• County Governments revenue funds
• Contingencies fund
Borrowing and imposition of taxes by both the national and county governments is controlled
(Art. 209 -214). For enhancing financial control, further established is;
• Office of Controller of Budget
• Auditor General
• Salaries and Remuneration Commission and
• Central Bank of Kenya.
4) The Governance Structure
This is established through the Executive, devolved government, legislature, representation and judiciary by virtue of chapter 9, 11,8, 7 and 10 respectively.
a). The Executive.
The national government that includes all the 47 county governments shall be led by a President elected through universal suffrage. The President shall have a Deputy who will be a running mate during the General Elections. The President will be deemed to have been elected if he/she garners 50% +1 vote of all the cast votes in the said election in addition to garnering at least 25% of all the cast votes in 24 of the 47 counties. Incase, no single candidate scores the said threshold; the top two candidates will face-off in a re-run and the winner shall be declared the President. The President shall normally be elected during the General Election which is scheduled to be on the second Tuesday of August of the fifth year after the last General Election.
The President shall form a government cabinet of no less than 10 Cabinet Secretaries but not more than 22 Cabinet Secretaries who shall not be elected persons. This cabinet will be approved by Parliament and will undertake day-to-day running of the government.
The Executive shall be composed of the President, Deputy President, Cabinet Secretaries, Principal Secretaries, Attorney General and Director of Public Prosecutions (Art.152-158).
The devolved governments shall be divided into 47 unit Counties headed by a Governor elected by universal suffrage in each County. The Governor will be deputized by his/her running mate during the General Election. The governor shall run the day-to-day activities of the county together with an Executive Committee of no more than 10 person approved by the County Assembly. But if the county has less than 30 Members of the County Assembly, then the governor shall have an Executive Committee of no more than 1/3 of the size of the County Assembly Membership( Art. 179, 180, 183).
b). Legislature.
The legislative duties of at the national level shall be conducted through parliament which shall be made up of the National Assembly and the Senate (Art. 93).
The National Assembly shall be made up 290 elected Members of Parliament (1 from each constituency), 47 elected women representatives (1 from each county), 12 nominated members representing youth, people with disabilities and the minorities & marginalized, and the Speaker (Art.97).
The main responsibilities of the National Assembly include (95);
• Deliberate peoples concerns
• Enact laws
• Determine allocation of national revenue between the national and county governments
• Allocate funds to national government for expenditure
• Supervise national expenditure
• Review conduct of all State Officers, including the President
• Approve declarations of war and state of emergencies
The Senate shall be made up of 47 Senators, one elected from each county, 16 nominated women Senators, 2 nominated youth representatives, 2 nominated representatives of persons with disabilities and the Speaker(Art.98).
The main responsibilities for the Senate are (Art.96);
• Represent the counties
• Protect interests of the counties and their governments
• Debate and approves bill concerning counties
• Determine allocation of national revenue among counties
• Consider and determine any resolution to remove the President/Deputy from office
The County Assemblies shall be made up of elected Ward Representatives and nominated members. The responsibilities of the County Assemblies shall be at the county level and mainly be legislative. These include (Art. 185);
• Make laws for exercise of power at the county level
• Exercise oversight over county executive committee and other county organs
• Approve plans for management of county resources and development of infrastructures
In all the above offices election shall be done by secret ballot, using the principle of one man one vote, all adult Kenyans are eligible to contest any seat, one can contest as sponsored by a political party or even as an independent candidate.
c). Judiciary
It is important to note that, as a constitutional principle alternative dispute resolution and non-adherence to strict regard to procedural technicalities have been done away.
The Judiciary shall be set up in 4 main divisions;
• Supreme Court
Shall be the highest court in the land and shall be made up of the Chief Justice and at least made up of five judges.
Responsibilities;
Hear Presidential Election Petitions
Hear appeals from Court of Appeal and below
• Court of Appeal
Made up of at least 12 judges.
It has the mandate of hearing appeals from High Court and courts below it
• High Court
Shall have as many judges as will be determined by Parliament. The mandate of this court include;
Unlimited jurisdiction in civil and criminal matters
Determination of matters of Bill of Rights
Appeal from a tribunal to remove a state officer
Interpretation of the constitution
Appeals from sub-ordinate courts
• Sub-Ordinate Courts
These include the Magistrates courts, Kadhi’s Courts and the tribunals.
5) Adaptability for the Nation
This is catered for through provisions for Amendments (Chapter 16), transitional provisions (Chapter 18) and the schedules (Schedule 1-6).
(i) Amendments:
While the constitution provides for the amendment of any part of the constitution by both any Member of Parliament and any Kenyan citizen, through receiving absolute majority (65% of parliamentary membership)support in parliament, there are parts of the constitution that can only be amended through a referendum. These include;
Chapter 1, 2, 3 and 4.
Presidential term
Independence of judiciary
Functions of Parliament
Chapter 11 and
Chapter 16.
Any Member of Parliament can move a motion to amend any part of the constitution, and the amendment will be successful if the subsequent bill receives 65% majority total membership approval, unless it also require a referendum approval.
A citizen may move a motion to amend any part of the constitution by collecting at least 1million signature of voters, this motion would then be taken to parliament for approval as stipulated, unless it requires further ratification in a referendum
(ii) Transitions
The new constitution came into effect immediately it was promulgated on 27th August 2010 (Art. 263)
While parliament is given responsibility to midwife the new constitution to functionality {Art. 261 (1-4)}, should it fail it will lead to its dissolution and a General Election {Art. 261(5-9)}
(iii) Schedules
a) Schedule 1 –
Enumerated all the 47 counties
b) Schedule 2 –
Gives and describes the national artifacts/symbols
c) Schedule 3 –
Avails the prescribed national oaths and affirmations
d) Schedule 4 –
List the different and joint functions for the national and county governments
e) Schedule 5 –
Tabulates the timelines for parliament to enact facilitative and enabling laws for the constitution
f) Schedule 6 -
It provides for;
Definitions
Suspension of implementation of Chapter 7 & 8; Chapter 9 (Art.129-155) and all Articles on devolution.
Conditional continuity of sections of the former constitution
Implementation structures for the constitution
Application of existing subordinate laws
Establishment of judicial and constitutional commissions/institution.
Monday 20 December 2010
Thursday 9 December 2010
The Role of Civil Society in Transitional Democracies. (THE KENYAN CASE)
A Presentation at The Juba University Public Lecture on 7th December 2010
By ndolo asasa Esq.
Executive Coordinator, The Elimu Impact Trust
& A Member of Pioneers For Change Movement.
How has been the Kenyan Journey?
Women were first given national Identity cards in Kenya in 1979, 16 years after Kenya got independence!
In 1980 there were less than 20 organisations in Kenya pursuing the mandate of democracy and governance. The ones that were such bent were mainly of religious inclination, students’ organizations, lawyers’ caucuses and university dons. Right now there are more than 6,000 registered NGOs alone dealing with matters of governance, democracy, leadership and human rights made up of various persuasions and basis in their formation (really people groups)!
In this presentation I define the Civil Society as those organizations that are not state machinery or state formed but deals with issues that target making the life of their constituents/communities the life of respect and dignity. They (the CSOs) out of choice, do not use violence or any other barbaric style of engagement as a means attaining their goals. They maybe coordinated, scattered, local, national, international, registered or not registered.
Ladies and gentlemen, kindly let me give you a snap shot of democracy in transition in Kenya for the last few years;
On August 1st 1982, the Kenya Airforce carried out a coup that was thwarted by the Kenya Army. This was a violent expression of the dissatisfaction felt even in the disciplined forces on involvement of people in the management of their affairs in Kenya. Democracy was stifled, or at least the promise and hope for it. This coup brought to the for the role of intellectuals, students and dons in advocating the aspirations of the people, but as much it exposed the naivety of planning a democracy without the masses, a mass mobilized by fact of being informed. This fact, power of information, was not lost to the dominating forces too, and they went overdrive and sent the activists into exile, detention, silence, even graves and most important of all into a social re-engineering on enhancing democracy through what I call aggressive transition engagements! Many CSOs were formed abroad to agitate for democratic reforms and people sessions such as funerals, weddings and birthday parties became political mobilization and engagement forums.
In 1988, there was the infamous mlolongo voting that ushered in open rebellion from the political elite as exemplified by the resignation of Stanley Matiba from government. The religious institutions emboldened and became more vocal on securing of democratic space for Kenyans, the effect of the pressure groups started being felt as international development partners and allies expressed reservation or withheld their support. By early 1990s, the various forces; political elite and the civil society felt bold enough talk to each other and together to walk into the political arena and claim space. This was done by aggressively mobilizing the masses and holding political rallies. This took off with a lot of casualties on the side of the peoples groups in terms of people losing their jobs, careers, education, families, opportunities and even lives! But the people came out and came out again! The Civil Society had managed to bring on board the most important strategic partner in ensuring that a dictatorship would be systematically replaced with a democracy.
The rest happened so fast between 1992 and 2010 (did you hear that! 18 years was fast, very first indeed!!!) Multi-party was re-introduced, several draconian laws repealed, several elections held and 2 referendum on the new constitution conducted.
What and how did the Civil Society Engage?
1980’s and 1990’s: Securing space!
The Civil Society mostly engaged through generation of information and sharing it. Sometimes this was done clandestinely as was the case of Pambana and Mwakenya or sometimes overtly through registered organizations such as National Convention Executive Council (NCEC), Centre for Law and Research International (CLARION), Law Society of Kenya et al, religious pulpits, artistic performances and lecture snippets. This engagement was mainly confrontational with the powers that be. A lot of organizations were deregistered, people arrested/ killed/incarcerated and if lucky only threatened!
This served the purpose of raising awareness and building a critical mass of dedicated civil society workers. In addition it mobilized the people to understand that they were not having the best of governance and that they have a role to play. This phase de-mystified sirikali as opposed to serikali mentality .
It is important to note that it is within this period that the first two multi-party elections were held after independence and parliamentary opposition political party politics re-introduced in Kenya.
The biggest lesson that was learnt by the civil society during this period was that, the oppressive government was not as daft as it had portrayed itself. That there was need to engage the status quo with sufficient intellectual power and personnel. This informed the focus of seeking and processing definite local information, development of personnel and setting up of advocacy machinery structures as a key strategy the civil society roundly employed to secure and expand the democratic space being realized in the country.
During this period, the civil society concentrated using the mobilized masses to seek political and legal concessions. This was because, the CSOs noted that the government responded more favourably to mass actions and or threats of it more than it did to other stimuli used.
Politically, the opposition parties were the strategic allies of the civil society, though there was no formal or structured arrangement for this.
2000- 2005: Talking to them.
The Civil Society had learnt their interest may not be given the attention they deserve unless they had specific persons they could count on at the political table. It is during this time that it had by now been largely agreed that what Kenya need so as to be truly democratic was not just opening of space and political participation! That it would take structural and framework reconstruction of the country through a new constitution and that this would take the working in tandem of the state machinery, non-state actors and the political class.
It was during this period that, Daniel Toroitich arap Moi was exiting the political field and the civil society majorly rallied around a new political leaders with the hope that it would deliver a new political order (read democracy) as secured by a new constitution. This was the waterloo of many CSOs and a sobering moment for many! By fact that they had supported morally or otherwise the new government through the National Rainbow Coalition (NARC) and its affiliates, most CSOs were not able to critique the government because they technically or felt morally part of it! The CSOs lost to the government a lot of personnel they had painstakingly over time developed and built their capacities.
This exposed the CSOs soft underbelly that while pushing for transition in the government, they had not prepared themselves for internal and intra-sector transition. A lot of their thinkers, strategists, fundraisers, mobilisers, writers and all sorts of diligent workers were now either in government bureaucracy, parliament or the government’s political party now elite machinery. What’s more the donors also went with them!
Unarmed as they were by the 2002 elections and transition in government, the remainder of the civil society that was severely depleted of personnel and donor support embarked on recreating itself. This rebirth was a more organic, thematic and institutional civil society as compared to the majorly personality inspired civil society of pre-2002. The civil society was not able to threaten the government to any further shock submission actions due to mass action as amongst the best mobilisers and organizers of mass action were now in government and the civil society itself was considered by a sizeable public to be part of the government – had they not fervently supported it in the build up to the elections anyway? Remember Kenyans had just been declared the most hopeful people in the world! And the opposition party was considered morally and intellectually incapable of engaging the government of the day
The civil society did regain a lot of confidence from the public and donors by engaging in concerted efforts to keep the government on its toes on the democratic and good governance course. The target of the democratic governance advocacy was sharply focused on those that were formerly of the civil society but now in government. Data and information of targeted strategic government sectors were collected, processed and the said focused government officials placed under public scrutiny as judged by their past records and positions. Considering that the transition in government had now rendered clandestine and poster-communication redundant, the mass media during this time, became a core partner of the civil society in keeping the pressure on government to enhance democratic development. Thematic public discussions, public forums and individual leadership accountability at both the national level and community levels took centre stage as an engagement strategy for the civil society and the media.
The civil society now focused on seeking formal recognition and representation in government democracy processes such as reforming of the legal regime and the constitutional review. The CSOs also engaged in an unprecedented critiquing and production of sample laws and democracy policies for the government. These documents were occasionally passed on to the government through friendly Members of Parliament, senior bureaucrats, public forums or most often mass media discussions.
Civic and voter education in the build up the elections in 2002 and the referendum in 2005 played a very important in reconnecting and cementing the confidence of the people in the civil society again. Universality was rediscovered and greatly expressed by the civil society during these moments.
Important to note is that, the former civil society mandarins now in government either through election or appointment (and they were many!) were still being treated suspiciously by the veterans in government and the civil society no longer considered them as part of them (the civil society)
During this period the civil society did a lot of talking to the government, mass media and the public focusing on issues and the future (after all Moi Must go! Came and passed and now the moment of Yote Yawezekana was here). The engagement strategy for civil society that irreversibly moved from the streets alone to including the National Assembly floor, discussion tables and the mass media.
2005 – 2007: More Please.
In the build up to the 2005 referendum on Constitutional Review, the civil society managed to secure official recognition and space in this most important democratic development upto then. It had its representatives from various thematic formations forming part of the National Delegates Conference on Constitutional at Bomas of Kenya.
This period saw the civil society concentrate on demystifying elective and appointive leadership by getting the masses organized and ready to engage in democratic development. This was done through such vogue activities as setting up people groupings like Village Assemblies, Constituency Parliaments, Neighbourhood Assemblies, Peoples Parliaments and undertaking local social audits of leadership and governance.
Once again, the mass media was a critical and great ally of the civil society at both the local and national level.
Having noted that voting and the electoral process is key in ensuring democratic development, the civil society organized itself and undertook to monitor the 2005 referendum and 2007 elections as a common platform. This enhanced prudent use of the little resources available while reaping the maximum gains and also sharing of information and strategies so as not to be set up against each other by any competing factor especially the government.
Herein lay the problem! The previous elections having generally been conducted in somehow acceptable manner, and the civil society having increased its presence at the government table and in the political discourse, the Post-Election Violence (PEV) that followed the 2007 voting got the civil society largely by surprise. This (the unpreparedness) majorly happened because of;
i. The competing interests within the civil society saw a lot of time and energy being spent on crafting a common platform than in undertaking an objective pre-election observation preparing to effectively participate in the elections. While K-DOP had been in existence since 2005, in 2006 parallel efforts came into play to conduct the 2007 General Elections. The compromise effort that was KEDOF was finally commissioned in August 2007 after 1 year long back and forth discussions amongst various stakeholders. But it (KEDOF) was only to be operationalised in mid November 2007, with less than 6 weeks to go to the elections!
ii. Replacing prudence with trust.
Considering the steady increment of participation and involvement of the civil society in democratic and governance processes and with encouragement from the donor community, the civil society did not set up totally independent observation mechanisms of the electoral process. This was most exemplified by the sharing of an office building with the ECK and the supposed gentleman’s agreement to also have a common tallying centre! Maybe, just maybe there would have been no electoral dispute if a credible alternative tallying of votes by the civil society had been in place.
iii. Even with the formation and commissioning of KEDOF, there was a lot of mistrust between the formally parallel processes as was exemplified by failing to agree on definite leadership of KEDOF resulting in the first grand coalition where executive authority of the forum was shared by two different members of the formative processes and a donor appointed intermediary!
iv. Setting up of elaborate processes that were majorly bureaucratic and not exactly binding. KEDOF was programmatically led by 2 Co-Chairs but administratively and financially led by a donor appointed agency! Below these 3 executives there was the Strategic Board that was mainly made up Chief Executive Officers (CEOs) of partner organizations. They were supposed to be making final policy decisions for KEDOF, yet most of them – being CEOs had to always be going back to their organizations boards to get authorization to commit their institutions. This inexplicably delayed decision making. Below the Strategic Board (SB), there was the Programme Technical Board (PTB) which was made up of the relevant Finance and Project Officers from the said partner organizations. This further frustrated decision making because the membership were juniors of the SB members and so consultations had to be done not only at KEDOF but also at the organizations with the powers that be! But as if that is not enough, there was a Donor Reference Group that both the SB and Secretariat (represented by the CEO, Deputy CEO and the Donor-appointed Programme Management Unit (PMU) had to directly jointly and separately had to report to regularly! In the meantime Kenyans were killing each other!
v. Most civil society organizations had overt political inclinations.
2008 – 2010: Sealing the loopholes.
The 2007 PEV did burst the Kenya island of peace bubble. The shock of the brutality and intensity of the PEV saw Kenyans gladly welcome international facilitation to restore sanity. This effort was led by African Union (AU) under its Chair President John Kuffuor of Ghana and the Presiding Chair of the East Africa Community (EAC) President Jakaya Mrisho Kikwete of Tanzania and coordinated by Dr. Kofi Annan and the Panel of Eminent African Personalities.
These were aptly named the National Dialogue and Reconciliation Agenda they being;
• Agenda No. 1: Cessation of Hostilities
• Agenda No. 2: Humanitarian Assistance
• Agenda No. 3: Resolving Political Crisis
• Agenda No.4: Long-Term Issues (Land reforms, unemployment, institutional and legal reforms, constitutional review et al)
The civil society played minimal and peripheral roles in the first 3 agenda items, but have gotten their feet in shaping the pursuance of the long term issues as articulated in Agenda Item No. IV. This is so being done by collecting data and generating information to purposefully influence the outcome. The most prominent role so far was being recognized as a Reference Group during the build up to the new constitution and the validating referendum. The civil society conducted civic education, voter education and mobilized people to vote during the referendum. Unlike in 2001/2 and 2005 civic education and referendum processes, this time the civil society did not produce the civic education reference materials such as the curriculum, manuals and guidebooks, this was done by the Committee of Experts on Constitutional Review (CoE).
The main arena of engagement has been parliament and the mass media. In this period, parliament has assumed a critical and central role as Kenyan laws are literally being re-written afresh starting with the New Constitution and Parliament has the sole authority to so do. The civil society has been intensely engaging the law makers on the various laws in the pipeline and anticipated ones with the intention of influencing debate on the floor of the house and thus develop desirable laws that will enhance democratic development.
In the current sealing the loopholes dispensation. The democratic governance is majorly being safeguarded and pursued through thematic commissions and the National Assembly. The civil society is left with observation and monitoring of the implementation. And my take on this is that, the civil society can do much more better that what it is doing for now. The question is how? My answer is not necessarily from shared tables with the ruling elite, but by walking together with and enhancing the capacity and role of communities in monitoring and being vigilant in all democratic and governance processes
It is important to note that the civil society was highly represented in the CoE at all levels of its management and staffing and this gave the CoE a lot of the most needed credibility.
Has the civil society learnt any lessons from 2007 and 2010?
Yes and No.
No, because the observation of the electioneering during referendum was also set-up late and a new outfit Kenya Election Observation Group (E-LOG) was formed by the same partners that formed KEDOF and K-DOP!
No because election observation is still even in the new formation being equated to voting and by extension so is considered realization democracy!
No, because the civil society are still in the miasma of that they are and should be part of the ruling elite (Kindly refer to my operational definition of the civil society above)
Yes, because E-LOG has definite leadership.
Yes, because E-LOG seems to be focused on observing more than one major election activity.
Yes, because E-LOG is already capacity building its partners and already preparing for the next General Election.
So what has the Civil Society been able to do (well) in and for transitional democracy in Kenya?
• Raised public knowledge on democracy
• Mobilised the public to participate in democratic processes
• Developed intellectually digestible literature on democracy
• Provided the thinking mechanism to intellectually secure democracy
• Prove it relevance and secure it space at all levels , including constitutional concessions to be involved
• Adapt and create new and strategic allies as need be
• Diffuse public tension
• Develop and or initiate grassroots structures.
What is yet to be done?
• Empowering the grassroot structures to effectively and continously engage from below on their own
• Creating a democracy philosophy among the masses
• Secure political space
• Continually engage the public on democratic matters
• Developing a national strategy to engage the ruling elite
• Develop and share different political scenarios continously
• Manage internal competition among themselves
• Sufficiently involve students unions and trade unions
Southern Sudan:
As I conclude am moved to remember that “… Each generation must discover its mission, fulfill it or betray it…” Frantz Fanon.
How has Southern Sudan so far faired in ushering in democracy?
Do you the Sudan young intelligentsia and civil society monitor and translate the impact of international politics on transitional democracy in Sudan considering the upcoming referendum as an important milestone?
Have you developed a scenario matrix and the mitigations you will undertake of the outcomes as will be treated by South Sudan, Darfur, Northern Sudan, Neighbours and the international order?
You are at an enviable position, because first impression can only made once!
Thank you and be blessed,
ndolo asasa Esq.
By ndolo asasa Esq.
Executive Coordinator, The Elimu Impact Trust
& A Member of Pioneers For Change Movement.
How has been the Kenyan Journey?
Women were first given national Identity cards in Kenya in 1979, 16 years after Kenya got independence!
In 1980 there were less than 20 organisations in Kenya pursuing the mandate of democracy and governance. The ones that were such bent were mainly of religious inclination, students’ organizations, lawyers’ caucuses and university dons. Right now there are more than 6,000 registered NGOs alone dealing with matters of governance, democracy, leadership and human rights made up of various persuasions and basis in their formation (really people groups)!
In this presentation I define the Civil Society as those organizations that are not state machinery or state formed but deals with issues that target making the life of their constituents/communities the life of respect and dignity. They (the CSOs) out of choice, do not use violence or any other barbaric style of engagement as a means attaining their goals. They maybe coordinated, scattered, local, national, international, registered or not registered.
Ladies and gentlemen, kindly let me give you a snap shot of democracy in transition in Kenya for the last few years;
On August 1st 1982, the Kenya Airforce carried out a coup that was thwarted by the Kenya Army. This was a violent expression of the dissatisfaction felt even in the disciplined forces on involvement of people in the management of their affairs in Kenya. Democracy was stifled, or at least the promise and hope for it. This coup brought to the for the role of intellectuals, students and dons in advocating the aspirations of the people, but as much it exposed the naivety of planning a democracy without the masses, a mass mobilized by fact of being informed. This fact, power of information, was not lost to the dominating forces too, and they went overdrive and sent the activists into exile, detention, silence, even graves and most important of all into a social re-engineering on enhancing democracy through what I call aggressive transition engagements! Many CSOs were formed abroad to agitate for democratic reforms and people sessions such as funerals, weddings and birthday parties became political mobilization and engagement forums.
In 1988, there was the infamous mlolongo voting that ushered in open rebellion from the political elite as exemplified by the resignation of Stanley Matiba from government. The religious institutions emboldened and became more vocal on securing of democratic space for Kenyans, the effect of the pressure groups started being felt as international development partners and allies expressed reservation or withheld their support. By early 1990s, the various forces; political elite and the civil society felt bold enough talk to each other and together to walk into the political arena and claim space. This was done by aggressively mobilizing the masses and holding political rallies. This took off with a lot of casualties on the side of the peoples groups in terms of people losing their jobs, careers, education, families, opportunities and even lives! But the people came out and came out again! The Civil Society had managed to bring on board the most important strategic partner in ensuring that a dictatorship would be systematically replaced with a democracy.
The rest happened so fast between 1992 and 2010 (did you hear that! 18 years was fast, very first indeed!!!) Multi-party was re-introduced, several draconian laws repealed, several elections held and 2 referendum on the new constitution conducted.
What and how did the Civil Society Engage?
1980’s and 1990’s: Securing space!
The Civil Society mostly engaged through generation of information and sharing it. Sometimes this was done clandestinely as was the case of Pambana and Mwakenya or sometimes overtly through registered organizations such as National Convention Executive Council (NCEC), Centre for Law and Research International (CLARION), Law Society of Kenya et al, religious pulpits, artistic performances and lecture snippets. This engagement was mainly confrontational with the powers that be. A lot of organizations were deregistered, people arrested/ killed/incarcerated and if lucky only threatened!
This served the purpose of raising awareness and building a critical mass of dedicated civil society workers. In addition it mobilized the people to understand that they were not having the best of governance and that they have a role to play. This phase de-mystified sirikali as opposed to serikali mentality .
It is important to note that it is within this period that the first two multi-party elections were held after independence and parliamentary opposition political party politics re-introduced in Kenya.
The biggest lesson that was learnt by the civil society during this period was that, the oppressive government was not as daft as it had portrayed itself. That there was need to engage the status quo with sufficient intellectual power and personnel. This informed the focus of seeking and processing definite local information, development of personnel and setting up of advocacy machinery structures as a key strategy the civil society roundly employed to secure and expand the democratic space being realized in the country.
During this period, the civil society concentrated using the mobilized masses to seek political and legal concessions. This was because, the CSOs noted that the government responded more favourably to mass actions and or threats of it more than it did to other stimuli used.
Politically, the opposition parties were the strategic allies of the civil society, though there was no formal or structured arrangement for this.
2000- 2005: Talking to them.
The Civil Society had learnt their interest may not be given the attention they deserve unless they had specific persons they could count on at the political table. It is during this time that it had by now been largely agreed that what Kenya need so as to be truly democratic was not just opening of space and political participation! That it would take structural and framework reconstruction of the country through a new constitution and that this would take the working in tandem of the state machinery, non-state actors and the political class.
It was during this period that, Daniel Toroitich arap Moi was exiting the political field and the civil society majorly rallied around a new political leaders with the hope that it would deliver a new political order (read democracy) as secured by a new constitution. This was the waterloo of many CSOs and a sobering moment for many! By fact that they had supported morally or otherwise the new government through the National Rainbow Coalition (NARC) and its affiliates, most CSOs were not able to critique the government because they technically or felt morally part of it! The CSOs lost to the government a lot of personnel they had painstakingly over time developed and built their capacities.
This exposed the CSOs soft underbelly that while pushing for transition in the government, they had not prepared themselves for internal and intra-sector transition. A lot of their thinkers, strategists, fundraisers, mobilisers, writers and all sorts of diligent workers were now either in government bureaucracy, parliament or the government’s political party now elite machinery. What’s more the donors also went with them!
Unarmed as they were by the 2002 elections and transition in government, the remainder of the civil society that was severely depleted of personnel and donor support embarked on recreating itself. This rebirth was a more organic, thematic and institutional civil society as compared to the majorly personality inspired civil society of pre-2002. The civil society was not able to threaten the government to any further shock submission actions due to mass action as amongst the best mobilisers and organizers of mass action were now in government and the civil society itself was considered by a sizeable public to be part of the government – had they not fervently supported it in the build up to the elections anyway? Remember Kenyans had just been declared the most hopeful people in the world! And the opposition party was considered morally and intellectually incapable of engaging the government of the day
The civil society did regain a lot of confidence from the public and donors by engaging in concerted efforts to keep the government on its toes on the democratic and good governance course. The target of the democratic governance advocacy was sharply focused on those that were formerly of the civil society but now in government. Data and information of targeted strategic government sectors were collected, processed and the said focused government officials placed under public scrutiny as judged by their past records and positions. Considering that the transition in government had now rendered clandestine and poster-communication redundant, the mass media during this time, became a core partner of the civil society in keeping the pressure on government to enhance democratic development. Thematic public discussions, public forums and individual leadership accountability at both the national level and community levels took centre stage as an engagement strategy for the civil society and the media.
The civil society now focused on seeking formal recognition and representation in government democracy processes such as reforming of the legal regime and the constitutional review. The CSOs also engaged in an unprecedented critiquing and production of sample laws and democracy policies for the government. These documents were occasionally passed on to the government through friendly Members of Parliament, senior bureaucrats, public forums or most often mass media discussions.
Civic and voter education in the build up the elections in 2002 and the referendum in 2005 played a very important in reconnecting and cementing the confidence of the people in the civil society again. Universality was rediscovered and greatly expressed by the civil society during these moments.
Important to note is that, the former civil society mandarins now in government either through election or appointment (and they were many!) were still being treated suspiciously by the veterans in government and the civil society no longer considered them as part of them (the civil society)
During this period the civil society did a lot of talking to the government, mass media and the public focusing on issues and the future (after all Moi Must go! Came and passed and now the moment of Yote Yawezekana was here). The engagement strategy for civil society that irreversibly moved from the streets alone to including the National Assembly floor, discussion tables and the mass media.
2005 – 2007: More Please.
In the build up to the 2005 referendum on Constitutional Review, the civil society managed to secure official recognition and space in this most important democratic development upto then. It had its representatives from various thematic formations forming part of the National Delegates Conference on Constitutional at Bomas of Kenya.
This period saw the civil society concentrate on demystifying elective and appointive leadership by getting the masses organized and ready to engage in democratic development. This was done through such vogue activities as setting up people groupings like Village Assemblies, Constituency Parliaments, Neighbourhood Assemblies, Peoples Parliaments and undertaking local social audits of leadership and governance.
Once again, the mass media was a critical and great ally of the civil society at both the local and national level.
Having noted that voting and the electoral process is key in ensuring democratic development, the civil society organized itself and undertook to monitor the 2005 referendum and 2007 elections as a common platform. This enhanced prudent use of the little resources available while reaping the maximum gains and also sharing of information and strategies so as not to be set up against each other by any competing factor especially the government.
Herein lay the problem! The previous elections having generally been conducted in somehow acceptable manner, and the civil society having increased its presence at the government table and in the political discourse, the Post-Election Violence (PEV) that followed the 2007 voting got the civil society largely by surprise. This (the unpreparedness) majorly happened because of;
i. The competing interests within the civil society saw a lot of time and energy being spent on crafting a common platform than in undertaking an objective pre-election observation preparing to effectively participate in the elections. While K-DOP had been in existence since 2005, in 2006 parallel efforts came into play to conduct the 2007 General Elections. The compromise effort that was KEDOF was finally commissioned in August 2007 after 1 year long back and forth discussions amongst various stakeholders. But it (KEDOF) was only to be operationalised in mid November 2007, with less than 6 weeks to go to the elections!
ii. Replacing prudence with trust.
Considering the steady increment of participation and involvement of the civil society in democratic and governance processes and with encouragement from the donor community, the civil society did not set up totally independent observation mechanisms of the electoral process. This was most exemplified by the sharing of an office building with the ECK and the supposed gentleman’s agreement to also have a common tallying centre! Maybe, just maybe there would have been no electoral dispute if a credible alternative tallying of votes by the civil society had been in place.
iii. Even with the formation and commissioning of KEDOF, there was a lot of mistrust between the formally parallel processes as was exemplified by failing to agree on definite leadership of KEDOF resulting in the first grand coalition where executive authority of the forum was shared by two different members of the formative processes and a donor appointed intermediary!
iv. Setting up of elaborate processes that were majorly bureaucratic and not exactly binding. KEDOF was programmatically led by 2 Co-Chairs but administratively and financially led by a donor appointed agency! Below these 3 executives there was the Strategic Board that was mainly made up Chief Executive Officers (CEOs) of partner organizations. They were supposed to be making final policy decisions for KEDOF, yet most of them – being CEOs had to always be going back to their organizations boards to get authorization to commit their institutions. This inexplicably delayed decision making. Below the Strategic Board (SB), there was the Programme Technical Board (PTB) which was made up of the relevant Finance and Project Officers from the said partner organizations. This further frustrated decision making because the membership were juniors of the SB members and so consultations had to be done not only at KEDOF but also at the organizations with the powers that be! But as if that is not enough, there was a Donor Reference Group that both the SB and Secretariat (represented by the CEO, Deputy CEO and the Donor-appointed Programme Management Unit (PMU) had to directly jointly and separately had to report to regularly! In the meantime Kenyans were killing each other!
v. Most civil society organizations had overt political inclinations.
2008 – 2010: Sealing the loopholes.
The 2007 PEV did burst the Kenya island of peace bubble. The shock of the brutality and intensity of the PEV saw Kenyans gladly welcome international facilitation to restore sanity. This effort was led by African Union (AU) under its Chair President John Kuffuor of Ghana and the Presiding Chair of the East Africa Community (EAC) President Jakaya Mrisho Kikwete of Tanzania and coordinated by Dr. Kofi Annan and the Panel of Eminent African Personalities.
These were aptly named the National Dialogue and Reconciliation Agenda they being;
• Agenda No. 1: Cessation of Hostilities
• Agenda No. 2: Humanitarian Assistance
• Agenda No. 3: Resolving Political Crisis
• Agenda No.4: Long-Term Issues (Land reforms, unemployment, institutional and legal reforms, constitutional review et al)
The civil society played minimal and peripheral roles in the first 3 agenda items, but have gotten their feet in shaping the pursuance of the long term issues as articulated in Agenda Item No. IV. This is so being done by collecting data and generating information to purposefully influence the outcome. The most prominent role so far was being recognized as a Reference Group during the build up to the new constitution and the validating referendum. The civil society conducted civic education, voter education and mobilized people to vote during the referendum. Unlike in 2001/2 and 2005 civic education and referendum processes, this time the civil society did not produce the civic education reference materials such as the curriculum, manuals and guidebooks, this was done by the Committee of Experts on Constitutional Review (CoE).
The main arena of engagement has been parliament and the mass media. In this period, parliament has assumed a critical and central role as Kenyan laws are literally being re-written afresh starting with the New Constitution and Parliament has the sole authority to so do. The civil society has been intensely engaging the law makers on the various laws in the pipeline and anticipated ones with the intention of influencing debate on the floor of the house and thus develop desirable laws that will enhance democratic development.
In the current sealing the loopholes dispensation. The democratic governance is majorly being safeguarded and pursued through thematic commissions and the National Assembly. The civil society is left with observation and monitoring of the implementation. And my take on this is that, the civil society can do much more better that what it is doing for now. The question is how? My answer is not necessarily from shared tables with the ruling elite, but by walking together with and enhancing the capacity and role of communities in monitoring and being vigilant in all democratic and governance processes
It is important to note that the civil society was highly represented in the CoE at all levels of its management and staffing and this gave the CoE a lot of the most needed credibility.
Has the civil society learnt any lessons from 2007 and 2010?
Yes and No.
No, because the observation of the electioneering during referendum was also set-up late and a new outfit Kenya Election Observation Group (E-LOG) was formed by the same partners that formed KEDOF and K-DOP!
No because election observation is still even in the new formation being equated to voting and by extension so is considered realization democracy!
No, because the civil society are still in the miasma of that they are and should be part of the ruling elite (Kindly refer to my operational definition of the civil society above)
Yes, because E-LOG has definite leadership.
Yes, because E-LOG seems to be focused on observing more than one major election activity.
Yes, because E-LOG is already capacity building its partners and already preparing for the next General Election.
So what has the Civil Society been able to do (well) in and for transitional democracy in Kenya?
• Raised public knowledge on democracy
• Mobilised the public to participate in democratic processes
• Developed intellectually digestible literature on democracy
• Provided the thinking mechanism to intellectually secure democracy
• Prove it relevance and secure it space at all levels , including constitutional concessions to be involved
• Adapt and create new and strategic allies as need be
• Diffuse public tension
• Develop and or initiate grassroots structures.
What is yet to be done?
• Empowering the grassroot structures to effectively and continously engage from below on their own
• Creating a democracy philosophy among the masses
• Secure political space
• Continually engage the public on democratic matters
• Developing a national strategy to engage the ruling elite
• Develop and share different political scenarios continously
• Manage internal competition among themselves
• Sufficiently involve students unions and trade unions
Southern Sudan:
As I conclude am moved to remember that “… Each generation must discover its mission, fulfill it or betray it…” Frantz Fanon.
How has Southern Sudan so far faired in ushering in democracy?
Do you the Sudan young intelligentsia and civil society monitor and translate the impact of international politics on transitional democracy in Sudan considering the upcoming referendum as an important milestone?
Have you developed a scenario matrix and the mitigations you will undertake of the outcomes as will be treated by South Sudan, Darfur, Northern Sudan, Neighbours and the international order?
You are at an enviable position, because first impression can only made once!
Thank you and be blessed,
ndolo asasa Esq.
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