Thursday, November 14, 2013 - BY NDUNGU WAINAINA
The
primary focus of the modern state is the interests, concerns and needs
of citizens. It must ensure respect for and upholding fundamental
freedoms and rights including their associational life while
guaranteeing their security.
Therefore, Kenya government attempts at introducing restrictive laws on media and civil society space are completely horrendous and opposite of the 21st century state mandate.
These appalling laws with devastating impact create hostile environment for civil society and media through systematic clampdown and criminalizing on dissent, democratic constitutional freedoms and associational life of the Kenyan people. This calls into serious question, Jubilee administration’s self-definition of being a democratic regime while its affront is clear.
The Jubilee regime spirited legislations constraining are enacted purposefully to control public space. At the heart of the laws is a broader political strategy to decapitate, control and repress civic expression and agency.
This is not surprising looking at unfortunately Kenya’s latest most celebrated friends like Zimbabwe, China, Russia, Uganda, Rwanda, and Ethiopia.
Socio-political and economic progress depends on both a robust state and an active civil society with effective levels of civic engagement.
A critical factor for civil society is progressive legal and regulatory framework creating an enabling environment for its establishment and space to function in public life independently.
Restrictive laws are incompatible with 1998 UN Declaration on international norms, standards and principles on human rights defenders.
In September 2013, United Nations Human Rights Council adopted resolution entitled ‘Civil Society Space’, expressing deep concern at the use and misuse of laws on NGO sector registration and funding. The resolution calls on the United Nations to treat the creation and protection of civil society space as a global priority.
The UN Secretary General Ban Ki-Moon stated, ‘We are seeing a rise in laws that restrict the activities of human rights defenders.
We are seeing new ways to impede their work – through over-reaching anti-terrorism and national security legislation; measures relating to public morals, or defamation; laws requiring registration and funding of associations; and new rules regulating Internet access”.
He called on governments to ‘create and maintain, in law and in practice, a safe and enabling environment in which civil society can operate free from hindrance and insecurity’.
Any form of regulations that the law in general and legislation in particular, must comply with the criteria of reason, generality, consistency, equality, certainty and fair process.
The Constitution of Kenya 2010 is the supreme law of the Republic. It shifted the ground. The cornerstone of democracy in Kenya is the Bill of Rights.
Legislations flowing from the Constitution relating to access to information and civic engagement give effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights and safeguard freedoms.
The civil society formations were drivers and ground troops through intellectualism and activism in dismantling authoritarian one-party tyranny.
It ushered in an era of hope and optimism as Moi’s autocracy including the notorious YK92 and ‘Jeshi la Mzee’ gang took salutary steps towards accepting pluralism, political participation, and relinquishing absolute power over state apparatus.
Civil society’s role expanded from the sphere of political and civil liberties to play an integral role of creating a more inclusive participatory accountable development State.
The horrendous error of attempting to return the Moi era control of the civil society sector and the media indicates a horrifying return of autocratic practices retarding democratization progress.
Restrictive laws on civil society programming and funding are nothing but a semblance of the apartheid era’s National Welfare Act of 1978 and the Fundraising Act of 1978.
These pieces of legislation provided a legal framework through which the apartheid state sought to control, monitor, suppress and criminalize civil society.
The establishment of government oversight agency to regulate the NGOs sector creates intrusive supervisory mechanisms. These regulations have serious implications on the democratic consolidation in the country.
Kenya’s democratic transition remains incomplete. It is now clear that pluralistic policies exist alongside persistent authoritarian practices despite progressive constitution.
The country is still an electoral democracy and not a liberal democracy, which guarantees both legally and in practices, of core human freedoms.
Until these fundamental rights are fully operationalized, Kenya’s democracy, and largely the rest of Africa, will remain hostage to political elites in control of state apparatus.
This requires a vibrant and free civil society with capacity and space to transform and expand political and human freedoms, mobilization of popular participation in economic and political development, and social well-being.
The civil society regulations law should breathe life to the freedoms in the Constitution. The regulations should create an enabling self-regulatory environment for civil society organizations with minimal state interference, if any. The regulatory framework should establish a progressive public space in which state–civil society relations are managed constructively.
Meanwhile media should have an independent self-regulatory framework with a strong oversight and dispute resolution mechanisms as per the Constitution.
Wainaina is Executive Director, International Center for Policy and Conflict: nwainaina@icpcafrica.org
Therefore, Kenya government attempts at introducing restrictive laws on media and civil society space are completely horrendous and opposite of the 21st century state mandate.
These appalling laws with devastating impact create hostile environment for civil society and media through systematic clampdown and criminalizing on dissent, democratic constitutional freedoms and associational life of the Kenyan people. This calls into serious question, Jubilee administration’s self-definition of being a democratic regime while its affront is clear.
The Jubilee regime spirited legislations constraining are enacted purposefully to control public space. At the heart of the laws is a broader political strategy to decapitate, control and repress civic expression and agency.
This is not surprising looking at unfortunately Kenya’s latest most celebrated friends like Zimbabwe, China, Russia, Uganda, Rwanda, and Ethiopia.
Socio-political and economic progress depends on both a robust state and an active civil society with effective levels of civic engagement.
A critical factor for civil society is progressive legal and regulatory framework creating an enabling environment for its establishment and space to function in public life independently.
Restrictive laws are incompatible with 1998 UN Declaration on international norms, standards and principles on human rights defenders.
In September 2013, United Nations Human Rights Council adopted resolution entitled ‘Civil Society Space’, expressing deep concern at the use and misuse of laws on NGO sector registration and funding. The resolution calls on the United Nations to treat the creation and protection of civil society space as a global priority.
The UN Secretary General Ban Ki-Moon stated, ‘We are seeing a rise in laws that restrict the activities of human rights defenders.
We are seeing new ways to impede their work – through over-reaching anti-terrorism and national security legislation; measures relating to public morals, or defamation; laws requiring registration and funding of associations; and new rules regulating Internet access”.
He called on governments to ‘create and maintain, in law and in practice, a safe and enabling environment in which civil society can operate free from hindrance and insecurity’.
Any form of regulations that the law in general and legislation in particular, must comply with the criteria of reason, generality, consistency, equality, certainty and fair process.
The Constitution of Kenya 2010 is the supreme law of the Republic. It shifted the ground. The cornerstone of democracy in Kenya is the Bill of Rights.
Legislations flowing from the Constitution relating to access to information and civic engagement give effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights and safeguard freedoms.
The civil society formations were drivers and ground troops through intellectualism and activism in dismantling authoritarian one-party tyranny.
It ushered in an era of hope and optimism as Moi’s autocracy including the notorious YK92 and ‘Jeshi la Mzee’ gang took salutary steps towards accepting pluralism, political participation, and relinquishing absolute power over state apparatus.
Civil society’s role expanded from the sphere of political and civil liberties to play an integral role of creating a more inclusive participatory accountable development State.
The horrendous error of attempting to return the Moi era control of the civil society sector and the media indicates a horrifying return of autocratic practices retarding democratization progress.
Restrictive laws on civil society programming and funding are nothing but a semblance of the apartheid era’s National Welfare Act of 1978 and the Fundraising Act of 1978.
These pieces of legislation provided a legal framework through which the apartheid state sought to control, monitor, suppress and criminalize civil society.
The establishment of government oversight agency to regulate the NGOs sector creates intrusive supervisory mechanisms. These regulations have serious implications on the democratic consolidation in the country.
Kenya’s democratic transition remains incomplete. It is now clear that pluralistic policies exist alongside persistent authoritarian practices despite progressive constitution.
The country is still an electoral democracy and not a liberal democracy, which guarantees both legally and in practices, of core human freedoms.
Until these fundamental rights are fully operationalized, Kenya’s democracy, and largely the rest of Africa, will remain hostage to political elites in control of state apparatus.
This requires a vibrant and free civil society with capacity and space to transform and expand political and human freedoms, mobilization of popular participation in economic and political development, and social well-being.
The civil society regulations law should breathe life to the freedoms in the Constitution. The regulations should create an enabling self-regulatory environment for civil society organizations with minimal state interference, if any. The regulatory framework should establish a progressive public space in which state–civil society relations are managed constructively.
Meanwhile media should have an independent self-regulatory framework with a strong oversight and dispute resolution mechanisms as per the Constitution.
Wainaina is Executive Director, International Center for Policy and Conflict: nwainaina@icpcafrica.org
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