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Constitution of Kenya Review Commission |
By Oduor Ong'wen
15-09-2001
Conceptual Problematiques
Mention the word "civil society" and what comes to the mind of many is a nongovernmental organization (NGO). Too often, NGOs have been seen as - and have sometimes claimed to be - synonymous with civil society. It is therefore important to interrogate the concept of civil society if for nothing else other than situating their role in the constitutional dispensation. Dominant analyses of the concept of civil society are reflective of the paradigmatic muddle of the globalised world order. Nonetheless, two major streams are vaguely discernible: the one that de-
emphasizes class in favor of the concept of citizenship and the other that argues that civil society is not homogenous and thus reflects the class tensions that are the stuff that all political, economic and political contests are made of. The latter simply affirms Karl Marx's assertion that that all struggles that have hitherto existed are class struggles.
Ideological position notwithstanding, some common understanding of "civil society" as a concept could be identified, needless to say at the risk of oversimplifying this complex phenomenon. Below are some of the common characteristics of the civil society formations:
* They constitute the non-profit organized formations between the family and the state.
* They are a product of historical development of the state a product of sociopolitical contests around the state.
* They are not apolitical. They have strong political views and positions.
* They are far from being homogenous but reflective of class, gender, cultural and other social differentiation within the society.
* Some sectors of the civil society like NGOs, religious organizations, trade unions etc. are globalised while others like welfare associations, neighbourhood associations and pressure groups with limited political or social agenda are national or sub-national.
* While there has been a misleading tendency to dichotomise the state and civil society, their mutual relationship is marked by conflict and confrontation, cooperation and dialogue, co-option, engagement, and go-stop-
go alliances.
* They eschew violence in all its forms.
Socio-Economic Context For Civil Society Development
The history and political economy that structures the reality of civil society in Africa and elsewhere in the developing world differs fundamentally from that of Africa. To understand the full implications of that difference, it is useful to classify the major differences identified by Southern scholars and activists in the course of their work (see summary in Table 1 below). This observation does not, however, ignore the reality of replication of Northern civil society culture and forms of organizations in some organizations of the civil society the South.
Table 1: The Socio-economic context of Civil Society Development.
Northern
Southern
Imperial history
Colonial history
Strong civil society
Weak civil society
Multi-party tradition
Single-party history
Strong tradition of organised labour
Weak tradition of organised labour
Strong social welfare entitlement
Weak social welfare entitlement
Environment for conspicuous
Environment as a basic need
consumption/leisure
Limiting the control of nature
Controlling the limits of nature
Wider or extended family to minimise
Capital insurance against risks
risk
Voluntarism
Patronage
Increasing capital savings
Increasing revenue expenditure
Funds internally generated and/or
Funds externally negotiated
managed
Autocratic culture
Management culture
Personally set priorities
Institutionally set priorities
Group negotiations
Line management
Technology as an imported product
Technology as part of production
Responds to internationally set agenda process
Involved in defining national agenda
Civil Society as the Germ for Social Movement
The fact that people themselves need the space and environment to develop and create their own organizations and movements by which they can express their needs and wants as well as negotiate with the state cannot be gainsaid. Without this counterweight, there is no way the change agents within a society can be able to make adjustments necessary to the generation of a demand-led social or political transformation. Africa - not least Kenya - has experience of grassroots mobilization, which played a decisive role in the struggles for independence. The newly independent regimes were so aware of this role and its power that they deliberately set out to suppress or co-opt it, with a great deal of success. Today, as more and more people get disillusioned with the performance of the post-
independence leadership, conditions are changing; the leadership is willingly or unwillingly opening up the space for social organization, and the people are promptly occupying that space. This needs to be encouraged and supported.
The task of grassroots organizations is to build up the capacity of the people themselves to become decisive actors in determining their own multiplicity of agenda. They are the key to people-centered social and political development and, therefore, to a demand-driven socio-political re-
engineering. The ultimate goal is to generate a level of organization that is capable of ensuring that both national governments and the international community serve as instruments of the people, and are accountable to them. Since these conditions are currently absent in our societies, the attempt to create them comes into direct conflict with the status quo.
Grassroots organizations or social movements do not arise spontaneously, however. A key role is always played by change agents, often "outsiders" who have volunteered to come and work with the communities, generally for political or religious reasons. Often, they are members of the community who have returned after having been exposed to outside world, possibly through access to secondary or tertiary education, perhaps through participation in trade unions or political parties. What is always found is a person whose exposure to the outside has provided her or him with a vision and a drive, which allow that person to be seen by the community as a valid inter-locutor with the outside world - including government, other CSOs and service agencies. Table 2 below identifies elements that distinguish grassroots organizations from service organizations. They are not necessarily mutually exclusive. In fact both types are necessary and complementary elements to socio-political development.
Table 2: Comparative characteristics (a typology) of social Movements and Service NGOs
Social Movements or grassroots organisations
Service Organisations
Community-based formations
Professional organizations
Process-focused
Product-focused
Building blocks of civil society
Operational structures of civil
Local culture
society
Mainly lack any form of training
International culture
Poor, marginalized
Highly trained
Representative
Middle class
Interest-focused
Non-representative
Social-base policy
Issue-focused
Responsive to society
Boards of directors
Key actors are activists
Responsive to funding source
Devolved decision-making
Key personnel are professionals
Ideological in practice
Centralized decision-making
Single constituencies
Ideological in theory
Legitimacy struggle
base
on successful
Multiple constituencies Legitimacy based on negotiating a product with the fonder, and generating a result
Given the foregoing typology, it is evident that organizations of the civil society operate in permanent internal conflict with regard to balancing community focus with professionalism. As Table 3 below shows, there is always either a bias towards the community or towards the donor. The ideal situation, seldom reached, is to be the intermediary, the negotiator. Given the complexity of needs, roles, and specific political demands, there is no single model of civil society operation.
Table 3: Criteria for typology of CSOs
Oriented to serving community
Oriented to serving donor/contractor
>
Process-focused
>
Output-focused
>
Integrated development
>
Single-sector development
>
Social reproduction
>
Project delivery/implementation
>
Tension with donors over priorities
>
Donor-driven priorities
>
Inner commitment to social mission
>
Mission changes according to donor
preferences
>
Long-term vision
>
Short-term focus on project cycle
>
Class-focused
>
Issue-focused
>
Target group participates in policy
>
Policy made by directors and managers
making
>
Work for the poor
>
Work with CBOs and communities
>
Fail to recognise problems in their
directly
nature and work
>
Recognise inherent nature of
>
Emphasis on compatibility with
contradictions with target groups
government or private sector
>
People-driven, emphasis on
>
Focus on institution building for self
commitment and service
>
Positively disposed towards
>
Focus on institution building for others
government and bilaterals
>
Wary of government and bilateral
>
Seeking money from donors
funding
>
Emphasise role of secretariat staff
>
Seeking partnership with donors
>
Rewards linked to meeting project
>
Emphasise the role of field workers and
targets
community mobilisers
>
Rewards linked to responsiveness to
>
Upward-only accountability
community initiatives
>
Downward and upward accountability
Citizens As Custodians Of Governance
More than 45 years ago, T.H. Marshall dwelled on the distinction between political, civil and economic aspects of citizenship. He averred that the civil component of citizenship comprises the rights necessary for individual freedom, which in turn consist of liberty of persons, freedom of speech, thought and faith, the right to own property and to conclude contracts.3 To these can be added the right to justice. The political component of citizenship is considered to be the right to participate in the exercise of political choices and power as a member of the body invested with political authority or an elector of members of such a body. Finally, Marshall's definition of citizenship includes the right to a modicum of economic welfare and security and the right to share fully in the social heritage and live the life of a civilized person according to the standards prevailing in the given society. However, the realm of citizenship is not limited to rights only, but also imposes responsibilities and obligations. While the state is often more than willing to remind citizens of their responsibilities and obligations, the rights and freedom are, in most cases, extracted from it only after a long struggle.
Self-organization of citizens reflects the need for diverse forms of associational life that are broad-based and indigenous to their respective societies. It ought to be borne in mind that this associational life cannot be fully realized without formal organization based on shared values and a sense of mission. The growth of social movements or civil society is thus a consequence of associational life motivated by the need to enforce the rights and freedoms while negotiating responsibilities and obligations in return. In modem societies, these negotiations and struggles are conducted within constitutional frameworks. A constitution is, thus, seen as covenant that binds the citizenry on the one hand to be loyal to the polity, discharge its obligations and responsibilities as well as periodically gives legitimacy to the state. The state, on its part, is required by the constitution to not only guarantee the rights and freedoms of the citizen - from the right to life and security to all freedoms. It is also under obligation to prevent one citizen or groups of citizens from adversely interfering with the rights of other citizens. More importantly, the constitution provides the framework for the resolution of tensions and conflicts arising out of the inability of either party to discharge their part of the covenant.
As states have grown into complex and intimidating entities, they have not only become difficult for the majority of the citizens to understand, but also alienated from them. It is therefore, through their social organizations that they can hope to engage the state. Constitutions can only provide a legal and political framework for good governance. They, however, cannot guarantee good governance. Neither do political regimes confer or guarantee good governance, their having been popularly elected notwithstanding. Only citizens in the realm of associational life within civil society can, through a protracted struggle and continuous bargain, guarantee the establishment of structures and institutions of good governance and ensure that such institutions remain pillars of good governance.
The state gives scant recognition to the citizen as an individual. So it is through associational life or social movement that the citizen gets that recognition. This flies in the face of the arguments of Hobbes and Locke that social organization was a social contract between individuals who possessed certain natural rights with the state being overseer and arbiter of the contract. The inference here is, therefore, that citizenship and state are in constant conflict and at the same time mutually supportive engagement. The civil society becomes the vehicle for the citizens to articulate their "perfect rights with defective duties." They also help citizens not only understand but more importantly, fulfill their obligations. They therefore occupy a vital link between the state and the individual citizen. A fundamental constitutional function.
Civil Society and Self- Governance
Self-governance, as an alternative to state governance, is at the center of paradigm shift that has recently preoccupied political discourse. Under the new paradigm, policy formulation, policy enactment and policy implementation are no longer seen as the preserve of the state but a corporate project where the state is just one of the actors. Self-
governance allows active participation of various sectors of the society in choosing development strategies and determining political direction. It, therefore, implies multi-faceted process of decentralization of development responsibilities from the central government as follows:
* Dispersion to local communities of responsibility to choose development projects and to provide social services.
* Enlargement of resources allotted to communities.
* Constriction of the role and power of public officials to those tasks necessary to manage and carry out their official
* Protection of and provision of policy and legal frameworks for voluntary groups organized for social, communal, occupational, religious, professional, labour etc. to optimize their operations.
Self-governance under a strong civil society is central to sustainable development. Evidence from empirical research has demonstrated that self-
governance is a better means to successful social development especially because social capital or civic engagement is capable of diminishing poverty, improving health and education, inhibiting crime, boosting economic productivity, fostering better national governance and leading to enhanced social and human development. In order to achieve this self-
governance, civil society must first mobilize and sustain support for formal and informal institutions that bolster the culturally supported standards of right and wrong, proper and improper, normal and abnormal. As the constitution addresses fundamental issues of development, the role of civil society is spearheading self-governance becomes difficult to overlook.
Civil Society And Civic Education
One incontestable fact is that education is not only a right but also central to enjoying other rights and freedoms enshrined in the Constitution and other instruments. Indeed it is a duty to self to ensure that one is educated and the state is equally under obligation to provide adequate facilities and resources to ensure universal formal and informal education. Two dangers of uneducated citizenry stick out. One, the less one is educated the more vulnerable one is to manipulation. Two, an uneducated citizenry's skills are underdeveloped, thereby making the citizenry less competitive.6 Given their proximity to the citizenry, it is natural that civil society formations are leading actors in citizens' education, particularly civic education. There is, no doubt that trade unions are the best placed agents for worker education. Equally one cannot fault the role of women groups m raising awareness of women and girls concerning women's rights.
A good constitution, needless to state, must not only guarantee the right of civic education but also spell out measures of protecting providers of such education.