TRENDS IN CIVIC SPACE IN KENYA: AN ASSESSMENT
Full report Trends in Civil Space in Kenya
The promulgation of the Constitution of Kenya 2010 on 27th of August 2010 was a watershed moment in Kenya as it established the legal foundation for protecting civic space, providing a framework for litigation in case of violations. With respect to human rights and the civic space, the new constitution of Kenya (2010) identified the freedom of expression, association and assembly as the cornerstones of civic space and entrenched them in articles 33, 36 and 37. Article 2 (5) of the constitution domesticates international law, treaty or convention ratified by Kenya.
Kenya’s new constitution (2010) has been praised as one of the most progressive globally. However, trends and experiences over the last couple of years point to an onslaught on the civic space where the state has both overtly and in subtle ways constrained the civic and democratic space through punitive and prohibitive governance frameworks targeting individuals, Public Benefits Organizations (PBOs), Faith Organizations (FBOs), media organizations, trade unions, Constitutional Commissions among other independent state and non-state actors.
These observations led the Defenders Coalition (DC) to commission this study to assess the public perceptions on the trends in the civic space in Kenya. The findings of this study will inform strategic advocacy and capacity-building initiatives, for relevant stakeholders to address repressive norms, laws and regulations and advocate for the implementation of enabling legislation and policies that support the work of human rights defenders (HRDs), civil society organizations (CSOs), community-based organization (CBOS) and the media in protecting the civic space.
This study employed two broad methodologies; secondary review of the laws and legal frameworks safeguarding the civic space in Kenya; and primary data comprising a survey with members of the public and key informant interviews with key actors, duty bearers and experts on the trends in civic space in Kenya after the promulgation of the new constitution. Secondary review was premised on the fact that previous studies suggest that legislative, policy, and regulatory frameworks have a great impact on the civic space.
This report outlines the findings from this study covering the broad civic space parameters, namely, freedom of association, freedom of expression, freedom of assembly, right to public participation, inclusion and non-discrimination and the rule of law and respect for human rights.
The results from this study showed that over half (54%) of the respondents rated the conditions of the freedom of association between bad and very bad. Only 23% of the population rated Kenya’s freedom of association as either good or very good. Comparing the immediate post 2010 constitution with the last two years of the Kenya Kwanza regime, majority of the study participants observed that the freedom of asscociation had severely deteriorated in the latter period. This is was in contradistinction to the immediate post 2010 constitution where majority of the population observed an improvement in the status of the freedom of association.
Overall 55% described the general status of the freedom of expression in Kenya as either bad or very bad. Only 25% stated freedom of expression to be either good or very good. 78% of the population stated that the general conditions of freedom of expression had improved after the promulgation of the New constitution. However, (68%) stated that the general conditions on freedom of expression had deteriorated in the last two years of the Kenya Kwanza regime.
With regard to the freedom of assembly, majority (56%) of the respondents characterized it as either bad or very bad. Less than a quarter of the respondents (24%) stated that the conditions of the freedom of assembly were either good or very good. Comparing the immediate post 2010 constitution period with the last two years of the Kenya Kwanza regime, (65%) of the respondents stated that the conditions on the freedom of assembly had improved in the former period. By contrast, 69% stated that the conditions had deteriorated. This was a clear reversal in the perception of the immediate aftermath of the promulgation of the new constitution.
The status of inclusion and nondiscrimination was rated as bad or very bad by majority (58%) of respondents. Only 18% rated the conditions as either good or very good. 58% stated that the conditions had improved after the promulgation of the new constitution while 61% stated that the conditions for non-discrimination and inclusion had deteriorated during the Kenya Kwanza regime, implying a reversal of the gains made after the promulgation of the new constitution. Among the people who were discriminated against or faced exclusion, youth, persons from particular ethnicities and anti-government groups were ranked highest.
Public participation was also ranked poorly by majority of the study population. A slender majority (53%) stated that the conditions of public participation in Kenya were either bad or very bad. Only 27% rated the conditions as good and very good. 62% of the respondents observed that the period immediately after the promulgation of the new constitution was marked by an improvement in the conditions of public participation. By contrast, majority (61%) observed that the conditions on public participation had deteriorated.
Overall majority (59%) of the respondents observed that the status of human rights and the rule of law was either bad or very bad. Only 21% thought the status was good and 19% felt that the status was neither good nor bad. Over 71% of the respondents stated that the status of human rights and rule of law had deteriorated in the past two years. This contrasted with the 63% of the respondents who stated that the conditions had improved in the immediate aftermath of the promulgation of the new constitution.
While the overall picture points to a general shrinking civic space, the study also revealed regional and generational differences. Regionally, the counties of Nakuru, Nairobi, Mombasa and Meru had the highest numbers of participants rating the different civic space parameters very poorly. Kericho county however, was the exception as most of population here rated the civic space parameters favorably, indicating the influence of political party inclination in the assessment of civic space trends. With respect to age and educational status, the younger and more educated respondents had higher odds of rating the civic space parameters poorly.
These findings have several implications for the status of the civic space in Kenya. The findings indicate a governance deficit: the shrinking civic space correlates with increased protest culture and declining trust in institutions. There was increased securitization of governance: the police and other regulatory agencies were regularly used to conduct digital surveillance, and to suppress dissent. The independence of the judiciary continued to be undermined when the executive continuously disregarded rulings hence normalizing impunity and diminishing the rule of the law. The exclusion of marginalized groups such as the youth and women deepened structural injustice.
The findings from this study thus confirmed the results from previous studies that concluded that the promissory of the new order has not been fully realized and that experiences over the last couple of years pointed to an onslaught on the civic space where the state had both overtly and in subtle ways constrained the civic and democratic space through punitive and prohibitive governance frameworks. The CIVICUS monitoring index for instance, downgraded Kenya’s civic space from obstructed to repressed. Consequently the study makes a number of recommendations that include the following:
- That the state undertakes a through audit of the implementation of the 2010 constitution to determine the extent to which the relevant policies, laws and institutions have been enacted to safeguard the civic space.
- That the civil society organizations continue to play their role in holding the government to account on the implementation of the new constitution and to explore alternative funding mechanisms to enable them to continually conduct their activities as opposed to the current time-bound and projectivized programs
- That the international community provide long term financial and technical support to CSOs. Moreover they should aspire to balance their support between the quest for the protection for civic and trade interests.
- The DC should invest in the building of a resilient ecosystem of Human rights defenders (HRDs) by strengthening its institutional capacity, enhancing legal and psychosocial support systems and continuous improvement of digital and physical security.
- HRDs and the general population ought to acquaint themselves with the laws of the land to avoid contravening them and claiming persecution.
- The media should continue to advocate for their freedom and guard against censorship by the state.
Full report Trends in Civil Space in Kenya