Protecting civic space against #NGOMuzzle laws in Kenya

We said that Kenyans had enacted the best and most progressive Constitution in the world. The struggle for this Constitution was by the civil society….”Hon. Fatuma Ali, MP

“Regulation and accountability is important but let us … not take away the freedom and space within which the public benefit organisations act and operate.”Hon. Oyugi, MP

“Alongside many of my colleagues here were the alumni of the civil society at one time…as we are trying to streamline those that are very wayward, we may end up suffocating the NGOs…” Hon. Kabando wa Kabando, MP

SUMMARY

Written jointly by Irũngũ Houghton and Stephanie Muchai [1], this article captures the background and events of November 2013 in Kenya. A set of thirteen amendments to the Public Benefits Organisations Act 2013 were unexpectedly brought to the National Assembly. If they had passed, they would have fundamentally affected civic space, democracy and development. It offers lessons and reflections on the state of governance and civil society in Kenya and the challenges of protecting and advancing fundamental freedoms within a new constitutional order.

BACKGROUND      

Post independent governments in Kenya systemically violated human rights and heavily curtailed freedoms of assembly, association and expression in particular. Members of civil society were systemically harassed, intimidated, tortured and killed for attempting to exercise these rights and pierce secrecy, corruption and nepotism veils.[2] Civil society organisations who attempted to research, advocate or support communities to advocate in the public interest were attacked, banned or de-registered by state agents on trumped up charges.

Among others, two critical moments mark a turning point in this ugly side of Kenya’s history. They are; the election of a liberal democratic Government in 2003 and the promulgation of a new constitution in August 2010.[3] This Constitution contains one of the world’s most comprehensive and visionary Bill of Rights which among other rights, guarantees freedoms of assembly, association and expression.

The adoption of a new constitution offered a re-set or re-boot button for the country. The PBO Sector was not exempt from this. Regulated by the NGO Coordination Act (1991) and a Sessional Paper (2006), the last two decades have seen the coordination of the sector atrophy under the weight of reduced funding, a weak apex body in the Kenya National Council of NGOs and its splinter bodies, growth of regional and sectoral networks, lack of public accountability and divisions between PBO actors. [4]

Among numerous attempts by the Government and PBOs to bring vision and effective leadership to the sector, several PBOs came together to form the CSO Reference Group to work towards the development and implementation of a legal and regulatory framework for organisations that do public benefit work[5]. This initiative sought to improve organisational accountability, internal governance and transparency. The Public Benefits Organisations bill sponsored by Member of Parliament Hon Sophie Abdi Noor [6] brought focus to all the formations seeking to transform the sector including the NGO Coordination Board, Government NGO Coordination Bureau, the NGO Council(s) and other various networks. [7]

While the PBO Act received Presidential assent by Mwai Kibaki in 2013, it is yet to be operationalised. Despite the stated aspiration of the Jubilee manifesto[8] to manage the State’s relationship with the PBO sector in accordance with internationally recognized best practices, the Cabinet Secretary has declined for over a year to announce the commencement of the Act. A central consequence of this is that the sector, state or the public cannot apply the regulatory and accountability framework contained in the Act. The sector, state and the public are in legal limbo.

WHAT HAPPENED?

Thirteen proposed amendments to the PBO Act were published in the omnibus Statue Law (Miscellaneous Amendments) Bill 2013 on Friday 1st November 2013.[9] This was met with disbelief within and outside of the PBO sector. The amendments signaled an intention to violate constitutional protections of freedom of association, [10]Sessional Paper on NGOs (2006),[11] the Jubilee Manifesto (2012)[12] and the Public Benefits Organisations Act (2013).[13]

Surprisingly, despite news coverage of the published bill in the People newspaper, most Members of Parliament (MPs) were initially unaware of the significance of the entire Bill for 49 laws already enacted by Parliament. On the other hand, those familiar with the Bill emphatically declared that the Jubilee majority in Parliament would pass this law regardless of any form of opposition from the PBO sector. Meeting for the first time on 7th November 2013, members of the CSO Reference Group resolved to raise public awareness, open dialogue with public officials and resist the draconian legislation.

How was the bill defeated?

The CSO reference Group met regularly from 7th November through to 6th December 2013. These meetings regularly attracted upwards of 50 representatives of development, human rights and governance PBOs. Both national and international PBOs attended each of the meetings. Indeed, that the Bill had produced such unity across such diversity must have been one of the most remarkable unintended impacts of the Bill. Four major strategies were deployed by different working groups; research, representation, media engagement and public street action.

A key pillar in the messaging around the Bill was derived from two impact assessments carried out by the CSO Reference Group and Health NGOs Network (HENNET).[14] The documents demonstrated that the proposed amendments to the PBO Act were set to cripple 8,260 organisations, endanger Kshs 80 billion in annual development assistance and lead to the entrenchment of 250,000 employees most of whom are primarily Kenyans. More broadly, without any alternative financing strategy by the Government, the bill would shut overnight hundreds of thousands of clinics, schools, housing, water projects, civic education and legal aid programmes. In the health sector alone, it was estimated that 47% of health funding would be drastically cut. 20 million Kenyans would lose access to basic health care. 6.8 million people would no longer have facilities for HIV testing and the 1 million Kenyans on ARV treatment would be at serious risk.

This analysis proved compelling particularly for those MPs drawn from constituencies with high poverty incidence particularly Rift Valley, Coast, Nyanza and North Eastern. MPs attributed 25% of the non-formal education in Garissa and 90% of the water-points in Ijara, northern Kenya to PBOs. To quote one of the Jubilee MPs, “this Bill is parliamentary suicide for us.” The Coast, Nyanza and North Eastern generally voted for the opposition CORD. It could not have escaped Jubilee political strategists that to deny largely opposition areas development assistance, would be to harden a future voter base against it in future.

Over the four weeks, members of the CSO Reference Group sought out or were sought by public officials from the Kenyan Executive, the National Assembly, Senate and Development Partners. In the National Assembly, both CORD and Jubilee MPs were informed on the importance of the Amendment bill. An analysis of the Assembly by the CSO Reference Group, revealed that no less than a third of the MPs in Parliament were former employees or beneficiaries of PBOs. These meetings were a key contributor to the rejection of the Bill.

Invoking the National Assembly Standing Orders, the Clerk invited public input on the bill. Several organisations submitted petitions calling for the rejection of the amendments. On the morning of 25th November, by invitation only, a single opportunity was offered for organisations to appear before the Justice and Legal Affairs Committee. Appearing before the Committee, PBO leaders and the Commission for the Implementation of the Commission pressed the Committee to withdraw the Miscellaneous Amendments altogether or drastically amend them. They argued that the Amendments would substantive changes to existing laws, were being rushed through National Assembly and were, in the case of the PBO Act amendments, anti-developmental.

Like the representation work, PBOs worked together across agencies to coordinate mass and new media work. A key pillar of this work was the publication of a petition for citizens to sign their opposition to the bill. The petition was launched in the city center marking the start of a public procession on 14th November 2013. The petition was also uploaded online to capture wider audiences. In total, 17,170 people had signed the petition online or in person within a week. The signatories came from a various counties most notably Nairobi, Kisumu, Siaya, Machakos, Makueni and Kitui. On 21st November, the petition was received in the National Assembly by Hon Members Gladys Wanga, John Mbadi and Keynan Adan among others. Additionally, 1,500 leaflets were circulated to MPs and members of the public highlighting in plain language the impact of the proposed amendments to the PBO Act to Kenyans and to the PBO sector. A number of press conferences and briefings took place on radio, television, as well as the national newspapers in English, Kiswahili and other Kenyan languages.

The CSO Reference Group noted that just prior to the proposed amendments to the PBO Act, retrogressive media laws had been tabled in Parliament.[15] The Media laws and the proposed amendments to the PBO Act signaled to the Group a deliberate legislative onslaught on the civic democratic space for association and expression. A combined media-PBO approach sought to raise public awareness of the proposed legal provisions affecting both sectors; the potential impact on the country and violations to constitutionally protected rights.

Indeed, the combined attack on media and civil society operational environments gave rise to the twitter hashtags #NGOMuzzle and #MediaMuzzle. Social media was highly effective in raising public awareness. The Twitter hashtag #NGOMuzzle trended on 14th November 2013. A week later @LGE_EastAfrica amusingly used the same hashtag to promote a 32 inch television set. The media covered and highlighted the two street actions that took place in Nairobi protesting the proposed amendments to the PBO Act and proposed media bills. The short notice and limited mobilization opportunity meant that there was a relatively low turnout of the public at the protest; however the coverage of the street actions raised awareness of the impending damage of the proposed changes to the PBO Act.

Power and Interests

Supporters of the proposed amendments to the PBO Act made two main arguments. Firstly, that the PBO sector chronically suffers from a lack of effective apex leadership and insufficient regulation. Poor public transparency, poor accountability to the state and possible duplication of efforts is the result. Secondly, that the sector is overly dependent on foreign donors “hostile” to the Jubilee Government and are being used to fight the President and Deputy President in the ICC trials.[16]

Although the amendments originated from the Ministry of Devolution and National Planning, the technical staff at the Ministry disowned a number of the amendments especially the 15% foreign funding cap. This was later to be repeated in conversations with senior public officials in the Office of the President and National Assembly. Indeed, it was initially unclear what economic and political public policy objective was being served by this restriction on foreign funding. Meeting with the CSO Reference Group, NGO Council and NGO Board on November 21, the Cabinet Secretary suggested that the 15% was a basement rather than a ceiling figure but offered no practical ways how this discretion would be operationalised. Nevertheless, this would pave way for national Government to seize 85% of the funding currently coming to PBOs.

Reaction to the bill came from a number of quarters in November. PBOs under the CSO Reference Group were quick to point out that the amendments substantively changed the spirit and letter of the PBO Act. The NGO Council expressed their concern with the 15% cap while encouraging Government to find ways of holding the sector accountable. The NGO Coordination Bureau[17] called for tighter regulation citing terrorism concerns. Staff from the secretariat of the Kenya Private Sector Alliance privately noted their concern with impact that this would have on service-providers such as banks, hotels, food and medicine distributors among others.

A leading business newspaper columnist noted that while he were not a “blind apologist for non-governmental organisations, civil society, or the voluntary sector in general…(he still found) the law which the government wants to introduce to regulate NGOs and civil society institutions is anachronistic to the extreme”. An evening news programme SMS poll found a slim majority of its viewers were in favor of the amendments. A political advisor noted that the amendments would present the President with another domestic and international credibility problem as he and his Deputy were trying to win back international support for his Presidency. Another pointed out that Government domestic development policy was being blindsided by the ICC process.

A Senator with a long history of participation in the sector noted that the proposed amendments to the PBO Act were the consequence of PBOs losing their oversight and leadership role. He urged that it was time for CSO introspection. How could they raise the performance bar, focus less on donors and more on citizens? Human rights activists argued that the amendments were symptomatic of a growing obsession to control institutions that contribute to checking excesses of the state. A Development Partner agency representative noted that the bill was being watched very closely in their capitals and its passing would have “consequences” not only for PBO funding but the state’s public budget as well.

In the end, the arguments that directly mattered came from a small number of vocal MPs from both sides of the National Assembly on Wednesday 4th December 2013 as the bill came for final reading. Nine legislators urged the house to reject the bill as it violated the constitution, attempted to pass substantive amendments to over 49 Acts bundled in a single bill and was anti-developmental.

Hon James Wandayi argued, “Some of the freedoms that we presently enjoy in this country; some of the freedoms that have made some Hon. Members [of Parliament] to sit here today, have been gained because of the contributions of the NGOs.” Hon James Nyikal stated, “We should even get a way of really getting rid of miscellaneous amendments, if it must be there then it really must be confined to what is explained as minor amendments that do not effect basic changes in Acts.” 164 out of 349 MPs were present. 83 voted against the bill, 73 voted for the amendments.[18] Narrowly, the National Assembly averted the destruction of a fifty year old sector.

With the power of hindsight, what actions ultimately proved to be most directly effective? While all actions contributed to the rejection of the bill by National Assembly Members, probably the most effective were those that related to relationship building, information sharing and face to face discussion with legislators. What proved least ineffective was the attempt to mobilise the public or beneficiaries to march or voice their concerns on the issue. A combination of limited resources and very short window for action may have been factors in this, but going forward this will require attention.

CONCLUSION

The amendments to the PBO Act 2013 threatened freedoms of association. In this regard, they were ultimately an attempt to simultaneously legalise rights violations and grab Kshs 68 billion from the PBO sector. The amendments are a powerful reminder that unless constitutionalism underpins a progressive constitution there are no guarantees.

In early February, unofficial reports state that the President urged MPs to support the Statute Law (Miscellaneous Amendments) Bill and especially the 15% cap when tabled again in Parliament later in 2014. At the time of writing the relationship between National Government and the PBO sector are still tense. The failure of the Cabinet Secretary for Devolution and Planning to announce a commencement date for the PBO Act ironically provides ammunition for those that say the sector is unregulated and their funding would be better managed by National Government.

Or, just perhaps, is this the intention? 

[1]Irũngũ Houghton and Stephanie Muchai work for the Society for International Development and Article 19 Eastern Africa respectively. While both authors are active members of the CSO Reference Group, this article is based on personal experiences and written in their personal capacity. They can be reached on twitter @irunguhoughton and @parchedoasis. They have chosen to use the new term of Public Benefits Organisations (PBOs) instead of the more familiar Non-Governmental Organisations (NGOs).

[2] In 2014, many key leaders in civil society, the political class, mass media and the private sector were active in rolling back the culture of silence, compliance and fear.

[3] Constitution of Kenya 2010 – http://kenyalaw.org/kl/index.php?id=398

[4] For a historical analysis of the Kenyan NGO Sector, see Prof. Patricia Kamere-Mbote “Operational Environment and Constraints for NGOs in Kenya” 2002, http://www.ielrc.org/content/w0002.pdf

[5]http://www.pboact.or.ke/the-pbo-act/cso-reference-group

[6] Before joining Parliament, Hon Sophia Abdi Noor was herself a PBO leader having led a women’s rights NGO Womankind in Garissa among other roles

[7] The divergent interests and tensions between the various formations could themselves be the subject of a detailed and interesting article. Some are not yet resolved. They include whether the existing structures of the Council and Board will automatically become the Federation and regulatory Body, the balance between vertical regulation by Government or more horizontal self-regulation by the PBOs, what roles international and Kenyan NGOs should play and even whether PBOs should have a role in service delivery.

[8]http://issuu.com/jubileemanifesto/docs/jubilee_manifesto

[9]http://www.penkenya.org/UserSiteFiles/public/Proposed%20PBO%20ACT%20Ammendments%202.pdf

[10] Article 36, Constitution of Kenya 2010

[11]Sessional Paper No 1 of 2006 on Non Governmental Organisations – http://www.ngobureau.or.ke/Docs/sessional%20paper%20no%201%20of%202006.pdf

[12]http://issuu.com/jubileemanifesto/docs/jubilee_manifesto

[13]http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%2018%20of%202013

[14]http://www.csakenya.org/index.php?option=com_content&view=article&id=86&Itemid=89

[15] Kenya Information Communications (Amendment) Bill 2013 and Media Council Bill (2013)

[16] The President and Deputy President of Kenya have been charged with for crimes against humanity at the International Criminal Court. The President’s case has since been suspended pending the Court’s request to collect more evidence to meet the high evidentiary standards required after key witnesses dropped out.

[17]http://www.ngobureau.or.ke/

[18] See Hansard report on discussion of the Statute Law (Miscellaneous Amendments) Bill 2013 http://ow.ly/vbKeM

Categories: civic education, Democracy, Famine, Finance for Development, Kenyan constitution, Millennium Development Goals, Uncategorized | Tags: , , , , , | Leave a comment

Raising Voices for Peace in Kenya: A Personal Reflection

“When the spider webs unite, they can tie a lion” African Proverb

My mobile rang incessantly the morning after Mwai Kibaki was sworn in. One caller was persistent. Three times I was asked, “Irungu, we need to meet, when are we meeting?” With images of anger and mayhem from the entire country flooding my television, it seemed futile. However, we did meet that afternoon on the 31st December 2007 at the offices of the Peace and Development Network in Kilimani, Nairobi.

Thankfully, during the post election crisis, there were very few moments over the next sixty days that I allowed a sense of powerlessness to paralyse me again. Throughout, I kept the words of South Africa’s Oliver Tambo to a young Winnie Mandela close. When she shared how worried she was, he told her, “When at a loss, history provides. Do not do anything. History will provide a situation for you to react. Remember that always, in life. Just wait there. History will rescue you. You will get guidance from within, from yourself”.

With barely three hours notice, forty of us met that afternoon and reviewed the rising tide of hatred and violence. Luos being forcefully circumcised in Gachie and Nakuru, the burning of Kisii, Gikuyu and Indian homes in Kakamega, looting and police shootings in Kisumu, rising number of deaths in Burnt Forest, Kapenguria and Narok, the ban on live reporting and the silence from our leaders. An inescapable set of thoughts ran through my mind in those early days. As political affiliations and ethnicity fused, we were facing the greatest onslaught on our national identity. Our only hope as a country lay in non‐violent ways of resolving the election crisis. ODM, PNU and ODM‐K political leaders needed to find a pathway to resolving the highly contentious elections and the violence had to be stopped.

On the eve of the elections, Kenya had a functional Government, Judiciary, no less than 6,000 non‐governmental organisations, 100,000s of community based organisations, one of the most sophisticated mass media sector in the region, 1000s of international organisations and corporations including the headquarters of various United Nations Agencies. Their collective silence that first week of January suggested that they had all left Kenya. We were about to be reminded of an important lesson. Organisations are as effective as the individuals who work within them. In a time of profound upheaval, it is to individuals that we must look to catalyse and bring people and organisations together.

Raising Voices for Peace
At least five new initiatives sprouted over the first three days in Nairobi. Around the Peace and Development Network, the People for Peace Network, Maendeleo ya Wanawake, ActionAid, Oxfam and World Vision created the Election Violence Response Initiative (EVRI‐1) to call for peace and re‐establish the national network of community peace‐workers (http://www.peaceinkenya.net). Under the auspices of the Inter‐religious Leaders Forum, a social intervention taskforce of humanitarian agencies began to assess and plan for the emerging humanitarian need. Governance, legal and human rights organisations began to call for a rejection of the results of the General Elections. Convened by the Kenyan National Commission of Human Rights, this lobby became known as the Kenya Peace, Truth and Justice network. Elsewhere, Kenyan artists formed Musicians for Peace and Concerned Kenyan Writers. Recognised peace‐workers and professional mediators within the Horn formed Concerned Citizens for Peace, a lobby that operated from Serena hotel.

The Concerned Citizens for Peace pre‐occupied itself with three priorities namely; publicly calling for an end to violence, mediated dialogue at the highest level of the two large parties PNU and ODM and creating a space for concerned citizens to act. It was clear to me that the ODM policy of mass action and the PNU policy of mass denial were recipe for further chaos. Unleashed by a flawed political election, the character of the violence found its shape in social and economic identities. Kenyans were being attacked for being the “wrong tribe”, for being women and girls, for having property or wealth or for being old.

In those days, our radios, televisions, mobile phones and the Internet were flooded with stories and graphic images of this violence. That this was also fuelling the violence was one thing I could agree with the Minister of Information. However, in context of suspicion that the newly elected Executive had rigged itself to power and national uncertainty, the attempt to ban live broadcasting would prove unpopular and futile. The task was to create a third voice, one that called for an end to the violence and a mediated conversation on a political solution.

The role of the Media Owners Council was crucial. The media had to look beyond the sensationalism of youth carrying pangas at roadblocks along the major highways of the Rift Valley, the crowds in our informal urban settlements and the numerous press conferences calling for Kenya to be made ungovernable. CCP had to find and promote the peacemakers, those Kenyans who were trying to hold inter‐ethnic communities together, to build dialogue and alternative ways of expressing their frustration with the political process or even the gross inequities they experienced. A diverse list of fifty men and women from different communities, professions, regions and political affiliations was prepared and sent to media houses for them to interview on the way forward.

Later, media activists working in both CCP and EVRI‐1 composed several peace messages that were later sent round by the major mobile phone companies. One of the most powerful calls for peace was performed by several of Kenya’s finest gospel musicians. It was at one of the early press conferences by CCP that the song Umoja Pamoja was given substantive and free airplay. Members of CCP, the Concerned Writers for Kenya would produce over 100 articles for international and national newspapers and magazines by February 6 2008 (http://www.kwani.org/blog). This proved very successful and soon dominated the airwaves and front‐pages by January 7 2008. A key important message at this time was “we can fix this”.

The international media on the other hand, found itself stuck in the pornography of mayhem and genocide long after the national media had shifted to more balanced reporting. The Media Council issued a statement to these agencies counselling against the “mention of particular tribes involved in the violence by name” as it was fuelling already heightened emotions. They called for the international press to “apply the same international principles … while faced with similar circumstances in western countries where the dignity of the human person is respected and observed”. Lastly, they declared “The local media has taken a stand to unite and use resources available to them to help contain the violence in Kenya and not to exacerbate it. Do join us in these efforts.”

Calling on our political leaders to stop the Violence
Placing direct pressure on the top leadership of ODM and PNU to agree on a way forward on the flawed and disputed elections was the other major focus at the time. This was a pre‐occupation not only of the peace groups at the time but the international community whose capitals were seized with influencing the two Presidential candidates or Principles as they became known to come to the table. Throughout the crisis, we attempted this is different ways. The first early attempt was an evening vigil march to the offices of ODM, ODM‐K and PNU led by the religious leaders. A diverse range of musicians, spiritual and development leaders were supported to convene a well‐attended press conference. After that fifty of us climbed into buses and presented a single open letter to the offices calling for immediate dialogue.

Later, we would write and widely circulate with the political leaders an options paper “A Citizens Agenda”, several press statements and another open letter to the main Principles calling on them to personally lead the process of finding a solution. All opportunities were used to offer guidance. The Serena hotel corridors proved very spacious for sharing materials with the various mediators, political leaders and even those like us who were trying to influence the process. The ODM Presidential candidate even found himself being offered alternative reading material when he stopped to have his haircut at the Serena Hotel salon. Over February, consistent briefing meetings were held with the AU Mediation Team led by H.E. Kofi Annan. A reader on wealth and inequity was prepared for the largely non‐Kenyan technical staff working on the draft Agreements. During the AU Summit at the end of January, a daily newsletter prepared in Nairobi was circulated to national delegates and the AU Commission conflict‐monitoring unit.

It was these actions that established trust with the formal mediation process and allowed us to access and circulate widely the Agreements as soon as they were concluded. Indeed, we found ourselves a source of information for the media and other interest groups on the progress of the talks before the Mediation Team established its own system of consistent reporting back.

Expanding the community of peacemakers
While many of the efforts of the first month were centred in Nairobi, they were accompanied by important initiatives to support the establishment of peace corridors and safety spaces for ordinary people seeking refuge. Visits were made to camps for the internally displaced and inter‐ethnic football matches were organised for youth in Kibera, Korogocho, Dandora and Baba Ndogo.

Community newsletters like the Kibera Journal published calls for the communities not to burn down their houses and destroy shops and schools. Counsellors and social workers in the Rift Valley accepted to offer free counselling services in Eldoret and Nakuru and university students were financially supported to convene meetings when campuses finally re‐opened. Peace monitors were sent phone credit to maintain their surveillance. The Kenya Veterans for Peace would discourage its members from supporting the militia with their military skills. An e‐newsletter Amani Sasa ran as a daily page for the first month and then became a weekly of several pages providing analysis of planned events and profiles of peace actions and peacemakers.

At their height, seventy men and women would meet daily each morning in the Karna room of the Serena hotel. The meetings ranged from 1‐3 hours and were designed around the principle of harvesting ideas. Many of the actions mentioned above and the successful Valentines day flower memorial in Uhuru Park were hatched in this room. While all these actions were taking place, the virus of suspicion and division was always present in the highly diverse space this enabled.

Supporters from antagonistic parties including former Ministers and Ambassadors, youth and the elderly, the careered and the unemployed, Kenyan staff of Embassies met daily to share information and agree on actions. This diversity became uncomfortably apparent one morning when three men stood up and introduced themselves as members of Mungiki sect and that they too, were trying to bring an end to the violence. The Convenors were careful to moderate language and the space given to different viewpoints. The sessions always started and closed with first three stanzas of the national anthem. The best moments for me were when we reflected and decided on a course of action in the morning, acted by the end of the day and reported the next. The worst were when we spent too much time analysing the context or discussing how we should be organised and not agreeing on a practical action to take.

By the end of February, it was clear the tide had turned. The skilful mediation of H.E. Kofi Annan and his team, the national outcry backed internationally for a political solution and a return to the rule of law had wrested the mindset of mass denial and mass action from PNU and ODM. The sense of urgency began to be replaced by a sense of relief. This victory came not without cost to the various initiatives.

The voluntarism that had fueled the ideas, actions and resources began to wane. This voluntarism had seen guards offer to protect peacemakers going into the Rift Valley and designers, journalists, singers, writers and Kiswahili translators produce and publicly distribute peace materials. University graduates daily recorded and circulated minutes, photocopied documents and lobbied our leaders. Social workers, mediators and drivers had voluntarily gone into heal communities, temper and channel their anger constructively. Former campaign party activists had cut thousands of peace ribbons, spoke to their party leaders, held peace rallies and night vigils and mobilised young men and women to protect persecuted communities.

Without sustained funding and firm organisational structures, this voluntarism could not be sustained. Focus and momentum disappeared. Perhaps this was inevitable in these circumstances. Many of us could now return to our normal lives, our jobs and families.

Yet, this was not without the lingering feeling that too many had lost their lives and livelihoods. We had come very close to losing our very nation. We had held together and if Kenya was threatened, we could find each other and do the same again.

Irungu Houghton wrote this as Pan Africa Director for Oxfam based in Nairobi in 2009. It was firstly published “Personal Narratives about the 2007 Post-Election Violence in Kenya” -Ed. Kimani Njogu. This is a personal testimony only in one sense. The views contained are that of the writer. The events described in the testimony were the collective efforts of many Kenyans who over the two months of post-election violence voluntarily gave their time, money and relationships to the pursuit of one Kenya and a political and non‐violent solution to the crisis. The writer is proud to have stood among them.

You can interact with him on twitter: @irunguhoughton

Categories: Campaigning, civic education, Democracy, human rights, Kenya, Uncategorized | Leave a comment

Learning the art of building community in Kilimani

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In November, reporter Mark Namswa of Nairobi’s UP Magazine interviewed me for their special issue on community policing. Below is the full transcript of the interview.

UP Magazine: What is the Kilimani Project?

The Kilimani project began as a garden conversation by a few individuals who live, work and play in Kilimani in the middle of 2012. The original set of questions we asked were: What makes Kilimani unique? Why is it a community of choice for the 43,000 people that live or work here? With massive private investment, where is the community head

Over  2012, the Kilimani Project has organized an online and physical photographic exhibition entitled Kilimani speaks: Jana and Leo, November 2012;  the first Kilimani Festival and two public Kilimani Cares community talks on issues of topical interest, December 14-15. In 2013, we developed the Kilimani Voters Guide and held conversations with County and Parliamentary aspirants in February 2013. Over May and June, we convened several community conversations to chart a way forward over May and co-hosted Nelson Mandela Day 2013 with the Kilimani Primary School and the South Africa High Commission. This event generated funding, voluntary action and new relationships committed to renovating this public school.

These activities were only possible with the contribution of tens of residents across Nairobi offering their time and expertise to serve the community. In addition, over fifty businesses and organisations have given in-kind support to the Foundation over 2013.  All of these volunteers and contributions are driven by the vision of creating Kilimani as an inclusive and vibrantly alive community for all.

The Project is now registered as the Kilimani Project Foundation, not for profit company limited by guarantee. We welcome individuals and agencies to take up individual or corporate membership. The Board comprises of three women and four men. They are Irungu Houghton (Chairperson), Fatma Hyder (Treasurer), Dr. Hasmukh Dawada (Vice-Chairperson), Pat Okello (Secretary) Francis Munyororo, Ann McCreath and Protus Nyamweya.

UP Magazine: What’s your understanding of community policing?

Community policing is based on the understanding that t the causes of crime and insecurity are primarily social and economic. Without social cohesion, greater equality and economic opportunities for all Kenyans, crime will be impossible to eradicate. Public safety is the responsibility of all citizens, businesses and the public as a whole and not just that of the police.

There are some other important principles underlying community policing. The police are no longer a coercive force as they have been in the past, but a service that runs with our consent. Police Officers are not apart from the community, they are part of the community. Where they work with the public and in particular involve the public in setting and resourcing policing priorities they can be more effective.

In a capitalist society like Kenya, critics have mistaken the call for the public to form neighbourhood committees as a call to spy on each other. This is consistent with a worldview that keeps us isolated as individuals. It is consistent with the pattern of building cities that exclude each other like in Europe or North America. It is this that has created our appreciation of community only as far as our ethnic community, family, compound and even household. We have to completely reject this worldview and embrace the African community spirit of “we are our brother and sisters’ keeper”.

UP Magazine: Why should it be done?

There are three key reasons why community policing might hold the key to a better future. Firstly, it is clear that currently policing strategies are ineffective despite an abundance of security resources that are available for a number of communities.  The current behavior and ways of being of residents, businesses, private security companies and the law enforcement agencies leaves all of us isolated and ultimately, working below optimal capacity.

The public and businesses are cynical, afraid, contracting out for services and unwilling to take responsibility for building a better police service. The police are under-resourced and yet to make use of the resources that exist in the community. There is preciously little trust and dialogue taking place between all these people.

Secondly, what we learnt recently during the very first Police Community Day held on October 26 at the Divisional Headquarters of the Kilimani Police Station, is that it is possible to reverse suspicions within the public and between the police and the public. We can close the gap. If we do so, we can go beyond the paradox of a Kibera, Kilimani, Kileleleshwa and Upper Hill having an abundance of security services (private security companies, the police force, the CID, NIS, Administrative police, County of Nairobi askaris, sungu sungus, resident associations, NGOs) and living in fear of house robberies, street muggings or attacks. The problem is that these systems are neither integrated at the point of crime prevention or response.

UP Magazine: At Kilimani, how did you come up with your initiative?

Dialogue, dialogue, dialogue. We invited the OCPD Peter Kattam to come and share notes with us. He invited us to jointly organize a police appreciation day and open the doors to his team in the three police stations; Kilimani, Kileleshwa and Capital Hill.

Ahead of the day, we interviewed 300 children from a neighboring public school on their experiences and perceptions of safety. The findings were disturbing to say the least. Fear of rape, abduction, matatu overcharging, theft, bullying are among some of the issues that the children mapped. These matters are now being taken up by the Kilimani police.

The Open day included a personal tour of the police station by the OCS Bernard Kenyatta, a community dialogue, several information desks, bouncing castles and face-painting for children and a 7 aside foundation – police football match (the police won). The Foundation and the Police are now exploring a joint working committee and way forward based on the input given by the community.

UP Magazine: How is it structured?

The Foundation works on five major programme areas. The public safety programme is run by a group of volunteers who make up a community action team. It is they that design and deliver the interventions.

UP Magazine: Are there police desks for reporting or neighbourhood watch plans?

Yes, we are working on this in future

UP Magazine: In your opinion, will the Nyumba Kumi initiative be tenable in your neighbourhood?

Yes and it is going to take something. Residents will have to let go of the suspicions and fears they have of their neighbors. The police will have to let go their sense of the public as walking complaints for instance. More interestingly, how could we design it bottom up? This is the question that the newly established Kaguthi taskforce must ask. Top down directives have limited power unless backed by incentives or coercion. The Government has little of the former to offer for a programme of this scale, while the constitution protects the public from the latter. So it is time we got creative.

UP Magazine: A few cases of crime as told by participants in the forum pointed out the link between Kilimani, Kibera and surrounding areas, what contrasts between these neighbourhoods will eventually factor in your approach to combating crime?

Some people will not like to hear this. We are completely connected – the Kilimanians, the Kileleshwans, the Kibrans – to each other and the rest of the country. We have to find ways of creating mutual safety. Part of this will lie in integrated policing, the other part on creating an appreciation of us as one. As it stands, most Kilimanians fear Kibra as much as Kibrans fear some parts of Kilimani.

UP Magazine: What particular resources have you assembled or plan to marshal in order to effect community policing?

It is a little early yet as we are just at the beginning but these are the questions we are asking. What experiences can we draw upon of joint strategies between different agencies and communities? How could we make the police more effective? What do they need? How do we make businesses more effective? What do they need? How do we make residents associations more effective? What do they need? By answering these questions together, we feel the public and the police will begin to recognize that public safety can only be addressed through a lasting, comprehensive and integrated response by us all.

UP Magazine: What’s your long term plan for the ideal and safe Kilimani?

Our strategic plan for Kilimani is to create community ownership and results in the five main areas, namely planned development, public safety, entrepreneurial development, green and recreational spaces and social cohesion. We hope to expand our staff profile to two persons in the coming weeks, improve the website http://www.kilimani.co.ke and expand our membership and community of volunteers.  While we work primarily in the wider location of Kilimani, we hold that every community can have a community foundation and hope to expand our relationships with them across Nairobi and Kenya.

UP Magazine readers can reach us by email: kilimaniproject@gmail.com, twitter: @kilimanispeaks  and our facebook group: Kilimani speaks

Irũngũ Houghton is the Chairperson of the Kilimani Project Foundation

Categories: human rights, Kenya, Kenyan constitution, Uncategorized | Tags: , , , , , , | Leave a comment

The first 100 days: A Scorecard and Suggestions for Strengthening Public Engagement by the National Assembly and Senate

Revised and updated presentation to the “Strengthening deliberative and legislative Processes”, Kenyan National Assembly and Senate Leadership retreats, 11-16th July, 2013

Click link to download full paper http://db.tt/RipoogU1

Summary

If the 20th century was the century of Government, 21st century will be the century of citizens. Citizens globally, and Kenya is no exception, are more capable of disrupting governance and bringing public processes to a halt when they disagree or do not understand the direction their leaders take. Effective leadership now requires consistent trust, open and inclusive mechanisms and processes that can listen and respond to citizen’s voices and priorities.

Despite the new constitution and national laws, both the state and citizens have yet to fundamentally transform their ways of working. As the National Assembly, Senate and County Assemblies mark their first 100 days since the March 4 elections, national and county leaders are openly conflictual across all three legislative arms of the State. The current tensions and open conflict between National and County arms of the state and the public is the consequence of inward-looking systems, passive communication approaches and an inability to inspire and keep a sense of collective ownership over public affairs.

This paper explores the source of these tensions in terms of institutional capacities. It proposes new mechanisms, actions and processes that could be introduced to transform relationships and leave both formal institutions and the general public clearer of their roles and cohesive, participatory policy agenda for the nation. In so doing, we can continue to light candles through the dark points of this transition.

Categories: civic education, Democracy, Kenya, Kenyan constitution | Leave a comment

Remarks on the Report of the High-Level Panel of Eminent Persons on the Post-2015 Development Agenda

After a year of consultations, the UN High Level Panel of Eminent Persons on the Post-2015 Development Agenda have delivered their report. The report can be found here http://www.post2015hlp.org/wp-content/uploads/2013/05/UN-Report.pdf

Seven aspects of the report we can welcome

  1. Global consultation of 500,000 men and women across most continents. The report’s legitimacy rests on the breadth and depth of the consultations that have taken place.
  2. The bold optimism – far removed from reducing aid flows, intractable horrific violence in Syria, the European financial crisis and tensions between the new east and west competition for access and control of African resources
  3. Broadly coherent combination of aspiration, new normative standards and adaptive accountability framework
  4. Reinforces recently adopted key African Union policy standards and human rights instruments namely Democratic Charter, Women’s Rights Protocol, Mining Vision, Youth Charter, health and education goals. The report also advances new policy norms for Africa in terms of renewable energy, inequality (while weak) and extreme poverty.
  5. Report captures challenges that were glaringly missing in the Millennium (sometimes also called the Minimalist) Development Goals. The most important of these in my opinion were sexual and reproductive health rights, elimination of extreme poverty, capital flight and tax evasion, stand-alone gender and environmental goals.
  6. Greater appreciation of segmentation within the private sector (role of SMEs in job and livelihood creation)
  7. Gone are the % only MDGs targets, now some basic minimums and zero goals

Six aspects the reports seems to miss

  1. Realism on the success of the MDGs – Four out of the eight goals will not be met in Africa. A billion may have been lifted out of poverty, but these could be found in a few set of countries namely China and India. Extreme poverty is still rife in many parts of the world and especially Africa. The perceived gap between the rhetoric and reality is so large that this report risks itself being met with cynicism.
  2. Despite important language in the report, it is clear that inequality as the most critical threat to political stability was overstepped in the final instance.  Inequalities has been largely dealt with as a national issue rather one fuelling complex phenomena such as conflict, terrorism, brain drain, “national springs” and social exclusion. As important for England as Kenya. Last decade, income of the top 10% richest saw their incomes raise by 37%, the incomes of the bottom dropped by 12% (Oxfam). 2008 post- election class violence took place in an economy recording 6%. Inequality is also an inefficient unjust economic system. Redistribution of just 0.2% of global incomes could lift 21% of the world’s poor out of poverty. (Oxfam)
  3. The report promotes market liberalization and regulation against capital flight and price-fixing which in the context of Africa will send to mixed signals to Governments that are bracing for private investment in new emerging extractive industries in mineral and fossil fuels
  4. Noticeably silent are elements of the UN Voluntary Guideliness on the Responsible Governance on Land Tenure (http://www.fao.org/docrep/016/i2801e/i2801e.pdf) that seek to deal with the grand raid on African land and water resources. Africa has over 60% of the world’s arable land. 134 million hectares over a decade has been bought or leased for other nations food or bio-gas needs, (Africa Progress Panel) sometimes for paltry sums for instance leasing 2,500 hectares at $300 a week, Gambella, Ethiopia
  5. While the human rights language is stronger than in Millennium Declaration and MDGs and this is appreciated, what is still absent is a clear statement of the right to effective enforcement and remedy mechanisms for rights violations
  6. The problem for Africa is not the lack of data systems per se but the lack of political incentives that would underpin an effective and resourced knowledge based governance system.

 What’s needed next?

What the world doesn’t need any more of, is lofty declarations that lack implementation and impact on the reality of the lives of millions denied human rights.

The next stage of handing over the process to the UN Open Working Group and Member States leading upto the September Special Session on the MDGs requires vigilance. Champions both within states, corporate community and civil society need to galvanise a people to sign on and own this framework to ensure that the text does not get watered down. The axis of conservatism is alive and well from our recent experiences with UNCSW, UNFCC and the WTO processes.

Some immediate steps that could be taken would be to generate national policy and public debates on what implications would this report have nationally, regionally and continentally.  What could Africa look like in 2030? In Kenya, Vision 2030 could do well to consider the targets it proposes. Are we a match for this vision? What needs to change in the behavior of states and non-state actors? After adoption, we as a Beyond2015 community needs to move to holding states and non-states accountable for an immediate set of actions that trigger long-term shifts in policy and public attitudes.

Irungu Houghton is a Senior African Policy Analyst. Email: irungu.houghton@gmail.com, Twitter: @irunguhoughton. Extracts of this note was presented to Nairobi technical discussion After the Post-2015 High Level Panel Report: Responses from Around the World” which brings together speakers in Nairobi, London, Dhaka and Bogota to interact with High Level Panel Members and the Special Advisor to the Secretary General on Post 2015 Development Planning Ms Amina Mohammed.

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OAU@50: Voice, vigil and the veil: Recalling North African women’s struggles

In the next two weeks, we shall pause  to reflect on what we have gained from fifty years of the Organisation of African Unity/Africa Union.

In my opinion, one of the most remarkable moments in the last five decades has to have been the 2011 uprisings in Egypt. These events are powerfully captured in the Mai Iskander directed 2012 movie “Words of Witness”. The movie centres around the true story of 22 year old Egyptian journalist Heba Afify. Defying cultural norms and family expectations, she takes to the streets to tweet, text, video and post facebook blogs and report on a changing Egypt. Going out to the streets each day and night to report on the events, her exasperated mother states “I know you are a journalist, but you’re still a girl!” It is a movie of her coming of age, political awakening and the disillusionment that follows a nation struggling to achieve the illusive freedom to shape its own destiny and democracy.The movie has many lessons for a generation of young men and women who dare to challenge dictators and are inspired to lead their countries towards democratic, economically inclusive and dignified societies across Africa.

The late liberation poet Gil Scott Heron once famously announced in 1970, that the revolution will not be televised. In 2013, we not only have the television, radio and print newspapers; we have the internet in our hands. During the Egyptian uprising, young men and women combined street vigils in Tahrir Square with twitter, facebook and cell phones to speak truth to power. Deeper analysis of the use of social media suggests that google did not cause the uprising as some may have intimated. However, 12,000 twitterers and 12 million on the internet made a difference. In Tahrir square, we saw the rise of a new political agent, a new political humming bird, the citizen journalist. That is who Heba and thousands of other women represented in and around the square.

While a stand against a corrupt dictatorship, the uprising was also a challenge to patriarchy, the system that vests power in men to the exclusion of women. In Egypt, this has taken the form historically in keeping the sexes apart, the wearing of the veil and the economic and social dependence on fathers and brothers by girls and women. Yet, to see Egyptian women through this lens would be to ignore the very many leaders that have existed. As far back as 31 BC, Cleopatra ruled all of Egypt. Other famous leaders including Nefertiti and a range of merchants and priestesses held power and influence over many aspects of Egyptian society. Ahead of many other African countries, the 1950s saw the enactment of laws that outlawed discrimination, asserted the right to vote and maternity leave among other rights.

Since the 2011 uprisings started, Egyptian women have voiced their dream to be free from sexism, harassment, rape and assault. Indeed, in the first elections, a woman presidential aspirant Bothaina Kamel articulated a number of freedoms that she and millions of other women wanted to see in the new Ethiopia. Key among them is freedom from “virginity tests”. These tests were being performed on girls and women female revolutionaries. In December 2011, Samira Ibrahim successfully filed a court case against practice after being subjected to one in March 2011. Rape continues to be a feature of Egyptian society. Findings from a study by the Egyptian Centre for Women’s Rights found that more than 80% of women had suffered rape.A key focus after the deposing of the Mubarak regime was to ensure that the new constitution incorporate international and African union standards around equality and the criminalisation of trafficking and child marriages.

There are many lessons from countries striving to transform tensions and even conflicts around identities into inclusive, safe and democratic societies. Firstly, the culture of impunity, inequality and exclusion is a fertile ground for extremism. Discrimination against any community erodes democracy for all.

Secondly, leadership requires vision, integrity and discipline in equal measure and at all levels of society. Thirdly, as we approach the 50th anniversary celebrations, nostalgia or a preoccupation with the past will not produce new leadership or energies. Imagination and a vision for the future rather than nostalgia was the driving force of Dedan Kimathi, Mekatili wa Menza, Angela Davis, Amilcar Cabral, Bibi Titi, Chris Hani, Micere Githae-Mugo, Nehanda, Tajudeen Abdul-Rahim, Nelson Mandela, Albertina Sisulu among others.

Fourthly, we should nurture a sense of constructive criticism, even of ourselves. Criticism is the beginning for an alternative narrative and a dialogue of what is now possible. Lastly, mobilisation is not organisation. It is only the beginning of a long process of awakening people’s self-agency. Transformatory change requires building a common purpose, injecting some creativity and a willingness to sacrifice for a vision. We need to go beyond litigation and demonstrations to creating standing mechanisms for men and women to monitor, propose actions and hold public offices accountable for delivering on what matters to us.

As we chart the next 50 years of the African Union, we pause to honour our ancestors for the sacrifices they made for the Africa we now have. We honour them by taking action like Heba Afify and other Egyptian women to eliminate the culture of impunity, inequality and exclusion that continues to hold back millions of Africans.

Happy 50th anniversary African Union!

@irunguhoughton

Categories: Africa, African Union, civic education, gender | Leave a comment

Is South Africa expanding its power and influence over Africa?

Over the last few months, South African president Jacob Zuma has made trips to Chad, Algeria, Kenya and Nigeria, South Africa has hosted the BRICS summit and in Addis and Nkosazana Dlamini-Zuma convened her first AU Summit. Is South Africa’s influence expanding in Africa, CCTV asked? Appearing with the S.A. High Commissioner to Kenya, I argued there is both continuity and change in their approach to the continent in 2013.

SA Africa policy has four elements; strengthening the African Union and SADC, post conflict reconstruction and development and building of the African Standby Force. These elements are not new. SA has a diplomatic presence in 46 out of 54 countries, spends more on Africa than any other region of the world and is one of 5 African countries that spends 15% of the total budget of the African Union.  Since 1994, SA has mediated or caused mediation in Angola, Democratic Republic of Congo, Burundi, Zimbabwe, Sudan and Libya among others.

What is new, is for the first time, SA Defence Forces have been killed in a country that is not traditionally within South Africa’s zone of influence, the Central African Republic. What is new, is that South Africa’s influence over the African Union has grown through the Office of the AU Commission Chairperson. In 2009, despite a quota of 17, there were only 3 South African staff working at the AU Commission. Since Zuma’s appointment, her office has seen this expand at least four fold with a number of senior advisors.

SA Africa trade reflects more commercial interests. By 2007, 92 companies out of 100 listed on the Johannesburg Stock Exchange have business interests in the rest of Africa. Some of the companies MTN, Anglo-gold Ashanti, Woolworths, Massmart and Pick n’ Pay. This is South Africa incorporated. South Africa Inc. now has large commercial interests in retail, mining, energy and transportation across the continent. So much so that questions were raised in Parliament as to whether South African Defense Troops were in the Central African Republic to protect the private financial interests of Senior ANC officials that have mining concessions in the country.

Foreign policies reflect commercial, political, geographical and moral interests of powerful elite groups, South Africa is no different. Question is whether these interests are coherent and are disclosed transparently. As to whether South Africa represents the continent globally or even with the new grouping of Brazil, Russia, India, China and South Africa, it would be rash to mistake South Africa’s visibility and voice as having Africa’s vote on all matters. This vote has to be earned, issue by issue, moment by moment.

You can watch the interview at www.youtube.com/user/CCTVAFRICALIVE

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Completing service.. last day as Oxfam Pan Africa Director, thank you everyone!

Dear colleagues and friends,

At the end of today, I complete ten years of service as Pan Africa Director to Oxfam.

It has been an honour to have been associated with the growth and impact of Pan African civil society over the last decade. I can recall vividly the struggles to secure a just global trade regime (WTO), debt cancellation and better development financing (G8) and to hold Governments accountable for the ratification and implementation of progressive continental human rights and policy standards (African Union and African Member States).

I have also enjoyed the opportunity to work for an international organisation whose values and mission has never strayed from the search for social and political justice and an end to misery of impoverishment, neglect and conflict. I remember with pride both our work to protect civil society leaders threatened by autocratic Governments and to promote public servants with a vision for their societies. There will be time to recall those moments in more detail one day.

I leave a team of great colleagues, definitely the best team I have ever worked with. Working with Monique van Es, my successor Janah Ncube (jncube@oxfam.org.uk) is already poised to take the team forward to the next level. Guided by a new strategic vision, the team will continue to accompany the over 30 pan African coalitions and organisations to work with Governments and Organs of the African Union in the interests of a unified, just and prosperous Africa.

I thank you for all that you have contributed to this chapter in my life and seek your forgiveness for any shortcomings on my part. I hope we continue to run into each other.

Ahead of me lies a clearing to do some writing, consulting and a new position to work from. You can reach me on Email: irungu.houghton@gmail.com and Twitter: @irunguhoughton

Warmly,

Irũngũ Houghton

Categories: Uncategorized | 4 Comments

A vision for 2013 (with thanks to Liz)

Heard this story recently, thought the message was a great one to share for the coming year.Two men lie in a hospital ward for the terminally ill. Each morning the man nearest the window entertains the other with stories of what is happening outside the window. As the seasons change, he describes in great detail, the jacaranda blossom, the green grass, the beautiful women walking below and the tears of relief and happiness as patients leave with their relatives.

Waking one morning, his listener discovers his story-teller friend is no more. His bed now lies empty. Missing his vivid descriptions, he requests to be given his place by the window. On being moved, he discovers to his astonishment that the window faces the wall of the next building and below lies a dirty alleyway. He expresses his surprise to the nurse only to be met with a similar look of surprise. “No sir, that cannot be the case,” she says. “Why not?” he asks. “The man was blind” she replied.

As you create and live each and every moment of 2013, may you have the power to create and realise visions that border on fantasy.

And I am especially speaking to the visually sighted and those of you with 20/20 vision…

Have a great new year,

Irungu

Image

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The courage not to look away: Protecting women’s rights by strategic litigation

Presentation to the training in the use of strategic litigation workshop for lawyers from countries in east, southern, western Africa, December 3-4, 2012

 By Irũngũ Houghton, Oxfam Pan Africa Director[i]

 It gives me great pleasure to share some thoughts at the opening of this workshop here in Nairobi.

 Listening to the self-introductions, I can only wonder what could happen in a room of 17 committed lawyers and a training manual over two days.[ii] My remarks recall two personal moments, sketch the current context and the potential of strategic litigation for advancing the realisation of the African Union Protocol on the Rights of Women in Africa.

 I am 14 years of age and standing ten back in a bus queue. My absent-mindedness is shattered by a violent attack on a woman towards the front of the queue. Another woman has grabbed her by the hair and proceeded to pull out her hair one root at a time. No-one moves to help her. Five minutes later, the woman attacker walks off leaving her victim on the floor sobbing. Her hair is strewn all around her. Still no-one moves to help her. My silence and inaction humiliates me. I later swear, I will never allow such a thing to happen again.

Five years later, I am relaxing on a sofa in my uncle’s house when he comes into the room and suggests confidently, that I study law, for he explains, lawyers make good money. I respectfully decline.  I am not interested in money. I am only interested in why Africa is so endowed with resources yet its people so poor. I study history and political science instead. Both experiences have some irony given my presentation this morning.

 2013 marks the fiftieth anniversary of the Organisation of African Unity and the tenth year since the AU protocol on the rights of women in Africa was adopted. Predictably, African citizens will be tempted to sink into afro-pessimism. In so doing they will be ignoring the tremendous progress we have made as a continent and a world. By 2012, 35 African countries have ratified the AU Women’s Protocol, bringing millions of women and girls in sight of important freedoms and rights.  Worldwide, 139 constitutions now enshrine gender equality and non-discrimination. 125 countries have constitutions and laws that outlaw domestic violence. Yet, it is true that many of these frameworks alongside international and continental human rights instruments are rights on paper and not rights in practise.  Millions of women continue to be denied safety in their homes and communities, essential maternal healthcare and the rights to assets and matrimonial property.

 Strategic Litigation is the process of pressing legal charges against the state, organisations, individuals or a group of individuals in court. As a tool for advancing rights on paper, strategic litigation provides an opportunity for lawyers – private, public or not for profit – to restore the integrity of our law courts, Governments and communities. It provides for women’s organisations another avenue for realising the deferred dream of the Protocol.[iii]

There are at least four reasons for strategic litigation on the Protocol. Firstly, it provides a practical and direct way of protecting women against denial, dispossession violence and disempowerment and pressing for redress and compensation. Secondly, it enables women to visibly speak and act in ways that increases public understanding of the Protocol’s provisions thus reducing the public space for repeat abuses. Thirdly, by demanding enforcement, it increases the accountability of states and non-state actors (organisations, individuals and groups of individuals) to protect and promote these rights. Lastly, it can provoke short, medium and long-term policy and legal reform to strike down discriminatory laws.

 In the 2012/12 UN Women Progress report, they offer an illustrative case-study from Nepal on striking down marital rape.

 TheMeera Dhungana on behalf of FWLD v HMG

In Nepal, married women subjected to rape by their husbands had no recourse to justice until 2002, when the Forum for Women, Law and Development (FWLD) brought a case to the Supreme Court. The case invalidated the provision of the criminal code that exempted husbands from being charged with the rape of their wives. In rejecting the Government’s argument that outlawing marital rape would offend Hindu beliefs, the ruling also ended the conflict between the country’s Muluki Ain civil code, based on Hindu religious principles, and the 1990 Constitution, which pledges to end all forms of gender discrimination. The Court stated: ‘ Sexual intercourse in conjugal life is a normal course of behaviour, which must be based on consent. No religion may ever take it [marital rape] as lawful because the aim of a good religion is not to hate or cause loss to anyone.’

The Court ordered Parliament to amend the rape law, but the penalty for marital rape was set at only six months’ imprisonment, significantly lower than for other types of sexual assault. FWLD went back to court, winning a decision that the difference in penalties was discriminatory and that the law must be amended.3 Cases such as these reflect sweeping changes to the assumption that a wife implicitly consents to all sexual activity. By April 2011, at least 52 States had explicitly outlawed marital rape in their criminal codes. [iv]

Introducing themselves, workshop participants spoke about their own challenges of stopping child defilement, wife desertion, under age marriage, denial of the right to safe abortion, forced sterilisation of women living positively with HIV, rape and property and asset stripping. Strategic litigation is a key lever to transforming the lives of women and girls and the conditions in which they live.

Building communities, cities, law courts, countries and a continent that works for all women, not just the educated and advantaged, requires some boldness, some unreasonability. If you take this on, you will honour the 100s of men and women who spent hours crafting each line and word in the Protocol, the 1000s of organisations across the continent and the millions of women whose lives are in need of transformation.

If you refuse to do what I did so many years ago – to look the other way while a woman’s rights were stripped in broad daylight – we can change the world, one space at a time. Ironically, eighteen years on, I wish I had done law. You did, now put it into the highest practise possible.

I wish you a productive workshop with bold action-plans. I look forward to meeting again to listen to the victories we have achieved through strategic litigation.

I thank you

***

[i] Irũngũ Houghton is Oxfam pan Africa Director. He acknowledges the assistance of Moreen Majiwa, Oxfam Pan Africa Legal Officer, in writing this presentation. Comments on this paper are welcome and can be emailed to irunguh@oxfam.org.uk or tweeted to @irunguhoughton.

[ii]  See The Guide to using the Protocol on rights on women in Africa for legal action (2012) (http://www.equalitynow.org/protocol ) and for the AU Women’s Protocol visit http://www.africa-union.org/root/au/Documents/Treaties/Text/Protocol

[iii] Since 2004, members of the Solidarity for African Women’s Rights have implemented several strategies to accelerate policy implementation through a multi-sectoral approach by Governments and public understanding of the rights and freedoms contained in the Protocol.

[iv] UN Women Agency – 2011-2012 Progress of the World’s Women http://progress.unwomen.org

Categories: Uncategorized | Tags: , , , , , , , | 4 Comments

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