Prof. John Harbeson
The recent decision by Cabinet Secretary for Devolution to implement the 2013 Public Benefit Organisation (PBO) Act, in its original form, is, on its face, one of landmark importance in implementing the 2010 Constitution.
Full consideration of its detailed provisions is well beyond the scope of any short essay. But the complexity of the legislation should not deter focused consideration of the principles and guidelines that the Act articulates, and those it leaves out or expresses only in passing.
I suggest that the Act advances many indisputably lofty, essential objectives and purposes of civil society as well as, importantly, legitimising the existence of civil society organisations, both domestic and international. Thus, the Act turns away from the negative treatment of civil society elsewhere in parts of sub-Saharan Africa, notably in Ethiopia where it is all but extinguished and driven underground. At the same time, I suggest that in the very process of legitimising these civil society purposes and organisations, the Act may also, at least tacitly, risk detaching civil society from part of its core historic, philosophical and still contemporary raison d’etre.
On the one hand, the Act defines public benefit activity as that which enhances or promotes “economic, environmental, social or cultural development… protects the environment development [as well as] lobbying or advocating on issues of general public interest or the interest of well-being of the general public or a category of individuals or organisations.”
Further, the Act is focused on “promoting a spirit of cooperation and shared responsibility within government and among donors and other interested persons”. To these ends, the Act seeks to “facilitate a constructive and principled collaboration between public benefit organisations, Government, business, donors and other actors in order to advance public interest [while at the same time giving] “meaningful protection to internationally recognised freedoms of expression, association and assembly.”
It is undeniable that civil society organisations have long contributed mightily to these very objectives in Kenya and around the world, not least also to humanitarian rescue operations, which the Act does not mention. So what is so missing in the Act and so fundamental that in endorsing all these very laudable and often fulfilled purpose that, at the same time, it risks undermining some of civil society’s raison d’etre?
On the other hand, the Act does not contemplate the indisputable historical and contemporary reality that civil society inescapably sometimes has a contentious relationship with government, not just over details of policies but also over fundamentals of democratic governance. It is civil society’s job both to generate pressure and momentum to replace autocracy with democracy and to keep government focused on democratic fundamentals when it perceives government to be falling short in meeting them.
The 18th Century philosopher, Montesquieu, thought of civil society as a check on government itself for this purpose. In contemporary terms, in this sense, civil society complements checks and balances within government established by judicial, legislative, and executive functions.
Thus, the PBO Act recognises only one of two fundamental roles of civil society in a democratic and/or democratising country. It ordains the many respects in which civil society complements, and extends, government’s work in promoting socio-economic, cultural, and environmental development that the founding philosophers of democratic civil society – Locke, Rousseau, and Montesquieu – could not have imagined. At the same time, the Act does not contemplate a fundamental raison d’etrei of civil society, to promote and defend democratic governance from undemocratic incursions.
In an important sense, it follows that legislation, almost by definition, cannot fully be encompassed by legislation because, necessarily, it stands apart from government in order to hold government to account for observing and realising democratic principles even as, in other important ways, it works with and complements government.
In another sense, also, civil society resists full encompassing legislatively for the public benefit functions it undertakes. That is because civil society is defined by its functions rather than by its organisations. Organisations are part of civil society when and to the extent they perform civil society functions; they leave civil society when and to the extent, predictably, they devote their energies to unrelated purposes. Government and civil society must recognise that the legislation is necessary but not sufficient, that they interact with each other at an additional, deeper level too, which both must acknowledge, respect, and manage effectively.^
Writer is Professor of Political Science Emeritus, and a professorial lecturer for the African Studies Program at Johns Hopkins University School of Advanced International Studies