The Uhuru Kenyatta is when the Society made huge strides toward reclaiming its lost glory as a public defender.
By Gilbert Muyumbu
By the time the Uhuru Kenyatta administration ascended into power, the terrain of organised Society in Kenya was widely variegated, having grown exponentially during the preceding Kibaki era. Although the three earlier traditional vertical accountability players, namely the faith-affiliated groups, the media, and the labour movement, still existed, they had been transformed by internal and external changes.
Internally, the three entities had seen further atomisation, which dispersed power further away from them. For instance, the media saw the rise of social media, which took away a huge chunk of the traditional power that the mainstream media had wielded. On the other hand, the church saw a rise in smaller evangelical congregations and televangelists who mobilised crowds away from big, mainstream churches.
As for the labour movement, the atomisation led to a break away from a single behemoth speaking for workers, leaving behind many workers’ groups, each working independently of the other and collectively unable to play a significant role in vertical accountability.
Externally, the NGO component of organised/civil Society, which had risen during the Moi era and thrived under the Kibaki era, consolidated its hold over the vertical accountability space the three traditional vertical accountability actors had earlier occupied. The NGOs became more professional and focused on single issues, thus leading to atomisation in groups that focused on governance issues vis-à-vis those which focused on other areas such as housing or health care.
Despite the extensive changes in the vertical accountability terrain, there was still continuity in some areas. For instance, the faith-affiliated groups, although fragmented due to the changes, remained capable of causing discomfort to the Uhuru administration. As such, the administration cultivated cordial relations with sections of the faith-affiliated groups to ensure the institutions remained friendly towards the administration. Perhaps this was more pronounced in the administration’s relationship with the church, one of the faith-affiliated groups. There were at least two main ways in which friendly relations manifested. First, the administration responded to a long-standing demand by one of the mainstream African indigenous churches, the African Independent Pentecostal Church of Africa (AIPCA), to have the 327 schools it lost to mainstream colonial-government-affiliated churches during the colonial era returned to it. This was deemed highly controversial, given it could pit the church against other churches. Still, it was a useful indication of the degree to which the administration tried to appease the institution.
Secondly, during the administration’s reign, the church was constantly courted for political purposes. This was exhibited through top officials’ participation in numerous church activities. Personalities in the administration, particularly Deputy President William Ruto, made hefty contributions to churches across the country. This led to allegations of corruption against the deputy president, with the churches roped in as accomplices in the vice.
Incidentally, the accusation that the church was complicit in government corruption led to the only source of mild conflict between the Uhuru administration and the church. To distance themselves from the accusation, sections of the church, particularly the two big mainstream churches, the Catholic Church and the Anglican Church, introduced new measures to contain the vice within their institutions.
On the other hand, relations between the administration and the media began hostilely. The administration exhibited disdainful regard for the press, with the President disparaging newspapers in various public events as only fit for wrapping meat. During its first term, the administration’s treatment of the media fell into three patterns. The first pattern consisted of outright harassment of journalists and media personalities. Individual journalists such as the Nation writer Walter Menya and social media blogger Robert Alai were arrested and had their items confiscated but without any charges preferred against them. Indeed, a survey by the NGO Article 19 indicated that by the end of 2017, there had been 110 cases of threats, expulsion, attacks, harassment, intimidation, arbitrary detention and arrests, and physical attacks on journalists by mostly national security agencies.
The second pattern adopted by the administration against the media involved economic sabotage. The administration withdrew government advertisements from media houses. This led to financial difficulties for the media houses, which in turn led to job losses for many journalists and made the media unable to continue functioning effectively as a vertical accountability actor.
Thirdly, the administration engaged in at least two shutdowns of media houses. The first shutdown occurred in 2015 and affected the country’s three major TV stations, NTV, KTN, and Citizen. The shutdown was justified because the affected stations had refused to comply with the government’s orders on digital migration. The stations had sought a delay to the migration, but the government rejected the request and shut the stations down for an unprecedented three weeks. The second shutdown occurred in January 2018, in the aftermath of Raila Odinga’s mock swearing-in as the ‘people’s president.’
Nonetheless, there were some rare and occasional gestures of friendliness towards the media under the Uhuru administration. These included occasional interviews which top administration functionaries granted to the press. A more significant act of friendliness from the administration towards the media took place in September 2020 during a function hosted by the Nation Media Group to adopt digital applications in its work.
The administration was represented by Interior Cabinet Secretary Fred Matiang’i, who had incidentally presided over the two shutdowns of the media, first as Information Cabinet Secretary and later as Interior Cabinet Secretary. The administration pledged to respect not just media freedom but also the constitutional provisions guarding the media in Kenya.
As for the labour movement, the Uhuru administration’s relationship with the mother trade union COTU was cordial, which was expected, given that COTU had long been appended to the executive. Its long-serving Secretary General Francis Atwoli remained friendly to the administration. Nonetheless, two developments marked the relationship between the Uhuru administration and organised labour. The first development targeted COTU and was led by the administration’s Labour Cabinet Secretary, Kazungu Kambi. The CS attempted to remove Atwoli from COTU leadership. The attempt failed, however, and the CS then unsuccessfully instigated the formation of the Public Service Trade Unions of Kenya (PUSETU-K) to rival the COTU. He sought to divide the labour movement further by picking on Wilson Sossion, the Secretary General of the rival union, the Kenya National Union of Teachers (KNUT), as the new entity’s first chairman. PUSETU-K did not gain much traction, and although it changed its name to the Trade Union Congress of Kenya (TUC-K), it was forced to fold up when the CS gave up on it.
The second development targeted labour organisations that operated outside the ambit of COTU in championing the interests of their specific professions. Prominent among these entities were the Kenya Medical Association (KMA), which represented doctors, and the KNUT, which meant teachers. The administration’s hostility towards the labour movement showed most in its actions against these two unions.
For the KMA, its relationship with the administration worsened over several issues, the most significant of which was the government’s decision to employ Cuban doctors on contractual terms, which were much better than those given to local doctors. Although the government argued that foreign doctors were brought in to plug the deficit of doctors that the country faced, the KMA felt that the move showed the government’s disregard for the welfare of local medical personnel. The administration responded to KMA’s rejection of its policies by suppressing the leadership of the labour union, including having the union leaders spend some days in jail before eventually yielding to the union’s demands.
As for the KNUT, the primary source of conflict between the union and the administration stemmed from the union’s demand for a pay increase for its members. To push the administration into acceding to its demands, the union successfully organised an unprecedented 5-week go-slow among teachers, leading to the closure of public schools across the country. The go-slow was only resolved through a ruling by the Employment and Labour Relations court under Justice Mathews Nduma Nderi. Under the ruling, the government was compelled to respect the Collective Bargaining Agreement (CBA) it had signed with the union on behalf of the teachers. In contrast, teachers agreed to resume classes in light of the ruling.
Although the Uhuru administration accepted the Court’s ruling and instituted the CBA pay rise, it took deliberate steps to neutralize the union from future anti-government activities. Using the Teachers Service Commission (TSC) under its CEO Nancy Macharia, the administration signed the CBA with the KNUT and its rival union, the Kenya Union of Post Primary Education Teachers (KUPPET), Sh54 billion which exponentially increased teachers’ pay.
However, the administration linked the pay rise to teachers renouncing their affiliation with KNUT. To make this easier, the administration introduced an online portal through which teachers could renounce their KNUT membership. Upon clicking on the portal, the teachers received an immediate pay rise and quit their KNUT membership. In addition, the administration stopped the TSC from remitting teachers’ monthly contributions to the KNUT. It also had the TSC deregister the KNUT Secretary General Wilson Sossion as a teacher to push him out of the union’s leadership.
The measures had debilitating effects on the KNUT. In the immediate aftermath of the measures, there was a mass withdrawal of teachers from the union, leaving it a shell of its former self. In the long term, the measures led to deep wrangles and a leadership crisis within the KNUT, eventually leading to Sossion’s from the union’s leadership in June 2021. His departure left behind a union that the Uhuru administration had almost annihilated. Although the union’s new leadership promised to restore it to its former position, this was highly unlikely. This was because the union had been placed under the direct control of the administration, which through the TSC, enjoyed tremendous control over its active and potential membership.
For NGOs, this was perhaps the grouping deliberately targeted for destruction by the Uhuru Kenyatta administration. There were at least three reasons for the administration’s hostile attitude towards NGOs when it rose to power in September 2013. First, several NGOs had been prominent in providing evidence and support to the ICC in the initial days when the Court was framing the crimes against humanity charges against the two main candidates, Uhuru Kenyatta and William Ruto, who later constituted the Uhuru administration.
Secondly, a section of NGOs had challenged the candidacy of the two candidates at the High Court before the 2013 elections, arguing that having been indicted for crimes against humanity by the ICC, the two were not fit to run for the country’s highest political offices under the 2010 Constitution’s Chapter Six.
Thirdly, soon after the 2013 elections, a section of NGOs was part of the petitioners who challenged the validity of the election. These three actions by NGOs were thus interpreted as inimical to the Uhuru administration when it eventually ascended into power in 2013. It responded to the actions in four main ways.
First, the administration deployed negative language against NGOs. Top administration personalities labelled civil Society as an ‘evil Society and claimed that the entities were agents of foreign masters who were detrimental to Kenya’s sovereignty. Secondly, the administration embarked on a massive campaign to reverse laws that had protected CSO operations in the preceding Kibaki era. This mainly targeted the Public Benefit Organisations (PBO) Act of 2013, enacted by the Kibaki administration just before it left power. The Act had been meant to empower the CSO sector and make it an entirely legitimate part of Kenya’s public sphere.
The new Uhuru administration refused to implement the Act. Instead, it sought to amend it extensively. To spearhead the amendment, the administration set up a task force led by Sophia Abdi Nur, a former MP who had spearheaded the Act’s passage, to collect views aimed at the amendments.
The task force lined up at least 54 amendments to the Act, most aimed at removing the special protections the law offered to CSOs. Among the changes included removing provisions that encouraged closer collaboration between government and CSOs, limiting the amount of funding available to CSOs to only 15% of their annual budget, and prohibiting CSOs from directly receiving funding from donors, with all funds channelled through a proposed PBO Federation. In addition, the amendments sought to introduce a new governing body in the CSOs sector, which would be equipped with extensive veto powers over CSOs.
Thirdly, the Uhuru administration attempted to enact specific laws aimed at curtailing the operations of CSOs. A prominent example of such laws was the Security (Amendment) Act of 2014. The Act sought to curtail press freedom and restrict NGO activity, justifying that this was necessary to fight the rising cases of terrorism in the country.
The Act was heavily contested by CSOs and the political opposition under the Coalition for Reforms and Democracy (CORD). They successfully litigated against it in the High Court, leading to the most draconian sections of the proposed law being declared unconstitutional. Besides the Security (Amendment) Act of 2014, the administration also employed the Official Secrets Act to institute a hostile environment for CSOs.
More significantly, perhaps, the administration deployed the NGO Coordination Board, the CSO sector’s main regulator, to contain the NGOs. It appointed Fazul Mohamed as the new CEO of the Board. Upon settling on the Board, Mahomet enacted several measures hostile to the day-to-day operations of CSOs. These included removing professional staff and replacing them with handpicked staff who would do his bidding on the Board; lining up a total of 1,500 NGOs and CSO entities for deregistration, among them the Kenya Human Rights Commission (KHRC), the Africa Centre for Open Governance (AfriCog), Inuka Kenya, Katiba Institute and the Muslims for Human Rights (MUHURI) organisation as well as organisations affiliated to politicians such as the Kalonzo Musyoka Foundation and the Key Empowerment Foundation Kenya, both of which were linked to opposition leaders Kalonzo Musyoka and Raila Odinga respectively; promoting organisations linked to pro-administration personalities among them the Sonko Rescue Team linked to Nairobi Senator Mike Sonko and the Margaret Kenyatta Foundation, linked to the First Lady; shifting the NGO Board from its parent ministry at the Ministry of Devolution to the Ministry of the Interior and subjecting CSOs to constant surveillance through unannounced visits.
NGOs/CSOs reacted to the hostile environment instituted against them by the Uhuru administration by forming several of their actions. First, they vigorously worked to protect the PBO Act of 2013 from destruction. They went to Court and were granted at least two orders compelling the government to operationalize the Act without any amendments. Although the Uhuru administration ignored the court orders, it nevertheless gradually gave up on attempts to amend the PBO Act.
Secondly, CSOs took on Mohamed Fazul at the NGO Board and campaigned to have him ousted as CEO at the Board. Their efforts in this endeavour received support from at least one government checks and balances entity, the Commission of Administration of Justice (CAJ). The CAJ declared Mohamed unfit to lead the Board for having used fraudulent academic qualifications in applying for the position at the Board.
Using this information, CSOs litigated against the CEO, asking the courts to declare him unfit for public office. Through Justice Hellen Wasilwa, the High Court directed Interior CS Fred Matiang’i against renewing Mohamed’s contract due to the fraudulent academic certificate. This brought an end to Mohamed’s tenure at the NGO Board.
Thirdly, CSOs mobilised internationally, using their international allies to highlight the hostile environment they faced under the Uhuru administration. This led to an international uproar against the administration. To ease the international pressure from the outcry, the administration, through Interior CS Fred Matiang’i, reversed most of the hostile actions against CSOs.
The hostile environment against CSOs eased somewhat during the Uhuru administration’s second term. This can be attributed to the administration’s shift from the ICC to the succession politics of 2022. With the change, the administration had fewer incentives to curtail the work of CSOs, and consequently, its attitude towards CSOs improved significantly.
This was exhibited most significantly in early 2020 during the launch of the NGO Sector Report for 2018/2019. Through Interior CS Fred Matiang’i, the administration pledged the government’s commitment to implementing the PBO Act of 2013. Although the Act remained unimplemented and sporadic acts of hostility against CSOs, the pledge nonetheless represented an important change in the administration’s attitude towards CSOs.
In conclusion, the Uhuru administration’s relationship with vertical accountability institutions involved at least three stances. The first stance consisted of co-optation and deliberate cultivating friendly relations with influential vertical accountability actors. This stance mostly targeted the church and ensured that, except for a few minor spats, the administration did not face any significant challenge from the church.
The second stance involved outright hostility towards certain actors in the vertical accountability terrain. This stance mostly targeted CSOs and was ignited by the ICC cases that the administration faced early on in its tenure. The hostility was vigorously fought off the CSOs using the empowering changes of the 2010 Constitution. It eventually eased off when the administration’s incentives shifted away from the ICC cases to the succession politics of 2022.
The third stance involved a confrontation between the administration and workers’ unions. Two unions that faced confrontation were the KMA and the KNUT. The KNUT emerged worse off of the two unions, with its membership totally subverted under the direct control of the administration’s agency, the TSC.
Together, the three stances demonstrated the capabilities of the administration in managing the vertical accountability terrain. These included neutralising potentially influential actors, instituting aggressive measures against other actors, and destroying some other actors when they challenged the administration. This is the capability that LSK confronted in its relationship with the administration, as shall be argued in the next article. (
— Muyumbu is researching the Law Society of Kenya’s history for a PhD from Egerton University. Reach him on email@example.com for any feedback on this and any other article.