Usually, I take pleasure in disagreeing with the Nairobi Law Monthly Leader; not this month (Supreme Court had every reason to throw out the presidential petition, Nairobi Law Monthly, May 2013.) I will resist the urge to quibble with the Leader's opinion that the Supreme Court's judgment is well-written (the atrocious grammar alone should be reason enough to demand that they revisit their high school English text-books.)
In a rare meeting of minds with the Leader, it is impossible not to see the vitriol rained on the Supreme Court by the more excitable elements of Kenya's civil society as something other than their desire to prove to their benefactors that they are doing all in their power to justify the hundreds of thousands of dollars given to them. We also agree that it is unlikely that the civil society organisations are fifth columnists out to foment civil strife at the behest of foreign donors; what they are, and what they have become since 2003, is the willing, pliable vessels of foreign powers out to secure a toe-hold in the highest (and lowest) echelons of public policy in Kenya.
Since the formation of the Forum for the Restoration of Democracy in the early 1990s, the relationship between the State and civil society has undergone a sea-change. In the halcyon days of civil society agitation for greater democratic and political freedom, civil society organisations, especially non-governmental organisations, played a commanding role in keeping the agitation for greater political space alive in the face of overwhelming odds. Indeed, statutory ones such as the Law Society of Kenya, played their part in not only defining the political issues of the day, but also in mobilising resources (from the self-same donors we cavil against today) and the hundreds of thousands of Kenyans who participated in the mass rallies that signalled an evolution in the thinking of all Kenyans. Only the most intransigently anti-donor would refuse to admit that if it were not for donor, especially Western donor, funds, Section 2A of the former Constitution would not have been repealed and Kenya would not have taken the first faltering steps to the promulgation of a new Constitution in 2010.
But since the defeat of Uhuru Kenyatta and Musalia Mudavadi's KANU in the 2002 general election, and the election of the Mwai Kibaki-led National Rainbow Coalition, civil society, especially "political" civil society, has morphed into an unrecognisable caricature of its former self. In the 1990s, civil society luminaries were proud to wear their unlawful detention as a badge of honour; many bore the marks of the cruelty and viciousness of a system that was determined to remain unreformed for all eternity. While civil society organisations took money from donors to carry on their functions, they did so knowing that they were beholden to no one and that it was their intellect, intelligence and persuasion on the facts that wedded them to the fate of the people. They were not mere vessels for the likes of Smith Hempstone to pour ideas into; they had the strength and determination to define what the nation needed and how those needs could be met.
Mwai Kibaki was never truly a friend of civil society; he simply rode the civil society wave to State House, taking advantage of the euphoria of 2002/2003 to cement his place at the head of what turned out to be a singularly perfidious and repressive regime. Using the cachet of civil society champions in his government, he began the process of rolling back many of the gains that had been made since 1992. Indeed, in the decade that Mr Kibaki was in charge, billions of shillings, almost on the scale of Goldenberg, disappeared from public coffers, and hundreds, perhaps thousands, of Kenyans were maimed or killed at the hands of State agents, all, ironically, in the name of security. But his master-stroke was to co-opt civil society into his perfidious government; by the time John Githongo was exposing the Anglo-Lasing rot, it was too late. It was at this moment, I believe, that Western donors saw a chance to build an entirely new civil society that THEY would control. This is the principle difference between the champions of 1992 and the marionettes of 2013. While in 1992 civil society accepted money from Western donors without ceding intellectual control, in 2013 many took Western cash and ideas and effectively allowed foreign agents to think for them.
It is for this reason, principally, that civil society today is unable to marshal credible ideas against the re-expansion of the State's power into areas that it shouldn't. Contemporary examples abound of the failures of civil society to hold the State to account. In the past three weeks alone, at least ten Kenyans have been murdered and scores viciously wounded at the hands of unknown bandits in Busia and Bungoma. Civil society, it seems, can no longer chew and walk at the same time; while Kenyans continue to be denied basic security from the State, civil society is only interested in whether elected representatives "deserve" fatter pay-cheques at the end of the day. "Austerity" is a Western pet-project today; security of the person and property in the developing world is not. If Kenyan civil society will not recognise this, its losses, even at the Supreme Court, will continue to mount.