Surgical reforms needed to depoliticise the civil society

We are familiar with the adage that, “Ignorance is bliss.” But two years ago, while speaking at Rutgers University, the 44th President of the United States, Barack Obama, reminded us that: “Ignorance is not a virtue.”

One would presume that Obama’s wisdom also applies to such venerated souls as the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, and others now deeply worried that “freedom has come under attack” in Kenya following the move by Kenya’s NGO Coordination Board to de-register the Kenya Human Rights Commission and to shut down the African Centre for Open Governance (AfriCOG) and to call for the arrest of its directors.


For starters, no believer in democracy and the sanctity of its institutions would condone any assault on civil society.

Expectedly, the NGO Coordination Board’s move has elicited condemnation.

Inversely, the government has been lauded for declaring a 90-day freeze on action against the two organisations. 

However, in the face of an intensely partisan and stridently politicised human rights extremist group at the helm of civil society, the question remains, who will guard the guardians?

Perhaps the best way to start negotiating our way out of the ignominy of ignorance on why Kenya’s NGO Coordination Board took its drastic action is to move from the knowns to the unknowns.


Many Kenyan intellectuals, policy pundits and publics—and I presume the esteemed UN Human Rights Chief—are pretty familiar with the concept of ‘asymmetric warfare.’ 

It is crystal clear that the 9/11 terrorist attacks and the wars in Afghanistan, Iraq, Syria and Somalia are among the best-known recent examples of how such forces of ‘evil society’ as terrorists and other extremist groups using the tactics and strategies of asymmetric warfare have imperilled human freedoms, civilisation and progress.

But one genre of asymmetric warfare which many human rights bureaucrats, intellectuals and publics are ill-informed is “lawfare,” a concept that combines the words law and warfare, and refers to that asymmetric war waged by armies of political activists disguising themselves as human rights champions and defenders.

As a form of asymmetric warfare now ubiquitously used by the political wing of Kenyan NGOs, ‘Lawfare’ is broadly defined as the use of the legal system against an enemy with the intent of damaging or delegitimising them, tying up their time or winning a public relations victory as part of a larger political game of winning power.

In an earlier article, “Ndii’s ‘genocide’ thesis a ploy to defeat democracy in 2017 poll”, this column argued that: “a tiny but vociferous group of increasingly radicalised Kenyan intellectuals and activists pose a deeper existential threat to the country perhaps than even the Al-Shabaab extremists” (SN, April 3, 2016).


The article drew a clear distinction between over 8,000-plus Kenyan NGOs such as the Kenyan Red Cross Society doing commendable work to save lives, eradicate poverty and empower communities and this tiny, but highly politicised and radicalised wing using civil society to capture state power.

This was a response to a deeply troubling and provocative article by one of the godfathers of Kenya’s civil society and Raila Odinga’s Adviser, Dr David Ndii, which declared that: “If Uhuru Kenyatta is declared winner in another sham election, this country will burn” (DN, March 26, 2016).

Tellingly, support to Ndii came from the most unusual of quarters.

On April 3, 2017, the then Chief Justice Willy Mutunga, a doyen of Kenyan civil society, took to social media—a veritable battleground for lawfare warriors—to ostensibly defend Ndii’s “freedom of expression” in a series of tweets, where he claimed that my article reminded him of intellectuals who wrote threatening pieces to silence others” (Daily Nation, April 4, 2016).


The masks came off!

The white knights of lawfare in Kenya had found a safe war-room and bunker at the apex of the country’s Judiciary.

Back to Obama’s liner that “ignorance is not a virtue,” one can fully understand the genuine concerns of the UN High Commissioner for Human Rights, Hussein, about the plight of human rights in post-election Kenya.

But it is difficult to forgive this utter ignorance of the tragic transformation of the intellectual wing of Kenya’s human rights fraternity from its classical magisterial neutrality as an impartial and non-partisan defender of the right of man (and woman), into an intensely politicised, highly partisan extremist groups as the soul of the radical oppositionist politics using the technologies of lawfare to undermine democracy and subvert its institutions.


Darfur, Sudan, is the right place to start to understand the tragic birth of what Professor Mahmoud Mamdani correctly identified as “human rights fundamentalism” that now bedevils Kenya’s transition to democratic peace.

Here, human rights activists brought the strategies of lawfare to unprecedented heights, exaggerating and mangling the conflict and popularising it as “genocide” in order to mobilise resources and gain fame and stature.

In Kenya, Jubilee pundits blame post-election violence and stability in 2007-2008, 2013 and now 2017 to the activities of human rights extremists coalesced around the KHRC and AfriCOG, whose extremism has sometimes roped in government agencies such as the Kenya National Commission on Human Rights (KNCHR) and the Independent Policing Oversight Authority (IPOA) in a classic capture of state institutions by radicalised elements in civil society.

In nearly two decades after 2002, Kenya’s human rights extremists have turned respected human rights organisations into think tanks and war-rooms of opposition politics, waging the most vicious asymmetric warfare in the International Criminal Court (ICC), Kenyan courts and the media against the government.


After the Jubilee duo won the 2013 elections, the human rights cabal used the KHRC and Africog to execute a well-funded local and international campaign to cast the 2013 election as flawed, and undermine the legitimacy of Kenya’s democracy.

It never helped the matter that AfriCOG even went to court to challenge the election results.

Jubilee has also been concerned that key leaders of these organisations have used lawfare to challenge the results of the 2017 elections and fuel public protests.

A surgical reform of civil society to depoliticise civil society as an impartial space is critical as part of democratic deepening after the 2017 elections.


Prof Kagwanja is a former Government Adviser and currently heads the Africa Policy Institute

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