https://orcid.org/0000-0001-7946-7831
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ABSTRACT
Civil society is a bulwark against autocratic rule; its erosion contributes to democratic recession worldwide. Scholars and activists are calling attention to repressive laws non-democratic governments enact to undermine civil society organizations (CSOs). Yet, non-democratic governments do not only enact repressive laws; they also enact permissive, quasi-democratic legal rules. Evidence from case studies suggests that non-democratic governments enact such rules as part of a broader strategy to stabilize the regime. This article adds a within-case comparative study of Kenya’s four CSO regulators to the growing evidence showing that non-democracies can choose to manipulate civil society rather than repress it. The government’s words and documentation provide evidence: I triangulate elite interviews with elected officials and bureaucrats with archival data from government libraries and four CSO regulators. I find that the government enacts permissive legal rules and then uses several control and consultation tactics collectively, separately, and episodically to manipulate CSOs and legitimise the regime.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Lorch and Bunk, “Using Civil Society as an Authoritarian Legitimation Strategy”; Gerschewski, “The Three Pillars of Stability.”
2 Lührmann and Lindberg, “A third wave of autocratization is here”; Swiney, “The Counter-Associational Revolution”; Diamond, “Democratic regression in comparative perspective”; Boese et al., “State of the world 2021”; Cheeseman and Dodsworth, “Defending Civic Space.”
3 Teets, “Let Many Civil Societies Bloom,” 33.
4 See also Truex, “Consultative Authoritarianism and Its Limits.”
5 Mutua, Kenya's Quest for Democracy, 67.
6 See Bratton, “The Politics of Government-NGO Relations in Africa”; Mayhew, “Hegemony, Politics and Ideology”; Christensen and Weinstein, “Defunding Dissent”; Rutzen, “Aid Barriers and the Rise of Philanthropic Protectionism”; Reddy, “Do Good Fences Make Good Neighbours?”; DeMattee, “Covenants, Constitutions, and Distinct Law Types.”
7 See Lorch and Bunk, “Using Civil Society as an Authoritarian Legitimation Strategy”; DeMattee and Swiney, “Ostromian Logic Applied to Civil Society Organizations and the Rules that Shape Them”; DeMattee, “A Grammar of Institutions for Complex Legal Topics.”
8 DeMattee, “Toward a Coherent Framework”; Ibid., Domesticating Civil Society.
9 Lorch and Bunk, “Using Civil Society as an Authoritarian Legitimation Strategy,” 989–91. See also Yabanci, “Turkey’s Tamed Civil Society.”
10 Indiana University IRB Study No. 1805354074 and Kenya NACOSTI Permit No. NACOSTI/P/18/65047/23638. Appendix Tables 7 and 8 contain information on field research data sources.
11 I define civil society organizations as private, self-governed organizations established via voluntary association for purposes other than political control and economic profits.
12 Yabanci, “Turkey’s Tamed Civil Society.”
13 Teets, “Let Many Civil Societies Bloom,” 34–6.
14 Lorch and Bunk, “Using Civil Society as an Authoritarian Legitimation Strategy.”
15 I omit this tactic from my analysis because my data neither corroborates nor refutes its use.
16 Wiktorowicz, “Civil Society as Social Control: State Power in Jordan”; Dimitrovova, “ Re-shaping Civil Society in Morocco.”
17 Mayhew, “Hegemony, Politics and Ideology”; Lorch, “Civil Society under Authoritarian Rule.”
18 Brass, “Blurring Boundaries”; Ibid. Allies or Adversaries?
19 Lewis, “Civil Society and the Authoritarian State”; Froissart, “The Ambiguities between Contention and Political Participation”; Teets, Civil Society Under Authoritarianism; Wischermann et al., “Do Associations Support Authoritarian Rule?”; Toepler et al., “The Changing Space for NGOs.”
20 Wiktorowicz, “Civil Society as Social Control,” 43.
21 Froissart, “The Ambiguities between Contention and Political Participation.”
22 Diamond, “Democratic regression in comparative perspective,” 21.
23 See Samuels and Zucco, “Crafting Mass Partisanship at the Grass Roots.”
24 Giersdorf and Croissant, “Civil Society and Competitive Authoritarianism in Malaysia.”
25 Tripp, “The Politics of Autonomy and Cooptation in Africa”; Teets, Civil Society Under Authoritarianism.
26 Spires, “Contingent Symbiosis and Civil Society in an Authoritarian State”; Fröhlich and Skokova, “Two for One”; Russell, “Reconstituted authoritarianism.”
27 I thank a highly reputable legal expert in East Africa for initially suggesting this idea to me.
28 Summaries exclude laws that apply to all regulators (e.g., The Finance Act No. 15 of 2017). Due to space limitations, I direct readers to existing research explaining how laws are systematically coded using a 58-item coding protocol (DeMattee 2019, 2020, 2022)
29 The “Annual NGO Sector Report 2018/19” (NGOs Co-Ordination Board 2019, 22) gives us this range. Since its inception, the NGOs Board has registered 11,262 NGOs as of June 30, 2019. The Board has deregistered 2,468 and reinstated 113 NGOs. Only 14 NGOs have dissolved. The Board estimates the number of “active” NGOs are those that registered, minus those deregistered, plus those reinstated, minus those dissolved (11,262 – 2,468 + 113 – 14 = 8,893). This represents 79% of NGOs ever registered. However, “[t]he report notes low compliance levels in submission of annual reports. Out of 8,893 expected to be active, only 3,028 NGOs (34%) filed their reports during the year” (p. 17). As of December 31st, 2018, the true but unknown number of NGOs operating in Kenya ranges between 26.9% (3,023 are active and compliant) and 79.0% (8,892 are active and either compliant or non-compliant) of all NGOs ever registered.
30 Mahoney, “The Logic of Process Tracing Tests in the Social Sciences.”
31 Mayhew, “Hegemony, Politics and Ideology”; DeMattee, Domesticating Civil Society.
32 The NGOs Act gives the NGOs Board the ability to establish “subsidiary organs” that are “necessary for the performance of its functions” (§ 8(a)), which includes only eight functions. The broadest function is “to conduct a regular review of the register to determine the consistency with the reports submitted by NGOs” (§ 7(e)).
33 Carothers and Brechenmacher, Closing Space.
34 I cannot claim that this data is comprehensive nor representative of NIS's involvement in the registration process. Nevertheless, these decades-old communiqués provide uncommon and unvarnished insight into a national security agency's activities to undermine civil society.
35 Amollo and The Office of the Ombudsman, Death of Integrity.
36 Unlike other regulators in Kenya, the NGOs Act requires the NGOs Board to advise the government on the role NGOs have in development within Kenya (§ 7). NGOs Board interview participants concur that the publication of the “Annual NGO Sector Report” fulfils this responsibility.
37 See also Mutunga, Constitution-Making from the Middle.
38 Oxfam registered as a company limited by guarantee in 1977. The Legal Advice Centre (Kituo Cha Sheria) is one of the oldest and most experienced legal aid CSOs in East Africa and offers free legal advice to Kenyans. Its legal experts registered the organisation in 1973.
39 NGOs Act (No. 19 of 1990) assented January 14th, 1991, amended by The Statute Law (Repeal and Miscellaneous Amendments) Act (No. 14 of 1991, pp. 610–2), commenced June 15th, 1992.
40 Branch, Kenya; Hornsby, Kenya.
41 Mutunga, Problematizing and Interrogating the Theme “Shrinking Civic Space, Freedom of Assembly and of Association,” 3.
42 Blackstone, Commentaries on the Laws of England.
43 When requesting access to these reports, the NGOs Board explained it could not share unpublished drafts and directed me to its Resource Center library for all available documents. That library contained only one such report (Financial Year 2013/14). Since concluding fieldwork, the regulator published the 2018/19 report (NGOs Co-Ordination Board 2019)
44 The Executive Office of The President, President’s Delivery Unit. (n.d.). The Big 4. https://big4.delivery.go.ke/
45 Teets, “Let Many Civil Societies Bloom”; Ibid. Civil Society Under Authoritarianism.
46 I credit Lorch and Bunk (2017, 989–91) who first identified these tactics.