There has been raging debate throughout the last one year regarding the regulation of the civil society sector. The debate revolves around the Public Benefits Organisations Act, a law passed in January 2013 but is yet to come into force.
The main arguments involve those who want the law amended even before it is implemented and those who argue that the law is adequate to address any issues around regulating the civil society and is aligned to the Constitution.
What the debate brings out is the role that civil society plays in the country. Is it about having honest dialogue on the utility of the sector?
Are civil society rabble-rousers' agents of foreign masters, irresponsible, non-patriotic and ineffective? Or are they useful actors in the country’s governance and development agenda? An honest and objective answer to this question may help resolve the cloud around the future of the sector in Kenya and the requisite regulatory regime for their operations.
The above issue occupied my mind this past week when I had occasion to speak at the Sixth Annual Civil Society Week held in Kwale under the theme of Safeguarding Citizens’ Rights, Benefits and Participation. While my presentation was on benefit sharing, it was evident that the larger role of civil society in the country was also at the back of the mind of the participants.
With this in mind, I think civil society should realise that they have an important role to play in preparing the citizenry and the country to engage with the extractive industry. One only needs to study the experience of country’s that have discovered and extracted oil and minerals to realise that to address the challenges that accompany such discoveries and harness the benefits from the sector, requires the engagement of civil society as a critical stakeholder.
The question therefore is not whether they have a role to play, but what role they should play. In my mind, civil society should not see themselves in the negative light they get painted, as being anti-development, idealists and those who pretend to speak on behalf of communities, but rather as partners in the process of identifying and resolving the challenges around the sector.
They will be required to monitor the process, ask difficult questions and contribute ideas on how best to respond to those concerns. This will be call to be proactive, responsive and analytical. This way they will contribute to ensuring that the sector is beneficial to the country and its people and not a curse.
They should seek to enhance their knowledge of the workings of the sector, carry out in-depth, build partnerships with each other and genuinely engage with other actors in the process, including Government and Private sector. They should also ensure that the voices they project are those of the communities.
Since it takes two to tango, the success of the work of civil society requires an appreciation of their role in society. This takes one back to the debate about the Public Benefits Organisation’s Act and ongoing efforts to amend it. Government has to cultivate genuine collaboration and partnerships with civil society too.
This will only be possible in an environment where the different sides realise that the utility of each other and engage honestly and robustly. This should not be mistaken for a call for an uncritical Civil Society. It is a call for constructive engagement by both government and civil society.
The challenges facing the extractive sector from labour, human rights, health, transparency, land, finances, security are monumental. In each of these areas, civil society can be able to make meaningful contribution to the discourse and efforts to ensure sustainability in the exploration and extraction stages. This is only possible if the regulatory framework is supportive and if CSOs are proactive and more evidence based in their approach.
This requires a greater focus on the public good since the greatest challenge currently is the privatisation of public good. In protecting the public good, it is normal for government and civil society to have different perspectives but they must both be committed to ensure that public good is realised. For this reason, the question whether civil society have a role misses the point.
The more legitimate question is how they can carry out their role in a more beneficial and effective manner as to respond to the challenges facing the extractive sector.
Dr Odote is a senior lecturer, Centre For Advanced Studies in Environmental Law and Policy, University of Nairobi