Posted: 11 February, 2025 Filed under: Andrew Songa | Tags: advocacy for reforms, African Union Transitional Justice Policy, civil society, democratic transformation, divisions, human rights violations, inequalities, institutional reforms, National Council for Administration of Justice, past violations, public opinion, public pressure, public symposiums, reform processes, socio-economic transformation, Transformative Institutional Reforms, Transitional Justice
Author: Andrew Songa
Strategic Advisor, Alt Advisory
If institutional reforms are meant to positively and fundamentally transform our state structures and society, then civil society must play a key role in developing, implementing and monitoring them. In defining transitional justice as policy measures and mechanisms that are implemented to overcome past violations, divisions and inequalities, the African Union Transitional Justice Policy emphasises that these measures should enable the forward-looking goals of democratic and socio-economic transformation. A key measure that underpins this transformative potential of transitional justice is institutional reforms. This is because, if properly designed and implemented, institutional reforms transcend temporary or symbolic measures. They address past violations by introducing state institutions that are competent, ethical, independent, accessible, well-resourced and a reflection of the communities they serve.
In addition, transformative institutional reforms within transitional justice should be underpinned by two key philosophies. One is the acknowledgement that there are continuities between the past and present and that creating a better future is an open-ended, ongoing project. The other is that institutional reforms are strategic actions that challenge imbalances in society’s power relations and the structures that lead to exclusion of the ‘powerless.’
Civil society is central to institutional reforms because it occupies the space between the state, family and business. This enables it to advocate for the types of strategic actions that tilt the balance of power in favour of people-driven and responsive institutional reforms. Civil society organisations are often first responders or the initial point of engagement for victims and survivors, which means they can identify institutional failures and deficiencies that require reform.
Civil society organisations also possess thematic expertise by focusing on an issue or group over time. Moreover, they are likely to enjoy public support in a context where the state might be viewed as a perpetrator of human rights violations. Experience in Kenya and other countries shows how civil society can best ensure transformative institutional reforms.
Agenda Setting
Civil society organisations can make the case for the most suitable reforms based on their experience and accumulated expertise, such as in documenting and monitoring human rights violations.
Illustratively, Kenyan civil society was instrumental in outlining and shaping police, land, judicial and constitutional reforms during the country’s transitional moment in 2008, which arose from the post-election violence of 2007. The organisations’ efforts were based on advocacy, research and activism they had undertaken in the two decades prior. Indeed, in his mediation efforts that culminated in the 2008 National Accord, Kofi Annan formally acknowledged that Kenyan civil society played a pivotal role in helping him understand the context of the Kenyan crisis and, ultimately, in shaping the institutional reforms that would be enshrined in the fourth agenda item of the process.
While Kenya benefited from a well-established and recognised civil society at the time of its crisis, most conflict contexts are characterised by a non-existent or shrinking civic space that has to be invigorated. Therefore, the recognition and expansion of civic space and actors has to be considered an important pre-condition at the mediation stage of conflict resolution and factored into the vision of transformation and into programming towards that transformation.
Facilitating Inclusion and Public Participation
Civil society can play a pivotal role in ensuring that the victims and survivors it works with are effectively consulted and their input utilised in reform processes. It can do this by creating or facilitating platforms for their input. A good example is the Kenyan National Victims and Survivors Network, whose establishment was supported by civil society as a space for various victims and survivors to organise and make demands on the state, while also enabling different duty bearers such as the Truth, Justice and Reconciliation Commission to engage with them.
Civil society organisations support and amplify the agency of victims and survivors through actions such as public or parliamentary petitions, strategic litigation and even public protests. They have also been instrumental in explaining complex reforms processes for greater engagement by victims, survivors and the wider public. They have done this through public engagement activities, such as developing scorecards on institutional reforms and convening public symposiums and debates on the state of reform processes.
Ensuring Accountable Processes
Civil society organisations are at the vanguard of monitoring the process and substance of reforms, with a view to holding duty bearers accountable both in the court of public opinion and in the legal arena whenever aspects of due process and constitutionalism are flouted. This ensures that the outcomes of institutional reforms are properly assessed against the goals of transformative transitional justice.
When the reformed institutions are finally in place, civil society continues to play this vanguard role by engaging and testing the new limits of presumed rights, freedoms and protections. In Kenya, this has been exemplified by an increase in strategic litigation on constitutional questions by organisations, as well as civil society membership in multi-stakeholder platforms such as the National Council for Administration of Justice.
Cultivating and Maintaining Civic Space
Lessons from transitional justice contexts like Kenya show that it is crucial to foster collaborations within civil society that build solidarity and strengthen its collective position at the bargaining table, alongside other stakeholders such as political actors and the private sector. Furthermore, expanded civic space in itself should be a desired outcome and dividend of institutional reforms that are part of transitional justice.
Networking at a Programme Level
In the context of complex and multi-layered reforms, networking among civil society organisations across various thematic concerns can ensure efficient use of resources and enhance impact. For example, Kenyan civil society designed the Kenya Transitional Justice Network to work in thematic clusters to increase its impact on different facets of institutional reforms such as access to justice, women’s rights and land reforms.
Creating Feedback Loops and Learning Spaces
It is essential for civil society organisations to check in with victim and survivor groups regularly to ensure their advocacy on institutional reforms is well grounded and not based on presumptions. This is an essential barometer for the responsiveness and effectiveness of civil society efforts.
Additionally, organisations need to take stock at periodic intervals to audit the status of reforms. This enables proper strategising and the deployment of requisite tactics at different stages, for example whether to continue engaging with the state or withdraw and whether to apply public pressure or use quiet diplomacy.
Strengthening Institutional Resilience
Civil society needs to reflect deeply on how to address the state backlash that often comes with advocacy for reforms. Reflection is also required on how to ensure that resource mobilisation for civil society engagement matches the long view and approach to institutional reforms, which in many cases take years to achieve.
Ultimately, institutional reforms are meant to address past violations by creating an inclusive state with structures that enjoy public legitimacy and support. The involvement of civil society through organisations that work closely with victims and survivors is a critical transformative ingredient to realising this outcome.
This piece was originally published by the African Transitional Justice Hub, an initiative of the Centre for the Study of Violence and Reconciliation.
About the Author:
Andrew Songa is a Strategic Advisor at Alt Advisory and a member of the African Union’s Transitional Justice in Africa Reference Group.
