Non-governmental Organizations (NGOs) are among the civil society organizations that play an invaluable role in driving democracy by fostering accountability and good governance. Such organizations promote democracy at the grassroots level by facilitating civic education and public participation in democratic processes like general elections.
So, how can lawyers collaborate with such organizations to uphold the rule of law?
Today, February 27th is World NGO Day. To mark this day, we highlight the Katiba Institute, an NGO working in the Kenyan and East African civil society space. The Katiba Institute was established in 2011, after the promulgation of the Constitution of Kenya 2010, to advance constitutionalism, good governance, advocacy, research, and civic education. We spoke to Katiba Institute’s Executive Director and international human rights lawyer, Nora Mbagathi, on the institute’s mandate, strategic partnerships, and lawyering in the NGO space.
If you’re curious about alternative/non-traditional ways of practicing the law, and more so, if you’re passionate about human rights, this piece is for you. Explore Public Interest Litigation and diverse ways to utilize your legal background to uphold the Constitution.
A Focus on Value Addition
Katiba Institute just adopted a new five-year strategic plan to execute its mandate in public interest litigation, research and publications, civic engagement, and civic education. Value addition is at the core of this new strategic plan.
According to Nora, Katiba Institute’s new strategic plan assesses its work and how it moves into specific spaces based on two crucial factors:
- The Institute’s thematic focus areas
- How Katiba Institute sees itself positioned in the space.
“The space of public interest litigation and civil societies working in the litigation space has changed significantly over the years. So, we ask ourselves at Katiba Institute, where’s the value add? How are we needed? Where do we add benefit? What do we, as Katiba, add to specific projects, case ideas, and all the areas we work on? What do we add, and how does it enforce our main elements of entrenching constitutionalism?”
According to Nora, the main challenge in developing the institute’s current thematic plan was figuring out how to position Katiba Institute proactively so that it’s not purely reactive. Instead, thematic plans allow it to retain a broader strategic aim. As an NGO, Katiba Institute considers the spaces where it adds value and complements that with the themes where its voice is crucial. Rule of law and governance, fundamental rights and freedoms, and protection of minorities are among the themes to which Katiba Institute lends its voice.
“Within all these sub-themes, there’s always the question of “Do we add value, are we needed?”There are also crucial emerging themes that need the constitutional element, e.g., climate change and environmental justice. Human rights in the digital world and how we deal with emerging technologies and their impact on our rights is also significant. Lastly is the internal theme of institutional well-being.”
She adds that Katiba’s mandate extends beyond entrenching the constitution in Kenya: It encompasses the entire region. “We’re not isolated in a bubble because Kenya is situated in its regional and global contexts. We also need to look at the regional and international factors that impact our work and whether we can partner with people in the space at the regional and international levels to drive things forward.”
Partnerships
Katiba works very closely in partnership with other organizations. Therefore, Ms. Mbagathi is keen to point out that the value Katiba Institute adds to the civil society space is always in combination with other stakeholders.
According to Nora, the NGO partners with various institutions, including the Judiciary, Media Council of Kenya, County Governments, oversight bodies, CSOs, and the communities where they work. She highlights that the Constitution as a social contract means that there are so many different agents/stakeholders that feed into that constitutionalism element. “I almost struggle to say, “Who do we partner with? It is almost easier to say, “Who do we not partner with?”
However, she’s keen to point out that the Katiba Institute is a non-partisan and non-political organization, a crucial factor in constitutional work. , “Our non-partisan policy is something we must be conscious about because the law and the constitution arepolitical; the principles and the concepts are political.” She concludes that although Katiba Institute does advocacy work political advocacy is outside its mandate.
The role lawyers play in the civil society/NGO space
Most lawyers are inclined to follow the traditional path set for lawyers (graduate from law school, practice law at an established law firm, start your law firm) from law school primarily due to surrounding influences. The experience was no different for Nora, who studied law in the US.
“It’s really interesting because that was very much my experience as well in terms of law school whereby as you learn, they push you towards law firms. However, I was always very clear about not seeing myself in litigation, partly because litigation is jurisdiction-specific. So, when you ponder whether you’d rather have a more international life, for example, you might shy away from litigation out of the fear of tying yourself to just one area geographically.”
Practicing law in a CSO can be organization-specific. Below are some areas where a legal background is handy in the Katiba Institute.
Public Interest Litigation
Public Interest Litigation is one avenue through which Katiba Institute fulfills its mandate. However, the institute’s PIL structure differs slightly from other CSOs because they have in-house lawyers. According to Nora, an in-house PIL team adds a unique element to the actual cases the institute handles. Additionally, it is vital for the work Katiba does in civic education, research, and publication.
Second, the litigation team at Katiba Institute gets a unique opportunity to think through some of the issues they work on in a broader strategic way. Often, CSOs receive a project that may have already been thought through by people (lawyers and non-lawyers) in the civil society space. The lawyer is brought in last with the different legal strategies to implement what has already been thought through.
“Here, lawyers are part of the inception process, and, interestingly, we have a significant number of people on our team who aren’t on the litigation team but work in the civic education space, yet they’re trained as lawyers. So it’s interesting for the team to be able to engage in some of the creative thoughts around “What cases are strategic?” “What kind of training is needed?” When we’re talking about entrenching the constitution, that is crucial because we’re talking about our fundamental social contract. When I was in law school, I found contract law interesting because it seems like the basis of law, and the Constitution has a little bit of that value; it’s the contract of how we function as a society.”
According to Nora, Katiba’s ‘special sauce’ is having a team of lawyers and others who intently think through that social contract from different lenses.
Training
Katiba Institute provides a lot of training on issues related to the Constitution. Ms. Mbagathi cites an example of an ongoing training program on access to information. “We do training work in different counties for communities on the right to access information and how to utilize that right. Additionally, we’re working with the counties to see how they can realize that right from the county government side.”
Katiba Institute launched the access to information training program in Nairobi, Nakuru, and Samburu counties. It collaborates with communities and county officials and works closely with the ombudsperson on this project. As highlighted earlier, some of the lawyers on the team work in the institute’s civic education arm.
Research
Nora highlights research as a significant piece of their work at Katiba. “Research is always fascinating to me because it can lead to multiple things: It may culminate in a publication, but it may be the basis for another project, civil engagement, or perhaps even a PIL case.”
However, while the areas above appear clear-cut, each day comes with unique needs, requiring different hands on deck in different spaces. “The work creates opportunities for our team members to experience mentorship by working on unique projects as they come. However, one minor downside to this is you may find yourself thrown into the deep end every now and. Nonetheless, depending on how you look at it, trial by fire creates fantastic learning opportunities.”
How Can Young Lawyers Work with Katiba Institute?
Katiba occasionally takes on fellows and interns. Fellowships are externally funded, so their availability depends on an organization agreeing to fund them. The institute’s primary function in a fellowship is hosting the fellows.
Second, although the institute has a ready team of lawyers, it may occasionally require new litigators, researchers, or consultants. For those seeking upskilling opportunities, Katiba Institute has programs that train legal officers. For instance, the institution hosted a training for young litigators from across the continent about two years ago on specific thematic issues. They hope to delve more into the networking and mentorship aspect. You can check their website for available opportunities.
Bottom Line:
Nora Mbagathi has this to say to the young lawyers contemplating their future in the legal profession.
“I think it’s important for lawyers to understand that a legal degree equips us with more than just the ability to practice law. It equips us to understand how to analyze and interpret certain principles rooted in legislation and instruments like our Constitution but doesn’t require you to be a litigator. This fact is fundamental for lawyers to remember because even personality-wise, not everyone is suited to be a litigator; it’s not everyone’s style.”
Nora concludes that the legal element adds that unique analytical value and broadens the way you can engage in work regardless of your designation. She hopes that the young lawyers out there know they’re not stuck or tied to one pathway because there’s so much out there they can do. As Nora points out at the beginning of this piece, consider your value add, even in traditional lawyering spaces, and excellence shall follow.
