Connect with us

Politics

Executive Disorder: Unpacking Illegal Presidential Directives

8 min read.

The 2010 constitution does not support an all-powerful president. Presidential orders or directives are not supported by the constitution, which is more concerned with the rule of law, good governance, inclusiveness in decision-making and dispersal of state power.

Published

on

Hail the President
Download PDFPrint Article

President Uhuru Kenyatta has the tendency of issuing orders and declarations. These directives, which in State House jargon are often referred to as executive orders, are issued from all manner of venues and events but commonly from State House, when he is delivering his speeches during national holidays and often during the State of the Nation address given in March every year in parliament.

The language the president uses when issuing these orders is deliberate. It is one of “I have directed”, “I have instructed” or “I have ordered”. That choice of language communicates a number of things. One, that the president has the legal authority and power to make the order and two, that those directed to undertake the action must do so. The orders also take various forms. Some are formally written, but some are just that – verbal orders made during a televised address or at a moment of excitement during a political rally.

Situating executive orders in history

In Kenya, executive orders are not new. President Daniel arap Moi was notorious for issuing executive orders. In fact, his executive orders were often referred to as “roadside declarations” because they were issued randomly and unpredictably, often by the roadside when he stopped to greet people. Often he would stop to “buy” vegetables by the roadside and would demand that a government officer or a state agency undertake a certain action. He seemed not to care about the implications, often issuing orders which sometimes would require billions of shillings to implement. The orders were issued with no prior government planning. Some would be petty or vindictive, including ordering the detention of those who questioned his regime. But regardless of how petty or costly his orders were, he expected nothing less than full implementation of them. Luckily, Moi ruled at a different time, when it was hard to distinguish between him and the law. Kenya law was what Moi said the law was and most of those who thought differently either ended up in detention or with their collar bones broken by the ruthless anti-riot police.

The language the president uses when issuing these orders is deliberate. It is one of “I have directed”, “I have instructed” or “I have ordered”. That choice of language communicates a number of things. One, that the president has the legal authority and power to make the order and two, that those directed to undertake the action must do so.

On the global scene, even though past American presidents have issued executive orders, Donald Trump is perhaps the first US president to be most associated with popularising executive orders. On the day he was sworn into office, he wore an adolescent grin as he signed away tens of executive orders. The excitement he felt at finally having the power to use the presidential pen was palpable. As fate would have it, he would get a rude awakening later when a number of his key executive orders were challenged, including those imposing a travel ban on persons from a number of select Muslim-dominated countries.

Uhuru’s orders

So what are Uhuru’s executive orders? There are countless but a few examples will suffice here. Early this year, Uhuru issued an executive order creating the Nairobi Metropolitan Area Transport Authority (NAMATA), a multi-billion-shilling agency that is intended to integrate the transport of four counties – Nairobi, Machakos, Kajiado and Kiambu – in order to ease traffic and bring order to public transport in the Nairobi metropolitan area. In his 2015 State of the Nation address, he had issued an executive order creating a ten-billion Restorative Justice Fund, which was meant to compensate victims of historical state injustices, including the victims of the 2007/8 post-election violence. In the same speech, he ordered the Ethics and Anti-Corruption Commission and the Director of Public Prosecutions to finalise the processing of pending anti-corruption cases within sixty days. Earlier he had issued Executive Order Number Six (6) on Ethics and Integrity in the Public Service with directives to various state organs on what they must do to fight corruption.

What the constitution says

But are the President’s executive orders legal or constitutional?

Because of Kenya’s history of misrule – during the Jomo Kenyatta, Daniel arap Moi and Mwai Kibaki regimes – Kenyans learned that it was a fundamental mistake to concentrate power in one individual or institution.

Kenya has one of the most progressive and transformative constitutions in the world. The constitution is value-laden, with some of the critical values being the rule of law, good governance, separation of powers, transparency and accountability and respect for human rights. Two additional values are devolution of power and participation of the people.

Because of Kenya’s history of misrule – during the Jomo Kenyatta, Daniel arap Moi and Mwai Kibaki regimes – Kenyans learned that it was a fundamental mistake to concentrate power in one individual or institution. Though the independence constitution had modestly dispersed power, including by creating regional governments, Uhuru Kenyatta’s father, Jomo Kenyatta, was quick to weaken the institutions of state and concentrate power around him. The president, not even the presidency, became synonymous with the law. Moi would perfect this, and although Kibaki was slightly shy about it, he never failed to use this privilege, especially whenever it suited him personally.

Because of this sad history of autocratic domination, when Kenyans promulgated a new constitution in 2010, they dispersed state power as much as possible, first, vertically by deconcentrating power through devolution and ring-fencing the functions of each level of government, and second, by dispersing power horizontally by entrenching a strong separation-of-powers regime between the executive and the legislature and by structurally providing for one of the most powerful and independent judiciaries in the world.

The net effect of all this is that, constitutionally, we have a relatively weak national executive – in fact, very weak by the 1969 constitution’s standards. Note this: the constitution created a president who is both the head of national government (the national executive) and the head of state. The titles are colourful, but constitutionally the institution of the presidency does not have much power. This is for three reasons.

First, the constitution created many safeguards to check the president’s power. For example, hardly any of the president’s appointees (except his personal staff) can take office without parliamentary vetting. Even when – as has been with the current parliament – parliament fails to appreciate the enormity of its power of oversighting the executive and allows mediocre appointees by the president to take office, the courts can constitutionally intervene and can even invalidate the president’s appointments.

Second, the constitution places little trust in the presidency; this is evident in Article 135, which requires a “decision of the President in the performance of any function of the President under this Constitution shall be in writing and shall bear the seal and signature of the President.” The effect of Article 135 is that any decision of the president that is not in writing is illegal.

The president cannot take over a function constitutionally given to the counties and direct them on what to do or how to do it. If he does this, he is usurping the powers of the counties, which is illegal.

Finally, the president cannot tell anything to most of the critical state organs. On this, for example, the president has no power over county governments, because, constitutionally, the heads of those governments are county governors, who through ingenious but important constitutional provisions, are co-equals of the president. Additionally, constitutionally, the president cannot direct state institutions, such as the Office of the Director of Public Prosecutions (DPP) and independent commissions, such as the Ethics and Anti-Corruption Commission (EACC) or even the Office of the Inspector General of Police. In other words, the president is more a head of state (which constitutionally is more of a ceremonial office) than the head of government.

Illegal executive orders?

So how legal are executive orders? The quick answer is that they are mostly illegal. Why?

It is easier to answer the why question by looking at the various executive orders I outlined earlier.

Let’s start with NAMATA. The illegalities here are numerous. First, local transport under the constitution is a function of counties. The president cannot take over a function constitutionally given to the counties and direct them on what to do or how to do it. If he does this, he is usurping the powers of the counties, which is illegal. Not that the constitution excludes the president from having a say on an institution like NAMATA. No. He can, as a citizen, participate in demanding the creation of such an organ to address what is obviously a genuine and critical need. He can also, as president, through constitutionally created intergovernmental mechanisms, find ways to work with the counties involved to develop such an organ. He could also, using his clout as the head of national government, request parliament to grant conditional grants to the counties to develop such a facility.

Interestingly, some of the institutions targeted by the president are the very independent commissions and offices that are supposed to be insulated from state or presidential interference.

Second, NAMATA becomes problematic when it is created through an executive order. This problem also arises in regard to the executive order creating a Restorative Justice Fund. Both require significant financial outlay (at least Ksh10 billion for the Restorative Justice Fund, and more in the case of NAMATA). The institutions that have the power to allocate state revenue are parliament and county assemblies, not the presidency. Parliament and county assemblies were not involved, at least initially, either in the conceptualisation of the idea or in the issuance of the executive orders. Hence later attempts to create a legislative framework to facilitate these efforts are nothing but sanitising an illegality. And a sanitised illegality still remains an illegality.

What of the orders to the EACC and DPP to process corruption cases within sixty days? Also illegal. The constitution says both of these institutions are independent – in fact, the constitution refers to them as independent offices and commissions. This was done deliberately. Kenyans knew that public officers and state institutions have tendencies to violate the law. They needed strong watchdogs to check the excesses of public officers and state institutions. They also had to insulate these watchdogs from the potentially offending public institutions and officers, including the president. One such insulation was to require that the independent commissions and offices undertake their mandate independently and without being directed by anyone external to them. When the president issues directives to these independent bodies, he is compromising their independence and violating the constitution.

Creating an image of an all-powerful office, which is communicated by the choice of words that commonly feature in the president’s speeches, is an act of executive brainwashing on citizens. The intention is to create a state of mind among the public that the president can ask for anything to be done and it must and will be done.

Interestingly, some of the institutions targeted by the president are the very independent commissions and offices that are supposed to be insulated from state or presidential interference. Unfortunately, some of these institutions have not responded adequately to illegal executive orders. In his 2015 State of the Nation address, the president issued investigatory and prosecutorial directives to the EACC and the DPP; both frantically tried to implement the executive order. In fact, with the exception of the Office of the Auditor General (and here it is more the Auditor General himself than the office), hardly any of the commissions and independent offices can be regarded as having the spine to fight the illegality of executive orders. The National Police Service Commission (NPSC), despite its strategic constitutional mandate of enforcing the rule of law, was perhaps the first to buckle under the weight of the executive’s demands. Other commissions are similarly eager to turn a blind eye on the executive’s transgressions.

Executive brainwashing

The 2010 constitution does not support an all-powerful president. Presidential orders or directives are not supported by the constitution, which is more concerned with the rule of law, good governance, inclusiveness in decision-making and dispersal of state power.

When you read the State of the Nation address or any address by the president, the impression you are left with is of a very powerful office. The terms, “direct”, “order”, “require”, litter such statements. Creating an image of an all-powerful office, which is communicated by the choice of words that commonly feature in the president’s speeches, is an act of executive brainwashing on citizens. The intention is to create a state of mind among the public that the president can ask for anything to be done and it must and will be done. Jomo Kenyatta and Daniel arap Moi secured their dictatorial regimes through this kind of psychological sabotage. Unfortunately, Uhuru seems to be hanging on to a dwindling warmth of history, a history long banished by the constitution.

Support The Elephant.

The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.

Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.

By

Waikwa is a constitutional lawyer and co-founder of Katiba Institute.

Continue Reading

Politics

Who Won Kenya’s “Nominations”?

Being nominated rather than selected by party members may undermine grass-roots legitimacy but it is hard not to suspect that some of the losers in the nominations process might feel a little bit relieved at this out-turn.

Published

on

Who Won Kenya’s “Nominations”?
Download PDFPrint Article

Who won Kenya’s “nominations”, the tense and often unpredictable political process through which parties select which candidates they want to represent them in the general election scheduled for 9 August? That may sound like a silly question. Social media is full of photographs of smiling candidate clutching their certificates of nomination—surely we need to look no further for the winners?

But maybe we do. Beyond the individual candidates in the contests for nominations, there are other winners. One may be obvious: it seems the general feeling is that Deputy President William Ruto came out better from the nominations than did his principal rival in the presidential race, former opposition leader Raila Odinga—about which more below. However, for some, coming out on top in the nominations may prove a poisoned chalice. Where nominations are seen to have been illegitimate, candidates are likely to find that losing rivals who stand as independents may be locally popular and may gain sympathy votes, making it harder for party candidates to win the general election. This means that there are often some less obvious winners and losers.

One reason for this is that nominations shape how voters think about the parties and who they want to give their vote to, come the general election. Research that we conducted in 2017, including a nationally representative survey of public opinion on these issues, found that citizens who felt that their party’s nomination process had not been legitimate were less likely to say that they would vote in the general election. In other words, disputed and controversial nomination processes can encourage voters to stay away from the general election, making it harder for leaders to get their vote out. In 2017, this appeared to disadvantage Odinga and his Orange Democratic Movement (ODM), whose nomination process was generally seen to have been more problematic—although whether this is because they were, or rather because this is how they were depicted by the media, is hard to say.

In the context of a tight election in 2022, popular perceptions of how the nominations were managed may therefore be as significant for who “wins” and “loses” as the question of which individuals secured the party ticket.

Why do parties dread nominations?

The major parties dreaded the nominations process—dreaded it so much, in fact, that despite all their bold words early on about democracy and the popular choice (and despite investments in digital technology and polling staff), most of the parties tried pretty hard to avoid primary elections as a way of deciding on their candidates. In some cases that avoidance was complete: the Jubilee party gave direct nominations to all those who will stand in its name. Other parties held some primaries—Ruto’s United Democratic Alliance (UDA) seems to have managed most—but in many cases they turned to other methods.

That is because of a complicated thing about parties and elections in Kenya. It is widely assumed—and a recent opinion poll commissioned by South Consulting confirms this—that when it comes to 9 August most voters will decide how to cast their ballot on the basis of individual candidates and not which party they are standing for. Political parties in Kenya are often ephemeral, and people readily move from one to another. But that does not mean that political parties are irrelevant. They are symbolic markers with emotive associations – sometimes to particular ideas, sometimes to a particular regional base. ODM, for example, has been linked both with a commitment to constitutional reform and with the Luo community, most notably in Nyanza. So the local politician who wants to be a member of a county assembly will be relying mostly on their personal influence and popularity—but they know that if they get a nomination for a party which has that kind of emotive association, it will smoothen their path.

Disputed and controversial nomination processes can encourage voters to stay away from the general election, making it harder for leaders to get their vote out.

This means that multiple candidates vie for each possible nomination slot. In the past, that competition has always been expensive, as rival aspirants wooed voters with gifts. It occasionally turned violent, and often involved cheating. Primary elections in 2013 and 2017 were messy and chaotic, and were not certain to result in the selection of the candidate most likely to win the general election. From the point of view of the presidential candidates, there are real risks to the primary elections their parties or coalitions oversee: the reputational damage due to chaos and the awareness that local support might be lost if a disgruntled aspirant turns against the party.

This helps to explain why in 2022 many parties made use of direct nominations—variously dressed up as the operation of consensus or the result of mysterious “opinion polls” to identify the strongest candidate. What that really meant was an intensive process of promise-making and/or pressure to persuade some candidates to stand down. Where that did not work, and primaries still took place, the promise-making and bullying came afterwards—to stop disappointed aspirants from turning against the party and standing as independents. The consequence of all that top-down management was that the nominations saw much less open violence than in previous years.

So who won, and who lost, at the national level?

Despite all the back-room deal-making, top-down political management was not especially successful in soothing the feelings of those who did not come out holding certificates. That brings us to the big national winners and losers of the process. Odinga—and his ODM party—have come out rather bruised. They have been accused of nepotism, bribery and of ignoring local wishes. This is a particularly dangerous accusation for Odinga, as it plays into popular concerns that, following his “handshake” with President Kenyatta and his adoption as the candidate of the “establishment”, he is a “project” of wealthy and powerful individuals who wish to retain power through the backdoor after Kenyatta stands down having served two-terms in office. In the face of well-publicised claims that Odinga would be a “remote controlled president” doing the bidding of the Kenyatta family and their allies, the impression that the nominations were stage-managed from on high in an undemocratic process was the last thing Azimio needed.

Moreover, perhaps because Odinga seems to have been less active than his rival in personally intervening to mollify aggrieved local politicians, the ODM nominations process seems to have left more of a mess. That was compounded by complications in the Azimio la Umoja/One Kenya Alliance Coalition Party (we’ll call it Azimio from now on, for convenience). Where Azimio “zoned”—that is, agreed on a single candidate from all its constituent parties—disappointed aspirants complained. Where it did not zone, and agreed to let each party nominate its own candidate for governor, MP and so on, then smaller parties in the coalition complained that they would face unfair competition come the general election. That is why the leaders of some of these smaller groups such as Machakos Governor Alfred Mutua made dramatic (or theatrical, depending on your view) announcements of their decision to leave Azimio and support Ruto.

Despite all the back-room deal-making, top-down political management was not especially successful in soothing the feelings of those who did not come out holding certificates.

So Ruto looks like a nomination winner. But his success comes with a big price tag. His interventions to placate disgruntled aspirants involved more than soothing words. A new government will have lots of goodies to distribute to supporters—positions in the civil service and parastatals, diplomatic roles, not to mention business opportunities of many kinds. But the bag of goodies is not bottomless, and it seems likely that a lot of promises have been made. Ruto’s undoubted talents as an organizer and deal-maker have been useful to him through the nominations—but those deals may prove expensive for him, and for Kenya, if he wins the presidential poll.

Money, politics, and the cost of campaigns

Those who “won” by being directly nominated to their desired positions may also come to see this process as something of a double-edged sword. In the short term, many of them will have saved considerable money: depending on exactly when the deal was done, they will have been spared some days of campaign expenses—no need to fuel cars, buy airtime for bloggers, pay for t-shirts and posters, and hand out cash. But that will be a brief respite. The disappointed rivals who have gone independent will make the campaigns harder for them—and likely more expensive. The belief that they were favoured by the party machinery may mean that voter expectations are higher when it comes to handouts and donations on the campaign trail. And the fact they were nominated rather than selected by party members may undermine their grass-roots legitimacy.

Others may experience a similar delayed effect. Among the short-term losers of the nominations will have been some of the “goons” who have played a prominent physical role in previous nominations: their muscular services were largely not required (although there were exceptions). The printers of posters and t-shirts will similarly have seen a disappointing nominations period (although surely they will have received enough early orders to keep them happy, especially where uncertainty over the nomination was very prolonged). The providers of billboard advertising may have seen a little less demand than they had hoped for, although they too seem to have done quite well from selling space to aspirants who—willingly or not—did not make it to the primaries. But where the general election will be fiercely contested, entrepreneurs will likely make up any lost ground as the campaigns get going. In these cases, competition has been postponed, not avoided.

Those in less competitive wards, constituencies or counties—the kind in which one party tends to dominate in the general election—are unlikely to be able to make up for lost time. These “one-party” areas may be in shorter supply in 2022 than in the past, due to the way that the control of specific leaders and alliances over the country’s former provinces has fragmented, but there will still be some races in which it is obvious who will win, and so the campaigns will be less heated.

Those who “won” by being directly nominated to their desired positions may also come to see this process as something of a double-edged sword.

More definite losers are the parties themselves. In some ways, we could say they did well as institutions, because they were spared the embarrassment of violent primaries. But the settling of many nominations without primaries meant not collecting nomination fees from aspirants in some cases, and refunding them in others. That will have cost parties a chunk of money, which they won’t get back. That may not affect the campaigns much—the money for campaigns flows in opaque and complex ways that may not touch the parties themselves. But it will affect the finances of the parties as organizations, which are often more than a little fragile.

Are the losers actually the biggest winners?

Some losers, however, are really big winners. Think about those candidates who would not have won competitive primaries but were strong enough to be able to credibly complain that they had been hard done by due to the decision to select a rival in a direct process. In many cases, these individuals were able to extract considerable concessions in return for the promise not to contest as independents, and so disrupt their coalition’s best laid plans. This means that many of the losers—who may well have been defeated anyway—walked away with the promise of a post-election reward without the expense and bother of having to campaign up until the polls.

It is hard not to suspect that some of them might feel a little bit relieved at this out-turn. In fact, some of them may have been aiming at this all along. For those with limited resources and uncertain prospects at the ballot, the opportunity to stand down in favour of another candidate may have been pretty welcome. Instead of spending the next three months in an exhausting round of funerals, fund-raisers and rallies, constantly worrying about whether they have enough fifty (or larger) shilling notes to hand out and avoiding answering their phones, they can sit back and wait for their parastatal appointment, ambassadorship, or business opportunity.

For those with limited resources and uncertain prospects at the ballot, the opportunity to stand down in favour of another candidate may have been pretty welcome.

For these individuals, the biggest worry now is not their popularity or campaign, but simply the risk that their coalition might not win the presidential election, rendering the promises they have received worthless. Those whose wishes come true will be considerably more fortunate—and financially better off—than their colleagues who made it through the nominations but fall at the final hurdle of the general election.

Separating the winners of the nominations process from the losers may therefore be harder than it seems.

Continue Reading

Politics

Asylum Pact: Rwanda Must Do Some Political Housecleaning

Rwandans are welcoming, but the government’s priority must be to solve the internal political problems which produce refugees.

Published

on

Asylum Pact: Rwanda Must Do Some Political Housecleaning
Download PDFPrint Article

The governments of the United Kingdom and Rwanda have signed an agreement to move asylum seekers from the UK to Rwanda for processing. This partnership has been heavily criticized and has been referred to as unethical and inhumane. It has also been opposed by the United Nations Refugee Agency on the grounds that it is contrary to the spirit of the Refugee Convention.

Here in Rwanda, we heard the news of the partnership on the day it was signed. The subject has never been debated in the Rwandan parliament and neither had it been canvassed in the local media prior to the announcement.

According to the government’s official press release, the partnership reflects Rwanda’s commitment to protect vulnerable people around the world. It is argued that by relocating migrants to Rwanda, their dignity and rights will be respected and they will be provided with a range of opportunities, including for personal development and employment, in a country that has consistently been ranked among the safest in the world.

A considerable number of Rwandans have been refugees and therefore understand the struggle that comes with being an asylum seeker and what it means to receive help from host countries to rebuild lives. Therefore, most Rwandans are sensitive to the plight of those forced to leave their home countries and would be more than willing to make them feel welcome. However, the decision to relocate the migrants to Rwanda raises a number of questions.

The government argues that relocating migrants to Rwanda will address the inequalities in opportunity that push economic migrants to leave their homes. It is not clear how this will work considering that Rwanda is already the most unequal country in the East African region. And while it is indeed seen as among the safest countries in the world, it was however ranked among the bottom five globally in the recently released 2022 World Happiness Index. How would migrants, who may have suffered psychological trauma fare in such an environment, and in a country that is still rebuilding itself?

A considerable number of Rwandans have been refugees and therefore understand the struggle that comes with being an asylum seeker and what it means to receive help from host countries to rebuild lives.

What opportunities can Rwanda provide to the migrants? Between 2018—the year the index was first published—and 2020, Rwanda’s ranking on the Human Capital Index (HCI) has been consistently low. Published by the World Bank, HCI measures which countries are best at mobilising the economic and professional potential of their citizens. Rwanda’s score is lower than the average for sub-Saharan Africa and it is partly due to this that the government had found it difficult to attract private investment that would create significant levels of employment prior to the COVID-19 pandemic. Unemployment, particularly among the youth, has since worsened.

Despite the accolades Rwanda has received internationally for its development record, Rwanda’s economy has never been driven by a dynamic private or trade sector; it has been driven by aid. The country’s debt reached 73 per cent of GDP in 2021 while its economy has not developed the key areas needed to achieve and secure genuine social and economic transformation for its entire population. In addition to human capital development, these include social capital development, especially mutual trust among citizens considering the country’s unfortunate historical past, establishing good relations with neighbouring states, respect for human rights, and guaranteeing the accountability of public officials.

Rwanda aspires to become an upper middle-income country by 2035 and a high-income country by 2050. In 2000, the country launched a development plan that aimed to transform it into a middle-income country by 2020 on the back on a knowledge economy. That development plan, which has received financial support from various development partners including the UK which contributed over £1 billion, did not deliver the anticipated outcomes. Today the country remains stuck in the category of low-income states. Its structural constraints as a small land-locked country with few natural resources are often cited as an obstacle to development. However, this is exacerbated by current governance in Rwanda, which limits the political space, lacks separation of powers, impedes freedom of expression and represses government critics, making it even harder for Rwanda to reach the desired developmental goals.

Rwanda’s structural constraints as a small land-locked country with no natural resources are often viewed as an obstacle to achieving the anticipated development.

As a result of the foregoing, Rwanda has been producing its own share of refugees, who have sought political and economic asylum in other countries. The UK alone took in 250 Rwandese last year. There are others around the world, the majority of whom have found refuge in different countries in Africa, including countries neighbouring Rwanda. The presence of these refugees has been a source of tension in the region with Kigali accusing neighbouring states of supporting those who want to overthrow the government by force. Some Rwandans have indeed taken up armed struggle, a situation that, if not resolved, threatens long-term security in Rwanda and the Great Lakes region. In fact, the UK government’s advice on travel to Rwanda has consistently warned of the unstable security situation near the border with the Democratic Republic of Congo (DRC) and Burundi.

While Rwanda’s intention to help address the global imbalance of opportunity that fuels illegal immigration is laudable, I would recommend that charity start at home. As host of the 26th Commonwealth Heads of Government Meeting scheduled for June 2022, and Commonwealth Chair-in-Office for the next two years, the government should seize the opportunity to implement the core values and principles of the Commonwealth, particularly the promotion of democracy, the rule of law, freedom of expression, political and civil rights, and a vibrant civil society. This would enable Rwanda to address its internal social, economic and political challenges, creating a conducive environment for long-term economic development, and durable peace that will not only stop Rwanda from producing refugees but will also render the country ready and capable of economically and socially integrating refugees from less fortunate countries in the future.

Continue Reading

Politics

Beyond Borders: Why We Need a Truly Internationalist Climate Justice Movement

The elite’s ‘solution’ to the climate crisis is to turn the displaced into exploitable migrant labour. We need a truly internationalist alternative.

Published

on

Beyond Borders: Why We Need a Truly Internationalist Climate Justice Movement
Download PDFPrint Article

“We are not drowning, we are fighting” has become the rallying call for the Pacific Climate Warriors. From UN climate meetings to blockades of Australian coal ports, these young Indigenous defenders from twenty Pacific Island states are raising the alarm of global warming for low-lying atoll nations. Rejecting the narrative of victimisation – “you don’t need my pain or tears to know that we’re in a crisis,” as Samoan Brianna Fruean puts it – they are challenging the fossil fuel industry and colonial giants such as Australia, responsible for the world’s highest per-capita carbon emissions.

Around the world, climate disasters displace around 25.3 million people annually – one person every one to two seconds. In 2016, new displacements caused by climate disasters outnumbered new displacements as a result of persecution by a ratio of three to one. By 2050, an estimated 143 million people will be displaced in just three regions: Africa, South Asia, and Latin America. Some projections for global climate displacement are as high as one billion people.

Mapping who is most vulnerable to displacement reveals the fault lines between rich and poor, between the global North and South, and between whiteness and its Black, Indigenous and racialised others.

Globalised asymmetries of power create migration but constrict mobility. Displaced people – the least responsible for global warming – face militarised borders. While climate change is itself ignored by the political elite, climate migration is presented as a border security issue and the latest excuse for wealthy states to fortify their borders. In 2019, the Australian Defence Forces announced military patrols around Australia’s waters to intercept climate refugees.

The burgeoning terrain of “climate security” prioritises militarised borders, dovetailing perfectly into eco-apartheid. “Borders are the environment’s greatest ally; it is through them that we will save the planet,” declares the party of French far-Right politician Marine Le Pen. A US Pentagon-commissioned report on the security implications of climate change encapsulates the hostility to climate refugees: “Borders will be strengthened around the country to hold back unwanted starving immigrants from the Caribbean islands (an especially severe problem), Mexico, and South America.” The US has now launched Operation Vigilant Sentry off the Florida coast and created Homeland Security Task Force Southeast to enforce marine interdiction and deportation in the aftermath of disasters in the Caribbean.

Labour migration as climate mitigation

you broke the ocean in
half to be here.
only to meet nothing that wants you
– Nayyirah Waheed

Parallel to increasing border controls, temporary labour migration is increasingly touted as a climate adaptation strategy. As part of the ‘Nansen Initiative’, a multilateral, state-led project to address climate-induced displacement, the Australian government has put forward its temporary seasonal worker program as a key solution to building climate resilience in the Pacific region. The Australian statement to the Nansen Initiative Intergovernmental Global Consultation was, in fact, delivered not by the environment minister but by the Department of Immigration and Border Protection.

Beginning in April 2022, the new Pacific Australia Labour Mobility scheme will make it easier for Australian businesses to temporarily insource low-wage workers (what the scheme calls “low-skilled” and “unskilled” workers) from small Pacific island countries including Nauru, Papua New Guinea, Kiribati, Samoa, Tonga, and Tuvalu. Not coincidentally, many of these countries’ ecologies and economies have already been ravaged by Australian colonialism for over one hundred years.

It is not an anomaly that Australia is turning displaced climate refugees into a funnel of temporary labour migration. With growing ungovernable and irregular migration, including climate migration, temporary labour migration programs have become the worldwide template for “well-managed migration.” Elites present labour migration as a double win because high-income countries fill their labour shortage needs without providing job security or citizenship, while low-income countries alleviate structural impoverishment through migrants’ remittances.

Dangerous, low-wage jobs like farm, domestic, and service work that cannot be outsourced are now almost entirely insourced in this way. Insourcing and outsourcing represent two sides of the same neoliberal coin: deliberately deflated labour and political power. Not to be confused with free mobility, temporary labour migration represents an extreme neoliberal approach to the quartet of foreign, climate, immigration, and labour policy, all structured to expand networks of capital accumulation through the creation and disciplining of surplus populations.

The International Labour Organization recognises that temporary migrant workers face forced labour, low wages, poor working conditions, virtual absence of social protection, denial of freedom association and union rights, discrimination and xenophobia, as well as social exclusion. Under these state-sanctioned programs of indentureship, workers are legally tied to an employer and deportable. Temporary migrant workers are kept compliant through the threats of both termination and deportation, revealing the crucial connection between immigration status and precarious labour.

Through temporary labour migration programs, workers’ labour power is first captured by the border and this pliable labour is then exploited by the employer. Denying migrant workers permanent immigration status ensures a steady supply of cheapened labour. Borders are not intended to exclude all people, but to create conditions of ‘deportability’, which increases social and labour precarity. These workers are labelled as ‘foreign’ workers, furthering racist xenophobia against them, including by other workers. While migrant workers are temporary, temporary migration is becoming the permanent neoliberal, state-led model of migration.

Reparations include No Borders

“It’s immoral for the rich to talk about their future children and grandchildren when the children of the Global South are dying now.” – Asad Rehman

Discussions about building fairer and more sustainable political-economic systems have coalesced around a Green New Deal. Most public policy proposals for a Green New Deal in the US, Canada, UK and the EU articulate the need to simultaneously tackle economic inequality, social injustice, and the climate crisis by transforming our extractive and exploitative system towards a low-carbon, feminist, worker and community-controlled care-based society. While a Green New Deal necessarily understands the climate crisis and the crisis of capitalism as interconnected — and not a dichotomy of ‘the environment versus the economy’ — one of its main shortcomings is its bordered scope. As Harpreet Kaur Paul and Dalia Gebrial write: “the Green New Deal has largely been trapped in national imaginations.”

Any Green New Deal that is not internationalist runs the risk of perpetuating climate apartheid and imperialist domination in our warming world. Rich countries must redress the global and asymmetrical dimensions of climate debtunfair trade and financial agreements, military subjugation, vaccine apartheidlabour exploitation, and border securitisation.

It is impossible to think about borders outside the modern nation-state and its entanglements with empire, capitalism, race, caste, gender, sexuality, and ability. Borders are not even fixed lines demarcating territory. Bordering regimes are increasingly layered with drone surveillance, interception of migrant boats, and security controls far beyond states’ territorial limits. From Australia offshoring migrant detention around Oceania to Fortress Europe outsourcing surveillance and interdiction to the Sahel and Middle East, shifting cartographies demarcate our colonial present.

Perhaps most offensively, when colonial countries panic about ‘border crises’ they position themselves as victims. But the genocide, displacement, and movement of millions of people were unequally structured by colonialism for three centuries, with European settlers in the Americas and Oceania, the transatlantic slave trade from Africa, and imported indentured labourers from Asia. Empire, enslavement, and indentureship are the bedrock of global apartheid today, determining who can live where and under what conditions. Borders are structured to uphold this apartheid.

The freedom to stay and the freedom to move, which is to say no borders, is decolonial reparations and redistribution long due.

Continue Reading

Trending