The crisp sting of the November cold hugged me tight as I waited for the polling station at a Baltimore precinct to open up. It was four o’clock in the morning; the darkness of the just concluded campaigns still had its uncertain grip over the land.
As I waited for the chief election judge to come and open the doors, a fellow election judge joined me. We exchanged pleasantries.
After a few hours, when the voters began to trickle in, I became a neural citizen, as was required of my job as an election judge. I did not show my preferences and diligently provided my services to ensure a free and accessible election. I also observed and made useful comparisons with what I know of the Kenyan system.
I am a Kenyan, I am an American. My dual citizenship bears civic responsibilities and rights in two countries. I am invested in both the country I was born in and the country I live in, as are millions of others who live and work outside their countries of birth.
The current globalised reality has created dual and multiple citizenships that obligate citizens to water the tree from which they receive daily shade, and to nourish the distant soil that raised them because they still have loved ones there; but most important, their identity is rooted in that distant soil, a belonging that is more powerful than the foreign residence that becomes a new home.
The current globalised reality has created dual and multiple citizenships that obligate citizens to water the tree from which they receive daily shade, and to nourish the distant soil that raised them because they still have loved ones there
An interest in civic engagement led me to becoming an elections judge in the 2016 US elections for the State of Maryland. This is a volunteer position, although it does come with an honorarium that varies from state to state. Elections in the United Sates are state-regulated, with each of the fifty states dictating their own election processes.
This is different from Kenya where elections are centralised and regulated by the Independent Electoral and Boundaries Commission (IEBC). This centralisation leaves the IEBC vulnerable to manipulation by incumbency politics. It has also given IEBC officials a sense of belligerence when it comes to serving a constituency such as the diaspora, a population they deem a bother, inconsequential or potential spoilers in the game of power-shifting.
The diaspora-IEBC tango
The relationship between the IEBC and the Kenyan diaspora constituency has been salty, rife with litigation and deliberations that produce no results.
The Kenya Diaspora Alliance (KDA), an organisation that has championed the collective civic engagement aspirations of the diaspora since the 2012 elections, has several times sued the elections body for failure to implement diaspora voting rights. Winning a lawsuit in 2015 in which the Supreme Court directed IEBC to enable the diaspora to exercise their right to vote has not made a difference.
The IEBC, while promising to honour the constitution, uses Article 82 (1)(e) “progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote”, to keep the diaspora disenfranchised. “Progressive realisation” is a grey area subject to interpretation that suits whoever holds the keys to diaspora participation. The phrase suggests that you can allow just one extra person to vote every election and that can pass for progressive.
The argument also needs to be made that the “progressive realisation” phrase should to be expunged from the constitution as it leads to the suppression of the rights of an estimated 3 million Kenyans far into an unseen future. Article 257 (1) allows for amendment of the constitution by popular initiative that gathers at least one million signatures.
The IEBC, while promising to honour the constitution, uses Article 82 (1)(e) “progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote”, to keep the diaspora disenfranchised.
The frustration of unrealised rights has carried over to the current election season. In January, 2017, KDA made another public threat that appeared in the newspapers to sue IEBC as the body had made empty promises and failed to implement satisfactory mechanisms for diaspora voting.
To its short-lived credit, the IEBC had, towards the end of 2015, released the IEBC Diaspora Policy that guides the registration and voting exercise for Kenyans abroad, or what some have come to call the 48th county.
Disappointingly, the IEBC continues to fail the test of trustworthiness. Upon persistent inquiry as to why the body failed to honour its publicised plan to start the registration of Kenyans at embassies, the official response cited lack of funds as the reason. Often, IEBC has also mentioned that it lacks reliable statistics to implement registration processes.
These excuses are disingenuous as diaspora representatives have made presentations of diaspora-led solutions to IEBC, and the IEBC officials had found the i-Vote.net solution quite impressive. i-Vote.net is a fully functional and secure digital platform for counting and mapping Kenyans in the diaspora, and recording the demographics in real time. It also has online voting capability. The system is an initiative of Kenyans in the diaspora.
An official endorsement of such a solution would immediately begin to solve the problem of lack of funds or statistics as it would allow a great number of diaspora Kenyans to count and provide the needed statistics. There has been zero political will to create productive partnerships. Change can come through one person with a million dollars or through a million voices with one purpose. The platforms that the diaspora has created can be used to raise a million voices.
The IEBC gets its funding from the government, and also from foreign donors, including the United Kingdom, the United States, Denmark and Norway. The failure to budget for a constituency of millions of Kenyans is not just negligence, it is criminal.
Diaspora as marginalised citizens
Article 82 (1)(c) calls for “the continuous registration of citizens as voters”, which can be used to press for the treatment of Kenyans in the diaspora as deserving of their rights as any other citizen. In nation-building, no real unity is ever achieved until all communities that are part of that nation are accorded equal realisation of their rights.
The discrimination of citizens using geographical location has historically affected the communities in the northern parts of Kenya, driving them to extreme socio-political and economic marginalisation. This discrimination has become a reality for the diaspora, notwithstanding this constituency’s economic clout.
Voting leads to the right to representation, which lends a voice to communities that might not otherwise be heard. It is this voice that the diaspora seeks.
The diaspora’s potential to build the country cannot be overstated. Unlike the courtship of foreign donors by African governments, which sustains an unpleasant trail of neocolonisation, courting diaspora partnerships should be easy as this is a population with its heart already invested in their home country.
For the diaspora, this includes the ability to access those in power in order to establish local businesses, to make social impact investments, such as schools and hospitals, and to lobby for policies that are friendly to both Kenya and the diaspora.
With diaspora remittances now amounting to KSh160 billion ($1.6 billion) annually, 10 percent of this amount can go a long way towards realising these aspirations, putting thousands of Kenyans to work and reducing the amount of money Kenya now borrows from China for its infrastructural needs.
In 2015, the National Treasury Cabinet Secretary, Henry Rotich, mentioned that more than half of these remittances are sent through unofficial channels that cannot be traced for taxation. At the time, he estimated untraceable remittances at KSH120 million annually. Finding solutions to tapping a percentage of these hidden remittances is best achieved by involving diaspora Kenyans in making direct investments in national infrastructure. The diaspora’s potential to build the country cannot be overstated. Unlike the courtship of foreign donors by African governments, which sustains an unpleasant trail of neocolonisation, courting diaspora partnerships should be easy as this is a population with its heart already invested in their home country.
It is the mindset of cutting off diaspora involvement while scheming to get its money that has deepened disillusionment. Many Kenyans abroad have complained about being used as cash cows to fund establishment interests, especially alluding to the standing ultimatum by the Kenya Revenue Authority (KRA) for diaspora Kenyans to file their taxes.
The KRA cannot legally demand to tax Kenyans who do not have fiscal residency in Kenya, a status that requires a residency of an aggregate 183 days or more in a fiscal year, regardless of one’s citizenship status. The attempt at double-taxing diaspora Kenyans has been an emotive issue that cannot be resolved through multilateral tax treaties alone.
A government’s efforts to use laws and institutions selectively fail when it does not involve all parties, in this case, the diaspora constituency, in everything diaspora-related. There are active diaspora organisations that have a history of handling diaspora issues.
An example of the forceful attempt to milk a diaspora without building civic engagement bridges is Eritrea’s government, which introduced a 2 per cent Recovery and Reconstruction Tax (RRT) on individual diaspora income. This led to the 2011 UN Security Council intervention through Resolution 2023 which “decides that Eritrea shall cease using extortion, threats of violence, fraud and other illicit means to collect taxes outside of Eritrea from its nationals or other” (Article 11). However, this reprimand was also linked to the Eritrean government’s use of the 2 per cent tax levy to fund its civil war.
The uneasy relationship between the diaspora and the Kenyan government dates back to the Moi dictatorship years when those who moved abroad were labelled as dissidents. The establishment of organisations, such as the Kenyan Community Abroad (KCA), allowed for an organised struggle that saw the constitutional realisation of dual citizenship, against great odds, and later voting rights.
The victory that ushered Kenya’s “second liberation” fighters into establishment politics allowed the diaspora organisations to pursue diplomatic engagement, which later developed into the search for a slippery détente, especially with the Washington DC embassy. When the DC embassy sneezes, the rest catch a cold. There has been progress to be sure, as with two steps forward, one backward. The diaspora itself also bears responsibility for that one step back.
Attaining unity of purpose among Kenyans abroad has been a great challenge. Partisan and ethnic divisions have in the past contributed to rancour that spread its poison through social media exchanges; this was witnessed especially during the 2007 election period. Some continue to maintain a grotesquery of nationhood that elevates deep tribal loyalties in foreign lands. These are inconvenient truths that the diaspora does not like to see published, but they need to be reflected back and acknowledged often until the reflection in the mirror is altered by its bearer.
The thought about the diaspora’s struggle with tribalism snaps me back to what America just went through: the most bizarre campaign period that saw the rise of Donald Trump. My Kenyan understanding and experience of tribalism made me grasp the demagoguery of Trump as a tribal kingpin funnelling primitive emotions for his own gain.
Looking at the phenomenon through the neorealist spectrum, one could see that the extremist members of the Caucasian tribe had succeeded in defining the interests of the country as primarily those of the white race. Trump is the embodiment of animus dominandi, or the obsessive desire for dominance that, at any cost, procures the interests of a race that feels threatened by subjugation, the said subjugation being real or imagined. It is quite reminiscent of the 41-against-1 rhetoric in Kenya.
Attaining unity of purpose among Kenyans abroad has been a great challenge. Partisan and ethnic divisions have in the past contributed to rancour that spread its poison through social media exchanges; this was witnessed especially during the 2007 election period.
A section of White America has been observing the dwindling numbers of its own race and the rise of minority groups in demographics, political power and consumption of resources. Like animals in a jungle, animus dominandi dictated that power must be grabbed back for the sake of survival and greatness.
Trump’s followers were not just driven by their frustration with Washington politics – that swamp that needed to be drained – they were also driven by a primal fear that found its perfect camouflage in the slogan “Make America Great Again”. The entire scenario mirrored what I knew to be true in my country, Kenya. American tribal politics had driven a wedge between a people that should have built a nation as one people.
The US voting system
Every polling station in the United States has a trained team of election judges whose job is to execute a fair and accessible election. The team is led by a chief election judge whose job is to: ensure early arrival of all voting material under tight security provided by the police department; set up the polling station; coordinate the judges; field questions from journalists and observers; tally the votes at the top of every hour and post the results hourly at a publicly visible place within the polling station; and ensure that voting machines are emptied and locked at the end of the day.
Each step is witnessed by party agents; this ensures the auditing process is incorporated from the beginning to the end. It is also a chief election judge’s job to ensure the storage device that contains the final tally in digital format is securely transported to the Board of Elections counting center where canvassing is done. Canvassing in this case refers to the final tallying, verification and audit of the votes, which produces the official count. This included absentee ballots, provisional ballots, vote-by-mail ballots and early voting ballots. The results that come out of the polling stations, before official count, are believed to be a true reflection of the people’s choice because the auditing starts right from the first hour of the voting process. Claims of voter fraud have been debunked by various political forensics. Out of 135 million voters, there were only a reported four cases of voter fraud, a negligible percentage.
My experience as an election judge showed me just how near-impossible it is to rig an American election process, even with voter registries that have a good number of dead people. A voter who comes in to vote as one of the dead persons has to go through biometric verification before getting a ballot. That is the same safeguard the Kenyan system is intended to provide. The rigging with Kenya comes in when one party is known to have access to IEBC voter rolls and can manipulate the numbers as the election proceeds. This was the case in the 2013 elections, which resulted in the machines declaring over a million spoilt votes, leading to the abandonment of a system that had cost billions of shillings and using manual counting. Rigging robs a country of massive resources.
Trump is the embodiment of animus dominandi, or the obsessive desire for dominance that, at any cost, procures the interests of a race that feels threatened by subjugation, the said subjugation being real or imagined. It is quite reminiscent of the 41-against-1 rhetoric in Kenya.
At the moment, Kenyans are struggling with trusting registries that are confirmed to have thousands of dead people still registered. This should not be a point of worry. The diligence of election officials at polling stations should be enough to stop anyone trying to appropriate someone else’s identity. Death is a daily guarantee, and it should be no mystery that names of deceased persons appear on registries for a period of time. Voter purging should be as frequent as practically possible to remove deceased persons.
However, in the current US situation, there’s fear that the federal government wants to control voter data in order to do its own targeted purging. Because voting is state-controlled, each state is able to independently deny the request of the president’s commission to release voter data; this hinders any attempt by a rogue establishment to engage in large-scale voter suppression.
Absentee voting is the method most commonly used by US residents living abroad. They register online through the Federal Voting Assistance Program that sends them absentee ballots. Once filled out, these are mailed back to the voter’s claimed state of last residence in the US. Should an absentee ballot not be received on time, one can still vote online through the Federal Write-In Absentee Ballot.
The US diaspora also faces the challenge of counting the uncountable. While the State Department puts that population at 7.6 million, the Migration Policy Institute (MPI) states, “Despite efforts by American organizations and the U.S. government to achieve more consistency, current estimates vary from 2.2 million to 6.8 million — a substantial range.” The lesson here should be that the challenge of statistics, though important, should not be used as an excuse to delay the enfranchisement of Kenyans abroad.
A constituency that is bound by unique characteristics provides an opportunity for innovative solutions. Diaspora voting for Kenyans abroad has become a problem child for IEBC and the government, yet it presents one of the most exciting frontiers in the science of voting methods and technology. All it requires is one bold and visionary official who welcomes the challenge with a determination to leave a legacy. There has to be a beginning, one that must break through the doubts and fears of rigging and manipulation of a diaspora vote.
The implementation of online voting for the diaspora constituency should still be seriously considered. In 2013, we attended a workshop organised by the International Foundation for Electoral Systems (IFES) in Washington, DC. A team of expert computer programmers led by Dr. Alex Halderman, professor of computer science and engineering at the University of Michigan, made a presentation on the danger of online voting. While he and the IEBC team were impressed by our i-Vote platform devised for diaspora voting, they cautioned that online systems were not ready for use. This may be true, but that does not mean we cannot conquer new frontiers. Estonia is fully aware of all the pitfalls of online voting, but that did not stop that small country from embracing the technology, and efficiently implementing e-government in all its sectors. It has presented itself as a case study, willing to fail and reinvent and conquer. This should be the spirit that guides Kenya.
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Is Somalia’s Quest for Membership of the EAC Premature?
Somalia must first ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the East African Community.
The current members of the East African Community (EAC) are Tanzania, Kenya, Uganda, Rwanda, Burundi, and South Sudan. The Somali Federal Government, under the leadership of Hassan Sheikh Mohamud, has expressed a strong interest in joining the EAC, sparking questions among Somali citizens as to whether the country is ready to join such a large and complex regional bloc.
During President Hassan Sheikh Mohamud initiated Somalia’s pursuit of EAC membership during his previous term as a president from 2012 to 2017. However, little progress was made during his first term and, following his re-election, President Hassan reignited his pursuit of EAC membership without consulting essential stakeholders such as the parliament, the opposition, and civil society. This unilateral decision has raised doubts about the president’s dedication to establishing a government based on consensus. Moreover, his decision to pursue EAC membership has evoked mixed responses within Somalia. While some Somalis perceive joining the EAC as advantageous for the country, others express concerns about potential risks to Somalia’s economic and social development. President Hassan has defended his decision, emphasising that Somalia’s best interests lie in becoming a member of the EAC.
To assess Somalia’s readiness to join the EAC, the regional bloc undertook a comprehensive verification mission. A team of experts well versed in politics, economics, and social systems, was tasked with evaluating Somalia’s progress. The evaluation included a thorough review of economic performance, trade policies, and potential contributions to the EAC’s integration efforts. During this process, the team engaged with various government institutions and private organisations, conducting comprehensive assessments and discussions to gauge Somalia’s preparedness.
One of the key requirements for Somalia is demonstrating an unwavering commitment to upholding principles such as good governance, democracy, the rule of law, and respect for human rights. Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Successful integration into the EAC would not only elevate Somalia’s regional stature but would also foster deeper bonds of cooperation and shared prosperity among the East African nations. While this is a positive step towards regional integration and economic development, there are several reasons for pessimism about the potential success of Somalia’s membership in the EAC.
Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Somalia has faced significant challenges due to prolonged conflict and instability. The decades-long civil war, coupled with the persistent threat of terrorism, has had a devastating impact on the country’s infrastructure, economy, governance systems, and overall stability.
The following fundamental factors raise valid concerns about Somalia’s readiness to effectively participate in the EAC.
Infrastructure plays a critical role in regional integration and economic growth. However, Somalia’s infrastructure has been severely damaged and neglected due to years of conflict. The country lacks adequate transportation networks, reliable energy systems, and while communications infrastructure has improved, internet penetration rates remain low and mobile networks – which are crucial for seamless integration with the EAC – can be unavailable outside of urban centres. Rebuilding such infrastructure requires substantial investments, technical expertise, and stability, all of which remain significant challenges for Somalia.
Political stability and governance
The EAC places emphasis on good governance, democracy, and the rule of law as prerequisites for membership. Somalia’s journey towards political stability and effective governance has been arduous, with numerous setbacks and ongoing power struggles. The lack of a unified government, coupled with weak state institutions and a history of corruption, raises doubts about Somalia’s ability to meet the EAC’s standards. Without a stable and inclusive political environment, Somalia may struggle to effectively contribute to the decision-making processes within the regional bloc.
Economic development and trade
Somalia’s economy has been heavily dependent on the informal sector and faces substantial economic disparities. The country needs to demonstrate a vibrant market economy that fosters regional trade and collaboration, as required by the EAC. However, the challenges of rebuilding a war-torn economy, tackling high poverty rates, and addressing widespread unemployment hinder Somalia’s ability to fully participate in regional trade and reap the benefits of integration.
Somalia continues to grapple with security challenges, including the presence of extremist groups and maritime piracy. These issues have not only hindered the country’s development but also pose potential risks to the stability and security of the entire EAC region. It is crucial for Somalia to address these security concerns comprehensively and to establish effective mechanisms to contribute to the EAC’s collective security efforts.
Economic Disparity and Compatibility
Somalia’s economy primarily relies on livestock, agriculture, and fishing, which may not align well with the more quasi-industralised economies of the other EAC member states. This mismatch could result in trade imbalances and pose challenges for integrating Somalia into the regional economy. For instance, according to the World Bank, Somalia’s GDP per capita was US$447 in 2021 whereas it is US$2081 for Kenya, US$1099 for Tanzania, and US$883 for Uganda. Furthermore, Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
This divergence in economic structures could lead to trade imbalances and impede the seamless integration of Somalia into the regional economy. The substantial economic gap between Somalia and other EAC member states suggests a significant disparity that may hinder Somalia’s ability to fully participate in the EAC’s economic activities. Additionally, Somalia has yet to demonstrate fiscal or economic discipline that would make it eligible for EAC membership. While Somalia has a functioning Central Bank and the US dollar remains the primary mode of financial transactions, the risk of integration lies with the other EAC members; cross-border trade would occur in an environment of instability, posing potential risks to the other member state.
Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
While these fundamental challenges remain, it is important to acknowledge the progress Somalia has made in recent years. This includes the gradual improvement in security conditions, the establishment of key governmental institutions, and the peaceful transfer of power. One can also argue that many of these fundamental economic, infrastructure, political instability, and security concerns exist across the East African Community. However, what makes Somalia unique is the scale of the challenges it faces today. Somalia has adopted a federal political structure, which has not worked well so far. This level of fragmentation and civil political distrust makes Somalia’s case unique. More than ever, Somalia needs meaningful political and social reconciliation before it can embark on a new regional journey.
The absence of an impact assessment by the relevant ministries in Somalia is alarming. Without this assessment, it becomes challenging to make informed decisions about the potential benefits of joining the EAC and the impact on our economy and society. Conducting this assessment should be a priority for Somalia’s ministries to ensure a comprehensive evaluation of the potential benefits and risks involved in EAC membership. Furthermore, President Hassan Sheikh Mohamud’s decision to pursue Somalia’s integration into the EAC lacks political legitimacy as a decision of this nature would normally require ratification through a popular vote and other legal means through parliament. The failure to achieve this could potentially allow another president in the future to unilaterally announce withdrawal from the EAC.
Fragile state of Affairs and internal disputes
The recent reopening of the Gatunda border post between Uganda and Rwanda after a three-year period of strained relations indicates a fragile state of affairs. The East African Court of Justice has ruled that Rwanda’s initial closure of the border was illegal, highlighting the contentious nature of inter-country disputes. Furthermore, Tanzania and Uganda have formally lodged complaints against Kenya, alleging unfair advantages in trade relations, and have even gone as far as threatening Kenya with export bans. These grievances underscore the underlying tensions and competition between member states, which could potentially hinder the harmonious functioning of the East African Community. These political and economic disagreements among member states increase the risks associated with Somalia’s membership. Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions. Joining the East African Community at this juncture carries the risk of being drawn into ongoing disputes and potentially being caught in the crossfire of inter-country rivalries.
Conflict in South Sudan
The prolonged conflict in South Sudan, which has been ongoing since its admission to the East African Community (EAC) in 2016, serves as a cautionary tale for Somalia. Despite the EAC’s efforts to mediate and foster peace in the region, the outcomes have been mixed, resulting in an unsustainable peace. This lack of success highlights the challenges faced by member states in resolving conflicts and maintaining stability within the community. Somalia must carefully evaluate whether its participation in the EAC will genuinely contribute to its stability, economic growth, and development, or if it risks exacerbating existing internal conflicts. Joining the community without a solid foundation of political stability, institutions, and peace could potentially divert resources and attention away from domestic issues, hindering Somalia’s progress towards resolving its own challenges. South Sudan’s admission to the EAC in 2016 was seen as a major step towards regional integration and stability. However, the country has been mired in conflict ever since, with two civil wars breaking out in 2013 and 2016. The EAC has been involved in mediation efforts, with mixed results.
Somalia must evaluate the readiness of its institutions, infrastructure, and economy to effectively engage with the East African Community. Comprehensive preparations are crucial to ensure that joining the community is a well thought-out and strategic decision, rather than a hasty move that could further destabilise the nation. Somalia needs to assess whether its infrastructure, institutions, and economy are sufficiently developed to cope with the challenges and demands of integration. Premature membership could strain Somalia’s resources, impede its growth, and leave it at a disadvantage compared to more established member states.
Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions.
Somalia must ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the EAC. A phased approach that prioritises capacity building, institution-strengthening, and inclusive governance would enable Somalia to lay a solid foundation for successful integration and reap the maximum benefits from EAC membership in the long term. Failure to address these concerns would make Somalia vulnerable to exploitation and market monopolies by stronger economies, and could also risk a lack of seamless convergence for Somalia’s membership. While there is political will from EAC leaders to support Somalia’s membership, it is vitally important that they make the right decision for Somalia and the EAC bloc as a whole to ensure a successful integration. I believe that, at this juncture, the disadvantages of Somalia joining the EAC outweigh the benefits.
2023 Marks 110 Years Since the Maasai Case 1913: Does it Still Matter?
It was a landmark case for its time, a first for East Africa and possibly for the continent. A group of Africans challenged a colonial power in a colonial court to appeal a major land grab and demand reparations. They lost on a technicality but the ripple effects of the Maasai Case continue to be felt.
In the name Parsaloi Ole Gilisho there lies an irony. It was spelled Legalishu by the colonial British. Say it out loud. He gave them a legal issue, all right. And a 110-year-old headache.
This extraordinary age-set spokesman (a traditional leader called ol-aiguenani, pl. il-aiguenak) led non-violent resistance to the British, in what was then British East Africa, that culminated in the Maasai Case 1913. Ole Gilisho was then a senior warrior, who was probably in his mid- to late thirties. In bringing the case before the High Court of British East Africa, he was not only challenging the British but also the Maasai elders who had signed away thousands of acres of community land via a 1904 Maasai Agreement or Treaty with the British. This and the 1911 Agreement – which effectively rendered the first void – are often wrongly called the Anglo-Maasai Agreements. In Ole Gilisho’s view, and those of his fellow plaintiffs, these elders had sold out. The suit accused them of having had no authority to make this decision on behalf of the community. This represented a very serious challenge by warriors to traditional authority, including that of the late laibon (prophet) Olonana, who had signed in 1904, and died in 1911.
The British had expected the Maasai to violently rebel in response to these issues and to colonial rule in general. But contrary to modern-day myths that the Maasai fought their colonisers, here they resisted peacefully via legal means. They hired British lawyers and took the British to their own cleaners. Spoiler: they lost, went to appeal, and lost again. But archival research reveals that the British government was so convinced it would eventually lose, if the Maasai appealed to the Privy Council in London (they didn’t), that officials began discussing how much compensation to pay.
The facts are these. The lawsuit was launched in 1912. There were four plaintiffs, Ole Gilisho and three fellow Purko (one of the 16 Maasai territorial sections) Maasai. In Civil Case No. 91 they claimed that the 1911 Maasai Agreement was not binding on them and other Laikipia Maasai, that the 1904 Agreement remained in force, and they contested the legality of the second move. They demanded the return of Laikipia, and £5,000 in damages for loss of livestock during the second move (explained below). Ole Gilisho was illiterate and had never been to school. But he and his fellow plaintiffs were assisted by sympathetic Europeans who were angered by the injustice they saw being perpetrated against a “tribe” that British administrators conceded had never given them any trouble. These sympathisers included people who worked for the colonial government, notably medical Dr Norman Leys and some district officials, lawyers, a few missionaries, the odd settler, and a wider group of left-wing MPs and anti-colonial agitators in Britain.
What had led up to this? After the 1904 Agreement, certain groups or sections of Maasai had been forcibly moved from their grazing grounds in the central Rift Valley around Naivasha into two reserves – one in Laikipia, the other in the south on the border with German East Africa. The British had pledged that this arrangement was permanent, that it would last “so long as the Maasai as a race shall exist”. But just seven years later, the British went back on their word and moved the “northern” Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve. In all, it is estimated that the Maasai lost at least 50 per cent of their land, but that figure could be nearer 70 per cent. The ostensible reason for moving them was to “free up” land for white settlement – largely for British settlers but also for South Africans fleeing the Boer War (also called the South African War).
But just seven years later, the British went back on their word and moved the ‘northern’ Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve.
By the time the case came to court, Ole Gilisho had become a defendant, even though he was in favour of the plaint. So were at least eight other defendants. He had signed the 1904 Agreement, and now stood accused with 17 other Maasai of having no authority to enter into such a contract. The first defendant was the Attorney General. Ole Gilisho’s son-in-law Murket Ole Nchoko, misspelled Ol le Njogo by the British, and described as a leading moran (il-murran or warrior) of the Purko section, was now the lead plaintiff. The plaint was called Ol le Njogo and others v. The Attorney General and others.
Challenges facing the plaintiffs
Most Maasai were illiterate in those days, and this obviously placed them at a major disadvantage. They could not write down their version of events. They were forced to rely, in their dealings with officials and their own lawyers, upon translators and semiliterate mediators whose reliability was questionable. But it is evident, from the archival record which includes verbatim accounts of meetings between Maasai leaders and British officials in the run-up to the moves and case, that the level of verbal discourse was highly sophisticated. This comes as no surprise; verbal debate is a cornerstone of Maasai society and customary justice. Unfortunately, that alone could not help them here. They knew they needed lawyers, and asked their friends for help. Leys, who was later sacked from the colonial service for his activism, admitted in a private letter: “I procured the best one in the country for them.” This was more than he ever admitted openly.
Local administrators used intimidation and all kinds of devious means to try and stop the case. (I didn’t come across any evidence that the Colonial Office in London sanctioned this; in fact, it ordered the Governor not to obstruct the main lawyer or his clients.) They allegedly threatened Ole Gilisho with flogging and deportation. They threatened and cross-questioned suspected European sympathisers, including Leys and the lawyers. They banned Maasai from selling cattle to raise the legal fees, and placed the Southern Reserve in continuous quarantine. It was hard for the plaintiffs, confined to a reserve, to meet their lawyers at all. At one point, lawyers were refused passes to enter the reserve, and their clients were prevented from leaving it.
We hear Ole Gilisho’s voice in the archival record. Forced to give a statement explaining his actions to officials at Enderit River on 21 June 1912, when asked if he had called Europeans to his boma, he replied: “Is it possible for a black man to call a white man?” He denied having called the Europeans (probably lawyers or go-betweens), saying they had come to him. Leys later explained to a friend that Ole Gilisho had probably been “terrified out of his wits”, and hadn’t meant what he said.
What happened in court
The case was thrown out when it first came before the High Court in Mombasa in May 1913. The Maasai appealed, and that is when the legal arguments were fully aired by both sides – lawyers for the Crown and the Maasai. The appeal was dismissed in December on the grounds that the plaintiffs’ claims were not cognisable in municipal courts. The two agreements were ruled not to be agreements but treaties, which were Acts of State. They could not, therefore, be challenged in a local court. It was impossible for the plaintiffs to seek to enforce the provisions of a treaty, said the judges – “The paramount chief himself could not bring such an action, still less can his people”. Claims for damages were also dismissed.
The Court of Appeal’s judgement centred on the status of a protectorate, in which the King was said to exercise powers granted to him under the Foreign Jurisdiction Act of 1890. Irrational as it sounds, the Crown claimed that British East Africa was not British territory, and the Maasai were not British subjects with any rights of access to British law, but “protected foreigners, who, in return for that protection, owe obedience” to the Crown. As Yash Pal Ghai and Patrick McAuslan later put it, when discussing the case in a 1970 book: “A British protected person is protected against everyone except the British.” On the plus side, the judges ruled that the Maasai still retained some “vestige” of sovereignty. (The Maasai’s lawyer argued that they did not.) This triggered later moves by Maasai politicians, in the 1960s, to float the idea of secession from Kenya and the possible creation of a sovereign Maasai state. John Keen had threatened this in 1962 at the second Lancaster House Conference in London, attended by a Maasai delegation.
Alexander Morrison, lawyer for the Maasai, argued that British rule and courts were established in the protectorate, which had not been the case 30 years earlier. The Maasai were not foreigners but equal to other British subjects in every way. The agreements were civil contracts, enforceable in the courts, and not unenforceable treaties. If one took the Crown’s claim about Acts of State to its logical conclusion, he argued, a squatter refusing to leave land reserved for the Maasai could only be removed by an Act of State. None of his arguments washed with the judges. (See my 2006 book Moving the Maasai for a fuller account.)
Morrison advised his clients to appeal. It seems they couldn’t raise the funds. However, oral testimony from elders reveals a different story: Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea. This is impossible to verify, but it rings true.
In an interview carried out on my behalf in 2008 by Michael Tiampati, my old friend John Keen had this to say about the outcome of the case: “If the hyena was the magistrate and the accused was a goat, you should probably know that the goat would not get any form of justice. So this is exactly how it was that the Maasai could not get any fair justice from British courts.”
Contemporary African resistance
Unbeknown to the Maasai, there was growing anti-colonial resistance in the same period in other parts of Africa. All these acts of resistance have inspired African activists in their continuing struggles. To mention a few: the Chilembwe rebellion in Nyasaland, now Malawi (1915); the Herero revolt in German South West Africa, now Namibia (1904–1908); resistance in present-day Kenya by Mekatilili wa Menza (largely 1913-14); the First Chimurenga or First War of Independence in what is now Zimbabwe (1896–1897); and the Maji Maji rebellion in German East Africa, now Tanzania (1905–1907). But none of these rebellions involved lawsuits. The closest precedent may have been R vs Earl of Crewe, Ex-parte Sekgoma in 1910. Chief Sekgoma, who had been jailed by the British in the Bechuanaland Protectorate (now Botswana) after many attempts to remove him as chief, instructed his lawyer to bring a writ of habeus corpus against the Secretary of State for the Colonies, Lord Crewe. He demanded to be tried in an English court, refusing an offer of release on condition that he agrees to live in a restricted area of the Transvaal. The suit was dismissed, the court ruling that the King had unfettered jurisdiction in a protectorate, and his right to detain Sekgoma was upheld. Sekgoma apparently said: “I would rather be killed than go to the Transvaal. I will not go because I have committed no crime – I wish to have my case tried before the courts in England or else be killed.” Freed in 1912, he died two years later.
The case, and other key events in early twentieth century Maasai history, have given rise to several myths. They include the idea that the stolen land should “revert” to the Maasai after 100 years, but that was not stated in the 1904 Agreement, which was not limited in time, was not a land lease, and has not “expired” as many people claim. Neither agreement has. Keen knew this, but nonetheless called for the land to “revert”. Other myths include the idea that Olonana’s thumbprint was placed on the 1911 Agreement posthumously, and it must therefore be invalid. But neither his thumbprint nor name are on the document, which was “signed” by his son Seggi. Anyhow, Olonana was a key ally of the British, who had no reason to kill him (which is another myth).
The original of the 1904 Agreement has never been found, which has led some Maasai to believe that it never existed and therefore all the land must be restored and compensation paid for its use to date. There may be sound legal arguments for restorative justice, but this is not one of them. These myths are ahistorical and unhelpful, but may be understood as attempts to rationalise and make sense of what happened. Some activists may wish that the Maasai had resisted violently, rather than taken the legal route. Hence the insistence by some that there was a seamless history of armed resistance from the start of colonial rule. Not true. There are much better arguments to be made, by professional lawyers with an understanding of international treaty rights and aboriginal title, which could possibly produce results.
Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea.
Where does all this leave the Maasai today? Over the years, there has been much talk of revisiting the case and bringing a claim against Britain (or Kenya) for the return of land or reparations for its loss. None of this has resulted in concrete action. I attended a planning workshop in Nairobi in 2006 when plans were laid for a lawsuit. VIPs present included the late Ole Ntimama, scholar Ben Kantai and John Keen. Keen declared, with his customary flourish, that he would stump up a million shillings to get the ball rolling. I don’t know how much money was raised in total, but it disappeared into thin air. As did the lawyers.
Leading lawyers have advised that too much time has passed, and (unlike the successful Mau Mau veterans’ suit) there are no living witnesses who could give evidence in court. It is unclear whether the agreements still have any legal validity. The British government might argue, as it previously has, including in response to my questions, that it handed over all responsibility for its pre-1963 actions to the Kenyan government at independence. This is a ludicrous argument, which is also morally wrong. Former colonial powers such as Germany have accepted responsibility for historical injustices in their former colonies, notably Namibia. Has the time come for Ole Gilisho’s descendants to call a white man to court?
Who Is Hustling Who?
In Kenya, political elites across the spectrum are trying to sell off the country for themselves—capitulation is inevitable.
My drive to Limuru happened on the first Wednesday (July 19) of the protests. Everything was eerily quiet, Nairobi, renowned for its traffic jams, was quiet. Matatus and buses were parked in their hubs. Shops and stalls were closed. Even the hawkers that dot the roads and highways stayed home. Save for the heavy police presence everywhere, it felt like the country had come to a standstill.
We got to Kangemi shortly after the police had shot and wounded two protestors—the road was strewn with stones and armed riot police huddled by the side of the road waiting for the next wave of attacks that never came. In the end, six people would be shot to death throughout the country, and countless were injured and arrested. Coming from the US, where police arrest protestors and shoot black people, there were no surprises here. The US can hardly be the standard of good policing or democratic practices, but the lives lost simply for asking the government to center the people in its economic planning seemed especially cruel.
But it was the emptiness of the roads that made the whole drive eerie. Perhaps I was refracting what was happening in Kenya through what followed the 1982 coup in which 240 people were killed; or the ethnic clashes of the 1990s that culminated in the 2007 post-election violence. Yet, there was a general agreement among people that there was something different about the Kenya of today—that something was already broken and the nightmares to come were slowly but surely revealing themselves—like a bus carrying passengers and the driver realizing the brakes were out just as it was about to descend a steep hill.
Voting with the middle finger
But all this was predictable. President Ruto has been a known quantity since the 1990s when he led the violent Moi youth wingers. He and his running mate and later president, Uhuru Kenyatta, were brought in front of the ICC to face charges of crimes against humanity following the post-election violence in 2007. Some key witnesses disappeared and others were intimidated into silence. Who in their right mind gives evidence against those in control of the state? The ICC was already discredited as being Western-crimes-against-humanity friendly (the US has never been a signatory rightly afraid its former presidents, such as George Bush, would be hauled before the court). The ICC eventually withdrew the case in March 2015.
I kept asking everyone I met, why was Ruto voted in spite of his history? The answers varied: He rigged the elections; he did not rig and if he did, he only managed to be better at it than Raila Odinga; he appealed to the youth with the idea of building a hustler nation (what a telling term); the Kikuyus have vowed never to have a Luo president and therefore opted for Ruto who is Kalenjin as opposed to Odinga who is Luo.
I sat with older Kikuyu men in the little Nyama Choma spot in Limuru Market and they talked about a generational divide between the Kikuyu and youth (Ruto) and the elderly Kikuyus (Odinga). But the one I heard over and over again was that Kenyans are tired of the Kenyatta and Odinga political dynasties. As one Trump supporter was to say, they voted for him with the middle finger. And so, the Kenyans who voted for Ruto were giving a middle finger to the Kenyatta, Moi and Odinga political dynasties. But no one had really expected buyer’s remorse to kick in one year into the Ruto presidency.
I also asked about Odinga’s protests: what was the end game? One theory is that he was looking at power-sharing, having done it once before, following the 2007 elections. In our shorthand political language, he was looking for another handshake. Some said the people have a right to protest their government, and he is simply asking the government to repeal the tax hikes and reinstate the fuel subsidies. Others believed that he wants to be a genuine and useful voice of opposition for the good of the country and its poor.
My own theory is that he is attempting a people-powered, centered, democratic, and largely peaceful takeover—where people take to the streets to overthrow an unpopular government. We saw this in Latin America in the 2000s. In response to Odinga’s absence during the three days of protests (he was sick), some leaders in his Azimio party have started using this language. The only problem with this strategy is that the sitting government has to be wildly unpopular. Ruto still has a lot of support, meaning that he does not have to compromise or give up power. It was to my mind turning into a stalemate and I was worried that the state would respond with more state-sponsored violence.
But real economics broke the stalemate. In a country where people are barely surviving and the majority are poor without savings to rely on, or relatives to reach out to for help, the hawkers, small stall and shop owners simply went back to work. In other words, those that would have been hurt the most by three days of protests (a day at home literally means a day without food for the family) simply went back to work, and the matatus and buses hummed back to life, slowly on Thursday and full throttle by Friday.
Saturday around Westlands might as well have been as busy as a Monday as people overcompensated for lost time to either sell or shop. If the protests were going to succeed the opposition (composed of some of the wealthiest families in Kenya, including Odinga’s) really should have thought about how best to protect those who would be the most affected. They should find legal and innovative ways to put their money where their political mouths are.
Cuba as Kenya’s north star
Odinga had to change tactics and called for a day of protest against police violence instead of three-day weekly protests in perpetuity. He is now in danger of turning into a caricature of his old revolutionary self and becoming an Al Sharpton, who instead of protesting the American government for the police killings of black people, protests the police themselves leaving the government feeling sanctimonious. Obama or Biden could weigh in, in righteous indignation without offering any real change (remember Obama’s emotional pleas over gun shootings and police shootings as if he was not the one occupying the most powerful office in the US)?
The one question that keeps eating at me is this: why is the most apparent outcome at the time a surprise later? Ruto was always going to sell off Kenya with a percentage for himself and his friends. Odinga was always going to capitulate. The end result is that the Kenyan bus will continue to careen on without brakes. So, what is to be done?
I was in Cuba earlier this year. I got a sense of the same desperation I felt in Kenya but the difference is Cubans have free access to healthcare, education, housing, and food security. They have free access to all the things that make basic survival possible. Before calling for the tax hikes and cutting fuel subsidies might it not have been more prudent to have a safety net for Kenyans? Would that not have been the most logical thing? But of course not, Ruto is acting at the behest of the IMF and big money. Ruto has learned the art of pan-African political rhetoric. Abroad he can call for a different non-US-centered economic system and castigate the French president over paternalism but at home, his politics are hustler politics.
Life in Cuba is difficult, as a result of relentless sanctions from the US, but it is far from impossible. It remains the north star for those who understand discussions around fundamental change as the only starting point. We can have arguments about the nature of those fundamental changes, but we can all agree we should not be a country where one family, say the Kenyatta family, owns more than half a million acres of land. Or where, as Oxfam reported, four individuals hold more wealth than that held by 22 million Kenyans. The kind of politics that begin with a necessity for fundamental change will obviously not come from Ruto.
But one hopes it can still come from the Odinga camp. Or even better, from a genuinely progressive people-powered movement that has inbuilt questions of fundamental change in its political, economic, and cultural platform.
In spite of the empty roads, Limuru Market was thriving and Wakari Bar kept its reputation as one of the best places for Nyama Choma and for lively political conversations. People are paying attention, after all, it is their lives and livelihoods on the line. Politicians, especially those in the opposition and the political left should listen as well.
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