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KENYA ON TRIAL: Truth, Justice and the Supreme Court

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Confronted on his excesses, abuses and disregard of rights of the people of France, Louis XVI responded, “L etat c’est moi”, “I am the State”. That was in 1715. Louis was tried by the people and executed. Four centuries later, Zaire’s Mobutu Seseko repeated Louis’ “royal liturgy” to a French journalist. Mobutu went further; he pronounced himself God. Mobutu fled and died in exile.

Entitlement is a malaise that afflicts absolute rulers. It thrives where law is what the ruler decrees it is; not the people, through their Courts. Where the peoples’ sovereign franchise prevails, and truth, justice and the rule of law governs the affairs of man, there is tranquility.

World attention today focuses on the Supreme Court of Kenya. The Court will, for the second time in a row, hear and rule on whether President Uhuru Kenyatta was validly elected for a second term. Just as in 2013, the suitor is former Prime Minister Raila Amolo Odinga. Raila says he has “given the Court a second chance to redeem itself.”

On 13th August, Raila protested the declaration of Uhuru as winner, accusing the Independent Electoral and Boundaries Commission (IEBC) of subverting the will of the people, not once, but for the third consecutive time and substituting it with the dictate of a minority ruling elite.

Having initially vowed not to contest it in Court, but rather through other means, he claims that a crackdown on human rights organizations expected to do that necessitated the change of tact.

What is Raila’s case? How did Kenya end up here? Is there cause for concern or alarm on the Court? Will the Court decide otherwise than before and with what consequences?

Case summary

The petition claims that “the Presidential Election was so badly conducted and marred with irregularities that it does not matter who won or was declared as the winner of the Presidential Election…Instead of giving effect to the sovereign will of the Kenyan people, the IEBC delivered preconceived and predetermined computer generated leaders.”

The IEBC is accused of interfering with the Kenya Integrated Elections Management System (KIEMS) and unilaterally disbanding the Elections Technology Advisory Committee (ETAC).

Whereas people voted, the IEBC did not count and tally the results. It adopted Joseph Stalin’s principle, “It is enough that the people know there was an election. The people who cast the votes decide nothing. The people who count the votes decide everything.”

Evidence in support of the case is contained in a voluminous record of over 25,000 pages. The evidence supports 12 main issues.

The IEBC is accused of interfering with the Kenya Integrated Elections Management System (KIEMS) and unilaterally disbanding the Elections Technology Advisory Committee (ETAC).

KIEMS is a single unit electronic platform. It was intended to ensure that voters are biometrically identified, and polling results transmitted and declared in a simple, accurate, verifiable, secure, accountable and transparent manner. These tenets of a free and fair election are anchored in the Constitution and the 2017 amendments to the Elections Act.

It is alleged that the IEBC had, through a proxy, sought to declare unconstitutional the law that requires biometric voter identification and electronic transmission of results from polling stations to the Constituency Tallying Center and the National Tallying Center. The case was filed by a third party against the IEBC but through a lawyer who is on the advisory panel of the IEBC.

Though not determined at the time of the elections, Raila believes that the case was filed with the connivance of the IEBC to sabotage the integrated, electronic electoral management system. He claims that the manipulation of the system resulted in a permanent pre-set 11% margin between him and Uhuru. It is Raila’s position that the outcome of the case would, as did the manipulation of the system, countermand the requirement for finality of results declared at 290 Constituencies established under the Constitution.

The finality of Constituency results was affirmed by the Court of Appeal. It would remove the risk of rigging at the National Tallying Center as recommended by Judge Johann Kriegler in his report following the disputed 2007 elections.

The ETAC’s function was to advise on adoption and implementation of election technology. It entailed the participation of stakeholders, in this case, candidates and political parties in the elections. In a Judgement made on 15th June, 2017, the High Court held that the requirement for a professional audit of the voter register 6 months before the election was overtaken by events. The Court further declared unconstitutional, the law establishing ETAC.

It is Raila’s complaint that being a stakeholder he ought to have been notified of the proceedings leading to the disbandment of the ETAC and that the IEBC intentionally failed to defend the case properly. As a result, the disbandment compromised the transparency of IEBC’s preparation for the elections. The IEBC then monopolized the management of the electronic voter system to the exclusion of other players. This, it is claimed, enabled manipulation in the transmission of results that could not be independently verified.

The IEBC is also accused of intentionally supplementing its server on a private cloud. The decision was made contrary to advice from the Communications Authority of Kenya. KIEMS became vulnerable to intrusion and manipulation.

Raila claims that 2 days to the elections, the IEBC designated 11,000 polling stations outside 3-4 G network coverage. There was not sufficient notice or time for Raila to appoint his agents in those stations. Results from those stations account for over 7.7 million votes and cannot be verified in the manner prescribed by law and intended by KIEMS.

The IEBC is also accused of intentionally supplementing its server on a private cloud. The decision was made contrary to advice from the Communications Authority of Kenya. KIEMS became vulnerable to intrusion and manipulation. The murder of IEBC’s ICT Manager Chris Msando a few days to the election is claimed to have been planned. His password or information obtained from him were used to infiltrate KIEMS, create and relay computer generated results.

Uhuru is accused of unduly influencing and inducing voters with 2007/2008 post-election reparation payments, hurriedly launched projects and advertisement of his administration’s achievements. He is said to have intimidated voters in his campaigns with military deployments and outright threats on public servants. A widely publicized incident in Makueni where Chiefs were threatened is cited. Uhuru is alleged to have used state resources and State Officers, in particular Cabinet Secretaries, to actively solicit for votes contrary to law.

Raila’s agents are also said to have been ejected from polling stations in Central Kenya and Rift Valley. It is claimed that they were replaced by those procured by Uhuru’s Jubilee Party. Massive manipulation of results is claimed to have ensued as a result.

KIEMS was designed to transmit results from polling stations to the Constituency and the National Tallying Centers simultaneously with electronic images of Forms 34As. It would also enable electronic transmission of final results from the Constituency level to the National Tallying Center. Form 34A is the official declaration at the polling stations whilst Form 34B is for the Constituency declaration.

However, provisional results are alleged to have been transmitted from polling stations to the National Tallying Center, bypassing the Constituency Tallying Centers. The results were not accompanied by Forms 34A and 34B. The results were said to be provisional, again, in disregard of the Court of Appeal decision. 10,000 stations with 5 million votes were affected. The complaint by Raila is that this was a precursor to the rigging of the election in favour of Uhuru.

Further, the petition claims that scrutiny of spoilt and rejected votes would reveal that nearly 400,000 votes were deducted from Raila and added to Uhuru. It is alleged that the manipulation and doctoring of Forms 34A and 34B means another 7 million votes cannot be authenticated.

Raila states that the declaration of a winner was made prematurely in the absence of 11,883 supporting Forms 34A and 187 Forms 34B. 3.5 million votes are affected. He also wants the Supreme Court to go against the precedent it set in 2013 and have rejected votes, this time numbering 477,196 or 2.6% of votes cast, considered when ascertaining whether the Constitutional threshold of 50% plus 1 has been crossed.

The great trek

Kenya gained internal self-rule and political independence from the then British Empire 5 decades ago. The Union Jack quickly came down. The Kenyan flag was hoisted. Jomo Kenyatta was appointed Prime Minister by the colonial Governor-General and one year later declared President by parliament. The Lancaster Constitution did not provide a term limit for the Presidency. The leader of the dominant political party was appointed President by acclamation in periodic parliamentary elections, whose occurrence he controlled. Kenyatta being the leader of the Kenya National African National Union (KANU) party would rule for life, for 15 years. Kenyatta was succeeded by Daniel Arap Moi. Moi ruled for 24 years; 14 for life and 10 on a 5 year term.

In 2013, Raila challenged the election of Uhuru. The Supreme Court jettisoned all evidence before it. It then proceeded to dismiss the Petition, in reliance upon decisions from Nigeria, Gabon and Uganda.

The British had an elaborate law for periodic election of their Prime Minister back at home. They saw no need for the same in Kenya, or any of their former colonies which did not have established political systems in place. With the exception of India, which embraced democratic rule at inception, former British colonies suffered absolute leadership until after the collapse of the Soviet Union and the second liberation in the 1990s.

In the intervening period, a change in government in the Commonwealth was effected in two ways only; a coup or the natural or unnatural death of the President. Determinations by Courts on the legitimacy of the regimes were unheard of.

In Uganda, Judges declared unconstitutional the government of Idi Amin upon the overthrow of Milton Obote. They were killed on the same day. Whitehall often supported similar governments in the entire Commonwealth. Without periodic elections, there was no precedent for a Presidential Election Petition.

The clamor for change saw to the re-introduction of multi-party politics in 1992. Moi won the Presidential Election despite a determined opposition wave. A Petition by Kenneth Matiba was dismissed by the High Court and Court of Appeal without a hearing. The requirement for personal service upon Moi and signature of the Petition by Matiba, who could not because he was ill, were technical considerations relied upon by the Courts. A petition by Mwai Kibaki upon Moi’s re-election in 1997 suffered the same fate. The Courts had no semblance of independence. The President controlled the Courts. A Petition against his election was doomed to fail.

The 2003 election of Kibaki was not challenged in Court; it was not even disputed. Kibaki had defeated Uhuru with a landslide victory. Uhuru had largely been viewed as Moi’s project. The people had resolved to overrule Moi’s prophesy that the independence party, KANU, would rule Kenya for 100 years.

Kibaki’s re-election in 2007 was highly disputed. It is widely believed to have been stolen from Raila. Raila did not go to the Courts as they were controlled by the President. The post-election violence that ensued resulted in the unhappy marriage between Kibaki and Raila. One outstanding achievement of the Grand Coalition Government was the promulgation of the 2010 Constitution. An elaborate process for the period election of the President and determination of a dispute arising from the election was put in place. The Supreme Court was created specifically for this function, with a minimum of 5 and maximum of 7 Judges as quorum.

In the aftermath, radical changes in the Judiciary sent packing Court of Appeal Judges who presided over the Petitions by Matiba and Kibaki. This was a pointer to the Supreme Court that the issue of election of the President was not that simplistic and legalistic. It is one that must be considered on the wider public interest, to uphold the popular will of the people and the Constitution.

In 2013, Raila challenged the election of Uhuru. The Supreme Court jettisoned all evidence before it. It then proceeded to dismiss the Petition, in reliance upon decisions from Nigeria, Gabon and Uganda. These countries, unlike Kenya, had experienced the full brunt of authoritarian military rule. Their Courts could not be objective. In fact, this was the first time a Kenyan Court took refuge in decisions from such countries.

The 2013 decision set an unreasonably high standard and burden of proof. It was not different from Matiba and Kibaki earlier decisions. The legal fraternity in Kenya and worldwide has condemned, trashed and shelved it as bad law. The Supreme Court could be forgiven for arriving at the decision since the Constitution was nascent and barely 2 years old. The Court itself was only a year old. Though composed of highly learned minds, three of the Judges, including the President of the Court, were in their novitiate, having been appointed from outside of the Judiciary and with limited or no courtroom experience at all. This was their first election petition they were handling and were confounded by the magnitude of the exercise and perhaps scared of the consequences of their decision. They may have played safe and sacrificed truth, justice and the law.

This was their first election petition they were handling and were confounded by the magnitude of the exercise and perhaps scared of the consequences of their decision. They may have played safe and sacrificed truth, justice and the law.

The Supreme Court’s image has since then been dented by credibility concerns. Unconcluded investigations for bribery involving one of the Supreme Court Judges demonstrated that the Court was susceptible to manipulation and compromise. It does not better the case when two Senior Counsel who accused the Judge, as well as an Advocate who was alleged to have conveyed the bribe as well as the Judge’s Advocate, a senior counsel, will act together for some of the parties in the current Petition.

That thwarted attempts by President Kenyatta to have a final say in the appointment of the Chief Justice, who is the President of the Court, publicly played out during the retirement case for two of its Judges, both matters again involving the three Senior Counsel cannot be overlooked. In his election campaigns in Kisii, Uhuru recently stated that he had appointed their son the Chief Justice. The Judicial Service Commission quickly refuted this claim and reiterated its independence from the Presidency. It was too little too late. The damage had already been done and aspersions cast. There is therefore, profound merit in Raila’s call for redemption.

Collective success or failure of the Court

The 2017 Petition will be decided in a polarized setting. Both parties are on record, attacking the judiciary whenever a decision goes against them. Several Judges of the High Court and Court of Appeal recused themselves from pre-election cases. They did so out of fear or to escape the badge of bias.

A bench to hear the case by Raila’s coalition, seeking that the election be conducted solely on an electronic basis, the IEBC having failed to make regulations for a manual back was constituted of Judges outside the Constitutional Division of the High Court. The Presiding Judge, Odunga had been accused by Jubilee Party of being compromised to rule in favour of the opposition. The Judge and his other two colleagues in the Division would not feature in subsequent benches set up by the Chief Justice. At the Court of Appeal, three Judges recused themselves on account of their handling of previous electoral cases, real or perceived relations with some of the Advocates or the parties. The outcome is the same. It is an indicator that Courts could still be subject to accusations of manipulation from litigants.

The Supreme Court suffers a numerical disadvantage. It has 7 Judges, all of whom may sit, going by the precedent of 2013. Whereas 5 Judges constitute quorum, it is unlikely that the earlier precedent will be departed from. None can be recused on account of bias, compromise, relations or affiliations with the parties or their advocates. It is, however, troubling that most of these Judges share Advocates with the parties appearing in the petition. It is very untidy. Suspicions of possible bias and compromise cannot be dismissed. This calls for extra caution and vigilance.

There is a popular view that the Judges should declare their interests if any and possible conflict. The Judges should write their individual decisions. Indeed, that is the practice in the Commonwealth. It was the practice adopted by the Court of Appeal until recently, when it appears to have been abandoned. The only way to ensure judicial fidelity and interrogate judges’ Jurisprudential Quotient, is to test their individual decision-making abilities. They should not hide in the cocoon of collective success or failure. This conduct amounts to judicial laziness.

Repeat performance or improvement?

Approval and dismissal of merits of the petition is as varied as is the public support for Raila and Uhuru. Raila’s side perceive a strong case, better than the first one. Uhuru’s team consider the case much weaker. Viewed objectively, it is a case of desire for justice on the part of Raila and one of a sure win on the part of Uhuru. This is likely to play out in Court.

The 2017 Petition will be decided in a polarized setting. Both parties are on record, attacking the judiciary whenever a decision goes against them.

The only difference between a Presidential Election Petition and a National Assembly Election Petition is the volume. A Presidential Election is held in all 290 Constituencies. Intriguingly, the Petition must be heard and determined in 14 days. The other Petitions are heard and determined within 6 months.

The Supreme Court does not have the luxury of the High Court. It cannot recount, scrutinize and audit results from all 290 Constituencies. A decision must be based on pillars of “a free and a fair election”. International and national public policy must play a role also. The Supreme Court is empowered to depart from its previous decisions depending on the circumstances of the case or change in public policy. It is a delicate balance, but one that can be attained with a National Assembly Election Petition as a simulator.

Interference with KIEMS to transmit and project provisional results or to generate results contravened the Constitution. Such action would have gone against the decision of the Court of Appeal, in respect to the finality of results declared at the Constituency Tally Center. Publication of achievements, use of state resources and threats by a party to an election are election offences. Some of the State Officers are being investigated for possible prosecution. Uhuru’s election could be nullified on account of the election offences by his administration.

Massive inconsistencies and discrepancies of results in Forms 34A and 34B and in the IEBC portal could be indicative of manipulation towards a flawed electoral process. The 5 to 7 million votes claimed to have been affected is such a huge number that cannot be ignored. This limb of the case may be very strong on the fidelity of the electoral process. The demanded forensic examination of IEBC’s server and portal would establish whether there is a case. It remains to be seen how the Court will undertake a detailed examination of evidence within 14 days and order scrutiny and recount of votes to verify the numbers. If it does, the truth or falsity of Raila’s claim will unfold. The hasty announcement of the winner without the benefit of Forms 34B and before the completion of the tally, affecting over 3.5 million votes is a grave violation. The case seems to be strong on this limb.

The Supreme Court is not handicapped on precedent in the decision to be made. Resort to decisions from other countries alone is unnecessary. There are many locally decided cases that may be of guidance to the Court. Being a Court of law as well as public policy, numerous cases, not necessarily in respect to Presidential Election Petitions are available internationally and locally.

For example, the election of the Member of Parliament for Juja Constituency was challenged in the disputed 2007 General Election. The declared winner was the Chief Government whip for Kibaki’s wing in the Grand Coalition Government. Malpractices in the election mirrored those leveled against the election of Kibaki. The then Electoral Commission of Kenya was accused of subverting the popular will of the people and replacing it with a pre-determined choice of the ruling elite. The inconsistencies and manipulation of the declaration of results was so monumental that the election could not be sanitized by either a scrutiny or recount of the votes. The entire process was flawed. The election was therefore annulled.

The High Court pronounced itself thus; “One may ask why courts should hold an electoral body to a high standard in the performance of its duties. I think if there is any statutory body whose actions should be considered to be above the board and which should perform its duties to the required standard of integrity and probity, it should be the electoral commission. The electoral commission has a duty to inculcate and imbue confidence in the electorate that its process is transparent, free and fair.” Raila’s claim of manipulation of the entire electoral process would be based on principles set out in this decision. If the process is flawed, numbers or margin of difference between two candidates does not matter. The election may be invalidated without the need for scrutiny or recount of the votes.

 Of the election petitions subsequent to the 2013 elections that of Mathare Constituency attained distinction, in electoral law. The winner was from Raila’s Orange Democratic Movement. The loser, from Uhuru’s The National Alliance had been awarded the certificate. The High Court dismissed the petition. It held that results declared at the Constituency are not final and may be altered by the Chairman of the IEBC.

When called upon to review the issue, the Court of Appeal affirmed the finality of the declaration at the Constituency as the will of the people. The Court of Appeal held that it could not declare the claimant winner and directed that fresh election be held.

The dispute found its way to the Supreme Court. The decision by the Court came fast, crisp and sharp; “Apart from the priority attaching to the political and constitutional scheme for the election of representatives in governance agencies, the weight of the people’s franchise-interest is far too substantial to permit one official, or a couple of them, including the Returning Officer, unilaterally to undo the voters’ verdict, without having the matter resolved according to law, by the judicial organ of State.” The case supports Raila’s plea on finality of results declared at the Constituency level and fidelity of the process attendant to the declaration. It also buttresses the position in law that the IEBC cannot subvert the popular will of the people and replace it with that of a ruling elite.

That the petitioners in the two cases referred to won the by-elections that followed goes a long way to demonstrate how the electoral process can be subverted to defeat justice.

The complaint of use of State Officers and resources for campaign is one that Uhuru will be hard put to defend. It is well documented and publicly known. There is evidence in the Petition that the entire Government machinery from top bottom was deployed to campaign for Uhuru with threats to those perceived to rally behind the opposition. These events were concentrated within the campaign period and cannot be said to have been part and parcel of normal Government administrative duties.

The Public Officer Ethics Act and the Election Offences Act prohibit State Officers from engaging in politics, yet these Officers actively campaigned for Uhuru and defended their actions as part of Government business. Prohibited also is the advertisement of achievements for political gain. Raila has a strong case on this ground, supported by precedent.

The election of Moses Wetang’ula as Senator for Bungoma in 2013 was invalidated by the High Court. The decision was upheld by the Court of Appeal and the Supreme Court. The Courts found that the offences of bribery and voter treating had been proved and were sufficient to warrant the annulment of the election. In the words of the Supreme Court, “Moreover, we take judicial notice of the centrality of elections in the functioning of established governance bodies, as signaled by the Constitution in both general and specific terms. On that principle alone, a party found on fact to have befouled the electoral process, cannot maintain an argument that his or her offence may not be declared, save alongside that of other parties.” If Raila convinces the Court that Uhuru breached the law on the campaign trail, the Court could invalidate the election on the basis of this decision.

If Raila convinces the Court that Uhuru breached the law on the campaign trail, the Court could invalidate the election on the basis of this decision.

The case by Raila will have to be examined on the basis of these principles. If established, the Supreme Court would order a fresh election. The case could be dismissed if the evidence does not support the complaints before the Court.

The Austrian Court overturned results of election in which Alexander Van der Bellen narrowly beat far-right candidate Norbert Hofer for electoral malpractice. A South Korean court removed the President from office for abuse of office. The Brazilian senate impeached Brazilian President Dilma Rousseff for illegally manipulating government accounts. The Pakistan Supreme Court stripped the Prime Minister of his office, for corruption. Here in Kenya, former Deputy Chief Justice Nancy Baraza was removed from office for misbehaviour for merely pinching the nose of a security guard. The bar on integrity has been set high locally and internationally. The Court may be persuaded to use these out of court processes in arriving at a decision.

A majority of Kenyans feel that a minority ruling elite has since independence, acting through unlawful means, denied other regional and ethnic communities the legitimate opportunity to rule. That feeling may prevail, irrespective of whatever legally acceptable or meritorious outcome is to be made by the Court. It may be high time that a rotational presidency, on the basis of the 8 main regions or provinces Kenya was demarcated and administered from independence, is considered, if the law of winner takes it all will forever be used or abused.

The Supreme Court has many references for direction in determining whether the popular will of the people of Kenya was ousted. Its decision must be based, not only upon evidence and the law, but international and national public policy. “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws”, said Plato. The Court must ensure that leaders act responsibly, without circumventing the law.

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From Shifta to Terrorist: A Shifting Narrative Of Northern Kenya

A section of Kenyan citizens has been labelled dangerous to the main body of the country and denied a national identity and equal status with their fellow citizens.

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As Kenya was celebrating her independence in 1963, the people of the Northern Frontier District were mourning the death of their dream of self-governance under British rule. In the spring of 1962, at the Lancaster House Conference, the region’s delegation had demanded self-determination for the NFD. The colonial government appointed an independent commission to look into the question and a referendum to determine the region’s future was subsequently held. The results of the plebiscite were however cancelled under suspicious circumstances even though they indicated that the overwhelming majority supported self-determination. The people felt cheated, and the north exploded in rebellion.

Northerners, especially those from the northeast, accuse the British colonial government of craftily handing over the region to Kenyatta. The colonialists had promised the separatists’ leaders that they would delay independence for the region to facilitate the orderly transition from colonial rule to self-rule.

The British played both sides after the Northern Frontier District delegation rejected the terms of independence and demanded a different path for the district. The colonial government decided to disregard the wishes of most of the inhabitants and handed over the region to the post-independence Kenyan government. Somalia protested the move, which further complicated the north’s struggle for independence.

What had been a people’s quest for self-rule became a political tussle between Kenya and Somalia.  This issue has yet to be settled six decades later, and the north has become a victim of unending sabre-rattling. Kenya became independent on the 12th of December 1963 with Jomo Kenyatta as its Prime Minister. A State of Emergency was declared for the north-eastern region on the 27th of December 1963.

The Shifta war

The rebellion that followed the declaration of independence was, to the separatists, a struggle for self-determination. To the Kenyan government, the separatists were Shifta, the name used to reduce the separatists and the NFD population to bandits, outlaws, thieves, criminals, and murderers.

The Shifta label has stuck, although the events surrounding the coining of the term have been carefully erased from the history books. The Shifta narrative was meant to unite the rest of Kenya against the menace of the separatists. The media effectively adopted the new term as a standard reference to the rebels. Newspaper headlines reported shifta attacks almost daily throughout the period of the conflict.

The “war” was mainly skirmishing between the ill-equipped ragtag army of northern rebels and the Kenya military backed by British planes and tanks. It is the population in the north that bore the brunt of the fighting. The nomads had to sustain the fighters in their midst with their meagre resources while dodging the military operations and bombings.

The conflict began on the 22nd of November 1963 when NFD rebels burnt down a camp in Garissa. The rebellion took its toll on the inhabitants, forcing them to flee in droves to the neighbouring countries of Somalia and Ethiopia. Kenyan security forces considered everyone a rebel and the Shifta label was liberally applied without discrimination to men and boys from the region. Villagisation and shooting of camel herds were used extensively by the government to force the nomadic pastoralists to settle.

Somalia’s support

The secessionists expected to receive arms and ammunitions from Somalia, but Somalia’s loud noises were more bark than a bite. Nothing of material import came from Somalia in the four years of the war.

While fanning the conflict through declarations and radio broadcasts, Somalia was unwilling to train, arm and fight alongside the secessionists. The significant material support provided to the Kenya government by the British and the superior training of the military forces eventually turned the tide of the war in Kenya’s favour.

The end of the war began in 1966 with the exodus of the nomadic population. By 1967, the secessionists were out of arms and had no resources to rely on as the nomads crossed the border into Somalia in droves in what is known as John kacarar (escaping John). The secessionists surrendered in groups throughout 1967.

Realising that the rebels were at the end of their tether, Somalia accepted peace terms with Kenya mediated by Zambian President Kenneth Kaunda. An agreement to end their differences and restore diplomatic relations was signed on the 14th of September 1967. The secessionist war effectively ended without any agreement with the secessionists themselves, without demobilisation, without any concession to the suffering population of the north and on terms that were never declared public to the residents of the NFD. Four years of bombings, shootings and plunder had left the northeastern region — where the fighting was concentrated — destitute.

Once the war was over, reconstruction failed to begin. The schism remained in place. The military went on with operations aimed at clearing the region of “shifta elements”. The cost of the war was never enumerated. The hopelessness that descended on a defeated community required leadership, which never came.

Collective punishment 

A new narrative of bandits roaming in the unsafe wild north began to take shape. Collective punishment was the modus operandi during this period. Whenever armed criminals committed a crime, the nearest settlements were decimated by the soldiers.

In the late 1970s, an incident occurred along the Kenya-Ethiopia border where a military vehicle was burnt. The locals claimed the action was perpetrated by armed Ethiopian militia. In what came to be known as the Malka Mari Massacre, the Kenyan military detained over two hundred men and stoned them to death. None of the men was armed, and the military did not fire a shot.

In the period that followed, poaching became rampant as the stockpiles of small arms fell into the hands of poachers. Overnight, the “Somali Poacher” was born. The parks were now under threat from a new breed of armed men motivated by nothing more than money, and allegedly backed by influential people close to the government. Throughout the 1970s, the Somali poacher terrorised Kenyan elephants, rhinos, and cheetahs.

The secessionist war effectively ended without any agreement with the secessionists themselves, without demobilisation, without any concession to the suffering population of the north.

In 1980, the security forces burned down Garissa after detaining and killing many of its inhabitants. This was an incident directly resulting from a disagreement between poachers and their contacts in government. A disgruntled poacher took matters into his own hands and killed several soldiers and other government officials.

The 1980s also saw the infamous Wagalla Massacre of 1984, where thousands were tortured and killed at an airstrip in Wajir, ostensibly during a military operation to curb banditry.

While Shifta and poachers were the competing narratives used by the government to explain its inability to bring the northern region under proper government control, the region suffered wanton neglect and underdevelopment.

The Somali-Ethiopia war ended in 1978, sparking the return of thousands who had fled the region during the war of secession as Somalia descended into clannism and corruption under military dictatorship. That same year, Vice-President Daniel Arap Moi gave a speech that sparked the alien debate when he threatened that the government would register all Somalis and deport anyone found to have allegiance to Somalia. It took 11 years for this policy to be implemented.

But the alienation of Somalis had begun earlier as it is recorded that police had raided Eastleigh and arrested Somali foreigners as early as 1970. Traders from the north-east were deemed vagrants and deported from areas in the Rift Valley and Central Kenya back to their home region.

Citizenship documents were tightly controlled, and a system of verification was put in place to make it impossible for the region’s inhabitants to register as citizens. The police were given orders to stop and ask for IDs from anyone looking like a Cushite, a Somali or other related tribes who were distinctively identifiable.

The pink card

In 1989, the famous Kenya-Somali verification and registration took place. The system was designed to catch anyone who could not be linked to a sub-location and known clan.

People had to state their family tree up to their sub-clans, and a pink card with these details was issued to the successful ones. The system was designed to force out of Kenya those unaffiliated to any of the groups “indigenous” to the country.

It is estimated that at one point hundreds were crossing the border into neighbouring countries daily. People were detained, women with young children appeared in court accused of being in the country illegally. Suspected aliens were loaded on military lorries and dropped off in Liboi across the Kenya-Somali border. Many families, especially those elites with businesses, crossed into Uganda and left for Europe or America. The pink cards eventually became available for a fee, and it is believed registration officials took hefty bribes in the process. The verification and registration were suspended after two harrowing years during which homes were raided, their inhabitants detained, and property was lost when entire families were deported with nothing more than the clothes on their backs.

As the “aliens” narrative waxed and waned, a new event triggered the updating of the terminology.

In 1991, the Somalia government of Siad Barre collapsed, spilling hundreds of thousands of refugees into the neighbouring countries. Kenya was grappling with its fear of Somalis and now had to face the eventuality of hosting desperate refugees, including the deposed president.

But the alienation of Somalis had begun earlier as it is recorded that police had raided Eastleigh and arrested Somali foreigners as early as 1970.

The refugees were allowed in and settled in camps where they were fed and housed by the UNHCR and other humanitarian agencies. Throughout the 1990s, Somalia was controlled by warlords who divided the country into green zones, fought viciously among themselves and continued to spill out new refugees.

Apart from participating in efforts at reconciliation and in hosting refugees and facilitating their resettlement in Europe and America, Kenya stayed out of Somalia’s affairs. As the refugees were too many to be housed in the sprawling camps in Dadaab, Dagahaley and Kakuma, some ended up living in towns with the alien cards issued by the UNHCR as identification.

The idea of controlling the movement of refugees soon became fashionable. For the security forces it is difficult to differentiate between locals and refugees and soldiers engaged in random stop-and-searches and nighttime raids in the main towns to flush out illegal aliens.

Human trafficking 

The controls placed on refugees living in towns illegally sparked lucrative human trafficking where the police and traffickers facilitated the movement of people from the Somali border to the interior. IDs and passports became available for those who could pay but were impossible to acquire for genuine inhabitants of northern Kenya.

While Somalis and their Cushite cousins were getting used to the “alien” idea, a new term landed on Kenya’s shores: terrorism. International terrorists bombed the American embassy in Kenya in 1998. The perpetrators had names similar to those of the northerners and the refugees. The “terrorist” label did not stick for another decade and during this period Somali businesspeople invested heavily in the Eastleigh suburb of Nairobi, creating a vibrant market where initially had been an unremarkable residential estate with a few wholesale and retail shops.

This economic boom coincided with the emergence of piracy on the Somali shores of the Indian Ocean. Suddenly the Kenyan media were reporting that piracy money was flooding the markets and making life costly for the residents. The Somali pirates were real, but this was part of international piracy having its operations on the lawless Somali coast. How the piracy money was siphoned into Kenya was never explained. The piracy issue occasionally crops up when overzealous reporters make disparaging references to piracy and the real estate boom in Kenya.

Al Shabaab

In 2011 Kenya sent troops into Somalia in an operation dubbed “Linda Nchi” after a tourist was kidnapped at the coast and probably taken across the border. There were other cross-border raids. However, significant Al-Shabaab attacks in Kenya began in 2012 when Kenyan forces were integrated into the forces of the African Union Mission in Somalia (AMISOM). As Kenya became embroiled in state-building in Somalia, with the creation of Jubaland floated as the reason for the invasion, Al-Shabaab started bringing its terrorism into Kenya.

In 2013, the Westgate Mall shootings led to the death of 67 people. More than 67 others also died in attacks in Mpeketoni in Lamu in 2014. The attacks on Garissa University attack were the worst, leading to 150 dead, many of them students. These brazen attacks were attributed to Al-Shabaab. Although the terror group had already internationalised and was recruiting with no regard to ethnicity, Kenyan Somalis became the target for blame, name-calling, and arrests.

In 2013, Human Rights Watch released a report titled “You are all terrorists”. The terrorist narrative drives xenophobia, arbitrary arrests, detention, and torture. After the terror attacks in 2014 in Eastleigh and Mpeketoni, the security forces conducted an indiscriminate door-to-door operation targeting anyone who did not have an ID card to hand. This security operation was dubbed Usalama Watch. Those who did not have the document were taken to Kasarani Stadium and held there for two weeks. About 900 people were taken to the stadium, the majority being young people who could not acquire IDs due to discriminatory bureaucratic procedures , and a haphazard and corrupt system that barred genuine citizens from receiving the document.

The verification and registration were suspended after two harrowing years during which homes were raided, their inhabitants detained, and property was lost.

Over half a century of negative portrayals of people from the north means that the official government policy is skewed when it applies to them. The acquisition of a passport is generally a straightforward process. To ensure that aliens from the north do not acquire this critical document, the immigration department and security agencies have an illegal and discriminatory step in place for border communities — vetting. It is not enough that a northerner provides sufficient genuine documentation. The applicant must appear before a group of government officials, security officers and appointed individuals to prove their citizenship. To pass this step, one must know their location chief, the genealogy of ones’ clan and other trivialities that are ordinarily unnecessary in life.

The emergence of one label does not lead to the dropping of the existing labels. Shifta, Poacher, Refugee, Pirate and Terrorist shape the thinking behind public actions. These negative portrayals have an impact on how national matters are debated and resolved.

A section of Kenyan citizens is considered as dangerous to the main body of the country. The secession war that ostensibly ended in 1967 is still being fought; the terms of the agreement that ended the war have never been the subject of a national conversation. Did the agreement include such important matters as citizenship, identity, development, and non-discrimination? The security agencies have not discarded their belligerent attitude towards the population and the civil service retains the policies of the 1960s towards the people of the north.

One must know their location chief, the genealogy of one’s clan and other trivialities that are ordinarily unnecessary in life.

National identity is at stake as those who rejected becoming part of Kenya at independence cannot have equal status with everyone else. They are aliens, and “they all look like”. The most dangerous portrayal is the association with terrorism; poachers and pirates are small fish compared to terrorists. In the last few years, enforced disappearances and extra-judicial killings related to the war on terror have become commonplace. It is hard to fight for the rights of one who is labelled a terrorist and is disappeared or killed.

Public association with a terror suspect is a stigma that nobody is willing to be associated with. Crimes are committed under cover of fighting terrorism, and there is nothing the targeted community can do about it. That is the power of a label; it obscures the truth, gives authorities cover to commit genocidal crimes and permits the practice of xenophobia in public.

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The End of Abiy-Mania

When he ascended to power in April 2018 Abiy Ahmed elicited goodwill inside and outside Ethiopia but the continuing humanitarian crisis in the Tigray region is losing him friends.

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The End of Abiy-Mania
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Ethiopia will go to the polls on June 22, buffeted by various crises domestically and abroad. But the upcoming election has many echoes of the May 15 2005 election, whose impact continues to shape Ethiopia’s domestic politics and politics in the Horn of Africa. Central to Ethiopia’s current domestic crisis and the border dispute with Sudan, is the Abiy-Amhara compact.

The 15 May 2005 elections were the third national elections to be held under the 1994 constitution following the ouster of the Marxist-Leninist Derg. In the 1995 and 2000 elections, the Ethiopian People’s Revolutionary Democratic Front (EPRDF) government harassed the opposition parties, forcing the influential ones to boycott the polls, with the result that the EPRDF won both elections with over 90 per cent of the seats.

Ahead of the 2005 election, the EPDRF signalled the significant participation of the opposition parties so that Western observers—whose support was critical for Meles—would declare the elections to have been free and fair. The incumbent party acceded to the pre-election demands of some opposition parties, allowing in international election observers and giving the opposition parties a chance to sell their manifestos on the national broadcaster. These conditions were absent in the previous elections. While these were not among the chief demands of the opposition parties prior to the polls, they indicated reasonable good faith on the part of the government compared to previous elections.

As a result, for the first time in Ethiopia’s history, a nationwide multiparty competition seemed possible; neither the ruling party nor the opposition had ever faced a competitive election before.

Internal turmoil within the EPRDF preceded the election. The Central Committee of the Tigray People’s Liberation Front (TPLF)—Prime Minister Meles Zenawi’s core support base—broke up into two rival factions in 2001. With his base in the Tigray heartland at risk, Meles took advantage of his central position within the broader EPRDF coalition and outmanoeuvred his rivals. He sacked several senior officials and successfully weathered the storm, but the fault line remained and emerged during the 2005 elections.

Post-election 

The pre-election period saw the unprecedented participation of the opposition parties and civil society organisations in the campaigns. Election Day went peacefully, and the early results in Addis Ababa and other major urban areas showed the opposition parties making significant electoral gains. According to unofficial preliminary results, the opposition had won 172 parliamentary seats—its most considerable showing yet in the 547-member assembly. On the night of the election, Prime Minister Meles Zenawi declared a one-month ban on public demonstrations in the capital and brought the Addis Ababa security forces (which would have come under the opposition’s command had they been sworn in) under the control of the Prime Minister’s office.

Opposition parties boycotted their seats in parliament, alleging rigging by the incumbent. Their refusal to take up their seats in parliament handed Meles Zenawi and his party a third term in office. Meles interpreted his “mandate” as a licence to take the authoritarian path. Hundreds, if not thousands, of political opposition and human rights activists were arbitrarily detained, with some facing the spurious charge of treason. Ethiopian security forces killed almost 200 demonstrators in post-election protests in June and November 2005 and arrested tens of thousands of people.

With the domestic front “sorted”, Meles turned to regional matters. In December 2006, Ethiopia’s military intervened in Somalia to root out the Union of Islamic Courts (UIC), which had brought stability for the few months they were in charge. The Ethiopian forces captured Mogadishu in less than a week, and the UIC dissolved and surrendered political leadership to clan leaders.

Ethiopia’s ouster of the UIC tapped into a deep historical hostility between Somalia and Ethiopia, something Al Shabaab, the youth wing of the UIC, exploited with a mix of latent Somalia nationalism and anti-imperialism.

Ethiopia’s actions provided Al Shabaab with an opportunity to translate its rhetoric into action. Al Shabaab began targeting the nascent Somalia government, Ethiopian forces, the Transitional Federal Government security, political figures, and any Somalis collaborating with Ethiopia. Ethiopia’s and TFG’s heavy-handed counterinsurgency responses played into the hands of Al Shabaab.

Ethiopia’s incursion into Somalia took place three weeks after General John Abizaid, the commander of US forces from the Middle East to Afghanistan, had met with then Ethiopian Prime Minister Meles Zenawi.

Sixteen years later, Ethiopia goes into another election whose consequences could transcend Ethiopia.

The limits of Abiy-Mania

When he ascended to power in April 2018, Prime Minister Abiy Ahmed elicited a groundswell of collective goodwill inside and outside Ethiopia. He embarked at breakneck speed on reforms that just a few years earlier would have sounded far-fetched.

At home, Abiy released political prisoners, appointed the country’s first female as the ceremonial president and a cabinet half-filled by women. He nominated a once-jailed opposition leader as the new chairwoman of the electoral board. In the Horn of Africa region, Abiy had a rapprochement with Eritrea, a country with which Ethiopia had fought a bloody war between 1998 and 2000. Abiy also attempted to mediate the Sudan political crisis.

The Nobel Committee awarded Abiy the 2019 Nobel Peace Prize “For his efforts to achieve peace and international cooperation, particularly for his decisive initiative to resolve the border conflict with neighbouring Eritrea.”

Federalism vs centralisation

While the trigger for the Abiy-led military operation against the Regional Government of Tigray in the north of the country is the alleged attack of the federal army base by the Tigray Peoples Liberation Front (TPLF), the attack was only a symptom and not the actual cause.

The battle between Abiy and the TPLF and other groups is a battle between those who champion the multi-ethnic federalism constitution and those who prefer a centralised state. Abiy favours centralisation to federalism.

The Tigray region is not the first to bear the brunt of the military and federal security forces to achieve Abiy’s centralisation agenda. The Oromia and Sidama regions have also been at the receiving end of the violence of the federal security authorities.

Abiy embarked at breakneck speed on reforms that just a few years earlier would have sounded far-fetched.

Throughout its long history of state formation, Ethiopia was for thousands of years ruled by emperors under a monarchy with a unitary system of government. The last emperor, Haile Selassie, was deposed in 1974 and from then on until 1991, the country came under a dictatorship with a unitary system of government.

The creation of the EPRDF in 1989—an ethnic coalition of the Tigrayan Peoples’ Liberation Front, the Amhara National Democratic Movement (ANDM; later Amhara Democratic Party), the Oromo Peoples’ Democratic Organization (OPDO; later Oromo Democratic Party), and the Southern Ethiopian Peoples’ Democratic Movement (SEPDM)—had changed that.

Abiy’s shot across the bow was the dissolution of the EPDRF and the launching of the Prosperity Party (PP) on December 1 2019. The OPDO, ANDM, and SEPDM voted overwhelmingly to join the party, while the TPLF rejected the idea as “illegal and reactionary”. The timing of the move was convenient, coming just a few months before the election that was postponed because of the COVID-19 pandemic.

The EPDRF’s multi-ethnic federalism and the inclusion in the constitution of the right to secede for all “nations and nationalities and peoples” of the country were innovative breakthroughs in a country with 80 different ethnic groups. But the constitution was also a product of ideological foment and political necessity. The leaders who revolted against the Mengistu junta had emerged from the student movement that had adopted the “nationalities and the land question”, redefining Ethiopian statehood.

The Oromia and Sidama regions have also been at the receiving end of the violence of the federal security authorities.

While the multi-ethnic federalism has been imperfect, especially its implementation and the domination of the EPDRF by the TPLF, in a multi-ethnic country with historical and contemporary grievances against the state, federalism has acted as a safety valve against ethnic tension.

Abiy and Amhara expansionism 

The Amharas are Abiy’s vociferous supporters at home. They, especially their elites, have an axe to grind with the TPLF for diluting their decades of uninterrupted state power and control. Amhara language and culture are the state’s language and culture, and the language and culture of the Orthodox Church which wields unfettered power. But with its political nous, its deep bureaucracy and know-how, the TPLF was always a challenging prospect for Abiy, a political novice with limited federal-level experience and hardly a political base. The connecting tissue of Abiy-Amhara unity is the lowest common denominator that is the fear and loathing of the TPLF. After dissolving the EPDR, a coalition in which the TPLF was a strong partner, the next step was to defeat the TPLF militarily. Even before the November military incursion into Tigray, Amhara militias were massed at the border with Tigray. If Abiy’s anti-TPLF move was intended to destroy them as a political force, for the Amharas this was an opportunity to regain some of the territories they had lost to Tigray in 1991.

Sudan

Ethiopia also has a boundary dispute with Sudan. The dispute centres on the al-Fashaga region, Sudan’s fertile breadbasket located in Gedaref State, which borders Ethiopia’s Amhara region in the north-west. According to the Anglo-Ethiopian Treaty of 1902 the area belongs to Sudan and, unlike the regime of Omar al-Bashir, for the transitional government of Prime Minister Abdulla Hamdok, settling this dispute is a priority. However, the Abiy-Amhara alliance has made resolving the dispute complicated.

Sudan is also a critical factor in resolving the Tigray crisis; the country is the only remaining supply route for the TPLF as Eritrea is closed to them and bringing in supplies and fuel through other routes is risky. Sudan could also determine how the GERD dam conflict will be resolved. Unlike Egypt, Sudan could benefit from cheap electricity if the dam is filled, but the country will not countenance losing al-Fashaga. Abiy faces difficult choices: cede al-Fashaga to Sudan and gain a partner in the dam negotiations while also denying the TPLF a supply route or keep al-Fashaga and lose Sudan in the GERD dam discussions, leaving the TPLF to use the Sudan border for supplies.

The Tigray conflict, which Abiy initially promised would be a straightforward law enforcement operation, has instead metastasised into a slow-grinding counterinsurgency operation. The continuing humanitarian crisis in the Tigray region is losing Abiy friends.

On May 23, the US State Department announced visa restrictions for any current or former Ethiopian or Eritrean government officials, members of the security forces, or other individuals—including Amhara regional and irregular forces and members of the Tigray People’s Liberation Front (TPLF)—responsible for, or complicit in, undermining the resolution of the crisis in Tigray.

In a multi-ethnic country with historical and contemporary grievances against the state, federalism has acted as a safety valve against ethnic tension.

America’s sanctions came on the heels of the European Union’s suspension of budgetary support worth €88 million (US$107 million) until humanitarian agencies are granted access to people in need of aid in the northern Tigray region.

On the 7th of June 2021, Representatives Gregory Meeks (D-NY) and Michael McCaul (R-TX), who is also Chairman and Ranking Member of the House Foreign Affairs Committee, together with Karen Bass (D-CA) and Christopher H. Smith (R-NJ), respectively Chairwoman and Ranking Member of the House Foreign Affairs Subcommittee on Africa, Global Health and Global Human Rights, issued a joint statement after tabling a resolution condemning violence and human rights abuses in Ethiopia.

The sanctions come as Ethiopia awards its first telecom licence for US$850 million to a consortium that includes the UK’s Vodafone in what could herald the opening up of Ethiopia’s closed economy.

Before the EPDRF came into power, Ethiopia was a posterchild of famine and incessant conflict, especially under the Derg regime. Abiy and Amhara nationalism is bringing back the echoes of the Derg era and the upcoming June election is unlikely to resolve current crises; if anything, it will exacerbate them.

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We Still Can’t Breathe: Chauvin’s Conviction Maintains the Status Quo

Chauvin is simply a cop who committed an action so ugly that he had to be made an example of so that America could get back to normal.

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We Still Can’t Breath: Chauvin’s Conviction Maintains the Status Quo
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Sometimes even the “biggest” victories can ring hollow. That especially seems to be the case several months into 2021, and 11 odd months after George Floyd had his life snuffed out in front of a red-brick grocery store in South Minneapolis, around the corner from the “Little East Africa” neighbourhood. That Derek Chauvin, the cop who laid his blatancy in the form of a knee across Floyd’s neck in a gutter finally faced some form of consequence in the form of a guilty verdict, may, in and of itself be of little consequence in the grandest of schemes.

Yes, right now it seems as though the verdict that has come down harshly on Chauvin is a rebuke of all things heinous, nothing less than a massive moral victory for racial progress, black America and global equality.

Indeed, rainbows shall now shine through and if you listen to many pundits within the American (and for that matter, Western) broadcast media, racism against Black America has been solved once and for all —  à la the presidential election of Barack Obama way back in those heady days of 2008.

Chauvin will be sentenced on June 25th of this year. Much of Black America is already lowering their expectations away from the 40-year maximum prison sentence.

Life is full of disappointments.

In itself, the Chauvin verdict is not one of them; it is just another opportunity for a larger collective sadness, another opportunity for an eventual letdown, a reminder of the global system of injustice that is, frankly, far as hell from ever being permanently resolved.

I haven’t been in Minneapolis since the end of May 2020, the Saturday following the Floyd killing, when the very landscape and fabric of the “Twin Cities” of Minnesota and Saint Paul were irrevocably changed. Walking around that day, the sense of despair was palpable. All of Lake Street — all seven kilometers of it — seemed to have been hit by varying degrees of madness. Some buildings were completely burnt out, husks of their former selves; others had smashed windows or had “BLACK OWNED BUSINESS: DON’T BURN!” scrawled in graffiti across the boarded-up doors. Thousands of people trudged around with shovels, cleaning up debris ahead of the inevitable next night of chaos.

In the weeks that followed, the protests spread across the United States, and even took root on a global scale, spreading as far as Nairobi, London, Kampala, Rome and dozens of other cities. In Minneapolis, all the tension of a tense superpower seemingly dying of its own hubris during the chaotic early months of the COVID-19 pandemic descended on an idyllic neighbourhood. By the day I arrived, May 30th, the United States National Guard was being deployed to put down any form of violence with their own forms of violence. But the damage had been done and the rest of the country was experiencing its own varying levels of chaos. At least two people were killed in Minneapolis alone (and at least 19 across the rest of the US, though this number seems to be low). Dozens of people were injured in Minneapolis alone (although the exact numbers are hard to confirm; personally I talked to at least three people who had sustained non-lethal injuries during the protests, so the real number could be much higher).

Thousands were injured across the US, with hundreds more incidents of police brutality filmed and shared widely. In Minneapolis there was approximately KSh 53 billion worth of damage related to the unrest. Bob Kroll, the president of the Police Officers Federation of Minneapolis who allegedly had white supremacist ties retired at the beginning of 2021. The Minneapolis Police Department was defunded following the reckoning that fell upon the Twin Cities in those warm early summer weeks.

Among pundit across America, talk of alliance and “listening” rapidly became the norm. Many leading neo-liberals put out statements, Republicans and Democrats alike. Trump ordered the beating up of peaceful protesters in front the White House and goodhearted liberals were shocked and appalled. Everyone said it was a “sea change” in American race-relations.

Less than three months after the George Floyd protests kicked off there was a “monumental change” — Jacob Blake was shot in the back by police in the city of Kenosha, in my home state of Wisconsin. The NBA boycotted games, more conversations were had and the world kept right on turning, same as it ever has.

When it comes down to issues of inequality, racism and oppression the status quo is always maintained, especially in America. Two steps forward and three steps back seems to be the pattern, one that is only reinforced by the pattern of police getting away with the murder of Black Americans — whether on tape or merely under “suspicious” circumstances in which “the officer felt their life was threatened and required a response of lethal force”.

Perhaps it is this constant pattern of impunity that has caused the most damage, a pattern that in the US can be traced to well before the 1992 Rodney King riots in Los Angeles, California. The riots were sparked off by the acquittal of cops who had been caught on film beating and kicking King senseless on the shoulder of a freeway.

It’s the same as it ever was.

Over the years since, especially in this age of social media ubiquity, incidents police violence against Black men, women and children have been caught on camera with horrifying regularity.

Horrifying, but not at all surprising. Everyone within the Black community in the US has long known the score. “Officers under threat” deaths, cases failing to be investigated, rumours of pistols being planted, delays in emergency responder times, ties to white supremacy, “warrior cops” getting more military equipment, stop-and-frisk policies, higher incarceration rates among Blacks, continual harassment, talking to children about keeping hands visible when dealing with police, media bias, fetishisation of police, the “Blue Lives Matter” movement — the list of systemic issues within US police forces could fill the remainder of this article.

In this age of social media ubiquity, incidents of police violence against Black men, women and children have been caught on camera with horrifying regularity.

The American judicial system itself is inherently flawed. The narrative among much of the “upstanding” upper middle-class elements of society is that somehow race relations were, if not solved outright, repaired with a sustained “upward” trajectory somewhere around the funeral of civil rights leader Martin Luther King Jr. after his assassination in 1968.

They paint a rosy picture of race-relations in the US in which all segregationist judges were replaced with forward thinking progressives, where all cops with KKK ties were unceremoniously fired, where the ghosts of “Jim Crow” laws (designed to suppress, segregate and subjugate post-slavery Black America) simply faded into the distant memories of a bygone era. The result was a sort of racial Cold War, where proxy wars were fought through the war on drugs, mass incarceration, neoliberalism and police impunity.

“At least segregation is illegal now”, says White America when pressed, as if cities, schools, hospitals and police actions were not still segregated sans overt painted signs.

Such sentiments bled into the politics of the US’s two major parties, Republicans spearheading the “War on Drugs” under the Reagan presidency of the 1980s and the Clinton administration cutting social programmes and accelerating mass incarceration during the 90s under the all-American ideal of “pulling oneself up by your bootstraps”. Such proponents of America’s neo-liberal ethos cared little whether there were any boots to begin with.

Slowly the technology caught up with the reality, and the anger felt across the marginalised communities in America had a focal point on which to pour out their frustrations. The images were there on film, little snippets sent into cyberspace by countless onlookers. The anger was in the bloody and lifeless body of Michael Brown lying for hours in a Missouri street. It was in Eric Garner pleading that he couldn’t breathe while being choked to death by cops in New York City. It was in Philando Castille being shot and killed in his car seconds after telling the officer who had pulled him over that he had a licensed gun in the car and reached for his wallet. (This shooting also happened in the Twin Cities area of Minnesota.) It was in Breonna Taylor being shot dead on a no-knock warrant in Louisville, Kentucky only for the officers to be charged with “wanton endangerment” for firing bullets into a neighbouring apartment.

None of the officers in the above incidents were convicted. Some were never even brought into a courtroom.

On April 11th 2021, Daunte Wright was shot and killed by a cop during a traffic stop in a suburb of Minneapolis, Minnesota. Details and footage of the incident are scant. The officer involved has been charged with second-degree manslaughter (a lesser charge than homicide in the US court system). Protests have sprung up around the US, youth wearing surgical masks — the hallmark of the smoldering COVID-19 pandemic — clashing with police and facing arrest, and “non-lethal weapons being deployed by officers to quell pockets of unrest”. This killing occurred at the epicentre of the “defund the police” movement — Minneapolis.

The cycle continues same as ever, two steps forward and three steps back in Black America’s quest for equitable treatment.

The police are just the visible agents of the systemic suppression of Black people that stretches far beyond the shores of the US.

If COVID-19 has shown up anything, it is the brutality of police worldwide. Most times their actions go on with impunity. Cops in Kenya beat up people without mercy and enforce curfew by leaving motorists stranded on highways. In Uganda cops extort commuters under threat of jail. In Rwanda the stranglehold on the nation continues to tighten under threat of harsh penalties.

There is no equality when it comes to the Global South, particularly for much of Africa whose suffering at the hands of the police echoes the oppression faced by the Black community in the US.

The cycle continues same as ever, two steps forward and three steps back in Black America’s quest for equitable treatment.

Through this lens of warranted cynicism, the “guilty” verdict handed down to Derek Chauvin by a jury in Minnesota is not a massive turning point. The very pundits stating that the verdict is such a monumental moment of change inherently prove that it is nothing remotely close to such a trend. There will be other failed indictments, other cops walking away, more cases of mysteriously “lost” body-cam footage. More will die, protests will spring up and be quelled with extreme prejudice.

Chauvin, the smirking killer that he is, did prove one thing and one thing only: where the “line” truly is, where the grey areas that the police hide behind blur over into black and white, from a “justified act of lethal self-defense from a frightened officer” into outright murder. His actions were so unquestionably heinous that they had to be dealt with. What Chauvin did derives directly from an ugly history; he lynched that man and at the time thought he would get away with it, hands in pockets, cocky half-smile on his face while his bodyweight cut off George Floyd’s air supply in that street gutter. Bystanders begged him to stop as the other officers watched in idle complicity. Paramedics were not allowed to give medical aid and Chauvin continued to apply pressure for minutes after Floyd had become non-responsive.

The systems, after all, stay much as they are in America. Profit margins must be maintained and “order” by way of the status quo must be upheld. The Twin Cities, of which Minneapolis is the more visible twin, would have simply exploded if the verdict had come back anything less than guilty. After a year of protests, COVID-19 lockdowns, electoral strangeness, Trumpian policies, political divisions, economic challenges and continued incidents of police violence, the tinderbox that was Minneapolis could not have handled Chauvin walking free out of the courthouse to appear on Fox News to “thank God”.

If that had happened the resulting violence would have dwarfed any incidents of unrest in America’s past. It is likely that weeks later clashes with police would be continuing on a nightly basis in dozens of cities across America. Minneapolis, where major corporates are headquartered, would have been engulfed in flames so huge the smoke would have been seen in the neighbouring state of Wisconsin.

The tinderbox that was Minneapolis could not have handled Chauvin walking free out of the courthouse to appear on Fox News to “thank God”.

Chauvin’s true legacy is that of an outlier, the ultimate talking-head example that “things are different now”, that something has truly been accomplished on a systemic level when it comes to police treatment of Black America.

In reality, Chauvin is simply a cop who committed an action so ugly that he had to be made an example of so that America could “get back to normal”.

For Black America in 2021 however, normal life is chockful of disappointments.

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