Connect with us

Politics

Reading Our Ruins: Post-colonial stories that float from afar

Published

on

READING OUR RUINS: Post-colonial stories that float from afar
Download PDFPrint Article

Mea maxima culpa. I have not engaged with the idea of the post-colonial before. Not overtly. I didn’t notice it, you see. And that is the politest way of putting it. But I have heard about it in dribs and drabs, as one hears about people from a distant and fascinating culture that point at the moon before they start a meal. I wondered if I should amplify the retelling of the big stories you know so well: the 1884-5 Berlin Conference, a euphemism for a cynical collusion by the then-powerful nations to launch wars under banners to justify a violent land grab of a continent from its nations and people, the causal reality and root of an epoch that would eventually settle under the label of “post-colonial”. I wanted to understand how to tell post-colonial in a reality where narratives to explain the use of extreme and murderous violence on nations, cultures and peoples are still written without consequences by the same forces responsible for the long war and occupation season now known as the colonial period.

Yet for the most part, today we assert our “post-coloniality” and frolic in its imagined sounds, lyrics and images to the rhythm of assorted independence anthems. But independence from what precisely? What distinguishes colonialities when the existential violence visited on entire peoples and nations remain unexorcised, unquestioned, unnamed? The infrastructure and systems of the aberration in human relationships that is the accepted “colonial experience” have mostly remained intact. For the most part, in African countries, amidst the debris of the uneasy post-coloniality, the ancient and unassailable structures are those that channel Africa’s raw material (not its human) resources to leave nations; the diamonds and dying miners are African, the profits are unquestionably European and American to this day.

What distinguishes colonialities when the existential violence visited on entire peoples and nations remain unexorcised, unquestioned, unnamed?

This is a survey of ruins. It co-opts the ruin (paraphrasing Christopher Woodward) as a realm of “dialogue between an incomplete reality and the imagination of the spectator/observer”. Ruins, created by acts of time and/or violence are, also, arguably, the material equivalent of that most compelling and equalising of human presences, a corpse. There is an oft-quoted sign in Latin installed in the doorway of many morgues: “Here is the place that death rejoices to teach the living.” The forensic pathology processes and options that invite such lessons begin with a word that I have become excessively fond of, and feel should have wider and wilder use: autopsy. Autopsy, means to see for oneself. It invites the human being to a humble inhabiting of a situation in order to speak from a place of experience, observation and encounter. Within “autopsy” are notions of a naked, visceral going deep to witness and access unseen perspectives that reveal another facet of the truth about the human condition.

There. That is my excuse for poking into intangible holes, including the holes of and in memory – to see for myself the unseen “post-colonial” story. To speak post-coloniality is to seek to address a corpse that has somehow managed to perpetuate its existence through an unending drawing out of its juices by assorted and mostly external parties. Those who have to inhabit its being are like those numerous creatures that make a corpse a thriving Cosmopolis. The ruins I explore with you include the embodied ones that pass down generations and cultures looking for a reckoning and acknowledgment—a witnessing. I scour these ruins in the hope of a more complete vocabulary of past, future, present, of me, of us, of other, of Kenya, of Africa, of the Commonwealth, of the world.

We children were privy to our parents’ private conversations of denial and heartbreak; we glimpsed the public happy face, the stiff upper lips, the wounded collective body, the private griefs of so many denials of excellence because someone in authority objected to their creed, their race, their tribe, their way of speaking, their history or their leader.

The prevailing world lexicon is incapable of naming and bearing all our immense nows. We circle each other with old, small and weary words to speak to and about our realities, words that fall short of all our experiencing, our feeling, our hurting, and our hoping. The prevailing lexicon is also subject to ruin- making forces and is incapable of diagnosing its own inadequacies.

Fortunately, there are poets like Warsan Shire among us who point a way:

later that night
i held an atlas in my lap
ran my fingers across the whole world and whispered
where does it hurt?
it answered
everywhere everywhere everywhere.”

And now an examination of a sliver from the results of an informal post-colonial autopsy session: I was born in post-independence Kenya. I was mostly formed by the season of the phase that Achille Mbembe, in his paper “Decolonizing Knowledge and the Question of the Archive” refers to as the post-colonial “negative moment”. My Kenya story (apart from a bleep of luminosity in the asylum in 2002) is that of an unending cycle of hoping for a glimpse of the proverbial Canaan followed by crushing disillusionment.

In 1969, I was a few months old when my parents had to flee at night from their first post-independence home in Limuru, in what is called the Central Province of Kenya, after all our lives were threatened by a state-sanctioned neo-Mau Mau gang who objected to our family’s ethnic origins following the state-anointed murder of the Minister of Economic Planning, Tom Mboya. My late father would only say very many years later that we were the lucky ones. He did not qualify his statement; it was sufficient to read the terrible bleakness in his eyes.

A baby probably holds the sensations and effects of a dangerous season. The story of my unease with Kenya’s post-colonial experiment started then, with an undercurrent of consciousness that the state could eradicate your family and culture and guarantee your non-belonging for spurious and intangible reasons that play out to this day. I grew up surrounded by the suppressed and whispered disappointments of my parents’ generation; they were the witnesses of the escalating betrayals of independence dreams, the refusal by leaders to lead new citizens to the promised land. Instead these leaders moved in to occupy the deserted palaces, acres, factories and farms that the colonial governorship had held, seizing for themselves mines and beach fronts and using the same forces of violence and alienation to achieve their purpose.

We children were privy to our parents’ private conversations of denial and heartbreak; we glimpsed the public happy face, the stiff upper lips, the wounded collective body, the private griefs of so many denials of excellence because someone in authority objected to their creed, their race, their tribe, their way of speaking, their history or their leader.

Our morally wounded post-colonial elders gingerly tread the silences of the ruins of so many nation-building dreams. There is no space within the fractures to whisper the names of their failures, the shame of betrayals, the rejection by one’s own people, the horrible realisation that the face of the demon that kills, maims, destroys and consumes is ours.

My most abiding experience of the meaning of independence was when as a child, our house help, my sisters and I hid in fear, trembling under the living room sofas as outside, above the skies, Kenya Air Force planes screeched past and army tankers rolled by on roads, the independent state displaying its power and threatening its own citizens after the tortured and brutalised body of yet another luminous minister, J.M. Kariuki, had been found. This home-grown brutalisation of inconvenient bodies and behaviour continues to this day. It now targets the ordinary citizen. A lawyer named Willy Kimani, his taxi driver and his bicycle taxi-owning client walk out of court and turn up bound, gagged and drowned. In the post-colony it is an offence to dare to seek truth, justice and hope. You do not call the overlord’s exposed bum “nakedness”.

So where and when does colonial becomes post-colonial when the inheritors of a state who perform independence are of your race? When those who perpetuate offensive systems and refuse to unmake the violence are of your culture? When the ones who rob other peoples of their land and resources are of your creed? And when those who oppress, marginalise and socially and economically exclude amplify their monopoly of violence to legitimise control, and evolve ethno-chauvinistic supremacy narratives to excuse their plunder are your compatriots? What is the resolution of the story offered to the post-colonial citizen when those who offend and afflict are of her earth and hearth? Is it to make excuses for the disordered state of the nation because the chaos makers are our own?

We, the children of the immediate “post-colonial” have inherited our parents’ delusions and the ceaseless circling of the scene of the crime—this is not a metaphor; this is a metonym for “nation”. The Hobbesian mindscapes post-colonial frontline elders imagined they could conceal from us are ours now.

True, there are those among us who have been invested in to perpetuate the illusions, and are groomed to take over the seats at the lever of the ghastly “ancien régime”. Meanwhile, many more wrestle with and are bruised by the phantoms of our relationships with the imagination of sovereignty, nation, citizen and state. We are called to scream our defence of something that has no faith in us, no loyalty, no interest, and quite frankly, outside of the tourist brochure, no meaning. Our morally wounded post-colonial elders gingerly tread the silences of the ruins of so many nation-building dreams. There is no space within the fractures to whisper the names of their failures, the shame of betrayals, the rejection by one’s own people, the horrible realisation that the face of the demon that kills, maims, destroys and consumes is ours.

Meanwhile, the post-post-colonial, mostly technologically savvy generation – those post-independence parents’ grandchildren – have, for the most part, opted out and stopped believing in God or nation. Weary of waiting for nirvana, many post-post-colonials have fled the crime scene to restart lives elsewhere; and without a sense of irony, that elsewhere is more likely than not the country of the architects and designers of the-colony-that-became-a-nation – Great Britain, France, Belgium, or Canada, Australia, the United States, the lands of eternal alienation and occupation. Many post-post-colonials take steps to obtain a second passport. They know that when anthems have quieted, and fireworks fade, and patriotic noises accompanied by the prerequisite outrage at the numerous badness and madness of “former colonial masters” have been exhausted, more often than not, to be left to confront the reality of what is imagined as home is also to contend with compromise, disappointment and decay, a stasis of order, dreams, ambitions, imagination, future and community.

Many post-colonials leave “home” to seek and find the unrealised ideal of belonging. The home left behind can then becomes rosier, better, softer and prettier the further one is from it. You see, away, there are no genocidal bogeymen. Leaving is liberation from unrequited yearning for a country called home. Those of us who still stay do so with the knowledge that we breathe uneasy in the national wounds daily anaesthetised by a debilitating hope for a nation. Yet in our lunatic faith, we are made co-conspirators in a collective existential traumatic drama. We listen, paralysed, to puerile and stupid conversations that are painted with a nationalistic hue.

An example. A few months ago, in a narrative that was amplified during the last election season, this lot now entrusted with keeping Kenya’s national dreams alive occupied their private-school educated minds with contemplating how much more a man was rendered more male and more virile – and, therefore, properly anointed by God – for leadership by virtue of the existence or lack thereof of a foreskin. This mulling was done in a public arena and explored with immense emotion in both traditional and social media across generations. Is it a wonder that post-colonial women such as I must now wonder how and where to situate ourselves in a realm of such erudite musings? Moreover, who knew that when the Union Jack was lowered in Nairobi in 1963, almost sixty years later, the great post-independence Kenyan imagination would be exercised by a public contemplation of the state of men’s willies?

How many of our post-independence belongings here are forged by similar roilings?

I have no memory of halcyon days. Halcyon moments, yes: like reading Anne of Green Gables or reciting Wole Soyinka’s Telephone Conversation in Nairobi’s July cold. But I do not recall halcyon days. The undercurrent of unease and barely suppressed impending violence is the theme song of my post-colonial being. So where exactly is the line of delineation between colonial and post-colonial? It was certainly not drawn at that midnight point when the Union Jack was lowered and another flag was hoisted under fire-lit skies.

In Kenya, I suspect that our post-colonial discomforts are caused not only by unresolved antagonisms and competing myths about who has the right to rule a horribly incompetent but brutal deep state that evolved out of the cynical manipulation of post-independence hopes, but also by a most uninspiring emotion: ennui.

In Kenya recently, the post-colonial project was placed under a microscope. On Saturday, March 26, 2016, a columnist’s heading pronounced: “Kenya is a Cruel Marriage; It’s Time We Talk Divorce.” Public intellectual and economist Dr. David Ndii’s type of questioning is taking place elsewhere in so many forms. The post-colonial hot soup in a world wounded by the omnipotence of global corporations and the rise of demagogues like Le Pen and Donald Trump, where the very odd Nigel Farage proclaims Brexit Day as Britain’s Independence Day. As an aside, it was in England that I was informed that to say “post-colonial” was to refer to the rest of us, not to Britain. It was in 2000 that I suggested, a bit mischievously, that Britain was a post-colonial state suffering from the pangs of having had, loved and lost its colonies/conquered states.

In Kenya, I suspect that our post-colonial discomforts are caused not only by unresolved antagonisms and competing myths about who has the right to rule a horribly incompetent but brutal deep state that evolved out of the cynical manipulation of post-independence hopes, but also by a most uninspiring emotion: ennui. The citizens’ riot for rights thing? Storming the Bastille? Done. Devolving power? Done. Democracy through ballot magic? Done. With new technology, the process is so hackable that the winner of the next election can be programmed in the year of a present election cycle. A revised, celestial constitution to save us from ourselves? Enshrined. Yet the threat of extreme violence and election-related deaths, like unholy ritual sacrifices, persists. The idea of nation and state in Kenya has turned into an albatross. And this, the previously unimaginable idea, has emerged. Ndii’s article offers us a consideration of the end of Project Kenya, as the historian Professor Ogot had previously suggested. Ndii uses this Gikuyu phrase: Reke tumwano: Let us divorce. In other words: let us unplug ourselves from this thing already.

The public reaction has been mostly that of catatonic shock, screeching, but also a sort of resignation. Ndii’s article is still being referenced in so many forums— including this one. Yet in that proposition, there is a hint of grief, the reality of having to abort the stillborn dreams of a nation. To be invited to contemplate the loss of the national project is terrifying. We have grown accustomed to the fiction of its life and prefer to confuse the frenzy of movement within it with progress.

Visiting Britain does not necessarily clarify post-coloniality: in its dazzling capacity for amnesia or re-patterning of memory, the mnemonics of the histories of our encounters and attempt to dialogue with it must fall away. The preferred conversations, if they happen, tend to be from within the lexicon of the fig leaf of “development”, “Third World” and “participatory paradigms” on the one hand, and the character of corruption or AIDS in “Africa”, on the other. For the ex-premier David Cameron, to be able to ingenuously tut-tut about Afghanistan’s and Nigeria’s corruption is case enough for a desperate requirement for the UK to undertake what Catholics would call “an examination of conscience”.

Few blink at the fact of a world that has turned human suffering into a complex economy. Instead we accept euphemisms: “Guantanamo Bay”, not American concentration camp crafted to incorporate elements from Auschwitz, including medical experiments on humans; “collateral damage”, not the wholesale slaughter of innocent people; “military contractors”, not predatory war scavengers.

Serendipitously, I came across a short article that is worth reading in full, in which Neil MacGregor, the former head of the British Museum now helping to create a German equivalent in Berlin, interviewed by the Guardian’s Tim Adams, spoke of memory, atrocity, history and remembering. He noted other important things, and I quote:

“The thing I find striking is that in the centre of Berlin you keep coming across monuments to national shame. I think that is unique in the world. … There is still no appetite to look hard at British behaviour in Ireland. What I find so painfully admirable about the German experience is that they are determined to find the historical truth and acknowledge it, however painful it is. You can’t be an informed adult – or an artist – in Germany without doing that.”

On drawing our attention to the deeds of Islamic State today and its connection with the habits of nations, he observes: “At one level, the IS destruction has been about just shocking the world and terror. But part of it has been the deliberate reordering of history that is common to all wars.”

I suggest that the real First World War did not occur in 1914, but in 1884-5 after the so-called Berlin Conference whose amphitheatres were the countries and peoples of the world upon whom war was declared under the guise of the export of civilisation and values — I think it is called the export of democracy these days— to independent peoples, the majority of whom fought back hard and were then defeated, occupied, and restructured. The lexicon of the reasons the National Socialists used to wage war on and conquer Europe is not dissimilar to that used to justify the war on nations facilitated by the Berlin conference; and is not dissimilar to the phrases and words that are used today to justify invasions of sovereign states: regime change, democracy, collateral damage, sharing our values, removal of dictators, saving the people, mission accomplished.

Given the blood and shadows among our nations that remain unacknowledged, the clattering of the bones of shared ghosts, it remains a puzzle how the architects of the trials in Nuremberg that put Germany and its World War II conscience on trial, are still unable to delve within and memorialise the horrid dimensions of their own engagement with the world.

The post-colonial state, for the most part, has merely systematised and perpetuated the long arc of violence on peoples, resources and nations. The habit of hagiography and whitewashing of grubby deeds by the state is entrenched in many of the nations represented here: concentration camps, detaining opponents, extra-judicial murders, arbitrary slaughters, mass displacement of peoples, cultural and religious impositions, disappearances. Does the post-colonial creature admit to being infused by a specific wounding linked to the character of the nation? Would the post-colonial confess to inheriting relationships with absences, loss, the missing, the unspoken, the defeated, and the dead? Given this, is to be post-colonial to live the fall-outs from century-old wars that have never really been acknowledged or called off?

Today, we humans are living in a season of frenzy for the control of diminishing resources in a progressively overheating world; we are witnessing the rise and rise of opaque and abhorrent transnationals who roam the world unfettered, like Satans looking for anything to devour. We are in a world that demands the diminution and commodification of humanity. We know the games of bloodthirsty gods of war turning our landscapes into infernos, all offered in slick messaging that shows how cool it is that humanity can destroy itself. We tolerate asymmetric wars and war-vulture enterprises — the idea that one set of humans justify the destruction of civilisations for the purposes of growing their home economies by, among other things, securing reconstruction contracts, is a scene that comes straight out of hell.

To misquote my new compatriots, “We live in interesting times.” But think about it; maybe in most of Africa, to be post-colonial is to be Chinese.

Few blink at the fact of a world that has turned human suffering into a complex economy. Instead we accept euphemisms: “Guantanamo Bay”, not American concentration camp crafted to incorporate elements from Auschwitz, including medical experiments on humans; “collateral damage”, not the wholesale slaughter of innocent people; “military contractors”, not predatory war scavengers. We are co-opted by media outlets who frame narratives to excuse intentional evil, like the invasions of Iraq, Afghanistan, Syria and Libya, and then squirm in silence at the abhorrent murders of Saddam Hussein and Muammar Gaddafi under the banners of justice and democracy.

Regime Change is good, we tell ourselves and comfort ourselves with the assurance that the International Criminal Court is reserved for only brown, black and Eastern European villains. Even after the Chilcot report, it is unlikely that Tony Blair will be tried for extreme crimes against humanity. From there it is a small step to demonising migrants escaping wars created to feed flailing world economies. We now outsource murder to machines to appease putrid conscience. No one is responsible for the desecrated corpses of a hundred million nameless, mostly black- and brown-hued peoples stranded on far-away beaches. Our oppression of nature persists; the weather has changed and the large tuskers are facing extinction. We know that our human moral infrastructure is gutted, but treat those who demand a new ethical imagination as fruitcake heretics. As old certainties die, nobody seems to know what to say or do. Our lexicon is shattered by the weight of what we have become. But frankly, before the terrible witness of this epoch, silence is probably the most informed position.

A secondary character has now entered our post-colonial fray. The “Better Africa Future” set pieces are now being constructed in or by China. Given this reality, and I suspect the situation is not too dissimilar in other places of the world, the more accepted greeting is “Ni hao.” Please do not read me the wrong way; I am an awestruck admirer of China and the vision it has realised for itself. My concern is that a manual for becoming Sino-African has not yet been developed. Should we form a club where we can exchange confidences in Mandarin? Despite the reality of 1.5 million new influential African citizens of Chinese origin, which we are all still rather shy to talk about, if the future of Africa is written in Beijing skies what does this mean for the life of the Commonwealth in Africa? There is no point protesting: the bastion has been breached. No shots were fired.

China built the African Union headquarters. All they did was hand over the keys to our erstwhile kings. It is impressive, this Chinese phallic symbol piercing African skies. To misquote my new compatriots, “We live in interesting times.” But think about it; maybe in most of Africa, to be post-colonial is to be Chinese.

Unacknowledged evil perpetuates itself and extends its diabolic presence, sometimes in seemingly innocuous ways; ways that are not and would never have been accommodated if the desecrated, wounded and broken bodies had not been black.

A brief ode to Commonwealth-ness, especially after Brexit: I am from Nairobi. We do clubs. I am not an uninfluenced observer. We love clubs. The more Great Britain-connected, the better. Clubs are a community-creating process for us. We understand the indispensability of 10 a.m. and 4 p.m. tea. Being Commonwealth is a secure space to soothe the occasional sweet anguish of nostalgia for might-have-been pasts and could-have-been futures. With the Commonwealth we can pretend that we are important to the world and our admonitions cause a pause in the flow of world history. We even observe other people’s elections draped in our Commonwealth mantles of dignified neutrality. To be Commonwealth is to set apart our Englishes from those of the United States of America. There we adjust to the how-now-brown-cow English variety in order to bewilder them. It amuses us when they ask us to translate “dustbin” or “pavement”. When they ask, as they invariably will, why you speak English as you do, it is the single time one admits with a touch of vanity that “we were colonised by the English”.

I know Boris Johnson had some illusion that by leaving the European Union, the Commonwealth glory may reassert itself, and those nations who call themselves Commonwealth shall bask in its restored gaze. Even though the old house is hollow and decaying, it is, however, a remarkable wreck. Old and new skeletons clutter its numerous sealed vaults, rusted pipes leak, some not-of-English-imperial-origin nations have been allowed in, the Booker Prize has been pawned to the rest of the world, the velvet is thin and frayed, and some members would like their crown jewels back, cobwebs gather amidst the bat dung and the butlers have not been paid their wages. Visits to the mother country are no longer free, and few in the world know why we exist.

I spoke earlier of crime scenes; our Commonwealth has not yet conversed with its ghosts, has it? At some point we will have to stand face to face and inhale each others’ fetid breaths and tolerate the stench and not flinch at our mutual suffering. At some point we will try again to hold each others’ gaze and struggle together to retrieve the human being from the debris of wars fought and lost, of unsigned armistices. We need to talk, really talk, about the things we need to talk about in a world failing with such violence to make sense of itself.

Here are the ruins of the post-colonial states scattered abroad – so many unwanted and destitute bodies, exports of the pathology of nations exposed for all to see. They are not far from the Mediterranean gravesite of many freely offered dark-skinned bodies that neither the Commonwealth nor the post-colonial African Union have bothered to mention, mourn or note, as if relieved that at least these have done themselves in.

Perhaps, then, to be post-colonial is also to adhere to the notion of “place as palimpsest”, we are occupants of “multiple realities in one moment”. Ruins. These are palimpsests, matrices for imagining and re-imagining realities, I think.

I will start easy. From Kinshasa, DRC. Two people meet. Heads touch.

“Mbote,” They might say.

The history of this gesture comes from a legacy of ruins by the world’s most foremost genocidaire and architect of atrocities, with his sidekick Henry Morton Stanley, whose atrocities have not been recorded in our world. No memorials to a catastrophe. No literature by and of doomed descendants. No descriptions of how a great and beloved kingdom was turned into a demonic abyss by a man and his nation who went on to industrialise human exploitation, murder, horror, anguish and suffering in the quest for matter.

The German scholar Patrick Hoenig noted, in a conversation I shared with him, how the abiding monument to the apocalypse that became the Congo are systems built to lead outward; everything of the infinitely wealthy Congo is up for grabs and the infrastructure to send these out, come war or high water, remain intact. I suggested to a journalist in a fit of pique that the refusal of the world to respond with abhorrence and outrage to the witness of human evil that was Leopold’s and Belgium’s Congo, despite photographic evidence of such abhorrent and unrepeated evil, helped sow the seeds of Auschwitz and Birkenau. Unacknowledged evil perpetuates itself and extends its diabolic presence, sometimes in seemingly innocuous ways; ways that are not and would never have been accommodated if the desecrated, wounded and broken bodies had not been black.

The Antwerpse handjes (biscuits or chocolates made in the shape of a hand) are the only un-ironic memorials to thirty million still-nameless citizens of the Kongo Kingdom who were murdered, chopped, incinerated, petrified. Only these chocolate frivolities speak to what evil befell our humanity through them. Otherwise there is nothing else. Not even a placard in the DRC. I am not an academic, so forgive my question if it is foolish, but what is the point of knowledge sought and acquired if it cannot infuse transformation at the site of its engagement? The so-called plantation concessions from Leopold’s era are in the hands of multinationals like Canada’s Feronia. The attitudes and behaviour of the new landowners, we are informed, are a continuation of the past and remain, again, uninterrogated. I ask: Is this where one will find the line that demarcates the colonial from the post-colonial?

A final ruin. On March 2015, I was part of a group of residents of the Rockerfeller Centre in Bellagio, Northern Italy, who had taken a day out in the very wealthy city of Como. In the piazza, amidst the contented citizens and goggly-eyed tourists, were post-colonials from Pakistan selling shirts, post-colonials from India selling selfie sticks, post-colonials from Nigeria being pimped by UNICEF to hawk images of African children with flies in their eyes, and post-colonials from Senegal offering Hare Krishna pamphlets on one side and Jehovah Witness materials on another. There was a post-colonial from Ghana selling food in a stall and five other post-colonial brothers from West Africa begging—the only beggars in Como. As a fishmonger muttered to one in our group: “Before the Africans, no beggars.”

Here are the ruins of the post-colonial states scattered abroad – so many unwanted and destitute bodies, exports of the pathology of nations exposed for all to see. They are not far from the Mediterranean gravesite of many freely offered dark-skinned bodies that neither the Commonwealth nor the post-colonial African Union have bothered to mention, mourn or note, as if relieved that at least these have done themselves in. Or maybe it is far too soul-shattering to have to confront the question of why the liberated African citizens would rather endure the seventy per cent chance of death than go through another day living under the glow of an enlightened post-colonial leadership. It would lead to far too many uncomfortable acknowledgments, wouldn’t it? To be post-colonial is to fake it, no?

There are scattered pieces of a story that beg to be seen and gathered in order to offer us a word that can shelter our unseen, unstated, unnamed experiences. There are stories beneath the stories we have heard and assumed to be true even though they sit oddly with reality and truth. There are stories in and of the in-between.

Anyway, as we traversed the cobbled streets of Como, my armpits were wet, my head lowered as if at any point I might be asked to explain Africa, our people, or why our most beautiful men were crouched in European corners playing the monkey to get a few coins. I wanted to assert, I am Kenyan. We don’t leave home. We don’t do exile. As I crossed the city in my special little group made up of an Indian artist, four white American professionals, a South Africa-based German scholar, also white, I happened upon another able-bodied African male – dark, tall, dreadlocked and with the face and large, dark eyes of a tragic Bob Marley, accosting people on the street, begging with aggression. I hastened my feet to speed away faster than the others, my eyes averted. Until from behind me he howled: “Sister from Africa, look at me. Please. Sister, look at me. Sister from Africa, see me!”

What do you want me to say? That I stopped?

That I looked back and saw a man? I didn’t.

I hurried on.

I did glance at shop displays, the back of my neck burning. He annoyed me. I needed his cry to be for someone else, not me.

None of our group mentioned that moment or man again. Yet, as you can see now, the man and his voice remain unforgotten.

The ghosts pursued me back to the continent where his voice was born. His words remain fresh, a public witness-bearing, in spite of my refusal to acknowledge the vision of my post-colonial woundedness revealed in a European public square. In his cry is a harsh invitation to dare to see for oneself, to look beyond the surface performance, name the unnameable, find the human being. So here is a slide without words for him. It is in the colour (brown, I think), that dreams choose when they fall apart.

There are still far too many fragments in the telling of our being, gaps in the soul and in the reading of our lives. There is an excess of ideas received without re-interrogations. There are scattered pieces of a story that beg to be seen and gathered in order to offer us a word that can shelter our unseen, unstated, unnamed experiences. There are stories beneath the stories we have heard and assumed to be true even though they sit oddly with reality and truth. There are stories in and of the in-between.

In reading ruins in imitation of those who look into stars and entrails for prognostications, I strain to see these for myself — these small autopsies — so that I might hear the memory of a past releasing its real name to the present and in the sound, the echo that speaks forth a future that suggests the best of us.

Amidst these figurative ruins, “there be corpses that rejoice to teach the living”. “See me!” – that invitation from a man, a body, on a far-off street – is a good enough place for me to look in a way that I could not before.

This essay is adapted from a speech by the author at the 17th Triennial Association for Commonwealth Literature and Language Studies (ACLALS) Conference held in Stollenbosch, South Africa, in July 2016.  

Avatar
By

Yvonne Adhiambo Owuor is a Kenyan writer and the author of the much-acclaimed novel Dust.

Politics

No War, No Peace: Life and Death in Eritrea

Thirty years after Eritrea gained independence from Ethiopia, there has hardly been any meaningful development in this small nation in the Horn of Africa. On the contrary, the government’s authoritarian policies have undermined democracy and forced young people to flee the country.

Published

on

No War, No Peace: Life and Death in Eritrea
Download PDFPrint Article

Eritrea was an Italian colony from 1890 to 1941. Following the defeat of Italian forces by the Allied Forces during World War Two, Britain occupied Eritrea until its federation to Ethiopia in 1952. However, by 1962 Emperor Haile Selassie had annexed Eritrea, declaring that it was part of Ethiopia, and in this way ending the federation.

In 1961, a year before the annexation, the Eritrean Liberation Front (ELF) started an armed struggle for independence from Ethiopia. The armed struggle continued for 30 years against successive Ethiopian regimes until 1991, when the Eritrean People’s Liberation Front (EPLF), who had replaced the ELF, defeated the Ethiopian forces in Eritrea. Eritrea became formally independent following a United Nations-supervised referendum in 1993.

From the beginning, the EPLF (now the People’s Front of Democracy and Justice – PFDJ)’s strategy for achieving liberation and national unity was for it to dominate all social, political, and economic spaces. The PFDJ implemented a highly centralised and opaque two-track system of administration: an unseen, powerful inner circle of elites; and public structures that projected an image of egalitarian self-sufficiency. This centralised and opaque model of governance continues today.

Since liberation, PFDJ has banned all opposition parties and treats all non-mass-movement organisations (i.e. independent civil society) with suspicion; hence there are no independent national civil society organisations in the country. Without any consultation, the PFDJ has nationalised all land; it has established a unitary form of government, and it has changed the administrative boundaries within the country. Despite these totalitarian tendencies, in 1994, the PFDJ, as the Provisional Government of Eritrea, set up the Constitutional Assembly to draft the Constitution. The task was completed in 1997. But the Constitution remains unimplemented.

Border dispute

In 1998, hostilities and war between Eritrea and Ethiopia resumed over border demarcation issues, particularly in the town of Bademe. By December 2000, the two countries signed the Algiers Peace Agreement and established the Eritrea Ethiopia Border Commission (EEBC) to determine the limits of their shared border.

The EEBC delivered its border decision on 13th April 2002, placing the town of Bademe, the flashpoint of the border conflict, on the Eritrean side. The Ethiopian government contested the allocation of Bademe to Eritrea. Therefore, a situation of “no war, no peace” ensued between the two countries as President Isaias Afewerki refused any dialogue on the issue because the parties had agreed that the decision of the EEBC was final and binding.

President Isaias Afwerki, who is also the chair of the PFDJ, took advantage of the strained relationship with Ethiopia to:

  1. indefinitely postpone the implementation of the 1997 Constitution as well as the general elections;
  2. arrest and disappear dissenters, especially University of Asmara students and the members of the government known as G15 who promoted a democratisation process (2001);
  3. close the independent media and arrest journalists (2001);
  4. abolish the Eritrean National Assembly (i.e. the Eritrean Parliament) (2002);
  5. maintain a high level of militarisation of the country.

To maintain a high level of militarisation, the government vertically integrated the National Service to the National Development Programme (i.e. the Warsay Yikaalo National Development Programme) and to Education. This integration allows the Eritrean government to move students into the National Service and the National Development Programme from high schools (i.e. Grade 12) and indefinitely extends the period of service of the conscripts, hence taking full control over the working population.

In 1998, hostilities and war between Eritrea and Ethiopia resumed over border demarcation issues, particularly in the town of Bademe. By December 2000, the two countries signed the Algiers Peace Agreement and established the Eritrea Ethiopia Border Commission (EEBC) to determine the limits of their shared border.

Through the integration of the National Service into the Warsay Yikaalo National Development Programme and Education, the government has limited the citizenship rights of conscripts who while in service cannot: legally obtain a mobile phone or SIM card; get or renew a business licence; access land; and access travel documents and exit visas. Deserters or objectors are denied any rights and cannot access state services. Thus, the official Eritrean concept of citizenship is intrinsically linked to conscription and the fulfilment of National Service duties.

The National Service is a combination of military training and civil service, working for little pay in non-military activities such as agriculture, the construction of roads, houses and buildings and mining. The Warsay National Development Programme relies on the deployment of te National Service (Warsay) and defence personnel (Yikaalo) as a labour force. The programme operates under the umbrella of the Ministry of Defence.

Since 2003, the government has closed the University of Asmara (the only university in the country). It has also required that all Eritrean students complete Grade 12 at the Sawa military training camp. Students who have not completed their final year of secondary school at Sawa and have not sat for the National School Certificat, cannot access college education. The PFDJ has replaced Asmara University with regional colleges, which are administered jointly by an academic director and a military director.

National Service conscripts work for an indefinite period on development projects, the administration of ministries and local authorities, as well as in PFDJ-owned businesses. Such work is carried out for very little pay and in conditions that a UN Commission of Inquiry on Human Rights in Eritrea described as “forced labour”.

The Eritrean authorities’ control over the people includes the restriction of movement both internally and externally. Therefore, all Eritreans aged five and above cannot leave the country without an exit visa. The government will not issue an exit visa to any Eritrean above the age of five, irrespective of their situation (i.e. family reunification, health, etc.)

The government’s control over the Eritrean people is a political, social and economic process of deprivation and human rights violations for which it refuses to take any responsibility. It is systematically impoverishing the population. Therefore, Eritrean youth face having to choose between the life of slave labour or exile. They describe their situation as slavery: “[The] situation in Eritrea and long time ago with slaves is the same. We build the houses of the elites without money. We work on farms of government officials for no money. If you are educated, they deploy you to anywhere…for a short time, you can tolerate it…but this is for life.”

Faced with accusations of human rights violations, the government reverts to “threat” mode. It labels any reference to human rights violations as “lies” and “ploys” of its enemies to undermine the state. The PFDJ Head of Political Affairs, Mr Yemane Gebreab, dismissed the findings of the Commission of Inquiry on Human rights by saying: “….[it is] really laughable……There is no basis to the claims of the Commission of Inquiry…”

The Eritrean authorities’ control over the people includes the restriction of movement both internally and externally. Therefore, all Eritreans aged five and above cannot leave the country without an exit visa.

In addition to taking control over the working population, the government also took control of the economic sectors, including finance, import and export, transport and construction. It has achieved control over the economic sphere through a process of unfair competition with private business, facilitated by the fact that it does not pay taxes and does not comply with labour, environmental, and other regulatory requirements. Also, as the regime has control over the working population, it has unlimited access to a large pool of free labour, effecting a net transfer of the workforce away from the private sector. This policy of moving human resources to labour sites identified and controlled by the government has crippled the private sector, especially the agricultural industry, which still relies to a large extent on subsistence farming.

The government’s control and domination of the economy have not increased economic activity or productivity. The economy is stagnating, further weakening the private sector and restricting economic opportunities for Eritreans.

Notwithstanding PFDJ’s rhetoric, Eritrean youth experience the state as an albatross around their necks. They understand the state in terms of spy networks; as a human rights violator curtailing civil, political, and economic rights and as the as the source of torture and deprivation. They see it as the source of all restrictions and deprivations. This is the reason why they flee the country.

Peace Agreement with Ethiopia and its aftermath

In April 2018, the Ethiopia Prime Minister Abiy announced the acceptance of the EEBC decision, in particular the allocation of the flashpoint town of Bademe to Eritrea. In this way, he started a process that led to the signing of the Ethiopia Eritrea Peace Agreement in July 2018, thus ending two decades of “no war, no peace”. The land borders opened to much jubilation in 2018. However, by April 2019, the Eritrean government had closed them all. So far, the only achievements of the Peace Agreement are the reopening of embassies and telecommunication lines and the resumption of flights.

The signing of the Peace Agreement immediately raised expectations that there would be a normalisation of relations between the two states. It also raised expectations regarding reforms within Eritrea that would lead to a reduction in the number of Eritrean youth fleeing the country. Soon after the signing of the Peace Agreement, the Eritrean Catholic priest Aba Teklemichael pointed to the sweeping reforms implemented by Prime Minister Abiy in Ethiopia, and urged the Eritrean government to also undertake necessary reforms in Eritrea and to democratise the government. By Easter 2019, the Eritrean Catholic bishops were also calling for a constitutional government and the rule of law. They also encouraged the government to release political prisoners and start a process of reconciliation within the country. However, to date there have been no reforms in the country, a state of affairs confirmed by the UN Special Rapporteur on Human Rights in Eritrea who at the start of this year reported that she had: “ ……no tangible evidence of a meaningful and substantive improvement in the situation of human rights in Eritrea”.

The signing of the Peace Agreement immediately raised expectations that there would be a normalisation of relations between the two states. It also raised expectations regarding reforms within Eritrea that would lead to a reduction in the number of Eritrean youth fleeing the country.

The ongoing peace process is not transparent; it has mostly remained an elite political level agreement unable to deliver on the economic front or to resolve the issue of Bademe as both Prime Minister Abiy and President Isaias Afewerki have marginalised the Tigray People’s Liberation Front (TPLF) for political motives. The Eritrean government has increasingly identified the Tigray State and the Tigray People’s Liberation Front (TPLF) as an existential threat to Eritrea, thus justifying the maintenance of a high level of militarisation. Consequently, Eritrean youth continue to flee the country. In 2018, UNHCR ranked Eritrea as the ninth-largest refugee-sending state in the world.

Ailing health sector

The totalitarian agenda of the Eritrean government did not spare the health sector either. The task of reconstructing the Eritrean health system after the liberation struggle and following the 1998-2000 Eritrea-Ethiopia border war was monumental. It was an undertaking that the late and former Minister of Health Saleh Meki undertook with passion, commitment, and zest from 1997 to 2009 when Ms Amina Nurhussein replaced him.

In his efforts rebuild the Eritrean health system, Saleh Meki sought to establish strategic partnerships with critical international health institutions, private practitioners, faith-based organisations, such as the Catholic Church, as well as professional members of the Eritrean diaspora. The former Minister of Health carried on with his efforts despite the enormous pressure to conform to the dictates of President Isaias Afwerki, and the concerns generated by the closure of international non-governmental organisations, as well as the restriction of movement imposed on all organisations working in the country. Against all the odds, he re-established the medical school known as the Orotta Medical School.

Saleh Meki died on 2nd October 2009. Soon after his death, all the medical missions of international organisations that he had worked so hard to bring to Eritrea ended. By 2011 the Eritrean Government forced the closure of all private medical clinics. And, by 2018 a total of 29 Catholic health facilities providing maternal and child health support and serving some of the more remote communities in the country were closed. The seizure and closure, of the Catholic health facilities was carried out in complete disregard to the health and safety of the patients, most of whom were left to fend for themselves.

There was no clear justification for the closure of the private health facilities. However, the closure of the Catholic health facilities was justified as an enforcement of the 1995 Proclamation to standardise and articulate religions institutions (Proclamation No 73 of 1995). The Proclamation prohibits religious bodies from engaging in social and welfare services. This position is contested by all faith-based organisations, especially since there was no consultation in the development of the law. The Eritrean Catholic bishops’ communication with the government on the seizure and closure of their health facilities point out that the facilities operated by abiding with all the requirements of the Ministry of Health.

Poor COVID-19 response

The closure of health facilities has reduced the number of available beds and the overall capacity of the health system. Hence, Eritrea, with a score of 0.434, was ranked 182nd out of 189 countries by the 2019 Human Development Index. The low Human Development Index combined with a hospital bed capacity of 7 beds for 10,000 people, and no available data as to the number of health professionals (i.e. doctors and nurses) available per 10,000 people, suggests that the situation might be even more dire. And the poor connectivity of the country (i.e. mobile phones, internet, broadbands) means that the country’s capacity to deal with pandemics such as COVID-19 is low.

The low capacity of the Eritrean health system to deal with the COVID-19 pandemic was also of concern to the diaspora Eritrean Healthcare Professionals Network (EHPN), which urged the Eritrean government to immediately implement the World ealth Orbanization (WHO) and Centre for Disease Control (CDC) guidelines and advisories to contain the pandemic. EHPN expressed concern that the country lacks the necessary prerequisites to implement hygiene measures because: “There is a shortage of water, disinfectants, laboratories that carry out diagnostic tests and medical professionals, including nursing and technical staff. There is also a lack of functioning intensive care units with adequate ventilation equipment needed to properly treat patients. The reality is that many Eritreans will not be able to seek and obtain medical treatment in their homeland or neighbouring countries. In short, the Eritrean health system is not adequately prepared for COVID 19.”

Fears regarding the poor state of the Eritrean health system were further heightened when the Eritrean government refused COVID-19 emergency supplies donated by the Chinese billionaire Jack Ma and his Alibaba Group. Mr Hagos “Kisha” Gebrehiwet, the head of Economic Affairs in the ruling PFDJ, justified the rejection of Jack Ma’s donation by saying that it was unsolicited.

The government’s willingness to reject donations has, however, launched a COVID-19 appeal among citizens. The appeal is remarkable for the lack of information as to how the funds raised will be used. There is no single COVID-19 emergency response bank account designated for the appeal; hence, in the diaspora, funds are collected in different foreign bank accounts set up by Eritrean embassies. Consequently, there is a real danger that the funds will never enter the country and will disappear into the government’s opaque offshore financial system. Also, there is no information as to how the Ministry of Health will use the funds. Reports by Eritrean human rights activists say the appeal is coerced, confirming the lack of transparency and accountability of the fundraising process.

There is also no transparency in the COVID-19 data that the Eritrean government is providing. It reported the first four COVID-positive cases on the 21st and 23rd of March. One patient was an Eritrean national resident in Norway, and the other three positive patients were Eritrean nationals returning from Dubai. Because of these events, by 26th March, the government banned all commercial passenger flights for two weeks. It also closed schools. And, by 1st April, it imposed COVID-19 lockdown measures.

Fears regarding the poor state of the Eritrean health system were further heightened when the Eritrean government refused COVID-19 emergency supplies donated by the Chinese billionaire Jack Ma and his Alibaba Group. Mr Hagos “Kisha” Gebrehiwet, the head of Economic Affairs in the ruling PFDJ, justified the rejection of Jack Ma’s donation by saying that it was unsolicited.

The lockdown measures did not include the closure of the Sawa military training camp or the release of political prisoners. The government has recently released 27 Christian prisoners, who were imprisoned without charge or trial for as long as sixteen years. Their release is conditional on their family lodging their property deeds with the government as a guarantee that the people released will not leave the country.

While maintaining a strict lockdown, the Eritrean government has allowed mass gatherings to celebrate the graduation of the 33rd round of Sawa military training camp graduates as well as the transfer of Grade 12 conscripts to the facility.

From 1st April to 18th April, the Eritrean government reported 39 COVID positive cases, all linked to Eritreans visiting or returning from their travels. Then, for two months, there were no new cases reported. After that, the number of COVID-positive cases increased, and by the 12th of October, Eritrea reported a total of 414 COVID-positive patients and 372 recoveries.

Though the government makes repeated references to quarantine centres, it has not shared a list of the centres, their location or capacity. It is also not reporting the daily number of COVID tests. Nor has it reported any COVID-related deaths or any community transmission of the virus. It continues to attribute all the new COVID cases to Eritreans returning through “irregular land and sea routes” from Ethiopia, Sudan, Djibouti and Yemen. But there is no explanation as to why so many nationals are travelling despite the government’s strict lockdown procedure that prohibits all movement between towns and that restricts te movement of any vehicles, including buses and taxis, which require movement permits. Such permits are not easy to obtain.

Finally, there are only five incidents of Ministry of Information reporting the number of individuals tested or in quarantine:

  1. 3,000 quarantined – 8th May 2020;
  2. 5,270 quarantined – 3rd June 2020;
  3. 7,158 nationals returned through irregular land and sea routes. Not clearly stated but the implication is that they were all quarantined – 14th June 2020;
  4. 18,000 citizens allegedly returned through irregular land and sea routes. This movement occurred in the last four months. Again, not clearly stated but the implication is that they were all quarantined – the 12th October 2020;
  5. 41,100 tests – 12th October 2020.

In a recent report, the Eritrean Ministry of Information asserted that the rate of COVID infection in the country was “a paltry 0.02%”, based on one (1) positive result during 4659 random tests done in Asmara”. The data shared by the government (41,100 tests and 414 COVID-positive cases) suggests that the rate of infection is just 1 per cent.

The COVID lockdown in Eritrea, like in other countries, has brought economic activities to a standstill. The difference between Eritrea and other countries is that the Eritrean economy was already on its knees before the lockdown and the Eritrean government has not made any attempt – beyond extorting donations from its citizens – to alleviate the suffering of the people with economic support packages. Consequently, Eritreans are hungry and desperate and have started to ignore strict lockdowns. They are on the streets selling all kinds of goods. Women are out in the streets, making tea and cooking food for sale. Family and friends describe Asmara, the capital city, as full of mobile tea shops.

In a recent report, the Eritrean Ministry of Information asserted that the rate of COVID infection in the country was “a paltry 0.02%”, based on one (1) positive result during 4659 random tests done in Asmara”. The data shared by the government (41,100 tests and 414 COVID-positive cases) suggests that the rate of infection is just 1 per cent.

The Eritrean Afars have, through the Red Sea Afar Human Rights Organisation (RSAHRO), issued a press statement, describing their situation under lockdown as a: “… siege imposed by the Eritrean regime on the citizens of the region.”. They warn of the danger of hunger in their area. They also describe confiscation of boats, camels and supplies by the military, closed health centres, unprepared quarantine centres, as well as lack of medical supplies. The human rights organisation also accuse General Tekle Manjus of confiscating trucks of emergency food sent from Asmara for distribution among the Afar.

The Afar coastal area is not the only area in danger of hunger. The information from Eritrea is that hunger is very real all over the country. The government media and social media accounts do not report the danger of hunger or any of the difficulties that the people are facing during this COVID-19 emergency. Their postings give the impression that Eritrea is doing just fine.

Continue Reading

Politics

The Search for a Puppet Chief Justice

The emotional energy invested in controlling the recruitment of the next Chief Justice could turn out to be a source of great frustration when administrative fiat and bench-fixing do not deliver the anticipated results.

Published

on

The Search for a Puppet Chief Justice
Download PDFPrint Article

Anxiety over who will replace Chief Justice David Maraga exploded into the public domain on Friday, October 16, 2020, when a member of the Judicial Service Commission (JSC) alleged a plot to delay the recruitment process. Macharia Njeru, one of the two representatives of the Law Society of Kenya (LSK) to the JSC, claimed in a public statement that the Chief Justice and a few others were “hellbent on derailing the orderly recruitment of his successor and leaving the institution of the Judiciary in a crisis of leadership”.

LSK immediately dissociated itself from Macharia’s position and asserted that the “state capture of the Judiciary and the Judicial Service Commission would not be executed through its representatives”.

The parliamentary Justice and Legal Affairs Committee had earlier failed to prevail on Justice Maraga to take early terminal leave, and subsequently published a proposal to change the law on when to begin recruitment of a new Chief Justice. The Chief Justice will officially retire on January 12, 2021, when he turns 70, but he is expected to take leave on December 15, 2020.

Powerful individuals in the country’s politics cannot wait to see Justice Maraga’s back because of his surprising show of spine. On September 1, 2017, the mild-mannered and soft-spoken jurist led a four-judge majority of the Supreme Court to annul the presidential election in a decision that reverberated across the globe. Last month, Justice Maraga advised the President to dissolve Parliament for failing enact laws to increase representation of women in national elected leadership on the strength of a High Court declaration and six petitions.

Between the two monumental decisions, the Chief Justice has called out the President over judiciary budget cuts, disregard for court orders and verbal attacks on the institution he leads.

Justice Maraga’s name conjures up odium and foreboding in state organs at the executive and legislative levels, expressed through punitive budget cuts in the Judiciary, disregard of courts’ authority, and derisive rhetoric. None of these backhanded actions have brought the politically powerful any satisfaction, hence the abiding desire to find a more user-friendly Chief Justice.

Vacancies in the Judiciary can only be advertised fourteen days after they open up, according to the law, which means that the Chief Justice, who also chairs the JSC, plays no role in recruiting his successor. Previously, individuals in the presidency unsuccessfully sought to influence who becomes Chief Justice since the Constitution of Kenya, on its promulgation in 2010, retired Justice Evan Gicheru in February 2011. At the time, President Mwai Kibaki nominated the Court of Appeal’s Justice Alnashir Visram for Chief Justice without inviting applications or conducting interviews. He was countermanded by the newly-constituted JSC, which then conducted one of the most brutal public interviews for the position before choosing civil society icon and law scholar Willy Mutunga.

Justice Maraga’s name conjures up odium and foreboding in state organs at the executive and legislative levels, expressed through punitive budget cuts in the Judiciary, disregard of courts’ authority, and derisive rhetoric.

Dr Mutunga’s transparent recruitment freed him from the usual baggage that would accompany a political appointment to lead the transformation of the judiciary into an independent, publicly accountable institution [Full disclosure: I was communication advisor in the Office of the Chief Justice from 2011 to 2015]. By the time Dr Mutunga chose to retire a year early in June 2016, he had trebled the number of judges to increase efficiency, built confidence and secured the highest funding ever for the institution. He also ring-fenced decisional independence that would enable courts to act as a check on executive and legislative power.

After the Supreme Court upheld the 2013 presidential election, an internal corruption investigation in the Judiciary sucked the institution into a confrontation with the National Assembly, which petitioned the President to appoint a tribunal to investigate six members of the JSC. A five-judge High Court bench neutered the tribunal before it could sit and presented the first contest between Dr Mutunga and President Uhuru Kenyatta.

President Kenyatta would play possum with a list of 25 judge nominees presented to him by the JSC, first appointing 11 and then keeping the other 14 in abeyance for a year. An amendment to the law to require the JSC to send the President three names from which he could choose the Chief Justice was struck down on account of unconstitutionality.

When Dr Mutunga wanted to retire, the President declined to meet him, and the Speaker of the National Assembly refused to respond to his request to address Parliament. By the time interviews for Dr Mutunga’s replacement began in September 2016, the Executive was disoriented and unable to muscle its substantial vote strength in the JSC for a single candidate.

Although the presidency nominates two non-lawyers as members of the JSC in addition to the Attorney General and a nominee of the Public Service Commission, thus controlling 36 per cent of the vote, the Judiciary has five members – the Chief Justice as chair and one representative each for the Supreme Court, the Court of Appeal, the High Court and the magistrates – and has 45 per cent voice. The Law Society of Kenya’s two representatives – 18 per cent – provide an important swing vote for the Executive or the Judiciary whenever there is no consensus.

Justice Maraga of the Court of Appeal emerged as the dark horse in the three-month search for the Chief Justice on the strength of his electoral law jurisprudence. Earlier attempts to name Supreme Court judge Jackton Ojwang as acting Chief Justice were abandoned. Justice Ojwang trailed fellow Supreme Court judge Smokin Wanjala, Kenyan-American law professor Makau Mutua, and constitutional law expert Nzamba Kitonga.

When Dr Mutunga wanted to retire, the President declined to meet him, and the Speaker of the National Assembly refused to respond to his request to address Parliament.

The Supreme Court’s annulment of the presidential election in September 2017 produced voluble complaints from President Kenyatta, who threatened unspecified action against the Judiciary. The independence of the Judiciary, represented in the person of the Chief Justice, has clearly rankled President Kenyatta and his supporters. He subsequently began a systematic reorganisation of the Executive’s representatives to the JSC by picking a judiciary insider, Court of Appeal president, Kihara Kariuki, to replace Attorney General Githu Muigai. Even before the terms of public representatives Winnie Guchu and Kipng’etich Bett were midway, he recalled them and replaced them with Prof Olive Mugenda and Felix Koskey. And then he declined to gazette the re-election of Mohammed Warsame as Court of Appeal representative to the JSC. Judge Warsame was finally seated without re-taking oath courtesy of a court decision that obviated the need for his election to be gazetted. He joined the judiciary column led by the Chief Justice, Deputy Chief Justice Philomena Mwilu, who had been elected to represent the Supreme Court, and Justice David Majanja, who represents the High Court.

Fears have been rife that the election of the magistrates’ representative to replace Chief Magistrate Emily Ominde in December and the replacement of LSK woman representative Mercy Deche could provide an opportunity for the Executive to support pliant candidates, in addition to Macharia Njeru.

It is likely that urgent attempts to start the Chief Justice’s recruitment could exclude the two representatives of the magistrates and the LSK, thus denying the panel two critical voices. Voting strength in the JSC could also be significantly altered if some of the commissioners apply for the Chief Justice’s position. For one, it is not clear if the 62-year-old Deputy Chief Justice Philomena Mwilu, who already represents the Supreme Court in the JSC, will act as chairperson of the commission once Justice Maraga leaves.

Although voting is an important factor in choosing the next Chief Justice, qualification is probably more important. And the public scrutiny candidates are subjected to, complete with court oversight when required, means that a naked attempt to install a puppet would backfire.

Political horse-trading with Parliament is a necessity for nominees to the position of Chief Justice and Deputy Chief Justice to be confirmed during vetting. Often, politicians view the Chief Justice’s position as one of the spoils to be traded during ethno-regional deal-making. So far, the Chief Justice’s position has been occupied by a kaleidoscope of Kenyans – including many ethnic and religious colourations.

The law only provides for the Deputy Chief Justice to act as Chief Justice “[i]n the event of the removal, resignation or death” and only for a period not exceeding six months pending the appointment of a new one. It remains to be seen if legal experts will argue that retirement is not equivalent to removal, resignation or death. Should Justice Mwilu also throw her hat in the ring for the top job, she would not be able to cast a vote as a JSC member.

Another JSC member who has to weigh between voting and chasing the job is 66-year-old Justice Kihara Kariuki, believed to be a front-runner to succeed Chief Justice Evan Gicheru in 2011 but has bided his time, rising to President of the Court of Appeal before accepting to serve as Attorney General. Meanwhile, Justice Mwilu has been embroiled in petitions seeking her removal from office since the Supreme Court annulled the presidential election. Two years ago, the Director of Public Prosecutions and the Director of Criminal Investigations launched a highly publicised effort to arrest and charge her with corruption before the High Court discharged her and advised that complaints against her be first have been processed through the JSC. Justice Mwilu has since tied the JSC in legal knots over the involvement of the Attorney General and one other member in hearing the complaint against her, claiming that they have shown bias.

Although the Constitution allows a Chief Justice to serve for a maximum of 10 years, the practice so far has been to choose individuals who are close to the retirement age, with the effect that those chosen preside over only presidential petitions from one election cycle before they reach the retirement age of 70. If appointments continue to be short-term to limit the pain individuals can inflict on the institution, candidates in their mid-60s appear to be chosen to navigate the 2022 election and leave before the 2027 one.

Although voting is an important factor in choosing the next Chief Justice, qualification is probably more important. And the public scrutiny candidates are subjected to, complete with court oversight when required, means that a naked attempt to install a puppet would backfire.

Although the Supreme Court’s Justice Smokin Wanjala gave a good showing at the 2016 interviews and was ranked second, his age – 60 – means that if appointed, he would hold the job for 10 years. Law scholar Makau Mutua, 62, who was ranked third in the 2016 interviews for Chief Justice, could also give the job another try, as would former Attorney General Githu Muigai, who would similarly be hampered by fears of serving out the 10 years in the post.

The Executive’s frustration with the Judiciary has been expressed as blame for the slow pace of corruption cases, where the courts are criticised for not pulling their weight to deliver quick convictions. The most evident sign of frustration has been the President’s refusal to appoint 41 individuals nominated by the JSC as Court of Appeal and High Court judges. The law does not permit the JSC to reconsider its nominees after the names have been submitted to the President, except in the case of death, incapacity or withdrawal of a nominee. Last week, judge designate Harrison Okeche died after a road traffic accident before he could be sworn in because the President has not published the names as expected. It remains to be seen how the JSC responds.

Chief Justices chair the Judicial Service Commission, and preside over the Supreme Court, which decides the presidential election petitions. Besides the very constrained and collegial power in these two sites, the Chief Justice also exercises administrative power in empanelling High Court benches for constitutional references, and posts judges – powers shared with the President of the Court of Appeal and the Presiding Judge of the High Court.

A Chief Justice cannot direct judicial officers – from the lowliest magistrate to the Supreme Court judge – on how to decide a matter. Much of the power she or he wields is moral and symbolic. The emotional energy invested in controlling the recruitment of the next Chief Justice could turn out to be a source of great frustration when administrative fiat and bench-fixing do not deliver the anticipated results for those seeking a puppet Chief Justice.

Continue Reading

Politics

African Continent a Milking Cow for Google and Facebook

‘Sandwich’ helps tech giants avoid tax in Africa via the Netherlands and Ireland.

Published

on

Algorithmic Colonisation of Africa
Download PDFPrint Article

Google’s office at the airport residential area in Accra, Ghana, sits inside a plain white and blue two-storey building that could do with a coat of paint. Google, which made more than US$ 160 billion in global revenue in 2019, of which an estimated US$ eighteen billion in ‘Africa and the Middle East’, pays no tax in Ghana, nor does it do so in most of the countries on the African continent.

Google Street View of the building registered as Google's office in Accra

Google Street View of the building registered as Google’s office in Accra

It is able to escape tax duties because of an old regulation that says that an individual or entity must have a ‘physical presence’ in the country in order to owe tax.  And Google’s Accra office clearly defines itself as ‘not a physical presence.’ When asked, a front desk employee at the building says it is perfectly alright for Google not to display its logo on the door outside. ‘It is our right to choose if we do that or not’. A visitor to the building, who said she was there for a different company, said she had no idea Google was based inside.

Facebook is even less visible. Even though practically all 250 million smartphone owners in Africa use Facebook, it only has an office in South Africa, making that country the only one on the continent where it pays tax.

Brick and mortar

The physical presence rule in African tax laws is ‘remnant of a situation before the digital economy, where a company could only act in a country if it had a “brick and mortar” building’, says an official of the Nigerian Federal Inland Revenue Service (FIRS), who wants to remain anonymous. ‘Many countries did not foresee the digital economy and its ability to generate income without a physical presence. This is why tax laws didn’t cover them’.

Tax administrations globally have initiated changes to allow for the taxing of digital entities since at least 2017. African countries still lag behind, which is why the continent continues to provide lucrative gains for the tech giants. A 2018 PriceWaterhouseCoopers report noted that Nigeria, Africa’s largest economy, has seen an average of a thirty percent year-on-year growth in internet advertising in the last five years, and that the same sector in that country is projected, in 2020, to amount to US$ 125 million in the entertainment and media industry alone.

‘Their revenue comes from me’.

William Ansah, Ghana-based CEO of leading West African advertising company Origin 8, pays a significant amount of his budget to online services. He says he is aware that tax on his payments to Facebook and Google escapes his country through what is commonly referred to as ‘transfer pricing’ and feels bad about it. ‘These companies should pay tax here, in Ghana, because their revenue comes from me’, he says, showing us a receipt from Google Ireland for his payments. During this investigation we were also shown an advert receipt from a Nigerian Facebook ad that listed ‘Ireland’ as the destination of the payment.

Like Google, Facebook does not provide country-by-country reports of its revenue from Africa or even from the African continent as a whole, but the tech giant reported general revenue of US$ sixty billion as a whole from ‘Rest of the world’, which is the world minus the USA, Canada, Europe and Asia.

Facebook revenue by user geography

Facebook revenue by user geography

Irish Double

The specific transfer pricing construction Google and other tech giants such as Facebook use to channel income away from tax obligations is called an ‘Irish Double’ or ‘Dutch Sandwich’, since both countries are used in the scheme. In the construction, the income is declared in Ireland, then routed to the Netherlands, then transferred to Bermuda, where Google Ireland is officially located. Bermuda is a country with no corporation tax. According to documents filed at the Dutch Chamber of Commerce in December 2018, Google moved US$ 22,7 billion through a Dutch shell company to Bermuda in 2017.

Moustapha Cisse, Africa team lead at Google AI

Moustapha Cisse, Africa team lead at Google AI

An ongoing court case in Ghana — albeit on a different issue — recently highlighted attempts by Google to justify its tax-avoiding practices in that country. The case against Google Ghana and Google Inc, now called Google LLC in the USA, was started by lawyer George Agyemang Sarpong, who held that both entities were responsible for defamatory material against him that had been posted on the Ghana platform. Responding to the charge, Google Ghana contended in court documents that it was not the ‘owner of the search engine www.google.com.gh’; that it did not ‘operate or control the search engine’ and that ‘its business (was) different from Google Inc’.

Google Ghana is an ‘artificial intelligence research facility’.

Google Ghana describes itself in company papers as an ‘Artificial Intelligence research facility’. It says that its business is to ‘provide sales and operational support for services provided by other legal entities’, a construction whereby these other legal entities — in this case Google Inc — are responsible for any material on the platform. Google Ghana emphasised during the court case that Ghana’s advertising money was also correctly paid to Google Ireland Ltd, because this company is formally a part of Google Inc.

Rowland Kissi, law lecturer at the University of Professional Studies in Accra describes Google’s defence in the Sarpong court case as a ‘clever attempt’ by the business to shirk all ‘future liability of the platform’. Kissi is cautiously optimistic about the outcome, though: while the case is ongoing, the court has already asserted that ‘the distinction regarding who is responsible for material appearing on www.google.com.gh, is not so clear as to absolve the first defendant (Google Ghana) from blame before trial’. According to leading tax lawyer and expert Abdallah Ali-Nakyea, if the ‘government can establish that Google Ghana is an agent of Google Inc, the state could compel it to pay all relevant taxes including income taxes and withholding taxes’.

Cash-strapped countries

Like most countries, especially in Africa, Nigeria and Ghana have become more cash-strapped than usual as a result of the COVID 19 pandemic. While lockdowns enforced by governments to stop the spread of the virus have caused sharp contractions of the economy worldwide, ‘much worse than during the 2008–09 financial crisis’, according to the International Monetary Fund, Africa has experienced unprecedented shrinking, with sectors such as aviation, tourism and hospitality hardest hit. (Ironically, in the same period, tech giants like Google and Facebook have emerged from the pandemic stronger, due to, among others, the new reality that people work from home.)

With much needed tax income still absent, many countries have become even more dependent on charitable handouts. Nigeria recently sent out a tweet to ask international tech personality and philanthropist, Elon Musk, for a donation of ventilators to help weather the COVID 19 pandemic: ‘Dear @elonmusk @Tesla, Federal Government of Nigeria needs support with 100-500 ventilators to assist with #Covid19 cases arising every day in Nigeria’, it said. After Nigerians on Twitter accused the government of historically not investing adequately in public health, pointing at neglect leading to a situation where a government ministry was now begging for help on social media, the tweet was deleted. A government spokesperson later commented that the tweet had been ‘unauthorised’.

Cost to public

The criticism that governments often mismanage their budgets and that much money is lost to corruption regularly features in public debates in many countries in Africa, including Nigeria. However, executive secretary Logan Wort of the African Tax Administration Forum ATAF has argued that this view should not be used to excuse tax avoidance. In a previous interview with ZAM Wort said that ‘African countries must develop their tax base. It is only in this way that we can become independent from handouts and resource exploitation. Then, if a government does not use the tax money in the way it should, it must be held accountable by the taxpayers. A tax paying people is a questioning people’.

‘A tax paying people is a questioning people’

Commenting on this investigation, Alex Ezenagu, Professor of Taxation and Commercial Law at Hamad Bin Khalifa University in Qatar, adds that in matters of tax avoidance by ‘popular multinationals such as Facebook and Google, it is important to understand the cost to the public. If (large) businesses don’t pay tax, the burden is shifted to either small businesses or low income earners because the revenue deficit would have to be met one way or another’. For example, a Nigerian revenue gap may cause the government to increase other taxes, Ezenagu says, such as value added tax, which increased from five to seven and a half percent in Nigeria in January. ‘When multinationals don’t pay tax, you are taxed more as a person’.

Nigeria has recently begun to tighten its tax laws, thereby following in the footsteps of Europe, that last year made it more difficult for the digital multinationals to use the ‘Irish Double’ to escape tax in their countries. South Africa, too, in 2019 tailored changes to its tax laws in order to close remaining legal loopholes used by the tech giants. These ‘could raise (tax income) up to US$ 290 million a year’ more from companies like Google and Facebook, a South African finance source said. With US$ 290 million, Ghana’s could fund its flagship free senior high school education; Nigeria could fully fund the annual budget (2016/2017 figures) of Oyo, a state in the south west of the country.

Interior view of the Facebook office in Johannesburg, South Africa

Interior view of the Facebook office in Johannesburg, South Africa

Waiting for the Finance Minister

Nigeria’s new Finance Act, signed into law in January 2020, has expanded provisions to shift the country’s focus from physical presence to ‘significant economic presence’. The new law leaves the question whether a prospective taxpayer has a ‘significant economic presence’ in Nigeria to the determination of the Finance Minister, whose action with regard to the tech giants is awaited.

In Ghana, digital taxation discussions are slowly gaining momentum among policy makers. The Deputy Commissioner of that country’s Large Taxpayer Office, Edward Gyamerah, said in a June 2019 presentation that current rules ‘must be revised to cover the digital economy and deal with companies that don’t have traditional brick-and-mortar office presences’. However, a top government official at Ghana’s Ministry of Finance who was not authorised to speak publicly stated that, ‘from the taxation policy point of view, the government has not paid a lot attention to digital taxation’.

He blamed the ‘complexity of developing robust infrastructure to assess e-commerce activity in the country’ as a major reason for the government’s inaction on this, but hoped that a broad digital tax policy would still be announced in 2020.” Until the authorities get around to this, he said he believed that, ‘Google and Facebook will (continue to) pay close to nothing in Ghana’.

Comment

Google Nigeria did not respond to several requests for interviews; Google Ghana did not respond to a request for comment on this investigation. Neither entities responded to a list of questions, which included queries as to what of their activities in the two countries might be liable for tax, and whether they could publish country by country revenues generated in Africa. When reached by phone, Google Nigeria’s Head of Communications, Taiwo Kola Ogunlade, said that he couldn’t speak on the company’s taxation status. Facebook spokesperson Kezia Anim-Addo said in an email: ‘Facebook pays all taxes required by law in the countries in which we operate (where we have offices), and we will continue to comply with our obligations’.

Note: The figure of eighteen billion US$ as revenue for Google in ‘Africa and the Middle East’ over 2019 was arrived at as follows. Google’s EMEA figures for 2019 indicate US$ 40 billion revenue for ‘Africa, Europe and the Middle East’ all together. According to this German publication, Google’s revenue in Europe was 22 billion in 2019This leaves US$ eighteen billion for Africa and the Middle East.

This article was first published by our partner ZAM Magazine.

Continue Reading

Trending