“Is that air you’re breathing now?” Morpheus asks Neo in the 1990s cult classic, The Matrix. The same question could be asked of millions of Kenyans for whom the quality of what they inhale on a daily basis has for too long been taken for granted.
In May 2016, I was part of a team at the United Nations Environment Programme (UNEP) that measured air quality around Nairobi. We deployed low-cost monitors in different parts of the city, including four schools – Alliance Girls School in the green, leafy suburb of Kikuyu; All Saints Cathedral School in an area populated by small industries and shops; St. Scholastica, off the notoriously congested Thika highway; and Kibera Girls Soccer Academy, close to the railway tracks in the heart of Kibera. In addition, we sampled the air around the Viwandani Community Centre in the Lungalunga slum and at the UNEP headquarters in Gigiri. We published the results from this deployment in the South African open-source Clean Air Journal and made the data publicly available.
Perhaps unsurprisingly, air pollution within the informal settlements was troublingly high. In the absence of collection of waste by municipal authorities, communities in Kibera are forced to burn it, which fouls up the air. Indoor air pollution from the use of kerosene and charcoal for cooking has also had an adverse impact on the health of people living in informal settlements. Across the city in Lunga Lunga, residents have no control over pollution from industries in the vicinity, including, we were told, a tear gas producing factory.
What did come as a surprise was that St. Scholastica had comparable levels of pollution, mostly from cars plying the Thika Highway. We also expected Alliance Girls School to be the cleanest but observed large spikes in dust each Wednesday morning, when firewood was burned. At UNEP and All Saints, pollution was lower than at the other sites.
Four years ago, Kenya gazetted Air Quality Regulations that specify air quality standards, as well as steps to be taken for “prevention, control and abatement” of air pollution in recognition of the terrible toll it takes on the health of Kenyans’ health. The 2017 Kenya Economic Survey estimated that 19.9 million Kenyans suffer from respiratory ailments that are exacerbated by poor air quality. However, the government has been unable to enforce the regulations due to a lack of high-quality air quality monitoring data. Without an understanding of the baseline air quality in Kenya and how it varies across the country as well as over time, the standards and regulations cannot be enforced.
The 2017 Kenya Economic Survey estimated that 19.9 million Kenyans suffer from respiratory ailments that are exacerbated by poor air quality.
The monitors UNEP used were relatively low-cost (under US$3,000) and not very accurate; though they provided crucial insights into air pollution at each site, scientists are still figuring out how to make sense of the “noisy” data they produce. The European Environment Agency has created a Working Group to certify a section of low-cost monitors for “indicative” purposes and India and China are also working toward certification programmes.
Highly accurate monitors, also known as reference monitors, used by many countries for regulatory purposes, are expensive and can cost upwards of US$100,000. This places them out of the reach of most communities. Low-cost monitors, however, can fill in the gaps in our understanding of air pollution and are even more important for developing countries where few high-quality instruments exist, if they exist at all. We found that the UNEP monitors were actually helpful in identifying major sources of air pollution at each site and in raising awareness about air pollution and its deleterious effects on human health.
More recently, others have deployed such monitors giving Kenya a good reason to join the conversation about how to use the data from them for regulatory purposes. Code for Africa have developed their own low-cost monitors, deployed three across Nairobi and made the data publicly available. The Stockholm Environment Centre (SEI) has also deployed some in Lungalunga and has empowered the community to lobby their ward representative to do something about the terrible air pollution they are exposed to. The African Population and Health Research Center also monitors air pollution in Korogocho and Viwandani.
This is encouraging but till we figure out how to use the data for enforcement of the 2014 Air Quality Regulations, it is prudent to ask whether any high-quality air monitoring stations exist in the country. As it turns out, the entire country has just three such monitors, and even these are not always used to their full potential.
The University of Nairobi has a reference monitoring station which they have used to conduct several important studies, mainly in Nairobi. For example, Professor Michael Gatari’s research group, in partnership with colleagues from universities around the world, have used the high-quality equipment to show that vehicle emissions are a major source of pollution in the city centre. They have also shown the shockingly high exposure to air pollution of matatu drivers and traffic policemen.
Kenyan government agencies also have high-quality systems. The Kenya Meteorological Department (KMD) operates a monitoring station on Mount Kenya, and in addition owns, and sometimes operates, a mobile van that has high-quality instruments that can measure a range of air pollutants. The National Environment Management Authority (NEMA) also requires industrial facilities to contract designated laboratories with high-quality equipment to report their stack emissions (emissions coming out of their smoke stacks after burning waste) and to make provisions for continuous monitoring in accordance with the 2014 Air Quality Regulations. Some of these laboratories also measure ambient air quality.
So what data do they collect and how do they use it?
KMD’s station on Mount Kenya is actually owned by the World Meteorological Organization (WMO) and is part of the WMO Global Atmospheric Watch network. The station has instruments for measuring particulate matter/dust and surface ozone, among other air pollutants and its data is supposed to be public. However, due to a lack of funds for routine expenditures, such as the filters that are crucial for some measurements, only surface ozone data is currently being collected at this site. Data for other pollutants does not exist online.
Some of the pollution trends from the KMD mobile van have been published in academic papers and can be found on the KMD website, but the data itself has not been made public. When I visited the KMD headquarters in Nairobi in December, I paid to access a few days’ worth of data. When asked about why the data was not free of charge, many KMD staff, while sympathetic to my request, said that as the mobile van is expensive to run on a regular basis, they needed to charge for the data to recover costs.
These costs arise from the fact that though KMD owns the van, the firm from which they bought it, SI Analytics, actually owns the data, for which KMD has to pay an access fee of Sh80,000 a year to download the data from their servers in the UK. This is a common scheme in the industry that could either be seen as a way to make the technology accessible to cash-strapped institutions, or as a way of maintaining a constant revenue stream from them over time. SI Analytics have offered an alternative arrangement where a one-time cost could be made to buy the data logger in perpetuity and KMD could consider raising funds to move to this arrangement so that the van is used to its full potential.
Additionally, other costs, such as a license fee to use and operate the van, makes it hard to consistently operate the platform and fully reap its potential benefits. As it is, given the costs, KMD typically only operates the van when contracted by NEMA to monitor pollution in specific locations. NEMA then pays for the associated operating costs. However, the Authority only receives an official analysis report from KMD, which is open to interpretation, rather than the data set itself. This creates a lack of clarity in the division of responsibilities and in checks and balances, which can foster suspicion and breed mistrust among government agencies.
KMD has for several years also been collecting and publishing data on surface ozone in partnership with MeteoSwiss, the Swiss Office of Meteorology and Climatology, at their Nairobi headquarters. Surface ozone is very harmful to human health and such data is exceedingly useful for developing pollution management plans. However, although the data is public, it has received scant attention. This is partially because not many people know that it is available, and, furthermore, because it has not been interpreted in a way that makes it meaningful for the development of an air pollution management plan. This last part falls outside of KMD’s mandate, which is to monitor the environment for meteorological purposes. The data, however, could be of great use to NEMA, which, as the national body in charge of environmental policy, requires high quality data to ground its work.
Surface ozone is very harmful to human health and such data is exceedingly useful for developing pollution management plans. However, although the data is public, it has received scant attention.
Many countries use raw data to develop an air quality index (Good, Moderate, Bad, Very Bad) that gives the public an intuitive understanding of the air they breathe and allows them to issue warnings when the air quality is very bad and to provide recommendations about what people can do (for example, not to exercise outdoors). Government agencies and the tech community in Kenya need to design a similar index to convey existing data effectively to the public. Fortunately, they don’t need to reinvent the wheel and can utilise one of the many existing ones.
As mentioned earlier, NEMA requires industries to submit data on their stack emissions. However, the Authority does not openly publish the data it gets. On their website, NEMA states that only a handful of designated laboratories are capable of monitoring emissions on behalf of industries, and at the moment there are only two listed as capable of monitoring air quality, which is obviously insufficient for the country’s needs. Industries also often complain about the burden of self-reporting as well as the high cost of retrofitting existing facilities to eliminate or reduce emissions. These factors compound to dilute the progress needed for enforcing emissions standards. In fact, to date, NEMA has not publicly announced a single air quality enforcement action against an industrial player.
It is clear that the current situation presents a vulnerable scenario where potentially corrupt behaviour could happen. This warrants further investigation and points to the need for calibrating the existing carrots for industries to do the right thing in addition to the current sticks. Such incentives, for example, could be in the form of technical advice or in the form of financial help, both of which are often needed to offset the additional burden required by regulatory frameworks seeking to curtail emissions.
The low number of designated laboratories also suggest either lack of interest from the private sector in the market or non-competitive behaviour. This is a shame because many studies have shown that investing in more air pollution stations can have tremendous health and systemic financial benefits. For example, in the United States, the Clean Air Act is estimated to have health and environmental savings of over US$22 trillion! Therefore, it makes good policy sense to consider the adoption of these systems, since experience shows that the initial high costs of deploying reference monitoring stations would be more than recovered by the huge savings from the interventions based on the data from the stations.
Regardless, some high-quality air quality data does exist in Kenya. Though it is incomplete and sparse, and almost all of it is for Nairobi, it can still be useful, which brings about the question of why isn’t it more so?
Lack of effective coordination
The coordination of the development of a national air quality monitoring strategy currently falls under the purview of the Ministry of Environment and Natural Resources (MENR). Various government agencies, including NEMA and KMD are responsible for different aspects of managing air pollution. Some of the other organisations involved include the National Transport and Safety Authority, that is in charge of testing vehicles (even though NEMA also has a task force independently working on emissions from motor vehicles) and the Office of Health and Safety Authority in the Ministry of Labour are in charge of ensuring the safety of workers from indoor air quality.
The challenge of coordination between these different entities is a major barrier to the development of an effective holistic air quality management strategy. To add to the general complexity, the task of managing air quality has been now devolved to the counties, with the Council of Governors Committee on Environment bearing responsibility for coordinating air pollution management for the different counties. However, beyond the actual executive capabilities of each stakeholder, there is a degree of confusion with regards to the proper jurisdiction and responsibilities of monitoring and enforcing air pollution levels among some of them, since for example, both NEMA as well as the county governments count it as part of their mandate. This further adds to the question of what the distribution of tasks is between different agencies and institutions at various levels of government.
To add to the general complexity, the task of managing air quality has been now devolved to the counties, with the Council of Governors Committee on Environment bearing responsibility for coordinating air pollution management for the different counties.
The advent of devolution, with new roles assigned to counties but without adequate funding to perform them, has made the separation of tasks even more difficult. In this sense, additional conversations need to happen between NEMA and the various county agencies so that everyone is on the same page about who is responsible for what.
Such a situation is symptomatic of the struggles between organisations after the advent of the umbrella Environmental Management and Coordination Act (EMCA) established in Kenya in 1999. Under this framework, NEMA shouldn’t take on the tasks of existing agencies, but rather is charged with coordinating their efforts. However, the current framework makes it easy for NEMA to overreach and take on roles originally assigned to others, if they think they are not performing as they should, a situation that could potentially resolve issues in the short term, but that could also stunt their development.
Other potential reasons for the existing air pollution data not being used to its full potential are a lack of funds and trained personnel needed to manage the reference stations and keep them running. There is also a generalised shortage of staff who can interpret the data effectively and issue public health warnings or make the appropriate urban planning recommendations. Hope is not lost, however; there are clear efforts from the likes of the University of Nairobi, which has been heavily involved in training programmes to correct this.
Another impediment to effective use of the existing data is the fact that much of it is simply not available to the public. This is despite Kenya having an Open Data Initiative and the right of access to public information being enshrined in the constitution. Publicly funded organisations, such as NEMA and KMD, should be more accountable, in accordance with international standards of transparency. It is only then that public participation in decision-making, as clearly stated in Kenya’s constitution, can be made actionable. Ultimately, the development of a national air quality monitoring strategy can only be achieved if people are made aware of the quality of the air that they breathe and if they’re given the proper vehicle for participation.
Kenya Air Quality Network
In the face of the confusion, air quality researchers and civil society in Kenya have not been silent. As mentioned earlier, the University of Nairobi has conducted several short-term studies using high quality reference equipment. Also, UNEP, SEI and APHRC have complemented this with data from low-cost air quality monitors. Researchers involved in these initiatives have come together to form the Kenya Air Quality Network (KAQN) which focuses on three action areas: 1) Data research and instrumentation, 2) Policy and stakeholder engagement, 3) Education and public awareness. The Network has organised three meetings so far to update members on the progress being made by task forces assigned to work on each of the action areas. So far, the key thrust of KAQN has been to make the data from various studies using different low-cost monitors comparable so that broader claims about air quality in the city can be made.
Local governments seem to recognise this effort, which is why the Chief of Environment of Nairobi County attended KAQN’s annual meeting in December 2016 and committed to initiating a process to develop an air quality management plan for the city. In this way, Nairobi County became the first, and so far only, county to have committed to developing an air quality management plan. Nonetheless, it must be noted that the Nairobi County government does not have any capacity to monitor air pollution as its office essentially deals with environment-related nuisances by crowdsourcing reports from the public. When I was at the county government, I was shown the register. Although there were no specific air quality- related complaints, there were a few complaints about noxious smells.
Unfortunately, after the 2017 election, it was unclear if the Chief of the Environment and the top county team that had initiated the process of developing a county air quality management plan for Nairobi were going to remain in their positions, which made it difficult to assess how the process was going to unfold.
MENR has also attended KAQN meetings and initiated a parallel process of developing a National Air Quality Management Strategy and Action Plan. It has established an Inter-Agency Committee of institutions that are working on different aspects of managing air pollution, including KAQN and the private sector. However, the process has currently stalled due to a dearth in funding as no specific budget line has been provided by the ministry.
So what comes next? How is Kenya going to tackle these thorny issues of coordination between entities, engagement with the public, and the lack of a well-defined budget for air quality related activities?
Some of the people I spoke to in Nairobi were of the opinion that the only way things would change was if Kenya developed a separate Clean Air Act, like the one the United States has. They believe that the current law cannot resolve the problem of ineffective coordination between the different government organisations, especially after devolution. Indeed, because of this, separate Acts have already been proposed for Water, Climate Change and Solid Waste Management to clarify the roles of different agencies. Many air quality researchers believe that a similar approach has been proposed for Air Quality.
Some of the people I spoke to in Nairobi were of the opinion that the only way things would change was if Kenya developed a separate Clean Air Act, like the one the United States has. They believe that the current law cannot resolve the problem of ineffective coordination between the different government organisations, especially after devolution.
However, the development of such an Act will take time and effort, for which public pressure is key. In this case, it is important for the public to write to the Principal Secretary of the Environment and hold the government accountable for the current state of progress, as this appears to be a critical step by which the state can be compelled to deal with the deadly threat of poor air quality and to help us answer Morpheus’ question.
Support The Elephant.
The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.
Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.
Is Somalia’s Quest for Membership of the EAC Premature?
Somalia must first ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the East African Community.
The current members of the East African Community (EAC) are Tanzania, Kenya, Uganda, Rwanda, Burundi, and South Sudan. The Somali Federal Government, under the leadership of Hassan Sheikh Mohamud, has expressed a strong interest in joining the EAC, sparking questions among Somali citizens as to whether the country is ready to join such a large and complex regional bloc.
During President Hassan Sheikh Mohamud initiated Somalia’s pursuit of EAC membership during his previous term as a president from 2012 to 2017. However, little progress was made during his first term and, following his re-election, President Hassan reignited his pursuit of EAC membership without consulting essential stakeholders such as the parliament, the opposition, and civil society. This unilateral decision has raised doubts about the president’s dedication to establishing a government based on consensus. Moreover, his decision to pursue EAC membership has evoked mixed responses within Somalia. While some Somalis perceive joining the EAC as advantageous for the country, others express concerns about potential risks to Somalia’s economic and social development. President Hassan has defended his decision, emphasising that Somalia’s best interests lie in becoming a member of the EAC.
To assess Somalia’s readiness to join the EAC, the regional bloc undertook a comprehensive verification mission. A team of experts well versed in politics, economics, and social systems, was tasked with evaluating Somalia’s progress. The evaluation included a thorough review of economic performance, trade policies, and potential contributions to the EAC’s integration efforts. During this process, the team engaged with various government institutions and private organisations, conducting comprehensive assessments and discussions to gauge Somalia’s preparedness.
One of the key requirements for Somalia is demonstrating an unwavering commitment to upholding principles such as good governance, democracy, the rule of law, and respect for human rights. Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Successful integration into the EAC would not only elevate Somalia’s regional stature but would also foster deeper bonds of cooperation and shared prosperity among the East African nations. While this is a positive step towards regional integration and economic development, there are several reasons for pessimism about the potential success of Somalia’s membership in the EAC.
Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Somalia has faced significant challenges due to prolonged conflict and instability. The decades-long civil war, coupled with the persistent threat of terrorism, has had a devastating impact on the country’s infrastructure, economy, governance systems, and overall stability.
The following fundamental factors raise valid concerns about Somalia’s readiness to effectively participate in the EAC.
Infrastructure plays a critical role in regional integration and economic growth. However, Somalia’s infrastructure has been severely damaged and neglected due to years of conflict. The country lacks adequate transportation networks, reliable energy systems, and while communications infrastructure has improved, internet penetration rates remain low and mobile networks – which are crucial for seamless integration with the EAC – can be unavailable outside of urban centres. Rebuilding such infrastructure requires substantial investments, technical expertise, and stability, all of which remain significant challenges for Somalia.
Political stability and governance
The EAC places emphasis on good governance, democracy, and the rule of law as prerequisites for membership. Somalia’s journey towards political stability and effective governance has been arduous, with numerous setbacks and ongoing power struggles. The lack of a unified government, coupled with weak state institutions and a history of corruption, raises doubts about Somalia’s ability to meet the EAC’s standards. Without a stable and inclusive political environment, Somalia may struggle to effectively contribute to the decision-making processes within the regional bloc.
Economic development and trade
Somalia’s economy has been heavily dependent on the informal sector and faces substantial economic disparities. The country needs to demonstrate a vibrant market economy that fosters regional trade and collaboration, as required by the EAC. However, the challenges of rebuilding a war-torn economy, tackling high poverty rates, and addressing widespread unemployment hinder Somalia’s ability to fully participate in regional trade and reap the benefits of integration.
Somalia continues to grapple with security challenges, including the presence of extremist groups and maritime piracy. These issues have not only hindered the country’s development but also pose potential risks to the stability and security of the entire EAC region. It is crucial for Somalia to address these security concerns comprehensively and to establish effective mechanisms to contribute to the EAC’s collective security efforts.
Economic Disparity and Compatibility
Somalia’s economy primarily relies on livestock, agriculture, and fishing, which may not align well with the more quasi-industralised economies of the other EAC member states. This mismatch could result in trade imbalances and pose challenges for integrating Somalia into the regional economy. For instance, according to the World Bank, Somalia’s GDP per capita was US$447 in 2021 whereas it is US$2081 for Kenya, US$1099 for Tanzania, and US$883 for Uganda. Furthermore, Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
This divergence in economic structures could lead to trade imbalances and impede the seamless integration of Somalia into the regional economy. The substantial economic gap between Somalia and other EAC member states suggests a significant disparity that may hinder Somalia’s ability to fully participate in the EAC’s economic activities. Additionally, Somalia has yet to demonstrate fiscal or economic discipline that would make it eligible for EAC membership. While Somalia has a functioning Central Bank and the US dollar remains the primary mode of financial transactions, the risk of integration lies with the other EAC members; cross-border trade would occur in an environment of instability, posing potential risks to the other member state.
Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
While these fundamental challenges remain, it is important to acknowledge the progress Somalia has made in recent years. This includes the gradual improvement in security conditions, the establishment of key governmental institutions, and the peaceful transfer of power. One can also argue that many of these fundamental economic, infrastructure, political instability, and security concerns exist across the East African Community. However, what makes Somalia unique is the scale of the challenges it faces today. Somalia has adopted a federal political structure, which has not worked well so far. This level of fragmentation and civil political distrust makes Somalia’s case unique. More than ever, Somalia needs meaningful political and social reconciliation before it can embark on a new regional journey.
The absence of an impact assessment by the relevant ministries in Somalia is alarming. Without this assessment, it becomes challenging to make informed decisions about the potential benefits of joining the EAC and the impact on our economy and society. Conducting this assessment should be a priority for Somalia’s ministries to ensure a comprehensive evaluation of the potential benefits and risks involved in EAC membership. Furthermore, President Hassan Sheikh Mohamud’s decision to pursue Somalia’s integration into the EAC lacks political legitimacy as a decision of this nature would normally require ratification through a popular vote and other legal means through parliament. The failure to achieve this could potentially allow another president in the future to unilaterally announce withdrawal from the EAC.
Fragile state of Affairs and internal disputes
The recent reopening of the Gatunda border post between Uganda and Rwanda after a three-year period of strained relations indicates a fragile state of affairs. The East African Court of Justice has ruled that Rwanda’s initial closure of the border was illegal, highlighting the contentious nature of inter-country disputes. Furthermore, Tanzania and Uganda have formally lodged complaints against Kenya, alleging unfair advantages in trade relations, and have even gone as far as threatening Kenya with export bans. These grievances underscore the underlying tensions and competition between member states, which could potentially hinder the harmonious functioning of the East African Community. These political and economic disagreements among member states increase the risks associated with Somalia’s membership. Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions. Joining the East African Community at this juncture carries the risk of being drawn into ongoing disputes and potentially being caught in the crossfire of inter-country rivalries.
Conflict in South Sudan
The prolonged conflict in South Sudan, which has been ongoing since its admission to the East African Community (EAC) in 2016, serves as a cautionary tale for Somalia. Despite the EAC’s efforts to mediate and foster peace in the region, the outcomes have been mixed, resulting in an unsustainable peace. This lack of success highlights the challenges faced by member states in resolving conflicts and maintaining stability within the community. Somalia must carefully evaluate whether its participation in the EAC will genuinely contribute to its stability, economic growth, and development, or if it risks exacerbating existing internal conflicts. Joining the community without a solid foundation of political stability, institutions, and peace could potentially divert resources and attention away from domestic issues, hindering Somalia’s progress towards resolving its own challenges. South Sudan’s admission to the EAC in 2016 was seen as a major step towards regional integration and stability. However, the country has been mired in conflict ever since, with two civil wars breaking out in 2013 and 2016. The EAC has been involved in mediation efforts, with mixed results.
Somalia must evaluate the readiness of its institutions, infrastructure, and economy to effectively engage with the East African Community. Comprehensive preparations are crucial to ensure that joining the community is a well thought-out and strategic decision, rather than a hasty move that could further destabilise the nation. Somalia needs to assess whether its infrastructure, institutions, and economy are sufficiently developed to cope with the challenges and demands of integration. Premature membership could strain Somalia’s resources, impede its growth, and leave it at a disadvantage compared to more established member states.
Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions.
Somalia must ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the EAC. A phased approach that prioritises capacity building, institution-strengthening, and inclusive governance would enable Somalia to lay a solid foundation for successful integration and reap the maximum benefits from EAC membership in the long term. Failure to address these concerns would make Somalia vulnerable to exploitation and market monopolies by stronger economies, and could also risk a lack of seamless convergence for Somalia’s membership. While there is political will from EAC leaders to support Somalia’s membership, it is vitally important that they make the right decision for Somalia and the EAC bloc as a whole to ensure a successful integration. I believe that, at this juncture, the disadvantages of Somalia joining the EAC outweigh the benefits.
2023 Marks 110 Years Since the Maasai Case 1913: Does it Still Matter?
It was a landmark case for its time, a first for East Africa and possibly for the continent. A group of Africans challenged a colonial power in a colonial court to appeal a major land grab and demand reparations. They lost on a technicality but the ripple effects of the Maasai Case continue to be felt.
In the name Parsaloi Ole Gilisho there lies an irony. It was spelled Legalishu by the colonial British. Say it out loud. He gave them a legal issue, all right. And a 110-year-old headache.
This extraordinary age-set spokesman (a traditional leader called ol-aiguenani, pl. il-aiguenak) led non-violent resistance to the British, in what was then British East Africa, that culminated in the Maasai Case 1913. Ole Gilisho was then a senior warrior, who was probably in his mid- to late thirties. In bringing the case before the High Court of British East Africa, he was not only challenging the British but also the Maasai elders who had signed away thousands of acres of community land via a 1904 Maasai Agreement or Treaty with the British. This and the 1911 Agreement – which effectively rendered the first void – are often wrongly called the Anglo-Maasai Agreements. In Ole Gilisho’s view, and those of his fellow plaintiffs, these elders had sold out. The suit accused them of having had no authority to make this decision on behalf of the community. This represented a very serious challenge by warriors to traditional authority, including that of the late laibon (prophet) Olonana, who had signed in 1904, and died in 1911.
The British had expected the Maasai to violently rebel in response to these issues and to colonial rule in general. But contrary to modern-day myths that the Maasai fought their colonisers, here they resisted peacefully via legal means. They hired British lawyers and took the British to their own cleaners. Spoiler: they lost, went to appeal, and lost again. But archival research reveals that the British government was so convinced it would eventually lose, if the Maasai appealed to the Privy Council in London (they didn’t), that officials began discussing how much compensation to pay.
The facts are these. The lawsuit was launched in 1912. There were four plaintiffs, Ole Gilisho and three fellow Purko (one of the 16 Maasai territorial sections) Maasai. In Civil Case No. 91 they claimed that the 1911 Maasai Agreement was not binding on them and other Laikipia Maasai, that the 1904 Agreement remained in force, and they contested the legality of the second move. They demanded the return of Laikipia, and £5,000 in damages for loss of livestock during the second move (explained below). Ole Gilisho was illiterate and had never been to school. But he and his fellow plaintiffs were assisted by sympathetic Europeans who were angered by the injustice they saw being perpetrated against a “tribe” that British administrators conceded had never given them any trouble. These sympathisers included people who worked for the colonial government, notably medical Dr Norman Leys and some district officials, lawyers, a few missionaries, the odd settler, and a wider group of left-wing MPs and anti-colonial agitators in Britain.
What had led up to this? After the 1904 Agreement, certain groups or sections of Maasai had been forcibly moved from their grazing grounds in the central Rift Valley around Naivasha into two reserves – one in Laikipia, the other in the south on the border with German East Africa. The British had pledged that this arrangement was permanent, that it would last “so long as the Maasai as a race shall exist”. But just seven years later, the British went back on their word and moved the “northern” Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve. In all, it is estimated that the Maasai lost at least 50 per cent of their land, but that figure could be nearer 70 per cent. The ostensible reason for moving them was to “free up” land for white settlement – largely for British settlers but also for South Africans fleeing the Boer War (also called the South African War).
But just seven years later, the British went back on their word and moved the ‘northern’ Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve.
By the time the case came to court, Ole Gilisho had become a defendant, even though he was in favour of the plaint. So were at least eight other defendants. He had signed the 1904 Agreement, and now stood accused with 17 other Maasai of having no authority to enter into such a contract. The first defendant was the Attorney General. Ole Gilisho’s son-in-law Murket Ole Nchoko, misspelled Ol le Njogo by the British, and described as a leading moran (il-murran or warrior) of the Purko section, was now the lead plaintiff. The plaint was called Ol le Njogo and others v. The Attorney General and others.
Challenges facing the plaintiffs
Most Maasai were illiterate in those days, and this obviously placed them at a major disadvantage. They could not write down their version of events. They were forced to rely, in their dealings with officials and their own lawyers, upon translators and semiliterate mediators whose reliability was questionable. But it is evident, from the archival record which includes verbatim accounts of meetings between Maasai leaders and British officials in the run-up to the moves and case, that the level of verbal discourse was highly sophisticated. This comes as no surprise; verbal debate is a cornerstone of Maasai society and customary justice. Unfortunately, that alone could not help them here. They knew they needed lawyers, and asked their friends for help. Leys, who was later sacked from the colonial service for his activism, admitted in a private letter: “I procured the best one in the country for them.” This was more than he ever admitted openly.
Local administrators used intimidation and all kinds of devious means to try and stop the case. (I didn’t come across any evidence that the Colonial Office in London sanctioned this; in fact, it ordered the Governor not to obstruct the main lawyer or his clients.) They allegedly threatened Ole Gilisho with flogging and deportation. They threatened and cross-questioned suspected European sympathisers, including Leys and the lawyers. They banned Maasai from selling cattle to raise the legal fees, and placed the Southern Reserve in continuous quarantine. It was hard for the plaintiffs, confined to a reserve, to meet their lawyers at all. At one point, lawyers were refused passes to enter the reserve, and their clients were prevented from leaving it.
We hear Ole Gilisho’s voice in the archival record. Forced to give a statement explaining his actions to officials at Enderit River on 21 June 1912, when asked if he had called Europeans to his boma, he replied: “Is it possible for a black man to call a white man?” He denied having called the Europeans (probably lawyers or go-betweens), saying they had come to him. Leys later explained to a friend that Ole Gilisho had probably been “terrified out of his wits”, and hadn’t meant what he said.
What happened in court
The case was thrown out when it first came before the High Court in Mombasa in May 1913. The Maasai appealed, and that is when the legal arguments were fully aired by both sides – lawyers for the Crown and the Maasai. The appeal was dismissed in December on the grounds that the plaintiffs’ claims were not cognisable in municipal courts. The two agreements were ruled not to be agreements but treaties, which were Acts of State. They could not, therefore, be challenged in a local court. It was impossible for the plaintiffs to seek to enforce the provisions of a treaty, said the judges – “The paramount chief himself could not bring such an action, still less can his people”. Claims for damages were also dismissed.
The Court of Appeal’s judgement centred on the status of a protectorate, in which the King was said to exercise powers granted to him under the Foreign Jurisdiction Act of 1890. Irrational as it sounds, the Crown claimed that British East Africa was not British territory, and the Maasai were not British subjects with any rights of access to British law, but “protected foreigners, who, in return for that protection, owe obedience” to the Crown. As Yash Pal Ghai and Patrick McAuslan later put it, when discussing the case in a 1970 book: “A British protected person is protected against everyone except the British.” On the plus side, the judges ruled that the Maasai still retained some “vestige” of sovereignty. (The Maasai’s lawyer argued that they did not.) This triggered later moves by Maasai politicians, in the 1960s, to float the idea of secession from Kenya and the possible creation of a sovereign Maasai state. John Keen had threatened this in 1962 at the second Lancaster House Conference in London, attended by a Maasai delegation.
Alexander Morrison, lawyer for the Maasai, argued that British rule and courts were established in the protectorate, which had not been the case 30 years earlier. The Maasai were not foreigners but equal to other British subjects in every way. The agreements were civil contracts, enforceable in the courts, and not unenforceable treaties. If one took the Crown’s claim about Acts of State to its logical conclusion, he argued, a squatter refusing to leave land reserved for the Maasai could only be removed by an Act of State. None of his arguments washed with the judges. (See my 2006 book Moving the Maasai for a fuller account.)
Morrison advised his clients to appeal. It seems they couldn’t raise the funds. However, oral testimony from elders reveals a different story: Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea. This is impossible to verify, but it rings true.
In an interview carried out on my behalf in 2008 by Michael Tiampati, my old friend John Keen had this to say about the outcome of the case: “If the hyena was the magistrate and the accused was a goat, you should probably know that the goat would not get any form of justice. So this is exactly how it was that the Maasai could not get any fair justice from British courts.”
Contemporary African resistance
Unbeknown to the Maasai, there was growing anti-colonial resistance in the same period in other parts of Africa. All these acts of resistance have inspired African activists in their continuing struggles. To mention a few: the Chilembwe rebellion in Nyasaland, now Malawi (1915); the Herero revolt in German South West Africa, now Namibia (1904–1908); resistance in present-day Kenya by Mekatilili wa Menza (largely 1913-14); the First Chimurenga or First War of Independence in what is now Zimbabwe (1896–1897); and the Maji Maji rebellion in German East Africa, now Tanzania (1905–1907). But none of these rebellions involved lawsuits. The closest precedent may have been R vs Earl of Crewe, Ex-parte Sekgoma in 1910. Chief Sekgoma, who had been jailed by the British in the Bechuanaland Protectorate (now Botswana) after many attempts to remove him as chief, instructed his lawyer to bring a writ of habeus corpus against the Secretary of State for the Colonies, Lord Crewe. He demanded to be tried in an English court, refusing an offer of release on condition that he agrees to live in a restricted area of the Transvaal. The suit was dismissed, the court ruling that the King had unfettered jurisdiction in a protectorate, and his right to detain Sekgoma was upheld. Sekgoma apparently said: “I would rather be killed than go to the Transvaal. I will not go because I have committed no crime – I wish to have my case tried before the courts in England or else be killed.” Freed in 1912, he died two years later.
The case, and other key events in early twentieth century Maasai history, have given rise to several myths. They include the idea that the stolen land should “revert” to the Maasai after 100 years, but that was not stated in the 1904 Agreement, which was not limited in time, was not a land lease, and has not “expired” as many people claim. Neither agreement has. Keen knew this, but nonetheless called for the land to “revert”. Other myths include the idea that Olonana’s thumbprint was placed on the 1911 Agreement posthumously, and it must therefore be invalid. But neither his thumbprint nor name are on the document, which was “signed” by his son Seggi. Anyhow, Olonana was a key ally of the British, who had no reason to kill him (which is another myth).
The original of the 1904 Agreement has never been found, which has led some Maasai to believe that it never existed and therefore all the land must be restored and compensation paid for its use to date. There may be sound legal arguments for restorative justice, but this is not one of them. These myths are ahistorical and unhelpful, but may be understood as attempts to rationalise and make sense of what happened. Some activists may wish that the Maasai had resisted violently, rather than taken the legal route. Hence the insistence by some that there was a seamless history of armed resistance from the start of colonial rule. Not true. There are much better arguments to be made, by professional lawyers with an understanding of international treaty rights and aboriginal title, which could possibly produce results.
Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea.
Where does all this leave the Maasai today? Over the years, there has been much talk of revisiting the case and bringing a claim against Britain (or Kenya) for the return of land or reparations for its loss. None of this has resulted in concrete action. I attended a planning workshop in Nairobi in 2006 when plans were laid for a lawsuit. VIPs present included the late Ole Ntimama, scholar Ben Kantai and John Keen. Keen declared, with his customary flourish, that he would stump up a million shillings to get the ball rolling. I don’t know how much money was raised in total, but it disappeared into thin air. As did the lawyers.
Leading lawyers have advised that too much time has passed, and (unlike the successful Mau Mau veterans’ suit) there are no living witnesses who could give evidence in court. It is unclear whether the agreements still have any legal validity. The British government might argue, as it previously has, including in response to my questions, that it handed over all responsibility for its pre-1963 actions to the Kenyan government at independence. This is a ludicrous argument, which is also morally wrong. Former colonial powers such as Germany have accepted responsibility for historical injustices in their former colonies, notably Namibia. Has the time come for Ole Gilisho’s descendants to call a white man to court?
Who Is Hustling Who?
In Kenya, political elites across the spectrum are trying to sell off the country for themselves—capitulation is inevitable.
My drive to Limuru happened on the first Wednesday (July 19) of the protests. Everything was eerily quiet, Nairobi, renowned for its traffic jams, was quiet. Matatus and buses were parked in their hubs. Shops and stalls were closed. Even the hawkers that dot the roads and highways stayed home. Save for the heavy police presence everywhere, it felt like the country had come to a standstill.
We got to Kangemi shortly after the police had shot and wounded two protestors—the road was strewn with stones and armed riot police huddled by the side of the road waiting for the next wave of attacks that never came. In the end, six people would be shot to death throughout the country, and countless were injured and arrested. Coming from the US, where police arrest protestors and shoot black people, there were no surprises here. The US can hardly be the standard of good policing or democratic practices, but the lives lost simply for asking the government to center the people in its economic planning seemed especially cruel.
But it was the emptiness of the roads that made the whole drive eerie. Perhaps I was refracting what was happening in Kenya through what followed the 1982 coup in which 240 people were killed; or the ethnic clashes of the 1990s that culminated in the 2007 post-election violence. Yet, there was a general agreement among people that there was something different about the Kenya of today—that something was already broken and the nightmares to come were slowly but surely revealing themselves—like a bus carrying passengers and the driver realizing the brakes were out just as it was about to descend a steep hill.
Voting with the middle finger
But all this was predictable. President Ruto has been a known quantity since the 1990s when he led the violent Moi youth wingers. He and his running mate and later president, Uhuru Kenyatta, were brought in front of the ICC to face charges of crimes against humanity following the post-election violence in 2007. Some key witnesses disappeared and others were intimidated into silence. Who in their right mind gives evidence against those in control of the state? The ICC was already discredited as being Western-crimes-against-humanity friendly (the US has never been a signatory rightly afraid its former presidents, such as George Bush, would be hauled before the court). The ICC eventually withdrew the case in March 2015.
I kept asking everyone I met, why was Ruto voted in spite of his history? The answers varied: He rigged the elections; he did not rig and if he did, he only managed to be better at it than Raila Odinga; he appealed to the youth with the idea of building a hustler nation (what a telling term); the Kikuyus have vowed never to have a Luo president and therefore opted for Ruto who is Kalenjin as opposed to Odinga who is Luo.
I sat with older Kikuyu men in the little Nyama Choma spot in Limuru Market and they talked about a generational divide between the Kikuyu and youth (Ruto) and the elderly Kikuyus (Odinga). But the one I heard over and over again was that Kenyans are tired of the Kenyatta and Odinga political dynasties. As one Trump supporter was to say, they voted for him with the middle finger. And so, the Kenyans who voted for Ruto were giving a middle finger to the Kenyatta, Moi and Odinga political dynasties. But no one had really expected buyer’s remorse to kick in one year into the Ruto presidency.
I also asked about Odinga’s protests: what was the end game? One theory is that he was looking at power-sharing, having done it once before, following the 2007 elections. In our shorthand political language, he was looking for another handshake. Some said the people have a right to protest their government, and he is simply asking the government to repeal the tax hikes and reinstate the fuel subsidies. Others believed that he wants to be a genuine and useful voice of opposition for the good of the country and its poor.
My own theory is that he is attempting a people-powered, centered, democratic, and largely peaceful takeover—where people take to the streets to overthrow an unpopular government. We saw this in Latin America in the 2000s. In response to Odinga’s absence during the three days of protests (he was sick), some leaders in his Azimio party have started using this language. The only problem with this strategy is that the sitting government has to be wildly unpopular. Ruto still has a lot of support, meaning that he does not have to compromise or give up power. It was to my mind turning into a stalemate and I was worried that the state would respond with more state-sponsored violence.
But real economics broke the stalemate. In a country where people are barely surviving and the majority are poor without savings to rely on, or relatives to reach out to for help, the hawkers, small stall and shop owners simply went back to work. In other words, those that would have been hurt the most by three days of protests (a day at home literally means a day without food for the family) simply went back to work, and the matatus and buses hummed back to life, slowly on Thursday and full throttle by Friday.
Saturday around Westlands might as well have been as busy as a Monday as people overcompensated for lost time to either sell or shop. If the protests were going to succeed the opposition (composed of some of the wealthiest families in Kenya, including Odinga’s) really should have thought about how best to protect those who would be the most affected. They should find legal and innovative ways to put their money where their political mouths are.
Cuba as Kenya’s north star
Odinga had to change tactics and called for a day of protest against police violence instead of three-day weekly protests in perpetuity. He is now in danger of turning into a caricature of his old revolutionary self and becoming an Al Sharpton, who instead of protesting the American government for the police killings of black people, protests the police themselves leaving the government feeling sanctimonious. Obama or Biden could weigh in, in righteous indignation without offering any real change (remember Obama’s emotional pleas over gun shootings and police shootings as if he was not the one occupying the most powerful office in the US)?
The one question that keeps eating at me is this: why is the most apparent outcome at the time a surprise later? Ruto was always going to sell off Kenya with a percentage for himself and his friends. Odinga was always going to capitulate. The end result is that the Kenyan bus will continue to careen on without brakes. So, what is to be done?
I was in Cuba earlier this year. I got a sense of the same desperation I felt in Kenya but the difference is Cubans have free access to healthcare, education, housing, and food security. They have free access to all the things that make basic survival possible. Before calling for the tax hikes and cutting fuel subsidies might it not have been more prudent to have a safety net for Kenyans? Would that not have been the most logical thing? But of course not, Ruto is acting at the behest of the IMF and big money. Ruto has learned the art of pan-African political rhetoric. Abroad he can call for a different non-US-centered economic system and castigate the French president over paternalism but at home, his politics are hustler politics.
Life in Cuba is difficult, as a result of relentless sanctions from the US, but it is far from impossible. It remains the north star for those who understand discussions around fundamental change as the only starting point. We can have arguments about the nature of those fundamental changes, but we can all agree we should not be a country where one family, say the Kenyatta family, owns more than half a million acres of land. Or where, as Oxfam reported, four individuals hold more wealth than that held by 22 million Kenyans. The kind of politics that begin with a necessity for fundamental change will obviously not come from Ruto.
But one hopes it can still come from the Odinga camp. Or even better, from a genuinely progressive people-powered movement that has inbuilt questions of fundamental change in its political, economic, and cultural platform.
In spite of the empty roads, Limuru Market was thriving and Wakari Bar kept its reputation as one of the best places for Nyama Choma and for lively political conversations. People are paying attention, after all, it is their lives and livelihoods on the line. Politicians, especially those in the opposition and the political left should listen as well.
Op-Eds7 days ago
Tigray Atrocities: Extending ICHREE Mandate Crucial for Accountability
Culture2 weeks ago
From Harry Kĩmani to Kwame Rĩgĩi, the Rise and Rise of Kikuyu Soul Music
Politics2 weeks ago
Is Somalia’s Quest for Membership of the EAC Premature?
Op-Eds7 days ago
Climate Change and the Injustice of Environmental Globalism
Reflections7 days ago
Ama Ata Aidoo: A Tribute
Reflections7 days ago
Mĩcere Gĩthae Mũgo: A Mother and a Gardener
Data Stories1 week ago
Sex Education: Are We Doing Enough?
Op-Eds22 hours ago
Are These the Dying Days of La Françafrique?