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THE TIES THAT MAY NEVER BIND: Chasing the mirage of SPLM reunification

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THE TIES THAT MAY NEVER BIND: Chasing the mirage of SPLM reunification
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The Sudan People’s Liberation Movement/Army (SPLM/A), a southern Sudan-based national liberation movement, sprouted in 1983 in the Sudanese and regional political theatre at the height of the Cold War that witnessed ideological and superpower rivalry in the Horn of Africa and the Middle East. Many South Sudanese and people on the political left received its declared objective of constructing a united socialist “new Sudan” with a pinch of salt. A handful of highly educated individuals formed its officer corps but the bulk of the army, the SPLA, was drawn not from an industrial working class but from sedentary and agro-pastoral communities – unlikely material for building socialism.

However, the united socialist new Sudan disappeared imperceptibly from the SPLM/A written and oral literature with the collapse of the Soviet Union and the world socialist system before the turn of the century. This led to an ideological shift in the SPLM/A system. This shift coincided with the demand by the people of South Sudan to exercise their inalienable right to self-determination.

The war of national liberation ended in a political compromise: the comprehensive peace agreement (CPA), which the SPLM and National Congress Party (NCP), representing the government of Sudan, spent eleven years negotiating in Nairobi, Machakos and finally Naivasha under the auspices of two successive Kenyan presidents. Dr. John Garang de Mabior and Sudan’s Vice President Ustaz Ali Osman Mohammed Tah signed the peace agreement in Nairobi on 9 January 2005 in a colourful ceremony presided over by President Mwai Kibaki of Kenya and witnessed by President Yoweri Museveni of Uganda, Meles Zenawi of Ethiopia, President Omar al Bashir of Sudan and Colin Powell, the US Secretary of State, among other African and world leaders.

In the second edition of “The politics of liberation in South Sudan: An insider’s view”, I posed the question: “What is the SPLM and where is it?” I was trying to provoke a debate in the SPLM/A that had since 1983 evolved like Siamese twins who are conjoined at the head and who cannot be separated surgically because it would lead to their death. There was no clear separation of functions with the SPLA being the military organ of the liberation movement and SPLM its political organ. The two subsumed and eclipsed each other’s respective functions, blurring and indeed distorting internal political and democratic development to prevent the emergence of a genuine and authentic national liberation movement.

The lack of an ideology and the absence of organisation and institutions in a national liberation movement can negatively influence its development and the relationship between its members and the masses of the people, as well as the nature of the resultant state. The state in South Sudan, in its current disposition regardless of the international recognition it obtains, is a façade. The lack of political organisation and the absence of democratic institutions and instruments of public power resulted in the personalisation of the SPLM/A’s power and public authority. These were the principal drivers of the internal contradictions, splits and factionalism within the SPLM/A.

The SPLM/A was such an informality that only Garang could manage it and keep it moving. His sudden demise in 2005 released the negative forces hitherto kept under tight lid by military authoritarianism. The power transfer to Commander Salva Kiir Mayardit went without a glitch. Nevertheless, Kiir’s leadership style, unlike that of Garang, enabled the emergence of “power-centres” around his presidency of the Government of South Sudan. The interim period, before the carrying out of the referendum on self-determination, witnessed internal power struggles among the SPLM’s first and second line leaders characterised by intrigues, short-changing and an upsurge in ethnic nationalism, as well as the emergence of ethnic associations and caucuses in the executive and legislative branches of government, widespread corruption in government and society, insecurity in the form of ubiquitous ethnic conflicts and localised civil wars.

The state in South Sudan, in its current disposition regardless of the international recognition it obtains, is a façade. The lack of political organisation and the absence of democratic institutions and instruments of public power resulted in the personalisation of the SPLM/A’s power and public authority. These were the principal drivers of the internal contradictions, splits and factionalism within the SPLM/A.

The independence of South Sudan found the SPLM (South Sudan’s governing party) in a state of acute dysfunctionality due to internal power wrangles. The leaders miserably failed to separate and transform the SPLM into a mass political party guided by democratic principles, a constitution and a political programme. Its internal situation was toxic and ready to implode. The pressure lid that tightly compressed its internal contradictions had suddenly ruptured with the death of Garang. It was only the general concern about secession from the Sudan among the majority of the Southern Sudanese that sustained the unstable calm, enabling the orderly conduct of the referendum on self-determination.

The structural drivers of SPLM/A internal splits

The internal and external socio-political conditions under which the SPLM/A formed in July 1983 laid the foundations of its perpetual internal instability. Without going into details, the failure to unify the remnants of the mutinies of elements of Sudan Armed Forces (SAF) in Bor (16 May) and Ayod (6 June) with the Anya-nya 2, which was formed by former officers and soldiers of Anya-nya, who had been absorbed into the SAF following the 1972 Addis Ababa Agreement and who rebelled in Akobo in February 1976, through the agency of the Derg defined the militarist character of the nascent movement. When the Anya-nya 2 flipped back to the liberation movement in 1988, no structural changes had occurred within the SPLM/A, particularly at the leadership level. Like a dinosaur, the SPLM had a tiny head resting on a huge body that it carried with immense difficulty. The suffocating military environment resulted in the 1991 Nasir Declaration that split the movement, leading to internecine fighting along ethnic contours. By the end of 2003, when Dr. Riek Machar and Dr. Lam Akol, who had authored the declaration, returned to the fold, the SPLM/A remained structurally unchanged.

The institutions created by the SPLM First National Convention in 1994, like the National Liberation Council (NLC) that was established to perform legislative functions and the National Executive Committee (NEC) that was to exercise executive functions of the SPLM/A, had disappeared into oblivion. The SPLM/A power and public authority had begun to centralise, concentrate and personify in Garang, its Chairman and Commander-in-Chief. The return to the SPLM/A of Machar and Akol on the eve of the peace agreement with Khartoum, coupled with Machar’s ambition to become Number One in the SPLM/A hierarchy, heightened rumour-mongering in the SPLM/A targeted at ousting of Salva Kiir as the deputy Chairman and SPLA’s Chief of General Staff. Kiir, who had stayed loyal to Garang throughout the turbulent years, would not take the rumours lying down. This triggered what came to be known in the SPLM/A as the Yei Crisis, which in November 2004 pitted Kiir against his boss.

Although the Yei crisis was an internal, structurally-driven SPLM/A matter, its ethnic overtones and provincial contours were prominent, feeding into a general dissatisfaction with Garang in Bahr el Ghazal (where he had in the course of time differed, split with and executed several leaders) spearheaded by prominent individuals linked to the National Islamic Front regime in Khartoum. A conference called in Rumbek to resolve this crisis, which addressed only its symptoms but not its structural underpinnings. This conference was typical of the SPLM/A meetings that always ended up fudging the substantive issues under the canopy of “opening a new page”. As a result, the attempts to resolve the crisis were frustrated, creating conditions for the resurgence or eruption of another crisis along the same lines.

Kiir, who had stayed loyal to Garang throughout the turbulent years, would not take the rumours lying down. This triggered what came to be known in the SPLM/A as the Yei Crisis, which in November 2004 pitted Kiir against his boss.

The splits in the SPLM/A have always been more political and personal than ideological, hence they transcended and permeated into the ethnic and provincial domains, acquiring different dimensions and dynamics. The splits in 1983/4 and 1991 quickly acquired ethnic dimensions because of the lack of an ideologically-driven agenda, although the commanders in Nasir had raised the right of the people of southern Sudan to exercise self-determination. However, the question of power and who wielded it was the common denominator in all these splits. It was the perception of power as a personal birthright rather than an institutional assignment that set the patterns for achieving it. In a militarist environment like the SPLM/A, the pattern for capturing and holding onto power was inevitably violent.

The SPLM split and the civil war

In the absence of democratic institutions and instruments of power and public authority, the SPLM/A became a huge informal patrimonial network of political patronage. This system became more pronounced after Garang’s death, the rise of Kiir within the SPLM/A and the independence of South Sudan. The lack of a political programme to manage the social and economic development of the new state of South Sudan rendered the interim period (2005-2011) what the SPLM leaders cynically called “payback time”: they dolled themselves up in self-aggrandisement, thanks to the easy availability of oil revenues. The nexus between personal power and wealth accumulated in a primitive fashion without consideration for law and order resulted in a life and death situation.

The patrimonial political patronage system that the SPLM leaders controlled accentuated and amplified the SPLM’s internal contradictions. The personalised power struggle became a fireball in December 2013, barely three years into the independence and birth of the Republic of South Sudan. The resultant civil war was initially viewed by many people as a war between Kiir and Machar (and by extension a war between the Dinka and the Nuer) but it was in fact a reflection of the SPLM’s failure to address its structurally-driven internal political contradictions.

The SPLM reunification

In all these SPLM/A disruptions, eruptions or implosions, these contradictions have always been buried under the talk about “return to the fold” or “reconciliation and peace”, which have left these contradictions intact and ready to rekindle. In December 2013, the eruption of violence, and its scale and ferocity, caught the IGAD region and the whole world unawares. South Sudan had not completely emerged from the effects of the 21-year war of liberation and from the border war with the Sudan (2012) and so nobody could understand why a people who had endured suffering for that long would go to war again. Thus, the interventions to help resolve the conflict were frenetic but superficial. Nobody cared to solicit a scientific understanding of the conflict’s causes.

The extraordinary summit of IGAD Heads of State and Government, held in Nairobi on 27 December 2013, resolved to bring the warring parties, namely the Government of the Republic of South Sudan and the rebel movement christened the Sudan People’s Liberation Movement/Army in Opposition [SPLM/A (IO)], to the negotiating table to thrash out their difference and reach a peace agreement. The United Nations Mission in South Sudan (UNMISS) became the contact between Machar and the IGAD Special Envoys to South Sudan. The negotiations began in Addis Ababa.

In December 2013, the eruption of violence, and its scale and ferocity, caught the IGAD region and the whole world unawares. South Sudan had not completely emerged from the effects of the 21-year war of liberation and from the border war with the Sudan (2012) and so nobody could understand why a people who had endured suffering for that long would go to war again. Thus, the interventions to help resolve the conflict were frenetic but superficial. Nobody cared to solicit a scientific understanding of the conflict’s causes.

The ruling parties in Ethiopia (EPRDF) and South Africa (ANC) came up with a joint initiative, which aimed at resolving the SPLM’s internal contradictions that triggered and drove the civil war. It is worth mentioning that the ANC and the Norwegian Labour Party had earlier, before the eruption of the violence, tried to help the SPLM leadership to overcome its differences, which had been triggered by rumours that Salva Kiir had decided not to contest for the presidency come 2015. President Kiir reacted to the rumours in a manner similar to somebody who sets his house on fire to treat bug-infested pieces of furniture.

As if not sure that the SPLM’s 3rd National Convention, scheduled for May 2013, would return him as the Party Chairman and hence the SPLM’s flag bearer for the presidential elections in April 2015, Kiir blocked the democratic process of SPLM state congresses and the National Convention, suspended the SPLM Secretary General and paralysed all SPLM political functions. These actions halted the political process towards the presidential and general elections for national, state and county governments. He also brushed away any reconciliatory talks with Machar, Pagan Amun Okiech or Mama Rebecca Nyandeng Garang, who had shown interest in contesting the position of the SPLM Chairman.

The ANC-EPRDF initiative was the right approach. These were the SPLM first row leaders and it was absolutely imperative to reconcile and unify their ranks to alleviate the suffering of the people. Except the eruption of violence and the ethnicisation of conflict had rendered impossible the task of reconciliation. The grassroots opinion solicited in 2012, before the war, indicated widespread disenchantment of the masses with the SPLM as a ruling party. (Later, the people would quip that when the SPLM leaders split they killed the people and when they united they stole the people’s money.)

However, Machar turned down the initiative in favour of a full-blown peace negotiation under IGAD mediation, suggesting that the conflict and war was no longer an affair of the SPLM. In September 2014, on the sidelines of the UN General Assembly, President Kiir met the Tanzanian President, Jakaya Kikwete, and requested his indulgence and assistance to reunite the feuding SPLM factions, namely, the SPLM in government (SPLM-IG), the SPLM in opposition (SPLM-IO) and the SPLM former political detainees (FPDs). President Kikwete obliged and the process kicked off in November 2014 under the auspices of Chama Cha Mapenduzi (CCM). On 21 January 2015, the three factional heads – Kiir [SPLM (IG)], Machar (SPLM/A (IO)] and Okiech [SPLM (FPDs] – signed the SPLM Reunification Agreement in a ceremony in Arusha witnessed by President Kikwete, President Yoweri Museveni and President Uhuru Kenyatta, as well as then Deputy President of South Africa, Cyril Ramaphosa.

The impact of the SPLM reunification agreement on the IGAD peace process in South Sudan was not immediately obvious given that the civil war not only raged throughout South Sudan, but also considering that the people had become weary of the SPLM as a ruling party. The SPLM reunification agreement was supposed to moderate and ease the tension between the SPLM leaders in order to accelerate and facilitate the sealing of a peace agreement and return the country to normalcy. The motivations of the SPLM leaders crossed rather than aligned with each other. The SPLM/A (IO) fell off the reunification process. The guarantors of the reunification agreement, CCM and ANC, proceeded with the two remaining factions to implement the Arusha agreement on SPLM reunification. They eventually consummated the process with the reinstatement of the comrades to their respective positions: Okiech as the SPLM Secretary General, and Deng Alor, John Luk and Kosti Manibe to the SPLM Political Bureau.

However, once disrupted, relations based on social considerations rather than principles of politics and ideology rarely mend. It did not take long before the four former political detainees stormed out of Juba and did not return till after the signing of the Agreement on the Resolution of the Conflict in South Sudan (ARCISS) in August 2015. The SPLM reunification process had flopped.

The Entebbe and Cairo meetings

I headed the SPLM/A-IO delegation to the reunification talks in Arusha. In a report to the SPLM/A (IO) NLC meeting in Pagak, December 2014, I said that the SPLM reunification was like chasing a mirage. I still believe it will never take place, given the political dynamics since the fighting in J1, which rekindled the war in 2016.

The IGAD-sponsored High-level Revitalisation Forum (HLRF) process has outpaced the SPLM reunification in a manner that confirms the statement I made above that the SPLM faction will never unite; the ties will never bind. The former political detainees who were enthusiastic about reunification seem to have had second thoughts when they pursued the project of a UN Trusteeship of South Sudan, which they later changed to exclude Kiir and Machar from participating in a Transitional Government of National Unity (TGoNU) made up of technocrats. The failure of the HLRF to achieve the desired peace agreement prompted the IGAD Council of Ministers to propose a face-to-face meeting between Kiir and his principal nemesis, Machar, under the auspices of the Ethiopian Prime Minister, Dr. Abiye Ahmed, This face-to-face meeting was modelled on the “handshake” between President Uhuru Kenyatta and opposition leader Raila Odinga that had eased the political standoff in Kenya following the disputed 2017 elections.

The Kiir-Machar face-to-face meeting took place on the sidelines of the 32nd Extra-Ordinary Assembly of the IGAD Heads of State and Government. President Kiir categorically rejected the idea of working with Machar, who was flown in from Pretoria in South Africa where he had been kept under house arrest since November 2016. Reflecting the level of distrust between the two leaders, the failure of the meeting prompted IGAD to mandate the Sudanese Head of State, President Omer Hassan Ahmed al Bashir, to facilitate a second round.

The failure of the HLRF to achieve the desired peace agreement prompted the IGAD Council of Ministers to propose a face-to-face meeting between Kiir and his principal nemesis, Machar, under the auspices of the Ethiopian Prime Minister, Dr. Abiye Ahmed. This face-to-face meeting was modelled on the “handshake” between President Uhuru Kenyatta and opposition leader Raila Odinga that had eased the political standoff in Kenya following the disputed 2017 elections.

This mandate was ostensibly in the belief that Bashir might prevail on the two antagonists given their relations in the not too distant past. The aim of this round was to herald a discussion between the South Sudanese leaders to resolve outstanding issues on governance and security arrangements, taking into consideration the measures proposed in the revised IGAD Council of Ministers’ Bridging Proposal on the Revitalisation of ARCISS, and to rehabilitate South Sudan’s economy through bilateral cooperation between the Republic of South Sudan and the Republic of the Sudan. President Museveni was conspicuously absent in the Addis Ababa summit. Many people believed it was a loud register of his disapproval of the Kiir-Machar face-to-face meeting. Museveni has never disguised his contempt for Machar and his support for Kiir. On the eve of Kiir’s travel to Addis Ababa, Museveni sent to Juba his Deputy Prime Minister, Moses Ali with a letter to him; perhaps that was his desperate last attempt to torpedo the talks.

In a surprising twist in this intricate diplomatic and political maze, the transfer of the process to Khartoum triggered regional kinetic energy. Museveni flew to Khartoum on 25 June to witness the Kiir-Machar face-to-face meeting now under the auspices of President Bashir. This unexpected convergence in Khartoum of Museveni and Kiir was not so much about the face-to-face meeting but about the rehabilitation of South Sudan’s oil fields and the Sudanese involvement in their protection as echoed in the Khartoum Declaration of Agreement (KDA) between Kiir, Machar and Gabriel Changson (SSOA), Deng Alor (FPDs) and Peter Manyen (Other Political Parties) signed in Khartoum on 26 June. Only one thing – the prospect for renewed flow of South Sudan’s oil to international markets – motivated both Bashir and Museveni into the scheme to rehabilitate South Sudan’s economy. This reads into the Bashir-Museveni’s rapprochement and the new-found friendship between the two erstwhile hostile leaders.

Thereafter, the South Sudan government and the opposition groups signed in Khartoum on Friday 6 July, 2018, the Agreement on Outstanding Issues of Security Arrangements. The process moved to Kampala on Saturday, 7 July this year, where Salva Kiir, Riek Machar and the other political opposition signed the agreement on governance. On 10 July, the two agreements were presented to President Kenyatta, marking the consummation of the peace agreement and the end of the South Sudan conflict. Indeed the HLRF had outpaced and overtaken the SPLM reunification.

The intervention of President Omer al Bashir, on account of Sudan’s national security and economic interests, rescued from collapse and embarrassment the IGAD peace process. The clever involvement of President Museveni was necessary to allay Kiir’s fears and build confidence in Sudan’s mediation, although he still has an axe to grind with South Sudan over the Abyei border demarcation and many other issues that have not been resolved in the post-referendum process. The success of the IGAD process and the failure of the SPLM reunification is a diplomatic slap in the face of CCM and ANC, the two parties that had laboured to bring together the SPLM factions.

However, the agenda for the people of South Sudan is not SPLM reunification but the political process of socio-economic rehabilitation to translate the signed agreements, which are essentially political compromises, into practical plans and programmes. South Sudan’s leaders have to act strategically looking into the future rather than tactically to win elections at the end of the transitional period.

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Peter Adwok Nyaba trained as a geologist and lectured in Juba and Asmara Universities. He is a trade unionist, an activist, a former commander in the SPLA, a Noma Award (1998) winner and a former minister in the Government of the Republic of Sudan and the Government of the Republic of South Sudan. He is currently a member of the SPLM in Opposition.

Politics

Wakasighau: The Forgotten Victims of British Colonial Land Dispossession

The effects of the British colonial policy of subjugation through dispossession and exile continue to reverberate among the Wakasighau.

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Wakasighau: The Forgotten Victims of British Colonial Land Dispossession
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Two years have gone by since I last saw Mzee Joshua Mwakesi Mwalilika. He hasn’t changed a bit. His birth certificate says he was born in 1923. This means that Mzee Mwalilika is just two years shy of a hundred. He says that the birth certificate is wrong, that he was actually born in 1921. Mzee Mwalilika is from Taita, of the Wakasighau, a people who were uprooted from their native Kasighau region and exiled by the British to Malindi where they languished for over twenty years.

It all started in August 1915, at a time when Kenya was under British colonial rule and neighbouring Tanzania, then Tanganyika, was under the Germans. World War I had begun and, being so close to the border with Tanganyika, Kasighau was bound to suffer the effects of the war. When the Germans attacked the British, the British took revenge on the local African populations.

“All the houses were torched in the entire Kasighau on August 11th 1915. From Kigongwe, Makwasinyi, Jora, Kiteghe, Bungule, and Rukanga,” recalls Mzee Mwalilika. It was the handiwork of the British; they were on a punitive expedition against the Wakasighau whom the British suspected of having betrayed them to the Germans. A few days prior, the Germans had  carried out a night raid on the British garrison at Kasighau, committing a massacre. This was eight years before Mzee Mwalilika was born.

One version of the events is that after the attack, the Germans wrote a letter to the British claiming that the locals had voluntarily betrayed them, which prompted the British to retaliate. At Rukanga Village in Kasighau, retired teacher Jonathan Mshiri, now aged 71, says that local accounts of the events tell of two individuals from the area who unknowingly directed some Germans who were on a spying mission to where the British had set up camp.

“Two people were harvesting honey in the bush and the soldiers came and interrogated them and said, ‘Can you show us where the wazungu are?’” says Mwalimu Mshiri. “They used the term wazungu not British, so Kinona and Mwashutu thought that these white people were just friends of fellow white people. They did not know that these were Germans.”  The Germans laid waste to the British garrison at Jora in Kasighau and 38 British soldiers, including their captain, were taken captive by the Germans. This enraged the British so much that they decided to exile the entire Kasighau community.

For the Kasighau people, the British chose Malindi. After torching all the houses in the five villages, they rounded up all the people and gathered them at a place that was central to all the villages. “The British chose these open grounds because it gave them a view of Tanganyika where the Germans had come from,” explains Ezra Mdamu, a descendant of the survivors. “They also hoped that some of the villagers would have a better chance of pointing out exactly where the Germans had headed to. The people were also subjected to torture to extract information from them.”

The Wakasighau were then forced to march to Maungu Township, some 35 kilometres by today’s roads. From Maungu to the border at Holili is 144 kilometres using today’s road network, if indeed the German attackers had come through Holili.

The captives were herded into train wagons and taken to Malindi where the British had prepared the ground by forewarning the Giriama that the Wakasighau were cannibals.

At Maungu, the captives were herded into train wagons and taken to Malindi where the British had prepared the ground by forewarning the Giriama that the Wakasighau were cannibals. “What the new hosts did was put poison in the water holes, and this led to many deaths amongst our people,” Mwalimu Mshiri explains.

Macharia Munene, professor of History and International Affairs at the United States International University, says that using exile as punishment summarizes the colonial policy of subjugation and dispossession of local peoples.

“Most of these people who were deported were individuals, people trying to challenge colonial authority,” he says, “but colonialists also deported groups of people, often to hostile, undesirable places.”

Return to Kasighau

The plight of the Kasighau in their new land did not go unnoticed, and various parties, including church organizations, brought pressure to bear on the colonialists to review their position. But it was not until 1936 that the Kasighau people were allowed to return home, only to find most of their land gone.

“All the land around Kasighau Hill was termed as hunting blocks where the British people could hunt. The block here was called ‘66A’, the Kasighau people were only confined to a 10km² block around the hill called ‘Trust Land’. The rest of the land was called ‘Crown Land,’” says Mwalimu Mshiri.

It was not until 1936 that the Kasighau people were allowed to return home, only to find most of their land gone.

After independence in 1963, Crown Land became State Land and some of the remaining land was handed over to ex-WWII British colonial soldiers. The people of Kasighau were not represented at the time and the remaining land was subdivided into ranches that today surround the 10km² settlement area. It is within some of these ranches that mineral deposits and precious stones are found, and there are frequent tussles between the youth, miners and investors.

According to a report titled The Taita Taveta County Integrated Development Plan 2013-2017, only 35 per cent of all landowners possess title deeds. The report says that land adjudication was ongoing to ensure that all landowners possess title deeds. The 2019 census puts the population of Taita Taveta at 340,671. Kasighau Ward alone is home to 13,000 people. The majority say they do not have title deeds.

No land, more problems

In February 2019, a group of young men from Kasighau descended on a disputed mine inside Kasighau Ranch. Around the mining area are mounds of earth and makeshift tents. People selling foodstuffs have followed in the wake of the miners. Those mining say they are simply going for what they believe belongs to them. They do not have the heavy equipment needed for serious mining operations such as earthmovers or elaborate underground mining shafts. They are artisanal miners who rely on simple tools such as hoes, spades and mattocks.

“When we young people saw that we did not have leaders serious on championing our rights, we decided to have our own revolution,” says Elijah Mademu, a youth leader. “We decided to redeem our lost lands, lands rich in mineral resources. There are about 500 young men and women eking out a living from these minerals.”

According to retired Kasighau Location chief Pascal Kizaka, the occupation of the mine can be attributed to population pressure and young people running out of options. “Every economic activity starts with land. Without land, you are like that person who is given water but cannot drink it,” he says.

Prof. Macharia says land ownership remains a significant cause of conflict across much of Kenya where land issues remain unresolved. “The government, particularly the area MP and area governor, because they have power, they should raise the issue and say, these are our people, so process their [land] titles.”

However, Taita Taveta Lands County Executive Committee member Mwandawiro Mghanga disputes the assertion that the county or the leadership at the local level are fully able to resolve the issue of title deeds, arguing that land and natural resources adjudication have not been fully devolved.

“It is true in this matter there are injustices, but on title deed issues even the entire Taita Taveta County has the same problem. In Kasighau the plan is to let them get the title deeds alongside the rest of the county”, he says.

“Of course there are six ranches, agriculturally-driven ranches (ADR’s) and there’s Kasighau Ranch which is very large. . . . There should not be a drive motivated by the capitalist system to grab ranches. What needs to be done is that everyone who needs a title for land to settle should have access to it.”

“Without land, you are like that person who is given water but cannot drink it.”

Land alone might not be the only thorny issue. Chief Kizaka laments that throughout his time living and working in the area, local Kasighau people have noticeably been lagging behind even in education matters. For instance, a 2013 report on inequalities compared Kasighau Ward to neighbouring Mbololo ward and found that only 8 per cent of Kasighau residents have a secondary education or above. A Kenya National Bureau of Statistics report titled Exploring Kenya’s Inequality: Pulling Apart or Pooling Together? shows Kasighau’s literacy rates to be four times less than Mbololo’s 32 per cent of the population who have gone beyond secondary school education.

“By independence time, we had only three primary schools, in Bungule, Rukanga and Mwakwasinyi. Illiteracy was very high. You can imagine, illiterate parents producing illiterate children,” bemoans Chief Kizaka. “There is no movement. The number of locals in school is very low. Compared to many parts of the country where locals are the majority, here we do not dominate.”

Today, Mwalimu Jonathan Mshiri says the thought of squeezing almost his entire descendants onto 15 acres of land troubles him daily. He knows too well that already the 13,000 Kasighau residents, whose numbers are increasing, are also facing the difficulty of having to make do with 10 square kilometres of land.

“We are the Kasighau people, we belong to this mountain and the surroundings, why are we not being given the priority?” he asks.

It is 6 p.m. and as the sun sets in the west, in the direction of Tanzania, it casts a golden glow on the Kasighau massif, but the dark despair of the Wakasighau remains.

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Politics

Big Pharma and the Problem of Vaccine Apartheid

In this report on the TWN-Africa and ROAPE webinar on vaccine imperialism held last month, Cassandra Azumah writes that the unfolding vaccine apartheid which has left Africa with the lowest vaccination rates in the world is another depressing example of the profit and greed of Big Pharma facilitated by imperialist power.

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Big Pharma and the Problem of Vaccine Apartheid
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The webinar on ‘Vaccine Imperialism: Scientific Knowledge, Capacity and Production in Africa’ which took place on 5 August 5, 2021, was organized by the Review of African Political Economy (ROAPE) in partnership with the Third World Network-Africa (TWN-Africa). It explored the connections and interplay of Africa’s weak public health systems, the profit and greed of Big Pharma enabled by the governments of the industrialized Global North, and the Covid-19 pandemic from a political economy perspective. This report summarizes the main discussions held during the conference, including an overview of each of the main points discussed. The webinar was the first in a three-part series of webinars scheduled by the two organizations under the theme Africa, Climate Change and the Pandemic: interrelated crises and radical alternatives.

The format of the event involved keynote presentations from three speakers, a five-minute activist update on the COVID-19 situation from two African countries, and an interactive discussion with participants. Chaired by Farai Chipato, a Trebek Postdoctoral Fellow at the University of Ottawa and ROAPE editor, the session included presentations from Rob Wallace, an evolutionary epidemiologist and public health geography expert at the Agroecology and Rural Economics Research Corps; Tetteh Hormeku, Head of Programmes at Third World Network-Africa (TWN-Africa) and Marlise Richter, a senior researcher at the Health Justice Initiative in South Africa.

The current state of the pandemic – Rob Wallace

Rob Wallace began the session by providing a global perspective on the current state of the COVID-19 pandemic. He presented data showing that though the total number of vaccinations are increasing, the percentage of people fully vaccinated is concentrated in the West. We are currently experiencing a third wave of the pandemic, which is being driven by the delta variant. Though the cases in Africa are relatively lower than in other parts of the world, it is still a marked increase from the first and second waves which were less severe. This is not the trajectory that was predicted for COVID-19 on the continent in the early days of the pandemic. Marius Gilbert et al had speculated that Africa would be vulnerable to the virus due to a lower public health capacity and underlying co-morbidities that might increase the spread and damage of the virus. However, the incidence of the virus has played out in a different way, Africa’s cases are not as high as that of other continents. The possible reasons that have been given for this are: demographics (a younger population), open housing (which allows greater ventilation), and an ongoing circulation of other types of coronaviruses which have induced a natural, partial immunity in the population.

Wallace also commented on herd immunity, stating that it is not a panacea for defeating the virus. He referenced a paper by Lewis Buss et al on COVID-19 herd immunity in the Brazilian Amazon which found that although 76% of the population had been infected with the virus by October 2020, they had not achieved herd immunity (which is usually estimated at 70-75%), and proliferation of the virus was ongoing. He pointed out that the key lesson from this study is that there is no magical threshold for herd immunity; it may be different for different populations or there may be no threshold at all.

Likewise, he contended that defeating COVID-19 has little to do with vaccination as a silver bullet, but much to do with governance and the wellbeing of the population being at the crux of any public health decisions a government would take. A multi-pronged approach should be taken to defeat the virus, one that includes vaccinations, wearing of masks, social distancing, and testing and tracing. He argued however, that in the neoliberal regimes of the industrialised North, dealing with COVID-19 is organized around profit.

This was not the case in the early days of the outbreak. Initially, the World Health Organisation (WHO) and the National Institutes of Health (NIH) in the US were in favour of having open medicine and making sure any pharmaceutical products produced to fight the virus were free to all. To this end, WHO developed the COVID-19 Technology Access Pool (C-TAP). However, the lobbying of Big Pharma and the likes of Bill Gates worked to centre the COVID-19 response around the model of intellectual property rights. This has had a considerable impact on the evolution of the virus, allowing it enough room to evolve such that pharmaceutical companies can make profits by selling booster shots of the vaccine. According to Wallace, this speaks to the “sociopathic nature” of the neoliberal regimes in the Global North who are willing to put the profits of Big Pharma over the lives of people. He opined that we need to act in solidarity to create a system in which disparities between the Global South and Global North are removed.

Health justice and the pandemic in South Africa – Marlise Richter

Marlise Richter’s presentation shed light on the work of the Treatment Action Campaign (TAC) and the lessons that can be learnt from their struggles for access to medicines (in particular ARVs). She pointed out that the TRIPS agreement (Trade-Related Aspects of Intellectual Property Rights – TRIPS – is a legal agreement between member states of the World Trade Organisation) had a big impact on how the HIV/AIDS epidemic was addressed, resulting in a limited number of ARVs reaching the Global South.

The HIV epidemic was particularly acute in South Africa, the number of people living with the virus ballooned from 160,000 in 1992 to over 4.2 million people by 2000. At this time, ARV’s had been developed but were unaffordable in Africa, costing up to US$10,000 a year in 1998.

The TAC used multiple strategies such as skilled legal advocacy, high quality research, social mobilization, demonstrations, and public education to fight the pharmaceutical industry and their abuse of intellectual property rights protections. It joined the case brought by the Pharmaceutical Manufacturers Association (PMA) against the South African government for allowing parallel importation of drugs in order to bring down prices of medicines. Its intervention contributed to pressuring the PMA to withdraw its claims in 2001. In addition, it applied pressure at the 13th International AIDS Conference in Durban in 2000 by staging a march to highlight the danger of President Mbeki’s AIDS denialism and demanded access to ARVs in Africa.

From 1999 onwards, the TAC also campaigned for a national prevention of mother-to-child transmission of HIV. This case was won at the high court and precipitated a national ARV roll-out plan in April 2004. Finally, in 2002, TAC and the AIDS Law Project filed a complaint with the Competition Commission against GlaxoSmithKline (GSK) and Boehringer Ingelheim arguing that they violated the competition law by abusing their dominance in the market and charging excessive prices for ARVs. This forced the companies to reach a settlement in 2003 leading to a drastic cut in ARV prices. By employing these tactics, the TAC and other activists were able to transform both the national and global conversation on drug pricing, eventually leading to South Africa having the largest HIV treatment program globally and pharmaceutical companies reducing the prices of ARVs.

Following the success of the campaigns to provide access to ARVs in Africa, activists in the Global South fought for the Doha Declaration. The Doha Declaration waived some of the provisions in TRIPS in order to prevent public health crises and promote access to medicines for all. However, Richter commented that not many of these flexibilities have been used. She posits that this is due to immense political pressure from the West. The US in particular has singled out governments that seek to use the TRIPS flexibilities and placed them on the US Special 301 Watch List.

Returning to the present, Richter presented data that showed that on 3 August, there have been just under 200 million confirmed cases and over 4.2 million deaths of COVID-19. 28.6% of the world’s population has received at least one dose of the vaccine with 14.8% fully vaccinated. But to give a sense of the disparity in vaccine administration across the world, she indicated that 4.21 billion doses have been administered globally with 38.67 million administered daily, but in low-income countries only 1.1% of people have received at least one dose. Narrowing it down to Africa, only 1.58% of the population has been fully vaccinated. This variance in administered vaccines is also present across the continent. In July 2021, Morocco had 28.9% of its population fully vaccinated, Botswana and South Africa had 5.3% and 5% of their populations fully vaccinated, and the Democratic Republic of the Congo had 0%. These incongruities are also evident when we assess the number of vaccines promised against vaccines delivered, with South Africa receiving only 26% of the vaccines promised. Continuing at the current pace, it would take South Africa two years and three months just to vaccinate 67% of its population.

Richter quoted the WHO Director-General saying, “The world is on the brink of a catastrophic moral failure – and the price of this failure will be paid with lives and livelihoods in the world’s poorest countries.” Following from this, she believes that it makes ethical sense and public health sense for vaccines to be distributed equitably amongst the world’s population. In a bid to fight for vaccine equity, South Africa and India co-sponsored the TRIPS waiver in October 2020. If successful, this waiver will bring about flexibilities in the TRIPS agreement which would have an immense impact on the manufactured supplies of vaccines and other medical goods. For the waiver to be passed, a consensus amongst all member states of the WTO needs to be reached. While the waiver is supported by over 100 countries (predominantly in the Global South), it has been blocked most notably by the EU, Australia, Norway and Japan, countries which have enough vaccines to vaccinate their population many times over. Putting this into perspective, in January 2021 the EU had 3.5 vaccines per person and Canada had 9.6 vaccines per person, as compared to 0.2 vaccines per person in the African Union. By blocking this waiver, the industrialised North is further entrenching the extreme inequalities currently faced by the Global South.

Richter concluded her presentation by speaking on a recent development in South Africa, where Pfizer-BioNtech has recently signed a ‘fill and finish’ contract with the Biovac Institute. She claimed that while this is a first step in developing manufacturing capacity, it is not enough to achieve vaccine independence because it does not include the sharing of Pfizer-BioNtech’s technology or know-how. In addition, the ‘fill and finish’ approach does not address issues of security of supply, nor does it allow local manufacturers the freedom to make their own pricing decisions. She believes that if we start from the premise that health is a human right, as the TAC does, we will regard health equity and especially vaccine equity as essential in the struggle against the pandemic.

The political economy of the continuing fight against intellectual property rights negatively affecting public health goods in Africa – Tetteh Hormeku

Tetteh Hormeku’s presentation was centred around the challenges that African countries have confronted in the process of trying to develop their own pharmaceutical capacity. These challenges go beyond the struggles for the TRIPS waiver and include the impact of some of the choices governments have made. He focused on two interrelated points that frame the predicament of African countries in relation to the current vaccine situation:

1) The vaccine process is dominated by pharmaceutical Multinational Corporations (MNCs) based in the advanced industrial countries and supported by their governments. The controversy around the TRIPS waiver is a clear example of the extent to which advanced countries and their MNCs would like to hold on to their place in the international order.

2) On the non-existent domestic pharmaceutical capacity in African countries, Tetteh explained that he uses the phrase “domestic pharmaceutical capacity” because:

  • It does not include a subsidiary of an MNC signing a production agreement with a local African company.
  • The word ‘domestic’ combines both the local character of production and the fact that it is embedded within the nation, its challenges, people, drives and imperatives.
  • It does not refer to nations alone, but also to regional and continental initiatives.
  • It captures pharmaceutical capacity beyond the production of vaccines.

Tetteh provided the following case-study to show how these two points are interrelated. 24 February marked the first shipment of COVID-19 vaccines to Ghana, and there was an optimism that it would be the beginning of a steady supply of vaccines to the country – six months later, less than 2% of the population has been vaccinated. Around the time Ghana received this first shipment, it was in talks with the Cuban government for support on the transfer of technology to improve its pharmaceutical capacity.

This date in February also marked the anniversary of the overthrow of Kwame Nkrumah in 1966. Six months before the coup Nkrumah’s government had established a state pharmaceutical enterprise. After the coup, the military government tried to hand it over to Abbott Laboratories, an American pharmaceutical company, under such outrageous terms that the resulting backlash from the populace led to the abandonment of this plan.

The creation of a state-owned pharmaceutical enterprise in Ghana and in other African countries in the post-independence era was a reaction to colonial policies which deliberately curtailed the production of knowledge and science across the continent. The aim of developing a pharmaceutical industry domestically was to intervene on three levels:

  • Creating an industry with the technical know-how and the machinery to be able to participate in the production of pharmaceutical products.
  • Creating an industry which is linked to the process of developing and building knowledge and being at the frontiers of knowledge. This involved creating linkages with universities and scholars.
  • Making use of traditional sources of medical knowledge. The state pharmaceutical enterprise was in operation until the 1980s when due to the Structural Adjustment Programs (SAPs) it was privatized and unable to compete in the free market.

Tetteh pointed out that two lessons can be taken from this anecdote:

  • The government strongly intervened to ensure pharmaceutical production was linked to public procurement and public policy. The market for the product was guaranteed (army, public hospitals etc.).
  • The government intervened to ensure that certain medical products could not be imported into the country. These interventions were crucial in creating the legal and scientific conditions within which the state-owned enterprise thrived until the SAP period.

A key success of the state pharmaceutical enterprise was that it was able to bargain with Big Pharma on its own terms. At the time, Big Pharma needed to negotiate with the state pharmaceutical enterprise to produce their products locally since they had no access to the Ghanaian market. Although Ghana’s intellectual property rights regime replicated and mimicked some of the standards in the Global North, it was an indication of the amount of space countries in the Global South had to develop their own legislation with respect to intellectual property for public health. However, this option is no longer available to these countries. According to Tetteh, TRIPS inaugurated the monopoly that Big Pharma has over technical know-how for medical products. It has also enabled bio-piracy which allows Big Pharma to appropriate African traditional knowledge and patent it for themselves. In the 1990s, the Organisation of African Unity (OAU) tried to create an African model law to enable a fight against bio-piracy but was unsuccessful.

The creation of a state-owned pharmaceutical enterprise in Ghana and in other African countries in the post-independence era was a reaction to colonial policies, which deliberately curtailed the production of knowledge and science across the continent

Tetteh noted that the current situation highlights the importance of getting the TRIPS waiver, as it is a starting point for building domestic pharmaceutical capacity. The waiver goes beyond just patents and encompasses a host of other intellectual property rights such as copyrights, and industrial design. It covers all the important bases for making medicines in a modern context. Looking back to the Doha Declaration, very few countries were able to make real changes to their laws in order to make use of the flexibilities. This was due in part to the entrenchment of TRIPS in other agreements such as AGOA (the African Growth and Opportunity Act) and the EPAs (Economic Partnership Agreements). However, importantly, there was no real commitment by African leaders to making these changes.

Tetteh argued that African leaders are not making the strategic choices that would eventually lead them to developing independent pharmaceutical industries. Suggesting that South-South cooperation is an avenue to address the current issues the continent faces, he argued that instead of using all their funds to buy vaccines, African countries could have allocated some funds to support phase three of Cuba’s vaccine trials. By doing this, they would have been able to negotiate for a consistent relationship in terms of knowledge exchange and the transfer of technology.

Updates on COVID-19 in Senegal and Kenya

Cheikh Tidiane Dieye provided an update on the COVID-19 situation in Senegal. The country recorded its first case of the virus in March 2020. Since then, the government has put in place measures such as curfews, travel restrictions and the banning of public gatherings to contain the spread of the disease. The Senegalese government did not enforce a lockdown because the country has a large informal sector which would have been negatively impacted by a lockdown.

Senegal is currently experiencing its third wave – driven by the delta variant. The total number of cases has increased significantly over the last year, moving from 9,805 cases and 195 deaths in July 2020 to 63,560 cases with 1,365 deaths as of July 2021. This increase in cases has taken a toll on the country as it does not have the healthcare infrastructure to deal with the virus caseload. The vaccination campaign was launched in February this year, with about 1.2 million doses received, 1.8% of the population fully vaccinated and 3% receiving their first dose.

He stated that Senegal is currently facing two issues:

  1. Lack of access to the vaccines. This is because the country does not have the means to purchase enough vaccines for its population and is currently relying on donations from COVAX. This has resulted in protracted waiting times for the vaccine. These waiting times can cause complications for vaccine administration, since there are people who have received the first dose but must wait for longer than the recommended time of eight weeks to receive their second dose.
  2. A significant part of the population is reluctant to receive vaccines and sensitization campaigns are proving ineffective.

He remarked on one key development in Senegal – the creation of a vaccine manufacturing plant funded by the World Bank, the US, and a few European countries. The plant is expected to produce 300 million doses a year, first of COVID-19 vaccines and then other types of vaccines against endemic diseases. This project will be implemented by the Institut Pasteur de Dakar which already produces yellow fever vaccines.

ROAPE’s Njuki Githethwa provided an update on the COVID-19 situation in Kenya. He mentioned that the delta variant has caused a surge in cases and deaths. There have been currently over 200,000 cases since the pandemic began with the total number of deaths at 4,000 at the end of July. He pointed out that this third wave is affecting the lower classes which were spared in the initial stages of the pandemic. Kenya has received 1.8 million doses of the vaccine, with about 1.7% of Kenyans vaccinated. He noted that if vaccinations continue at this pace, it will take over two years for Kenyans to be fully vaccinated.

A key success of the state pharmaceutical enterprise was that it was able to bargain with Big Pharma on its own terms. At the time, Big Pharma needed to negotiate with the state pharmaceutical enterprise to produce their products locally since they had no access to the Ghanaian market

According to Njuki, the disbursement of vaccines from the West is being portrayed as a symbol of charity, solidarity, and sympathy. This portrayal is underlain by the West positioning themselves as saints while vilifying other countries like India and China. He also mentioned that there is a class dynamic at play in Kenya regarding the distribution of vaccines. People in affluent areas have ease of access whereas the less privileged wait in long queues to get vaccinated. As a result, most of the population, including frontline workers, are yet to be vaccinated. Schools in the country reopened at the end of July, and only about 60% of teachers have been vaccinated. Njuki touched on the fact that there is an optimism that more vaccines are coming, however the government is not doing enough to sensitise the population. There is still a lot of misinformation and superstition surrounding the vaccines.

Moving beyond the state?

The discussion was further enriched by contributions from the participants. Gyekye Tanoh, for example, noted that in the past the presence of state pharmaceutical enterprises around the continent constituted an active and embodied interest. This influenced the way transnational pharmaceutical companies were able to negotiate, severely limiting their power. However, such a thing is not present today on the continent. In fact, a study from the McKinsey Institute pointed to the fact that the pharmaceutical industry has the highest markups in Africa, meaning that while the continent is not the biggest market, it is the most profitable region in the world. Currently, the interests of Big Pharma dominate, he asked, how do we begin to shift this? Is it time to look beyond the state as a leading agent for change? What can progressives do in this situation?

Senegal is currently experiencing its third wave – driven by the delta variant. The total number of cases has increased significantly over the last year, moving from 9,805 cases and 195 deaths in July 2020 to 63,560 cases with 1,365 deaths as of July 2021

In response to Gyekye’s question, Tetteh argued that he does not believe that it is time to look beyond the government. In the case of the pharmaceutical industry, the market is created by production and government procurement of pharmaceutical products. Real change cannot be realised without the involvement of the government and well thought out policies. But there is still a role for progressives. Activists need to mobilise and organize around broad paradigmatic changes and clear concrete policy choices that can be implemented in the immediate, medium, and long term.

Wallace added that the objectives of activists in the Global North should be to support the efforts of those in the Global South. This is especially important because COVID-19 is not the only virus that can cause real damage. We need to make structural changes that ensure the Global South is not at the mercy of the Global North whose economic model has contributed to the current situation.

Farai Chipato ended the session by thanking the speakers and participants for their contributions to the fruitful and important discussion. Chipato urged participants to join ROAPE and TWN-Africa for their two upcoming webinars: ‘Popular public health in Africa: lessons from history and Cuba’ and ‘Alternative strategies and politics for the Global South: climate-change and industrialisation.’

This article was originally published in the Review of African Political Economy (ROAPE) Journal. 

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Omissions of Inquiry: Kenya and the Limitations of Truth Commissions

Gabrielle Lynch provides a radical analysis of the mechanisms of transitional justice. Looking at the case of Kenya, Lynch argues that truth commissions which hope to achieve truth, justice and reconciliation also require ongoing political struggles, and substantive socio-economic and political change. While reconciliation and justice may be goals which truth commission can recommend, and sometimes contribute to, they cannot be expected to achieve them.

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Omissions of Inquiry: Kenya and the Limitations of Truth Commissions
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In today’s world, it is almost expected that a truth commission will be introduced in the wake of conflict or a period of authoritarianism to try and consolidate a transition to democracy and peace. A truth commission generally understood – as per Priscilla Hayner – as a temporary state-sanctioned body that investigates a pattern of past abuse, engages ‘directly and broadly with the affected population, gathering information on their experiences’ and which aims to conclude with a public report.

The underlying idea is that societies need to confront and deal with unjust histories if they are to establish a qualitative break with that past. Proponents of modern truth commissions thus ‘look backwards’, not as interested historians, but as a way to ‘reach forwards.’ As Archbishop Desmond Tutu explained in his foreword to the South African Truth and Reconciliation Commission (TRC) report:

The other reason amnesia simply will not do is that the past refuses to lie down quietly. It has an uncanny habit of returning to haunt one … However painful the experience, the wounds of the past must not be allowed to fester. They must be opened. They must be cleansed. And balm must be poured on them, so they can heal. This is not to be obsessed with the past. It is to take care that the past is properly dealt with for the sake of the future.

Motivated by this desire to render the past ‘passed’ in the substantial sense of being ‘dead’ or ‘over and done with’, modern truth commissions dedicate most of their time to two activities: the holding of public hearings and production of a final report.

This is a relatively recent development. Early truth commissions did not hold public hearings and were largely fact-finding bodies. However, ever since the South African TRC of the 1990s, truth commissions have held hearings as a stage for various actors – victims, perpetrators, political parties, state institutions and so forth – to present their account of past wrongs. The underlying idea is that people will have a chance to speak and be heard, and thus regain their humanity; that a wider (and engaged) audience will bear witness to a new human rights-conscious regime; and the overview provided will feed into, and help legitimise, a final report. The latter in turn intended to record and acknowledge past wrongs and provide recommendations that can help to promote truth, justice and reconciliation.

However, while much hope is often placed, and much time and money expended, on truth commissions and their hearings and final reports, it is evident that these processes generally fall far short of ambitious goals and high expectations. But what explains this gap between aspiration and reality?

This is one of the questions that I address in a new book – Performances of Injustice: The politics of truth, justice and reconciliation in Kenya – which analyses several transitional justice mechanisms introduced following Kenya’s post-election violence of 2007/8 when over 1,000 people were killed and almost 700,000 were displaced.

This includes the establishment of the Truth, Justice and Reconciliation Commission (TJRC). Significantly, the Commission’s mandate recognised that, while the 2007/8 post-election violence was triggered by a disputed election, it was fuelled by more deep-rooted problems.  In turn, the Commission was tasked with investigating a wide array of injustices – from state repression and causes of political violence to perceptions of economic marginalisation and irregular land acquisition – between Kenya’s independence in 1963 and the end of the post-election violence in February 2008.

Established through an Act of Parliament in 2008, and operational from 2009 to 2013, the TJRC sought to meet its mandate, in large part, by collecting statements (with over 40,000 collected in total), holding public and women’s hearings in 35 locations across the country and adversely mentioned person (AMP) hearings in western and Nairobi, and publishing a substantial final report that runs to over 2,000 pages.

Despite such achievements, the Commission was soon mired in controversy with calls for the chairman – who was soon linked to three injustices that the Commission was meant to investigate – to resign, while the public hearings attracted little media attention, and the final report is yet to be discussed in parliament let alone implemented.

The Kenyan experience highlights a range of lessons and insights. This includes the fact – as recently outlined in a piece for The Conversation – that transitional justice mechanisms are not ‘tools’ that can be introduced in different contexts with the same effect. Instead, their success (or failure) rests on their design, approach and personnel – all of which are incredibly difficult to get right – but also on their evaluation and reception, and thus on their broader contexts, which commissions have little or no control over.

However, the lessons that can be drawn go beyond reception and context and extend to the inherent shortcomings of such an approach.

First, while victims appreciate a chance to speak and be heard, the majority clearly submitted statements or memoranda or provided testimony in the hope that they would be heard and that some action would be taken to redress the injustices described. As one woman explained after a women’s hearing in Nakuru, she was glad that she had spoken and how, having told her story, the Commission would ‘come in and help.’

To be fair, the TJRC’s founders were aware of the inadequacies of speaking, which is why they included ‘justice’ in the title and gave the Commission powers to recommend further investigations, prosecutions, lustration (or a ban from holding public office), reparations and institutional and constitutional reforms.

However, on the question of whether recommendations would be implemented, the Commission rather naively relied on the TJRC Act (2008), which stipulated that ‘recommendations shall be implemented.’ However, such legal provisions proved insufficient. Amidst general scepticism about the Commission’s work, parliament amended the TJRC Act in December 2013 to ensure that the report needed to be considered by the National Assembly – something that is yet to happen.

Moreover, to document and acknowledge the truth requires that one hears from both victims and perpetrators. However, the latter often have little motivation, and much to lose, from telling the truth. This was evident in Kenya where, during the AMP hearings I attended, where I heard little that was new and not a single admission of personal responsibility or guilt. Instead, testimonies were characterised by five discursive strands of responsibility denied: denial through a transfer of responsibility, denial through a questioning of sources, denial through amnesia, denial through a reinterpretation of events and an assertion of victimhood, and denial that events constituted a wrongdoing. However, while AMPs denied responsibility, none denied that injustices had occurred. As a result, while the hearings provided little clarity on how and why a series of reported events may have occurred, they simultaneously drew attention to, and recognised, past injustice. In this way, they provided a public enactment of impunity: Kenya’s history was replete with injustice, but AMPs were unwilling to shoulder any responsibility for it.

This ongoing culture of impunity points to another issue, which is that – for most victims – injustices clearly do not belong to the past but to the present and future. The loss of a person or income, for example, often constitutes a course that now seems beyond reach – from the hardship that accompanies the loss of a wage earner to the diminished opportunities that stem from a child’s extended absence from school. However, the past also persists in other ways, from the injustices that never ended, such as gross inequalities or corruption, to fears of repetition and experiences of new injustice.

Unfortunately, the idea that one can ‘look backwards to reach forwards’ downplays the complex ways in which the past actually persists, and possible futures infringe on the present. This is problematic since it can encourage a situation where small changes dampen demands for more substantive reform. At the same time, it can facilitate a politicised assertion of closure that excludes those who do not buy into the absence of the past, the newness of the present, or the desirability of imagined futures and provides a resource to those who seek to present such ‘difficult people’ as untrusting, unreasonable and unpatriotic.

This is not to say that truth commissions are useless and should never be considered. On the contrary, many view speaking as better than silence, while the commission’s report provides a historical overview of injustice in Kenya and a range of recommendations that activists and politicians are using to lobby for justice and reform.

However, when introduced, truth commissions should be more aware of the importance of persuasive performances and how their initial reception and longer-term impact is shaped by broader socio-economic, political and historic contexts. Truth commissions also need to adopt a more complex understanding of the ways in which the past persists, and possible futures infringe on the present and avoid easy assertions of closure.

Ultimately, such ambitious goals as truth, justice and reconciliation require not Freudian ‘talk therapy’, although catharsis and psycho-social support are often appreciated, but an ongoing political struggle, and substantive socio-economic and political change, which something like a truth commission can recommend, and sometimes contribute to, but cannot be expected to achieve.

This article was first published in the Review of African political Economy (ROAPE).

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