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FROM INMATE TO PRESIDENT: Bemba’s star is shining but he could still be denied the presidency

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After a decade in prison, it would take an abundance of optimism to say that the opposition leader is on the cusp of ascending to DR Congo’s highest office. By WAIRAGALA WAKABI

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FROM INMATE TO PRESIDENT: Bemba’s star is shining but he could still be denied the presidency
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Jean-Pierre Bemba is the man of the moment. He recently won a huge, unlikely acquittal at the International Criminal Court (ICC), returned home to the Democratic Republic of the Congo without hassle after a decade in jail in Europe, and lodged his papers to run for president in a poll in which the incumbent, President Joseph Kabila, won’t be running.

Veteran opposition leader Étienne Tshisekedi, who stood for president in December 2011 on the ticket of a coalition of parties and lost with 32 per cent of the votes, died in February last year. His son, Félix Tshisekedi, took over the mantle of the country’s leading opposition party, the Union for Democracy and Social Progress (UDPS) and remains the favoured opposition candidate to succeed Kabila as president. But Bemba might just overtake him. With Kabila himself not standing, Bemba is a strong contender among an opposition line-up that looks the favourite relative to Kabila’s candidate, former interior minister, Emmanuel Ramazani Shadary.

Another leading opposition contender, Moise Katumbi, has been locked out of running by state authorities, further brightening Bemba’s prospects of clinching the top seat in the troubled central African country. And yet, it would take an abundance of optimism to say that Bemba is on the cusp of becoming DR Congo’s president, as events in Kinshasa and in The Hague, over which he lacks control, could extinguish his prospects for election come December.

Bemba, 55, founded the Movement for the Liberation of Congo (MLC) rebel group in 1998 with support and training from the government of Ugandan president Yoweri Museveni. He was 35years- old. The son of Jeannot Bemba Saolona, a powerful businessman, Bemba went on to become a successful entrepreneur himself.

Two decades ago, the MLC was one of a myriad of groups supported by Rwanda and Uganda to fight the government of Laurent-Désiré Kabila, Joseph Kabila’s father, whom the two countries had supported to grab power from veteran despot Mobutu Sese Seko in 1997. The MLC turned out to be the most stable of these groups, establishing extensive administrative control and public services (such as courts of law, health centres, and schools) in the large part of the country that it controlled. Having transformed itself into a political party, the MLC remains a major player in Congo’s politics, and is by far the most visible of the former rebel groups-turned political parties.

Under the power-sharing agreement aimed at ending the fighting, Bemba became one of Congo’s four vice presidents in 2003. He went on to contest elections three years later, emerging second to Kabila. The decade he has been away in The Hague has taken a toll on his party, and on his personal profile, and yet the time seems just right for him to be back to have another go at the presidency.

But there are various odds stacked against his candidacy, some of which he may not easily navigate.

Under the power-sharing agreement aimed at ending the fighting, Bemba became one of Congo’s four vice presidents in 2003. He went on to contest elections three years later, emerging second to Kabila. The decade he has been away in The Hague has taken a toll on his party, and on his personal profile, and yet the time seems just right for him to be back to have another go at the presidency.

First, we look at his prospects.

1. Riding the Kabila unpopularity vote

Joseph Kabila is hugely unpopular. His dogged attempt to defy the constitution and stand for a third term, his inefficient government that has failed to root out armed militia groups, his lukewarm response to rampant corruption in the public service, and his dithering as security forces killed peaceful protesters for months, all made him a hated figure among the electorate. Whereas Kabila has finally declared that he will not run, his unpopularity will necessarily rub off the ruling coalition’s candidate.

According to results of a nationally representative poll published in February, only 10 per cent of respondents would vote for Kabila if he stood for president, and in what is known as his last stronghold, only 37 per cent would vote for the incumbent. Moreover, the unpopularity is shared by other senior government officials and the elections commission. A large majority of respondents (70 per cent) had an unfavourable opinion of Prime Minister Bruno Tshibala – the same for Joseph Olenghankoy, who heads the committee implementing the agreement reached by government and the opposition in the lead-up to the elections.

In power since January 2001 when he replaced his assassinated father, Kabila has few successes to point to. His refusal to step down ahead of the elections and to fully implement the December 31, 2016 agreement signed between the opposition and the government did not endear him to voters. And his decision not to run in the December polls does not do much to improve his ruling coalition’s chances. As interior minister between 2016 and February 2018, Shadary oversaw the forceful repression of demonstrations and arrests of activists and opposition politicians. That did not earn him many admirers.

2. How the ICC trials boost Bemba’s chances

Whereas many Congolese nationals support the work of the ICC, a great number are frustrated with the fact that trials take way too long (it took ten years from Bemba’s arrest for his trial to be concluded with an acquittal on appeal). More distinctly, many Congolese citizens have always felt that Bemba’s arrest and prosecution was politically motivated – that it was meant to keep him away from Congo’s politics.

The criticism that Kabila conspired with “Western powers” to try Bemba has been around for several years, with one respected 2012 research report showing many Congolese believing that Bemba was “targeted”. The report added: “Many Congolese see his arrest as evidence that the court is being used as an instrument by the Congolese government to undermine its rivals. Whether or not this is the case, the action by the court removed a major political player from the scene ahead of the recent 2011 presidential elections, substantially weakening the challenge to President Kabila.”

Similarly, Bemba is likely to receive the support of those who feel sympathy for his perceived wrongful prosecution. Indeed, poll results released on July 31, 2018 by the Congo Research Group based at the Center on International Cooperation at New York University, indicated that Bemba’s popularity had gone up 16 per cent since last November, as 83 percent of respondents “thought his acquittal was a good thing.”

The criticism that Kabila conspired with “Western powers” to try Bemba has been around for several years, with one respected 2012 research report showing many Congolese believing that Bemba was “targeted”. The report added: “Many Congolese see his arrest as evidence that the court is being used as an instrument by the Congolese government to undermine its rivals…”

There have been longstanding questions among Congolese critics of the court as to why, for instance, former Central African Republic president Ange-Félix Patassé was not tried with Bemba, or instead of him. As president, Patassé invited the MLC into his country to help him fight a coup attempt, and it was while the Congolese rebel troops and Central African forces were fighting the insurgents that the crimes over which Bemba was tried in The Hague were committed. Others wondered why senior MLC commanders who were in the CAR were not tried, as it was deemed that they bore more control over the group’s troops deployed in that country.

Nonetheless, as one close Congolese observer has pointed out, for some Congolese the acquittal merely highlights what in their minds is the injustice of the original decision to prosecute Bemba. According to her, even if Bemba is not allowed to run, he could make a significant impact on the electoral outcome by endorsing another candidate.

3. The potential opposition unity

There are strong indications that if the opposition fronted a united candidate, it would garner more votes than Kabila’s candidate. Opinion poll results showed at the end of July that the three main opposition candidates each had between 17 per cent and 19 per cent of the vote, while candidates from the ruling coalition would get a combined total of 19 per cent. At the very least, these results seem to show that, in a credible election, the ruling party’s candidate would not be the winner of a majority of votes; and if the top three opposition contenders front a common candidate, that candidate would have a smooth sail to the presidency.

The big question, however, is whether the opposition will throw its weight behind a single candidate. History does not favour this prospect. The DRC is a large country, with 46 million registered voters, more than 400 political parties, some of which have regional interests and whose agendas do not easily coalesce with those of national parties. That makes it difficult to forge national coalitions.

But the prospect of wrenching power from the ruling coalition could just push the political actors to put personal ambitions aside. Kabila has not always won by huge margins. In 2006, he took 44 per cent of votes in the first round, before getting elected with 58 per cent of the vote in a run-off against Bemba. In the last elections of 2011, he won with 48.95 per cent.

Who then should be the opposition candidate? Whereas Bemba has a loyal base in the country, his decade-long absence has seen a significant slide in the proportion of his party’s representation in parliament, with many senior party members decamping.

Currently, Tshisekedi has a better rating at the polls, and leads a larger party than the MLC. However, he is a political novice compared to Bemba, who has been vice president and senator, and has useful networks in some neighbouring countries, notably Uganda. His experience as the leader of a large rebel group, most of whose members were integrated into the national army, also means that at least a section of the military could find him more acceptable. With Katumbi out of the running, Bemba only has Tshisekedi to overtake as the leading opposition contender.

Currently, Tshisekedi has a better rating at the polls, and leads a larger party than the MLC. However, he is a political novice compared to Bemba, who has been vice president and senator, and has useful networks in some neighbouring countries, notably Uganda.

Bemba needs to court leading opposition actors, not least his former party members that have since moved on, and other key actors, including Vital Kamerhe, who took 7.7 per cent of the presidential vote in 2011. Moreover, Bemba’s prospects would improve further if he won an alliance with church groups that spearheaded the protests against Kabila’s third term project, as well as youth movements such as LUCHA and Filimbi.

The above notwithstanding, there are various factors that could still stand in the way of a Bemba presidency.

4. The upcoming sentencing at the ICC

In June this year, appeals judges at the ICC acquitted Bemba of war crimes and crimes against humanity after trial judges had convicted him in 2016 and handed him an 18-year prison sentence. The acquittal paved the way for his interim release to Belgium, where he has a residence, before he returned to Congo on August 1, after being away for 11 years.

The case for which Bemba was acquitted is one of two that he has faced at the court. In the first case, he was tried for failing to stop or punish his MLC soldiers who committed rape, murder, and pillaging in the CAR during 2002 and 2003. Although he was not in the CAR himself, he was tried under the principle of “command responsibility” whereby superiors are responsible for the actions of their subordinates.

Whereas that case was settled with finality when Bemba was acquitted last June, the conviction for the second case was confirmed by a separate appeals chamber. The sentence will be announced in the coming months. In the second case, judges found that Bemba and his former lawyers bribed witnesses to give false testimony on behalf of Bemba. Initially, judges had handed Bemba a one-year sentence and a fine of €300,000, but the appeals chamber ordered that a fresh sentence be pronounced since there were errors made in the initial sentencing. The prosecution is asking that Bemba be handed a maximum prison term permissible for this offence, namely five years, and that he should be sent back to the ICC detention centre to serve the sentence out.

It is unlikely that Bemba will be handed a five-year jail term, or that he will be sent back to the detention centre for a period longer than a few months. His lawyers argue that even if he were handed the maximum sentence, the four years and six months he spent in detention from the time the warrant for his arrest for witness tampering was issued should be subtracted from any prison term he may be required to serve. The defence also argues that the time he has already served is proportionate to the offences for which he was convicted.

Ultimately, it remains to be seen whether the judges will hand Bemba a custodial sentence – which could undermine his presidential campaign – or whether they will only issue a monetary fine.

5. Fighting the power of incumbency

Given the power of incumbency and the large network of patronage in the civil service, in the military and even in many provincial administrations, Shadary has huge advantages. It means Kabila’s party can use the largesse accumulated from siphoning off state resources in a state short on accountability mechanisms to run a large-scale campaign and to bribe voters to vote for the ruling coalition’s candidate.

Moreover, the state has the opportunity to steal the election through the bloated voters’ roll, or by manipulating the electronic voting machines that are being introduced. The electoral body is not trusted to conduct free and fair polls, according to research, while courts of law may not impartially arbitrate electoral disputes.

The state of insecurity and the poor transport networks exacerbate the headaches which opposition candidates must endure to reach large parts of the country. That’s a challenge the ruling party does not share in equal measure. Nonetheless, Bemba has been known to have deep pockets and equally well-heeled backers, which means he could put up a more serious campaign in this regard relative to other contenders.

The state of insecurity and the poor transport networks exacerbate the headaches which opposition candidates must endure to reach large parts of the country. That’s a challenge the ruling party does not share in equal measure. Nonetheless, Bemba has been known to have deep pockets and equally well-heeled backers, which means he could put up a more serious campaign in this regard relative to other contenders.

Moreover, as stated earlier, the incumbency could in many respects prove to be a monkey on Shadary’s back, given the unpopularity of Kabila and the dysfunctionality of his government.

6. The government could derail’s Bemba’s bid

Will the Congo government invoke legal reasons to derail Bemba’s presidential bid? Following the close of presidential nominations on August 8, the electoral commission will announce on September 19 the list of candidates approved to run.

Prior to Bemba’s return to Congo, a spokesperson of the ruling coalition suggested that the former vice president should not be allowed to run for president due to his conviction for witness tampering. He cited Article 10 of the Congolese electoral law, which stipulates that a person guilty of corruption is not eligible to stand as a candidate in electoral processes. According to the spokesperson, the conviction at the ICC amounted to corruption and Bemba should, therefore, not be allowed to stand.

Given the challenge Bemba poses to the ruling coalition’s hold on power, it is likely that a challenge to his eligibility will be presented before the constitutional court. How that would pan out is unknown.

Prior to Bemba’s return to Congo, a spokesperson of the ruling coalition suggested that the former vice president should not be allowed to run for president due to his conviction for witness tampering. He cited Article 10 of the Congolese electoral law, which stipulates that a person guilty of corruption is not eligible to stand as a candidate in electoral processes. According to the spokesperson, the conviction at the ICC amounted to corruption and Bemba should, therefore, not be allowed to stand.

A second legal challenge to Bemba could arise from events in the weeks before he fled to Brussels in early 2007. At the time, the DRC’s attorney general had asked the senate to revoke Bemba’s immunity so that he could be charged for treason. The alleged treason resulted from deadly clashes earlier that year between Bemba’s loyalist troops and mainstream government forces. With the Congo government not averse to inventing charges to dog opponents (the same move used to block Katumbi from running for president), it is possible that the alleged treason charges from 2007 could be resurrected.

However, the fact that Bemba was allowed to return, was allowed free movement in the country where huge crowds welcomed him, with police securing his movements, could signal that the government may not slap charges against him. Barring Bemba from running could also be a recipe for civil disobedience, which the government might want to avoid.

Kabila knows that the eyes of much of the world are trained on him, not least those of the United States government, which has openly pushed him into not standing for re-election, so he might try to play fair after all. As it is, Bemba’s star is shining brightest than it ever did in the last decade, but whether this will be a false dawn remains to be seen.

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Wairagala Wakabi, PhD, has covered the Congo conflict since 1998 and has from 2009 monitored trials at the International Criminal Court.

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The Assassination of President Jovenel Moïse and the Haitian Imbroglio

As CARICOM countries call for more profound changes that would empower the Haitian population, Western powers offer plans for “consensual and inclusive” government that will continue to exclude the majority of the citizens of Haiti from participating in the running of their country.

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The Assassination of President Jovenel Moïse and the Haitian Imbroglio
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On Wednesday 7 July 2021, the President of Haiti, Jovenel Moïse, was assassinated in his home. His wife was injured in the attack. That the president’s assassins were able to access his home posing as agents of the Drug Enforcement Agency of the United States (DEA) brought to the fore the intricate relationship between drugs, money laundering and mercenary activities in Haiti. Two days later, the government of Haiti reported that the attack had been carried out by a team of assailants, 26 of whom were Colombian. This information that ex-soldiers from Colombia were involved brought to the spotlight the ways in which Haiti society has been enmeshed in the world of the international mercenary market and instability since the overthrow of President Jean-Bertrand Aristide and the Lavalas movement in 2004.

When the French Newspaper Le Monde recently stated that Haiti was one of the four drug hubs of the Caribbean region, the paper neglected to add the reality that as a drug hub, Haiti had become an important base for US imperial activities, including imperial money laundering, intelligence, and criminal networks. No institution in Haiti can escape this web and Haitian society is currently reeling from this ecosystem of exploitation, repression, and manipulation. Under President Donald Trump, the US heightened its opposition to the governments of Venezuela and Cuba. The mercenary market in Florida became interwoven with the US Drug Enforcement Agency (DEA) and the financial institutions that profited from crime syndicates that thrive on anti-communist and anti-Cuba ideas.

But even as Haitian society is reeling from intensified destabilization, the so-called Core Group (comprising of the Organization of American States (OAS), the European Union, the United States, France, Spain, Canada, Germany, and Brazil) offers plans for “consensual and inclusive” government that will continue to exclude the majority of the citizens of Haiti from participating in the running of their country. Elsewhere in the Caribbean, CARICOM countries are calling for more profound changes that would empower the population while mobilizing international resources to neutralize the social power of the money launderers and oligarchs in Haitian society.

Haiti since the Duvaliers

For the past thirty-five years, the people of Haiti have yearned for a new mode of politics to transcend the dictatorship of the Duvaliers (Papa Doc and Baby Doc). The Haitian independence struggles at the start of the 19th century had registered one of the most fundamental blows to the institutions of chattel slavery and colonial domination. Since that revolution, France and the US have cooperated to punish Haiti for daring to resist white supremacy. An onerous payment of reparations to France was compounded by US military occupation after 1915.

Under President Woodrow Wilson, the racist ideals of the US imperial interests were reinforced in Haiti in a nineteen-year military occupation that was promoted by American business interests in the country. Genocidal violence from the Dominican Republic in 1937 strengthened the bonds between militarism and extreme violence in the society. Martial law, forced labour, racism and extreme repression were cemented in the society. Duvalierism in the form of the medical doctor François Duvalier mobilized a variant of Negritude in the 50s to cement a regime of thuggery, aligned with the Cold War goals of the United States in the Caribbean. The record of the Duvalier regime was reprehensible in every form, but this kind of government received military and intelligence assistance from the United States in a region where the Cuban revolution offered an alternative. Francois Duvalier died in 1971 and was succeeded by his son, Jean-Claude Duvalier, who continued the tradition of rule by violence (the notorious Tonton Macoute) until this system was overthrown by popular uprisings in 1986.

The Haitian independence struggles at the start of the 19th century had registered one of the most fundamental blows to the institutions of chattel slavery and colonial domination.

On 16 December 1990, Jean-Bertrand Aristide won the presidency by a landslide in what were widely reported to be the first free elections in Haiti’s history. Legislative elections in January 1991 gave Aristide supporters a plurality in Haiti’s parliament. The Lavalas movement of the Aristide leadership was the first major antidote to the historical culture of repression and violence. The United States and France opposed this new opening of popular expression such that military intervention, supported by external forces in North America and the Organization of American States, brought militarists and drug dealers under General Joseph Raoul Cédras to the forefront of the society. The working peoples of Haiti were crushed by an alliance of local militarists, external military peacekeepers and drug dealers. The noted Haitian writer, Edwidge Danticat, has written extensively on the consequences of repeated military interventions, genocide and occupation in the society while the population sought avenues to escape these repressive orders. After the removal of the Aristide government in 2004, it was the expressed plan of the local elites and the external forces that the majority of the Haitian population should be excluded from genuine forms of participatory democracy, including elections.

Repression, imperial NGOs and humanitarian domination

The devastating earthquake of January 2010 further deepened the tragic socio-economic situation in Haiti. An estimated 230,000 Haitians lost their lives, 300,000 were injured, and more than 1.5 million were displaced as a result of collapsed buildings and infrastructure. External military interventions by the United Nations, humanitarian workers and international foundations joined in the corruption to strengthen the anti-democratic forces in Haitian society. The Clinton Foundation of the United States was complicit in imposing the disastrous presidency of Michel Martelly on Haitian society after the earthquake. The book by Jonathan Katz, The Big Truck That Went By: How the World Came to Save Haiti and Left Behind a Disaster, provides a gripping account of the corruption in Haiti. So involved were the Clintons in the rot in Haiti that Politico Magazine dubbed Bill and Hilary, The King and Queen of Haiti.

In 2015, Jovenel Moïse was elected president in a very flawed process, but was only able to take office in 2017. From the moment he entered the presidency, his administration became immersed in the anti-people traditions that had kept the ruling elites together with the more than 10,000 international NGOs that excluded Haitians from participating in the projects for their own recovery. President Moïse carved out political space in Haiti with the support of armed groups who were deployed as death squads with the mission of terrorizing popular spaces and repressing supporters of the Haitian social movement. In a society where the head of state did not have a monopoly over armed gangs, kidnappings, murder (including the killing of schoolchildren) and assassinations got out of control. Under Moïse, Haiti had become an imbroglio where the government and allied gangs organized a series of massacres in poor neighbourhoods known to host anti-government organizing, killing dozens at a time.

Moïse and the extension of repression in Haiti

Moïse remained president with the connivance of diplomats and foundations from Canada, France and the United States. These countries and their leaders ignored the reality that the Haitian elections of 2017 were so deeply flawed and violent that almost 80 per cent of Haitian voters did not, or could not, vote. Moïse, with the support of one section of the Haitian power brokers, avoided having any more elections, and so parliament became inoperative in January 2020, when the terms of most legislators expired. When mayors’ terms expired in July 2020, Moïse personally appointed their replacements. This accumulation of power by the president deepened the divisions within the capitalist classes in Haiti. Long-simmering tensions between the mulatto and black capitalists were exacerbated under Moïse who mobilized his own faction on the fact that he was seeking to empower and enrich the black majority. Thugs and armed gangs were integrated into the drug hub and money laundering architecture that came to dominate Haiti after 2004.

After the Trump administration intensified its opposition to the Venezuelan government, the political and commercial leadership in Haiti became suborned to the international mercenary and drug systems that were being mobilized in conjunction with the military intelligence elements in Florida and Colombia. President Jovenel Moïse’s term, fed by spectacular and intense struggles between factions of the looters, was scheduled to come to a legal end in February 2021. Moïse sought to remain in power, notwithstanding the Haitian constitution, the electoral law, or the will of the Haitian people.

So involved were the Clintons in the rot in Haiti that Politico Magazine dubbed Bill and Hilary, The King and Queen of Haiti.

Since the removal of Aristide and the marginalization of the Lavalas forces from the political arena in Haiti, the US has been more focused on strengthening the linkages between the Haitian drug lords and the money launderers in Colombia, Florida, Dominican Republic, and Venezuelan exiles. It was therefore not surprising that the mercenary industry, with its linkages to financial forces in Florida, has been implicated in the assassination of President Moïse. The Core Group of Canada, France and the US has not once sought to deploy the resources of the international Financial Action Task Force (FATF) to penetrate the interconnections between politicians in Haiti and the international money laundering and mercenary market.

Working for democratic transition in Haiti

The usual handlers of Haitian repression created the Core Group within one month of Moïse’s assassination. Canada, France and the United States had historically been implicated in the mismanaging of Haiti along with the United Nations. Now, the three countries have mobilized the OAS (with its checkered history), Brazil and the European Union to add their weight to a new transition that will continue to exclude the majority of the people of Haiti. It has been clear that under the current system of destabilization and violence, social peace will be necessary before elections can take place in Haiti.

Moïse sought to remain in power, notwithstanding the Haitian constitution, the electoral law, or the will of the Haitian people.

The continuous infighting among the Haitian ruling elements after the assassination was temporarily resolved at the end of July when Ariel Henry was confirmed by the US and France as Prime Minister. Henry had been designated as prime minister by Moïse days before his assassination. The popular groups in Haiti that had opposed Moïse considered the confirmation of Ariel Henry as a slap in the face because they had been demonstrating for the past four years for a more robust change to the political landscape. These organizations mobilized in what they called the Commission, (a gathering of civil society groups and political parties with more than 150 members), and had been holding marathon meetings to publicly work out what kind of transitional government they would want to see. According to the New York Times, rather than a consensus, the Core Group of international actors imposed a “unilateral proposal” on the people of Haiti.

Haiti is a member of CARICOM. The Caribbean community has proposed a longer transition period overseen by CARICOM for the return of Haiti to democracy. With the experience of the UN in Haiti, the Caribbean community has, through its representative on the UN Security Council, proposed the mobilization of the peacekeeping resources and capabilities of the UN to be deployed to CARICOM in order to organize a credible transition to democracy in Haiti. The nature and manner of the assassination of President Moïse has made more urgent the need for genuine reconstruction and support for democratic transition in Haiti.

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How Dadaab Has Changed the Fortunes of North-Eastern Kenya

Despite the hostile rhetoric and threats of closure, the presence of refugees in the camps in northern-eastern Kenyan has benefited the host communities.

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How Dadaab Has Changed the Fortunes of North-Eastern Kenya
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In the 1960s, Kenya had a progressive refugee policy that allowed refugees to settle anywhere in the country and to access education. This approach created in Kenya a cadre of skilled and professional refugees. However, the policy changed in the 1990s due to an overwhelming influx of refugees and asylum seekers escaping conflict in Somalia, Ethiopia and South Sudan. Kenya switched to an encampment policy for refugees, who were mainly confined to camps.

Although there are refugees living in urban and peri-urban areas elsewhere in the country, for over two decades, northern Kenya has hosted a disproportionate number of the refugees living in Kenya. The region has been home to one of the world’s largest refugee camps, with generations of lineage having an impact on the economic, social, cultural, and ecological situation of the region because of the support provided by the government and by non-governmental organisations (NGOs) in education, health and security services.

Mandera and Marsabit counties, both of which boarder with Ethiopia, Wajir County which borders with both Ethiopia and Somalia and, Garissa County which borders with Somalia, have hosted refugees and migrants displaced from their countries of origin for various reasons. In 2018, the town of Moyale, which is on the Ethiopian boarder in Marsabit County, temporarily hosted over 10,000 Ethiopians escaping military operations in Ethiopia’s Moyale District.    

Elwak town in Wajir County occasionally hosts pastoralist communities from Somalia who cross into Kenya seeking pasture for their livestock. While the movement of refugees into Marsabit and Wajir counties has been of a temporary nature, Garissa County has hosted refugees for decades.

Located 70 kilometres from the border with Somalia, the Dadaab refugee complex was established in the 1990s and has three main camps: Dagahaley, Ifo, and Hagadera. Due to an increase in refugee numbers around 2011, the Kambioos refugee camp in Fafi sub-county was established to host new arrivals from Somalia and to ease pressure on the overcrowded Hagadera refugee camp. The Kambioos camp was closed in 2019 as the refugee population fell.

According to the UN Refugee Agency, UNHCR, and the Refugee Affairs Secretariat (RAS), the Dadaab refugee complex currently hosts over 226, 689 refugees, 98 per cent of whom are from Somalia. In 2015, the refugee population in the Dadaab refugee complex was over 300,000, larger than that of the host community. In 2012, the camp held over 400,000 refugees leading to overstretched and insufficient resources for the growing population.

Under international refugee and human rights law, the government has the sole responsibility of hosting and caring for refugees. However, there is little information regarding the investments made by the Kenyan government in the refugee sector in the north-eastern region over time. Moreover, the government’s investment in the sector is debatable since there was no proper legal framework to guide refugee operations in the early 1990s. It was only in 2006 that the government enacted the Refugee Act that formally set up the Refugee Affairs Secretariat mandated to guide and manage the refugee process in Kenya.

While the Refugee Act of 2006 places the management of refugee affairs in the hands of the national government, devolved county governments play a significant role in refugee operations. With the 2010 constitution, the devolution of social functions such as health and education has extended into refugee-hosting regions and into refugee camps. While devolution in this new and more inclusive system of governance has benefited the previously highly marginalised north-eastern region through a fairer distribution of economic and political resources, there is however little literature on how the refugees benefit directly from the county government resource allocations.

The three north-eastern counties are ranked among the leading recipients of devolved funds: Mandera County alone received US$88 million in the 2015/2016 financial year, the highest allocation of funds after Nairobi and Turkana, leading to developmental improvements.

However, it can be argued that the allocation of funds from the national government to the northern frontier counties by the Kenya Commission on Revenue Allocation—which is always based on the Revenue Allocation table that prioritizes population, poverty index, land area, basic equal share and fiscal responsibility—may not have been taking the refugee population into account. According to the 2019 census, the population of Dadaab sub-county is 185,252, a figure that is well below the actual refugee population. The increase in population in the north-eastern region that is due to an increase in the refugee population calls for an increase in the allocation of devolved funds.

The three north-eastern counties are ranked among the leading recipients of devolved funds.

Dadaab refugee camp has been in the news for the wrong reasons. Security agencies blame the refugees for the increased Al Shabaab activity in Kenya, and even though these claims are disputed, the government has made moves to close down the camp. In 2016, plans to close Dadaab were blocked by the High Court which declared the proposed closure unconstitutional. In 2021, Kenya was at it again when Ministry of Interior Cabinet Secretary Fred Matiang’I tweeted that he had given the UNHCR 14 days to draw up a plan for the closure of the camp. The UNHCR and the government issued a joint statement agreeing to close the camp in June 2022.

The security rhetoric is not new. There has been a sustained campaign by Kenya to portray Dadaab as a security risk on national, regional and international platforms. During the 554th meeting of the African Union Peace and Security Forum held in November 2015, it was concluded that the humanitarian character of the Dadaab refugee camp had been compromised. The AU statements, which may have been drafted by Kenya, claimed that the attacks on Westgate Mall and Garissa University were planned and launched from within the refugee camps. These security incidents are an indication of the challenges Kenya has been facing in managing security. For example, between 2010 and 2011, there were several IED (Improvised Explosive Devices) incidents targeting police vehicles in and around Dadaab where a dozen officers were injured or killed. In October 2012, two people working for the medical charity Médicins Sans Frontières (MSF) were kidnapped in Dadaab. Local television network NTV has described the camp as “a womb of terror” and “a home for al-Shabaab operations”.

There has been a sustained campaign by Kenya to portray Dadaab as a security risk on national, regional and international platforms.

Security restrictions and violent incidents have created a challenging operational environment for NGOs, leading to the relocation of several non-local NGO staff as well as contributing to a shrinking humanitarian space. Some teachers and health workers from outside the region have refused to return to the area following terrorist attacks by Al-Shabaab, leaving behind large gaps in the health, education, and nutrition sectors.

However, despite the challenging situation, the refugee camps have also brought many benefits, not only to Kenya as a country but also to the county governments and the local host communities.

Education

According to the Intergovernmental Authority on Development (IGAD) half the refugee population in the IGAD member states are children of school-going age, between 4 and 18 years.

In Garissa, the education sector is one of the areas that has benefited from the hosting of refugees in the county because the host community has access to schools in the refugee camps. Windle Trust, an organisation that offers scholarships to students in secondary schools and in vocational training institutes, has been offering scholarships to both the refugees and the host communities. In July 2021, over 70 students benefited from a project run by International Labour Organisations (ILO) in partnership with Garissa county governments, the East African Institute of Welding (EAIW) and the Kenya Association of Manufacturers (KAM) to give industrial welding skills to refugees and host communities.

However, despite the measures taken by the Kenyan government to enrol refugees in Kenyan schools, there is a notable gap that widens as students go through the different levels of education. Statistics show that of the school-going refugee population, only a third get access to secondary education of which a sixth get to join tertiary institutions. This is well below the government’s Sustainable Development Goal (SDG) 4 target that seeks to ensure that all girls and boys complete free, equitable and quality primary and secondary education. This also reflects the situation of the host community’s education uptake. Other investments in the education sector that have targeted the host communities include recruitment and deployment of early childhood education teachers to schools in the host community by UNHCR and other non-governmental organizations (NGOs).

Non-governmental/intergovernmental support 

The presence of refugees has led to NGOs setting up and running projects in the camps. According to Garissa County’s Integrated Development Plan, there are over 70 non-governmental organisations present, with the majority operating around the Dadaab refugee complex and within the host communities. The UNHCR estimates that it will require about US$149.6 million to run its operations in Dadaab Camp this year. However, as of May 2021, only US$45.6 million—31 per cent of the total amount required—had been received.

The decrease in humanitarian funding has had an impact on the livelihoods of refugees and host communities in north-eastern Kenya.  According to the World Bank, 73 per cent of the population of Garissa County live below the poverty line. In the absence of social safety nets, locals have benefited from the humanitarian operations in and around the camp. The UNHCR reports that about 40,000 Kenyan nationals within a 50km radius of the Dadaab refugee camp ended up enrolling as refugees in order to access food and other basic services in the camps.

In 2014, the UNHCR reported that it had supported the Kenyan community residing in the wider Daadab region in establishing over US$5 million worth of community assets since 2011. The presence of refugees has also increased remittances from the diaspora, and there are over 50 remittance outlets operating in the Dadaab camp, increasing economic opportunities and improving services. Using 2010 as the reference year, researchers have found that the economic benefits of the Dadaab camp to the host community amount to approximately US$14 million annually.

The UNHCR reported that it had supported the Kenyan community residing in the wider Daadab region in establishing over US$5 million of community assets since 2011 since 2011.

To reduce overdependence on aid and humanitarian funding in running refugee operations, the County Government of Garissa developed a Garissa Integrated Socio-Economic Development Plan (GISEDP) in 2019 that provided ways of integrating refugees into the socio-economic life of the community to enhance their self-reliance. The European Union announced a Euro 5 million funding programme to support the socio-economic development plan, thus opening up opportunities for development initiatives including income generating activities such as the flourishing businesses at Hagadera market. The recent announcement of the planned closure of the camp has put these plans at risk.

A voice

The host community is increasingly involved in issues that affect both the locals living around the Dadaab refugee complex and the refugees themselves, with the voice of the community gaining prominence in decision-making regarding the county budget and sometimes even regarding NGO operations. NGOs periodically conduct needs assessments in and around the camp to guide the budgeting and planning process for subsequent years and the host community is always consulted.

Interest in governance issues has also increased. For example, between 2010 and 2015 the host community successfully lobbied for increased employment opportunities for locals in the UNHCR operations. With experience in the humanitarian field, some from within the host communities have secured positions as expatriates in international organizations across the globe, adding to increased international remittances to Garissa County.

Health

Research reveals that, compared to other pastoralist areas, health services for host communities have improved because of the presence of aid agencies in Dadaab. Hospitals managed by Médicins Sans Frontières and the International Red Cross in Dagahaley and Hagadera respectively are said to be offering better services than the sub-county hospital in Dadaab town. The two hospitals are Ministry of Health-approved vaccination centres in the fight against the COVID-19 pandemic.

Despite the massive investments made in the health sector by humanitarian organisations in and around Dadaab, both UNICEF and the World Health Organisation have identified the camp as an entry point for infectious diseases like polio and measles into Kenya. There was a confirmed case of WPV1 (wild poliovirus) in a 4-month-old girl from the Dadaab refugee camp in May 2013. This is a clear indication of the health risks associated with the situation.

Researchers have found that the economic benefits of the Dadaab camp to the host community amount to approximately US$14 million annually.

Other problems associated with the presence of the camps include encroachment of the refugee population on local land, leading to crime and hostility between the two communities. These conflicts are aggravated by the scramble for the little arable land available in this semi-arid region that makes it difficult to grow food and rear farm animals, leading to food shortages.

While it is important to acknowledge that progress has been made in integrating refugees into the north-eastern region, and that some development has taken place in the region, more needs to be done to realise the full potential of the region and its communities.  Kenya’s security sector should ensure that proper measures are put in place to enhance security right from the border entry point in order to weed out criminals who take advantage of Kenya’s acceptance of refugees. The country should not expel those who have crossed borders in search of refuge but should tap fully into the benefits that come with hosting refugees.

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Pastoralist Communities Still Anxious About the Status of Their Land

Despite the enacting of the Community Lands Act of 2016, pastoral communities in Kenya have continued to be disadvantaged by the weak nature of their land tenure rights.

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Pastoralist Communities Still Anxious About the Status of Their Land
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Commended as a liberating provision of Kenya’s 2010 Constitution, Article 63 provides a legal basis for recognition, definition, and ownership of communal land. The Community Land Act gives life to Article 63 of the Constitution of Kenya 2010 by recognising, protecting, and providing for the registration of community lands.

The passage of the Community Lands Act (CLA) in 2016 increased expectations among the indigenous pastoralist communities of Kenya that the new law will not only help them secure their land but also reclaim all or part of the ancestral lands they lost to colonialists.

Four years after the adoption of the Act, there are more questions than answers over its implementation, success, and the challenges faced.

Rights and security of tenure

Previously, rights to customary tenure were limited to those of occupation and use. The law did not recognise other rights. Much of the literature has linked customary land tenure and use to environmental degradation (the tragedy of the commons), social conflict and food insecurity. Thus, the indigenous land tenure system has been perceived as inferior and an impediment to agricultural development.

In the new laws, the rights conferred by community land have equal footing in law as other previously recognised land tenures such as freehold and leasehold. The legislation upholds Article 40 of the Constitution of Kenya that grants all the rights to own property in any part of Kenya. The Act is progressive in promoting the rights of Kenyans everywhere, regardless of their different ways of life.

Under Section 4(1) the Act vests ownership of community land in the community. Community is defined as people sharing similar ancestry, culture, geographical/ecological space, or ethnicity. The CLA has vested ultimate responsibility to formalise the community rights in community stewardship. The procedure for registering “a community claiming an interest in or right over community land” is set out in section 7 of the Community Land Act and detailed in Part II of the Community Land Regulations.

The registration as provided under Section 7 of the Act involves a complex procedure of electing a community land management committee (CLMC) with a comprehensive register of communal interest holders. The committee then submits for registration to the Registrar the name, the members, and the minutes of meetings and rules and regulations of the community.

Upon registration, a title deed in the prescribed form is issued in the name of the community. Thereafter, the community under, the leadership of the CLMC, can plan the development and management of the community land and the natural resources on it.

The county government 

The county government is the trustee of all unregistered community land in Kenya. As a trustee, the county government has the responsibility of receiving and keeping in safe custody, on behalf of the community, any monies paid as compensation for compulsorily acquired community land and royalties paid as a benefit for the use of unregistered community land. The county government is also an active stakeholder in the registration process. The Act mandates the county to prepare and submit to the Cabinet Secretary an inventory of all unregistered community land within its jurisdiction to prepare a comprehensive adjudication programme and help in civic education on the registration process.

Threats to pastoral land 

Although there are no official records on the size of community land, a close guesstimate is that 60 per cent of Kenya’s landmass is primarily within 21 of the 47 counties. The surface area of Kenya is approximately 582,646km² of which 97.8 per cent is land and 2.2 per cent is water.

When we consider these statistics, Kenya’s community land stands at 341,897 km², excluding private and public lands. It is no secret that most community land is in the historically ignored, dry northern region of Kenya that is occupied by pastoralists.

Therefore, it is a moral imperative to assess whether the Act lays a foundation for security of tenure and more specifically whether it highlights the role of community land ownership in sustaining pastoral land resources.

Over the years, community land has been defined as un-owned or idle land. It is also often mistaken for government land, resulting in illegal grabbing. Moreover, the risk of pastoral and other indigenous communities being disinherited of their land and natural resources continues to increase.

The CLA is unhelpful in this regard as it allows the county government and the national government to set aside parts of community land to promote or upgrade in the “public interest”, a term that is ambiguous as it is not clearly defined. The result is that the term “public interest” has been used interchangeably with “public purpose” which the Land Act 2012 defines as the establishment of “physical infrastructure, roads, dams, national sports facilities, etc.”, leaving the door wide open by adding, “and for any other analogous public purpose”.

The risk of pastoral and other indigenous communities being disinherited of their land and natural resources continues to increase.

Considering the above, pastoralists in northern Kenya face imminent dispossession of their lands due to state-sanctioned mega-projects such as the Lamu Port, South Sudan, Ethiopia, Transport Corridor (LAPPSET). Although both the Constitution of Kenya 2010, CLA 2016, and Land Act 2012 guarantee compensation in good faith for the unregistered occupant as well as for registered owners in case of land expropriation for a public purpose, compensation for pastoralist will be non-existent or at best a mere token because of the Land Value Index Laws (Amendment) Bill 2016.

The bill proposes to limit compensation to the value of the structures and improvements made to the land. Under these circumstances, rural property owners are disadvantaged, and nothing will be forthcoming for land purposely set aside for grazing, as is the case in most pastoralist communities.

Loss of community land may also occur through the statutory right of the state to define new categories of public land.  Part of the existing public land that may not be transferred to the community includes lands prone to waterlogging, buffer zones around the national parks, and cultural sites of importance. Wetlands are critical dry season grazing areas for pastoralists and cultivation, and this provision extinguishes the ancestral claim to resources that are critical to their survival.

The National Land Commission may also identify public land that is available to investors. The CLA itself allows the National Land Commission to add to the list of local land types that may not be transferred to communities. All the above point to the risks faced by communities that assume that all their unregistered community areas are protected under the Act.

Challenges 

The CLA has vested the ultimate responsibility of community land registration in the community. This is unfair considering that the community is not sufficiently aware of the law and the land formalisation process. The procedures provided are complex for the comprehension of indigenous communities that have had little to no contact with government authorities in the past. There is a need to create an awareness of the Act to kick-start the registration process.

Poor or limited financial and technical capacity is the biggest impediment to implementing the Community Land Act. Ideally, community land registrars should be on the ground to educate and assist the communities with the registration process, but they are absent in most counties.

For example, in Isiolo, the registrar was only deployed in mid-2020, while some counties such as Marsabit and Samburu rely on registrars from other regions such as Isiolo or West Pokot.

The registration procedures require movement from one office to another, resources to mobilise community members for meetings, and advertisements on local radios to announce such meetings. These activities all have financial implications, but unfortunately, most counties have no budgetary allocation to support such activities; where these resources do exist, they are very limited.

The strength of CLA lies in its social inclusion, and the principle of non-discrimination. Decision-making on the formalisation of communal rights must be done in a fair, transparent and accountable manner. Procedurally, at least two-thirds of all adult members must participate, consent, or vote on actions and decisions. When a member or a section of the people disagree with the rest over a certain matter, they can lodge their complaint with the registrar or the courts and stall the registration process. This has, to some extent, over-empowered individuals at the expense of the majority or collective voice of the community.

Poor or limited financial and technical capacity is the biggest impediment to implementing the Community Land Act.

The disadvantage of this arrangement is that the registration process comes to a halt until the dispute is successfully determined. For example, the registration of the Merti community land (one of the registration units) in Isiolo hit a snag due to a dispute over the naming of community land.

The proposed name, “Nagele Borana”, was rejected by some of the members for fear that other non-Borana communities may be excluded from the community. Isiolo is inhabited predominantly by the Borana ethnic group, but other nomadic ethnic groups such as the Sakuye, the Gabra and the Somali are also present. There is the assumption that the use of the name of one community will exclude the other communities, and this has caused unnecessary tension and delays.

The support of the county government—the trustee of all unregistered community land—is limited by to many factors. Overlapping claims between county and national governments over certain lands create a setback in fast-tracking the process of formalisation. Kenya Defence Forces (KDF), for example, claims part of Isiolo County land as part of their land, leading to evictions from land that is part of the extensive communal land in the county. The forceful evictions by KDF have been triggered by the assumption that unutilised community land is government/free land. The Constitution of Kenya 2010 failed to discern the overlap between public and community lands and to put measures in place to protect communities from the dispossession of their land.

Success

While challenges remain, there are several bright spots, successes, and good practices across the 21 counties concerned. The first step for community land registration is civic education on the requirements and procedures. According to the Food and agricultural organisation (FAO) of United Nations, at least 24 counties have been sensitised on the CLA 2016 by the Ministry of Lands and Physical planning with the support of the Land Governance Programme funded by the European Union. However, this sensitisation drive only targeted the key decision-makers at the county level. There is a need for a serialised civic education campaign at the grassroots considering that rural people in these counties have had little or no prior contact with government authorities.

At least 10 counties have submitted the inventory of their community lands to the Lands and Physical Planning Cabinet Secretary as prescribed by law. These counties include Baringo, Turkana, West Pokot, Tana River, Isiolo, Wajir, Garissa, Mandera, Marsabit and Lamu. However, most of these inventories are not complete and there is need for follow-up with the counties for their completion. Five communities In Isiolo, namely Kalash, Lenguruma, Longobito, Sericho and Merti, are said to have initiated the registration process and are believed to be at the preliminary stages.

Laikipia and Samburu counties are trendsetters in community land registration in Kenya. In these two counties, a combined total of 24 communities have completed the election of their community land management committees and are ready for the transition. At least five former group ranches have successfully transited to community land and been issued with community title. Elsewhere, nine communities have also prepared for registration in West Pokot under the land governance programme that the FAO is implementing in partnership with the Ministry of Lands and Physical Planning. Even though transitioning from group ranches is straightforward compared to the registration of unregistered land, the progress made in these counties is a testament that community land registration is achievable with the financial and technical support of both government and non-governmental agencies.

Pastoral communities in Kenya have continued to be disadvantaged by the weak nature of their land tenure rights compared to other forms of tenure. Despite the constitutional provision that community land tenure is a lawful class of tenure on an equal footing with private and public land tenure, there is persisting anxiety that community land rights are not sufficiently protected or even restored under the CLA of 2016.

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