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MATING RITUALS: Fault lines in the donor-NGO relationship

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As Western donors make nice with the government and abandon Kenya’s vocal civil society organisations, can social media ride to the rescue of citizen activism? By RASNA WARAH

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MATING RITUALS: Fault lines in the donor-NGO relationship
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Prior to the 2013 general election in Kenya, presidential aspirant Uhuru Kenyatta and his running mate William Ruto employed a clever (and highly cynical) strategy that used to their “advantage” the fact that they were both indicted by the International Criminal Court (ICC) for crimes against humanity committed after the 2007 election. In a campaign that shocked much of the world – and left many dumbfounded – the duo presented themselves as “victims” of a flawed and racist international justice system and painted the election as “a referendum against the ICC”. Thanks to a well-oiled PR machinery (that included the likes of the controversial firm Cambridge Analytica), they were declared the winners of the election (albeit by a small margin that was contested by the opposition) because, not in spite, of the fact that they were indicted.

The UhuRuto election campaign also castigated non-governmental organisations (NGOs) – also known as civil society organisations (CSOs) – and the Western donors that funded them as “evil society”. Prior to the election, the United States Assistant Secretary of State, Johnny Carson, had warned of “consequences” if Kenyatta and Ruto vied for the presidency and the then British High Commissioner to Kenya, Christian Turner, had stated that if the two candidates’ Jubilee Alliance coalition party won the elections, his government would only maintain “essential contact” with its top officials. (This would all change after Uhuru Kenyatta became the president, but I will come to that later.)

Underlying the anti-West rhetoric was a sub-text that cast Western donors and the NGOs they funded as imperialists. Prominent NGOs that had questioned the legitimacy of ICC indictees running for the presidency were labelled as foreign stooges intent on disrupting the peace and on undermining the country’s sovereignty. (The attack on NGOs as imperialist lackeys seemed disingenuous and hypocritical, considering that Kenyatta’s family has vast business interests that are linked to Western capital and that he had even hired a British PR firm, BTP Advisers, to manage his 2013 presidential campaign and public relations. As professor Horace Campbell noted, the “pseudo anti-imperialism” of Kenyatta was so layered that it would have required a high level of sophistication to grasp the game-playing that was going on.)

Kenyan NGOs were among the first casualties of Jubilee’s unexpected election victory. Writing in African Arguments, Kenyan researcher Kennedy Opalo noted that “at some point in the election cycle they [NGOs] lost the support of a sizeable chunk of the middle class. The feeling of betrayal was hard to miss. The very people they had fought for had rejected their cause.”

This sense of betrayal was evident in Professor Makau Mutua’s weekly column in the Sunday Nation of 21 April 2013, in which he described the deep loss that he and his fellow civil society activists felt as “an existential moment”. Fearful that NGOs might not survive a Kenyatta government, Mutua, the chair and founder of the Kenya Human Rights Commission, stated that civil society activists felt “betrayed by a population they’ve always fought for”, adding that “engaging” and “dialoguing” with the new government would only serve to legitimise it, a notion he found hard to stomach.

Kenyan NGOs were among the first casualties of Jubilee’s unexpected election victory. Writing in African Arguments, Kenyan researcher Kennedy Opalo noted that “at some point in the election cycle they [NGOs] lost the support of a sizeable chunk of the middle class. The feeling of betrayal was hard to miss. The very people they had fought for had rejected their cause.”

Now, more than five years after it castigated Western donors and the ICC as racist imperialists and donor-funded Kenyan NGOs as the “evil society”, the Jubilee government, it seems, has not only mended fences with the West, but Western donors are falling over themselves to impress the government, perhaps in an attempt to secure lucrative infrastructure and other deals and to ensure their geopolitical interests in the region. After threatening all manner of “consequences”, including sanctions and “minimal contact” if the two candidates were elected, donor countries, notably Britain and the United States, have recanted their earlier positions. Given that Britain and the United States, in particular, have huge security and economic interests in the country and in the Horn of Africa, it is likely that their relationship with the Kenyan government is set to flourish. There is no more talk of Kenyatta’s and Ruto’s cases at the ICC (which were dropped due insufficient evidence, witness intimidation and state non-cooperation). Instead Western donors are working overtime to lend support to Jubilee’s development agenda – perhaps in an attempt to counter the increasing influence of China on the Kenyan government’s policies and programmes.

NGOs have thus been relegated to the back burner, making many civil society activists wonder whether all the talk by Western donors about good governance, accountability and human rights was mere rhetoric and not a desired or expected outcome of the donors’ engagement with them. And Western donors are back in the government’s saddle, much to the activists’ amazement and disbelief. They have not only gone on a charm offensive with the Jubilee government but they have also remained largely silent in the face of major corruption scandals that have characterised the Jubilee administration since it took power. NGOs that would have been more vocal about a mismanaged economy or human rights abuses are now struggling to get Western donors’ attention.

Meanwhile, high profile civil society activists who have been vocal critics of both Kenyatta and Ruto are slowly fading into the distance. Some NGOs have even been threatened with closure by the NGO Coordination Board, which has come up with spurious charges against them, an indicator that the space for civil society is likely to shrink further.

Mating ritual

But then why are we surprised by this turn of events? This “mating ritual”, as The Economist once described the relationship between Kenya and its Western donors, is hardly new. The government-donor relationship has undergone several incarnations, ranging from passive-aggressive non-cooperation to grudging accommodation to deliberate re-alignment. The mating ritual’s steps, to quote The Economist article published in August 1998, are as follows:

“One, Kenya wins its yearly pledges of foreign aid. Two, the government begins to misbehave, backtracking on economic reform and behaving in an authoritarian manner. Three, a new meeting of donor countries looms with exasperated foreign governments preparing their sharp rebukes. Four, Kenya pulls a placatory rabbit out of the hat. Five, the donors are mollified and the aid is pledged. The whole dance then starts again.”

In his book Liberal Democracy and the Emergence of a Constitutionally Failed State in Kenya, the Kenyan scholar Abdalla Bujra says that Western donors’ emphasis on “good governance” – and their funding of NGO activities that advance this agenda – is not so much premised on the idea that governments have to be democratic, accountable and participatory, but is “to ensure that foreign investors and large corporations conduct business quickly and efficiently in Kenya as well as to ensure that these investors and foreign companies get their maximum profit without having to share it with local elite through corruption”. (Could it be that one of the “rabbits” that Jubilee pulled out of its hat to placate the US government was the awarding of a large multi-billion-dollar contract to a US company to build a six-lane highway between Nairobi and Mombasa?)

In his book Liberal Democracy and the Emergence of a Constitutionally Failed State in Kenya, the Kenyan scholar Abdalla Bujra says that Western donors’ emphasis on “good governance”…is not so much premised on the idea that governments have to be democratic, accountable and participatory, but is “to ensure that foreign investors and large corporations conduct business quickly and efficiently in Kenya…”

Because some foreign aid is channelled to NGOs (ostensibly to exert the donor country’s “soft power”), NGOs in Kenya became inextricably linked to the “good governance” agenda advocated by Western donors and international financial institutions. Kenya’s “second liberation” from Moi’s autocratic rule was partly the result of donor-funded activities that allowed NGOs and their leaders to push forward their demands. As the Kenyan constitutional lawyer Wachira Maina has noted, “the extent to which local politics is often mediated by donors is remarkable”. Donors, Western donors, in particular, he says, “are the first organised group that the opposition in Kenya speaks to when it has an idea to sell”.

Donors thus, in effect, become “embedded” within Kenyan civil society, thereby indirectly exerting influence on the political landscape. Their support also ensured that NGOs promoted the kind of neoliberalism and democracy favoured by Western governments, which emphasises individual, rather than collective, rights, and repudiates notions of “popular power” based on the sovereignty of the people.   (It is important to note, however, that the bulk of bilateral donor aid to Kenya goes to the government; only a small proportion is channelled to NGOs, a fact that successive Kenyan governments have deliberately played down.)

In order to understand how the mating rituals between the Kenyan government and Western donors and between Western donors and NGOs work, it is important to look at how the government-donor-NGO relationship in Kenya evolved.

The evolution of the Kenyan NGO

The role of NGOs in Kenya has changed significantly since colonial times, when they were mainly philanthropic organisations focused on social welfare issues. While some aligned themselves with the anti-colonial struggle, and went on to form political parties and movements, by and large they remained apolitical. (In fact, many NGOs are required to remain non-partisan and apolitical to be eligible for donor funding.)

After independence in 1963, NGOs continued to do charity work, often working hand-in-hand with the government and the private sector in the spirit of harambee (self-help) popularised by the founding president Jomo Kenyatta. Rural communities, in particular, were encouraged to pool together their own resources to build schools, hospitals and other infrastructure – which in essence meant that the state abdicated its responsibility towards these communities and expected them to use their own money and labour to bring about “development”. The concept of “harambee” (which means to pull together) also got corrupted in later years as politicians fund-raised for and gave money to harambee projects in order to buy votes and influence constituencies.

However, in the early 1980s, when President Daniel arap Moi tightened his grip on the country after declaring the country a de jure one-party state, a number of underground organisations and advocacy groups emerged to oppose his leadership and to fight for the enlargement of the democratic space. This led to the growth of movements such as the proscribed Mwakenya and other pro-reform groups led by faith-based organisations and individual politicians.

The government’s antagonistic relationship with NGOs has its roots in this period when reformist politicians, intellectuals and activists began demanding greater freedoms and more democratic space. The Moi regime fought their demands by instituting draconian laws, arresting and torturing protesters and activists and disbanding or coopting social movements, such as farmers unions and women’s groups, including Maendeleo Ya Wanawake, the largest grassroots women’s group in the country. Some of these activists went on to form NGOs that later become leading voices in the human rights and democracy movement.

Ironically, the 1980s also coincided with a time when both the government and NGOs started to attract more donor funding, particularly after the Kenyan state began reducing investments in the social sector as required by the World Bank-International Monetary Fund-initiated structural adjustment programmes (SAPs). In an essay titled “The Depoliticisation of Poverty”, Firoze Manji says that the hardships precipitated by SAPs led to some serious re-thinking by official aid agencies and multilaterals on how to present their austerity programmes with “a human face”. Funds were set aside to “mitigate the social dimensions of adjustment”. In the late 1980s, therefore, official aid to Kenya began increasing, rising from $394 million in 1980 to $1.18 billion by 1990. Some of this funding went to the rapidly growing NGO sector, which was seen as more cost-effective, less bureaucratic and more efficient than the state.

SAPs thus enlarged the role and scope of NGOs. Privatisation and the reduced role of the state in service delivery led to a significant rise in the number of Kenyans who were “unserviced”. NGOs and faith-based organisations tried to fill the void left by the state – which did not necessarily lead to improved or expanded service delivery to the masses, but did give rise to many NGOs that focused on delivering basic services, such as health and education.

However, the austerity imposed by SAPs led to a rise in civil unrest and protests by leading opposition leaders, which triggered a backlash against the Moi regime in the early and mid- 1990s. The country’s economy was in shambles and hardships imposed by SAPs were fermenting increased dissatisfaction.

SAPs thus enlarged the role and scope of NGOs. Privatisation and the reduced role of the state in service delivery led to a significant rise in the number of Kenyans who were “unserviced”. NGOs and faith-based organisations tried to fill the void left by the state – which did not necessarily lead to improved or expanded service delivery to the masses, but did give rise to many NGOs that focused on delivering basic services, such as health and education.

By the late 1990s, Western donors’ relationship with the Moi government had also begun deteriorating. In order to pressurise Moi to institute political and economic reforms, donors began reducing the amount of aid given to the country. Figures for Kenya compiled by the World Bank show that official aid to Kenya increased dramatically in the late 1980s and early 1990s, but then began dropping in the mid-1990s. By 1999, official bilateral aid to Kenya had dropped to just $310 million, the lowest in two decades.

After Moi’s Kanu party was ousted in the 2002 election by a coalition led by Mwai Kibaki, some NGOs began focusing on issues that the Moi government had failed to tackle or had actually hindered, such as reparation for the victims of historical injustices and the creation of a progressive new constitution. On their part, Western donors, encouraged by the opening of the democratic space and the promise of political and economic reforms, began increasing funding to the Kibaki government and to NGOs; official development assistance (ODA) rose from $525 million in 2003 to $1.3 billion in 2007. This period also saw a rapid rise in the number of NGOs in Kenya, from just 125 in 1974 to more than 6,000 by 2008.

The post-Moi period also saw the co-option of prominent civil society activists and leading lights in the NGO sector into the Kibaki administration; many among them found themselves working for the new government either as elected members of parliament, senior civil servants or advisers. For once it seemed that civil society, NGOs, donors and the government were all on the same page.

However, the cosy relationship between NGOs and the government would change after the disputed 2007 election and its violent aftermath. NGOs dealing with civic education and advocacy found a new calling – that of promoting peace and reconciliation in a country that had become deeply polarised along ethnic lines. Corruption scandals in Kibaki’s first term had also re-energised NGOs that promoted good governance and transparency. The post-election period saw some NGOs and opposition groups intensifying their efforts to advocate for a new constitution (which Kibaki appeared reluctant to implement) that would address historical injustices and safeguard fundamental human rights. (After a lot of back-and-forth, a new constitution was eventually promulgated in 2010 through a nation-wide referendum.)

However, Kibaki’s stated “Look East” policy when it came to development finance, especially for infrastructure, threatened to topple the comfortable paternalistic relationship traditional Western donors enjoyed with the country’s leaders. The appeal of China was irresistible, not only because China did not impose stiff conditionalities on the loans it gave the country, but China’s engagement with Kenya, appeared (on the surface at least) to be mutually beneficial.

This “Look East” policy was further cemented by Uhuru Kenyatta, who barely three weeks after being inaugurated as president in April 2013, made an official visit to China to sign a $3.8 billion deal, most of it in the form of loans for infrastructure projects. (No one wondered how a deal of such magnitude and with so many implications for Kenya’s economy could have been made just days after Kenyatta assumed the presidency, given that bilateral deals of this nature often take months to negotiate.)

Kenya’s love affair with China has blossomed under Kenyatta, much to the detriment of the ordinary Kenyan citizen who is burdened with huge Chinese debts and excessive taxation to service these debts.

The Chinese Communist Party, it seems, has also infected the Jubilee government with an intolerance for dissenting voices. Several NGOs have been threatened with closure, and activists who criticise the government have been vilified on social media by an army of bloggers operating from State House.

The Kenyatta government, like its Chinese counterpart, is also clamping down on the media. In January this year, three TV stations were shut down for almost a week after they aired the “parallel” inauguration ceremony of opposition leader Raila Odinga as “the People’s President”. The Jubilee government is also financially starving media houses by depriving them of advertising: the government’s new MyGov portal that carries all government advertising has deprived many media houses of up to 30 per cent of their advertising revenue. Some newspaper editors have decided to toe the government’s line; there is a feeling that many editorial and management decisions are being made at State House. In March this year, eight columnists working for the Nation Media Group (including myself) resigned due to what we described as “state capture” of the media house.

Intellectual and financial dependency

Some of the problems that NGOs face in the current hostile environment are of their own making. Over-reliance on foreign (mostly Western) donors has created fault lines within the NGO sector which the Jubilee government has fully exploited. Data from the Kenya National Coordination Board shows that more than 90 per cent of Kenyan NGOs’ funding comes from international sources, with only 1 per cent derived from the government. This fact, argues Shadrack W. Nasong’o, raises questions regarding Kenyan NGOs’ independence:

“The reliance of CSOs on external sources of financial support forces them to strive to win the approval of Western donors, lenders, nations and international monitors, rather than the loyalty and support of domestic constituencies, turning them into programmatic appendages of international funding agencies. Given this reality, most of these organisations are unable to effectively counter accusations that they are in the service of foreign rather than local interests. The organisations’ external linkages directly impinge on their agendas and performance.”

Also, as mentioned earlier, NGOs only get the crumbs from the donors’ table: the largest proportion of bilateral donor aid to Kenya has always gone to the state – after all, that is the raison d’être of international development assistance. Given that donor priorities change with the changing priorities of their governments, over-reliance on foreign donor funding can leave NGOs cash-strapped when they least expect it.

Nasang’o further says that NGOs’ contribution to democratisation and popular participation may just be “incidental” rather than “fundamental” because they lack grassroots support; most NGOs are Nairobi-based and speak the “language of donors”, which may not necessarily reflect the needs and desires of social movements and grassroots organisations, such as cooperatives and farmers’ unions. Having no popular grassroots support, many of these NGOs die when their primary funding source vanishes or when donor priorities shift to other areas.

Some of the problems that NGOs face in the current hostile environment are of their own making. Over-reliance on foreign (mostly Western) donors has created fault lines within the NGO sector which the Jubilee government has fully exploited.

Moreover, because they are heavily dependent of Western donors, who come with their own biases and agendas, few of these NGOs are able to assert their independence on the kinds of projects they want to implement. By succumbing to the “language of the donors”, they lose their intellectual independence, as the constitutional lawyer Wachira Maina highlighted in an article published in 1998:

“The language of political reform in Africa is a language generated by donors. Terms like ‘empowerment’ and ‘aid-re-engineering’ are part of the lexicon of the aid business, this language figures prominently in the proposals of local NGOs and in their presentations at seminars. One wonders whether this language can be used among civil society groups in rural Kenya. Even more worrying are suspicions that this dependency on donor language is perhaps part of a larger intellectual dependency…In this regard, it is revealing that key actors in civil society in Kenya, such as cooperatives, farmers and informal groups, hardly ever figure in the reform debate in spite of their obvious power and influence. More remarkably, even when they demonstrate their power to extract concessions from the State in a manner that the more donor-friendly organisations are unable to accomplish, they remain outside the mainstream”

Further, the “professionalisation” of the NGO sector may have hindered the growth of grassroots “Arab Spring” movements made up of ordinary citizens. As Maina has noted, NGOs often reproduce the cleavages in their society; many of the disenfranchising power structures and corrupt practices of government are replicated in the NGO sector because many NGOs’ main aim is not to bring about a fundamental change in society but to ensure their own survival.

In addition, donors’ and NGOs’ focus on “development”, rather than on social justice, ends up “depoliticising” the root causes of poverty and underdevelopment , as Firoze Manji explains:

Far from helping to overturn the social relations that reproduced injustice and impoverishment, the main focus of development was to discover and implement solutions that would enable the victims to cope with, or find ‘sustainable’ solutions for living with impoverishment…Central to this paradigm was to cast ‘poverty’, rather than social justice, as the main problem facing ‘developing countries’. The victims of years of injustices, whose livelihoods had been destroyed by years of colonial rule, were now defined as ‘the problem’, and once so defined, provided the stage set for the entry of the development NGO to participate in the process of depoliticising poverty.”

Manji says that NGOs face a stark choice: either they reinforce the social relations that reproduce poverty, injustice and conflict or they play a positive role in overturning those relations by empowering (for lack of a better word) and giving a voice to those who remain unheard and by helping the poor and the marginalised to accurately diagnose the causes of their poverty and underdevelopment. The latter choice could give rise to a true people’s movement aimed at liberating entire societies from the clutches of retrogressive and authoritarian structures and unjust social and economic systems.

However, the reality is that any hope of a people’s movement has been severely diminished by the “handshake” between Kenyatta and the opposition leader Raila Odinga in March this year. This so-called rapprochement has taken the steam out of many NGOs and opposition groups. For those who spent the better part of the last five years fighting a government they feel is both illegitimate and unethical, the handshake was like a slap in the face. There is a feeling that the handshake was not about ending hostilities between the government and the opposition but about the sharing of state goodies between the president and opposition leader. What deal was struck between the two leaders remains a mystery.

Western donors, on the other hand, perceive the handshake as a mark of success – a shining example of how warring parties in Africa can achieve peace and reconciliation through dialogue. (Note: the “dialogue” that took place between Kenyatta and Odinga was private, was not made public and civil society was not invited to participate in the discussions.) Donors are back in the business of “development” – and government contracts for infrastructure and other projects (including arms deals) that benefit the donor country. Security and the “war on terror” are also likely to remain priority funding areas in the near and distant future.

However, the reality is that any hope of a people’s movement has been severely diminished by the “handshake” between Kenyatta and the opposition leader Raila Odinga in March this year. This so-called rapprochement has taken the steam out of many NGOs and opposition groups. For those who spent the better part of the last five years fighting a government they feel is both illegitimate and unethical, the handshake was like a slap in the face.

With donors no longer interested in actively promoting the good governance and human rights agenda, it is likely that many NGOs will struggle to remain relevant. It is also possible that the nature of the donor-NGO relationship will shift, focusing more on basic needs and service delivery, rather than human rights and governance issues, as it did in the 1990s. With a new set of austerity measures in place, including punitive new taxes (courtesy of the IMF) NGOs may once again be called upon to be the “human face” of hardship.

The idea of having “People’s Assemblies”, and more participatory forms of governance, as proposed by the opposition’s strategist David Ndii, has also died as a result of the handshake between Odinga and Kenyatta. Moreover, the concept that people should be allowed to make decisions about their own welfare – a key principle of devolution that led to the formation of 47 counties – has been tarnished by incompetent and corrupt county governments that are replicating the dysfunctions of the national government. The return of Moi-ism in a different – and perhaps more lethal – garb has set the country back by several decades. However, unlike in the Moi era, NGOs working on issues related to human rights, democracy and good governance are today not likely to find a friendly face at a Western embassy.

Enter social media

The good news is that citizen activism is growing. Tired of opposition politicians who are increasingly being viewed as self-centred and opportunistic and lacking in moral fibre and conviction, the 1.5 million Kenyans on Twitter (KOT) and 5 million Kenyan Facebook users may be the ones who bring about much-needed needed social change. Kenya’s mobile penetration is nearly 90 per cent, which means a large proportion of the population has access to the Internet via smartphones.

Many campaigns, such as the one to switch off Kenya Power, the country’s only electricity supplier, have been initiated using the social media platform, sometimes with positive results. Kenyan social media users have been credited with spearheading the campaign to release the Ugandan politician and musician Bobi Wine from detention. KOT have highlighted issues to do with corruption in government, exorbitant or illegal taxes, and incompetent county governments, among others. Such digital movements may still be urban-based and English-speaking, but they do point to a future where ordinary citizens are becoming more vocal and visible about what they want from their government – that is, if the government does not implement draconian laws to stop their voices from being heard (which it has tried to do through at least three laws, but which the courts have rejected on the grounds that they curtail freedom of expression guaranteed by the constitution).

Other environmental and community-led groups, such as those opposed to the building of a coal-powered plant in Lamu, and fact-checking “digital warriors” who monitor or counter false government propaganda or hate speech, are also emerging. Such individuals and groups no longer feel the need to be mediated by NGOs, which is a good thing as it could eventually lead to a groundswell of grassroots social justice movements across the country. 

Note:

Civil society organisations are generally defined as formal or informal groups that operate in the realm between the individual and the state, and include non-governmental organisations (NGOs), community-based groups, neighbourhood associations, trade unions, charities and faith-based organisations. For the purposes of this article, I have used the term non-governmental organisations (NGOs), which are formal, registered entities that have a national public interest, developmental, social welfare or advocacy function, and which operate largely outside the state, and quite often, in opposition to it. I am not referring to networks, movements or associations that operate informally or outside the law, or which are deemed illegal by the state. Nor am I referring to community-based organisations (CBOs) whose activities are focused at the local community level. 

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Rasna Warah is a Kenyan writer and journalist. In a previous incarnation, she was an editor at the United Nations Human Settlements Programme (UN-Habitat). She has published two books on Somalia – War Crimes (2014) and Mogadishu Then and Now (2012) – and is the author UNsilenced (2016), and Triple Heritage (1998).

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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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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The African Union and the ICC: One Rule for Kings, another for the Plebs

The African Union complains that the International Criminal Court is biased only when an African head of state stands accused.

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During the five-year-long proceedings at the International Criminal Court (ICC) against former Ugandan rebel commander Dominic Ongwen, there was not a peep from the Ugandan government about the ICC’s bias against Africans.

Uganda’s President Yoweri Museveni did not show any such restraint towards the ICC when he was the chief guest at the April 2013 inauguration of then newly elected Kenyan President Uhuru Kenyatta.

“I was one of those that supported the ICC because I abhor impunity. However, the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution,” Museveni said in his 9 April 2013 speech. The actors he made indirect reference to were unnamed Western countries.

Museveni accused those actors of using the ICC, “to install leaders of their choice in Africa and eliminate the ones they do not like.”

At the time Museveni spoke, Kenyatta and his deputy William Samoei Ruto were due to face trial at the ICC. The case against Kenyatta was terminated in March 2015 before trial hearings began. Ruto’s case was terminated in April 2016 after the prosecution had called its witnesses. In a majority decision, the judges said the case against Ruto and former journalist Joshua arap Sang had deteriorated so much that they could not determine Ruto’s and Sang’s innocence or guilt. The judges said the case deteriorated because of a campaign to intimidate and bribe witnesses.

No sense of irony

During the April 2013 inauguration of Kenyatta, Museveni exhibited no sense of irony when he accused unnamed actors of using the ICC to eliminate leaders they did not like. By the time Museveni was making his speech, his government had already debated and agreed to use the ICC as one way of “eliminating” its problems with the Lord’s Resistance Army (LRA) rebel group in northern Uganda. In December 2003 Uganda formally asked the ICC to investigate the atrocities committed in northern Uganda.

Following that formal request, Uganda shared with the ICC’s Office of the Prosecutor (OTP) several years’ worth of recordings of the government’s intercepts of LRA radio communications. Together with those recordings, the government also gave the OTP the contemporaneous notes made of the intercepts. On top of that, the government also gave the OTP a list of 15 LRA leaders it believed were responsible for the atrocities committed in northern Uganda.

All this emerged during the course of Ongwen’s trial at the ICC for his role in atrocities committed between 2002 and 2005 in northern Uganda. Ongwen, a former LRA commander, was convicted of 61 counts of war crimes and crimes against humanity in February this year and was sentenced to 25 years in prison in May. Ongwen is in the process of appealing against his conviction and sentence.

In his April 2013 speech, Museveni acknowledged that his government had cooperated with the ICC. “We only referred Joseph Kony of LRA to the ICC because he was operating outside Uganda. Otherwise, we would have handled him ourselves,” said Museveni. This statement is only partly true.

When in December 2003 Uganda formally requested the ICC to investigate the atrocities committed in northern Uganda, Kony was based in what is today South Sudan. But he was there with a small group of senior LRA commanders and other LRA members. During Ongwen’s trial, the court heard that by the time Uganda made its referral to the ICC, most of the LRA’s commanders and members had left the group’s rear bases in then southern Sudan and crossed the border back into northern Uganda. This is because Uganda had reached a deal with Sudan that allowed it to cross the border and attack the LRA’s rear bases. Uganda called this military offensive Operation Iron Fist.

African leaders protecting each other

The Ugandan government’s actions may seem contradictory but they fall well within the pattern African leaders have adopted when it comes to the ICC. Whenever there has been a case against an African president or deputy president at the ICC, this has been discussed at the African Union. As for ICC cases against other Africans, the African Union has not discussed them or passed resolutions on them, even if those cases involved former presidents or vice presidents. Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.

Ever since, in July 2008, the OTP applied for an arrest warrant against then Sudanese President Omar al-Bashir in connection with the atrocities committed in Sudan’s western region of Darfur, the ICC has been on the agenda of the regular African Union meetings of presidents and prime ministers. ICC pre-trial judges eventually issued two arrest warrants against al-Bashir in March 2009 and July 2010.

African heads of state and government usually meet twice a year as the summit of the AU. Between 2009 and 2020, at each of those summits, they passed resolutions on the ICC or they reaffirmed past resolutions on the matter and directed a ministerial committee to follow up on those resolutions. The resolutions African leaders have passed at these summits have called for the termination or deferral of cases at the ICC implicating serving heads of state or their deputies.

Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.

None of the resolutions has mentioned any of the other cases that have come before the ICC such as the one against Laurent Gbagbo, Ivory Coast’s former president, or the one against Jean-Pierre Bemba, a former vice-president and senator of the Democratic Republic of Congo. The ICC has concluded the cases against Gbagbo and Bemba, acquitting both of them.

The African Union has not been the only critic of the Africa-bias in case selection at the ICC. Academics, lawyers and members of civil society have all criticised or highlighted this bias. But the African Union has been the loudest critic. And what the African Union has said on the issue has often been summarised to mean Africa is against the ICC.

Presidents have immunity, ok?

But this paring-down a complicated issue has blurred the African Union’s two-track approach in its relationship with the ICC. Whenever a head of state such as Sudan’s Omar al Bashir is the target of an arrest warrant, the African Union is strident in its criticism of the court. After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.

Instead, the AU has now turned its focus on the issue of the immunity of heads of state and other senior government officials. Under the Rome Statute, head of state does not have immunity if that person is charged with a crime under that Statute. What’s more, the ICC regularly communicates with member states when the court has been informed that a person for whom there is an outstanding arrest warrant is traveling to those member states.

This was the case with al-Bashir when he was Sudan’s president. Some countries chose to ignore the ICC’s communication. Others advised al-Bashir not to travel to their country and risk arrest. And some have argued they could not arrest al-Bashir because he was in their country to attend an international meeting they were hosting and that, under international customary law, al-Bashir enjoyed immunity for the purpose of the meeting. This is what South Africa and Jordan argued when the issue of immunity for heads of state was litigated before the ICC.

The most recent AU summit resolution on the ICC was issued in February 2020. In it, AU member states are called on to “oppose” the ICC Appeals Chamber judgement in a case Jordan had filed. The resolution said the decision by the ICC Appeals Chamber was, “at variance with the Rome Statute of the International Criminal Court, customary international law and the AU Common Position.”

The judgement referred to in the AU resolution dealt with the question of whether Jordan, as an ICC member, should have arrested al-Bashir when he went to Jordan in March 2017 to attend a regular summit of the League of Arab States. The ICC Appeals Chambers was unanimous that Jordan should have arrested al-Bashir when he visited that country.

After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.

The five-judge panel also agreed that customary international law gave heads of state immunity in certain circumstances such as immunity from another country’s jurisdiction. But the Appeals Chamber concluded that such immunity did not extend to executing ICC arrest warrants.

The AU’s call to oppose the ICC Appeals Chamber’s May 2019 judgement on Jordan ignores one thing: the AU made submissions to the Appeals Chamber before it reached its judgement. The AU made its submissions at the invitation of the Appeals Chamber. The AU’s chief lawyer, Namira Negm, led the team that argued its submission during the hearings on the Jordan case that were held between 10 and 14 September 2018.

In the February 2020 resolution, the AU also asked African members of the ICC to raise before the court’s membership issues that concern African states such as “the rights of the accused and the immunities of Heads of State and Government and other senior officials.” The resolution further asked African members to “propose necessary amendments to the Rome Statute within the ambit of the ongoing discussions on the reform of the ICC,” by its membership.

Making peace without al Bashir

One reason the AU gave against effecting the arrest warrants against al Bashir was that he was key to bringing peace to Sudan’s western region of Darfur. The AU was involved in negotiations for peace in Darfur, a process that has been on and off over the years. Ironically, once al-Bashir was removed from power in April 2019, the transitional authorities who replaced him were able to initiate and conclude peace deals on the Darfur conflict last year.

In August this year, the Cabinet in Sudan resolved to hand over al Bashir to the ICC in execution of the two arrest warrants against him. This is a significant step since the transitional government took office in 2019 and indicated that Sudanese authorities were considering reversing the previous position that al Bashir would not be handed over to the ICC. The next step is for the overall transitional authority in Sudan, the Sovereignty Council, to discuss the Cabinet decision and decide whether to endorse it.

Ignoring victims

The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent. When a conflict is at its peak, victims will receive emergency aid. The more prolonged a conflict becomes, the less aid victims receive. Rarely will such aid be from the victims’ government. And often that foreign-donated aid is all that victims of conflict can expect.

The perpetrators of the conflict that made them victims are rarely held to account for the atrocities they committed. Yet, victims live with the consequences of those atrocities for the rest of their lives. This was the constant refrain of the victims of the northern Uganda conflict who testified during the Ongwen trial.

The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent.

Women testified about their families rejecting them because they returned home with children they gave birth to while with the LRA. One person testified about having to change schools several times because teachers and students abused him when they found out he had been in the LRA. Another person testified about wanting to resume his education that was interrupted when he was abducted by the LRA but he did not earn enough to do that and also educate his children. So he has focused on educating his children.

These and other victim stories are rarely spoken about whenever the ICC is criticised of having an African bias.

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