I was in the second year of my Master of Divinity programme at Princeton Theological Seminary when agents of the U.S. state executed Eric Garner and Michael Brown. The murders of these two young black men and the subsequent determination by the state that the killers were in the right had ignited a fiery political activism in me and in my fellow students. I remember that it was so fiery that it was a source of warmth while we protested in the bitter cold.
Every consecutive killing thereafter was like throwing a log into a bonfire. I also remember the struggle of trying to conceive of a theology where God and God’s Christ could be found in the tragic wake of the age-old practice of state-inflicted violence against black bodies. But most of all, I remember something very startling about the rhetoric employed by activists, myself included: our frameworks for achieving justice presupposed that the state’s existence and its claims to authority over our lives were legitimate. Or, at the very least, we assumed the state was a necessary evil through which we could do pragmatic work.
We imagined that more representation in multiple levels of government would be key to our salvation. “If we have the right people in government, the oppressed would be treated right,” we would exclaim.
But let us ask ourselves: What if the global political discourse is so colonised that our imagination of liberating oppressed peoples has been limited to participating in the very systems that oppress people in the first place? In other words, what if we have been conditioned to think that every vision of liberation must include the iteration of a state? Moreover, what if Jesus Christ challenges us to not work with the state, but to subvert it?
The state is illegitimate and unnecessary
I contend that the state – as an entity that claims to possess a monopoly over the use of legitimate coercion (i.e. violence) – is illegitimate and is unnecessary for achieving liberation for the oppressed. Anarchy can replicate every function of the state in a more effective fashion without its coercive elements through a voluntary and cooperative effort. It is within this space that the apocalyptic Christ dares us to imagine liberation not as another iteration of coercive power, but one of anarchy, which rejects the domination and subordination of human beings.
I contend that the state – as an entity that claims to possess a monopoly over the use of legitimate coercion (i.e. violence) – is illegitimate and is unnecessary for achieving liberation for the oppressed.
When I talk about the “state,” I’m referring to the general idea of “state-ness” in all its iterations, whether in America, Kenya or Malaysia – an entity that claims to possess a monopoly over the use of legitimate coercion. So, when we say that the state is illegitimate, we mean both its possession of a monopoly over coercion, and its actual use of coercion, are illegitimate.
What are some of the justifications for the state’s claim to power, and how can we deconstruct them?
One argument that defends the legitimacy of state power is that individuals in society have voluntarily consented to it. If individuals do not consent to the state, then it is illegitimate. Obviously, very few have consented to the state under which they live. Most people find themselves citizens of whatever country they happen to be born in, so have they actually consented to live under that jurisdiction? To make things worse, many of today’s nation-states are the creation of colonial powers, which simply enclosed various ethnic groups into a single territory while splitting others into two or more states.
In order to solve this crucial problem, John Locke, a 17th century political philosopher, invented the concept of “tacit consent”. Locke’s argument infers consent from silence; that merely walking on a highway in a country, for example, gives tacit consent to that country’s government. This clearly betrays the actual meaning of consent as a deliberate, voluntary act – for something to be consensual there must be the freedom to refuse. With such a misuse of language and logic here, we cannot help but conclude that the state is illegitimate with respect to the individuals who have not voluntarily consented to it.
Another justification for the state may be the nature of humankind and the conditions under which people live. We could argue that the state is necessary to remedy human beings’ violent, greedy and self-destructive ways; to ensure the welfare of the poor, the sick, the uneducated, and so on. Let’s say the nature of humankind is indeed deplorable. The false reasoning occurs, however, when observations about society’s condition are divorced from any culpability of the state. This assumes that society’s condition is in no way a by-product of the state’s current influence.
Nevertheless, let’s say that humankind is inherently violent, greedy and untrustworthy. The conclusion that the state is the logical remedy for this condition is unfounded because the state’s government is comprised of these same inherently violent, greedy, untrustworthy humans. Therefore, giving the state a monopoly over coercion is to centralise and magnify humankind’s worse traits (violence, greed, deception, etc.) and to concentrate power in the hands of a few who unleash deadly force, “legitimately”, with a claim to moral superiority. As such, oppression is legitimised as a natural consequence of statehood.
Nevertheless, let’s say that humankind is inherently violent, greedy and untrustworthy. The conclusion that the state is the logical remedy for this condition is unfounded because the state’s government is comprised of these same inherently violent, greedy, untrustworthy humans.
Another argument for the necessity of the state is to establish justice. Locke believed that an impartial system of justice is needed to avoid a vengeful society where everyone has a right to punish. Whether Locke was working from a high or low view of humankind’s nature is irrelevant. (The “high view” sees humans as naturally rational beings who are prone to peace and order. The “low view” sees humans as a naturally ignorant bunch who are prone to war and chaos.) If it was a high view, a coercive system would still be unnecessary to deal with matters of justice because such people would not need to be coerced into doing the right thing.
If it was a low view, a coercive system would still be unnecessary for two reasons. First, as mentioned before, the system would be totally comprised of partial members, and an impartial system made up of partial creatures can never be impartial. Ascribing traits to the state that are not found in its human agents appears ludicrous. If humankind is partial and self-interested, the system naturally devolves into the same, no matter the intentions.
Second, if human beings are really an ignorant and violent bunch, wouldn’t the injustices perpetuated by the state’s “justice system” (since the system is comprised of partial creatures) cause ordinary people to pursue their own private justice in a vengeance system? And if they pursue their own justice because of injustices perpetuated by the state, what is the point of granting the state a monopoly over legitimate coercion in the first place? It appears, then, that a state would be unnecessary.
A final argument for the necessity of the state is social coordination. The argument is that in a land where resources belonging to or affecting the whole of a community are limited, there is a need for coercion to ensure that individuals do not use their liberty to deplete these resources. This argument presupposes that a mutual agreement for a quota is ineffective because one’s own integrity has to be weighed against the possibility that others are forsaking the agreement – a situation that does not yield any foreseeable benefit to the individual. Therefore, depletion (a tragedy) occurs. It means that a coercive force is needed to counteract the self-interests of members of the community and to stave off the assured destruction from everyone’s greed and duplicity.
The problem with this argument is that it assumes that such a coercive force acts without self-interest. As long as this coercive force is comprised of individuals who live in the community and who each share a particular interest for themselves and for their families to have access to the resources (and not comprised of foreigners who have no vested interest in the resources), it follows then that this coercive force would be a small conglomerate of interests that ultimately have the authority to dismiss the interests of the general public, or who can be swayed by special interests that go against the interests of the general public. In other words, the state becomes an apparatus by which a particular interest for a particular individual or group is championed with complete legitimacy. (We are familiar with the results of this from government corruption scandals all around the world.) And if the coercive force is not greedy and selfish, but is benevolent and responsible, then why can’t this attribute be extended to the individuals that it purports to represent? In other words, if the enforcers can be trusted, why can’t the members of the community who are cooperating be trusted?
My view is that the very institution of the state betrays its key institutional goals of liberty, justice, and peace. This vehicle is unnecessary as well as inefficient because while seeking to protect liberty it forces liberty to be relinquished; while seeking peace it goes to war against individuals with its monopoly of coercion; while seeking justice it is only those who are most valuable to the state’s interests (i.e. the rich and powerful) who find it. Does much have to be said about the “tragedy of the state” in the twentieth century during which democide occurred in insane proportions?
The key to all these tragedies is revealed in the fact that the very notion of a coercive hierarchical arrangement is to propose a stratification of human equality across a matrix of domination. The tyrannical propensities of the state are embedded, then, within hierarchical subordination. It is the underlying reason why the enforcers of a quota, located at the top of the hierarchy, can be trusted (with resources, weapons, power, etc.) while the community, at the bottom, is suspect.
Ultimately, we must look beyond the state to arrive at a virtuous condition—to arrive at liberation.
The key to all these tragedies is revealed in the fact that the very notion of a coercive hierarchical arrangement is to propose a stratification of human equality across a matrix of domination. The tyrannical propensities of the state are embedded, then, within hierarchical subordination.
The word “anarchy” typically conjures up images of fire, savagery, and destruction. In common parlance it is synonymous with chaos, and is antithetical to civilisation. However, this characterisation is probably a legacy of colonial thought, which sought to justify the imposition of rule over indigenous populations who lived in communal settings. Such communities were thought to be savages by European scholars, among other reasons, because they did not form a state—indeed, they were “stateless societies”.
These societies (and there were many in pre-colonial Africa) represent anarchistic precedents in the African continent. How ironic that the imposition of coercive government (read: colonialism) carried with it the greatest acts of savagery and destruction against such societies.
The word anarchy originates from the Greek an – (“without”) – archy (“rulers”). It does not mean to be without laws or without government. It simply means a society that lacks the coercive elements of a state. Anarchists do not propose an orderless society, but one where order arises from voluntary cooperation and self-ruling communities. I personally like Bertrand Russell’s description of anarchy:
“[It is] the theory which is opposed to every kind of forcible government. It is opposed to the state as the embodiment of the force employed in the government of the community. Such government as anarchism can tolerate must be free government, not merely in the sense that it is that of a majority, but in the sense that it is assented to by all.”
Within Russell’s description is a critique of the cherished democratic system where the will of the majority is forced upon the minority. Analytically, we know that this arrangement produces oppression; when we look around the globe, minorities in various democratic governments are suffering at the hands of the majority because they lack participation in the decision-making process, and sometimes even lack recognition by their respective institutions of government. Even those who are numerically in the majority are often held hostage by a cabal of private interests that have a monopoly over state power.
I do not pretend that anarchy does not have its valid critiques. And, for the most part, historically, anarchy as a revolutionary concept has been an abysmal failure. Like most philosophies, anarchism lacks a transcendent element by which the population may be energised into action. I believe that the person of Jesus Christ—that apocalyptic prophet—offers a framework from which to imagine such action.
The apocalyptic Christ
When we refer to Jesus as the “apocalyptic Christ” we are, of course, drawing from the contributions of historical Jesus scholarship, which posits that Jesus was an apocalyptic prophet whose message primarily concerned the imminent end of the world (i.e. “age” Grk: aion). In historical Jesus scholarship, this message is over and above his message of being the Messiah, which some scholars (for example, Marcus Borg and Robert Funk) assert that he never preached. I call him the apocalyptic Christ instead of the apocalyptic prophet because I believe that his apocalyptic message naturally indicates his Messianic identity.
When Jesus preached, “The time has come…the kingdom of God has come near. Repent and believe the good news!” (Mark 1:15, NIV), he invited his Jewish audience to imagine salvation through destruction, but this was with nuance.
A prominent number of Jews conceived the coming of the kingdom of God as a time where the Messiah would assume his kingship and destroy the occupational forces of enemy Rome. Jesus was a poor Judean labourer turned itinerant preacher under the rule of Rome. During this time, Rome was in Pax Romana (“Roman Peace”), where the empire enjoyed relative tranquility in the provinces over which it ruled. So, when Jesus says, “the kingdom of God has come near,” it conjured up thoughts of the Messiah about to come and physically cast the yoke of the Roman government from their necks and install his own empire with the same coercive elements as the former. However, as some with even a cursory understanding of Christianity might know, Jesus was quite disappointing to this apocalyptic imagination in that literal sense.
The apocalypticism of Christ was more comprehensive; it not only signaled the destruction of Roman power but it allowed his followers to imagine the breaking down of elite Jewish power as centred at the Temple. We understand that the Temple power network was controlled by the priestly aristocracy who enjoyed excesses by capitulating to Roman influence and power. They used their prestige to oppress the Jews of Judea as well as visiting pilgrims from around the Roman Empire. Where the Temple and its worship of God was supposed to bring the nation together in unity, the Temple power elites found a way to exploit lower class Jews by setting up money-changers (i.e. a capitalist system) in the outer courts of the Temple to which Jesus responded by making a whip of cords and driving them out (John 2).
So, Jesus’s message to “repent because the kingdom is near” is violent rhetoric aimed at the destruction of the system in which his Jewish audience was situated both domestically and abroad. It was a challenge to both the Temple priesthood and the kingship of Caesar. Towards the end of his ministry, Jesus’s message went from the kingdom of God “is near” to the kingdom of God “is within you” (Luke 17:21). This nuance invites his audience to imagine breaking up these institutions and taking away their centralised power, and not replacing them with a similar coercive system of capitalism and state power, but with a system that is disseminated and entrusted within his very audience. This means that the territory and breadth of the kingdom in this new world will not be confined to physical land or be dependent upon resources like in a capitalist framework but will be wholly in the confines of the human being. It means that the kingdom of God is the agency and autonomy of every human being.
So, Jesus’s message to “repent because the kingdom is near” is violent rhetoric aimed at the destruction of the system in which his Jewish audience was situated both domestically and abroad. It was a challenge to both the Temple priesthood and the kingship of Caesar.
Most scholars would agree that Jesus was executed by the Roman state for being a political threat to Caesar and the Roman Peace. The Scriptures say that while he was on the cross, the Temple curtain, which kept ordinary people from the space where God was dwelling (the Holy of Holies), was torn in half by destructive earthquakes (Matthew 27:51). This description invited early Christian communities to imagine that the execution of Jesus via state power incited God to break the hierarchical barrier separating the masses from God, where God would no longer be centralised and hidden away for the enjoyment of a few elites. This decentralising and disseminating force declares that the powers that be were illegitimate; and, vests the human being, every human being, with a sacred majesty characterised by agency and autonomy. Our bodies become the temple and empire of God and thus the jurisdiction of God. Therefore, no state can legitimately encroach or impose its power upon the sacred—the human being. It is a merging of both flesh and spirit, which elevates the once downtrodden and oppressed into a position of power, not to coerce but to extend the voluntary divine community.
“All the believers were together and had everything in common. They sold property and possessions to give to anyone who had need. Every day they continued to meet together in the temple courts. They broke bread in their homes and ate together with glad and sincere hearts.” (Acts 2:44-46, NIV).
“All the believers were one in heart and mind. No one claimed that any of their possessions was their own, but they shared everything they had.” (Acts 4:32).
The apocalyptic Christ challenges us today to be steadfast with the message against state power and really, all coercive arrangements in whatever forms they appear. His apocalypticism allows us to imagine liberation not as synonymous with installing coercive state power, or even participating within the state, but rejecting coercion altogether as an affront to the sacredness of individual human beings and the rule of God. We may declare not that the kingdom of God is coming, but that it is here right now, and we are free to realise such liberation through building voluntary and cooperative societies just as the early Christians did.
When we think of reimagining this liberation today, we must grapple with what modern institutions, such as schools, banks and hospitals, or even a criminal justice system, might look like in a stateless society. It is important to remember that individual autonomy is at the core of anarchy. Therefore, when we reimagine these social arrangements, we are not limited to just one vision or iteration, but a vision of many because every community would be free to forge its own voluntary system marked by its own unique variation. Hence, for example, there is no one “anarchist school” per se, but various arrangements in numerous communities where children are free to come and go as they please and are taught in a cooperative, integral fashion such principles as liberty, fraternity, equality, and solidarity.
When we think of reimagining this liberation today, we must grapple with what modern institutions, such as schools, banks and hospitals, or even a criminal justice system, might look like in a stateless society. It is important to remember that individual autonomy is at the core of anarchy.
There are copious amounts of literature on anarchist educational systems, economics (e.g. blockchain technology has the considerable potential of subverting the state), healthcare, and justice systems (such as restorative justice, private justice, and even Rwanda’s gacaca courts to some extent) that may help us reimagine an ordered society without the state. In many ways it has already been happening, except that informal arrangements (such as in the chama/ stoekvel/ informal banking systems that keep many African communities financially afloat) are maligned as inferior to state alternatives. (It is important to reiterate that each community has the right to self-determine the best approach to operating these voluntary institutions.)
Ultimately, the claims of the state to possess legitimate coercion must be denied at every turn. The rhetoric we use should contain the same urgency as Jesus’s, where we cast visions of a world in which the coercive power of governments around the globe are doomed to pass away. The apocalyptic Christ allows us to imagine that individuals and communities can be trusted, because God entrusted God’s power in our very beings over which no state or person can rule without our consent.
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Is Somalia’s Quest for Membership of the EAC Premature?
Somalia must first ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the East African Community.
The current members of the East African Community (EAC) are Tanzania, Kenya, Uganda, Rwanda, Burundi, and South Sudan. The Somali Federal Government, under the leadership of Hassan Sheikh Mohamud, has expressed a strong interest in joining the EAC, sparking questions among Somali citizens as to whether the country is ready to join such a large and complex regional bloc.
During President Hassan Sheikh Mohamud initiated Somalia’s pursuit of EAC membership during his previous term as a president from 2012 to 2017. However, little progress was made during his first term and, following his re-election, President Hassan reignited his pursuit of EAC membership without consulting essential stakeholders such as the parliament, the opposition, and civil society. This unilateral decision has raised doubts about the president’s dedication to establishing a government based on consensus. Moreover, his decision to pursue EAC membership has evoked mixed responses within Somalia. While some Somalis perceive joining the EAC as advantageous for the country, others express concerns about potential risks to Somalia’s economic and social development. President Hassan has defended his decision, emphasising that Somalia’s best interests lie in becoming a member of the EAC.
To assess Somalia’s readiness to join the EAC, the regional bloc undertook a comprehensive verification mission. A team of experts well versed in politics, economics, and social systems, was tasked with evaluating Somalia’s progress. The evaluation included a thorough review of economic performance, trade policies, and potential contributions to the EAC’s integration efforts. During this process, the team engaged with various government institutions and private organisations, conducting comprehensive assessments and discussions to gauge Somalia’s preparedness.
One of the key requirements for Somalia is demonstrating an unwavering commitment to upholding principles such as good governance, democracy, the rule of law, and respect for human rights. Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Successful integration into the EAC would not only elevate Somalia’s regional stature but would also foster deeper bonds of cooperation and shared prosperity among the East African nations. While this is a positive step towards regional integration and economic development, there are several reasons for pessimism about the potential success of Somalia’s membership in the EAC.
Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Somalia has faced significant challenges due to prolonged conflict and instability. The decades-long civil war, coupled with the persistent threat of terrorism, has had a devastating impact on the country’s infrastructure, economy, governance systems, and overall stability.
The following fundamental factors raise valid concerns about Somalia’s readiness to effectively participate in the EAC.
Infrastructure plays a critical role in regional integration and economic growth. However, Somalia’s infrastructure has been severely damaged and neglected due to years of conflict. The country lacks adequate transportation networks, reliable energy systems, and while communications infrastructure has improved, internet penetration rates remain low and mobile networks – which are crucial for seamless integration with the EAC – can be unavailable outside of urban centres. Rebuilding such infrastructure requires substantial investments, technical expertise, and stability, all of which remain significant challenges for Somalia.
Political stability and governance
The EAC places emphasis on good governance, democracy, and the rule of law as prerequisites for membership. Somalia’s journey towards political stability and effective governance has been arduous, with numerous setbacks and ongoing power struggles. The lack of a unified government, coupled with weak state institutions and a history of corruption, raises doubts about Somalia’s ability to meet the EAC’s standards. Without a stable and inclusive political environment, Somalia may struggle to effectively contribute to the decision-making processes within the regional bloc.
Economic development and trade
Somalia’s economy has been heavily dependent on the informal sector and faces substantial economic disparities. The country needs to demonstrate a vibrant market economy that fosters regional trade and collaboration, as required by the EAC. However, the challenges of rebuilding a war-torn economy, tackling high poverty rates, and addressing widespread unemployment hinder Somalia’s ability to fully participate in regional trade and reap the benefits of integration.
Somalia continues to grapple with security challenges, including the presence of extremist groups and maritime piracy. These issues have not only hindered the country’s development but also pose potential risks to the stability and security of the entire EAC region. It is crucial for Somalia to address these security concerns comprehensively and to establish effective mechanisms to contribute to the EAC’s collective security efforts.
Economic Disparity and Compatibility
Somalia’s economy primarily relies on livestock, agriculture, and fishing, which may not align well with the more quasi-industralised economies of the other EAC member states. This mismatch could result in trade imbalances and pose challenges for integrating Somalia into the regional economy. For instance, according to the World Bank, Somalia’s GDP per capita was US$447 in 2021 whereas it is US$2081 for Kenya, US$1099 for Tanzania, and US$883 for Uganda. Furthermore, Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
This divergence in economic structures could lead to trade imbalances and impede the seamless integration of Somalia into the regional economy. The substantial economic gap between Somalia and other EAC member states suggests a significant disparity that may hinder Somalia’s ability to fully participate in the EAC’s economic activities. Additionally, Somalia has yet to demonstrate fiscal or economic discipline that would make it eligible for EAC membership. While Somalia has a functioning Central Bank and the US dollar remains the primary mode of financial transactions, the risk of integration lies with the other EAC members; cross-border trade would occur in an environment of instability, posing potential risks to the other member state.
Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
While these fundamental challenges remain, it is important to acknowledge the progress Somalia has made in recent years. This includes the gradual improvement in security conditions, the establishment of key governmental institutions, and the peaceful transfer of power. One can also argue that many of these fundamental economic, infrastructure, political instability, and security concerns exist across the East African Community. However, what makes Somalia unique is the scale of the challenges it faces today. Somalia has adopted a federal political structure, which has not worked well so far. This level of fragmentation and civil political distrust makes Somalia’s case unique. More than ever, Somalia needs meaningful political and social reconciliation before it can embark on a new regional journey.
The absence of an impact assessment by the relevant ministries in Somalia is alarming. Without this assessment, it becomes challenging to make informed decisions about the potential benefits of joining the EAC and the impact on our economy and society. Conducting this assessment should be a priority for Somalia’s ministries to ensure a comprehensive evaluation of the potential benefits and risks involved in EAC membership. Furthermore, President Hassan Sheikh Mohamud’s decision to pursue Somalia’s integration into the EAC lacks political legitimacy as a decision of this nature would normally require ratification through a popular vote and other legal means through parliament. The failure to achieve this could potentially allow another president in the future to unilaterally announce withdrawal from the EAC.
Fragile state of Affairs and internal disputes
The recent reopening of the Gatunda border post between Uganda and Rwanda after a three-year period of strained relations indicates a fragile state of affairs. The East African Court of Justice has ruled that Rwanda’s initial closure of the border was illegal, highlighting the contentious nature of inter-country disputes. Furthermore, Tanzania and Uganda have formally lodged complaints against Kenya, alleging unfair advantages in trade relations, and have even gone as far as threatening Kenya with export bans. These grievances underscore the underlying tensions and competition between member states, which could potentially hinder the harmonious functioning of the East African Community. These political and economic disagreements among member states increase the risks associated with Somalia’s membership. Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions. Joining the East African Community at this juncture carries the risk of being drawn into ongoing disputes and potentially being caught in the crossfire of inter-country rivalries.
Conflict in South Sudan
The prolonged conflict in South Sudan, which has been ongoing since its admission to the East African Community (EAC) in 2016, serves as a cautionary tale for Somalia. Despite the EAC’s efforts to mediate and foster peace in the region, the outcomes have been mixed, resulting in an unsustainable peace. This lack of success highlights the challenges faced by member states in resolving conflicts and maintaining stability within the community. Somalia must carefully evaluate whether its participation in the EAC will genuinely contribute to its stability, economic growth, and development, or if it risks exacerbating existing internal conflicts. Joining the community without a solid foundation of political stability, institutions, and peace could potentially divert resources and attention away from domestic issues, hindering Somalia’s progress towards resolving its own challenges. South Sudan’s admission to the EAC in 2016 was seen as a major step towards regional integration and stability. However, the country has been mired in conflict ever since, with two civil wars breaking out in 2013 and 2016. The EAC has been involved in mediation efforts, with mixed results.
Somalia must evaluate the readiness of its institutions, infrastructure, and economy to effectively engage with the East African Community. Comprehensive preparations are crucial to ensure that joining the community is a well thought-out and strategic decision, rather than a hasty move that could further destabilise the nation. Somalia needs to assess whether its infrastructure, institutions, and economy are sufficiently developed to cope with the challenges and demands of integration. Premature membership could strain Somalia’s resources, impede its growth, and leave it at a disadvantage compared to more established member states.
Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions.
Somalia must ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the EAC. A phased approach that prioritises capacity building, institution-strengthening, and inclusive governance would enable Somalia to lay a solid foundation for successful integration and reap the maximum benefits from EAC membership in the long term. Failure to address these concerns would make Somalia vulnerable to exploitation and market monopolies by stronger economies, and could also risk a lack of seamless convergence for Somalia’s membership. While there is political will from EAC leaders to support Somalia’s membership, it is vitally important that they make the right decision for Somalia and the EAC bloc as a whole to ensure a successful integration. I believe that, at this juncture, the disadvantages of Somalia joining the EAC outweigh the benefits.
2023 Marks 110 Years Since the Maasai Case 1913: Does it Still Matter?
It was a landmark case for its time, a first for East Africa and possibly for the continent. A group of Africans challenged a colonial power in a colonial court to appeal a major land grab and demand reparations. They lost on a technicality but the ripple effects of the Maasai Case continue to be felt.
In the name Parsaloi Ole Gilisho there lies an irony. It was spelled Legalishu by the colonial British. Say it out loud. He gave them a legal issue, all right. And a 110-year-old headache.
This extraordinary age-set spokesman (a traditional leader called ol-aiguenani, pl. il-aiguenak) led non-violent resistance to the British, in what was then British East Africa, that culminated in the Maasai Case 1913. Ole Gilisho was then a senior warrior, who was probably in his mid- to late thirties. In bringing the case before the High Court of British East Africa, he was not only challenging the British but also the Maasai elders who had signed away thousands of acres of community land via a 1904 Maasai Agreement or Treaty with the British. This and the 1911 Agreement – which effectively rendered the first void – are often wrongly called the Anglo-Maasai Agreements. In Ole Gilisho’s view, and those of his fellow plaintiffs, these elders had sold out. The suit accused them of having had no authority to make this decision on behalf of the community. This represented a very serious challenge by warriors to traditional authority, including that of the late laibon (prophet) Olonana, who had signed in 1904, and died in 1911.
The British had expected the Maasai to violently rebel in response to these issues and to colonial rule in general. But contrary to modern-day myths that the Maasai fought their colonisers, here they resisted peacefully via legal means. They hired British lawyers and took the British to their own cleaners. Spoiler: they lost, went to appeal, and lost again. But archival research reveals that the British government was so convinced it would eventually lose, if the Maasai appealed to the Privy Council in London (they didn’t), that officials began discussing how much compensation to pay.
The facts are these. The lawsuit was launched in 1912. There were four plaintiffs, Ole Gilisho and three fellow Purko (one of the 16 Maasai territorial sections) Maasai. In Civil Case No. 91 they claimed that the 1911 Maasai Agreement was not binding on them and other Laikipia Maasai, that the 1904 Agreement remained in force, and they contested the legality of the second move. They demanded the return of Laikipia, and £5,000 in damages for loss of livestock during the second move (explained below). Ole Gilisho was illiterate and had never been to school. But he and his fellow plaintiffs were assisted by sympathetic Europeans who were angered by the injustice they saw being perpetrated against a “tribe” that British administrators conceded had never given them any trouble. These sympathisers included people who worked for the colonial government, notably medical Dr Norman Leys and some district officials, lawyers, a few missionaries, the odd settler, and a wider group of left-wing MPs and anti-colonial agitators in Britain.
What had led up to this? After the 1904 Agreement, certain groups or sections of Maasai had been forcibly moved from their grazing grounds in the central Rift Valley around Naivasha into two reserves – one in Laikipia, the other in the south on the border with German East Africa. The British had pledged that this arrangement was permanent, that it would last “so long as the Maasai as a race shall exist”. But just seven years later, the British went back on their word and moved the “northern” Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve. In all, it is estimated that the Maasai lost at least 50 per cent of their land, but that figure could be nearer 70 per cent. The ostensible reason for moving them was to “free up” land for white settlement – largely for British settlers but also for South Africans fleeing the Boer War (also called the South African War).
But just seven years later, the British went back on their word and moved the ‘northern’ Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve.
By the time the case came to court, Ole Gilisho had become a defendant, even though he was in favour of the plaint. So were at least eight other defendants. He had signed the 1904 Agreement, and now stood accused with 17 other Maasai of having no authority to enter into such a contract. The first defendant was the Attorney General. Ole Gilisho’s son-in-law Murket Ole Nchoko, misspelled Ol le Njogo by the British, and described as a leading moran (il-murran or warrior) of the Purko section, was now the lead plaintiff. The plaint was called Ol le Njogo and others v. The Attorney General and others.
Challenges facing the plaintiffs
Most Maasai were illiterate in those days, and this obviously placed them at a major disadvantage. They could not write down their version of events. They were forced to rely, in their dealings with officials and their own lawyers, upon translators and semiliterate mediators whose reliability was questionable. But it is evident, from the archival record which includes verbatim accounts of meetings between Maasai leaders and British officials in the run-up to the moves and case, that the level of verbal discourse was highly sophisticated. This comes as no surprise; verbal debate is a cornerstone of Maasai society and customary justice. Unfortunately, that alone could not help them here. They knew they needed lawyers, and asked their friends for help. Leys, who was later sacked from the colonial service for his activism, admitted in a private letter: “I procured the best one in the country for them.” This was more than he ever admitted openly.
Local administrators used intimidation and all kinds of devious means to try and stop the case. (I didn’t come across any evidence that the Colonial Office in London sanctioned this; in fact, it ordered the Governor not to obstruct the main lawyer or his clients.) They allegedly threatened Ole Gilisho with flogging and deportation. They threatened and cross-questioned suspected European sympathisers, including Leys and the lawyers. They banned Maasai from selling cattle to raise the legal fees, and placed the Southern Reserve in continuous quarantine. It was hard for the plaintiffs, confined to a reserve, to meet their lawyers at all. At one point, lawyers were refused passes to enter the reserve, and their clients were prevented from leaving it.
We hear Ole Gilisho’s voice in the archival record. Forced to give a statement explaining his actions to officials at Enderit River on 21 June 1912, when asked if he had called Europeans to his boma, he replied: “Is it possible for a black man to call a white man?” He denied having called the Europeans (probably lawyers or go-betweens), saying they had come to him. Leys later explained to a friend that Ole Gilisho had probably been “terrified out of his wits”, and hadn’t meant what he said.
What happened in court
The case was thrown out when it first came before the High Court in Mombasa in May 1913. The Maasai appealed, and that is when the legal arguments were fully aired by both sides – lawyers for the Crown and the Maasai. The appeal was dismissed in December on the grounds that the plaintiffs’ claims were not cognisable in municipal courts. The two agreements were ruled not to be agreements but treaties, which were Acts of State. They could not, therefore, be challenged in a local court. It was impossible for the plaintiffs to seek to enforce the provisions of a treaty, said the judges – “The paramount chief himself could not bring such an action, still less can his people”. Claims for damages were also dismissed.
The Court of Appeal’s judgement centred on the status of a protectorate, in which the King was said to exercise powers granted to him under the Foreign Jurisdiction Act of 1890. Irrational as it sounds, the Crown claimed that British East Africa was not British territory, and the Maasai were not British subjects with any rights of access to British law, but “protected foreigners, who, in return for that protection, owe obedience” to the Crown. As Yash Pal Ghai and Patrick McAuslan later put it, when discussing the case in a 1970 book: “A British protected person is protected against everyone except the British.” On the plus side, the judges ruled that the Maasai still retained some “vestige” of sovereignty. (The Maasai’s lawyer argued that they did not.) This triggered later moves by Maasai politicians, in the 1960s, to float the idea of secession from Kenya and the possible creation of a sovereign Maasai state. John Keen had threatened this in 1962 at the second Lancaster House Conference in London, attended by a Maasai delegation.
Alexander Morrison, lawyer for the Maasai, argued that British rule and courts were established in the protectorate, which had not been the case 30 years earlier. The Maasai were not foreigners but equal to other British subjects in every way. The agreements were civil contracts, enforceable in the courts, and not unenforceable treaties. If one took the Crown’s claim about Acts of State to its logical conclusion, he argued, a squatter refusing to leave land reserved for the Maasai could only be removed by an Act of State. None of his arguments washed with the judges. (See my 2006 book Moving the Maasai for a fuller account.)
Morrison advised his clients to appeal. It seems they couldn’t raise the funds. However, oral testimony from elders reveals a different story: Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea. This is impossible to verify, but it rings true.
In an interview carried out on my behalf in 2008 by Michael Tiampati, my old friend John Keen had this to say about the outcome of the case: “If the hyena was the magistrate and the accused was a goat, you should probably know that the goat would not get any form of justice. So this is exactly how it was that the Maasai could not get any fair justice from British courts.”
Contemporary African resistance
Unbeknown to the Maasai, there was growing anti-colonial resistance in the same period in other parts of Africa. All these acts of resistance have inspired African activists in their continuing struggles. To mention a few: the Chilembwe rebellion in Nyasaland, now Malawi (1915); the Herero revolt in German South West Africa, now Namibia (1904–1908); resistance in present-day Kenya by Mekatilili wa Menza (largely 1913-14); the First Chimurenga or First War of Independence in what is now Zimbabwe (1896–1897); and the Maji Maji rebellion in German East Africa, now Tanzania (1905–1907). But none of these rebellions involved lawsuits. The closest precedent may have been R vs Earl of Crewe, Ex-parte Sekgoma in 1910. Chief Sekgoma, who had been jailed by the British in the Bechuanaland Protectorate (now Botswana) after many attempts to remove him as chief, instructed his lawyer to bring a writ of habeus corpus against the Secretary of State for the Colonies, Lord Crewe. He demanded to be tried in an English court, refusing an offer of release on condition that he agrees to live in a restricted area of the Transvaal. The suit was dismissed, the court ruling that the King had unfettered jurisdiction in a protectorate, and his right to detain Sekgoma was upheld. Sekgoma apparently said: “I would rather be killed than go to the Transvaal. I will not go because I have committed no crime – I wish to have my case tried before the courts in England or else be killed.” Freed in 1912, he died two years later.
The case, and other key events in early twentieth century Maasai history, have given rise to several myths. They include the idea that the stolen land should “revert” to the Maasai after 100 years, but that was not stated in the 1904 Agreement, which was not limited in time, was not a land lease, and has not “expired” as many people claim. Neither agreement has. Keen knew this, but nonetheless called for the land to “revert”. Other myths include the idea that Olonana’s thumbprint was placed on the 1911 Agreement posthumously, and it must therefore be invalid. But neither his thumbprint nor name are on the document, which was “signed” by his son Seggi. Anyhow, Olonana was a key ally of the British, who had no reason to kill him (which is another myth).
The original of the 1904 Agreement has never been found, which has led some Maasai to believe that it never existed and therefore all the land must be restored and compensation paid for its use to date. There may be sound legal arguments for restorative justice, but this is not one of them. These myths are ahistorical and unhelpful, but may be understood as attempts to rationalise and make sense of what happened. Some activists may wish that the Maasai had resisted violently, rather than taken the legal route. Hence the insistence by some that there was a seamless history of armed resistance from the start of colonial rule. Not true. There are much better arguments to be made, by professional lawyers with an understanding of international treaty rights and aboriginal title, which could possibly produce results.
Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea.
Where does all this leave the Maasai today? Over the years, there has been much talk of revisiting the case and bringing a claim against Britain (or Kenya) for the return of land or reparations for its loss. None of this has resulted in concrete action. I attended a planning workshop in Nairobi in 2006 when plans were laid for a lawsuit. VIPs present included the late Ole Ntimama, scholar Ben Kantai and John Keen. Keen declared, with his customary flourish, that he would stump up a million shillings to get the ball rolling. I don’t know how much money was raised in total, but it disappeared into thin air. As did the lawyers.
Leading lawyers have advised that too much time has passed, and (unlike the successful Mau Mau veterans’ suit) there are no living witnesses who could give evidence in court. It is unclear whether the agreements still have any legal validity. The British government might argue, as it previously has, including in response to my questions, that it handed over all responsibility for its pre-1963 actions to the Kenyan government at independence. This is a ludicrous argument, which is also morally wrong. Former colonial powers such as Germany have accepted responsibility for historical injustices in their former colonies, notably Namibia. Has the time come for Ole Gilisho’s descendants to call a white man to court?
Who Is Hustling Who?
In Kenya, political elites across the spectrum are trying to sell off the country for themselves—capitulation is inevitable.
My drive to Limuru happened on the first Wednesday (July 19) of the protests. Everything was eerily quiet, Nairobi, renowned for its traffic jams, was quiet. Matatus and buses were parked in their hubs. Shops and stalls were closed. Even the hawkers that dot the roads and highways stayed home. Save for the heavy police presence everywhere, it felt like the country had come to a standstill.
We got to Kangemi shortly after the police had shot and wounded two protestors—the road was strewn with stones and armed riot police huddled by the side of the road waiting for the next wave of attacks that never came. In the end, six people would be shot to death throughout the country, and countless were injured and arrested. Coming from the US, where police arrest protestors and shoot black people, there were no surprises here. The US can hardly be the standard of good policing or democratic practices, but the lives lost simply for asking the government to center the people in its economic planning seemed especially cruel.
But it was the emptiness of the roads that made the whole drive eerie. Perhaps I was refracting what was happening in Kenya through what followed the 1982 coup in which 240 people were killed; or the ethnic clashes of the 1990s that culminated in the 2007 post-election violence. Yet, there was a general agreement among people that there was something different about the Kenya of today—that something was already broken and the nightmares to come were slowly but surely revealing themselves—like a bus carrying passengers and the driver realizing the brakes were out just as it was about to descend a steep hill.
Voting with the middle finger
But all this was predictable. President Ruto has been a known quantity since the 1990s when he led the violent Moi youth wingers. He and his running mate and later president, Uhuru Kenyatta, were brought in front of the ICC to face charges of crimes against humanity following the post-election violence in 2007. Some key witnesses disappeared and others were intimidated into silence. Who in their right mind gives evidence against those in control of the state? The ICC was already discredited as being Western-crimes-against-humanity friendly (the US has never been a signatory rightly afraid its former presidents, such as George Bush, would be hauled before the court). The ICC eventually withdrew the case in March 2015.
I kept asking everyone I met, why was Ruto voted in spite of his history? The answers varied: He rigged the elections; he did not rig and if he did, he only managed to be better at it than Raila Odinga; he appealed to the youth with the idea of building a hustler nation (what a telling term); the Kikuyus have vowed never to have a Luo president and therefore opted for Ruto who is Kalenjin as opposed to Odinga who is Luo.
I sat with older Kikuyu men in the little Nyama Choma spot in Limuru Market and they talked about a generational divide between the Kikuyu and youth (Ruto) and the elderly Kikuyus (Odinga). But the one I heard over and over again was that Kenyans are tired of the Kenyatta and Odinga political dynasties. As one Trump supporter was to say, they voted for him with the middle finger. And so, the Kenyans who voted for Ruto were giving a middle finger to the Kenyatta, Moi and Odinga political dynasties. But no one had really expected buyer’s remorse to kick in one year into the Ruto presidency.
I also asked about Odinga’s protests: what was the end game? One theory is that he was looking at power-sharing, having done it once before, following the 2007 elections. In our shorthand political language, he was looking for another handshake. Some said the people have a right to protest their government, and he is simply asking the government to repeal the tax hikes and reinstate the fuel subsidies. Others believed that he wants to be a genuine and useful voice of opposition for the good of the country and its poor.
My own theory is that he is attempting a people-powered, centered, democratic, and largely peaceful takeover—where people take to the streets to overthrow an unpopular government. We saw this in Latin America in the 2000s. In response to Odinga’s absence during the three days of protests (he was sick), some leaders in his Azimio party have started using this language. The only problem with this strategy is that the sitting government has to be wildly unpopular. Ruto still has a lot of support, meaning that he does not have to compromise or give up power. It was to my mind turning into a stalemate and I was worried that the state would respond with more state-sponsored violence.
But real economics broke the stalemate. In a country where people are barely surviving and the majority are poor without savings to rely on, or relatives to reach out to for help, the hawkers, small stall and shop owners simply went back to work. In other words, those that would have been hurt the most by three days of protests (a day at home literally means a day without food for the family) simply went back to work, and the matatus and buses hummed back to life, slowly on Thursday and full throttle by Friday.
Saturday around Westlands might as well have been as busy as a Monday as people overcompensated for lost time to either sell or shop. If the protests were going to succeed the opposition (composed of some of the wealthiest families in Kenya, including Odinga’s) really should have thought about how best to protect those who would be the most affected. They should find legal and innovative ways to put their money where their political mouths are.
Cuba as Kenya’s north star
Odinga had to change tactics and called for a day of protest against police violence instead of three-day weekly protests in perpetuity. He is now in danger of turning into a caricature of his old revolutionary self and becoming an Al Sharpton, who instead of protesting the American government for the police killings of black people, protests the police themselves leaving the government feeling sanctimonious. Obama or Biden could weigh in, in righteous indignation without offering any real change (remember Obama’s emotional pleas over gun shootings and police shootings as if he was not the one occupying the most powerful office in the US)?
The one question that keeps eating at me is this: why is the most apparent outcome at the time a surprise later? Ruto was always going to sell off Kenya with a percentage for himself and his friends. Odinga was always going to capitulate. The end result is that the Kenyan bus will continue to careen on without brakes. So, what is to be done?
I was in Cuba earlier this year. I got a sense of the same desperation I felt in Kenya but the difference is Cubans have free access to healthcare, education, housing, and food security. They have free access to all the things that make basic survival possible. Before calling for the tax hikes and cutting fuel subsidies might it not have been more prudent to have a safety net for Kenyans? Would that not have been the most logical thing? But of course not, Ruto is acting at the behest of the IMF and big money. Ruto has learned the art of pan-African political rhetoric. Abroad he can call for a different non-US-centered economic system and castigate the French president over paternalism but at home, his politics are hustler politics.
Life in Cuba is difficult, as a result of relentless sanctions from the US, but it is far from impossible. It remains the north star for those who understand discussions around fundamental change as the only starting point. We can have arguments about the nature of those fundamental changes, but we can all agree we should not be a country where one family, say the Kenyatta family, owns more than half a million acres of land. Or where, as Oxfam reported, four individuals hold more wealth than that held by 22 million Kenyans. The kind of politics that begin with a necessity for fundamental change will obviously not come from Ruto.
But one hopes it can still come from the Odinga camp. Or even better, from a genuinely progressive people-powered movement that has inbuilt questions of fundamental change in its political, economic, and cultural platform.
In spite of the empty roads, Limuru Market was thriving and Wakari Bar kept its reputation as one of the best places for Nyama Choma and for lively political conversations. People are paying attention, after all, it is their lives and livelihoods on the line. Politicians, especially those in the opposition and the political left should listen as well.
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