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The Gay Debate: Decriminalising Homosexuality in Kenya

Courts, individuals, movements, state human rights organs and government health agencies have already established Kenya’s legal consciousness on how continued criminalisation of homosexuality undermines our constitutional principles and goals.

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The Gay Debate: Decriminalising Homosexuality in Kenya
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Private consensual sexual conduct between adults of the same sex is criminalised in Kenya and 32 other African countries. How did private consensual sexual conduct between adults become the subject of criminal laws in Kenya and most of these African countries? How does the secrecy surrounding matters related to sex and sexuality influence the implementation of these laws? Let’s take a journey through Kenya.

According to legal historians, what is today known as Kenya started off as the British East Africa Protectorate in 1896. The protectorate was ruled under British law; prior to that period, no formal legal structure existed. Further, the name Kenya did not exist until it was named so as a colony in 1920 and as a country in 1963 (upon independence). Criminalisation of same sex relations in Kenya dates back to between 1897 and 1902, when the British colonial authorities applied the Indian Penal Code that had been drafted by the British and which criminalised same sex relations. The Indian Penal Code was a novel colonisation project aimed at using legislation to model British values and common law to govern British protectorates and colonies abroad.

Research by Dr. Nancy Baraza characterises the history and rationale of the criminalisation of homosexuality as part of the disguise to civilize “natives”, stop slavery and spread Christianity. She found that it led to social coercion into British moral and Christian religious values whose aim was to standardise divergent ethnic sexualities for ease of ruling and colonising them. Dr. Baraza found that these colonial laws that policed sexuality and gender were closely tied to Judeo-Christian religious beliefs that gradually displaced African customary laws that recognised the harmony of gender, sexuality and spirituality.

Upon Kenya’s independence in 1963, the pre-colonial Penal Code was adopted by the post-colonial state without substantive changes, save for the renamed title of the statute to reflect promulgation by the newly created sovereign Parliament of Kenya. Kenya, therefore, remained among those African countries that mete varying punishments for same sex relations. The death penalty is imposed for homosexual sex in Sudan, Nigeria (12 northern states), Somalia and Mauritania. Life sentences are prescribed by penal law in Tanzania, Uganda and Sierra Leone. Kenya imposes a fourteen-year imprisonment term. To prove the crime of homosexual sex, forced anal examinations are used to in Tanzania, Cameroon, Egypt, Tunisia and Uganda. (Kenya’s Court of Appeal banned the practice in 2018.) Attempts to commit homosexual sex are also punished in Kenya, including indecent acts between males. The crime of homosexual sex is framed as an “unnatural” offence, carnal knowledge against the order of nature, or indecent acts between adults.

The legal challenges

The African Commission on Human and Peoples Rights (ACHPR) has noted that individuals in Africa continue to face infractions due to real or imputed sexual orientation and/or gender identity. According to the ACHPR, common infractions include “corrective” rape, physical assaults, torture, murder, arbitrary arrests, detentions, extrajudicial killings and executions, forced disappearances, extortion and blackmail. In a 2014 resolution against violence on ground of sexual orientation or gender identity in Africa (resolution 275), the African Commission called on African states to take preventative actions and redress these violations, including through legal reform.

This history of an imposed legal system in relation to criminalisation of same sex conduct in Kenya was slightly altered through Act No 5 of 2003 when section 162 of the penal code was amended to remove corporal punishment, which had existed as a supplementary punishment to the prison sentence of fourteen years for homosexual sex. This amendment also distinguished punishment for consensual unnatural offences (14 years) and non-consensual (sodomy) unnatural offences (21 years). Removal of corporal punishment for unnatural offences was part of general penal reforms to align Kenya’s laws to international obligations against torture and cruel, degrading or inhumane treatment and punishment.

The African Commission on Human and Peoples Rights (ACHPR) has noted that individuals in Africa continue to face infractions due to real or imputed sexual orientation and/or gender identity. According to the ACHPR, common infractions include “corrective” rape, physical assaults, torture, murder, arbitrary arrests, detentions, extrajudicial killings and executions, forced disappearances, extortion and blackmail.

By the time the nation was debating a new constitution, discrimination on the basis of sexual orientation was being discussed inconclusively by constituent assemblies, including at the subsequent 2010 referendum. The new 2010 Constitution entrenches an elaborate Bills of Rights that affords constitutional protection from discrimination. Article 27 states: “The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.” While being inclusive, Article 27 does not explicitly list sexual orientation or gender identity. On the contrary, the Constitution recognises only heterosexual unions in Article 45, which states that “every adult has the right to marry a person of the opposite sex, based on the free consent of the parties”.

In addition, Section 158 of the Children’s Act of Kenya explicitly prohibits adoption of children by homosexuals, In brief, Kenya’s legal system is generally hostile to gays, lesbians, bisexuals and queer persons. The law is also vague on the constitutional protection from discrimination on the basis of sexual orientation and gender identity. There is no comprehensive or specific equality legislation to guarantee protection from sexual orientation and gender identity discrimination, particularly in employment, health, housing and other social economic spheres.

In 2012, a Kenya National Commission on Human Rights (KNCHR) report on sexual and reproductive health rights in Kenya recommended decriminalisation of same sex relations. This was in order to ensure the realisation of the right to the highest attainable standard of health, including reproductive healthcare, as enshrined in article 43 of the Constitution 2010.

Studies have shown that gay men suffer discrimination when they access health services in Kenya and taboos around homosexuality prevent many others from seeking health services. Similar findings on the effects of criminalisation on state health policies and recommendations on their decriminalisation have been made by the Kenyan Ministry of Health in its HIV and AIDS Strategic Plan (2009/10-2012/13 as well as the 2014-2019). The justification of the health ministry and the KNCHR is that decriminalisation will remove structural barriers that impede access to the provision of the highest attainable standard of health care to all, which is a constitutional right in Kenya. KNCHR and the ministry have been consistent every year on their recommendations on decriminalising homosexuality, including through supporting civil society and individuals working on this reform issue. These empirical findings and recommendations by the health and the state human rights institution stand in contrast with active prosecutions against suspected homosexuals in Kenya by the police and the Director of Public Prosecutions.

Religion and politics

The most common rhetoric against same sex relations in Kenya has been coming from the religious and political elite who often characterise homosexuality as being against African tradition and biblical teachings. Studies have found that this charge of homosexuality being exogenous to Africa is politically designed to erode the legitimacy of same sex sexualities in Africa and to assert a homogenous “cultural identity”. This makes the public dependent upon political and religious leaders for “a communal sense of self”. It reminds the public what the government is – that it is in charge, in power and working or aspires to work for their best interests and survival, including protecting the most vulnerable (especially children) from “recruitment” and securing the future of the nation (by securing reproduction). The law under study therefore becomes political bait, an attractive instrument to regenerate political power domestically and internationally. This is made possible when arguments intersect with popular religious doctrine and social anxieties over reproduction, marriage and the future.

The most common rhetoric against same sex relations in Kenya has been coming from the religious and political elite who often characterise homosexuality as being against African tradition and biblical teachings. Studies have found that this charge of homosexuality being exogenous to Africa is politically designed to erode the legitimacy of same sex sexualities in Africa and to assert a homogenous “cultural identity”.

The public discourse becomes more difficult when homosexuality is politicised with religious doctrines whose nature hardly allows deliberations, which are necessary for democratic progress. This politicisation of religion is conflated with social anxieties over reproduction and social security.

Studies have found that economic inequalities give such political rhetoric traction. In this power analysis of law, the inflation of claims (such as saving the morality of the country) work to displace desires and failures within society and fix them on minority human objects who are generalised and whose presence or distinguishing factor (such as sexual orientation, in this case) is not distinctive or new to Kenya.

We are a developing country that is struggling with poverty and a high population growth rate. Poverty, religious doctrine that does not allow reasoning or deliberations, and an education system whose compulsory curriculum teaches homosexuality to be a moral/social deviance can be seen as part of the key social economic factors involved in shaping the public posture against homosexuality.

A convenient distraction

Activists have argued that the political capital invested by the Kenyan state on homophobia is a tactic to distract the public from pressing economic issues, such as rampant corruption. Studies show that after the end of colonialism, arbitrary governments in most post-colonial African states “latched onto anti-homosexuality laws as ammunition in a battle for power”. Such political rhetoric has also been found to thrive more in countries with weak institutions, inadequate basic equality statutes, poor participatory rights and social protection law, increasing inequalities, high unemployment amongst youth, and a general restrictive civic space. Studies have also established that compared to full democracies, authoritarian regimes and flawed democracies have a higher propensity to criminalise homosexuality

There are findings that support the need for reform on this issue. Research by the World Bank shows that a country’s economic growth is inversely correlated with the level of discrimination against ethnic, religious and sexual minorities under the law. The study found that criminalisation of homosexuality is connected with economic development with multiple links and that criminalisation costs as much as 1.7 per cent of a country’s GDP. Other studies have argued that criminalisation of homosexuality is “irreconcilable with good governance” because it hinders progress within a country, particularly in regard to democracy, the rule of law, human rights, public health, and economic development

The economic benefits of ending discrimination using the rule of law, therefore, resonate with many aspirations of middle- and low-income African countries. Continued discrimination against sexual and gender minorities through law is a grave economic concern in emerging African economies such as Kenya, which is currently working to achieve inclusive development.

In the social-cultural sphere, Kenya’s creative/arts scene has increasingly become a mirror of the diversity in Kenya’s gender and sexuality fluidity. Notable among them are the films Stories of Our Lives and Rafiki, whose same sex themes have been banned locally but have spiked local and international demand. Art galleries and cultural centres in Kenya have in recent years been hosting Lesbian Gay Bisexual Trans Intersex and Queer (LGBTIQ) art and cultural events without state sanction. Reputed artists, such as Michael Soi, with his provocative paintings on sexuality and Kawira Mwirichia, with her Kanga love art, also continue to highlight the changing social landscape on matters sexuality and gender in Kenya. Although the education curriculum in primary and secondary schools still teaches that homosexuality is a social deviance, many public universities and colleges have been pushing back with a much more inclusive curriculum, especially in law schools. In addition, student-led bodies in universities and colleges have been engaging in research, internships, moot courts and other public service partnerships with civil society organisations dealing with LGBTIQ equality in Kenya.

Enforcement of gay laws

The existing laws against homosexual offences are actively enforced in Kenya. In 2015, a “Ministerial statement on non-enforcement of anti-gay laws in Kenya” indicated that between 2010 and 2014, the Kenya Police had prosecuted 595 cases of homosexuality across Kenya. An independent due diligence report of this police report found gross errors and conflation of homosexuality with bestiality and defilement charges. The conflation was either deliberate or was meant to increase social opprobrium towards homosexuality (by conflating consensual private adult same sex intimacy with bestiality and defilement). It could also be due to mistakes due to poor record-keeping by the police whose documentation remains largely manual.

The existing laws against homosexual offences are actively enforced in Kenya. In 2015, a “Ministerial statement on non-enforcement of anti-gay laws in Kenya” indicated that between 2010 and 2014, the Kenya Police had prosecuted 595 cases of homosexuality across Kenya. An independent due diligence report of this police report found gross errors and conflation of homosexuality with bestiality and defilement charges.

In addition, civil society organisations continue to document human rights violations based on sexual orientation and gender identity. In 2010, the Kenya Human Rights Commission (KHRC) found that LGBTIQ persons in Kenya are routinely harassed by police, evicted from housing by landlords, fired from jobs, denied access to healthcare and cut off from families, religious groups and social support structures. The National Gay and Lesbian Human Rights Commission (NGLHRC) has since 2012 been responding to and documenting violations against LGBTIQ persons. Annual legal aid reports from NGLHRC indicate that recurrent violations include “corrective” rape, physical assaults, arbitrary arrests, detentions, extrajudicial killings and executions, forced disappearances, extortion and blackmail, entrapment, among others. NGLHRC has been litigating on some of these violations, including challenging the use of forced anal examination to prove sexual orientation, forced evictions by landlords, dismissals from work, denial of government services and documents, etc.

Interpreting anti-homosexuality laws

Be that as it may, Kenya’s judicial jurisprudence on this issue demonstrates a compelling state interest to extinguish legal discrimination on the basis of sexual orientation and gender identity that is often justified and excused by the existence of criminal sanctions against LGBTQ persons. In Petition 440/2013 that sought to register the National Gay and Lesbian Human Rights Commission with the NGO Board, Justices Lenaola Odunga and Mumbi Ngugi ruled unanimously that sexual orientation was constitutionally protected from discrimination in Kenya and allowed the registration of the NGO. In February 2018, the Court of Appeal struck down the use of anal examination to prove homosexual orientation after the NGLHRC challenged anal examination, which had been performed on two suspected gay men at the Coast General Hospital. In the Baby A case, the court found that intersex persons in Kenya have the right to be recognised as persons before the law and went further to task the relevant state organs to develop relevant policy to secure recognition of intersex persons as persons before the law.

Courts in Kenya have also allowed the registration of transgender groups and the change of gender markers on official documents issued by the government to transgender persons. The first stream is an internal analysis of the legal system using Kenyan law jurisprudence from which finds that there is arbitrary interpretation and application of the criminal rule under study which is inconsistent with the rule of law. The courts have become aware of this inconsistency and framed it as a constitutional issue, thereby triggering public discourse. The second stream is external in that it makes observations “outside” of the law on the performance of this criminal rule and characterises the performance of this law as political instrumentalisation of arbitrariness. This arbitrariness is more instrumentalised by the democratic branch of government through inflated paternalistic moral and religious claims within the domestic and international public spheres. I conclude by predicting how the criminal rule under study is under imminent foreclosure through court action under a rule of law analysis.

Moving towards a less homophobic society

I predict that criminalisation of homosexuality will grow into an exceptional doctrine in criminal law and will incrementally be foreclosed by courts as erroneous and excluded within the general domain of law. Criminal law is meant to prevent harm to society and enhance harmony and order within persons. To achieve order, the law can regulate how humans relate by way of justifiable legal stipulations and legal constrains. Over time, equality and non-discrimination will become the dominant theories in the transformation of the law in Kenya, but the foreclosure of the criminalisation described in this essay is a necessary first step.

Claims against the negative effects of criminalisation of homosexual conduct will continue to sharpen the consciousness of the courts on the structure, meaning and effects of this law. The claims will allow the courts to be the public repository of accounts of discrimination on the basis of sexual orientation. The critical studies movement has taught us that we can reform our legal practice to deliver legal justice without breaking legality. This reformed legality supports the foreclosure of criminalisation with the aim of protecting the constitutional/immunity rights of persons affected by this law because these rights already exist in our constitutional texts.

The ongoing litigation work by LGBTIQ individuals are therefore democratic efforts by citizens and organised groups to instill the rule of law, human rights and good governance in Kenya. Such efforts fulfill the civic duty that individuals and social movements have in promoting the democratic values of their communities and the country through institutional enforcement of their rights in courts. It is also a follow-up from constitutional drafting conferences that appreciated the issue as contentious but offered no closure to the affected. Individuals and social movements are using the judiciary to communicate and document their discriminatory lived experiences. By framing these claims as constitutional breaches, individuals are building public value of human rights as an essential part of their democracy and societal values. Courts therefore become entry points of building human rights and democratic values into social and political pillars of society.

Claims against the negative effects of criminalisation of homosexual conduct will continue to sharpen the consciousness of the courts on the structure, meaning and effects of this law. The claims will allow the courts to be the public repository of accounts of discrimination on the basis of sexual orientation.

The fact that these cases are being entertained, processed and resolved without dismissals due to technicalities and despite the fact that there are existing laws that criminalise homosexuality are green shoots and omens that suggest that access to justice is being realised in Kenya, which is a score for our democracy. It shows that the courts in Kenya are rooting for the rule of law and the constitutional constraints in the law’s predictability.

Because the Constitution of Kenya 2010 was promulgated through a public referendum, courts enjoy sole curatorship of the Constitution, arguably raising the public acceptance of their decisions and the democratic pedigree of their legitimacy. Their decisions, therefore, play a leading role in public discourse.

Foreclosure through decriminalisation will, however, need enforcement. This might translate to a reduction of arrests and prosecutions of suspected homosexuals as well as reduced social and economic exclusion. It is possible that LGBTIQ persons have begun to value their constitutional rights and will take more chances for equal protection within the civic commons. It is also possible that sexuality, citizenship and belonging will remain a live constitutional issue for judges in Kenya for the next decade as the cases move to the appellate stages through the courts.

Regardless of the outcome of these cases, Kenya’s legal consciousness on how continued criminalisation of homosexuality undermines our constitutional principles and goals has already been established by courts, individuals, movements, state human rights organs and government health agencies. By litigating towards decriminalisation of homosexuality, activists are implementing evidence-based recommendations of state agencies as well as upholding the constitutional promise of non-discrimination, including equal benefit and equal protection under the law. The day may finally come when homosexuality in Kenya will truly be a “non-issue”, as President Uhuru Kenyatta recently stated in a televised interview.

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Eric Mawira Gitari is a PhD Candidate (SJD) at Harvard Law School and the former Executive Director of the National Gay and Lesbian Human Rights Commission-Kenya (NGLHRC).

Politics

My Sons Are Dead: A Mother’s Cry for Justice

As Kenya’s forgotten mothers get worn out by the load of a nation’s collective misdeeds in pursuit of political power, a day shall come when the Mama Victors will no longer be in a position to continue doing national duty as national trauma-bearers.

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It was around 2 pm, 9th August, a day after the 2017 general election. Bernard, 25, and Victor, 22, alighted from different matatus in Nairobi’s Mathare neighbourhood. Bernard got off at stage number 10, while Victor, who was technically his younger brother, was dropped off hapo kwa vitanda (at the roadside kiosks)according to their mother’s account. Born to sisters, Bernard’s mother passed away when he was barely in his teens. He then moved in with his aunt, Mama Victor, who raised him alongside her three sons and daughter.

‘‘They grew up together,’’ Mama Victor told me when I met her in Mathare. ‘‘They were both my sons.’’

Bernard was back from Gikomba, where he worked as a tailor. Victor, a casual labourer, had come from his place of work in Westlands. They had voted in Mathare the previous morning, before reporting to work a little late than usual. On reporting to work on the 9th, they were both granted a day off, seeing that the country was on edge awaiting results of the hotly contested presidential election. Upon arriving in Mathare, the brothers found the roads blocked by protestors coming from as far as Dandora and Kayole, held back by a police cordon. That is why both Bernard and Victor disembarked from their matatus before arriving at their designated stage.

‘‘When they got off the matatus,’’ Mama Victor narrates, ‘‘they found huge crowds gathered in front of them.’’

After quickly reconnecting, Bernard and Victor looked around, recognizing familiar faces. Curious to know what the hullabaloo was all about, they walked over to their friends, asking what the matter was.

‘‘They liked asking each other Rada?Rada?’’ Mama Victor tells me, Sheng for, what’s the plan?

‘‘They didn’t even get too far into the crowd,’’ Mama Victor recollects being told by witnesses what happened.

‘‘Bernard was suddenly shot in the head, his brains blown out. Victor was shot in the stomach. I believe Victor was shot twice, though the medical report says he was shot once. His intestines spilled out. He had to hold them back using both his hands.’’

‘‘When Victor’s intestines fell out,’’ Mama Victor says and pauses, drifting away in thought…‘‘You know there are those things which if they happen to you, your body suffers a huge shock. I think when both Victor and the policemen saw his intestines hanging, they were all terrified. So Victor tried holding his intestines back, as the policemen rushed to where he was, as if they had just realized whatever damage they had done.’’

‘‘He succumbed before getting to the local hospital,’’ she says, ‘‘where the police were rushing him to.’’

Bernard, who Mama Victor says died instantly from the shot in the head, was left lying at the scene. There was nothing to salvage, with his skull shattered. A third young man, who Mama Victor says was called Paul Omena from Huruma area, and whose parents she hasn’t been able to locate to date, was also shot dead. A fourth, the luckier one of the lot, survived with a bullet wound.

Mathare had swallowed her sons alive

News reached Mama Victor at her Mathare Area 4A home that kuna vijana wameangushwa ( Some young men have been shot dead). What no one told her was that two of those vijanas were her sons. At about 3 pm, a sympathetic eyewitness knocked on her door and broke the news. Her two sons were dead.

‘‘I didn’t understand what they meant when they said my sons had been killed by the police,’’ Mama Victor remembers, ‘‘They had never had any run-ins with law enforcement. I even wondered why they had to kill them both. It didn’t make sense. Families in Mathare lost sons, but losing two sons at one go was strange.’’

By the time she got to the scene, Bernard’s body had been taken away. There was heavy police presence at the scene, Mama Victor recollects. Mathare was uninhabitable and inconsolable.

Permission to Mourn

Amid the chaos that followed the August 8 general election ( 2017) – protests by opposition supporters and police crackdowns in informal settlements like Mathare – Mama Victor had to find a way to hurriedly fundraise before transporting the bodies of Victor and Bernard to their rural home in Western Kenya for burial.

‘‘I was lucky because at least the police allowed us to mourn my sons,’’ she says. ‘‘Others are not so lucky.’’

One may wonder why anyone would need permission from the police to mourn their loved ones, usually shot dead by the police. But in Mathare’s stark reality, when young men are shot dead by the police, families have to negotiate with law enforcement for them to be allowed to either hold vigils, publicly fundraise or even erect a tent where mourners gather to condole with the family.

Amid the chaos that followed the August 8 general election ( 2017) – protests by opposition supporters and police crackdowns in informal settlements like Mathare – Mama Victor had to find a way to hurriedly fundraise before transporting the bodies of Victor and Bernard to their rural home in Western Kenya for burial.

‘‘Here in Mathare,’’ Mama Victor explains, ‘‘if your son is killed and the police label him a criminal, they won’t allow you to mourn him. You can’t have any gatherings. They won’t allow it to happen and if you insist on going ahead with one anyway, they will walk in and arrest you. Everyone here knows that much”.

Besides the ‘privilege’ of mourning Victor and Bernard, neighbours warned Mama Victor that she had to transport the bodies of her sons out of Nairobi before the Supreme Court ruled on the validity of the August 8 presidential election. By this time, the opposition coalition was in the final stages of arguing its petition against what it considered an irregular presidential vote. Kenya continued to be on tenterhooks.

‘‘There were fears in Mathare that whichever way the Supreme Court ruled,’’ Mama Victor remembers,‘‘a fresh wave of protests and police killings would break out, meaning no one would risk coming out to help me with either fundraising or funeral arrangements. I had to move fast. I was mourning and simultaneously thinking on my feet. You carry the pain of unfair deaths in your heart, but still keep your head functioning.’’

By this time, Victor and Bernard had already stayed in the morgue for close to a month, due to lack of money to transport their bodies home for burial. The meetings in Mathare could not raise a substantial amount of cash in good time, meaning they had to continue holding mini-fundraisings. In the end, Mama Victor made do with whatever little she had managed to raise, lest the Supreme Court ruling found her in Nairobi.

‘‘It was a quick burial,’’ Mama Victor narrates. ‘‘By the time we got to Western Kenya, we found the graves had already been dug and went right ahead with the internment. My sons had overstayed at the morgue.’’

By this time, Victor and Bernard had already stayed in the morgue for close to a month, due to lack of money to transport their bodies home for burial. The meetings in Mathare could not raise a substantial amount of cash in good time, meaning they had to continue holding mini-fundraisings. In the end, Mama Victor made do with whatever little she had managed to raise, lest the Supreme Court ruling found her in Nairobi.

The Pursuit of Justice

There was no doubt in anyone’s mind in Mathare that Victor and Bernard were killed by the police. Hundreds of protestors witnessed their shooting.The police themselves went as far as attempting to save Victor’s life, seeing that he hadn’t died instantly. In an ideal scenario, the case should have been an open and shut matter, with the National Police Service owning up to its officer’s excesses. Even more encouraging was the fact that there now existed the Independent Policing Oversight Authority (IPOA), a civilian agency created by an Act of Parliament (2011), which is mandated with ensuring civilian oversight on police action.

However, to the surprise of Mathare residents who have been following the case, justice remains elusive.

‘‘There are people here in Mathare who have video recordings of the police either summarily executing or beating someone to death,’’ Mama Victor tells me. ‘‘If you asked people to bring those video clips today,they’ll come forward. But what we have learnt is that no matter what amount of evidence you have, there are no guarantees that justice will be done. I have waited since 2017 for something to be done to get justice for my sons. To date, nothing has been done by either IPOA or the numerous human rights organizations.’’

After the shooting of her sons, the Mathare Social Justice Center (MSJC), one of the pioneer grassroots documenters of extrajudicial killings, reached out to Mama Victor. In a sense, MSJC has become the last line of defense for Mathare residents, where beyond just securing and preserving evidence in the form of detailed statements, young men have literally sought refuge at the center while being pursued by killer cops. However, for a community-based organization, MSJC, like other social justice centers across Nairobi’s informal settlements, has huge limitations, starting with budgetary and capacity constraints. MSJC therefore acts as a conveyor belt for IPOA and more established human rights organizations, to whom they hand over statements and evidence, with the expectation of an escalation of matters; prosecution and compensation.

MSJC was therefore Mama Victor’s first port of call, from where she was assisted to lodge her case with IPOA and a number of human rights organizations, whose mandate includes seeking legal redress in cases such as hers. Mama Victor must have been mistaken to imagine that her case would be given first priority, because of the available evidence and the enormity of her loss. The death of her two sons. To date, IPOA is yet to present her case to court over a year and a half later.

‘‘A lot of times these women don’t even have bus fare,’’ Wangui Kimari of MSJC, tells me. ‘‘Yet we try to convince them to miss a day’s work for them to record statements with IPOA or attend follow up meetings. Sometimes we take their cases to human rights organizations with capacity to prosecute, but after going through the motions, they send us back to IPOA, citing one technicality or another. It gets extremely tiring and frustrating for these women. It starts to feel like justice is a mirage.’’

‘‘Being a witness in a case against the police can be difficult,’’ Mama Victor tells me. ‘‘You can be killed either before or after you testify. Yet if you go to IPOA, it doesn’t matter if you have video clips. They want witnesses, yet everyone is afraid. Why don’t they use other methods like examining bullets found in the bodies of victims and determining whose gun they originated from? People are totally afraid of testifying.’’

If you asked anyone in Mathare to testify in a courtroom against a policeman, they will most likely remind you of the case of Christopher Maina, where the lead witness was assassinated. Maina, a twenty-something year old who was picked up from Pirates base in Mathare just before the 2017 general election and shot dead by a plain clothes policeman. The summarily execution was witnessed by one of Maina’s friends. In the course of justice for Maina, the friend became a voluntary witness, going as far as recording a statement with IPOA. It was not long before Maina’s friend was murdered, a murder that Mathare residents attribute to a notorious killer cop.

‘‘If they can kill an IPOA witness,’’ a Mathare resident posed, ‘‘then who is safe to ever testify?’’

Organizations such as the International Justice Mission (IJM) have taken up some cases involving police shootings, which complaints were originally with IPOA. However, there is discontentment in the manner the cases are selected. Mathare residents wonder, why some cases are seemingly more equal than others.

‘‘We want the police prosecuted and our families compensated,’’ Mama Victor offers. ‘‘That’s all we want.’’

In the process of speaking to residents of Mathare, I learn that there are more families whose loved ones were shot during the 2017 general election. However, due to the amount of fear the police have instilled in Mathare, these aggrieved families have opted to suffer in silence than dare step up and speak up against police brutality. They won’t even record statements, suffering from a mind numbing mix of fear and trauma.

‘‘The other reason why some mothers and wives choose to live quietly with the pain is because they feel that even if they speak up, justice can never be done,’’ Mama Victor says. ‘‘They can see the trouble some of us have gone through, yet to date, nothing has happened. Not even a mere court case has been opened.’’

‘‘Some of those who are suffering the most are survivors of police shootings during the elections, from the campaign period,’’ a resident who sought anonymity tells me. ‘‘We have some who can’t even afford healthcare. They are rotting in their houses, straining their financially incapacitated families as they await death. Majority have become disabled. In fact there’s one who is still living with a bullet. Doctors said if they remove it, he would die. He is traumatized because he knows death is only a matter of time. Another one was shot on the shoulder. He was released from a moving police vehicle, and as he was running into his home when he got shot. We have all these cases in Mathare. But IPOA doesn’t want to come and setbase here.’’

Mothers and Widows

United in grief, Mama Victor joined a number of women and widows whose sons and husbands were either killed or injured by police bullets during the 2017 general election. They formed an association, the Network of Mothers and Widows of Victims and Survivors, borrowing a leaf from the hundreds of mothers and widows across Nairobi’s informal settlements, who have lost loved ones to extrajudicial killings over time.

‘‘Currently, my network has mothers and widows of 35 survivors, 12 victims and 12 orphans,’’ Mama Victor tells me. ‘‘The victims are the dead, survivors are those who were shot but didn’t die. Some are disabled.’’

Mama Victor, who is the group’s coordinator, tells me that after she met the mothers and widows inside the network she realized how dire things were for these women, not only for her who had lost two sons.

‘‘The youngest widow in my group is an 18 year old,’’ she says, ‘‘who lost her first husband to police bullets before she was 16. On turning 16, her second husband was shot during the 2017 general election. She’s now raising a three year old without a job or anyone to fend for her. Her own mother is bed ridden. Imagine that.’’

Aside from Mama Victor, the group, which has representation from various informal settlements in Nairobi including Dandora, Kayole, Mukuru, Kiambio, Kibera, among others, has a 27 year old who is raising two sons, a 12 and 7 year old, as the oldest member. The median age of group members is below 25, with majority of their children aged under 5. This terrifying reality is a function of a poverty stricken environment, where early marriage becomes a way out of destitution for most young girls.

On the passing of Victor and Bernard, Mama Victor was left with two young widows to cater for.

‘‘Both Bernard and Victor left a wife and a child’’ she says, ‘‘and so for the months following their killing, I had to support the young wives as much as I could. But in the end, I couldn’t manage to keep them afloat. Bernard’s wife, who was an orphan, remarried. She now has a two month old baby from her new marriage. Victor’s wife, who lost her mother, retreated to her village. They’re both just trying to move on with life.’’

From time to time, women in Mama Victor’s network have to make tough choices. One of the more common ones is the decision whether to work or pursue justice for their husbands and sons. But seeing that most women from Mathare work as domestic workers, it becomes difficult for their employers to allow them consecutive off days, especially when they need to interact with either human rights organizations or IPOA, in pursuit of their cases. Therefore a good number of the women end up either losing their jobs, or not earning enough to support their young families.

‘‘I had to quit my job because I had to seek justice for my sons,’’ Mama Victor says. ‘‘My employer couldn’t allow me to keep missing work. It became difficult chasing two birds at one go. I had to let go of one.’’

Even for those willing to work, Mama Victor tells me of kukaa kwa mawe (Sitting on stone blocks), where women go looking for work, but because the economy is doing badly, they end up sitting on the roadside the whole day, waiting for families to call them in for menial work. When the jobs aren’t forthcoming, it means families sleep hungry.

‘‘I visit them and feel their pain,’’ she says, ‘‘just to make them know we’re in this together. Someone should come to the rescue of these women, even if they’ll just take care of the kids. We’re already well organized.’’

‘‘I am sorry to say this,’’ Mama Victor opens up, ‘‘but the most heartbreaking thing I have had to live with has been knowing that some young widows have had to turn to prostitution. As a mother, nothing hurts me more than seeing young women resort to selling their bodies for survival. It tells you they have reached the end of the road and given up. They come to me hoping I can offer them something, anything. But when they get to my house, they realize that I am also literally living hand to mouth. We are really suffering.’’

‘‘My heart hurts deeply,’’ Mama Victor tells me. ‘‘It’s just that I can’t always display my heartbreak.’’

Being Mama Victor

After telling and retelling her story, either to human rights organizations documenting extrajudicial killings or to investigators at IPOA, Mama Victor has gotten to a point where all she can afford in terms of emotional giveaways is to strike a forlorn look. She tells me she has run out of tears, to a point where she now speaks about her sons’ deaths as if it were a distant occurrence from a faraway dream. She is a lonely spectator, burdened with nightmarish enduring memories.

Three weeks after burying her sons, Mama Victor was back in Mathare. She would have wanted to stay in the village longer, but things were a little complicated. Following Baba Victor’s death in 2010, she had run into problems with her husband’s family over her children’s inheritance, land. A helpless widow, she lacked financial or other muscle to push back against errant family members. She surrendered to her fate.

‘‘The entire village was on my side,’’ Mama Victor tells me, ‘‘but at the end of the day, there’s nothing they could do. The immediate family had the final say on the matter, and no one could overrule them. I lost out.’’

Mama Victor first came to Nairobi with the sole intention of pursuing her husband’s pension. He worked as a civil servant, but on investigating what had happened to Baba Victor’s retirement benefits, she was informed that the money had been disbursed to his bank account by the government, but that someone had mysteriously withdrawn the entire amount. There was no way she could be assisted, unless she pursued the matter with the police. Broke and dejected, Mama Victor retreated to a church in Eastleigh, where she was urged by a group of women congregants to start afresh, lest the weight of her tribulations overwhelmed and killed her.

‘‘I started doing domestic work for families in Eastleigh,’’ Mama Victor recalls, ‘‘earning 2,300 shillings per month. At the time, my children had moved in with my parents at their rural home in Busia.The money was so little. I felt stuck, unable to provide for my children in any meaningful way.’’

With the help of women from the church, who donated household items; a blanket here, a mattress there and a few sufurias, Mama Victor managed to start all over again. Her plan was to stabilize before bringing the children over, to join her in Nairobi. With a meagre salary and chattel from the women, she rented a place.

‘‘Rent was 1,300,’’ she says. ‘‘The deposit for the house was another 1,300. That means on the first month when I rented the place, I was left without a coin. In fact, I had to look for an extra 300 to clear the payment.’’

In her little house in Mathare, Mama Victor lived with her daughter and four sons, among them Victor and Bernard. They were joined by two sons born to Mama Victor’s brother in-law. It was a full house in the literal sense, but Mama Victor had no complaints. They were all happy together. With time, the boys started getting work, marrying and moving out. Other than her youngest son, who is now 12, Victor was the youngest of the lot, much as he seemed older than everyone else due to his impressive height.

‘‘He was handsome and tidy,’’ she says of Victor. ‘‘Everyone wanted to be like him, to imitate him. He loved cleanliness from the time he was a little boy. He always stood out. He was such a lovely boy.’’

Mama Victor runs out of adjectives describing her son. There is no doubt that Victor was his mother’s pride.

‘‘Bernard and Victor loved to fool around,’’ she says, ‘‘you can’t say they were violent. Bernard was talkative whenever he was with Victor, but wouldn’t talk much ordinarily. He used to stutter. They loved each other, but beyond that, they had so much love and respect for me. I wish you saw how they behaved around me. If they had passed here and seen me, they’d have come running, saying mathe, mathe, we hadn’t seen you. ’’

Listening to Mama Victor talk, there is no doubt that something truly precious was brutally taken away from her. She speaks fondly, especially of Victor, as if he left with some unfulfilled promises, possibly to work hard and lift his mother out of the precarious existence of his birth. Despite her stoicism, one cannot miss the moments of frailty in Mama Victor’s voice. No one can bring Victor and Bernard back to life but they should at least be consensus that their deaths were unfair and unjustified.

‘‘Vitu zilienda mrama,’’ she says, things went south.

‘‘Sijui nitafanyaaje.’’ I don’t know what to do now.

Tell Uhuru and Raila

On the day I am meeting Mama Victor, she has just come back from her last born son’s school, where the 12 year old is facing a disciplinary case. The teachers have refused to allow him back in class, demanding a considerable sum of money as compensation for whatever damage the boy caused at school. Mama Victor doesn’t have that kind of money, and therefore the headteacher turned her away, refusing to give her back her son’s school bag or allow him anywhere near the school.

With her is Terry, Victor’s three year old daughter, who keeps pulling at her dress, calling her shosho. After Victor’s wife retreated to live with her father in the village, Mama Victor was left with the responsibility of raising her grandchild, who was pretty unwell at the time of our meeting. Looking at Mama Victor nursing Terry – holding her in her lap, giving her water as if breastfeeding and offering her a sole ten shillings coin to buy candy at a nearby kiosk when the little one got restless, one is extremely moved by the plight of a woman, who has had to bury her sons and now single handedly raise their little children.

‘‘Sometimes I feel like I am going crazy,’’ Mama Victor tells me. ‘‘Look at a day like today. I am coming from my son’s school where the teachers are being unreasonable. Then I have to deal with Terry’s health complications, keep pursuing justice for her father and uncle and still find a way to earn a living. Feeding these children is the toughest task because they can’t understand that sometimes one lacks even a cent.’’

After our long chat, Mama Victor tells me she has a message for two individuals; former Prime Minister Raila Odinga and President Uhuru Kenyatta. According to her, Victor and Bernard, among tens of others – over 100 individuals according to the Kenya National Commission on Human Rights (KNCHR), including a six-month infant and a 9 year old – all died because the two men were fighting for Kenya’s presidency. But after the dust settled, Uhuru and Raila made peace, and are now bosom buddies. Mama Victor’s question is, were Victor and Bernard, and the many others, mere collateral damage in a game of political chess? She wonders how the country can ever heal yet the bearers of the nation’s collective terminal pain and wounds have never spoken to it. Are they a sore reminder, to be erased and forgotten?

Sometimes I feel like I am going crazy,’’ Mama Victor tells me. ‘‘Look at a day like today. I am coming from my son’s school where the teachers are being unreasonable. Then I have to deal with Terry’s health complications, keep pursuing justice for her father and uncle and still find a way to earn a living. Feeding these children is the toughest task because they can’t understand that sometimes one lacks even a cent

‘‘I want them to come here,’’ Mama Victor says. ‘‘We want nothing from them. We want to see them with our eyes, for them to see us and know that we exist. They need to know curses come in different forms. Our pain alone is a curse to them. We want absolutely nothing from them. But they must come here and see us.’’

Are Mama Victor’s words a warning shot, a threat, a plea, or all of them rolled into one? Will the big men and their peace-architects listen, or will Mama Victor’s cries and those of others go unheeded? As Kenya’s Mama Victors get worn out by the load of a nation’s collective misdeeds in pursuit of political power, a day shall come when the Mama Victors will no longer be in a position to continue doing national duty as national trauma-bearers. That day, the chain holding Kenya together shall surely break.

 

Postscript: The network of mothers and widows of victims and survivors invited the Independent Policing Oversight Authority (IPOA) to the Mathare Social Justice Center (MSJC) on 04 July, to ‘‘reflect on case management, witness protection, advocacy and psychosocial support.’’ IPOA didn’t show up. 

A criminal human rights reporting project by Africa Uncensored (AU) and the Institute of War and Peace Reporting (IWPR)

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Borders versus People – Part II: Congo – A Classic African Tragedy

The spat between the Rwandan and Ugandan leaders may have more to do with their interests in their neighbour Congo than with any ideological or political split, argues KALUNDI SERUMAGA in this second of a three-part series. How long will the DRC remain the hunting ground for foreign predatory forces? And what does this spat say about the future of Pan-Africanism and regional integration?

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The borders between Uganda, Congo and Rwanda were drawn in the early 1900s. This was not an African decision. A joint team made up of officials representing the German, Belgium and British empires surveyed the hills of the region and made a decision. It was not a simple matter. At one point, they were attacked by a party of rebels led in 1911 by the anti-colonial Nyabinghi warrior Muhumuza, who ambushed a joint Anglo-Belgian-Germany Boundary Commission. It was to be her last operation. She was injured, captured and imprisoned by the British in Buganda for the rest of her life. Forty of her fighters were killed.

But that is the story for Part III of this series.

For now, the story is this: Those white man’s borders still eat African lives. On 27th March this year, a Rwandan national named Elizabeth Mukagarukwiza collapsed and died on the Ugandan side of the closed border while running from Rwanda security officials trying to take her back to Rwanda. She was reportedly in search of medication related to her pregnancy.

On May 24th, two men, one Ugandan, one Rwandan, were shot dead after being intercepted on a goods run into Rwanda. Like many others, they were not carrying anything ordinarily illegal.

First, as usual, it will be the peasants. The rest of us, all things remaining constant, will be caught up with later.

Borders versus People - Part I: The Tribe Conundrum

Read Also: Borders versus People – Part I: The Tribe Conundrum

Both incidents were immediate victims of the increasingly absurd bouts of megaphone diplomacy between the two countries. At one point, in a bid to deny their border incursion, some Rwandan officials even found themselves claiming that the smugglers – one Ugandan and one Rwandan – had been shot dead inside Rwanda, despite their bodies being found on the Ugandan side.

Overall, the crisis has enabled us to more clearly discern two things previously held tight by the now unsettled inner circles.

First, the people of Rwanda, for all their country’s reported developmental progress, remain seriously poor. Many will continue living outside their country, or seek to do so, for economic reasons, rather than political ones.

Second, President Yoweri Museveni’s support to the 1993 Rwanda Patriotic Front (RPF) rebel invasion of Rwanda, and the eventual overthrow of the regime in Rwanda was much more extensive and explicit than many thought at the time.

Third, that the enmity between these two hitherto sister regimes is rooted in their joint sojourn in the Democratic Republic of Congo (DRC).

Having been repeatedly assured that Eastern Africa’s future lies only in ever-greater regional integration, the sight of the principal proponent of this view, and the principal product of its attempted implementation standing now at loggerheads, will be most confounding to those genuine Pan-Africanists in support of that great expression of their ideals – the East African Federation.

Let me put it this way: Who holds the legitimate voice of the various peoples of East Africa? That question is critical to the future of the idea of a regional integration.

Having been repeatedly assured that Eastern Africa’s future lies only in ever-greater regional integration, the sight of the principal proponent of this view, and the principal product of its attempted implementation standing now at loggerheads, will be most confounding to those genuine Pan-Africanists in support of that great expression of their ideals – the East African Federation.

First, who exactly is in conflict with whom, in this instance? Clearly, it would not be correct to call this a conflict between Uganda and Rwanda for the simple reason that despite grand claims to the contrary, neither government can prove they actually represent the will and aspirations of their citizens. Yoweri Museveni of Uganda and Paul Kagame of Rwanda came to power through armed might, relying on narrow ethnic-favouring armies, and have been energetically stage-managing presidential elections – not to mention constitutional controls on their tenures – ever since.

On the other hand, neither can we call this a conflict between two men. Clearly there are interests broader than the personal views of the two principals involved, not to mention the hundreds of minions that have been scurrying about in their name, arresting, deporting, vilifying, abducting, counter-deporting and spaying on each other.

This is a clash of regimes, and the corpus of the respective crony interests that have built up around them over the decades.

Ironically, it is also unavoidable, given that both leaders chaperone exactly the same competing global ambitions and interests in the Great Lakes region, which is exactly what led to the great falling out between their respective armies in the Democratic Republic of Congo. Until then, it did not seem possible to imagine any kind of disagreement ever-emerging between them or their leaders, certainly not in the Pan-African mind.

Congo: Heart of dark foreign forces

But Congo is not the “heart of darkness” of Kurtz’s rendering. Congo is the beating heart of Africa, long excised from her body by a series of venal occupiers: first King Leopold of Belgium, then his state, then Marshal Mobutu as the nyapara for Western corporations there. Finally, our liberators moved in, and the real story of the Uganda-Rwanda border is actually the story of whether they ever actually left.

In that sense, Congo is the heart of light, in that it illuminates all the dark places of a person’s soul, and lays bare their true character, as Joseph Conrad’s Congo did with Kurtz. Ugandan and Rwandan armies entered the DRC as liberating heroes. Today, they are rightly seen as the villains who brought the place to final ruin.

But Congo is not the “heart of darkness” of Kurtz’s rendering. Congo is the beating heart of Africa, long excised from her body by a series of venal occupiers: first King Leopold of Belgium, then his state, then Marshal Mobutu as the nyapara for Western corporations there. Finally, our liberators moved in, and the real story of the Uganda-Rwanda border is actually the story of whether they ever actually left.

It is this centrality to the continent, bordering nine other countries that led Frantz Fanon to call Congo the “trigger” for the coming African revolution. The whole bounty of Africa’s riches seems to lie within her reach.

Along with its current membership of the Southern African Development Community (SADC), and the Economic Community of Central African States (ECCAS), Congo, if it so wished, could be a member state of the East African Community (EAC) and technically even of the Economic Community of West African States (ECOWAS). Its size seems to match only its sheer known mineral wealth, upon which this historical procession of predators feast.

If there is one population on the entire continent least deserving of further depredations, robberies and violence, it is the people of the DRC.

Before even Leopold, so much of its population was fed into the ships of the transatlantic slave trade for centuries that there is even a location called “Congo Square” in what is now the American city of New Orleans, in which the building blocks of American jazz were shaped by enslaved Africans on their occasional days off.

There followed a slavery-in-place, as Belgium’s Leopold organised the extraction of rubber and cocoa through forced labour camps.

William Lever, the British industrialist, was so impressed by the economic efficiencies of the slave labour system that he went into partnership with Leopold for the steady supply of the palm oil he needed to massively expand his soap manufacturing business.

This classic African tragedy, however, did not stop the two great Pan-African armies from clashing there three times, and in the process, basically laying waste the eastern city of Kisangani. Some truly epic levels of energy were expended in the stealing of minerals, lumber and other valuables from the DRC. This progressed from the mere looting of mining company stores to the taking over or establishment of artisanal mines, and even the importation of slave labour made up of “idle” ghetto youth swept off the ghetto streets from as far away as Kampala.

The International Court of Justice’s 2005 ruling against Uganda, as well as a United Nations report on Rwanda, carries the outlines of the criminality, despite furious denials from the culprits. The 10-billion-dollar penalty against Uganda remains unpaid, but the wider crime is to have created the conditions that have led to the deaths of an estimated six million Congolese people.

It would be a mistake to see any of these crimes as events that happened a long time ago, and far away. Lever’s company lives on today as Unilever. Find a moment to go and check how many of the manufactured items on your kitchen and bathroom shelves are made by this company. Congo’s long misery put Unilever in a position to be able to put them there.

The International Court of Justice’s 2005 ruling against Uganda, as well as a United Nations report on Rwanda, carries the outlines of the criminality, despite furious denials from the culprits. The 10-billion-dollar penalty against Uganda remains unpaid, but the wider crime is to have created the conditions that have led to the deaths of an estimated six million Congolese people.

And by taking the role of Mobutu, these two friends’ occupying armies and proxy militias have enabled other Western corporations to hold Congo in that position ever since. The quarrel is about which of these twins will be the principal instrument in the facilitation of this plunder, with more than a little benefit to itself.

Either this Pan-African idea does not really exist, or these leaders have never believed in it.

This is simply the story. Now we need the story behind the story, which I will explore in Part III of this series.

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Borders versus People – Part I: The Tribe Conundrum

Post-colonial Africa’s historical ideological trajectory has been to insist that all the peoples found within any given set of colonial borders at independence could only be considered as “tribes”. In this first of a three-part series, KALUNDI SERUMAGA examines tribal or ethnic identity in the context of shifting political alliances and loyalties.

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Africa’s borders are one of Pan-Africanism’s foundational obsessions. Are they ours, or Europe’s? Do we keep them, or erase them? Did we ever have our own?

Since just before the February decision by the Rwandan government to prevent access to its side of the border with Uganda, we have witnessed a shadowy quarrel between the presidencies of the two countries conducted in shorthand. The border closure was the first openly physical expression of this private argument. Since then, the language has become more robust, and the actions more direct, and even deadly.

With that act, Pan-Africanism came up against the realities of the European-designed political power upon which its member states rest. Perhaps, it will finally now look for an answer to its foundational riddle.

Some background may help here.

Yoweri Museveni, first as anti-Amin rebel activist, and later President of Uganda due to the bush exertions of his National Resistance Army (NRA), was seen –and saw himself – as the embodiment of the Pan-African ideal. Among his victorious soldiers were not insignificant numbers of refugees from Rwanda, some of whom had joined his crusade as far back as the days of General Idi Amin (1971-1979).

Museveni’s embrace, and even promotion to high office, of these excluded Africans was seen as real pan-Africanism in action. Paul Kagame was Uganda’s Deputy Director of Military Intelligence, and Major Fred Rwigyema (who died and was replaced by Kagame as the head of the Rwanda Patriotic Front [RPF]) was the Deputy Minister for Defence.

All this was celebrated, not least by the then luminaires of the attempted revival of the global Pan-Africanist movement led by the magnificently deluded Nigerian activist Tajudeen Abdul-Raheem, who went on to hold what was to be a major re-organisational 1994 conference in Kampala, which was gifted with a permanent secretariat afterwards.

Finally, the notion was cemented by the generous assistance Museveni’s NRA lent to the RPF invasion of Rwanda. In fact, the array of names of the Rwandan personalities (some now deceased) now quarreling among themselves contained a few alumni of Uganda’s Makerere University, as well as former employees of the Ugandan government. During broadcasts, if it were not for the bloodletting, it would be almost amusing watching them dispute in their Ugandan-accented English.

The genesis of the current stand-off

After the RPF victory in Kigali, one would have thought that the Pan-African flower had now bloomed. The RPF was viewed as part of the NRA but under a more focused leadership of the austere-looking disciplinarian Paul Kagame, with none of the shortcomings NRA have so venally displayed once in power.

The current stand-off is, therefore, a culminated development in a political history reaching back over four decades, which has come to define how a generation or two understand politics, war and regional diplomacy. The details of all the attendant schemes, betrayals and illegitimate victories, are theirs. The implications, however, belong to all of us. If these two peas-in-a-pod cannot get on, then who in the region will?

After the RPF victory in Kigali, one would have thought that the Pan-African flower had now bloomed. The RPF was viewed as part of the NRA but under a more focused leadership of the austere-looking disciplinarian Paul Kagame, with none of the shortcomings NRA have so venally displayed once in power.

But perhaps the problem is precisely that many were seeing something that was not really there?

For its part, Kigali eventually made it known that it believes Kampala had already been offering support to a nascent armed rebellion being assembled, it claims, in the forests of the Democratic Republic of Congo (DRC), and led by Kayumba Nyamaswa, a former RPF general. This was flatly denied by Uganda’s long-standing Minister of Foreign Affairs (and even longer-standing in-law to the president), Hon. Sam Kuteesa, who said: “Uganda cannot allow its territory to be used to threaten the security of a neighbouring country.”

Given the military role of the government in which Kuteesa serves in changing the governments of the DRC twice, South Sudan (through helping the secession), and of course Rwanda (by which means Paul Kagame became president in the first place), this must be the ultimate demonstration of diplomat-speak.

And given the fact the President Paul Kagame willingly accepted assistance offered by the Ugandan government (in which he was serving at the time) in that interference that led to the collapse of the regime of then Rwandan president Juvenal Habyarimana, perhaps this alleged assistance to his erstwhile General Nyamwasa should not be a cause for surprise, let alone outrage. He will certainly know what may follow.

The rebellion against the regimes of Idi Amin and Milton Obote basically involved arming refugees and exiles, among others, to help wage a war of the government of the country that was hosting them. This was followed by the arming of refugees to invade a neighbouring country, and then arming refugees and ethnic minorities to march against two DRC governments in Kinshasa, where the armies of Uganda, and Kagame’s Rwanda were to work together in driving the armed movement that removed the regime of Marshal Mobutu from the DRC, and backstopped events around the death of Mobutu’s first replacement.

After a lifetime of breaking rules and flouting the procedures and principles of International relations, President Kagame can hardly suddenly expect them to be upheld in respect to his own regime. And especially not by his former accomplice in such conduct.

President Kagame has a long and complex relationship with the Uganda-Rwanda border. At a personal level, he has been responsible for its security and integrity not from one, but both sides, first, as a very senior Ugandan military intelligence officer, and now as President of Rwanda. He has also crossed it in illegal fashion, first as a child in a family seeking refuge, and lastly as a Ugandan-based armed rebel. And now he has shut it down.

Between the countries, the story becomes even more complex. In the last major constitutional revamp, Uganda included a group defined as “Banyarwanda” in the schedule of “tribes” or ethnic groups of the country. This came about for two main reasons: first, there are significant communities of Ugandan citizens in the far southwest of the country that are of the same ethnicities as those found throughout neighbouring Rwanda. This is a common African situation.

President Kagame has a long and complex relationship with the Uganda-Rwanda border. At a personal level, he has been responsible for its security and integrity not from one, but both sides, first, as a very senior Ugandan military intelligence officer, and now as President of Rwanda.

The other reason is that the NRA’s struggle for power did – as the case of President Paul Kagame shows – take on board very many Rwandan refugees (largely of Tutsi origin). These refugees’ initial attempts to obtain Ugandan citizenship after the 1979 fall of General Amin’s government were opposed by many indigenous Ugandan politicians. Despite that (or perhaps as a result of it), they had gone on to swell the ranks of the NRA as it battled the regime of the then President Milton Obote following the stolen 1980 elections. The NRA’s control of full state power on its own standing ushered in the change in their status.

Much as it has enabled Ugandans of Rwandan ethnicity from the Uganda side of the border to stop having to be named after the nearby mountains or to have other labels (sometimes epithets) foisted upon them by their neighbours, this situation only creates further complications for Pan-Africanism, which as yet remain unacknowledged conundrums, but that will be significant in the future.

To complicate matters further, Uganda also has many people of Burundian origin who migrated to the country in the decades following the establishment of the colonial state. How come they have not been recognised as a separate “ethnicity”? More closely, there has been the argument, in the case of the Rwandan “ethnicity”, that perhaps Uganda should have recognised Rwandan Hutus and Rwandan Tutsi as separate groups, as had historically been the case back in Rwanda.

A similar question has been raised about the Asians settled in the country for nearly a century who have made sporadic requests for “tribal” recognition. In their case, will it go back to the Hutu and Tutsi question: will they be labelled the “Asian tribe”, or will they get registered as the various ethnic or caste groups that they identify with in India or Pakistan?

Tribe or nation?

Post-colonial Africa’s historical ideological trajectory has been to insist that all the peoples found within any given set of colonial borders at independence could only be considered as “tribes”, the raw material out of which the new nation would be built. This an extremely deeply entrenched mindset among almost the entire African political class, irrespective of country, and whether in government or in the opposition.

But here’s the thing: In the case of the members of the relatively newly-established Rwandan tribe of Uganda, one only has to cross the border (once re-opened) to morph into a member of a nationality, without a change in ethnicity.

Between the countries, the story becomes even more complex. In the last major constitutional revamp, Uganda included a group defined as “Banyarwanda” in the schedule of “tribes” or ethnic groups of the country.

The question arises as to how a European-drawn border developed the magical power to transform the same African ethnicity into either a “tribe” or a “nation”, depending on which side of that border it stood.

Other “tribes” in Uganda, such as (famously, or perhaps infamously) the Baganda, remain trapped. Their pre-colonial status as a nation cannot be as easily re-actualised, as they have no such border they can cross. These designated “tribes” have a dubious status within the given polity. Their rights are ephemeral at best. Their continued existence is viewed with official suspicion, a sort of pre-colonial hangover that must be progressively extinguished, through political means if possible, but by naked force, if necessary. They present in public life often as an abused bargaining tool by members of the petit bourgeois class found among them, as they blackmail those holding state power. “Tribalism” is the destructive political habit that results, and is then used to further stigmatise native identity.

Perhaps Kampala’s problem – evidenced historically by the belittling and patronising attitude towards Kigali since the RPF took power there – is that it cannot shake the thinking that the Kigali regime is little more than a Ugandan “tribe” that happens to control another country. In short, an extension of the attitude it holds towards all the ethnicities within the ambit of its own borders.

All these realities and events strongly suggest that the border is the least of our worries; it is what lies beneath, and before. This is what we shall examine in Parts II and III of this series.

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