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.
Support The Elephant.
The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.
Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.
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.
Op-Eds7 days ago
Tigray Atrocities: Extending ICHREE Mandate Crucial for Accountability
Culture2 weeks ago
From Harry Kĩmani to Kwame Rĩgĩi, the Rise and Rise of Kikuyu Soul Music
Politics2 weeks ago
Is Somalia’s Quest for Membership of the EAC Premature?
Op-Eds7 days ago
Climate Change and the Injustice of Environmental Globalism
Reflections7 days ago
Ama Ata Aidoo: A Tribute
Data Stories1 week ago
Sex Education: Are We Doing Enough?
Reflections7 days ago
Mĩcere Gĩthae Mũgo: A Mother and a Gardener
Op-Eds21 hours ago
Are These the Dying Days of La Françafrique?