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Striking a Balance Between Judicial Immunity, Independence and Accountability: The Kenyan Situation

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There is a need to re-engineer these parameters of the Judiciary to strike a functional balance between immunity, independence, impartiality and accountability of members of the bench for Kenya to enjoy a trued independent Judiciary.

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Striking a Balance Between Judicial Immunity, Independence and Accountability: The Kenyan Situation
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Kenya’s Supreme Court is in the eye of a storm. Four members of the apex court face allegations of bribery and impropriety. The Chief Justice himself faces a petition. The Deputy Chief Justice faces the prospect of criminal charges if an ongoing constitutional case is determined against her. One of the Supreme Court judges has declined to appear before the Judicial Service Commission (JSC), citing constitutional immunity.

Lower down the rung, a judge of the High Court who was found unfit has challenged the decision. His appeal has, however, been dismissed by the Supreme Court. Several other High Court judges could face tribunals depending on the findings of the committees set up to investigate the complaints against them. Some of the complaints may turn out to be not worthy of the formation of a tribunal. However, the fact that there are so many complaints against members of the Supreme Court erodes the confidence that should be attached to the apex court, and by extension, to the whole Judiciary.

It is said that when Julius Caeser’s wife, Pompeia, allowed a man dressed as a woman into a Roman religious festival strictly reserved for women, Caeser divorced her. The whole thing had been a prank and Pompeia had no intentions of impropriety. Aware of this, the citizens of Rome enquired why Caeser had divorced his wife. “The wife of Caeser must be above suspicion,” was the Great Emperor’s response. Hence the comparison with the level of integrity expected of a judge.

Perception plays an important role in the discharge of justice. Some 118 years ago, Lord Charles Bowen, while setting aside the ruling of the Lord Chief Justice who had determined an appeal in a case involving his own brother’s architectural firm, said, “Like Caeser’s wife, a judge must be beyond suspicion.”

Now one may ask where Caeser’s wife fits in all this? What does Caeser’s wife have to do with the integrity of a judge?

It is said that when Julius Caeser’s wife, Pompeia, allowed a man dressed as a woman into a Roman religious festival strictly reserved for women, Caeser divorced her. The whole thing had been a prank and Pompeia had no intentions of impropriety. Aware of this, the citizens of Rome enquired why Caeser had divorced his wife. “The wife of Caeser must be above suspicion,” was the Great Emperor’s response. Hence the comparison with the level of integrity expected of a judge.

A transparent, reliable and accountable Judiciary is vital in the furtherance of the rule of law, which is fundamental to constitutionalism and democracy. It cannot be gainsaid that right from the recruitment, functioning, supervision, to the removal of judicial officers, the process must be rigorous, transparent, accountable and free from influence. To properly carry out their mandate, judicial officers must be insulated from victimisation arising from the discharge of their judicial functions. Conversely, they must conduct themselves with the propriety expected from those entrusted with great power.

Justice before 2010

Prior to the enactment of the 2010 constitution, the appointment of the Chief Justice was the sole prerogative of the president. He was also the appointing authority in the appointment of judges, the only rider being that with such appointments, he was to act in accordance with the advice of the Judicial Service Commission (JSC).

An examination of the composition the JSC, however, clearly showed that the president held sway in such appointments. Composed of the Chief Justice, the Attorney General, two judges appointed by the president and the chair of the Public Service Commission, all members of the JSC were direct or indirect appointees of the president and, therefore, beholden to him.

Another contract judge, Patrick O’Connor, was sacked by the Chief Justice when he resisted a transfer to Meru. When O’Connor questioned whether the Chief Justice had the powers to sack him, he was criticised by the political class. Not long after, in 1988, Parliament amended the constitution to remove the security of tenure of judges.

Then there were the “contract judges”, who were mostly British citizens. Their contracts were renewable at the government’s discretion. Some of these judges were so beholden to the Executive that, in one instance, the by then Chief Justice, Alan Robin Hancox, in 1991 went as far as advising members of the bar and bench that their loyalty was to the head of state.

Another contract judge, Norbury Dugdale, found himself in conflict with lawyers and members of the Law Society of Kenya (LSK) due to the consistency of his decisions in favour of the Executive. Supporting an earlier call by nine members of the LSK in 1991 to have a tribunal established for the removal of Chief Justice Hancox and Justice Dugdale in September of that year, 107 lawyers signed a memorandum calling for the resignation of the two. (The Weekly Review Sep 6, 1991, page 4.)

Not all of the contract judges acted as gatekeepers for the Executive. Not all of them were malleable to the whims of the head of state. The fierce independence of Justice Derek Schofield, a contract judge, comes to mind. In 1978, a family filed a writ of habeas corpus seeking the production of their family member, Mbaraka Karanja. When Justice Schofield ordered the production of Karanja, the police said that he had been shot while escaping and had been buried. The judge then insisted the body be exhumed. Even after the opening of 19 graves, there was still no body of Karanja. Justice Schofield then threatened the Director of Criminal Investigation with contempt, prompting Chief Justice Cecil Miller to remove the case from the judge and to transfer him to Meru. Justice Schofield chose to resign than put up with this blatant interference. He would later say that the Chief Justice had informed him that his actions had been at the behest of President Moi. (Nairobi Law Monthly 49. Feb/Mar, 1992, and also Nation newspaper, 11 October 2008, interview with Okwemba.)

Another contract judge, Patrick O’Connor, was sacked by the Chief Justice when he resisted a transfer to Meru. When O’Connor questioned whether the Chief Justice had the powers to sack him, he was criticised by the political class. Not long after, in 1988, Parliament amended the constitution to remove the security of tenure of judges. ( Weekly Review, 5 August 1988, page 3.)

At the lower tier of the judiciary were the magistrates. Greater in number than the judges, and considered the true face of the Judiciary, they worked in far-flung stations. The JSC exercised complete control over their appointment. The law afforded them nothing in terms of security of tenure and they could be sacked at any time through mechanisms that were not transparent.

They worked alongside police prosecutors. Often considered enforcers for the Executive, their courts acted arbitrarily with little regard for the law or procedure. The extent of their emasculation by the Executive was at its most obvious during the Mwakenya trials. Scores of intellectuals, students, politicians and ordinary wananchi were arrested, tortured and charged with belonging to proscribed groups. The accused persons were “tried” and convicted in the magistrate’s courts, outside court hours, usually in the evenings without the benefit of counsel. (See KNHRC 2009 publication “Surviving after Torture”, pages 41-42.) One of the accusations against the twelfth Chief Justice, Benard Chunga, in 2003 when a tribunal for his removal was constituted, was that during his tenure as the Deputy Public Prosecutor, he had condoned and executed programmes of torture and illegal trials in the magistrate’s courts.

Executive interference was not the only factor that influenced the decisions of judicial officers. Far from it. In many cases, it was corruption that subverted the course of justice. So rooted was this vice that the popular saying, “Why hire a lawyer when you can buy a judge?” was an accurate depiction of the state of corruption in the Judiciary. The corridors of “justice” had become a marketplace where the highest bidder carried the day.

Magistrates who displayed independence were punished. A case in point was in 1994 when Senior Principal Magistrate, Onesmus Githinji; while acquitting six accused persons (famously known as the Ndeiya Six) charged with breaking into a chief’s camp, censured the police and ordered an investigation over allegations of torture. Soon after, he was transferred to a remote court in Kitui, which prompted him to resign.

Executive interference was not the only factor that influenced the decisions of judicial officers. Far from it. In many cases, it was corruption that subverted the course of justice. So rooted was this vice that the popular saying, “Why hire a lawyer when you can buy a judge?” was an accurate depiction of the state of corruption in the Judiciary. The corridors of “justice” had become a marketplace where the highest bidder carried the day.

The impunity with which some judicial officers conducted their affairs was in some instances almost hilarious. In Kisumu, an advocate obtained a photograph of a judge being transported in a vehicle that the same judge had irregularly allowed an auctioneer to attach and sell. When the advocate confronted the judge with this evidence and asked that he disqualify himself from the still ongoing proceedings, he declined. (The same judge would resign rather than face a tribunal during the 2003 “radical surgery” of the Judiciary initiated during the Mwai Kibaki administration.) In Nairobi, a magistrate was found with two sets of written judgments for the same case, one acquitting the accused, the other convicting him. His reason for this embarrassing situation was anyone’s guess.

In remote stations, magistrates were a law unto themselves. Feared by a populace that had long accepted corruption as a way of the courts, they went about their sordid business without a care in the world.

The Radical Surgery

By the time the country was going to the 2002 polls, it was plain to see that it was just a matter of time before some serious intervention was made to try and salvage a Judiciary gone rogue. And come it did in the form of what came to be known as the Radical Surgery.

With the defeat of KANU in the 2002 presidential elections and the ascendance of Mwai Kibaki to power, the stage was set for a radical intervention. An Anti-Corruption Committee chaired by Justice Aron Ringera was promptly constituted to investigate corruption in the Judiciary. Upon completing its work, it tabled a report that chronicled instances ranging from judicial officers receiving money to influence decisions to the seeking of sexual favours to make favourable decisions. It implicated 5 of the 9 Court of Appeal judges, 18 of the 36 High Court judges and 82 of the 254 magistrates country-wide.

This radical crackdown had unmasked powerful men and women, who hitherto, like Caeser’s wife, had been considered above suspicion. Pictures of Court of Appeal judges outside what is now the Supreme Court being helped by family members to load personal belongings into the boots of cars was a reflection of the magnitude of what had transpired.

In a brazen, and most would say unfair, move, the names of the implicated judicial officers were published in the national press even before they were informed of the accusations against them. This was followed by a withdrawal of their benefits and privileges. (These were to be reinstated many months later.) A two-week ultimatum to resign or be dismissed was issued to them. Many opted for the former. Some of the judges decided to face the tribunals. Justices Waki, Anganyanya, Nambuye, and Mbogoli were some of the judges who were later cleared and resumed their duties as judges.

This radical crackdown had unmasked powerful men and women, who hitherto, like Caeser’s wife, had been considered above suspicion. Pictures of Court of Appeal judges outside what is now the Supreme Court being helped by family members to load personal belongings into the boots of cars was a reflection of the magnitude of what had transpired. Men, once the face of justice, were struggling to put as much distance as possible between themselves and the corridors of justice.

Years of corruption and impunity within the Judiciary had eroded public confidence. This now ensured that there was little sympathy for these victims of the purge. It was the reason why there was little protest, despite the process of their removal being unfair and unjust. Even when the President, in an unorthodox move, used his authority to appoint 28 acting judges of the High Court to replace the fired ones, there was hardly any opposition.

The President’s move was irregular. The new acting judges had not been subjected to scrutiny. Many believed their appointment was influenced by political, tribal and other considerations, rather than merit. The process was flawed. Consequently, an opportunity to effectively clean up the Aegean stables that our Judiciary had become was lost.             

In 2003, Evan Gicheru replaced Benard Chunga as the thirteenth Chief Justice of independent Kenya. An embattled Chunga had opted to resign rather than face a tribunal made up of men he had on many occasions crossed swords with, and whose opinion of him could only be negative.

Business as usual

The Radical Surgery having gobbled up a sizeable chunk of the old faces in the judiciary. Many naively expected a reduction in instances of executive interference and corruption and consequently a marked improvement in the delivery of justice. This was not to be and for obvious reasons.

Firstly, the manner in which the Radical Surgery had been carried out, with little regard for the internationally accepted standards for the removal of judges, greatly eroded morale in the Judiciary. The appointment of 28 acting judges to replace those removed was also far from transparent. The appointees were beholden to the appointing authority, which was still the President. The constitution still allowed him the sole prerogative in the appointment of the Chief Justice. Little wonder then that in 2007, Chief Justice Evan Gicheru, who owed his appointment solely to President Kibaki, was agreeable to irregularly swearing him in as president at dusk in a private function at State House after a highly contested election. The culmination of this was an eruption of violence that left over a thousand dead and hundreds of thousands displaced.

The other reason why the Judiciary would still be hobbled with the problems of old was that the institutional deficiencies remained in place. While the faces of the judicial officers had to a great extent changed, the structures and working conditions for a long time remained the same. Soon enough it was business as usual.

The greatest opportunity to truly revamp the Kenyan Judiciary came with the promulgation of the new constitution in 2010. For the first time, the appointment of the Chief Justice would not be the sole prerogative of the president. The new constitution provided for an independent Judicial Service Commission (JSC). Save for the Attorney General and a couple of other members, the JSC was to be composed of a representative elected by magistrates, judges of the High Court and the Court of Appeal, and two members elected by the Law Society of Kenya, amongst others; all independent of the Executive. The members of the JSC were to forward their choice for Chief Justice to the President. Their single nominee – subject to the vetting of Parliament – would be appointed to head the Judiciary.

The new constitution also mandated Parliament to provide legislation for the vetting of all judges and magistrates who were in office on the 27th of August 2010. This culminated in the enactment of the Vetting of Judges and Magistrates Act No. 2 of 2011 and consequently the appointment of a vetting board by the President in consultation with the Prime Minister. A seasoned advocate, Sharad Rao, was appointed to chair the board. The decision of the board was not to be the subject of question or review in any court.

The Mutunga Era

In June 2011, Willy Mutunga, a well-known human rights activist, one-time chair of the LSK and a former detainee, was appointed the fourteenth Chief Justice. Everyone agreed that with his appointment, the third arm of government was on the way to great heights. The state of the Judiciary at the time of his appointment was summed up in his speech delivered in October 2011.

The new Chief Justice was considered an outsider – he had not been a member of the Judiciary nor had he practised much as an advocate. So he was bound to meet opposition to his leadership and any proposed reforms. The advantage was that he would not be bound by the cartels that had for a long time taken root in the Judiciary.

“We found an institution so frail in its structures; so thin on resources; so low in confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic. We found a judiciary that was designed to fail.”

The new Chief Justice was alive to the dire state of the Judiciary he had been tasked to head. With only 16 High Court stations and 111 magistrate’s courts around the country, a total of 53 judges and 330 magistrates were expected to cater for a population of over 41 million. Morale amongst the magistrates was low. Considered the backbone of the Judiciary, they handled most of the cases in far-flung courts under appalling conditions, yet their salaries, in comparison with what the judges were paid, was measly. There was a huge case backlog, which was not helped by the constant disappearance of files instigated by litigants and even advocates. Financing was low, with a paltry 0.05 per cent of the national budget set aside for the Judiciary in 2010-2011, compared with the international benchmark of 2.5 per cent. This was the Judiciary that Mutunga inherited from Evan Gicheru.

Upon assuming office, Willy Mutunga realised that there were many reports by civil society and task forces formed by past Chief Justices, the latest being the 2009-2010 report by Justice Ouko that recommended improvements in the functioning of the Judiciary. Using most of this material, his team developed what he called The Judiciary Transformation Framework.

The new Chief Justice was considered an outsider – he had not been a member of the Judiciary nor had he practised much as an advocate. So he was bound to meet opposition to his leadership and any proposed reforms. The advantage was that he would not be bound by the cartels that had for a long time taken root in the Judiciary. The confidence in the new Chief Justice was soon reflected in the substantial increase in funding of the Judiciary. Parliament more than doubled the Judiciary’s budget allocation in 2011-2012. The World Bank, GTZ and UNDP committed funds towards the intended transformation.

Mutunga also sought to give the Judiciary a more human face by doing away with some anachronistic traditions. He allowed for less formal attire and did away with symbols such as wigs. Encouraging interaction between judicial officers and court users, he sought to bridge the distance that had been created under the guise of independence and impartiality. He introduced new innovations, like the Daily Court Returns Template tracking the progress of cases.

Then Petition Number 5 of 2013 happened. It challenged the election of Uhuru Kenyatta as the fourth President of the Republic. On 30th March 2013, in a brief statement delivered in an almost cavalier manner, Chief Justice Mutunga dismissed the presidential election petition. A full judgment followed on 16th April of the same year. Criticised for its lack of depth and failure to confront the evidence, it left a blot in the image of a Judiciary that was still struggling to erase an inglorious past.

The presidential petition aside, more than any other Chief Justice, it was Mutunga who squarely faced the institutional bottlenecks that had long dogged the Judiciary. He undertook structured efforts to solve them. His earlier standing in civil society also helped marshal the finances required to transform the Judiciary. The current robust engagement between court users and the Judiciary, hitherto lacking, can be attributed to Mutunga’s efforts at giving the Judiciary a human face.

Current state of the Judiciary

On the 1st September 2017, the Supreme Court, chaired by Chief Justice David Maraga, nullified the disputed 2017 presidential elections and called for fresh elections within sixty days. While the world wowed, an enraged President called the judges of the Supreme Court “wakora” (crooks). The political class swore to “revisit” the issue. Confidence in the Judiciary soared.

The nullification of a presidential election by the apex court was a clear indicator of how far the Judiciary had moved in terms of independence from the Executive. Such a move would never have been thought of in the times of Hancox or Miller.

Upon realising that the intimidation of judges no longer worked, the Executive now sought to control the appointment process. One clear instance was the Amendments to the Judicial Service Act that sought to have the JSC forward three nominees to the President, instead of one, for position of Chief Justice. The LSK successfully petitioned a constitutional court to declare the amendments to be in breach of the doctrine of separation of powers.

Further pointers of independence from the other arms of government were evident in the fearless abandon with which the High Court continued to strike down legislation sponsored by the Executive as unconstitutional. In 2015, a five-judge bench agreed with the views of Justice Odunga and struck out eight offensive clauses in the controversial Security Law (Amendment) Act No 19 of 2014 as being in violation of fundamental human rights. This prompted much criticism from politicians, with threats against sitting judges.

Upon realising that the intimidation of judges no longer worked, the Executive now sought to control the appointment process. One clear instance was the Amendments to the Judicial Service Act that sought to have the JSC forward three nominees to the President, instead of one, for position of Chief Justice. The LSK successfully petitioned a constitutional court to declare the amendments to be in breach of the doctrine of separation of powers.

The Executive Director of the Kenya Human Rights Commission (KHRC), George Kegoro, in an opinion piece in the Standard newspaper, pointed out other instances of such interference: In one such move the President revoked the membership of two commissioners of the JSC, namely, Rev Samuel Kobia and Kipngetich Bett, while their term had not expired and in disregard of their security of tenure. Another attempt was the insistence on Parliament vetting Justice Warsame, who had been re-elected by the Court of Appeal to the JSC. It took a judgment of the Court of Appeal to scuttle the intended mischief.

The 2016-2017 State of The Judiciary & Administration of Justice Report shows that the number of judges in 2017 had almost tripled to 158 from just 53 in 2011. The number of magistrates had also risen from 330 in 2011 to 421 in 2017. Judiciary funding had almost doubled to 0.99 per cent in 2017. The maximum salary of a judge of the High Court was now slightly over Sh1 million, while that of a Chief Magistarate was over Sh700,000.

With these marked improvements in the numbers and remuneration of judicial officers, why was it that the Transparency International Bribery Index 2017 still considered the Kenyan Judiciary as the second most corrupt institution in the country after the police? Why was there still a perception amongst Kenyans that corruption was still rife in the Judiciary?

The immunity of members of the judiciary from any action or suit for anything done or omitted in good faith, in the lawful performance of a judicial function, is guaranteed in Article 160(5) of the 2010 constitution. Case law also suggests that no action can lie against a judicial officer for anything done within his or her jurisdiction even if done maliciously and in bad faith. (See Anderson -vs-Gorrie [1895] 1QB, 668. A similar position was held by our courts in Bellevue Dev Co Ltd –vs- Justice Francis Gikonyo & 7 others, [2018] eKLR.) What is suggested is that you can never sue a judicial officer for personal liability over anything he does within his jurisdiction even though it is done with malice. It matters not that his decision is so tainted with malice and militates against the evidence to the extent that it can only be attributable to extraneous factors.

Remedy lies in lodging a complaint with the JSC against such a judicial officer, and that’s just about where it ends. Immunity of judicial officers from personal liability for acts while in office, as provided in Article 160(5), suggests that it survives the officer’s tenure. Not even the President of the Republic is offered such immunity. The immunity accorded to a President under Article 143 of the constitution over acts carried out while in office does not extend past his tenure. It also allows for the period of limitation of time for any anticipated action against the President to stop running during his term in office.

It is common knowledge that the complaint process against judicial officers is slow and can remain undetermined for years. One of the reasons is that commissioners of the JSC hold other demanding jobs and enterprises. These men and women only meet occasionally. Judicial officers facing complaints have been known to brag that such complaints will not see the light of day due to the slow process. Others who have been suspended from office as their cases await determination also complain of the slow pace with which their cases are handled. Perhaps the time is right for the implementation of the Sharad Rao-led Judges and Magistrates Vetting Board recommendations of having a permanent Complaints Tribunal to handle such complaints.

The safeguard of immunity, together with the principles of independence and impartiality, are tailored to assist judicial officers to carry out their onerous task of dispensing justice. This has at times been abused. It is not uncommon for an errant judicial officer to shelter behind the iron veil of independence to escape accountability. There is a need to re-engineer these parameters and strike a functional balance between immunity, independence, impartiality and accountability of members of the bench.

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P. Ochieng Ochieng is a writer based in Nairobi, Kenya.

Politics

Asylum Pact: Rwanda Must Do Some Political Housecleaning

Rwandans are welcoming, but the government’s priority must be to solve the internal political problems which produce refugees.

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Asylum Pact: Rwanda Must Do Some Political Housecleaning
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The governments of the United Kingdom and Rwanda have signed an agreement to move asylum seekers from the UK to Rwanda for processing. This partnership has been heavily criticized and has been referred to as unethical and inhumane. It has also been opposed by the United Nations Refugee Agency on the grounds that it is contrary to the spirit of the Refugee Convention.

Here in Rwanda, we heard the news of the partnership on the day it was signed. The subject has never been debated in the Rwandan parliament and neither had it been canvassed in the local media prior to the announcement.

According to the government’s official press release, the partnership reflects Rwanda’s commitment to protect vulnerable people around the world. It is argued that by relocating migrants to Rwanda, their dignity and rights will be respected and they will be provided with a range of opportunities, including for personal development and employment, in a country that has consistently been ranked among the safest in the world.

A considerable number of Rwandans have been refugees and therefore understand the struggle that comes with being an asylum seeker and what it means to receive help from host countries to rebuild lives. Therefore, most Rwandans are sensitive to the plight of those forced to leave their home countries and would be more than willing to make them feel welcome. However, the decision to relocate the migrants to Rwanda raises a number of questions.

The government argues that relocating migrants to Rwanda will address the inequalities in opportunity that push economic migrants to leave their homes. It is not clear how this will work considering that Rwanda is already the most unequal country in the East African region. And while it is indeed seen as among the safest countries in the world, it was however ranked among the bottom five globally in the recently released 2022 World Happiness Index. How would migrants, who may have suffered psychological trauma fare in such an environment, and in a country that is still rebuilding itself?

A considerable number of Rwandans have been refugees and therefore understand the struggle that comes with being an asylum seeker and what it means to receive help from host countries to rebuild lives.

What opportunities can Rwanda provide to the migrants? Between 2018—the year the index was first published—and 2020, Rwanda’s ranking on the Human Capital Index (HCI) has been consistently low. Published by the World Bank, HCI measures which countries are best at mobilising the economic and professional potential of their citizens. Rwanda’s score is lower than the average for sub-Saharan Africa and it is partly due to this that the government had found it difficult to attract private investment that would create significant levels of employment prior to the COVID-19 pandemic. Unemployment, particularly among the youth, has since worsened.

Despite the accolades Rwanda has received internationally for its development record, Rwanda’s economy has never been driven by a dynamic private or trade sector; it has been driven by aid. The country’s debt reached 73 per cent of GDP in 2021 while its economy has not developed the key areas needed to achieve and secure genuine social and economic transformation for its entire population. In addition to human capital development, these include social capital development, especially mutual trust among citizens considering the country’s unfortunate historical past, establishing good relations with neighbouring states, respect for human rights, and guaranteeing the accountability of public officials.

Rwanda aspires to become an upper middle-income country by 2035 and a high-income country by 2050. In 2000, the country launched a development plan that aimed to transform it into a middle-income country by 2020 on the back on a knowledge economy. That development plan, which has received financial support from various development partners including the UK which contributed over £1 billion, did not deliver the anticipated outcomes. Today the country remains stuck in the category of low-income states. Its structural constraints as a small land-locked country with few natural resources are often cited as an obstacle to development. However, this is exacerbated by current governance in Rwanda, which limits the political space, lacks separation of powers, impedes freedom of expression and represses government critics, making it even harder for Rwanda to reach the desired developmental goals.

Rwanda’s structural constraints as a small land-locked country with no natural resources are often viewed as an obstacle to achieving the anticipated development.

As a result of the foregoing, Rwanda has been producing its own share of refugees, who have sought political and economic asylum in other countries. The UK alone took in 250 Rwandese last year. There are others around the world, the majority of whom have found refuge in different countries in Africa, including countries neighbouring Rwanda. The presence of these refugees has been a source of tension in the region with Kigali accusing neighbouring states of supporting those who want to overthrow the government by force. Some Rwandans have indeed taken up armed struggle, a situation that, if not resolved, threatens long-term security in Rwanda and the Great Lakes region. In fact, the UK government’s advice on travel to Rwanda has consistently warned of the unstable security situation near the border with the Democratic Republic of Congo (DRC) and Burundi.

While Rwanda’s intention to help address the global imbalance of opportunity that fuels illegal immigration is laudable, I would recommend that charity start at home. As host of the 26th Commonwealth Heads of Government Meeting scheduled for June 2022, and Commonwealth Chair-in-Office for the next two years, the government should seize the opportunity to implement the core values and principles of the Commonwealth, particularly the promotion of democracy, the rule of law, freedom of expression, political and civil rights, and a vibrant civil society. This would enable Rwanda to address its internal social, economic and political challenges, creating a conducive environment for long-term economic development, and durable peace that will not only stop Rwanda from producing refugees but will also render the country ready and capable of economically and socially integrating refugees from less fortunate countries in the future.

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Politics

Beyond Borders: Why We Need a Truly Internationalist Climate Justice Movement

The elite’s ‘solution’ to the climate crisis is to turn the displaced into exploitable migrant labour. We need a truly internationalist alternative.

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“We are not drowning, we are fighting” has become the rallying call for the Pacific Climate Warriors. From UN climate meetings to blockades of Australian coal ports, these young Indigenous defenders from twenty Pacific Island states are raising the alarm of global warming for low-lying atoll nations. Rejecting the narrative of victimisation – “you don’t need my pain or tears to know that we’re in a crisis,” as Samoan Brianna Fruean puts it – they are challenging the fossil fuel industry and colonial giants such as Australia, responsible for the world’s highest per-capita carbon emissions.

Around the world, climate disasters displace around 25.3 million people annually – one person every one to two seconds. In 2016, new displacements caused by climate disasters outnumbered new displacements as a result of persecution by a ratio of three to one. By 2050, an estimated 143 million people will be displaced in just three regions: Africa, South Asia, and Latin America. Some projections for global climate displacement are as high as one billion people.

Mapping who is most vulnerable to displacement reveals the fault lines between rich and poor, between the global North and South, and between whiteness and its Black, Indigenous and racialised others.

Globalised asymmetries of power create migration but constrict mobility. Displaced people – the least responsible for global warming – face militarised borders. While climate change is itself ignored by the political elite, climate migration is presented as a border security issue and the latest excuse for wealthy states to fortify their borders. In 2019, the Australian Defence Forces announced military patrols around Australia’s waters to intercept climate refugees.

The burgeoning terrain of “climate security” prioritises militarised borders, dovetailing perfectly into eco-apartheid. “Borders are the environment’s greatest ally; it is through them that we will save the planet,” declares the party of French far-Right politician Marine Le Pen. A US Pentagon-commissioned report on the security implications of climate change encapsulates the hostility to climate refugees: “Borders will be strengthened around the country to hold back unwanted starving immigrants from the Caribbean islands (an especially severe problem), Mexico, and South America.” The US has now launched Operation Vigilant Sentry off the Florida coast and created Homeland Security Task Force Southeast to enforce marine interdiction and deportation in the aftermath of disasters in the Caribbean.

Labour migration as climate mitigation

you broke the ocean in
half to be here.
only to meet nothing that wants you
– Nayyirah Waheed

Parallel to increasing border controls, temporary labour migration is increasingly touted as a climate adaptation strategy. As part of the ‘Nansen Initiative’, a multilateral, state-led project to address climate-induced displacement, the Australian government has put forward its temporary seasonal worker program as a key solution to building climate resilience in the Pacific region. The Australian statement to the Nansen Initiative Intergovernmental Global Consultation was, in fact, delivered not by the environment minister but by the Department of Immigration and Border Protection.

Beginning in April 2022, the new Pacific Australia Labour Mobility scheme will make it easier for Australian businesses to temporarily insource low-wage workers (what the scheme calls “low-skilled” and “unskilled” workers) from small Pacific island countries including Nauru, Papua New Guinea, Kiribati, Samoa, Tonga, and Tuvalu. Not coincidentally, many of these countries’ ecologies and economies have already been ravaged by Australian colonialism for over one hundred years.

It is not an anomaly that Australia is turning displaced climate refugees into a funnel of temporary labour migration. With growing ungovernable and irregular migration, including climate migration, temporary labour migration programs have become the worldwide template for “well-managed migration.” Elites present labour migration as a double win because high-income countries fill their labour shortage needs without providing job security or citizenship, while low-income countries alleviate structural impoverishment through migrants’ remittances.

Dangerous, low-wage jobs like farm, domestic, and service work that cannot be outsourced are now almost entirely insourced in this way. Insourcing and outsourcing represent two sides of the same neoliberal coin: deliberately deflated labour and political power. Not to be confused with free mobility, temporary labour migration represents an extreme neoliberal approach to the quartet of foreign, climate, immigration, and labour policy, all structured to expand networks of capital accumulation through the creation and disciplining of surplus populations.

The International Labour Organization recognises that temporary migrant workers face forced labour, low wages, poor working conditions, virtual absence of social protection, denial of freedom association and union rights, discrimination and xenophobia, as well as social exclusion. Under these state-sanctioned programs of indentureship, workers are legally tied to an employer and deportable. Temporary migrant workers are kept compliant through the threats of both termination and deportation, revealing the crucial connection between immigration status and precarious labour.

Through temporary labour migration programs, workers’ labour power is first captured by the border and this pliable labour is then exploited by the employer. Denying migrant workers permanent immigration status ensures a steady supply of cheapened labour. Borders are not intended to exclude all people, but to create conditions of ‘deportability’, which increases social and labour precarity. These workers are labelled as ‘foreign’ workers, furthering racist xenophobia against them, including by other workers. While migrant workers are temporary, temporary migration is becoming the permanent neoliberal, state-led model of migration.

Reparations include No Borders

“It’s immoral for the rich to talk about their future children and grandchildren when the children of the Global South are dying now.” – Asad Rehman

Discussions about building fairer and more sustainable political-economic systems have coalesced around a Green New Deal. Most public policy proposals for a Green New Deal in the US, Canada, UK and the EU articulate the need to simultaneously tackle economic inequality, social injustice, and the climate crisis by transforming our extractive and exploitative system towards a low-carbon, feminist, worker and community-controlled care-based society. While a Green New Deal necessarily understands the climate crisis and the crisis of capitalism as interconnected — and not a dichotomy of ‘the environment versus the economy’ — one of its main shortcomings is its bordered scope. As Harpreet Kaur Paul and Dalia Gebrial write: “the Green New Deal has largely been trapped in national imaginations.”

Any Green New Deal that is not internationalist runs the risk of perpetuating climate apartheid and imperialist domination in our warming world. Rich countries must redress the global and asymmetrical dimensions of climate debtunfair trade and financial agreements, military subjugation, vaccine apartheidlabour exploitation, and border securitisation.

It is impossible to think about borders outside the modern nation-state and its entanglements with empire, capitalism, race, caste, gender, sexuality, and ability. Borders are not even fixed lines demarcating territory. Bordering regimes are increasingly layered with drone surveillance, interception of migrant boats, and security controls far beyond states’ territorial limits. From Australia offshoring migrant detention around Oceania to Fortress Europe outsourcing surveillance and interdiction to the Sahel and Middle East, shifting cartographies demarcate our colonial present.

Perhaps most offensively, when colonial countries panic about ‘border crises’ they position themselves as victims. But the genocide, displacement, and movement of millions of people were unequally structured by colonialism for three centuries, with European settlers in the Americas and Oceania, the transatlantic slave trade from Africa, and imported indentured labourers from Asia. Empire, enslavement, and indentureship are the bedrock of global apartheid today, determining who can live where and under what conditions. Borders are structured to uphold this apartheid.

The freedom to stay and the freedom to move, which is to say no borders, is decolonial reparations and redistribution long due.

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The Murang’a Factor in the Upcoming Presidential Elections

The Murang’a people are really yet to decide who they are going to vote for as a president. If they have, they are keeping the secret to themselves. Are the Murang’a people prepping themselves this time to vote for one of their own? Can Jimi Wanjigi re-ignite the Murang’a/Matiba popular passion among the GEMA community and re-influence it to vote in a different direction?

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The Murang’a Factor in the Upcoming Presidential Elections
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In the last quarter of 2021, I visited Murang’a County twice: In September, we were in Kandiri in Kigumo constituency. We had gone for a church fundraiser and were hosted by the Anglican Church of Kenya’s (ACK), Kahariro parish, Murang’a South diocese. A month later, I was back, this time to Ihi-gaini deep in Kangema constituency for a burial.

The church function attracted politicians: it had to; they know how to sniff such occasions and if not officially invited, they gate-crash them. Church functions, just like funerals, are perfect platforms for politicians to exhibit their presumed piousness, generosity and their closeness to the respective clergy and the bereaved family.

Well, the other reason they were there, is because they had been invited by the Church leadership. During the electioneering period, the Church is not shy to exploit the politicians’ ambitions: they “blackmail” them for money, because they can mobilise ready audiences for the competing politicians. The politicians on the other hand, are very ready to part with cash. This quid pro quo arrangement is usually an unstated agreement between the Church leadership and the politicians.

The church, which was being fund raised for, being in Kigumo constituency, the area MP Ruth Wangari Mwaniki, promptly showed up. Likewise, the area Member of the County Assembly (MCA) and of course several aspirants for the MP and MCA seats, also showed up.

Church and secular politics often sit cheek by jowl and so, on this day, local politics was the order of the day. I couldn’t have speculated on which side of the political divide Murang’a people were, until the young man Zack Kinuthia Chief Administrative Secretary (CAS) for Sports, Culture and Heritage, took to the rostrum to speak.

A local boy and an Uhuru Kenyatta loyalist, he completely avoided mentioning his name and his “development track record” in central Kenya. Kinuthia has a habit of over-extolling President Uhuru’s virtues whenever and wherever he mounts any platform. By the time he was done speaking, I quickly deduced he was angling to unseat Wangari. I wasn’t wrong; five months later in February 2022, Kinuthia resigned his CAS position to vie for Kigumo on a Party of the National Unity (PNU) ticket.

He spoke briefly, feigned some meeting that was awaiting him elsewhere and left hurriedly, but not before giving his KSh50,000 donation. Apparently, I later learnt that he had been forewarned, ahead of time, that the people were not in a mood to listen to his panegyrics on President Uhuru, Jubilee Party, or anything associated to the two. Kinuthia couldn’t dare run on President Uhuru’s Jubilee Party. His patron-boss’s party is not wanted in Murang’a.

I spent the whole day in Kandiri, talking to people, young and old, men and women and by the time I was leaving, I was certain about one thing; The Murang’a folks didn’t want anything to do with President Uhuru. What I wasn’t sure of is, where their political sympathies lay.

I returned to Murang’a the following month, in the expansive Kangema – it is still huge – even after Mathioya was hived off from the larger Kangema constituency. Funerals provide a good barometer that captures peoples’ political sentiments and even though this burial was not attended by politicians – a few senior government officials were present though; political talk was very much on the peoples’ lips.

What I gathered from the crowd was that President Uhuru had destroyed their livelihood, remember many of the Nairobi city trading, hawking, big downtown real estate and restaurants are run and owned largely by Murang’a people. The famous Nyamakima trading area of downtown Nairobi has been run by Murang’a Kikuyus.

In 2018, their goods were confiscated and declared contrabrand by the government. Many of their businesses went under, this, despite the merchants not only, whole heartedly throwing their support to President Uhuru’s controversial re-election, but contributing handsomely to the presidential kitty. They couldn’t believe what was happening to them: “We voted for him to safeguard our businesses, instead, he destroyed them. So much for supporting him.”

We voted for him to safeguard our businesses, instead, he destroyed them. So much for supporting him

Last week, I attended a Murang’a County caucus group that was meeting somewhere in Gatundu, in Kiambu County. One of the clearest messages that I got from this group is that the GEMA vote in the August 9, 2022, presidential elections is certainly anti-Uhuru Kenyatta and not necessarily pro-William Ruto.

“The Murang’a people are really yet to decide, (if they have, they are keeping the secret to themselves) on who they are going to vote for as a president. And that’s why you see Uhuru is craftily courting us with all manner of promises, seductions and prophetic messages.” Two weeks ago, President Uhuru was in Murang’a attending an African Independent Pentecostal Church of Africa (AIPCA) church function in Kandara constituency.

At the church, the president yet again threatened to “tell you what’s in my heart and what I believe and why so.” These prophecy-laced threats by the President, to the GEMA nation, in which he has been threatening to show them the sign, have become the butt of crude jokes among Kikuyus.

Corollary, President Uhuru once again has plucked Polycarp Igathe away from his corporate perch as Equity Bank’s Chief Commercial Officer back to Nairobi’s tumultuous governor seat politics. The first time the bespectacled Igathe was thrown into the deep end of the Nairobi murky politics was in 2017, as Mike Sonko’s deputy governor. After six months, he threw in the towel, lamenting that Sonko couldn’t let him even breathe.

Uhuru has a tendency of (mis)using Murang’a people

“Igathe is from Wanjerere in Kigumo, Murang’a, but grew up in Ol Kalou, Nyandarua County,” one of the Mzees told me. “He’s not interested in politics; much less know how it’s played. I’ve spent time with him and confided in me as much. Uhuru has a tendency of (mis)using Murang’a people. President Uhuru wants to use Igathe to control Nairobi. The sad thing is that Igathe doesn’t have the guts to tell Uhuru the brutal fact: I’m really not interested in all these shenanigans, leave me alone. The president is hoping, once again, to hopefully placate the Murang’a people, by pretending to front Igathe. I foresee another terrible disaster ultimately befalling both Igathe and Uhuru.”

Be that as it may, what I got away with from this caucus, after an entire day’s deliberations, is that its keeping it presidential choice close to its chest. My attempts to goad some of the men and women present were fruitless.

Murang’a people like reminding everyone that it’s only they, who have yet to produce a president from the GEMA stable, despite being the wealthiest. Kiambu has produced two presidents from the same family, Nyeri one, President Mwai Kibaki, who died on April 22. The closest Murang’a came to giving the country a president was during Ken Matiba’s time in the 1990s. “But Matiba had suffered a debilitating stroke that incapacitated him,” said one of the mzees. “It was tragic, but there was nothing we could do.”

Murang’a people like reminding everyone that it’s only they, who have yet to produce a president from the GEMA stable, despite being the wealthiest

It is interesting to note that Jimi Wanjigi, the Safina party presidential flagbearer is from Murang’a County. His family hails from Wahundura, in Mathioya constituency. Him and Mwangi wa Iria, the Murang’a County governor are the other two Murang’a prominent persons who have tossed themselves into the presidential race. Wa Iria’s bid which was announced at the beginning of 2022, seems to have stagnated, while Jimi’s seems to be gathering storm.

Are the Murang’a people prepping themselves this time to vote for one of their own? Jimi’s campaign team has crafted a two-pronged strategy that it hopes will endear Kenyans to his presidency. One, a generational, paradigm shift, especially among the youth, targeting mostly post-secondary, tertiary college and university students.

“We believe this group of voters who are basically between the ages of 18–27 years and who comprise more than 65 per cent of total registered voters are the key to turning this election,” said one of his presidential campaign team members. “It matters most how you craft the political message to capture their attention.” So, branding his key message as itwika, it is meant to orchestrate a break from past electoral behaviour that is pegged on traditional ethnic voting patterns.

The other plunk of Jimi’s campaign theme is economic emancipation, quite pointedly as it talks directly to the GEMA nation, especially the Murang’a Kikuyus, who are reputed for their business acumen and entrepreneurial skills. “What Kikuyus cherish most,” said the team member “is someone who will create an enabling business environment and leave the Kikuyus to do their thing. You know, Kikuyus live off business, if you interfere with it, that’s the end of your friendship, it doesn’t matter who you are.”

Can Jimi re-ignite the Murang’a/Matiba popular passion among the GEMA community and re-influence it to vote in a different direction? As all the presidential candidates gear-up this week on who they will eventually pick as their running mates, the GEMA community once more shifts the spotlight on itself, as the most sought-after vote basket.

Both Raila Odinga and William Ruto coalitions – Azimio la Umoja-One Kenya and Kenya Kwanza Alliance – must seek to impress and woe Mt Kenya region by appointing a running mate from one of its ranks. If not, the coalitions fear losing the vote-rich area either to each other, or perhaps to a third party. Murang’a County, may as well, become the conundrum, with which the August 9, presidential race may yet to be unravelled and decided.

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