The tension was evident, untouchable, but abundant. Everyone spoke with unmistakable anger. It was approaching 11.00 p.m. and for hours we listened to community members who took turns to narrate to us the harrowing experiences the Borana community had gone through at the hands of well-trained rangers and raiders from the Samburu community. This had gone on since 2006 when the Biliqo-Bulesa Conservancy was formed.
“We were forced to collect the information at night after word went round that the Northern Rangelands Trust had earlier mobilised its supporters to unleash chaos during a meeting called the following day to discuss its operations in the Conservancy,” said Al-Amin Kimathi, a renowned human rights activist. . After taking dinner out in the open, the team gathered in a makeshift shelter eager to listen to members of the community. And they had prepared well. Some had come with written notes and used torches to read through them.
“The organisation employed the carrot-and-stick tactic used across Africa for centuries by Europeans to colonise, control, exploit and dominate people on the continent. NRT started off by contacting and sweet-talking influential personalities within the community who it later deployed to convince fellow community members of the benefits they stood to gain from the conservancy,” said Najar Nyakio Munyinyi, a consultant on indigenous land rights.
“Ile ndovu tuliyoambiwa tutakua tukiikamua sasa imekua ya kutumaliza” (We were told that we will be benefiting from wildlife conservation, but instead we have been losing our lives), said Sheikh Dabbaso Ali Dogo, the former chairman of the Conservancy Board. Dogo added that before the conservancy was formed, top officials of NRT, including its founder, Ian Craig, had made a raft of promises to the community.
“The organisation employed the carrot-and-stick tactic used across Africa for centuries by Europeans to colonise, control, exploit and dominate people on the continent. NRT started off by contacting and sweet-talking influential personalities within the community who it later deployed to convince fellow community members of the benefits they stood to gain from the conservancy,” said Najar Nyakio Munyinyi, a consultant on indigenous land rights.
Among those selected was Jaarso Golicha Gaade, a former councilor with the defunct Isiolo County Council and now an employee of NRT. With other elders, Gaade was hosted by Craig at Lewa Conservancy in Laikipia in 2006. Craig then asked the initial group of elders to identify fellow elders who could join them in coaxing the rest of the community members to accept the idea of the Conservancy.
After being promised goodies, the latter then organised seminars during which the formation of the Conservancy was discussed. “NRT promised the communities a complete halt to the long-running insecurity and cattle-rustling incidents as well as lasting peace between it and the neighbouring Samburu, Turkana and Rendille communities,” said Retired Major Jillo Dima, an elder in the community. Jillo added that to make this happen, NRT promised to finance the construction of an institution for morans in the area. He says that the organisation also made other promises related to employment of young men as rangers and said that they would not only be protecting wildlife but also members of the community. It would also invest Sh50 million on a project identified by members of the first Conservancy Board, and income from tourism activities in the Conservancy.
“With the promises in mind, the community needed no more coaxing; it soon agreed to commit hundreds of thousands of its pasturelands for conservation purposes. The 364,000-hectare Conservancy was formed in 2006 following the ‘signing’ of an agreement between the community and the NRT.” He expressed disappointment that the agreement has remained secret for over the 13 years the Conservancy has been in existence, adding that it was odd that all the people, including former board members, “have neither seen the agreement nor were they aware of its provisions”.
(Our attempt to interview relevant officials of NRT did not bear fruits. They did not get back to us even after sending questions to them.)
Members of the community reported that apart from giving the Conservancy a vehicle, constructing two classrooms, a mud-walled nursery school and teachers’ houses and employing a number of rangers, the NRT has reneged on most other promises. To make matters worse, NRT went out of its way to worsen the plight of the community and unilaterally makes all the decisions. For instance, we learned that the organisation engineered the sacking and replacement of members of the first board after they demanded to know what came of the promises made to the community. Those interviewed added that finances meant for the Conservancy were banked in an NRT account and that the Conservancy has only held two annual general meetings since it was formed. Further, they said that past and current Conservancy board members have no powers and do not even know what income was earned by the Conservancy.
It is not a wonder that the community later resolved, in a meeting called by elected leaders and the Borana Council of Elders, to kick NRT out of Isiolo County; a resolution that is yet to be fully implemented.
‘Kenya ‘B’ and the Community Land Act
As part of Isiolo County, the land in Biliqo-Bulesa is just a small proportion of the more than 60 per cent of the country where land adjudication has hardly started. So anyone with the financial muscle and the ability to command the backing of top political kingpins in the country can lay claim to vast tracts of land there and thereby disinherit communities, some of whom have inhabited the region since the 10th century.
It is important to appreciate that the goings-on at the mammoth-sized conservancy is part of what happens in the section of the country now called, in Kenyan parlance, “Kenya B”. This is a vast region in the country whose residents have suffered neglect and open discrimination since the geographical entity now called Kenya was configured by the British colonisers. It is a region that seems to have remained in the peripheries of the subconscious of many a policy maker and politician who’ve run this country since independence. As Dr Nene Mburu says in the book Bandits on the Border: The Last Frontier in the Search for Somali Unity, this is “one half of Kenya which the other half knows nothing about and seems to care for even less.”
As part of Isiolo County, the land in Biliqo-Bulesa is just a small proportion of the more than 60 per cent of the country where land adjudication has hardly started. So anyone with the financial muscle and the ability to command the backing of top political kingpins in the country can lay claim to vast tracts of land there and thereby disinherit communities, some of whom have inhabited the region since the 10th century. The land conundrum there is now compounded by the decision to put up mega-schemes, such as LAPPSET and other Vision 2030 projects that continue to take up vast tracts of the community land.
However, the seemingly desolate and apparent economically underdeveloped region covers more than half of Kenya’s total land area and has vast wealth buried in the soil. The presence of mineral wealth is confirmed by a map of oil blocks in Kenya that criss-cross Isiolo and other arid and semi-arid lands (ASAL) counties.
On paper, the land in Isiolo and elsewhere in the north is protected by the Community Land Act. This Act gives pastoral communities the right to govern their land with full recognition of their ancestral heritage and unique governance and livelihoods systems. It recognises, protects and provides for the registration of community land rights; the administration and management of such lands; and titling and conversion of community land. It also provides for the management of the environment and natural resources on community land and the resolution of disputes and accommodates the customs and practices of pastoral communities relating to land.
However, although this piece of legislation became part of Kenyan law in 2016, the process of developing regulations for its implementation have been frustrated by powerful people in government for their own ends. At the same time, little or no effort has been made to raise the awareness of members of the pastoral communities on the provisions of the Act. Further, the National Land Commission and the relevant county governments are yet to initiate a process that would lead to registration of community land and implementation of this law. This has given organisations, such as the NRT, adequate room to manipulate communities for their own benefit.
It is no wonder that NRT had gone ahead to unilaterally identify sites for the construction of tourism facilities that are located in areas that are key for the survival of the livestock-based economy in Biliqo-Bulesa and the entire Charri Rangeland. These include the Baballa Camp that is set to be put up along an animal movement route close to the Ewaso Nyiro River, the Maddo Gurba Huqqa, which is close to a community shallow well, and Sabarwawa, an area where the water table is quite shallow. Others are in Nyachiis, which was previously used by the community for traditional naming ceremonies, and Kuro-Bisaan Owwo, a hot spring whose water has medicinal properties for both humans and livestock – a place where the NRT had planned to set up a spa for tourists. “We have resisted the takeover of these sites by NRT,” said Jillo.
There are those who believe that the failure to start the land adjudication process in Isiolo and the counties of Marsabit, Moyale, Garissa, Wajir and Mandera, and the marginalisation and deprivation in the erstwhile Northern Frontier District (NFD) have been deliberate schemes by all the governments that have run Kenya since the colonial period. Their main aim, it is said, is to keep the lands open for all manner of activities that have largely been injurious to the environment as well as to the local residents and their economic lifelines. For instance, the colonial government arbitrarily partitioned – and thereby greatly disrupted – the rhythm of life and especially the traditional pastoral way of life in the north. This went hand in hand with the establishment of what Dr Nene Mburu calls “impracticable administrative arrangements”.
The colonial government did little other than setting up military installations there, taxing the pastoralists as well as quarantining animal movements that curtailed the traditional trade in livestock. It also enacted discriminatory laws, such as the District Ordinance of 1902, declared Isiolo a closed district in 1926, and restricted the movement of residents under The Special Districts Ordinance of 1934. “This legislation regulated non-resident travel into the districts,” writes Dr Mburu who concludes that the net effect of the discriminatory policies was to create an “iron curtain” that isolated the north from the rest of Kenya.
Sadly, successive post-independence governments have not shown, in policy and actions, that they were opposed to the colonial policy. If anything, the first post-independence government of Jomo Kenyatta continued the colonial policy of discrimination and neglect. Kenyatta waged war against a determined Somali nationalism. This was after failing to reach an agreement over whether NDF was to be part of Kenya or Somalia during the three Lancaster House Conferences on 1961, 1962 and 1963. Between 1963 and 1968, Kenya deployed its military to fight off Shifta guerillas out to enforce the secession of the NFD from the new republic.
Isiolo’s hidden wealth
Isiolo is dominated by members of the Borana community who have continued to lose their land over the years. According to Dr Mburu, the community was historically used as a convenient human barricade, or buffer, by Ethiopia and Britain against the expansionist tendencies of other communities. For instance, he says that different Ethiopian kings used the Borana country to check the influence of European penetration into Abyssinia’s interior and to contain Somali expansion northwards from the NFD and western Somalia into Ethiopia. And just like the Kenya government has failed to do since the colonial period, Ethiopia merely used the Borana community but was not interested in governing its homeland effectively.This gave the Somali an opportunity to consolidate their westwards expansion into the NFD. Dr Mburu says that by 1880, the Somali had forcefully driven the Borana into Moyale and southwards out of the El-Wak wells, forcing them further westwards into Marsabit, Isiolo and parts of Wajir.
Although the attractiveness of Isiolo and other parts of the north appears to have being missed by policy makers, it is not lost on the NRT and the vested interests it represents. True, the region has a harsh environment with hot and dry habitats dominated by low-lying terrain, acacia trees, shrubs and isolated dwarf bush grasslands. The county has conditions that are quite uncomfortable, especially for people inhabiting the highlands areas of Kenya, where it is much cooler. Whenever they fall, the rains there are low; there’s hardly a place that gets more than 500 mm of rain. And besides the Tana and Ewaso Nyiro to the south as well as River Dauwa to the north, Isiolo and other counties in the entire region have few other permanent water sources.
However, the seemingly desolate and apparent economically underdeveloped region covers more than half of Kenya’s total land area and has vast wealth buried in the soil. The presence of mineral wealth is confirmed by a map of oil blocks in Kenya that criss-cross Isiolo and other arid and semi-arid lands (ASAL) counties. Indeed, the presence of mineral wealth in Isiolo and other areas of Kenya was confirmed by the Russian ambassador in 2003, who revealed publicly that by the 1940s, Russians had known the minerals Kenya has. What the ambassador did not reveal then was that the British had contracted Russian geologists to explore and map out mineral occurrence in Kenya.
The NRT-mineral connection becomes vivid if one was to overlay the map of the 35 conservancies under the organisation and the minerals-occurrence map of Kenya. Whether this is by coincidence or not is hard to ascertain. However, it is important to note that the NRT conservancies happen to be in the same areas suspected to have the greatest proportion of mineral wealth in Kenya.
Around the time the Russian ambassador made the claim, many keen Kenyans were surprised when mineral deposits started “popping out” all over the country. For instance, it was around the same time that the prolonged controversy over the titanium deposits in Kwale started. Further, word started spreading that Isiolo has significant deposits of iron ore, gemstones and other mineralsm, as well as vast amounts of water in the Merti aquifer. This was decades after Kenyan school children started being taught about the lack of minerals in the sub-soils of the country in geography lessons! What became interesting too was that the greatest number of companies that have since received prospecting or mining permits for oil, titanium and other minerals are either British or belong to the British in the Australian and Canadian diasporas.
The mineral-conservation nexus
It is easy to miss the connection between conservation and mineral occurrence in the country. It is also easy to miss the nexus between the ongoing quest to secure vast tracts of land, ostensibly for conservation purposes, and the confirmed mineral wealth in Isiolo and other counties in the north. But keen observers have noted an interesting financial camaraderie between the NRT and certain mining concerns. For instance, according to reports, Tullow Oil gave NRT a whopping $11.5 million (Sh1.15 billion) to NRT in 2013 to start six conservancies in Turkana, a county that has little or no wildlife. “It is not a wonder that many people have expressed suspicions that by donating so generously to NRT, Tullow Oil wanted the organisation to help it secure lands that are rich in oil deposits,” said Ms Munyinyi. However, as media reports showed, the operations of NRT in Turkana were curtailed to a great extent after the Joseph Nanok-led county government kicked the organisation out of the county in 2014.
The NRT-mineral connection becomes vivid if one was to overlay the map of the 35 conservancies under the organisation and the minerals-occurrence map of Kenya. Whether this is by coincidence or not is hard to ascertain.
However, it is important to note that the NRT conservancies happen to be in the same areas suspected to have the greatest proportion of mineral wealth in Kenya. Indeed, this writer found it curious during the tour to Biliqo-Bulesa Conservancy in February that the Chinese were already mining mica and other minerals in Nyachis and Sabarwawa areas, which are located in an inaccessible part of Biliqo-Bulesa Conservancy. This writer has since learned that the Chinese have stopped their operations there following the raging controversy over NRT operations in the Conservancy. However, what this writer was unable to establish was the connection between the NRT and Chinese miners and how the latter were allowed to mine in a Conservancy started for the sole aim of wildlife conservation.
What is unmistakable though is that Isiolo, a resource-rich county, is already experiencing the initial symptoms of a “resource curse” that is so prevalent across Africa and which is more pronounced in places that are rich in minerals. Usually, the curse unfolds whenever governments unwittingly or deliberately fail to pacify areas referred to as the “backwaters of development”. To cover the void, the communities decide, or are encouraged, to arm themselves to protect their lives and livelihoods from neighbouring communities with whom they share water, pastures and other resources. Soon, bilateral and multilateral agencies, as well as NGOs, find these places attractive for their activities, which are largely passed on as being beneficial to the neglected communities. The agencies are given a near-free hand to operate there since their activities and their effects on the relevant communities are rarely audited by the national governments or independent auditors.
As far as the north of Kenya is concerned, there have been claims that outsiders are involved in supplying arms to the warring communities. For instance, the Small Arms Survey of 2012 says that the British Army Training Unit in Kenya (Batuk) is one of the outfits that have been supplying arms to pastoralists in the north. This has raised the firepower wielded illegally by members of different communities in the north and has led to the transformation of the traditional cattle-rustling activities into intermittent clashes which, if unchecked, can spiral into dangerous, full blown conflicts that might go on for decades.
Because many of the people who run African governments are beholden to vested interests in rich industrial countries, they do very little or nothing to fully integrate the neglected areas into mainstream society. This gives the vested interests ample opportunities to keep the conflicts alive; they result in the same divide-and-rule tactics perfected by Europeans who have kept much of Africa on a leash. In Isiolo for instance, the NRT has encouraged the expansionist tendencies by members of the Garri community, who are said to have migrated from Moyale in Ethiopia following the change of government in Addis Ababa that occurred a few year ago. Encouraged by NRT, the Garri now constitute seven out of the eleven board members of Gotu-Nakurpat Conservancy that neighbours Biliqo-Bulesa.
At the same time, there is evidence that NRT has been facilitating inter-community and intra-community tension and conflict in the conservancies in Isiolo. We learned that for years, the Borana community, whose most members are opposed to ongoing NRT operations in Isiolo, had almost lost their ability to fight for human and land rights. According to a local elder, Mzee Mohamed Adan, this was after the organisation influenced the withdrawal of guns held by homeguards who earlier defended the Borana. He added that since the Conservancy was formed, the community has experienced nine raids conducted by Samburu morans, during which over 70 people were killed and thousands of livestock stolen. From interviews with past officials of the conservancy board and other community members, it emerged that 59 of the people were killed by Samburu morans who were assisted by the specially-trained NRT rangers who travelled there in NRT-branded vehicles. The rest of the victims died after young men from the Borana community engaged in counter-attacks. The raids, we learned, were well coordinated. The NRT had taken sides and appeared keen to “punish” the Borana for opposing its operations in Isiolo.
Campaign to involve communities
NRT’s operation across Kenya was informed by the campaign for the involvement of communities, and especially those inhabiting wildlife dispersal areas, in the national conservation programme. This began in early 2000s and particularly after the IUCN’s World Parks Congress held in Durban, South Africa in 2003. The campaign was inspired by the need to preserve ecosystems and wildlife habitats that happen to be on lands owned and held by local communities. The effort was entrenched in law following the review and enactment of the Wildlife Conservation and Management Act in 2013. Championing the model have been conservationists who claim that 70 per cent of Kenya’s wildlife is found outside national parks and reserves and that the survival of protected areas largely depends on the preservation of vast habitats and lands used by wildlife away from parks.
NRT was founded by Ian Craig in 2004. Craig is a holder of the Order of the British Empire (OBE), awarded in 2016 by Queen Elizabeth II for “services to conservation and security to communities in Kenya”. Craig’s family owns the 62,000-acre Lewa Conservancy in Laikipia, which is said to have been given to his great-grandmother by the British government in 1918 for serving during the First World War. Craig, who was raised in Kenya, is the father of Jessica Craig, the young woman who was once believed to be romantically involved with Prince William.
Since its formation, the NRT has been receiving billions of shillings in grants from a number of European countries and the United States as well as international NGOs, such as the Nature Conservancy (TNC), private trusts and rich people in the West. As a result, the NRT has managed to set up 35 conservancies across northern and coastal regions that now cover a whopping 44,000 square kilometers or over 10 million hectares (i.e. about 8 per cent of the total land surface in Kenya). These conservancies are mainly in remote places where the Kenyan government has little or no footprint. The NRT has been trying to fill the void by altering and adding to its initial conservation mandate a number of activities, including security, prevention of cattle rustling, running a credit scheme, meeting the needs of the communities and livestock marketing.
It is out of this hue and cry that this writer accompanied the team that carried out the fact-finding mission in Biliqo-Buulessa Community Conservancy. Included in the team were representatives of the Isiolo-based Waso Professional Forum, the Borana Council of Elders, the Sisi kwa Sisi organisation formed by students from the School of Hospitality, Tourism and Leisure at Kenyatta University, journalists as well as representatives from the Errant Native Movement.
True state of affairs
Kimathi, who is also a member of the Errant Native Movement, says that it was important to establish whether the allegations made against NRT were true. He told this writer that his team bore in mind the fact that livestock production remains the most important livelihood activity for the community and that any tourism activity or other economic undertaking can only supplement, but not replace, livestock husbandry. He added that the joint team experienced firsthand how NRT had been violating the rights of the community.
“We visited the Biliqo-Conservancy between January 26 and 29, 2019. Prior to the tour, we were informed that NRT had, on ten different occasions, used its influence within the security and administration establishments in Isiolo County, and especially in the Merti Sub-county, to frustrate the desire by the community to hold a meeting to deliberate on whether or not to continue with the conservancy. Indeed, we found out that conducting the fact-finding mission was risky,” says Kimathi.
According to community members interviewed by this writer, the NRT had earlier sent its officials who would travel in the organisation’s vehicles “inciting and buying off” some communities in order to unleash chaos during the planned community meeting. To avoid what would have otherwise become an ugly encounter, Kimathi’s team decided to hold long discussions with members of the community on the evening of January 26th at Biliqo Market, during which different people there narrated how the conservancy was started and the harrowing experiences they have experienced at the hands of NRT rangers and Samburu raiders. They also claimed that the NRT has introduced lions into the conservancy, which have been killing livestock and attacking and injuring some of the residents.
“On the morning of January 27th, we visited and interviewed some of the family members of the victims killed during the Samburu raids and counter-raids by the Borana,” said Ms Munyinyi. The consultant on indigenous land rights added that many of the interviews were held in their homes at the Buulessa Market. “As this was going on, we saw rowdy young people being ferried to the venue of the meeting by Land Cruisers belonging to the NRT and the Biliqo-Buulessa Conservancy who shouted threats to members of the team, saying they would kick them out of the area. Later, the rowdy youth succeeded in disrupting the meeting.”
On their part, the police from the Merti Police station, who were present, appeared more interested in finding out whether the conveners of the meeting had a permit. They were unwilling to stop the rowdy youth from disrupting the meeting even after finding out that the conveners had indeed taken the necessary steps, as is required by the law. Eventually, the police stopped the meeting and ordered everyone to disperse, which greatly pleased the rowdy youth.
It was apparent that the Acting Deputy County Commissioner (DCC), James Miring’u, and the Assistant County Commissioner (ACC), Njeru Ngochi, were of not much help either. The DCC and the ACC were evidently not in control. When interviewed by this writer, they expressed ignorance of the connection between insecurity and NRT operations in the Conservancy. However, it was not clear how the sub-county administration would have failed to notice (or investigate) the alleged killing of tens of people and the invasion of Borana people’s land by the raiders.
Traditional conflict resolution mechanisms
According to Dr. Abdullahi Shongolo, a consultant with the Germany-based Max Planck Institute of Social Anthropology, the Borana, Samburu, Somali, Rendille and other pastoralist communities in the north avoided conflicts by sending elders to seek and negotiate for permission to graze in each other’s lands, especially during droughts.
The intermittent conflict in the Conservancy is not new; inter-community conflicts in the north have a long history. The conflicts usually start off as “normal” cattle raids or as competition over water and pasture. But they have worsened with the proliferation of small arms in the region. In the past, local communities had established effective traditional mechanisms to either avoid the conflicts or to resolve them whenever they occurred.
According to Dr. Abdullahi Shongolo, a consultant with the Germany-based Max Planck Institute of Social Anthropology, the Borana, Samburu, Somali, Rendille and other pastoralist communities in the north avoided conflicts by sending elders to seek and negotiate for permission to graze in each other’s lands, especially during droughts. Usually, the elders from the affected community would visit their counterparts in communities that were not as affected by the droughts with a message of goodwill and to seek grazing permission on behalf of their community members. In most cases, such a request was granted once the elders in the relevant community assessed the available pastures and deliberated on where to allow the affected people to graze their animals. But, according to Dr Shongolo, this system was done away with following the appointment of chiefs and elected leaders who can now make unilateral decisions on this matter without consulting the community, especially after money has changed hands.
This has been complicated further by the entry of NRT, which has altered the power and traditional governance structures of the communities in the north and replaced traditional natural resource management systems, such as the Dedha system practiced by the Borana, with “modern” systems. Instead of working through institutions such as the Dedha Council, NRT has appointed conservancy managers, security scouts and members of the conservancy boards who have effectively taken over the decision-making roles that were the preserve of the elders. These NRT-appointed managers and boards now wield largely unchecked and ultimate power in the conservancies. NRT has also imposed its influence on the management of resources by reducing the grazing area of the Borana community in the Biliqo-Conservancy.
“After we came back from Biliqo-Bulesa, it was clear that NRT has capitalised on the lack of awareness of the land rights of the inhabitants of the Conservancy to violate their rights,” said Ms Munyinyi. She added that it is also clear that security issues in the Conservancy, as well as in other parts of in the north, are made worse by the fact that the Kenyan government has largely ceded its responsibility of providing security to the residents. “There is evidently a thin line between the roles of conservancy security teams formed by the NRT vis-à-vis state security personnel because the former are well-trained and equipped with sophisticated weapons and have been handling roles that are legally the preserve of the police, the KWS [Kenya Wildlife Service] and the county administration.”
In most other countries, no NGO, such as the NRT, would be allowed to conduct security operations that lead to violence and are coercive in nature. In this regard, the Government of Kenya has failed the community of Biliqo-Buulessa and needs to take its responsibilities seriously.
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Big Pharma and the Problem of Vaccine Apartheid
In this report on the TWN-Africa and ROAPE webinar on vaccine imperialism held last month, Cassandra Azumah writes that the unfolding vaccine apartheid which has left Africa with the lowest vaccination rates in the world is another depressing example of the profit and greed of Big Pharma facilitated by imperialist power.
The webinar on ‘Vaccine Imperialism: Scientific Knowledge, Capacity and Production in Africa’ which took place on 5 August 5, 2021, was organized by the Review of African Political Economy (ROAPE) in partnership with the Third World Network-Africa (TWN-Africa). It explored the connections and interplay of Africa’s weak public health systems, the profit and greed of Big Pharma enabled by the governments of the industrialized Global North, and the Covid-19 pandemic from a political economy perspective. This report summarizes the main discussions held during the conference, including an overview of each of the main points discussed. The webinar was the first in a three-part series of webinars scheduled by the two organizations under the theme Africa, Climate Change and the Pandemic: interrelated crises and radical alternatives.
The format of the event involved keynote presentations from three speakers, a five-minute activist update on the COVID-19 situation from two African countries, and an interactive discussion with participants. Chaired by Farai Chipato, a Trebek Postdoctoral Fellow at the University of Ottawa and ROAPE editor, the session included presentations from Rob Wallace, an evolutionary epidemiologist and public health geography expert at the Agroecology and Rural Economics Research Corps; Tetteh Hormeku, Head of Programmes at Third World Network-Africa (TWN-Africa) and Marlise Richter, a senior researcher at the Health Justice Initiative in South Africa.
The current state of the pandemic – Rob Wallace
Rob Wallace began the session by providing a global perspective on the current state of the COVID-19 pandemic. He presented data showing that though the total number of vaccinations are increasing, the percentage of people fully vaccinated is concentrated in the West. We are currently experiencing a third wave of the pandemic, which is being driven by the delta variant. Though the cases in Africa are relatively lower than in other parts of the world, it is still a marked increase from the first and second waves which were less severe. This is not the trajectory that was predicted for COVID-19 on the continent in the early days of the pandemic. Marius Gilbert et al had speculated that Africa would be vulnerable to the virus due to a lower public health capacity and underlying co-morbidities that might increase the spread and damage of the virus. However, the incidence of the virus has played out in a different way, Africa’s cases are not as high as that of other continents. The possible reasons that have been given for this are: demographics (a younger population), open housing (which allows greater ventilation), and an ongoing circulation of other types of coronaviruses which have induced a natural, partial immunity in the population.
Wallace also commented on herd immunity, stating that it is not a panacea for defeating the virus. He referenced a paper by Lewis Buss et al on COVID-19 herd immunity in the Brazilian Amazon which found that although 76% of the population had been infected with the virus by October 2020, they had not achieved herd immunity (which is usually estimated at 70-75%), and proliferation of the virus was ongoing. He pointed out that the key lesson from this study is that there is no magical threshold for herd immunity; it may be different for different populations or there may be no threshold at all.
Likewise, he contended that defeating COVID-19 has little to do with vaccination as a silver bullet, but much to do with governance and the wellbeing of the population being at the crux of any public health decisions a government would take. A multi-pronged approach should be taken to defeat the virus, one that includes vaccinations, wearing of masks, social distancing, and testing and tracing. He argued however, that in the neoliberal regimes of the industrialised North, dealing with COVID-19 is organized around profit.
This was not the case in the early days of the outbreak. Initially, the World Health Organisation (WHO) and the National Institutes of Health (NIH) in the US were in favour of having open medicine and making sure any pharmaceutical products produced to fight the virus were free to all. To this end, WHO developed the COVID-19 Technology Access Pool (C-TAP). However, the lobbying of Big Pharma and the likes of Bill Gates worked to centre the COVID-19 response around the model of intellectual property rights. This has had a considerable impact on the evolution of the virus, allowing it enough room to evolve such that pharmaceutical companies can make profits by selling booster shots of the vaccine. According to Wallace, this speaks to the “sociopathic nature” of the neoliberal regimes in the Global North who are willing to put the profits of Big Pharma over the lives of people. He opined that we need to act in solidarity to create a system in which disparities between the Global South and Global North are removed.
Health justice and the pandemic in South Africa – Marlise Richter
Marlise Richter’s presentation shed light on the work of the Treatment Action Campaign (TAC) and the lessons that can be learnt from their struggles for access to medicines (in particular ARVs). She pointed out that the TRIPS agreement (Trade-Related Aspects of Intellectual Property Rights – TRIPS – is a legal agreement between member states of the World Trade Organisation) had a big impact on how the HIV/AIDS epidemic was addressed, resulting in a limited number of ARVs reaching the Global South.
The HIV epidemic was particularly acute in South Africa, the number of people living with the virus ballooned from 160,000 in 1992 to over 4.2 million people by 2000. At this time, ARV’s had been developed but were unaffordable in Africa, costing up to US$10,000 a year in 1998.
The TAC used multiple strategies such as skilled legal advocacy, high quality research, social mobilization, demonstrations, and public education to fight the pharmaceutical industry and their abuse of intellectual property rights protections. It joined the case brought by the Pharmaceutical Manufacturers Association (PMA) against the South African government for allowing parallel importation of drugs in order to bring down prices of medicines. Its intervention contributed to pressuring the PMA to withdraw its claims in 2001. In addition, it applied pressure at the 13th International AIDS Conference in Durban in 2000 by staging a march to highlight the danger of President Mbeki’s AIDS denialism and demanded access to ARVs in Africa.
From 1999 onwards, the TAC also campaigned for a national prevention of mother-to-child transmission of HIV. This case was won at the high court and precipitated a national ARV roll-out plan in April 2004. Finally, in 2002, TAC and the AIDS Law Project filed a complaint with the Competition Commission against GlaxoSmithKline (GSK) and Boehringer Ingelheim arguing that they violated the competition law by abusing their dominance in the market and charging excessive prices for ARVs. This forced the companies to reach a settlement in 2003 leading to a drastic cut in ARV prices. By employing these tactics, the TAC and other activists were able to transform both the national and global conversation on drug pricing, eventually leading to South Africa having the largest HIV treatment program globally and pharmaceutical companies reducing the prices of ARVs.
Following the success of the campaigns to provide access to ARVs in Africa, activists in the Global South fought for the Doha Declaration. The Doha Declaration waived some of the provisions in TRIPS in order to prevent public health crises and promote access to medicines for all. However, Richter commented that not many of these flexibilities have been used. She posits that this is due to immense political pressure from the West. The US in particular has singled out governments that seek to use the TRIPS flexibilities and placed them on the US Special 301 Watch List.
Returning to the present, Richter presented data that showed that on 3 August, there have been just under 200 million confirmed cases and over 4.2 million deaths of COVID-19. 28.6% of the world’s population has received at least one dose of the vaccine with 14.8% fully vaccinated. But to give a sense of the disparity in vaccine administration across the world, she indicated that 4.21 billion doses have been administered globally with 38.67 million administered daily, but in low-income countries only 1.1% of people have received at least one dose. Narrowing it down to Africa, only 1.58% of the population has been fully vaccinated. This variance in administered vaccines is also present across the continent. In July 2021, Morocco had 28.9% of its population fully vaccinated, Botswana and South Africa had 5.3% and 5% of their populations fully vaccinated, and the Democratic Republic of the Congo had 0%. These incongruities are also evident when we assess the number of vaccines promised against vaccines delivered, with South Africa receiving only 26% of the vaccines promised. Continuing at the current pace, it would take South Africa two years and three months just to vaccinate 67% of its population.
Richter quoted the WHO Director-General saying, “The world is on the brink of a catastrophic moral failure – and the price of this failure will be paid with lives and livelihoods in the world’s poorest countries.” Following from this, she believes that it makes ethical sense and public health sense for vaccines to be distributed equitably amongst the world’s population. In a bid to fight for vaccine equity, South Africa and India co-sponsored the TRIPS waiver in October 2020. If successful, this waiver will bring about flexibilities in the TRIPS agreement which would have an immense impact on the manufactured supplies of vaccines and other medical goods. For the waiver to be passed, a consensus amongst all member states of the WTO needs to be reached. While the waiver is supported by over 100 countries (predominantly in the Global South), it has been blocked most notably by the EU, Australia, Norway and Japan, countries which have enough vaccines to vaccinate their population many times over. Putting this into perspective, in January 2021 the EU had 3.5 vaccines per person and Canada had 9.6 vaccines per person, as compared to 0.2 vaccines per person in the African Union. By blocking this waiver, the industrialised North is further entrenching the extreme inequalities currently faced by the Global South.
Richter concluded her presentation by speaking on a recent development in South Africa, where Pfizer-BioNtech has recently signed a ‘fill and finish’ contract with the Biovac Institute. She claimed that while this is a first step in developing manufacturing capacity, it is not enough to achieve vaccine independence because it does not include the sharing of Pfizer-BioNtech’s technology or know-how. In addition, the ‘fill and finish’ approach does not address issues of security of supply, nor does it allow local manufacturers the freedom to make their own pricing decisions. She believes that if we start from the premise that health is a human right, as the TAC does, we will regard health equity and especially vaccine equity as essential in the struggle against the pandemic.
The political economy of the continuing fight against intellectual property rights negatively affecting public health goods in Africa – Tetteh Hormeku
Tetteh Hormeku’s presentation was centred around the challenges that African countries have confronted in the process of trying to develop their own pharmaceutical capacity. These challenges go beyond the struggles for the TRIPS waiver and include the impact of some of the choices governments have made. He focused on two interrelated points that frame the predicament of African countries in relation to the current vaccine situation:
1) The vaccine process is dominated by pharmaceutical Multinational Corporations (MNCs) based in the advanced industrial countries and supported by their governments. The controversy around the TRIPS waiver is a clear example of the extent to which advanced countries and their MNCs would like to hold on to their place in the international order.
2) On the non-existent domestic pharmaceutical capacity in African countries, Tetteh explained that he uses the phrase “domestic pharmaceutical capacity” because:
- It does not include a subsidiary of an MNC signing a production agreement with a local African company.
- The word ‘domestic’ combines both the local character of production and the fact that it is embedded within the nation, its challenges, people, drives and imperatives.
- It does not refer to nations alone, but also to regional and continental initiatives.
- It captures pharmaceutical capacity beyond the production of vaccines.
Tetteh provided the following case-study to show how these two points are interrelated. 24 February marked the first shipment of COVID-19 vaccines to Ghana, and there was an optimism that it would be the beginning of a steady supply of vaccines to the country – six months later, less than 2% of the population has been vaccinated. Around the time Ghana received this first shipment, it was in talks with the Cuban government for support on the transfer of technology to improve its pharmaceutical capacity.
This date in February also marked the anniversary of the overthrow of Kwame Nkrumah in 1966. Six months before the coup Nkrumah’s government had established a state pharmaceutical enterprise. After the coup, the military government tried to hand it over to Abbott Laboratories, an American pharmaceutical company, under such outrageous terms that the resulting backlash from the populace led to the abandonment of this plan.
The creation of a state-owned pharmaceutical enterprise in Ghana and in other African countries in the post-independence era was a reaction to colonial policies which deliberately curtailed the production of knowledge and science across the continent. The aim of developing a pharmaceutical industry domestically was to intervene on three levels:
- Creating an industry with the technical know-how and the machinery to be able to participate in the production of pharmaceutical products.
- Creating an industry which is linked to the process of developing and building knowledge and being at the frontiers of knowledge. This involved creating linkages with universities and scholars.
- Making use of traditional sources of medical knowledge. The state pharmaceutical enterprise was in operation until the 1980s when due to the Structural Adjustment Programs (SAPs) it was privatized and unable to compete in the free market.
Tetteh pointed out that two lessons can be taken from this anecdote:
- The government strongly intervened to ensure pharmaceutical production was linked to public procurement and public policy. The market for the product was guaranteed (army, public hospitals etc.).
- The government intervened to ensure that certain medical products could not be imported into the country. These interventions were crucial in creating the legal and scientific conditions within which the state-owned enterprise thrived until the SAP period.
A key success of the state pharmaceutical enterprise was that it was able to bargain with Big Pharma on its own terms. At the time, Big Pharma needed to negotiate with the state pharmaceutical enterprise to produce their products locally since they had no access to the Ghanaian market. Although Ghana’s intellectual property rights regime replicated and mimicked some of the standards in the Global North, it was an indication of the amount of space countries in the Global South had to develop their own legislation with respect to intellectual property for public health. However, this option is no longer available to these countries. According to Tetteh, TRIPS inaugurated the monopoly that Big Pharma has over technical know-how for medical products. It has also enabled bio-piracy which allows Big Pharma to appropriate African traditional knowledge and patent it for themselves. In the 1990s, the Organisation of African Unity (OAU) tried to create an African model law to enable a fight against bio-piracy but was unsuccessful.
The creation of a state-owned pharmaceutical enterprise in Ghana and in other African countries in the post-independence era was a reaction to colonial policies, which deliberately curtailed the production of knowledge and science across the continent
Tetteh noted that the current situation highlights the importance of getting the TRIPS waiver, as it is a starting point for building domestic pharmaceutical capacity. The waiver goes beyond just patents and encompasses a host of other intellectual property rights such as copyrights, and industrial design. It covers all the important bases for making medicines in a modern context. Looking back to the Doha Declaration, very few countries were able to make real changes to their laws in order to make use of the flexibilities. This was due in part to the entrenchment of TRIPS in other agreements such as AGOA (the African Growth and Opportunity Act) and the EPAs (Economic Partnership Agreements). However, importantly, there was no real commitment by African leaders to making these changes.
Tetteh argued that African leaders are not making the strategic choices that would eventually lead them to developing independent pharmaceutical industries. Suggesting that South-South cooperation is an avenue to address the current issues the continent faces, he argued that instead of using all their funds to buy vaccines, African countries could have allocated some funds to support phase three of Cuba’s vaccine trials. By doing this, they would have been able to negotiate for a consistent relationship in terms of knowledge exchange and the transfer of technology.
Updates on COVID-19 in Senegal and Kenya
Cheikh Tidiane Dieye provided an update on the COVID-19 situation in Senegal. The country recorded its first case of the virus in March 2020. Since then, the government has put in place measures such as curfews, travel restrictions and the banning of public gatherings to contain the spread of the disease. The Senegalese government did not enforce a lockdown because the country has a large informal sector which would have been negatively impacted by a lockdown.
Senegal is currently experiencing its third wave – driven by the delta variant. The total number of cases has increased significantly over the last year, moving from 9,805 cases and 195 deaths in July 2020 to 63,560 cases with 1,365 deaths as of July 2021. This increase in cases has taken a toll on the country as it does not have the healthcare infrastructure to deal with the virus caseload. The vaccination campaign was launched in February this year, with about 1.2 million doses received, 1.8% of the population fully vaccinated and 3% receiving their first dose.
He stated that Senegal is currently facing two issues:
- Lack of access to the vaccines. This is because the country does not have the means to purchase enough vaccines for its population and is currently relying on donations from COVAX. This has resulted in protracted waiting times for the vaccine. These waiting times can cause complications for vaccine administration, since there are people who have received the first dose but must wait for longer than the recommended time of eight weeks to receive their second dose.
- A significant part of the population is reluctant to receive vaccines and sensitization campaigns are proving ineffective.
He remarked on one key development in Senegal – the creation of a vaccine manufacturing plant funded by the World Bank, the US, and a few European countries. The plant is expected to produce 300 million doses a year, first of COVID-19 vaccines and then other types of vaccines against endemic diseases. This project will be implemented by the Institut Pasteur de Dakar which already produces yellow fever vaccines.
ROAPE’s Njuki Githethwa provided an update on the COVID-19 situation in Kenya. He mentioned that the delta variant has caused a surge in cases and deaths. There have been currently over 200,000 cases since the pandemic began with the total number of deaths at 4,000 at the end of July. He pointed out that this third wave is affecting the lower classes which were spared in the initial stages of the pandemic. Kenya has received 1.8 million doses of the vaccine, with about 1.7% of Kenyans vaccinated. He noted that if vaccinations continue at this pace, it will take over two years for Kenyans to be fully vaccinated.
A key success of the state pharmaceutical enterprise was that it was able to bargain with Big Pharma on its own terms. At the time, Big Pharma needed to negotiate with the state pharmaceutical enterprise to produce their products locally since they had no access to the Ghanaian market
According to Njuki, the disbursement of vaccines from the West is being portrayed as a symbol of charity, solidarity, and sympathy. This portrayal is underlain by the West positioning themselves as saints while vilifying other countries like India and China. He also mentioned that there is a class dynamic at play in Kenya regarding the distribution of vaccines. People in affluent areas have ease of access whereas the less privileged wait in long queues to get vaccinated. As a result, most of the population, including frontline workers, are yet to be vaccinated. Schools in the country reopened at the end of July, and only about 60% of teachers have been vaccinated. Njuki touched on the fact that there is an optimism that more vaccines are coming, however the government is not doing enough to sensitise the population. There is still a lot of misinformation and superstition surrounding the vaccines.
Moving beyond the state?
The discussion was further enriched by contributions from the participants. Gyekye Tanoh, for example, noted that in the past the presence of state pharmaceutical enterprises around the continent constituted an active and embodied interest. This influenced the way transnational pharmaceutical companies were able to negotiate, severely limiting their power. However, such a thing is not present today on the continent. In fact, a study from the McKinsey Institute pointed to the fact that the pharmaceutical industry has the highest markups in Africa, meaning that while the continent is not the biggest market, it is the most profitable region in the world. Currently, the interests of Big Pharma dominate, he asked, how do we begin to shift this? Is it time to look beyond the state as a leading agent for change? What can progressives do in this situation?
Senegal is currently experiencing its third wave – driven by the delta variant. The total number of cases has increased significantly over the last year, moving from 9,805 cases and 195 deaths in July 2020 to 63,560 cases with 1,365 deaths as of July 2021
In response to Gyekye’s question, Tetteh argued that he does not believe that it is time to look beyond the government. In the case of the pharmaceutical industry, the market is created by production and government procurement of pharmaceutical products. Real change cannot be realised without the involvement of the government and well thought out policies. But there is still a role for progressives. Activists need to mobilise and organize around broad paradigmatic changes and clear concrete policy choices that can be implemented in the immediate, medium, and long term.
Wallace added that the objectives of activists in the Global North should be to support the efforts of those in the Global South. This is especially important because COVID-19 is not the only virus that can cause real damage. We need to make structural changes that ensure the Global South is not at the mercy of the Global North whose economic model has contributed to the current situation.
Farai Chipato ended the session by thanking the speakers and participants for their contributions to the fruitful and important discussion. Chipato urged participants to join ROAPE and TWN-Africa for their two upcoming webinars: ‘Popular public health in Africa: lessons from history and Cuba’ and ‘Alternative strategies and politics for the Global South: climate-change and industrialisation.’
This article was originally published in the Review of African Political Economy (ROAPE) Journal.
Omissions of Inquiry: Kenya and the Limitations of Truth Commissions
Gabrielle Lynch provides a radical analysis of the mechanisms of transitional justice. Looking at the case of Kenya, Lynch argues that truth commissions which hope to achieve truth, justice and reconciliation also require ongoing political struggles, and substantive socio-economic and political change. While reconciliation and justice may be goals which truth commission can recommend, and sometimes contribute to, they cannot be expected to achieve them.
In today’s world, it is almost expected that a truth commission will be introduced in the wake of conflict or a period of authoritarianism to try and consolidate a transition to democracy and peace. A truth commission generally understood – as per Priscilla Hayner – as a temporary state-sanctioned body that investigates a pattern of past abuse, engages ‘directly and broadly with the affected population, gathering information on their experiences’ and which aims to conclude with a public report.
The underlying idea is that societies need to confront and deal with unjust histories if they are to establish a qualitative break with that past. Proponents of modern truth commissions thus ‘look backwards’, not as interested historians, but as a way to ‘reach forwards.’ As Archbishop Desmond Tutu explained in his foreword to the South African Truth and Reconciliation Commission (TRC) report:
The other reason amnesia simply will not do is that the past refuses to lie down quietly. It has an uncanny habit of returning to haunt one … However painful the experience, the wounds of the past must not be allowed to fester. They must be opened. They must be cleansed. And balm must be poured on them, so they can heal. This is not to be obsessed with the past. It is to take care that the past is properly dealt with for the sake of the future.
Motivated by this desire to render the past ‘passed’ in the substantial sense of being ‘dead’ or ‘over and done with’, modern truth commissions dedicate most of their time to two activities: the holding of public hearings and production of a final report.
This is a relatively recent development. Early truth commissions did not hold public hearings and were largely fact-finding bodies. However, ever since the South African TRC of the 1990s, truth commissions have held hearings as a stage for various actors – victims, perpetrators, political parties, state institutions and so forth – to present their account of past wrongs. The underlying idea is that people will have a chance to speak and be heard, and thus regain their humanity; that a wider (and engaged) audience will bear witness to a new human rights-conscious regime; and the overview provided will feed into, and help legitimise, a final report. The latter in turn intended to record and acknowledge past wrongs and provide recommendations that can help to promote truth, justice and reconciliation.
However, while much hope is often placed, and much time and money expended, on truth commissions and their hearings and final reports, it is evident that these processes generally fall far short of ambitious goals and high expectations. But what explains this gap between aspiration and reality?
This is one of the questions that I address in a new book – Performances of Injustice: The politics of truth, justice and reconciliation in Kenya – which analyses several transitional justice mechanisms introduced following Kenya’s post-election violence of 2007/8 when over 1,000 people were killed and almost 700,000 were displaced.
This includes the establishment of the Truth, Justice and Reconciliation Commission (TJRC). Significantly, the Commission’s mandate recognised that, while the 2007/8 post-election violence was triggered by a disputed election, it was fuelled by more deep-rooted problems. In turn, the Commission was tasked with investigating a wide array of injustices – from state repression and causes of political violence to perceptions of economic marginalisation and irregular land acquisition – between Kenya’s independence in 1963 and the end of the post-election violence in February 2008.
Established through an Act of Parliament in 2008, and operational from 2009 to 2013, the TJRC sought to meet its mandate, in large part, by collecting statements (with over 40,000 collected in total), holding public and women’s hearings in 35 locations across the country and adversely mentioned person (AMP) hearings in western and Nairobi, and publishing a substantial final report that runs to over 2,000 pages.
Despite such achievements, the Commission was soon mired in controversy with calls for the chairman – who was soon linked to three injustices that the Commission was meant to investigate – to resign, while the public hearings attracted little media attention, and the final report is yet to be discussed in parliament let alone implemented.
The Kenyan experience highlights a range of lessons and insights. This includes the fact – as recently outlined in a piece for The Conversation – that transitional justice mechanisms are not ‘tools’ that can be introduced in different contexts with the same effect. Instead, their success (or failure) rests on their design, approach and personnel – all of which are incredibly difficult to get right – but also on their evaluation and reception, and thus on their broader contexts, which commissions have little or no control over.
However, the lessons that can be drawn go beyond reception and context and extend to the inherent shortcomings of such an approach.
First, while victims appreciate a chance to speak and be heard, the majority clearly submitted statements or memoranda or provided testimony in the hope that they would be heard and that some action would be taken to redress the injustices described. As one woman explained after a women’s hearing in Nakuru, she was glad that she had spoken and how, having told her story, the Commission would ‘come in and help.’
To be fair, the TJRC’s founders were aware of the inadequacies of speaking, which is why they included ‘justice’ in the title and gave the Commission powers to recommend further investigations, prosecutions, lustration (or a ban from holding public office), reparations and institutional and constitutional reforms.
However, on the question of whether recommendations would be implemented, the Commission rather naively relied on the TJRC Act (2008), which stipulated that ‘recommendations shall be implemented.’ However, such legal provisions proved insufficient. Amidst general scepticism about the Commission’s work, parliament amended the TJRC Act in December 2013 to ensure that the report needed to be considered by the National Assembly – something that is yet to happen.
Moreover, to document and acknowledge the truth requires that one hears from both victims and perpetrators. However, the latter often have little motivation, and much to lose, from telling the truth. This was evident in Kenya where, during the AMP hearings I attended, where I heard little that was new and not a single admission of personal responsibility or guilt. Instead, testimonies were characterised by five discursive strands of responsibility denied: denial through a transfer of responsibility, denial through a questioning of sources, denial through amnesia, denial through a reinterpretation of events and an assertion of victimhood, and denial that events constituted a wrongdoing. However, while AMPs denied responsibility, none denied that injustices had occurred. As a result, while the hearings provided little clarity on how and why a series of reported events may have occurred, they simultaneously drew attention to, and recognised, past injustice. In this way, they provided a public enactment of impunity: Kenya’s history was replete with injustice, but AMPs were unwilling to shoulder any responsibility for it.
This ongoing culture of impunity points to another issue, which is that – for most victims – injustices clearly do not belong to the past but to the present and future. The loss of a person or income, for example, often constitutes a course that now seems beyond reach – from the hardship that accompanies the loss of a wage earner to the diminished opportunities that stem from a child’s extended absence from school. However, the past also persists in other ways, from the injustices that never ended, such as gross inequalities or corruption, to fears of repetition and experiences of new injustice.
Unfortunately, the idea that one can ‘look backwards to reach forwards’ downplays the complex ways in which the past actually persists, and possible futures infringe on the present. This is problematic since it can encourage a situation where small changes dampen demands for more substantive reform. At the same time, it can facilitate a politicised assertion of closure that excludes those who do not buy into the absence of the past, the newness of the present, or the desirability of imagined futures and provides a resource to those who seek to present such ‘difficult people’ as untrusting, unreasonable and unpatriotic.
This is not to say that truth commissions are useless and should never be considered. On the contrary, many view speaking as better than silence, while the commission’s report provides a historical overview of injustice in Kenya and a range of recommendations that activists and politicians are using to lobby for justice and reform.
However, when introduced, truth commissions should be more aware of the importance of persuasive performances and how their initial reception and longer-term impact is shaped by broader socio-economic, political and historic contexts. Truth commissions also need to adopt a more complex understanding of the ways in which the past persists, and possible futures infringe on the present and avoid easy assertions of closure.
Ultimately, such ambitious goals as truth, justice and reconciliation require not Freudian ‘talk therapy’, although catharsis and psycho-social support are often appreciated, but an ongoing political struggle, and substantive socio-economic and political change, which something like a truth commission can recommend, and sometimes contribute to, but cannot be expected to achieve.
This article was first published in the Review of African political Economy (ROAPE).
The African Union and the ICC: One Rule for Kings, another for the Plebs
The African Union complains that the International Criminal Court is biased only when an African head of state stands accused.
During the five-year-long proceedings at the International Criminal Court (ICC) against former Ugandan rebel commander Dominic Ongwen, there was not a peep from the Ugandan government about the ICC’s bias against Africans.
Uganda’s President Yoweri Museveni did not show any such restraint towards the ICC when he was the chief guest at the April 2013 inauguration of then newly elected Kenyan President Uhuru Kenyatta.
“I was one of those that supported the ICC because I abhor impunity. However, the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution,” Museveni said in his 9 April 2013 speech. The actors he made indirect reference to were unnamed Western countries.
Museveni accused those actors of using the ICC, “to install leaders of their choice in Africa and eliminate the ones they do not like.”
At the time Museveni spoke, Kenyatta and his deputy William Samoei Ruto were due to face trial at the ICC. The case against Kenyatta was terminated in March 2015 before trial hearings began. Ruto’s case was terminated in April 2016 after the prosecution had called its witnesses. In a majority decision, the judges said the case against Ruto and former journalist Joshua arap Sang had deteriorated so much that they could not determine Ruto’s and Sang’s innocence or guilt. The judges said the case deteriorated because of a campaign to intimidate and bribe witnesses.
No sense of irony
During the April 2013 inauguration of Kenyatta, Museveni exhibited no sense of irony when he accused unnamed actors of using the ICC to eliminate leaders they did not like. By the time Museveni was making his speech, his government had already debated and agreed to use the ICC as one way of “eliminating” its problems with the Lord’s Resistance Army (LRA) rebel group in northern Uganda. In December 2003 Uganda formally asked the ICC to investigate the atrocities committed in northern Uganda.
Following that formal request, Uganda shared with the ICC’s Office of the Prosecutor (OTP) several years’ worth of recordings of the government’s intercepts of LRA radio communications. Together with those recordings, the government also gave the OTP the contemporaneous notes made of the intercepts. On top of that, the government also gave the OTP a list of 15 LRA leaders it believed were responsible for the atrocities committed in northern Uganda.
All this emerged during the course of Ongwen’s trial at the ICC for his role in atrocities committed between 2002 and 2005 in northern Uganda. Ongwen, a former LRA commander, was convicted of 61 counts of war crimes and crimes against humanity in February this year and was sentenced to 25 years in prison in May. Ongwen is in the process of appealing against his conviction and sentence.
In his April 2013 speech, Museveni acknowledged that his government had cooperated with the ICC. “We only referred Joseph Kony of LRA to the ICC because he was operating outside Uganda. Otherwise, we would have handled him ourselves,” said Museveni. This statement is only partly true.
When in December 2003 Uganda formally requested the ICC to investigate the atrocities committed in northern Uganda, Kony was based in what is today South Sudan. But he was there with a small group of senior LRA commanders and other LRA members. During Ongwen’s trial, the court heard that by the time Uganda made its referral to the ICC, most of the LRA’s commanders and members had left the group’s rear bases in then southern Sudan and crossed the border back into northern Uganda. This is because Uganda had reached a deal with Sudan that allowed it to cross the border and attack the LRA’s rear bases. Uganda called this military offensive Operation Iron Fist.
African leaders protecting each other
The Ugandan government’s actions may seem contradictory but they fall well within the pattern African leaders have adopted when it comes to the ICC. Whenever there has been a case against an African president or deputy president at the ICC, this has been discussed at the African Union. As for ICC cases against other Africans, the African Union has not discussed them or passed resolutions on them, even if those cases involved former presidents or vice presidents. Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.
Ever since, in July 2008, the OTP applied for an arrest warrant against then Sudanese President Omar al-Bashir in connection with the atrocities committed in Sudan’s western region of Darfur, the ICC has been on the agenda of the regular African Union meetings of presidents and prime ministers. ICC pre-trial judges eventually issued two arrest warrants against al-Bashir in March 2009 and July 2010.
African heads of state and government usually meet twice a year as the summit of the AU. Between 2009 and 2020, at each of those summits, they passed resolutions on the ICC or they reaffirmed past resolutions on the matter and directed a ministerial committee to follow up on those resolutions. The resolutions African leaders have passed at these summits have called for the termination or deferral of cases at the ICC implicating serving heads of state or their deputies.
Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.
None of the resolutions has mentioned any of the other cases that have come before the ICC such as the one against Laurent Gbagbo, Ivory Coast’s former president, or the one against Jean-Pierre Bemba, a former vice-president and senator of the Democratic Republic of Congo. The ICC has concluded the cases against Gbagbo and Bemba, acquitting both of them.
The African Union has not been the only critic of the Africa-bias in case selection at the ICC. Academics, lawyers and members of civil society have all criticised or highlighted this bias. But the African Union has been the loudest critic. And what the African Union has said on the issue has often been summarised to mean Africa is against the ICC.
Presidents have immunity, ok?
But this paring-down a complicated issue has blurred the African Union’s two-track approach in its relationship with the ICC. Whenever a head of state such as Sudan’s Omar al Bashir is the target of an arrest warrant, the African Union is strident in its criticism of the court. After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.
Instead, the AU has now turned its focus on the issue of the immunity of heads of state and other senior government officials. Under the Rome Statute, head of state does not have immunity if that person is charged with a crime under that Statute. What’s more, the ICC regularly communicates with member states when the court has been informed that a person for whom there is an outstanding arrest warrant is traveling to those member states.
This was the case with al-Bashir when he was Sudan’s president. Some countries chose to ignore the ICC’s communication. Others advised al-Bashir not to travel to their country and risk arrest. And some have argued they could not arrest al-Bashir because he was in their country to attend an international meeting they were hosting and that, under international customary law, al-Bashir enjoyed immunity for the purpose of the meeting. This is what South Africa and Jordan argued when the issue of immunity for heads of state was litigated before the ICC.
The most recent AU summit resolution on the ICC was issued in February 2020. In it, AU member states are called on to “oppose” the ICC Appeals Chamber judgement in a case Jordan had filed. The resolution said the decision by the ICC Appeals Chamber was, “at variance with the Rome Statute of the International Criminal Court, customary international law and the AU Common Position.”
The judgement referred to in the AU resolution dealt with the question of whether Jordan, as an ICC member, should have arrested al-Bashir when he went to Jordan in March 2017 to attend a regular summit of the League of Arab States. The ICC Appeals Chambers was unanimous that Jordan should have arrested al-Bashir when he visited that country.
After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.
The five-judge panel also agreed that customary international law gave heads of state immunity in certain circumstances such as immunity from another country’s jurisdiction. But the Appeals Chamber concluded that such immunity did not extend to executing ICC arrest warrants.
The AU’s call to oppose the ICC Appeals Chamber’s May 2019 judgement on Jordan ignores one thing: the AU made submissions to the Appeals Chamber before it reached its judgement. The AU made its submissions at the invitation of the Appeals Chamber. The AU’s chief lawyer, Namira Negm, led the team that argued its submission during the hearings on the Jordan case that were held between 10 and 14 September 2018.
In the February 2020 resolution, the AU also asked African members of the ICC to raise before the court’s membership issues that concern African states such as “the rights of the accused and the immunities of Heads of State and Government and other senior officials.” The resolution further asked African members to “propose necessary amendments to the Rome Statute within the ambit of the ongoing discussions on the reform of the ICC,” by its membership.
Making peace without al Bashir
One reason the AU gave against effecting the arrest warrants against al Bashir was that he was key to bringing peace to Sudan’s western region of Darfur. The AU was involved in negotiations for peace in Darfur, a process that has been on and off over the years. Ironically, once al-Bashir was removed from power in April 2019, the transitional authorities who replaced him were able to initiate and conclude peace deals on the Darfur conflict last year.
In August this year, the Cabinet in Sudan resolved to hand over al Bashir to the ICC in execution of the two arrest warrants against him. This is a significant step since the transitional government took office in 2019 and indicated that Sudanese authorities were considering reversing the previous position that al Bashir would not be handed over to the ICC. The next step is for the overall transitional authority in Sudan, the Sovereignty Council, to discuss the Cabinet decision and decide whether to endorse it.
The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent. When a conflict is at its peak, victims will receive emergency aid. The more prolonged a conflict becomes, the less aid victims receive. Rarely will such aid be from the victims’ government. And often that foreign-donated aid is all that victims of conflict can expect.
The perpetrators of the conflict that made them victims are rarely held to account for the atrocities they committed. Yet, victims live with the consequences of those atrocities for the rest of their lives. This was the constant refrain of the victims of the northern Uganda conflict who testified during the Ongwen trial.
The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent.
Women testified about their families rejecting them because they returned home with children they gave birth to while with the LRA. One person testified about having to change schools several times because teachers and students abused him when they found out he had been in the LRA. Another person testified about wanting to resume his education that was interrupted when he was abducted by the LRA but he did not earn enough to do that and also educate his children. So he has focused on educating his children.
These and other victim stories are rarely spoken about whenever the ICC is criticised of having an African bias.
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