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60 Days of Independence: Kenya’s Judiciary Through Three Presidential Election Petitions

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The judiciary had finally come of age, judicial independence had been attained. In the days that followed, judicial officers discussed on their social media pages how they were retaking their oaths of office. Erstwhile critics in the Internet fever swamps were suddenly gushing with praise for the judiciary.

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60 Days of Independence: Kenya’s Judiciary Through Three Presidential Election Petitions
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Independence Day

On the morning of 1 September 2017, Kenya entered the annals of history as only the fourth country in the world to annul a presidential election. Before that, courts in only Ukraine, the Maldives and Austria had annulled presidential elections. No opposition party in Africa had ever successfully petitioned a court to overturn an election, and the decision was praised globally as striking a blow for democracy and the rule of law. “Look, in view of all that evidence, and in good conscience, what other decision would I have made and how would I have looked?” the Chief Justice remarked.

Outside the courtroom later, as the majority decision and the two dissenting opinions were read out and broadcast live, the crowds erupted into celebration. From inside the building, it felt as if a bomb had gone off.

The judiciary had finally come of age, judicial independence had been attained. In the days that followed, judicial officers discussed on their social media pages how they were retaking their oaths of office. Erstwhile critics in the Internet fever swamps were suddenly gushing with praise for the judiciary.

President Uhuru Kenyatta was visibly angry. He had expected the court challenge on his victory to suffer the same fate as the challenge to his 2013 election victory and plans for his swearing in were already in top gear. The day before the Supreme Court decision Kenyatta had even made disparaging remarks about waiting for what some six people would decide regarding the election, and a false news alert on the Kenyatta family-owned K24 TV had implied that the petitioners had lost the case even before the judgment had come in. The 2017 petition was expected to go the same way. Then it all went horribly wrong.

Kenyatta had waged many battles in courts both at home and abroad and he had prevailed each and every time. He had defeated petitions seeking to stop his candidacy for president, neutered efforts to invalidate his shocking 2013 presidential election victory, and watched with amusement as a crimes against humanity case against him at the International Criminal Court (ICC) floundered, with witnesses withdrawing or recanting their testimony. He had won every court battle that mattered – until then.

Just what had changed in four short years? The answers would become clear from the actions undertaken in response to the petition decision.

Kenyatta’s first response to the Supreme Court’s decision annulling the election was to make a televised address from State House pledging adherence to the rule of law (sic). Later on the same day, he let rip at a rally of his supporters at Burma Market in Nairobi, calling the judges crooks and warning the Chief Justice that now that his victory had been invalidated, he, the Chief Justice, would be dealing with a President and not a mere president-elect.

Still smarting, Kenyatta told a State House meeting the following day that the country had a problem in the judiciary and vowed he would fix it.

Maraga thinks he can overturn the will of the people,” Kenyatta said.  “We shall show you in 60 days that the will of the people cannot be overturned by one or two individuals. Tutarudi na tukishamaliza tuta-revisit hii mambo yenu …Tunafanya kazi hii, unakuja unablock, unaweka injunction. Kwani unafikiria wewe umechaguliwa na nani? [After we return from the repeat election, we shall revisit your issues. We cannot be working only for you to frustrate us with injunctions. Who do you think elected you?]

The tirade signalled the beginning of a political onslaught that would manifestly challenge the judiciary’s claim to independence.

Among Kenyatta’s supporters, the anger was palpable. And it quickly turned into action – Member of Parliament for Nyeri Town Ngunjiri Wambugu petitioned the Judicial Service Commission (JSC) to remove Chief Justice Maraga from office for alleged gross misconduct. He accused the Chief Justice of instituting a “judicial coup” with a view to seizing political power. The petition to the JSC came only a day after Members of Parliament from Kenyatta’s Jubilee Party announced during a Senate debate that they planned to pass a series of laws to limit the powers of the judiciary on elections. Kenyatta prevailed on Ngunjiri to withdraw the petition.

Within a week, a loud demonstration by Jubilee Party supporters was accompanying Derrick Malika Ngumu to the Supreme Court as he lodged a petition with the JSC to remove Justices Mwilu and Lenaola from office. The petition accused the two judges of gross misconduct and breach of the judicial code of conduct for allegedly being in contact with the petitioner’s lawyers during the hearing of the 8 August presidential election petition. As it turned out, cell data showed that some of the judges lived within the same radius as a bar popular with politicians. The JSC dismissed the petition for lack of merit.

In contrast, when the decision to annul the election results came in, Raila Odinga and Kalonzo Musyoka were in court. From the court steps, Odinga declared that the decision had vindicated him and he pressed his advantage by demanding resignations at the electoral commission as well as irreducible minimum reforms to guarantee a free fresh election. He would later withdraw from the fresh election and call on his supporters to boycott it.

Both Kenyatta’s and Odinga’s reactions to the nullification appeared to be knee-jerk and tactical rather than strategic. The nullification appears to have surprised both protagonists, with the result that they were grappling with how to deal with loss and victory, respectively. As the court drank in the praise for its courage and independence, the attacks against some of its judges began to crystallise. The opposition began to expect more decisions along the same lines, and the angry government saw the court as a stalking horse for the opposition that might well issue more damaging decisions if not checked.

The decision to annul the election results was a huge rebuke to the electoral commission’s conduct, but it stopped short of finding the commissioners and staff culpable

The majority judges had not thought that they were in any danger. They were convinced of the soundness of their decisions and how they had arrived at them; they felt that they could defend them. After all, they had not cited Kenyatta for anything untoward. Although the judges understood the President’s anger for what it was — a normal human reaction, they took comfort in the public support that they received. Yet, that public goodwill lulled them into underestimating the hostility they were going to face.

The decision to annul the election results was a huge rebuke to the electoral commission’s conduct, but it stopped short of finding the commissioners and staff culpable. The commission’s chairman invited the director of public prosecutions to investigate any of his staff suspected of wrongdoing. Save for a few low-level officials at the polling station and constituency level who allegedly tampered with the elections, no charges have been preferred for illegal acts committed in the 8 August 2017 polls.

Because the judges had not faulted the President or any individuals at the Independent Electoral and Boundaries Commission (IEBC) despite acknowledging the existence of “irregularities and illegalities”, they felt safe since they had not crossed the invisible line of power.

Still, there was a surge of attacks on the judiciary. Public demonstrations against the Supreme Court judges took place in Nyeri, Eldoret and Nairobi. The demonstrations targeted the Chief Justice in particular, with some protestors burning his effigy. Within the public sphere, an explosion of coordinated fake news, hash tags, videos and social media postings targeted the judges and the courts. Kenyatta’s reference to the judges as wakora [crooks] spawned the hash tag #WakoraNetwork.

On 19 September 2017, a day before the judges were due to deliver the reasons for the determination in the petition, the Chief Justice stood on the steps of the Supreme Court flanked by members of the Judicial Service Commission.

He pointedly criticised the Inspector General of Police, who he said was not taking judges’ calls. Judges had requested increased security but they were being ignored. “If leaders are tired of having a strong and independent judiciary, they should call a referendum and abolish it altogether. Before that happens the judiciary will continue to discharge its mandate in accordance with the Constitution and individual oaths of office,” he said.

The judges had never faced as much pressure as they did in the aftermath of the decision; they had no experience in dealing with the executive at close range, and nothing could have prepared them for the backlash.

It was a sobering moment as the Chief Justice said that he was willing to pay the ultimate price to protect the Constitution. Maraga was considered an insider, beloved by entrenched interests who hoped that he would apply the brakes on the reforms train, but he had little experience in playing the long game with the executive and the legislature.

The constant attacks were eroding whatever social capital the Supreme Court had built up with the decision of the 1st of September. As public support for the Supreme Court grew lukewarm, dampened by politicians’ criticism of the judges as having gone rogue, so too did the spirit that had imbued the court before the election nullification begin to wither.

By the 1st of October, when Supplementary Budget Estimates were published to accommodate the costs of the fresh presidential election, the budget of the judiciary had been slashed by Sh1.95 billion or 11.1 per cent.

At the height of emotions over the Supreme Court’s annulment decision, the ruling coalition demanded that changes be made to the Judicial Service Act to modify the procedures concerning the appointment of judges. The National Assembly passed amendments to the Election Act barring the courts from opening ballot boxes to scrutinise voting tallies

The judiciary’s budget had previously been increasing progressively from Sh3 billion in 2009/10 to Sh7.5 billion in 2011/12 before reaching a high of Sh16 billion in 2015/16. As other sectors continued to receive increased budgetary allocations, the judiciary’s projected budget of Sh31 billion was slashed to Sh17.3 billion.

At the height of emotions over the Supreme Court’s annulment decision, the ruling coalition demanded that changes be made to the Judicial Service Act to modify the procedures concerning the appointment of judges. The National Assembly passed amendments to the Election Act barring the courts from opening ballot boxes to scrutinise voting tallies.

A shaken IEBC was so uncertain of itself that it filed a petition seeking the Supreme Court’s advice on its role in verifying election results. The court ruled in its 17 October advisory opinion on what it had said in its September judgment, that the IEBC chairman could not correct errors on the vote tallying forms.

As the year wound down, the Kenyan Section of the International Commission of Jurists named CJ Maraga as 2017 Jurist of the Year, celebrating his courage in leading the Supreme Court to the majority decision to annul the presidential election result.

In the aftermath of the fresh election, the dismantling of the president’s legal team would give an indication of the depth of Kenyatta’s disappointment in those handling his legal affairs. Solicitor General Njee Muturi was demoted to Deputy Chief of Staff at State House; AG Githu Muigai would suddenly resign in January 2019, and the president’s advisor on constitutional affairs, Abdikadir Mohamed, would decline a posting to South Korea as ambassador. The president also accepted the resignation of Keriako Tobiko as Director of Public Prosecutions and offered him the position of Cabinet Secretary for the Environment.

Within the judiciary, there was a collective sigh of relief that the institution’s prestige and honour had been restored. The joyous mood at the Supreme Court contrasted sharply with the ugly scenes in the aftermath of the 2013 decision on the presidential election petition. As soon as Chief Justice Willy Mutunga had read out the 30 March 2013 decision, each judge swiftly left the building under the escort of the paramilitary General Service Unit (GSU) and the crowds in the streets were dispersed with teargas. What had begun as a globally watched court battle ended in silent ignominy. Much hope had been placed on the Supreme Court in 2013 and the disappointment in its decision significantly injured the public standing of the judiciary.

Just what had happened to change the Supreme Court in the four years between 2013 and 2017?

The 60-day period the Supreme Court gave for a fresh election provided a snapshot of the judiciary’s highest moment as an independent institution. The judiciary had for years been engaged in a struggle to claim its independence within a volatile political environment. The interplay of internal institutional politics – involving appointments, personality clashes, conflicts of interest and opposing judicial philosophies – and the external politics around how those wielding political power related with the institution is likely to have influenced how the court decided the presidential election petitions in 2013 and 2017.

Court in A New Mould

Kenya’s first Supreme Court was cobbled together from the old judiciary, academia, and civil society and it is instructive that the Court of Appeal contributed only one judge to the new apex court that would topple it in the judicial hierarchy. It was a clean break with the insularity of the Court of Appeal, its arrogance and slavish loyalty to rules.

Until 2013, presidential election petitions in Kenya had never gotten off the ground. Petitions challenging the election of the president in the 1992 and 1997 contests did not go beyond the preliminary stage and were dismissed on technicalities at the Court of Appeal – the highest court at that time. The requirements the petitioners needed to fulfil – such as the requirement to personally serve a sitting president with court papers – were so onerous as to make litigation moot. Opposition politicians refused to take the dispute over the 2007 presidential election to the courts, arguing that their opponent controlled the judiciary, leading to a 60-day violent crisis that only ended with the international mediation that brokered the formation of a coalition government.

This history made part of the case for establishing the Supreme Court as a special forum to hear and determine presidential election petitions, which had to be decided within 14 days of the announcement of the result. A president-elect could only be sworn into office if there was no court challenge. The change was first introduced into the September 2002 draft constitution prepared by the Constitution of Kenya Review Commission. This draft was the basis of successive proposed constitutions that culminated in the adoption of a new constitution in 2010.

On the surface, the first Supreme Court seemed to have the right mix of insider experience and outsider mavericks. More significantly, the court was a subconscious assembly of the country’s so-called Big Five, the largest ethnic groups; the Kamba, Kalenjin, Luo, Luhya, and Kikuyu, were represented.

At the helm as Chief Justice and Supreme Court President was Dr Willy Mutunga, who had taught law at the University of Nairobi, had been a political detainee, had pioneered the establishment of Kenya’s vibrant civil society movement, and had been part of the push for a new constitution. He had also been in charge of the East Africa regional office of the Ford Foundation. After the return of multi-party politics in 1991, he became one of the public faces demanding constitutional change. In early 2002, he successfully mediated between opposition leaders Mwai Kibaki, Charity Ngilu and Michael Kijana Wamalwa to form a political alliance and support a single candidate for the presidency in the 2002 elections following which Kibaki was elected president.

Although each of the Supreme Court judges – there are seven – had been through public interviews and those already serving on the bench had additionally been vetted for suitability to continue serving, there were questions about whether they were up to the task of adjudicating a political dispute purely on the basis of evidence and facts. Only three judges had judicial experience; the other three came from academia and civil society.

Dr Mutunga had had no role in interviewing or selecting any of the first Supreme Court justices. He and Deputy Chief Justice Baraza were awaiting parliamentary vetting and approval at the time. The JSC thus gazetted the names of five judges without his input. A court challenge seeking to have the Supreme Court conform to the principle that no institution should have more than two thirds of one gender failed.

The other judges who would make up the bench for the 2013 presidential election petition were Justices Philip Kiptoo Tunoi; Jackton Boma Ojwang; Mohamed Khadar Ibrahim; Smokin Charles Wanjala; and Njoki Susanna Ndung’u. By pure coincidence, they had all been Dr Mutunga’s students at the University of Nairobi. Deputy Chief Justice Nancy Makokha Baraza, however, would leave office after serving for only six months following a public furore over her altercation with a female security guard performing checks at a Nairobi shopping mall. A tribunal found Baraza unsuitable to serve on Kenya’s apex court and she later withdrew her appeal at the Supreme Court. The vacancy created by her departure was not filled until after the 2013 election petition had been decided.

In the run-up to the 2013 presidential election petition Dr Mutunga’s stint as a political prisoner and history as a pro-democracy activist had fed fears that he would be in the tank for Prime Minister Raila Odinga, who had also been a political prisoner and was contesting the presidency a third time. Yet, ahead of the 2013 presidential election petition, the Supreme Court had cultivated the habit of dodging legal bullets and its excessive caution was sometimes seen as bordering on cowardice. For example, when the IEBC sought an advisory opinion on the election date under the new Constitution, the Supreme Court sent the matter down to the High Court whose decision was subsequently affirmed by a five-judge bench of the Court of Appeal by a majority of four to one.

The Supreme Court’s aloofness discouraged litigants from approaching it to settle the question of Uhuru Kenyatta and William Ruto’s eligibility to contest the 2013 elections given their indictment at the (ICC for crimes against humanity. “Any question on the qualification or disqualification of a person who has been duly nominated to run for president can only be dealt [with] by the Supreme Court,” said Judge Helen Omondi, reading out the decision of a five-judge High Court bench, 17 days to the March 4, 2013, General Election. To date, the Supreme Court has not made any determination on the leadership and integrity standards a candidate for president should satisfy in order to qualify to run.

By the time the 2013 presidential election petition arrived at the Supreme Court, police were dispersing the petitioners’ supporters with teargas. Once the petition was filed the court opened up the proceedings to live broadcasting and web streaming on its website, with 157 law schools following the feed. Six senior jurists from the Commonwealth Judges Association were on hand to watch the hearing The pre-trial conferencing ­- an innovation of the new Supreme Court – was fascinating, giving the public a rare inside view of how the wheels of justice turn.

The judges declined an audit of the IEBC’s Information and Communication Technology (ICT) system, saying that the petitioners had not indicated who should conduct it, and expressing fears that the exercise might go beyond the constitutional deadline for determining the petition.

Remarkably, a report published by the Carter Center after the election put the failure of the ICT system at 41 per cent of all biometric identification kits.

Another application sought leave for Odinga’s lawyers to formally file an 839-page bundle of affidavits and other evidence — necessitated by the IEBC’s own filing in response to the petition. However, citing the deadline imposed upon it by the Constitution, the court ordered that the material be expunged from the record.

Civil society activists Gladwell Otieno and Zahid Rajan filed a separate petition seeking to argue that the IEBC did not maintain a constant voter register, with the result that the number of people who voted was higher than the number of those who were registered. The petitioners claimed that it was unclear which register had been used to confirm the identities of voters at polling stations across Kenya.

A third set of petitioners, Moses Kiarie Kuria, Dennis Njue Itumbi and Florence Jematia Sergon filed their petition before the March 16, 2013 deadline seeking a declaration that spoilt votes should not be taken into account when computing the valid votes cast.

The court, on its own motion, ordered the scrutiny of all votes cast in all the 33,400 polling stations to gain insight into whether the winning candidate had indeed met the threshold of garnering a majority of all votes cast. But it soon became clear that notwithstanding the availability and use of nearly 50 legal researchers, the court was woefully unprepared to manage the scrutiny or to understand how the Sh10 billion ICT infrastructure had helped or undermined the election.

Dr Mutunga and Dr Wanjala were convinced that a scrutiny would provide a snapshot of the election but the Supreme Court’s lack of experience in managing an election scrutiny would prove to be its undoing as it ceded control to the court administrators who actively sabotaged it through administrative delays and systems failure. In the event, although the team completed the scrutiny, they misled the judges that they had only examined 18,000 polling stations and that the data was inconclusive.

Without acknowledging that the scrutiny it ordered was only partially undertaken and inconclusive, the court upheld the election for lack of evidence of rigging. The decision provoked brutal criticism, including open accusations of bribery. Dr Mutunga resorted to publishing an agonised post on Facebook asking that if anyone knew of judges accepting bribes, he or she should come forward with the evidence.

Long before it gave its final decision, the manner in which the court had handled a number of applications made during the hearing was a clear indication of the decision that the court would make. The final judgment was brief on matters such as the failure of the polling kits (worth only seven paragraphs) while lengthy on far less important ones such as why rejected votes should not be considered in the final tally (27 paragraphs).

Although there were recriminations about the inadequate preparations by advocates for the petitioners – who declined offers of help from the United States at the time – the Supreme Court came in for severe criticism for its proceduralist reading of the rules and this may have influenced its approach in 2017.

In their book on the 2013 General Election, New Constitution Same Old Challenges, James Gondi and Iqbal Basant point out that public confidence in the Supreme Court declined after the decision, which was roundly criticised in academic and legal circles. A Judiciary Perception Survey in 2015 found that the approval rating of the judiciary plummeted from a stratospheric 78 per cent to just under 50 per cent in the year after the ruling.

So harsh was the backlash from the decision that when interviewing for the Chief Justice’s position in 2016, Justice Smokin Wanjala – who had been on the Supreme Court bench since its establishment – said he would not be happy to be part of another presidential election petition, if only to avoid unfair criticism.

In the event, he was one of the four judges that formed the Supreme Court majority that annulled the 8 August 2017 presidential election and he also sat on the petition challenging the validity of the fresh election held on 26 October 2017.

Odinga issued a statement shortly after the March 2013 Supreme Court decision and before the judges had given their detailed reasoning, saying that he and his running mate, Kalonzo Musyoka, disagreed with some of the court’s findings and pointing at anomalies in the way the hearings were conducted but also adding that: “Our belief in constitutionalism remains supreme.”

“Casting doubt on the judgment of the court could lead to higher political and economic uncertainty and make it difficult for our country to move forward,” Odinga said.

There would be an inchoate attempt to reform the Supreme Court through a proposed referendum on the constitution in 2015, but it did not materialize. Still, attempts to bring the judiciary to heel had begun as early as when Dr Mutunga was Chief Justice. Decisions by the High Court striking down various laws and executive actions as unconstitutional or illegal had grown into a source of regular annoyance. The executive oscillated between quailing impotence and blinding anger in response to court decisions around corruption, the amendment of security laws to deal with terrorism, and the president’s desire to participate in the appointment of judges.

This article is the first of a three-part series adapted from the recently launched report: 60 Days of Independence: Kenya’s judiciary through three presidential election petitions

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Speak of Me as I Am: Reflections on Aid and Regime Change in Ethiopia

We can call the kind of intrusive donor clientelism that Cheeseman is recommending Good Governance 2.0. His advocacy for strengthening patron-client relations between western donors and African governments, and his urging that donors use crises as a way of forcing regime change and policy conditionalities, is ahistorical, counterproductive and morally indefensible.

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Speak of Me as I Am: Reflections on Aid and Regime Change in Ethiopia
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In a piece, published on 22 December 2020, that he describes as the most important thing he wrote in 2020, Nick Cheeseman penned a strong criticism of what he calls the ‘model of authoritarian development’ in Africa. This phrase refers specifically to Ethiopia and Rwanda, the only two countries that fit the model, which is otherwise not generalisable to the rest of the continent. His argument, in a nutshell, is that donors have been increasingly enamoured with these two countries because they are seen as producing results. Yet the recent conflict in the Tigray region of Ethiopia shows that this argument needs to be questioned and discarded. He calls for supporting democracy in Africa, which he claims performs better in the long run than authoritarian regimes, especially in light of the conflicts and repression that inevitably emerge under authoritarianism. His argument could also be read as an implicit call for regime change, stoking donors to intensify political conditionalities on these countries before things get even worse.

Cheeseman’s argument rests on a number of misleading empirical assertions which have important implications for the conclusions that he draws. In clarifying these, our point is not to defend authoritarianism. Instead, we hope to inject a measure of interpretative caution and to guard against opportunistically using crises to fan the disciplinary zeal of donors, particularly in a context of increasingly militarised aid regimes that have been associated with disastrous ventures into regime change.

We make two points. First, his story of aid dynamics in Ethiopia is not supported by the data he cites, which instead reflect the rise of economic ‘reform’ programmes pushed by the World Bank and IMF. The country’s current economic difficulties also need to be placed in the context of the systemic financial crisis currently slamming the continent, in which both authoritarian and (nominally) democratic regimes are faring poorly.

Second, we reflect on Cheeseman’s vision of aid as a lever of regime change. Within already stringent economic adjustment programmes, his call for intensifying political conditionalities amounts to a Good Governance Agenda 2.0. It ignores the legacy of the structural adjustment programmes in subverting deliberative governance on the continent during the 1980s and 1990s.

Misleading aid narratives distract from rebranded structural adjustment 

On the first point, Cheeseman establishes his argument early on by stating ‘that international donors have become increasingly willing to fund authoritarian regimes in Africa on the basis that they deliver on development’. In support of this assertion, he cites a table from the World Bank that shows net Official Development Assistance (ODA) received by Ethiopia surging to USD 4.93 billion in 2018, up from just over USD 4 billion in 2016 and 2017, and from a plateau oscillating around USD 3.5 billion from 2008 to 2015.

Cheeseman’s argument rests on a number of misleading empirical assertions which have important implications for the conclusions that he draws. In clarifying these, our point is not to defend authoritarianism. Instead, we hope to inject a measure of interpretative caution and to guard against opportunistically using crises to fan the disciplinary zeal of donors, particularly in a context of increasingly militarised aid regimes that have been associated with disastrous ventures into regime change.

These aggregated data are misleading because ODA received by Ethiopia from western bilateral donors in fact fell in 2018 (and probably continued falling in 2019 and 2020). The World Bank data that he cites are actually from the OECD Development Assistance Committee (DAC) statistics, which refer to all official donors (but not including countries such as China). If we restrict donor assistance to DAC countries – which is relevant given that Cheeseman only refers to the US, the UK and the EU in his piece – disbursed ODA to Ethiopia fell from USD 2.26 billion in 2017 to USD 2.06 billion in 2018 (see the red line in the figure below).

 

Figure: ODA to Ethiopia (millions USD), 2000-2019

Figure: ODA to Ethiopia (millions USD), 2000-2019Source: OECD.stat, last accessed 30 December 2020.

There was a brief moderate increase in DAC country ODA starting in 2015 and peaking in 2017. Cheeseman might have been referring to this. However, contrary to his argument, it was likely that the reason for this increase in aid was primarily humanitarian, responding to the refugee influx from South Sudan that began in 2015 and to the severe drought and famine risk in 2016-17. It was also probably related to attempts to induce incipient political reform following the major protests in Oromia in 2014, which Cheeseman would presumably condone given that conventional measures of democracy and freedom improved in 2018. Indeed, it is notable that committed ODA from DAC donor countries fell even more sharply than disbursed aid in 2018, from USD 2.49 billion in 2017 to USD 2.07 billion, reflecting the context in which these countries were negotiating hard with the Ethiopian government at the time.

Instead, the sharp increase in ODA in 2018 came entirely from the International Development Association (IDA) of the World Bank Group, which increased its mixture of grants and loans to the country from USD 1.1 billion in 2017 to USD 2.1 billion in 2018. This subsequently fell to USD 1.8 billion in 2019 (the dashed green line in the figure).

Such ODA has been explicitly tied to the World Bank’s long-standing goal of liberalising, privatising and deregulating the Ethiopian economy, thereby ‘reforming’ (or disassembling) many of the attributes that have allowed the Ethiopian state to act in a developmentalist manner. These attributes include state-owned enterprises, state control over the financial sector, and relatively closed capital accounts, in strong distinction to most other countries in Africa (including Rwanda).

For instance, in October 2018 it approved USD 1.2 billion from the IDA in support of ‘a range of economic reforms designed to revitalize the economy by expanding the role of the private sector… to gradually open up the economy and introduce competition to and liberalize sectors that have been dominated by key state-owned enterprises (SOEs)’. The support aimed to promote public-private partnerships in key state-owned sectors such as telecoms, power and trade logistics as key mechanisms to restructure these sectors, as well as broader deregulation and financial liberalisation. It is also notable that the World Bank prefaced this justification by emphasising the political reforms that had already been embarked upon, and the promotion of ‘citizen engagement social accountability’ in Ethiopia.

In other words, contra the idea that western donors have been increasing their support for an authoritarian development model, they have been gradually withdrawing aid since 2017. The World Bank pulled up the slack in 2018, and in December 2019 both the World Bank and IMF promised more funding in support of ongoing economic reforms. The economic liberalisation has in turn undermined political liberalisation and has been a key source of political destabilization.

The bargaining hand of these donors has been reinforced by the economic difficulties faced by the Ethiopian economy – in particular, a hard tightening of external foreign-exchange constraints. Balance of payments statistics reveal that the government had effectively stopped external borrowing after 2015, a policy that it was advised to adopt in its Article IV consultations with the IMF in 2016 and 2017 as its external debt distress levels were rising. As a result, the government became excessively reliant on donor grant money as a principal source of foreign financing. Yet the country continued to run deep trade deficits, in large part because its development strategies, as elsewhere in Africa, have been very import and foreign-exchange intensive (e.g. think of the Grand Ethiopian Renaissance Dam, requiring more than USD 4.6 billion to build, the bulk in foreign exchange). Significant capital flight appears to have taken place as well; for example, errors and omissions reported on the balance of payments were -USD 2.14 billion in 2018. In order to keep the ship afloat, the central bank burnt through over USD 1 billion of its reserves in 2018 alone.

Contra the idea that western donors have been increasing their support for an authoritarian development model, they have been gradually withdrawing aid since 2017

This severe tightening of foreign-exchange constraints needs to be understood as a critical structural factor in causing the development strategy to stall. Along with non-economic factors, this in turn put considerable strain on the government’s ability to stabilise political factions through the deployment of scarce resources, of which foreign exchange remains among the most important, especially in the current setting. Again, the point is not to apologise for authoritarianism, but rather to emphasise that the current situation is rooted deeper within a conjuncture of systemic crises that go far beyond any particular form of political administration.

Indeed, Cheeseman commits a similar oversight in ignoring the previous systemic crisis that the present is in many ways repeating. Later in his piece, he asserts: ‘The vast majority of African states were authoritarian in the 1970s and 1980s, and almost all had poor economic growth.’ This is an ahistorical misrepresentation of the profound global crisis that crippled Africa from the late 1970s for about two decades and which was the source of the poor growth he mentions. Then, as now, economic crisis was triggered throughout the continent by the severe tightening of external constraints, which neoliberal structural adjustment programmes exacerbated in a pro-cyclical manner despite being justified in the name of growth. The combination crippled developmentalist strategies across the continent regardless of political variations and despite the fact that many countries were performing quite well before the onset of the crisis. Such historical contextualisation is crucial for a correct assessment of the present.

Along with non-economic factors, this in turn put considerable strain on the government’s ability to stabilise political factions through the deployment of scarce resources, of which foreign exchange remains among the most important, especially in the current setting.

In this respect, there is a danger of putting the cart before the horse. Most countries that descend into deep protracted crises (economic or political) generally stop being nominally democratic, and yet this result becomes attributed as a cause, as if authoritarianism results in crisis or poor performance. Cheeseman cherry-picks two papers (one a working paper) on democracy and development performance in Africa (which like all cross-country regressions, are highly sensitive to model specification and open to interpretation). However, drawing any causality from such studies is problematic given that states tended to become more authoritarian after the global economic crisis and subsequent structural adjustments of the late 1970s and 1980s, not the other way around. For instance, 16 countries were under military rule in 1972, compared with 21 countries in 1989 during the height of adjustment. Faced with crippled capacity under the weight of severe austerity and dwindling legitimacy as living standards collapsed, many states responded to mass protests against the harsh conditionalities of adjustment with increasing force. As such, economic crisis and adjustment plausibly contributed to the rise of political instability and increasingly authoritarian regimes. Other factors include the Cold War destabilisation, which western countries fuelled and profited from. In other words, the political malaise across Africa at the time was driven by as much by external as internal factors.

Aid as a lever of regime change

This leads us to our second point concerning Cheeseman’s vision of aid as a lever of regime change. Cheeseman is at pains to emphasise that rigged elections and repression of opponents have contributed to the recent emergence of conflict in the Tigray region. While these are important features, Ethiopian intellectuals have also emphasised that conflicts in contemporary Ethiopia have taken place against a history of imperial state formation, slavery and debates about the ‘national question’, or what has sometimes been called ‘internal colonialism’. These conflicts are shaped by the system of ethnic federalism, in which ethnically defined states control their own revenues, social provisioning and security forces. They have been affected by foreign agricultural land grabs, which interact with older histories of semi-feudal land dispossession. Most recently, there have been concerns that regional tensions over the Renaissance Dam and agricultural land may help draw neighbouring countries into the conflict.

In the face of this highly complex and rapidly changing context, no one person can identify the optimal response. It plausibly requires regular collective deliberation by people who are deeply embedded in the context. In particular, the brief political liberalisation of 2018 was followed by a sharp uptick of political violence on all sides, rooted in fundamental tensions between different visions of statehood. Such situations cannot be solved simply by ‘adding democracy and stirring’; they require deliberative governance.

Yet, Cheeseman’s piece seeks a reimposition of the very political conditionalities that were a primary factor in subverting deliberative governance on the continent during the first wave of structural adjustment and its attendant Good Governance agendas. Such conditionalities work by constraining the open contestation of ideas and the process of informed consensus-building. They undermine the sovereignty of key institutions of the polity and the economy. And by doing so they degrade the historical meaning of development as a project of reclaiming social and economic sovereignty after colonialism.

Indeed, as Thandika Mkandawire has argued, the previous wave of political conditionalities and democratisation reduced democracies to formal structures of elections and, by wedding and subordinating them to the orthodox economic policy frameworks established under structural adjustment, led to what he called ‘choiceless democracies’. Such ‘disempowered new democracies’ are incapable of responding to the substantive macroeconomic demands of voters and thereby undermining substantive democracy, deliberative governance and policy sovereignty.

In particular, the idea of a democratic developmental state is meaningless in the absence of policy sovereignty. The institutional monocropping and monotasking of the type that Mkandawire wrote about does not merely prevent key institutions, such as central banks, from using broader policy instruments to support the developmental project. It also involves the deliberate creation of unaccountable policy vehicles, such as Monetary Policy Committees (MPCs), which operate outside of democratic oversight, but have considerable hold on the levers of economic policy. MPCs are in turn wedded to neoliberal monetarism. The message to such disempowered new democracies is that ‘you can elect any leader of your choice as long as s/he does not tamper with the economic policy that we choose for you.’ Or as Mkandawire wrote in 1994, ‘two or three IMF experts sitting in a country’s reserve bank have more to say than the national association of economists about the direction of national policy.’

As Thandika Mkandawire has argued, the previous wave of political conditionalities and democratisation reduced democracies to formal structures of elections and, by wedding and subordinating them to the orthodox economic policy frameworks established under structural adjustment, led to what he called ‘choiceless democracies’

In such contexts, the prospect of a democratic developmental state is severely diminished. Ensuring significant improvements in people’s wellbeing is important for the legitimacy of democracies. Yet the subversion of policy sovereignty significantly constrains the ability of new democracies to do so, setting them up for a crisis of legitimacy.

If democracy is to be meaningful it should involve the active engagement of citizens in a system of deliberative governance. Civil society organisations, in this context, are meaningful when they are autonomous institutions of social groupings that actively engage in boisterous debate and public policymaking in articulating the interest of their members. Yet, donor clientelism in Africa has wrought civil society and advocacy organisations that are manufactured and funded by, and accountable to, donors, not the citizens. This is a substantive subversion of democracy as a system of deliberative governance.

In this respect, we can call the kind of intrusive donor clientelism that Cheeseman is recommending Good Governance 2.0. His advocacy for strengthening patron-client relations between western donors and African governments, and his urging that donors use crises as a way of forcing regime change and policy conditionalities, is ahistorical, counterproductive and morally indefensible. In particular, it does not take into account the destructive, anti-democratic role of western-backed regime change and policy conditionality across the Global South during the era of flag independence. Even recently, these donor countries have disastrous human rights records when pushing for regime change in countries such as Afghanistan, Iraq and Libya. Their support for military dictatorships, such as in Egypt, has been a central pillar of foreign policy for decades. And several of these donor countries worked hard to uphold apartheid in South Africa. They have no moral high ground to push for regime change, and little record to ensure that they could do so without causing more harm than good.

Moreover, external actors attempting to enforce their narrow view of democratisation in contexts of deeply polarised and competing visions of statehood, and in the midst of economic instability reinforced by already burdensome economic conditionalities, austerity and reforms, could well be a recipe for disaster. As a collective of intellectuals from across the Horn has emphasised, the people of Ethiopia in particular and the Horn in general must be at the forefront of developing a lasting peace. This would likely require a developmental commitment to supporting state capacity and deliberative governance, not undermining it through external interference and conditionalities.

This article was first published in CODESRIA Bulletin Online, No. 2, January 2021 Page 1

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Mohamed Bouazizi and Tunisia: 10 Years On

Last year marked the 10th anniversary of the death of Mohamed Bouazizi, who on 17 December 2010 set himself alight at Sidi Bouzid in an act of self-immolation that made him the iconic martyr of the Tunisian revolution.

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Mohamed Bouazizi’s name is familiar to all; less so is his background, although the facts of his story are well known and documented. This article will explore the links between the different sequences of ‘protest’ processes in Tunisia, from the 2008 strikes in the minefields, to the most recent (2017-20) El Kamour protests in the country’s south-east. It will also consider the concept of socio-spatial class solidarity, both in turning an individual suicide into the spark for a major uprising, and in facilitating collective resistance and its role in long revolutionary processes.

Two key questions arise: what in Bouazizi’s profile, life and circumstances was of such significance that his suicide sparked a huge popular uprising whose impact, direct and indirect, was felt worldwide. And what can he teach us about the origin, scale and longevity of the Tunisian revolution?

We must therefore examine the suicide of Mohamed Bouazizi within its familial and personal context, but also within the more general context of the political protests against the Ben Ali dictatorship, and especially against the processes of dispossession, impoverishment and exclusion. Sidi Bouzid was clearly a focus of the protests and resistance then spreading throughout Tunisia’s marginalised regions. The prolonged mining strikes of 2008 were a key stage in the actions.

Born into poverty, Mohamed Bouazizi was raised by his mother after he lost his father at the age of three. As the eldest son he grew up with a moral ‘obligation’ to support his mother, to the detriment of his education, and he left school without qualifications. Some time before his dramatic act, he acquired a barrow and scales and started selling vegetables but his informal business attracted endless administrative hassles and police harassment. Finally, on 17 December 2010, the police seized his meagre equipment to put a stop to his trading. Angry, frustrated and desperate, he turned to the only act of resistance that still appeared open to him and thereby unwittingly triggered the countdown to Ben Ali’s fall, scarcely one month later, on 14 January 2011.

‘Individual’ suicide and class solidarity

Between the prolonged mining strike of 2008 and the shows of solidarity unleashed by Bouazizi’s self-immolation, many social movements were active across Tunisia. Among them were the protests made in Sidi Bouzid in June and July 2010 by peasant farmers whose demands focused on a number of issues: access to natural resources such as agricultural land, and water for drinking and irrigation purposes, state aid, and the complex problem of indebtedness.

According to several witnesses interviewed in Sidi Bouzid, as well as two family members, Mohamed Bouazizi took an active part in these demonstrations. Whether or not this is so, I would identify a clear link between the peasant ‘protests’ of summer 2010 and those that followed Bouazizi’s desperate act – a link that explains why this particular case, in contrast to other suicides, sparked a popular uprising across the country. First to take to the streets after Bouazizi’s self-immolation were other peasant farmers’ children identifying with his fatal act of resistance and despair.

Here was a clear example of ‘class solidarity’ among local populations directly affected by the region’s multiple social and economic problems. Over the next few days that same class solidarity also found expression nationwide, moving from the ‘rural’ zones (including ‘rural towns’), to the popular quarters of larger towns, and finally to the big urban centres, including Tunis. The progress of the protests suggests the existence of a distinct class-consciousness embracing all the ‘popular’ classes, rural and urban.

Since the early 1980s, the governorate of Sidi Bouzid has been the site of a rapid, state-initiated intensification of farming, designed to create a modern, export-oriented agricultural hub based on exploiting deep underground water reserves and attracting private and public capital. Over the past four decades Sidi Bouzid has been transformed: from a semi-arid desert fringe with an extensive agriculture based on olives, almonds, pasture and winter cereals, it has become Tunisia’s leading agricultural region, producing over a quarter of the nation’s total output of fruit and vegetables.

But behind this undoubted technical success lies a real social and ecological failure. Socially Sidi Bouzid remains one of Tunisia’s four poorest regions (of 26 in total), while ecologically the level of the water table is plummeting, water for irrigation is increasingly saline, and soil damage is visible, even to non-specialist eyes.

Since the early 1980s, the governorate of Sidi Bouzid has been the site of a rapid, state-initiated intensification of farming, designed to create a modern, export-oriented agricultural hub based on exploiting deep underground water reserves and attracting private and public capital

Here investors – who are mostly outsiders, often called ‘settlers’ by the local population – accrue capital and profits; meanwhile peasant farmers accumulate losses, tragedies and suicides. Without this huge socio-spatial fault, which divides Tunisia between a dominant centre and dependant periphery, Mohamed Bouazizi’s death would scarcely have merited a mention. And that same divide also lies at the heart of several other shocks which will be discussed below.

After the Sidi Bouzid uprising ended with the fall of the Ben Ali dictatorship, several more protest movements arose, all forming part of the same resistance processes in the social and spatial periphery.

The Jemna oasis movement began in 2011 and concerned rights to land and resources, while the El Kamour movement (2017-20) also involves rights to local resources and in particular to ‘development’: two different struggles each of which constitutes a key moment/sequence in the same process of dissent.

At Jemna and El Kamour, as in other cases, the key to mass mobilisation lies in the processes and dynamics of socio-spatial class solidarity: ‘This is where I come from, I belong to this region and this social group, I am being deprived of resources materially and/or symbolically, so I support those who dare to say “no” and resist’. In summary, this is what you can hear in Kebili-Jemna, Tataouine-El Kamour and elsewhere; what you can read in the media reports of declarations made by local populations. And underlying it all, ‘driving’ resistance and ‘cementing’ solidarity, lie profound feelings of injustice and demands for dignity.

Jemna: rights versus law; a disruptive legitimacy

Following the Sidi Bouzid episode and the fall of the dictator, in 2011 an oasis was ‘discovered’ that was probably new to the majority of Tunisians. Situated in the desert, midway between Kebili and Douz, the Jemna oasis owed its sudden appearance on the map to a significant new collective action, stemming directly from specific elements of colonial history that resurfaced after the wall of silence placed around them had been breached.

While most French colonists chose to settle in north or north-west Tunisia and created big cereal farms and/or stock-raising enterprises, and even vineyards and orchards, others preferred to head south and specialise in date farming – in particular the Degla variety, whose export market in France and Europe was virtually guaranteed. Among this latter group was one Maus De Rolley, who in 1937 created a new date-palm plantation around the core of the ancient Jemna oasis. The plantation today covers some 306 hectares, including 185 hectares planted with approximately 10,000 date palms.

Although local populations had held these lands as common and indivisible (tribal) property, they were dispossessed without compensation on the pretext that nomadic herding (pastoralism) was not a genuine productive activity, and that the land therefore was uncultivated. At independence, these populations – who had battled against the occupiers – held great expectations that the new authorities would return their stolen lands.

The Jemna oasis movement began in 2011 and concerned rights to land and resources, while the El Kamour movement (2017-20) also involves rights to local resources and in particular to ‘development’

When the colonial lands were nationalised in 1964, however, the government decided to place them under state control, confiding their management to the body that administered the state’s agricultural land, the Office des Terres Domaniales (OTD), which thereby became Tunisia’s biggest agricultural landowner. Bolstering this strategy was the collectivisation policy of the 1960s, which aimed to reorganise agricultural land and create state ‘socialist’ cooperatives.

Yet the real argument against the redistribution of the nationalised lands lay elsewhere: small peasant farmers were judged too ignorant and archaic, too lacking in the necessary financial and technical means, to develop a modern intensive agricultural sector – a stigmatisation that still recurs today whenever discussion returns to this subject and/or to questions of agricultural models and political choices related to farming and food.

Over the following decades, the heirs made some efforts to reclaim these lands, but it was not until early 2011 that the first organised occupations of OTD lands were launched by local populations describing themselves as the legitimate successors. Among them was Jemna’s local population, who occupied the former De Rolley plantation, claiming rights of property and of exploitation. The authorities demanded an end to the occupation, and the resulting impasse lasted for several years. The government argued that the occupation was illegal, while the occupiers countered that they held a legitimate right to resources and especially to community assets, including the indivisible and inalienable commons.

After a long period of tension a compromise was reached. By mutual agreement, the state ceded full management of the palm plantation to the local population while retaining ownership of the land. Might the latter have believed this negotiated settlement to be the only viable compromise?

Underlying the government position was the fear that any solution implying the grant of freehold to the legitimate heirs might create a legal precedent and set an example that would unleash a torrent of other land claims, all drawing on the same colonial and post-colonial past. But the occupation alone had set that example already, inciting other local populations to reclaim – with some attempts at occupation – the lands snatched from their grandparents during colonisation. Furthermore, I would argue that the Jemna case also served to fuel claims of a legitimate right to other local ‘natural’ resources such as water, minerals (for example, phosphates) and oil that mobilised populations in the Tatouine region.

El Kamour: the ‘will of the people’

Resistance entered another phase, not without success, at El Kamour – a locality situated in the barren steppes of south-eastern Tunisia, south of the town of Tatouine, on the tarmac road leading to the oil-fields in the extreme south of the country. The ‘dispossession pipeline’ carrying crude oil to the port of Skhira, 50 kilometres north of Gabes, runs through here, and this geographical position close to the pipeline is the immediate reason for El Kamour’s sudden appearance on political maps of Tunisia, as well as in the media.

Behind El Kamour, however, lies the governorate and town of Tataouine (Tataouine is the capital of the governorate of the same name), with over 180,000 inhabitants. Arid and barren, this region contains most of Tunisia’s oil reserves, producing 40 per cent of its petrol and 20 per cent of its gas. Yet Tataouine also records some of the nation’s highest levels of poverty: in 2017, for example, 28.7 per cent of its active population were unemployed (compared with a national average of 15.3 per cent), while for graduates the rate rose as high as 58 per cent.

Events in El-Kamour, 2017-2020: a brief chronology

The El Kamour movement began on 25 March 2017, with protests in various localities in the governorate, all converging on the town centre of Tataouine. The protesters were demanding a share of local resources, particularly oil, as well as greater employment opportunities and infrastructure development. Met by silence from the government, on 23 April they organised a sit-in at El Kamour. Tensions mounted on both sides, and an escalation became inevitable after the prime minister visited Tataouine and met the protesters. His plans to calm the situation with a few token promises came to naught and the discussions ended in deadlock. On 20 May the pumping station was occupied for two days before being cleared by the army, and tensions remained high.

Eventually, on 16 June 2017, an agreement was signed with the government through the mediation of the Union générale tunisienne du travail (UGTT), which acted to guarantee its implementation. The terms of the agreement promised the creation of 3,000 new jobs in the environmental sector by 2019, and 1,500 jobs in the oil industry by the end of 2017. A budget of 80 million dinars was also earmarked for regional development. But, to the frustration of the local population, the agreement was never implemented. The government simply bided its time, gambling that the militants would tire and the movement run out of steam.

‘This is where I come from, I belong to this region and this social group, I am being deprived of resources materially and/or symbolically, so I support those who dare to say “no” and resist’. In summary, this is what you can hear in Kebili-Jemna, Tataouine-El Kamour and elsewhere.

On 20 May 2020, however, the El Kamour activists resumed their protests and sit-ins in several places, piling on the pressure and blockading several routes to bar them to oil-industry vehicles. On 3 July they organised a new general strike throughout the public services and the oilfields, and on 16 July they closed the pumping station, blocking the pipelines carrying petroleum products north. But the El Kamour militants had to wait until 7 November 2020 before they could reach an agreement with the government’s representatives, in return for which petrol producers and other oil-sector enterprises were to resume operations immediately.

Signed by the head of government on 8 November 2020, the agreement contains a number of key points, including several that had previously featured in the 2017 accord but had not been implemented. These included, dedicated 80-million-dinar development and investment fund for the governorate of Tataouine; credit finance for 1,000 projects before the end of 2020; 215 jobs created in the oil industry in 2020, plus a further 70 in 2021; 2.6 million dinars for local municipalities and 1.2 million dinars for the Union Sportive de Tataouine.

The big social movements discussed above all have several points in common. Firstly, they are very largely located in southern, central, western and north-western Tunisia, the same marginalised and impoverished regions that between 17 December 2010 and early January 2011 saw huge protests in support of Bouazizi and against current social and economic policies. Secondly, while differing in detail, the principal demands of these movements all relate essentially to the right to resources, services and a decent income. None, or virtually none, are linked to ‘political’ demands (political rights, individual freedom). Thirdly, in their choice of language, and of several ‘spectacular’ actions, these social movements display a radicalism that marks a clear break with the political games played in and around the centres of power. Finally, almost all these movements are denounced and accused of regionalism and tribalism, sometimes even of separatism and treachery. Protesters are suspected of being manipulated, of being puppets in the hands of a political party or foreign power.

Yet these movements have enjoyed some, albeit relative, success – a success impossible without the class solidarity shown in the three examples discussed above, and the ties of domination and dependency that for decades have characterised the relationship between Tunisia’s centre of power (the east coast) and its deprived and impoverished periphery. Finay, these same examples, and other more recent cases, demonstrate that the ‘revolutionary’ processes launched in early 2008 are still active in Tunisia and will probably remain so for many years to come.

This article was first published in The Review of Africa Political Economy journal

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We Need New Names

Africans are saddled with the burdens of colonial structures that the post-colonial elites simply refuse to supplant. If language is a unifier of cultural, economic and social values, then we must decolonise our languages and dismantle colonial borders based on imagined ethnicities.

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In late 2019, the Luanda Boda Boda Riders’ Association purchased a bus for public service. The association is located along the Maseno-Luanda border and its membership is largely drawn from the Luanda and Maseno catchment area.

The name of the association has a lot to do with the state of our union as a country or even as a region. It is a microcosm of ethno-nationalist tensions existing in Kenya and many other regions of Africa, and the changing times that bring new and multiple ways to negotiate these invented differences. The boda boda association is a chance to look at how we negotiate citizenship daily, and how we can overcome some essentialist ideals that are so deeply entrenched in eastern Africa.

The boda boda association draws membership from Luanda and Maseno, two small towns that are barely three kilometers apart. Maseno was established as a mission town and gets its name from oseno, which is a Luo word for the indigenous tree that used to be dominant in the area before ecological colonialism. The Kinyore (the Luhya sub-group inhabiting the Maseno and Luanda corridor) calls the same tree luseno. Oseno has since been colonised by the blue gum commonly called bao, which is indigenous to Australia. Young people would be at pains to identify oseno in Maseno today. Shortly before colonialism, Luanda had been established by a Luo chief from Gem Yala. Currently Luanda is dominantly a Luhya town, and it is located in Vihiga County. I have grown to like the sound of Maseno. For me, the word conjures pleasant images of green hilly spaces.

Imperial creations

Kenya, like the majority of other African countries, has never been a nation-state.  Kenya’s territorial boundary, as we now recognise it on maps, was drawn exactly a hundred years ago, in 1920. It is a border that split, for example, the Luos into three different countries (Kenya, Uganda and Tanzania). As part of these colonial processes, the Somali people were also split into three countries, with a section of them occupying Ethiopia, Kenya and Somalia and Somaliland. It is instructive to recall that coastal East Africa presented similar challenges. The current Zanzibari semi-autonomy in Tanzania and the conspicuous Pwani Si Kenya slogan are witness to the inherent pressures in the formation of nation-states in this part of the world. The boda boda riders in Maseno-Luanda zone show us only too well how we have an incomplete sense of ourselves and our politics when we are inclined to always think and conceive of ourselves and our communities as complete.

In 1929, the colonial administrator, Charles W. Hobley, said, “The Kikuyu and its blood relations on the slopes of Mount Kenya are, next to the Kavirondo, the most numerous native society in Kenya colony. They have no internal homogeneity, so were brought under control section by section.”

Therefore, the Kikuyu as we popularly know them today, are a creation of the colonial empire and each section was amalgamated onto another until they were made to imagine themselves as one whole part. This imagination has seeped into the dominant Kikuyu popular imagination, yet tensions still exist on who should claim the authentic Kikuyu title and name. A popular myth names Murang’a as the place where Mumbi first set foot, and thus the Kiambu Kikuyu are actually considered proper Kikuyu as opposed to the Murang’a Kikuyu who have interacted with the Embu and Meru communities. It is weird how we still stick to these categories as authentic, without the slightest examination of the histories and names behind them.

Electoral voting patterns and the legendary Kiambu-Muranga division still remind the Kikuyu of their incompleteness as a nation. This also applies to what we have think of as the Luos, the Luhyas, etc. The “tribes” (I will use the terms community or nations) as we see them today were invented in the colonial era. The introduction of a centralised and domineering government was a creation of the British empire. It was created along the Westphalian Christian state system to enhance resource extraction and organise labour along pliant and easily micromanage-able paradigms in Kenya.

Before colonialism, local communities had several centres of power, not necessarily along political lines, but sometimes along religious leaders and familial loyalties. This is still evident in the way religion plays a major role in our conception of ourselves and their celebrity status in national governance dialogues. As an illustration, Mgahanya, the rainmaker of the Banyore community in colonial Kenya, drew his power not from politics but from his hereditary technology of controlling rains. Indeed, Mgahanya’s power would be sought by the Luo neighbours as well whenever the need arose to have a rainmaker present. For his prowess and popularity, Hobley gave Mgahanya the title of a principal chief, thereby instilling new ways of looking at a rainmaker, not as a helper in the society but as someone who had the power to lord and rule over his relatives, friends and foes with an iron fist. Mgahanya’s rainmaking power was finally, and dramatically, curtailed by Hobley himself.  In divesting Mgahanya of his political power gained through rainmaking, Hobley instituted new ways of gaining power in the society. Power would never be the same again in eastern Africa.

Evidently, government in pre-imperial Kenya was largely by consensus. But this was not always the case. The Mazrui family’s control of the slave trade in Mombasa reminds us that consensus was not always the default governance case in colonial and pre-colonial Kenya and that power was not always benign. In other words, the long history of governance in Kenya has experienced ruptures and transformations. Perhaps this history, culture and knowledge of power might be useful when we finally decide to finally form a government that is focused on ourselves. This would be a better alternative to the exhausting gerrymandering the political elites in Kenya frequent.

Moreover, Hobley, in Kenya: From a Chartered Company to a Crown Colony, further notes that he played an important part in reviving the importance of the Kiama among the Kikuyu, but of course to enhance colonial government. The idea of a Kikuyu elders was revitalised and invented as an essentialised entity by the colonial government. While reconstituting the tribe for the colonial agenda, Hobley instructed the heads of the Kiama (for whom he invented the title “chiefs”) to be detached from their compatriots in order to give proper judgments. In one instruction, the Kiama authority was not only centralised but also given sweeping powers and stripped of communal ethos and emotions. The colonial reconstruction of African societies was an unmitigated cultural disaster whose legacies we still contend with in present-day Kenya, such as the nationalist insinuations in differentiating Luos from the Banyore people in the Maseno-Luanda corridor.

From Hobley’s new ways of creating and accumulation of power, political leaders in Kenya have since stuck to the idea of leadership as a manifestation of paramount chiefs. The impersonal detachment and the attempts by public officials to centralise power can also be seen in how Kenyan doctors perceive their patients, how head teachers treat poor parents, how immigration and customs officials mistreat Kenyans in their own country, how bus conductors mishandle passengers, and how factories pollute Lake Victoria and its environs with impunity. The colonial system is replicated in every public sphere. Scarcely does one transcend this system.

The Westphalian state 

After the end of colonialism, we did not take stock of our various systems of power and ways of naming in the community. Rather, we adopted and imported the Westphalian state model that was used to institute various hegemons, with each community waiting for a turn to lord over other communities. The communities that have been at the helm have ensured that the patronage system instituted by Carey Francis, Charles Hobley, and Lord Delamere, among others, has been perfected for a post-independence Kenya. Community nationalism as a basis for mobilising power is a narrative that has been employed in Kenya. This happened right from the first Kenyan president to the present president, since they could not pursue an alternative Africanist ideology with which to administer the country. They failed to either take notes from or apply the history of the country as far as governance was exercised. They lost a grand chance to decolonise governance and bring back the government to “we the people” of Kenya. And now Luanda boda boda riders have shown us how one can undermine such dominant narratives.

To appreciate this, one needs to understand that Maseno-Luanda is divided along “Luo” and “Luhya” communities. During each election period, this division is amplified by politicians. They incite tribal animosity among people who ordinarily intermarry, language differences notwithstanding. Indeed, the dhoLuo language has evolved to use Semeji or Omejo in reference to Luhya in-laws. That is how frequent intermarriage occurs here and how transcultural conversations have been conducted here despite the politicians and Kenyan comedians who frequently prop up negative ethnicity in their speeches and performances, respectively.

Maseno was the place the Church Mission Society (CMS) missionaries established the first Anglican church in western Kenya, circa 1906. The two communities grew around this church. Along with the growth of the church, the established ethnic differences also grew. Thus, Maseno Mixed Primary School would later be created, not as a mixed school for boys and girls, but as a mixed school for Luos and Luhyas! The idea of “mixed” in this case was founded on ways of negotiating cultural differences and not to denote gender.

For a while, in its long history, this primary school had its own Luhya and Luo staff coming to teach at different times of the day. Independence-era Kenya would see the split of this Maseno Anglican church into North and South. Maseno South diocese became the Luo church while Maseno North diocese became the Luhya church. The growth of Maseno as a mission town was doomed due to its cultural topography. The Maseno South diocese relocated its headquarters deep in Luo land, to Kisumu. Maseno North pushed its diocese deep in Luhya land to Kakamega. In other words, a single Christian religion could not keep its adherents from the two cultures together. This was the design of the colonial government. Each community would be coalesced together within itself, especially as a way of breaking down each community’s governance structures. But inter-community solidarity would be robustly discouraged. Mgahanya would eventually be appointed a principal chief within the Banyore community, after all his power was no longer needed among the neighbouring Luo, for Hobley had effectively taken charge of administering the Luo nation.

The independence-era Kenyan state also drew a border between the two communities, locating Maseno in Luo Nyanza and Luanda in Western Province.  This imagined boundary was based on the colonial separation of the Luo from the Luhya. What if the boundary was to be re-drawn along matters that boda boda operators find useful, such as geographical features, and not along ethnic territories? For boda boda operators, features such as hills, muddy terrains, valleys and flat lands denote how much fuel a motorbike consumes.

We need new solidarities 

Can we have associations not based on the colonial structures, like this boda boda group does? Africans are saddled with the burdens of colonial structures that the post-colonial elites simply refuse to supplant. Post-independence Kenya has cost lives, in the name of the community. The Kenyatta presidency quickly consolidated ethnic capital to misrule the state. Ethnic patronage quickly grew deep roots and it has irretrievably thrived, until now. Nearly all the chiefs under Moi rule were imperial personalities in their own right and might, just like they were in colonial Kenya.

We need new solidarities like the Luanda Boda Boda Association, but devoid of unchecked rugged capitalist ambitions. Kenya’s model of its solidarity is based on capital accumulation. In the fullness of its agenda, organisations founded on purely commercial interests morph into monopolies and create the same trap that the founders initially ran away from: poverty, disempowerment and powerlessness for others. The Luanda Boda Boda Association might not be cognisant of the fact that the public transport business is usually the function of an operational government. Even if they are, they have chosen to ignore that, under the illusion that they are working hard and sustaining themselves. The self-employment agenda of this association rips apart ethnic loyalties because it co-opts Luo and Luhya communities.

I am not into economics, here, I am on the use and ab-use of names – how innocent names like Luanda Boda Boda Association circumvent a nationalist current. The afterlives of this name embrace the inclusion of other communities not associated with the cultural geography of the Maseno-Luanda route. The association teaches us how to bring back two communities that have been divided by colonial and post-colonial Kenyan rulers. Resiliently, the people still head back to certain elements of solidarity that existed way before the arrival of Hobley and his imperial British associates.

At the same time, we might have to remember that Luanda was founded by a Luo chief, as we are reminded by Bethwel Ogot who convincingly presents this event in his autobiography My Footprints in the Sands of Time. Contrary to its founding, Luanda is currently located in a Luhya-administered ethnopolis. The street-level motorcycle association undermines the political narrative in the control of Maseno-Luanda borderlands. The politics of Maseno-Luanda is pegged on community divisions. These boda boda motorcyclists, however, teach us lessons on cosmopolitanisms.

It is also instructive to recall that the Maseno-Luanda topic is a divisive factor and always comes up during election periods.  However, the boda boda riders frequently move in and out of Luo and Luhya “tribal” zones conveniently and daily, with or without electoral cycles. If only the road network could catch up with the socialised motorcycle networks! These riders transcend the names and political divisions that were issued by the colonialists and their successors in post-colonial Kenya.

Boda boda riders transport passengers with little reference to ethnic origins. They move within and around the Luo and Banyore nations. Indeed, the motorbikes work across the tribal difference in a way that seems to shorten the already -narrow cultural distance between the two communities. In the process, they circulate cultural contacts between the two, and defy the political elite who thrive on the divisions. And now their bus will move passengers beyond Luo and Luhya nations. Linguists will observe the historical and structural complexities that separate Luloogoli, Libukusu and Kinyore from the Luo language, the obvious one being that dhoLuo is a Nilotic language and the other dialects belong to the Bantu language family.

The thing with language is that one owns the power to name things, to make a world with yourself at the center, to rewrite (hi)stories of far-flung peripheries. Take the ethnonym Luhya, as an example. Before this coinage, the Luhya were part of the Kavirondo people. The Kavirondo was initially the Eastern Province of Uganda before it was switched to Kisumu Province of the East Africa Protectorate, and finally moved to western Kenya. The umbrella term Kavirondo included both Nilotes and Bantus around Lake Victoria, all the way to Mumias and Mount Elgon. The freedom of colonialists’ naming of African communities was an enaction of the powerlessness of these communities vis-à-vis the colonial imagination and grammar. Within the Luhya nation there are a total of about 17 linguistic groups. The term Luhya is an artificially constructed ethnolinguistic reference to many closely related (some of which are not mutually intelligible) Bantu-speaking peoples. They include the Bukusu, Tachoni, Wanga, Marama, Tsotso, Tiriki, Nyala, Kabras, Hayo, Marachi, Holo, Maragoli, Idakho, Isukha, Kisa, Nyore, and Samia in Western Kenya. Their cultural divergences are many and multilayered, with the Tachoni tracing their ancestry to the Nilotic group of Nandi in the around the 14th century.

To fit yourself in a name that classified and considered you part of exotica needs careful self-extraction out of such languages.  This need is even more immediate when one remembers how this classification was done without the agency and input of the local people and their collective consciousness and knowledge systems. Thus, the iLoikop people are made into Maasai, the iSampuru became Samburu. The various communities known as Nandi, Kipsikis, Pokoot, and Tugen are collapsed into an easily classifiable and ruled “tribe” called Kalenjin. This is in spite of the cultural and linguistic differences between them. In these cultural acrobatic movements mediated by colonialist linguistics, Kakamega (spelled as Kakumega in colonial orthography) was not the name of a town but an ethnonym in reference to the Idakho and Isukha communities.

If language is a unifier of cultural, economic and social values, then we need a new generation of names. We need Names 2.0. These names could consider political and cultural differences and histories. We need a new name for a governance that will neither be called kleptocratic nor a kakistocracy. We need new names for Luos, who pride themselves in Nyikwa Ramogi (based on a point of origin, not a colonial classification). Don’t we need a new name for the daughters and sons of Mumbi? We need new names that denote plurality, but account for differentiated identities, like the Mijikenda. (My translation of “Mijikenda” would not be a tribe but “nine homes”.) We need decolonised names in order to open or transcend some of the worlds which were closed by colonial naming processes.

Renaming ourselves might not be an easy way to redesign our nominal worlds, which were forced into cruel unions in Berlin in December 1884. It might even prove to be a messy but it is still a necessary activity. We need to open these worlds that were closed by colonial naming processes, like the Luanda Boda Boda Association has done. Every time we use these new colonial names, we acknowledge the problematic grammar that inherently operates within them. We also reiterate that the names did not aim to usefully matter to Africans. We repeat the insufficiency of English to capture the nuances that exist in our cultural worldviews and political lives.

I must reiterate here that these names were not arbitrarily drawn; they were created to enhance control. Perhaps post-colonial eastern Africa should ask what control mechanism the various ethno-nationalities initiate. For example, the Luhya group is one of the reminders that ethno-nationalism is an invention that is a mirage. It was created for divide et imperium purposes. As Bethwel Ogot reminds us, there was no Luhya empire prior to colonialism. Yet the colonial history implies the presence of a Luhya empire. The Nabongo Mumia was no threat to the neighbouring Kager clan. However, as a paramount chief, Nabongo Mumia, was a creation of the British to pacify western Kenya, especially to control the northeastern Kager clan of the so-called Luos.

We need new names, donge?

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