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Kenya’s Supreme Court: Old Wine in New Bottles?

10 min read.

In this second part of a three-part series, we examine the intrigues within the Judiciary that led to David Maraga becoming Chief Justice and its subsequent effects to the Judiciary and the Nation.

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Kenya’s Supreme Court: Old Wine in New Bottles?
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As the six Supreme Court judges were adjudicating Kenya’s first presidential election petition in March 2013, Justice Kalpana Hasmukhrai Rawal was waiting for a new president to take office and the newly elected National Assembly to convene so that her nomination as Deputy Chief Justice could move forward. The Judicial Service Commission (JSC) had settled on her appointment after interviewing a shortlist of applicants in February 2013. The Judges and Magistrates Vetting Board had earlier found her to be suitable to continue serving as a Court of Appeal judge. Justice Rawal eventually joined the Supreme Court on 3 June 2013.

Two years later, Justice Rawal became the second Deputy Chief Justice (after Nancy Baraza, who resigned after she was heavily criticised for abusing her authority by threatening a security guard after the guard demanded to search her at a mall) to be embroiled in controversy. In 2015, Rawal challenged a notice that she retire at the age of 70. Around the same time, the then Chief Justice, Dr Willy Mutunga, would announce that he wanted to retire early so that the next Chief Justice would be appointed well ahead of the next election.

In May 2014, Justice Philip Kiptoo Tunoi and High Court judge David Onyancha challenged the JSC’s decision to retire them at the age of 70. They argued that they were entitled to serve until they reached the age of 74 because they had been first appointed judges as under the old constitution.

What seemed like a simple question about the retirement age of judges led to an unprecedented breakdown in the collegiate working atmosphere among the Supreme Court judges that had been maintained during the proceedings of the presidential election petition. During the two years it took the judiciary to address the question of whether judges should retire at 70, as decreed by the new constitution, or at 74, as was the case under the old constitution, three Supreme Court judges openly challenged the authority of the JSC in handling the age issue. When the matter reached the Supreme Court, the intrigues that emerged brought the country’s highest court to its lowest point in its short history.

In May 2014, Justice Philip Kiptoo Tunoi and High Court judge David Onyancha challenged the JSC’s decision to retire them at the age of 70. They argued that they were entitled to serve until they reached the age of 74 because they had been first appointed as judges under the old constitution. Justice Onyancha suddenly abandoned his cause and resigned quietly.

Justice Rawal filed a similar petition in September 2015 when the JSC issued her a notice of retirement. The following month, Dr Mutunga announced that he would retire before reaching the age of 70.

A letter sent to the JSC by Justices Jackton Boma Ojwang, Mohamed Khadar Ibrahim and Njoki Ndung’u on 24 September 2015 threatened a solidarity strike by the three if the commission continued to insist that judges retire at 70. The letter triggered a petition by the chief executive officer of the Law Society of Kenya (LSK), Mr Apollo Mboya, seeking the removal of the three judges from office for insubordination. A JSC committee investigated the allegations against the three judges and elected to reprimand them – but Justice Ndung’u contested the decision in court where it is pending determination.

On 11 December 2015, the High Court unanimously decided that Justices Rawal and Tunoi should retire at 70 – a judgment affirmed by a seven-judge bench of the Court of Appeal on 28 May 2016.

On the same day, Justice Rawal sent an application to the Supreme Court seeking suspension of the decision. She also asked the court to set a date for hearing her appeal. Justice Ndung’u, sitting alone, received the application and granted her requests. She set the hearing date for 24 June 2016, eight days after Dr Mutunga’s planned retirement as Chief Justice.

Dr Mutunga, who was meant to be abroad but had not travelled due to illness, called the file and brought the hearing date set by Justice Ndung’u forward since she had certified the matter as urgent.

On 14 June 2016, three judges recused themselves from hearing the appeal to avoid perceptions of bias. Dr Mutunga and Dr Smokin Wanjala said they did so because they were members of the JSC when the commission determined the retirement age for judges was 70. Justice Ibrahim apologised for his conduct in threatening a strike earlier and voted with the two. Prof Ojwang and Justice Ndung’u took the opposite view, arguing in their dissenting opinions that the different positions the judges had taken on the matter did not mean they would be biased when hearing the appeals. In the event, the Court of Appeal’s judgment on the matter became the final decision on the issue of the retirement age. Rawal and Tunoi retired. Dr Mutunga, too, retired as Chief Justice two days later, thus opening up three vacancies in the top court, but the rift in the Supreme Court would persist until the 2017 presidential election petition.

A last-ditch effort was proposed to save the two judges. It entailed waiting until Dr Mutunga had left office to have President Uhuru Kenyatta name Justice Ojwang as Chief Justice in an acting capacity, according to Platform publisher Gitobu Imanyara. With Justice Ojwang at the helm of the Supreme Court, albeit temporarily, it was expected that Justices Rawal and Tunoi would apply for a review of the recusal decision. A full bench was subsequently expected to hear the case, reverse the Court of Appeal judgment, and allow judges appointed before the adoption of the new constitution to serve until the age of 74.

Competing interests had already begun to play out in the race to replace the Chief Justice and the departing Supreme Court justices. The departures would significantly change the composition of the court, and with it, its posture and prudence.

It was Kenyatta (reportedly fearing the embarrassment of having another of his decisions struck down by the court) who declined to go along with the plan to appoint an acting Chief Justice. When the matter formally came up at the JSC, introduced by acting chair Prof Margaret Kobia, there was uproar. It is against this background that the JSC began its search for a new Chief Justice and two Supreme Court judges.

Competing interests had already begun to play out in the race to replace the Chief Justice and the departing Supreme Court justices. The departures would significantly change the composition of the court, and with it, its posture and prudence. It was no longer in doubt that the pitched battles around the departure of the two judges had demolished any pretence at collegiality in the Supreme Court, with judges openly differing with each other.

A safe choice

David Maraga would emerge as the dark horse in the Chief Justice’s succession race ahead of law professor Makau Mutua and Supreme Court judge Smokin Wanjala. With a combined 13 years as High Court and Court of Appeal judge, Maraga’s public posture was that of a deeply religious and conscientious man – an elder of the Seventh Day Adventists Church who would not work on the Sabbath before sunset. During his vetting as a previously serving judge, he offered to swear on the Bible that he had never taken a bribe.  He also famously said during his interview that he would never work on the Sabbath even if an election petition were in progress.

Justice Maraga had served as an inaugural member of the Judicial Working Committee on Elections Preparations (JWCEP) before taking over as chairman. He is regarded as one of the foremost authorities on electoral law, not just because he has written on the subject, but more so because his decisions have never been overturned on appeal. He beat a field of nine finalists to be nominated Chief Justice as a compromise between institutional insiders who wanted stability and the executive, which wanted a pliable person.

In contrast to his predecessor, Justice Maraga appeared to be a safe choice for the establishment. He was as a conservative, unlike Dr Mutunga. He had not been involved in politics and was a judicial insider. The new Chief Justice would also have the 2013 precedent of the Supreme Court to rely on. So safe was he considered to be that Uhuru Kenyatta, while giving a campaign stump speech, deigned to mention Justice Maraga’s appointment as one of the political favours extended to the Kisii community, drawing the Chief Justice’s rebuke.

Just like Dr Mutunga before him, Justice Maraga had no hand in selecting the six judges he was going to lead as President of the Supreme Court. Three were already in place (appointed in 2011) therefore outranking him in experience in the court, and the two new ones were appointed at the same time as he was.

The filing of the August 2017 petition guaranteed Justice Maraga the one case he was certain would be his legacy as a jurist. Regardless of how he was going to rule, the opportunity and chance to do it was a moment that conferred great personal prestige.

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

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

Chosen as Deputy Chief Justice was Philomena Mbete Mwilu. She had 32 years of experience in law, serving as a member of the Electricity Regulatory Board and the Energy Tribunal before her appointment as a judge of the High Court and the Court of Appeal. She had also spent considerable time as a legal officer at Jubilee Insurance Company.

Justice Mwilu was notably one of the three High Court judges who had declined to declare the composition of the 2011 Supreme Court unconstitutional for not meeting the requirement that no one gender should constitute more than one-third of any electoral or appointive body.

The third was the slightly graying Isaac Lenaola, whose solid 13 years experience in the High Court, and as Deputy President of the East African Court of Justice enabled him to leapfrog his seniors in the Court of Appeal to the apex court as its youngest member. At the High Court, the judge had distinguished himself as a hardworking head of the Constitutional and Human Rights Division, renowned for its landmark decisions.

Lenaola had also served on the 28-member Constitution of Kenya Review Commission, which collected public views and produced a draft in September 2002, which formed the basis for the new constitution adopted in August 2010. He had been instrumental in negotiating the adoption of vetting of judges and magistrates as a lustration measure to usher in the new constitutional changes in 2010, and had served as the High Court’s first representative to the JSC until 2014. Before joining the bench, he had worked in civil society promoting minority rights.

Conservatives back in the saddle

While Kenyatta’s team was working to change the court’s composition, his rival, Raila Odinga, had forced a negotiation of the electoral law in Parliament. Through legislation and subsequent litigation, the landscape in which elections would be held was significantly altered. The Independent Electoral and Boundaries Commission (IEBC) was disbanded and reconstituted and the electoral law was amended and set out in greater detail. Litigation also settled questions around the audit of the voters’ roll, the printing and procurement of election materials, and the transmission of results.

A case filed by human rights advocate Maina Kiai produced decisions at the High Court and the Court of Appeal that made the polling station central in determining election results. Lawyer Ahmednasir Abdullahi, who would later sign up as one of Kenyatta’s advocates during the hearing of the 2017 petitions, remarked that election-related litigation had been conducted on “an industrial scale”. He had boisterously defended the chairman of the IEBC during the 2013 petition, when he pejoratively referred to the Supreme Court as a young court that was “still crawling”.

“It is good, especially for a young court – which is crawling – it is good for it to show judicial restraint. You will find opportunities later in life where you can express yourself more,” he said, to the roar of laughter in the courtroom.

Ahmednasir’s words carried great weight at the time, considering that he was not only a senior counsel and former chairman of the Law Society of Kenya, but he had also been chairman of the Kenya Anti-Corruption Authority (the precursor to the Ethics and Anti-Corruption Commission) and had played a starring role in forcing a Court of Appeal judge to resign over corruption allegations by providing closed-circuit television evidence of the judge receiving a bribe in a city hotel parking lot. His anti-corruption credentials saw the LSK elect him as their representative to the new JSC that would interview and nominate judges in 2011, including the Chief Justice and the Deputy Chief Justice. His abrasive questioning of applicants won him admirers and foes in equal measure, but it also implanted in the public psyche the possibility that he had an unhealthy stranglehold on the inaugural Supreme Court.

However, the spell he had over the judges during the 2013 election petitions was definitely broken in 2017. Although he had lost the election to continue representing the LSK on the JSC, he was still treated with great deference. When he rose to speak as Kenyatta’s lawyer in the August 2017 petition, his full crop of hair was greying in the middle, and he did not seem to have the same leeway he had enjoyed four years earlier.

After the 2013 Supreme Court disappointment, three-time presidential contender Odinga had publicly declared in the run-up to the 2017 election that he would not petition the courts if his fourth run did not succeed.

Justice Maraga found a Supreme Court that did not wig and only robed in green gowns. However, as the seven justices made their appearance in August 2017 in red robes, white bibs and wigs, it was clear that the conservatives were back in the saddle.

When, however, the opposition decided to head to court after Uhuru Kenyatta was declared winner of the presidential election, it found a prepared bench. On Saturday, 26 August, when the sun had gone down and the Sabbath observed by Seventh Day Adventists had formally ended, the court convened its pre-trial conference to accommodate the Chief Justice’s religious practice.

Justice Maraga found a Supreme Court that did not wig and only robed in green gowns. However, as the seven justices made their appearance in August 2017 in red robes, white bibs and wigs, it was clear that the conservatives were back in the saddle. Where Justice Mutunga – the cool earing-wearing CJ – presided over the court with an iPad and enjoyed meeting young people, his successor was reticent and retiring. Maraga was an old school judge who placed great premium on rules and traditions. Or was he?

Greater vigilance

The Supreme Court had to decide the petition before the expiry of the constitutionally prescribed 14-day deadline, which fell on another Sabbath – the following Saturday. Before the hearing began, the Supreme Court gave the petitioners access to the IEBC servers to verify the results transmitted from the polling stations to the national tallying centre. It also granted the application for a court-supervised scrutiny of the forms used to collate the presidential votes.

The petitioners assembled a veritable team of veteran lawyers, among them Senators James Orengo, Okong’o Omogeni, former Attorney General Amos Wako, Member of Parliament Otiende Amollo, law professors Mutakha Kangu and Ben Sihanya, veteran litigator Pheroze Nowrojee and 28 others.

In 2013, the court had been totally unprepared for the management of electoral disputes, which undermined its ability to interrogate the IEBC’s ICT and voter register failures. Its naivety also exposed it to deception by its own administrative staff.

Kenyatta’s team was led by Fred Ngatia, Ahmednasir Abdullahi, and PLO Lumumba. The IEBC relied on senior counsel Paul Muite, Lucy Kambuni, Paul Nyamodi and Tom Macharia. A good number of the judges – Justices Ojwang, Wanjala, Ibrahim and Ndung’u – had done their pupilage at Waruhiu, Muite and Company Advocates, Paul Muite’s firm.

Just as had been the case during the 2013 petition, the proceedings were broadcast on live television.

Meanwhile, the Judiciary Working Committee on Election Preparations had become a permanent fixture and in 2015 had been renamed the Judiciary Committee on Elections (JCE) and a chief executive had been appointed for it along with research staff. Its mandate was to build on the experience judges had gained in arbitrating the electoral disputes of 2013 and preparing the institution for the next election. The framework for handling electoral disputes was now in place.

In 2013, the court had been totally unprepared for the management of electoral disputes, which undermined its ability to interrogate the IEBC’s ICT and voter register failures. Its naivety also exposed it to deception by its own administrative staff. Perhaps it was the new Chief Justice’s four years at the helm of the JCE that encouraged him towards greater vigilance. The court had even organised a retreat in Mombasa to undergo training in the ICT systems used by the IEBC to enable it to make better decisions.

Additionally, although Odinga was not optimistic about a favourable court decision, his legal team was much better prepared in 2017 than it had been in 2013. He had approached the court, offering it an opportunity to “redeem itself” from its 2013 decision, but was also ready to delegitimise it. Unlike in 2013, his lawyers were conscientious, diligent and fully involved in the scrutiny and document review. The IEBC, on the other hand, was cavalier and would prove to have been poorly prepared compared to the case in 2013.

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Politics

Asylum Pact: Rwanda Must Do Some Political Housecleaning

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Labour migration as climate mitigation

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

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

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

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

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

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

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

Reparations include No Borders

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

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

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

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

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

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

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Politics

The Murang’a Factor in the Upcoming Presidential Elections

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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