On an otherwise ordinary Nairobi day in 2016, Yash Pal Ghai stood in a hallway of the Supreme Court of Kenya, waiting to have lunch with his former student and friend, Chief Justice Willy Mutunga. Ghai, carrying his usual striped cloth bag, its worn strap tied in a knot and its edges frayed, waited patiently, his unassuming nature belying his reputation as one of the world’s foremost experts in constitutional law.
Ghai soon noticed activity around the Chief Justice’s office. Mutunga had gone in, followed by several senior judges, many of whom had been Ghai’s students in the early days of Kenya’s independence. When he was finally called in, Ghai was taken aback by the arrangements in the room, which had been set up to swear him into the Roll of Advocates of Kenya. Mutunga had arranged it as a surprise.
Now, at 78 years of age, and after having waited nearly half a century for this day, the father of the Constitution of Kenya – his small, slender frame concealed beneath a billowing, black robe and a white barrister’s wig hiding the silver wisps of his iconic, unruly hair – cut a distinctive figure in the room. “As Chief Justice, it was my singular and great honour to admit Yash in the Roll of Advocates on June 10, 2016, six days before I retired. I fought tears as I conducted this ceremony. It seemed like a culmination of brother-comrade-friend-teacher-student-patriot.”
It was a meaningful moment for Ghai as well, but – ever the professor – his memory of the day is dominated by pride in his student. “To see Willy, my former student, as Chief Justice, was very meaningful. I had kind of given up on practicing law at that point, so being sworn in was quite moving.”
It had been a long and circuitous journey, but Ghai was finally home. For Mutunga and many others, the moment was highly symbolic, a mark of rightful return, a sign that Ghai – whose lifelong work in the service of people’s rights had been done while in exile from his home – was finally back where he had always belonged.
Growing Up in Colonial Kenya
It may come as a surprise, given his long and illustrious career, but law was not Ghai’s first career choice. In fact, when he left Kenya for the University of Oxford in 1956, the young Ghai had been intent on studying English Literature. “I loved reading novels,” he remembers with a smile. “My father used to give me fifty shillings a month, and I would hoard it and hoard it until I could buy a Jane Austen novel. I thought I might be an English teacher.” When he wasn’t absorbed in an Austen novel – Pride and Prejudice being his favourite – young Ghai could be found with his best friend, Dushyant Singh, the son of esteemed High Court Judge Chanan Singh.
The youngest of six children, Ghai remembers a happy childhood. His family was close, and he was, in his own words, “slightly pampered” by his older siblings. Ghai’s home in Ruiru was behind his father’s store, Mulkraj Ghai Shops, a popular stop for the area’s coffee farmers. “We sold everything, from kerosene, to food, to general supplies. The farmers would come in the morning to place their orders, and by the time they returned in the evening my father would have prepared and packed each order.” Kenya in the 1940s was heavily segregated, and – aside from one notable exception – Ghai says he rarely saw a non-white customer. That exception was none other than Jomo Kenyatta. “At the time, Africans were not allowed to drink, but he used to drink a lot. He would come to the shop, and my father would take him up to our place, close the curtains and give him a drink. My mother would give them lunch. My father could have been jailed if anyone had ever known that.” Kenyatta, who developed a close friendship with Ghai’s father, took a special interest in the youngest Ghai. He would often ask to see the youngster, bringing him fruit from his farm. Ghai remembers seeing Kenyatta after he was released from prison. “When I had come home from Oxford, Kenyatta had just been released and he asked my father why he hadn’t taken me to visit him and my father told him that the queues of people waiting to see him were so interminably long! So he arranged for us to see him specially. There is a picture of us all together about a week after he was released.”
The success of his father’s shop blessed Ghai with a relatively easy childhood. He spent the week in Nairobi, where he went to school and was cared for by his grandmother, and returned to Ruiru on the weekends. His father emphasised the importance of education, and Ghai worked hard, excelling in school. In fact, when Princess Margaret visited Kenya in 1956, Ghai, as the top student in his school, was chosen to present her with a bouquet of flowers. Unbeknownst to him, it would be his first claim to fame. “In those days, the British had their own propaganda thing. There were huge, outdoor screens, and they would show these clips. It would start with news about the country, and then they would show a cowboy movie,” Mutunga laughingly remembers. “I saw Yash in that clip. That was the first time I saw him.” When asked about the moment, Ghai laughs quietly. “I fell in love with Princess Margaret.” Indeed, Mutunga says, “You know, the way the British did those documentaries was very, very interesting. A lot of us became monarchists as young kids after seeing those beautiful women and queens.”
The reality of segregated living meant that young Ghai had virtually no substantive interaction with the white, British population in Kenya. What little interaction he did have, though, showed the young Ghai how very different life was for some Kenyans. “We wouldn’t be allowed anywhere near any British home. We didn’t know any British kids.” In fact, as he now looks out over his garden in Muthaiga, Ghai describes his initial reluctance to live in the neighbourhood. “I remember dogs barking at me here. They would bark at any non-white person. I never wanted to be here.”
Most of the inter-racial interactions he did have in his youth occurred at school, especially during athletic competitions. Once a year, he remembers, the leading schools in Nairobi, each segregated by race, would have athletics competitions. “I took part in athletics. We would always lose, because the Prince of Wales School (for white students) had coaches and equipment. You were on the field together, but then at intervals you went back to your own side. We didn’t even get to know their names.”
Segregation was just one manifestation, however, of the harsh reality of inequality all around him. Ghai remembers witnessing insults and beatings on the streets. “As a kid, when I used to see people being beaten up, I couldn’t do much. The injustice of it left a very deep impression on me, the unfairness of it.” By the time Ghai was ready for university, he had been personally bruised by the harsh mark of racism as well.
As he was preparing to apply for university admission, Ghai was advised to seek assistance from the Ministry of Education. He recounts, “In the Ministry, I saw a lift and I had never been in one. So I got into the lift. I was about to go, and suddenly three white men came in and asked me what I was doing. They physically picked me up and threw me out, and I ended up on the floor. I was so shattered. I thought, ‘How can they just throw me like this?’ ” Taking the stairs instead, Ghai eventually reached the office of Mrs. Brotherton, who, Ghai had been told, could help with the university admissions process. “She asked me where I wanted to go. I said, ‘Oxford.’ She looked at me and smiled and said, ‘You? You want to go to Oxford?’ She laughed at me and then mentioned two or three other universities. ‘You really think you could go to Oxford?’ she taunted. I said that I wanted to try. She asked me if I had received a credit in my ‘O-levels.’ And I said, ‘No.’ She smiled and said, ‘See? You didn’t even get a credit in your exams.’ That’s when I said, ‘Madam, I did not get a credit. I got a distinction.’ She was so angry with me. She told me she didn’t think Oxford was good for me.”
It was a defining moment for Ghai, who had received the highest O-level results in Kenya. Instead of embittering him, however, the experience motivated him to forge ahead. In fact, when he spoke to his teachers at the newly opened Gandhi Academy, which would eventually become the University of Nairobi, they wrote to Queens College to recommend him. After passing the entrance exam, Ghai was accepted at Oxford. Given his intent to pursue literature, however, the university urged him to study Latin so that he would be prepared. “My teachers helped me get tutorials for Latin. They got this chap to come from the Prince of Wales School twice a week and tutor me. My school arranged it. I was quite pleased that this chap drove up and took the time. I thought, ‘He’s English but he’s quite nice.’ ”
Oxford (Queen’s College) welcomed Ghai, but it was an adjustment. “In the beginning, I was nervous in all kinds of ways – there were all these bright people, etc. I didn’t even know how to eat food British style. The British Council had set up a course on how to eat, and I attended that to learn how to use utensils. I would look at other people, and I got a complex about knowing which spoon to use.” Ghai quickly made friends, pursuing his love of sports and the outdoors. He also enjoyed time with his brother, who was still at Oxford, and with Singh, who was studying in Bristol. The two kept in touch, hitchhiking around Europe during their holidays.
Soon, however, Ghai realised that studying English literature was not what he had expected. “It was very difficult, because at Oxford they started four centuries before Austen. It was hard to read old English, and I just couldn’t cope. So I went to my tutor. He was understanding, and he asked me what I wanted to do instead of English. Even though my second love was history, I chose law.”
Ghai excelled at Oxford, so much so that, when he achieved the highest exam scores in the university, the College Provost told him that the College would henceforth take care of his fees. After graduating with his Bachelor’s degree in 1961, Ghai applied to undertake graduate work at Oxford’s Nuffield College. It was while at Nuffield, where he was studying comparative Commonwealth constitutions for his doctorate, that Ghai was approached by his former tutor. “He raised the idea of Harvard. I hadn’t really thought about it, but he said, ‘Why not take a break from Oxford and go to Harvard?’ He said I could come back later and finish my thesis. I wondered if the College would really allow something like that. He was such a nice person, and he wrote to his friends there. Harvard gave me a grant and a generous allowance.” At Harvard, Ghai completed a Masters in Law and also took courses related to his doctoral thesis.
And it was at Harvard that Ghai met William Twining, the son of the former Governor of Tanganyika, who would become a lifelong friend. Twining had just started a law school, along with AB Weston, in Dar es Salaam. The University of East Africa, as it was then known, was recruiting professors. “People were telling me that Twining was around and was looking for me. It turned out that he was looking for staff. When we met, he said, ‘I’ve come to pick you up.’ ‘Pick me up?’ I laughed it off.” Although he was tempted, Ghai was concerned about finishing his doctorate, especially because Nuffield had been so good to him. It turned out, however, that Twining had already spoken to Oxford and the university was very supportive, encouraging Ghai to take the position in Dar. “After a lot of thinking and consideration of the fact that this was the first time Africans would have had a chance to study law [in East Africa], I thought it would be good to do this. Twining had already recruited four or five teachers. I ended up going at short notice.” Although Ghai would continue to work on his doctoral thesis once in Dar, even publishing several chapters, he never had the chance to finish it. In 1992, the University of Oxford honoured Ghai with a “higher doctorate” in Civil Law. While ordinary doctorates are earned through a defined program of study, higher doctorates are awarded only through a nomination process and a review of a scholar’s research work over a period of time. Ghai is among only 96 recipients of this degree since 1923.
A Young Professor in Dar es Salaam
In 1963, Ghai, at only 25 years of age, accepted his first professional position as a lecturer of law at the University of East Africa at Dar es Salaam. It was a heady, idealistic time for the young graduate, as well as for the wider society. According to Professor Bill Whitford, Ghai’s colleague and lifelong friend, Dar was one of the most desirable places in terms of legal education at the time. “There was a wide range of people from all over the world, and the students were fantastic. The law school admitted only 100 students per year, and they were superb. The other thing was that this was [Tanzanian President Julius] Nyerere’s most creative period, and thoughts about creating a new society were all over the place. Everything was up for debate. It was a very hopeful time.”
Indeed, Ghai describes his time in Dar as “most formative” in terms of his professional growth; he was acutely aware of the significance of his role. “It was the first time black Africans were being allowed to study law [in Africa],” he remembers. “People didn’t know much about law other than that this is what the British used to beat you. We were aware that the students who left us could soon be judges or senior government officials, and we were conscious of inculcating in them the sense that law could be used for the promotion of good values.”
This conviction of his responsibility to inspire students to use the law to work for the betterment of society, to seize and channel the fervour of newfound independence in the direction of an equal, democratic post-colonial Africa, is partly responsible for Ghai’s break with the legal positivist tradition in which he had been trained, opting for what came to be known as “legal radicalism” or “law in context.” This approach, which sought to understand and interpret the law within the social, political and economic contexts in which it functioned, was not the norm at the time. In the new era of independence, however, Ghai and others like him believed it was critical for lawyers to understand how the existing law had come to be and how it might need to change to suit the rapidly evolving needs of newly independent nations. Writing about his years in Dar, Ghai says, “It was not long before I became acutely uncomfortable with endless explorations of the rules of privity and consideration, and became conscious of the unreality of the emphasis on the common law when it touched only a small segment of the population.”
Indeed, Mutunga credits Ghai for this approach. “We were taught law within its historical, socio-economic, cultural, and political contexts, thus departing from the conservative legal positivism with its clarion call that ‘law is the law is the law.’ We undertook to study, research, and practice law never in a vacuum. Above all, we anchored law in politics and shunned legal centralism. Our approaches were multi-disciplinary.” At the same time, however, Ghai ensured that his students were well grounded in traditional law. Mutunga describes the high standards Ghai held as a teacher, demanding that his students become masters of “staunch positivism” while having the skills to interrogate that tradition. Mutunga describes Ghai’s approach as a “fantastic balance,” recalling how his professor’s exams required students to address three questions dealing with technical aspects of the law and two questions asking students to critique the legal rules. “Dar law graduates could regard themselves as ‘learned,’ as we were distinguishable from other pretenders to the ‘learned’ tag.” Mutunga considered Dar to be his “liberation Mecca,” the place where he developed his own intellectual, ideological, and political positions.
Not everyone was a fan of this approach. Mutunga describes how some students were not interested in studying context. Already assured of high level jobs, these students “just wanted to know the rules so they could go out there and practice.” They were not interested in learning context. Some students wanted to “finish things and get marks. They had gone to law school to be ‘big people’.” Ghai himself has questioned legal radicalism, wondering if his students were at a disadvantage for not having trained as traditional lawyers. Mutunga, who adopted Ghai’s approach when he became a professor, disagrees, explaining that his own students have expressed how the approach of law in context helped them cultivate a more holistic approach to the law, and to an understanding of the law.
Ghai’s natural aptitude, not just for the law but also as an educator, quickly became clear. While teaching in Dar, he co-authored (with his colleague and friend, Patrick McAuslan) what would become one of his most well-known books, Public Law and Political Change in Kenya. Although his primary motive in writing the book was to provide a textbook for his students, who did not have authoritative texts on the laws of newly independent East Africa, Public Law became one of the most widely cited works related to Kenyan law. When it was published in 1970, Ghai was just 32 years old.
The authors wrote that they wished to provide an analysis and critique of Kenya’s development since early colonial times as seen through the processes of law:
We have never understood the function of the law teacher or writer to be the mere reciter of rules whose merit is to be gauged by the quantity of information he can relay. All African countries have great need for lawyers who can take their eyes off the books of rules, who can see more to law than a set of statutes and law reports . . . The law student must constantly be brought up against questions such as . . . what is this law designed to achieve, what set of beliefs lie at the back of this law . . . a text should aim to stimulate, even aggravate, not stupefy, and that is what we have tried to do here.
Their analysis was incisive and sometimes harsh, blatantly questioning, for instance, increasing executive power and the trampling of the Bill of Rights, which they said was so ineffective that they wondered why it remained a part of the Constitution at all.
George Kegoro, the Executive Director of the Kenya Human Rights Commission, refers to Public Law as “the bible,” and “easily the most widely cited book in Kenyan law.” Kegoro says, “At independence, everybody was trying to establish a frame of analysing Kenya and Kenyan society. How do you analyse society? What are the constituent components? He provides that within the book. There was no clarity about where the tails were, where the heads were. And what he did was to show us where the tails and heads were. It has held sway up to now. It is still very much a valued way of analysing Kenyan society, which is why the book gets cited over and over and over again. It is one of the reasons why he is a legend.” Kegoro pauses, then adds – with incredulity – “And he never talks about it himself! Ever, ever!”
In fact, despite his growing success, Ghai remained down-to-earth. He strove, in many ways, to be a peer of his students. “Yash belonged to a group of law professors and lecturers who did not carry the tag of ‘academic terrorists’. We reserved that tag for the faculty who clearly did not like to teach, did not like students, and suffered from egos and serious intellectual arrogance. Invariably, they treated us as intellectually inferior, adopted a pulpit lecture system where they ordered not to be interrupted while lecturing. Questions were to be asked during tutorials. Yash and others were different. They were approachable, treated us as equals in the word and spirit of the intellectual culture in Tanzania. “All students were Yash’s friends,” recalls Mutunga.
Indeed, Ghai’s ease with people placed him in the middle of a wide social circle, made up of students and colleagues. Despite his work, which was significant, Ghai invested time in creating and maintaining deep and often lifelong relationships with people around him. Mutunga explains, “He was always likable and great company in and out of class. Bear in mind Yash became a full professor at the tender age of 32. In all respects he wanted us to see him and treat him as a brother. Many of us were in our mid-20s. Today, whenever I communicate to Yash I sign off, Nduguyo/Your brother because of a relationship that spans almost over five decades.” Whitford describes Ghai’s ability to balance a social life with his professional duties. “He cooked, and he was an excellent cook! What male Asians cooked at that time?” Whitford asks in amazement. “He didn’t have servants, because he didn’t want to have that kind of relationship with anyone. He was a democratic socialist from the word ‘go.’ He entertained but was also very intellectual. It was typical to see him walking around with his arms full of papers all the time.”
Just as Dar es Salaam was a site where he flourished professionally, it was a place where home took on a new meaning. It was while in Dar that Ghai met and married his first wife, Karin Englund, who was from Sweden. Their daughter, Indira, was born in Dar in 1971. He remembers a pleasant life, with a house by the sea.
Ghai’s tenure in Dar was one of the most dynamic periods of his life. He quickly climbed the ranks, becoming the first East African dean of the University of East Africa’s law school in 1970. He was also personally approached by Tanzanian President Nyerere, who asked him for assistance in the development of the Tanzanian constitution. He admired Nyerere, who gave him complete freedom to say what he believed.
Interestingly, it was also while he was teaching in Dar that Ghai met his future wife, Jill Cottrell, for the first time. “I first met him in 1969. I was doing my Masters at Yale, and my supervisor had taught for a year in Dar. He knew Yash, who was at Yale on a short visit. My supervisor invited a group of people who had some connection to East Africa over for dinner, and then he invited me, although I didn’t know any of these people.” Cottrell Ghai laughs, remembering the evening. “He said, ‘I am going to introduce you to a glamorous man, but I think he’s going to get engaged.’ He did get married soon after that.”
Over time, however, the environment in Dar became increasingly stressful. In his reflections on this time, Ghai writes of more and more racism. “For despite the scholarly analysis of some Marxists, what passed in general for radicalism in those days included a large amount of racism and xenophobia. I remember overhearing the wife of a Tanzanian colleague – a self-proclaimed Marxist – that she would not rest in peace unless she saw that muhindi (Indian) out of the country – that muhindi being me!” In fact, a growing drive to “Africanise” things, along with the University of Nairobi’s continued and persistent invitations to return to Kenya and assume the deanship at the law school, tempted Ghai to finally accept the offer.
Disclaimer: This article is meant as a brief overview of Professor Yash Pal Ghai’s life and career. While it aims to shed light on some of his personal and professional experiences, it is not a comprehensive account.
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The Assassination of President Jovenel Moïse and the Haitian Imbroglio
As CARICOM countries call for more profound changes that would empower the Haitian population, Western powers offer plans for “consensual and inclusive” government that will continue to exclude the majority of the citizens of Haiti from participating in the running of their country.
On Wednesday 7 July 2021, the President of Haiti, Jovenel Moïse, was assassinated in his home. His wife was injured in the attack. That the president’s assassins were able to access his home posing as agents of the Drug Enforcement Agency of the United States (DEA) brought to the fore the intricate relationship between drugs, money laundering and mercenary activities in Haiti. Two days later, the government of Haiti reported that the attack had been carried out by a team of assailants, 26 of whom were Colombian. This information that ex-soldiers from Colombia were involved brought to the spotlight the ways in which Haiti society has been enmeshed in the world of the international mercenary market and instability since the overthrow of President Jean-Bertrand Aristide and the Lavalas movement in 2004.
When the French Newspaper Le Monde recently stated that Haiti was one of the four drug hubs of the Caribbean region, the paper neglected to add the reality that as a drug hub, Haiti had become an important base for US imperial activities, including imperial money laundering, intelligence, and criminal networks. No institution in Haiti can escape this web and Haitian society is currently reeling from this ecosystem of exploitation, repression, and manipulation. Under President Donald Trump, the US heightened its opposition to the governments of Venezuela and Cuba. The mercenary market in Florida became interwoven with the US Drug Enforcement Agency (DEA) and the financial institutions that profited from crime syndicates that thrive on anti-communist and anti-Cuba ideas.
But even as Haitian society is reeling from intensified destabilization, the so-called Core Group (comprising of the Organization of American States (OAS), the European Union, the United States, France, Spain, Canada, Germany, and Brazil) offers plans for “consensual and inclusive” government that will continue to exclude the majority of the citizens of Haiti from participating in the running of their country. Elsewhere in the Caribbean, CARICOM countries are calling for more profound changes that would empower the population while mobilizing international resources to neutralize the social power of the money launderers and oligarchs in Haitian society.
Haiti since the Duvaliers
For the past thirty-five years, the people of Haiti have yearned for a new mode of politics to transcend the dictatorship of the Duvaliers (Papa Doc and Baby Doc). The Haitian independence struggles at the start of the 19th century had registered one of the most fundamental blows to the institutions of chattel slavery and colonial domination. Since that revolution, France and the US have cooperated to punish Haiti for daring to resist white supremacy. An onerous payment of reparations to France was compounded by US military occupation after 1915.
Under President Woodrow Wilson, the racist ideals of the US imperial interests were reinforced in Haiti in a nineteen-year military occupation that was promoted by American business interests in the country. Genocidal violence from the Dominican Republic in 1937 strengthened the bonds between militarism and extreme violence in the society. Martial law, forced labour, racism and extreme repression were cemented in the society. Duvalierism in the form of the medical doctor François Duvalier mobilized a variant of Negritude in the 50s to cement a regime of thuggery, aligned with the Cold War goals of the United States in the Caribbean. The record of the Duvalier regime was reprehensible in every form, but this kind of government received military and intelligence assistance from the United States in a region where the Cuban revolution offered an alternative. Francois Duvalier died in 1971 and was succeeded by his son, Jean-Claude Duvalier, who continued the tradition of rule by violence (the notorious Tonton Macoute) until this system was overthrown by popular uprisings in 1986.
The Haitian independence struggles at the start of the 19th century had registered one of the most fundamental blows to the institutions of chattel slavery and colonial domination.
On 16 December 1990, Jean-Bertrand Aristide won the presidency by a landslide in what were widely reported to be the first free elections in Haiti’s history. Legislative elections in January 1991 gave Aristide supporters a plurality in Haiti’s parliament. The Lavalas movement of the Aristide leadership was the first major antidote to the historical culture of repression and violence. The United States and France opposed this new opening of popular expression such that military intervention, supported by external forces in North America and the Organization of American States, brought militarists and drug dealers under General Joseph Raoul Cédras to the forefront of the society. The working peoples of Haiti were crushed by an alliance of local militarists, external military peacekeepers and drug dealers. The noted Haitian writer, Edwidge Danticat, has written extensively on the consequences of repeated military interventions, genocide and occupation in the society while the population sought avenues to escape these repressive orders. After the removal of the Aristide government in 2004, it was the expressed plan of the local elites and the external forces that the majority of the Haitian population should be excluded from genuine forms of participatory democracy, including elections.
Repression, imperial NGOs and humanitarian domination
The devastating earthquake of January 2010 further deepened the tragic socio-economic situation in Haiti. An estimated 230,000 Haitians lost their lives, 300,000 were injured, and more than 1.5 million were displaced as a result of collapsed buildings and infrastructure. External military interventions by the United Nations, humanitarian workers and international foundations joined in the corruption to strengthen the anti-democratic forces in Haitian society. The Clinton Foundation of the United States was complicit in imposing the disastrous presidency of Michel Martelly on Haitian society after the earthquake. The book by Jonathan Katz, The Big Truck That Went By: How the World Came to Save Haiti and Left Behind a Disaster, provides a gripping account of the corruption in Haiti. So involved were the Clintons in the rot in Haiti that Politico Magazine dubbed Bill and Hilary, The King and Queen of Haiti.
In 2015, Jovenel Moïse was elected president in a very flawed process, but was only able to take office in 2017. From the moment he entered the presidency, his administration became immersed in the anti-people traditions that had kept the ruling elites together with the more than 10,000 international NGOs that excluded Haitians from participating in the projects for their own recovery. President Moïse carved out political space in Haiti with the support of armed groups who were deployed as death squads with the mission of terrorizing popular spaces and repressing supporters of the Haitian social movement. In a society where the head of state did not have a monopoly over armed gangs, kidnappings, murder (including the killing of schoolchildren) and assassinations got out of control. Under Moïse, Haiti had become an imbroglio where the government and allied gangs organized a series of massacres in poor neighbourhoods known to host anti-government organizing, killing dozens at a time.
Moïse and the extension of repression in Haiti
Moïse remained president with the connivance of diplomats and foundations from Canada, France and the United States. These countries and their leaders ignored the reality that the Haitian elections of 2017 were so deeply flawed and violent that almost 80 per cent of Haitian voters did not, or could not, vote. Moïse, with the support of one section of the Haitian power brokers, avoided having any more elections, and so parliament became inoperative in January 2020, when the terms of most legislators expired. When mayors’ terms expired in July 2020, Moïse personally appointed their replacements. This accumulation of power by the president deepened the divisions within the capitalist classes in Haiti. Long-simmering tensions between the mulatto and black capitalists were exacerbated under Moïse who mobilized his own faction on the fact that he was seeking to empower and enrich the black majority. Thugs and armed gangs were integrated into the drug hub and money laundering architecture that came to dominate Haiti after 2004.
After the Trump administration intensified its opposition to the Venezuelan government, the political and commercial leadership in Haiti became suborned to the international mercenary and drug systems that were being mobilized in conjunction with the military intelligence elements in Florida and Colombia. President Jovenel Moïse’s term, fed by spectacular and intense struggles between factions of the looters, was scheduled to come to a legal end in February 2021. Moïse sought to remain in power, notwithstanding the Haitian constitution, the electoral law, or the will of the Haitian people.
So involved were the Clintons in the rot in Haiti that Politico Magazine dubbed Bill and Hilary, The King and Queen of Haiti.
Since the removal of Aristide and the marginalization of the Lavalas forces from the political arena in Haiti, the US has been more focused on strengthening the linkages between the Haitian drug lords and the money launderers in Colombia, Florida, Dominican Republic, and Venezuelan exiles. It was therefore not surprising that the mercenary industry, with its linkages to financial forces in Florida, has been implicated in the assassination of President Moïse. The Core Group of Canada, France and the US has not once sought to deploy the resources of the international Financial Action Task Force (FATF) to penetrate the interconnections between politicians in Haiti and the international money laundering and mercenary market.
Working for democratic transition in Haiti
The usual handlers of Haitian repression created the Core Group within one month of Moïse’s assassination. Canada, France and the United States had historically been implicated in the mismanaging of Haiti along with the United Nations. Now, the three countries have mobilized the OAS (with its checkered history), Brazil and the European Union to add their weight to a new transition that will continue to exclude the majority of the people of Haiti. It has been clear that under the current system of destabilization and violence, social peace will be necessary before elections can take place in Haiti.
Moïse sought to remain in power, notwithstanding the Haitian constitution, the electoral law, or the will of the Haitian people.
The continuous infighting among the Haitian ruling elements after the assassination was temporarily resolved at the end of July when Ariel Henry was confirmed by the US and France as Prime Minister. Henry had been designated as prime minister by Moïse days before his assassination. The popular groups in Haiti that had opposed Moïse considered the confirmation of Ariel Henry as a slap in the face because they had been demonstrating for the past four years for a more robust change to the political landscape. These organizations mobilized in what they called the Commission, (a gathering of civil society groups and political parties with more than 150 members), and had been holding marathon meetings to publicly work out what kind of transitional government they would want to see. According to the New York Times, rather than a consensus, the Core Group of international actors imposed a “unilateral proposal” on the people of Haiti.
Haiti is a member of CARICOM. The Caribbean community has proposed a longer transition period overseen by CARICOM for the return of Haiti to democracy. With the experience of the UN in Haiti, the Caribbean community has, through its representative on the UN Security Council, proposed the mobilization of the peacekeeping resources and capabilities of the UN to be deployed to CARICOM in order to organize a credible transition to democracy in Haiti. The nature and manner of the assassination of President Moïse has made more urgent the need for genuine reconstruction and support for democratic transition in Haiti.
How Dadaab Has Changed the Fortunes of North-Eastern Kenya
Despite the hostile rhetoric and threats of closure, the presence of refugees in the camps in northern-eastern Kenyan has benefited the host communities.
In the 1960s, Kenya had a progressive refugee policy that allowed refugees to settle anywhere in the country and to access education. This approach created in Kenya a cadre of skilled and professional refugees. However, the policy changed in the 1990s due to an overwhelming influx of refugees and asylum seekers escaping conflict in Somalia, Ethiopia and South Sudan. Kenya switched to an encampment policy for refugees, who were mainly confined to camps.
Although there are refugees living in urban and peri-urban areas elsewhere in the country, for over two decades, northern Kenya has hosted a disproportionate number of the refugees living in Kenya. The region has been home to one of the world’s largest refugee camps, with generations of lineage having an impact on the economic, social, cultural, and ecological situation of the region because of the support provided by the government and by non-governmental organisations (NGOs) in education, health and security services.
Mandera and Marsabit counties, both of which boarder with Ethiopia, Wajir County which borders with both Ethiopia and Somalia and, Garissa County which borders with Somalia, have hosted refugees and migrants displaced from their countries of origin for various reasons. In 2018, the town of Moyale, which is on the Ethiopian boarder in Marsabit County, temporarily hosted over 10,000 Ethiopians escaping military operations in Ethiopia’s Moyale District.
Elwak town in Wajir County occasionally hosts pastoralist communities from Somalia who cross into Kenya seeking pasture for their livestock. While the movement of refugees into Marsabit and Wajir counties has been of a temporary nature, Garissa County has hosted refugees for decades.
Located 70 kilometres from the border with Somalia, the Dadaab refugee complex was established in the 1990s and has three main camps: Dagahaley, Ifo, and Hagadera. Due to an increase in refugee numbers around 2011, the Kambioos refugee camp in Fafi sub-county was established to host new arrivals from Somalia and to ease pressure on the overcrowded Hagadera refugee camp. The Kambioos camp was closed in 2019 as the refugee population fell.
According to the UN Refugee Agency, UNHCR, and the Refugee Affairs Secretariat (RAS), the Dadaab refugee complex currently hosts over 226, 689 refugees, 98 per cent of whom are from Somalia. In 2015, the refugee population in the Dadaab refugee complex was over 300,000, larger than that of the host community. In 2012, the camp held over 400,000 refugees leading to overstretched and insufficient resources for the growing population.
Under international refugee and human rights law, the government has the sole responsibility of hosting and caring for refugees. However, there is little information regarding the investments made by the Kenyan government in the refugee sector in the north-eastern region over time. Moreover, the government’s investment in the sector is debatable since there was no proper legal framework to guide refugee operations in the early 1990s. It was only in 2006 that the government enacted the Refugee Act that formally set up the Refugee Affairs Secretariat mandated to guide and manage the refugee process in Kenya.
While the Refugee Act of 2006 places the management of refugee affairs in the hands of the national government, devolved county governments play a significant role in refugee operations. With the 2010 constitution, the devolution of social functions such as health and education has extended into refugee-hosting regions and into refugee camps. While devolution in this new and more inclusive system of governance has benefited the previously highly marginalised north-eastern region through a fairer distribution of economic and political resources, there is however little literature on how the refugees benefit directly from the county government resource allocations.
The three north-eastern counties are ranked among the leading recipients of devolved funds: Mandera County alone received US$88 million in the 2015/2016 financial year, the highest allocation of funds after Nairobi and Turkana, leading to developmental improvements.
However, it can be argued that the allocation of funds from the national government to the northern frontier counties by the Kenya Commission on Revenue Allocation—which is always based on the Revenue Allocation table that prioritizes population, poverty index, land area, basic equal share and fiscal responsibility—may not have been taking the refugee population into account. According to the 2019 census, the population of Dadaab sub-county is 185,252, a figure that is well below the actual refugee population. The increase in population in the north-eastern region that is due to an increase in the refugee population calls for an increase in the allocation of devolved funds.
The three north-eastern counties are ranked among the leading recipients of devolved funds.
Dadaab refugee camp has been in the news for the wrong reasons. Security agencies blame the refugees for the increased Al Shabaab activity in Kenya, and even though these claims are disputed, the government has made moves to close down the camp. In 2016, plans to close Dadaab were blocked by the High Court which declared the proposed closure unconstitutional. In 2021, Kenya was at it again when Ministry of Interior Cabinet Secretary Fred Matiang’I tweeted that he had given the UNHCR 14 days to draw up a plan for the closure of the camp. The UNHCR and the government issued a joint statement agreeing to close the camp in June 2022.
The security rhetoric is not new. There has been a sustained campaign by Kenya to portray Dadaab as a security risk on national, regional and international platforms. During the 554th meeting of the African Union Peace and Security Forum held in November 2015, it was concluded that the humanitarian character of the Dadaab refugee camp had been compromised. The AU statements, which may have been drafted by Kenya, claimed that the attacks on Westgate Mall and Garissa University were planned and launched from within the refugee camps. These security incidents are an indication of the challenges Kenya has been facing in managing security. For example, between 2010 and 2011, there were several IED (Improvised Explosive Devices) incidents targeting police vehicles in and around Dadaab where a dozen officers were injured or killed. In October 2012, two people working for the medical charity Médicins Sans Frontières (MSF) were kidnapped in Dadaab. Local television network NTV has described the camp as “a womb of terror” and “a home for al-Shabaab operations”.
There has been a sustained campaign by Kenya to portray Dadaab as a security risk on national, regional and international platforms.
Security restrictions and violent incidents have created a challenging operational environment for NGOs, leading to the relocation of several non-local NGO staff as well as contributing to a shrinking humanitarian space. Some teachers and health workers from outside the region have refused to return to the area following terrorist attacks by Al-Shabaab, leaving behind large gaps in the health, education, and nutrition sectors.
However, despite the challenging situation, the refugee camps have also brought many benefits, not only to Kenya as a country but also to the county governments and the local host communities.
According to the Intergovernmental Authority on Development (IGAD) half the refugee population in the IGAD member states are children of school-going age, between 4 and 18 years.
In Garissa, the education sector is one of the areas that has benefited from the hosting of refugees in the county because the host community has access to schools in the refugee camps. Windle Trust, an organisation that offers scholarships to students in secondary schools and in vocational training institutes, has been offering scholarships to both the refugees and the host communities. In July 2021, over 70 students benefited from a project run by International Labour Organisations (ILO) in partnership with Garissa county governments, the East African Institute of Welding (EAIW) and the Kenya Association of Manufacturers (KAM) to give industrial welding skills to refugees and host communities.
However, despite the measures taken by the Kenyan government to enrol refugees in Kenyan schools, there is a notable gap that widens as students go through the different levels of education. Statistics show that of the school-going refugee population, only a third get access to secondary education of which a sixth get to join tertiary institutions. This is well below the government’s Sustainable Development Goal (SDG) 4 target that seeks to ensure that all girls and boys complete free, equitable and quality primary and secondary education. This also reflects the situation of the host community’s education uptake. Other investments in the education sector that have targeted the host communities include recruitment and deployment of early childhood education teachers to schools in the host community by UNHCR and other non-governmental organizations (NGOs).
The presence of refugees has led to NGOs setting up and running projects in the camps. According to Garissa County’s Integrated Development Plan, there are over 70 non-governmental organisations present, with the majority operating around the Dadaab refugee complex and within the host communities. The UNHCR estimates that it will require about US$149.6 million to run its operations in Dadaab Camp this year. However, as of May 2021, only US$45.6 million—31 per cent of the total amount required—had been received.
The decrease in humanitarian funding has had an impact on the livelihoods of refugees and host communities in north-eastern Kenya. According to the World Bank, 73 per cent of the population of Garissa County live below the poverty line. In the absence of social safety nets, locals have benefited from the humanitarian operations in and around the camp. The UNHCR reports that about 40,000 Kenyan nationals within a 50km radius of the Dadaab refugee camp ended up enrolling as refugees in order to access food and other basic services in the camps.
In 2014, the UNHCR reported that it had supported the Kenyan community residing in the wider Daadab region in establishing over US$5 million worth of community assets since 2011. The presence of refugees has also increased remittances from the diaspora, and there are over 50 remittance outlets operating in the Dadaab camp, increasing economic opportunities and improving services. Using 2010 as the reference year, researchers have found that the economic benefits of the Dadaab camp to the host community amount to approximately US$14 million annually.
The UNHCR reported that it had supported the Kenyan community residing in the wider Daadab region in establishing over US$5 million of community assets since 2011 since 2011.
To reduce overdependence on aid and humanitarian funding in running refugee operations, the County Government of Garissa developed a Garissa Integrated Socio-Economic Development Plan (GISEDP) in 2019 that provided ways of integrating refugees into the socio-economic life of the community to enhance their self-reliance. The European Union announced a Euro 5 million funding programme to support the socio-economic development plan, thus opening up opportunities for development initiatives including income generating activities such as the flourishing businesses at Hagadera market. The recent announcement of the planned closure of the camp has put these plans at risk.
The host community is increasingly involved in issues that affect both the locals living around the Dadaab refugee complex and the refugees themselves, with the voice of the community gaining prominence in decision-making regarding the county budget and sometimes even regarding NGO operations. NGOs periodically conduct needs assessments in and around the camp to guide the budgeting and planning process for subsequent years and the host community is always consulted.
Interest in governance issues has also increased. For example, between 2010 and 2015 the host community successfully lobbied for increased employment opportunities for locals in the UNHCR operations. With experience in the humanitarian field, some from within the host communities have secured positions as expatriates in international organizations across the globe, adding to increased international remittances to Garissa County.
Research reveals that, compared to other pastoralist areas, health services for host communities have improved because of the presence of aid agencies in Dadaab. Hospitals managed by Médicins Sans Frontières and the International Red Cross in Dagahaley and Hagadera respectively are said to be offering better services than the sub-county hospital in Dadaab town. The two hospitals are Ministry of Health-approved vaccination centres in the fight against the COVID-19 pandemic.
Despite the massive investments made in the health sector by humanitarian organisations in and around Dadaab, both UNICEF and the World Health Organisation have identified the camp as an entry point for infectious diseases like polio and measles into Kenya. There was a confirmed case of WPV1 (wild poliovirus) in a 4-month-old girl from the Dadaab refugee camp in May 2013. This is a clear indication of the health risks associated with the situation.
Researchers have found that the economic benefits of the Dadaab camp to the host community amount to approximately US$14 million annually.
Other problems associated with the presence of the camps include encroachment of the refugee population on local land, leading to crime and hostility between the two communities. These conflicts are aggravated by the scramble for the little arable land available in this semi-arid region that makes it difficult to grow food and rear farm animals, leading to food shortages.
While it is important to acknowledge that progress has been made in integrating refugees into the north-eastern region, and that some development has taken place in the region, more needs to be done to realise the full potential of the region and its communities. Kenya’s security sector should ensure that proper measures are put in place to enhance security right from the border entry point in order to weed out criminals who take advantage of Kenya’s acceptance of refugees. The country should not expel those who have crossed borders in search of refuge but should tap fully into the benefits that come with hosting refugees.
Pastoralist Communities Still Anxious About the Status of Their Land
Despite the enacting of the Community Lands Act of 2016, pastoral communities in Kenya have continued to be disadvantaged by the weak nature of their land tenure rights.
Commended as a liberating provision of Kenya’s 2010 Constitution, Article 63 provides a legal basis for recognition, definition, and ownership of communal land. The Community Land Act gives life to Article 63 of the Constitution of Kenya 2010 by recognising, protecting, and providing for the registration of community lands.
The passage of the Community Lands Act (CLA) in 2016 increased expectations among the indigenous pastoralist communities of Kenya that the new law will not only help them secure their land but also reclaim all or part of the ancestral lands they lost to colonialists.
Four years after the adoption of the Act, there are more questions than answers over its implementation, success, and the challenges faced.
Rights and security of tenure
Previously, rights to customary tenure were limited to those of occupation and use. The law did not recognise other rights. Much of the literature has linked customary land tenure and use to environmental degradation (the tragedy of the commons), social conflict and food insecurity. Thus, the indigenous land tenure system has been perceived as inferior and an impediment to agricultural development.
In the new laws, the rights conferred by community land have equal footing in law as other previously recognised land tenures such as freehold and leasehold. The legislation upholds Article 40 of the Constitution of Kenya that grants all the rights to own property in any part of Kenya. The Act is progressive in promoting the rights of Kenyans everywhere, regardless of their different ways of life.
Under Section 4(1) the Act vests ownership of community land in the community. Community is defined as people sharing similar ancestry, culture, geographical/ecological space, or ethnicity. The CLA has vested ultimate responsibility to formalise the community rights in community stewardship. The procedure for registering “a community claiming an interest in or right over community land” is set out in section 7 of the Community Land Act and detailed in Part II of the Community Land Regulations.
The registration as provided under Section 7 of the Act involves a complex procedure of electing a community land management committee (CLMC) with a comprehensive register of communal interest holders. The committee then submits for registration to the Registrar the name, the members, and the minutes of meetings and rules and regulations of the community.
Upon registration, a title deed in the prescribed form is issued in the name of the community. Thereafter, the community under, the leadership of the CLMC, can plan the development and management of the community land and the natural resources on it.
The county government
The county government is the trustee of all unregistered community land in Kenya. As a trustee, the county government has the responsibility of receiving and keeping in safe custody, on behalf of the community, any monies paid as compensation for compulsorily acquired community land and royalties paid as a benefit for the use of unregistered community land. The county government is also an active stakeholder in the registration process. The Act mandates the county to prepare and submit to the Cabinet Secretary an inventory of all unregistered community land within its jurisdiction to prepare a comprehensive adjudication programme and help in civic education on the registration process.
Threats to pastoral land
Although there are no official records on the size of community land, a close guesstimate is that 60 per cent of Kenya’s landmass is primarily within 21 of the 47 counties. The surface area of Kenya is approximately 582,646km² of which 97.8 per cent is land and 2.2 per cent is water.
When we consider these statistics, Kenya’s community land stands at 341,897 km², excluding private and public lands. It is no secret that most community land is in the historically ignored, dry northern region of Kenya that is occupied by pastoralists.
Therefore, it is a moral imperative to assess whether the Act lays a foundation for security of tenure and more specifically whether it highlights the role of community land ownership in sustaining pastoral land resources.
Over the years, community land has been defined as un-owned or idle land. It is also often mistaken for government land, resulting in illegal grabbing. Moreover, the risk of pastoral and other indigenous communities being disinherited of their land and natural resources continues to increase.
The CLA is unhelpful in this regard as it allows the county government and the national government to set aside parts of community land to promote or upgrade in the “public interest”, a term that is ambiguous as it is not clearly defined. The result is that the term “public interest” has been used interchangeably with “public purpose” which the Land Act 2012 defines as the establishment of “physical infrastructure, roads, dams, national sports facilities, etc.”, leaving the door wide open by adding, “and for any other analogous public purpose”.
The risk of pastoral and other indigenous communities being disinherited of their land and natural resources continues to increase.
Considering the above, pastoralists in northern Kenya face imminent dispossession of their lands due to state-sanctioned mega-projects such as the Lamu Port, South Sudan, Ethiopia, Transport Corridor (LAPPSET). Although both the Constitution of Kenya 2010, CLA 2016, and Land Act 2012 guarantee compensation in good faith for the unregistered occupant as well as for registered owners in case of land expropriation for a public purpose, compensation for pastoralist will be non-existent or at best a mere token because of the Land Value Index Laws (Amendment) Bill 2016.
The bill proposes to limit compensation to the value of the structures and improvements made to the land. Under these circumstances, rural property owners are disadvantaged, and nothing will be forthcoming for land purposely set aside for grazing, as is the case in most pastoralist communities.
Loss of community land may also occur through the statutory right of the state to deﬁne new categories of public land. Part of the existing public land that may not be transferred to the community includes lands prone to waterlogging, buffer zones around the national parks, and cultural sites of importance. Wetlands are critical dry season grazing areas for pastoralists and cultivation, and this provision extinguishes the ancestral claim to resources that are critical to their survival.
The National Land Commission may also identify public land that is available to investors. The CLA itself allows the National Land Commission to add to the list of local land types that may not be transferred to communities. All the above point to the risks faced by communities that assume that all their unregistered community areas are protected under the Act.
The CLA has vested the ultimate responsibility of community land registration in the community. This is unfair considering that the community is not sufficiently aware of the law and the land formalisation process. The procedures provided are complex for the comprehension of indigenous communities that have had little to no contact with government authorities in the past. There is a need to create an awareness of the Act to kick-start the registration process.
Poor or limited financial and technical capacity is the biggest impediment to implementing the Community Land Act. Ideally, community land registrars should be on the ground to educate and assist the communities with the registration process, but they are absent in most counties.
For example, in Isiolo, the registrar was only deployed in mid-2020, while some counties such as Marsabit and Samburu rely on registrars from other regions such as Isiolo or West Pokot.
The registration procedures require movement from one office to another, resources to mobilise community members for meetings, and advertisements on local radios to announce such meetings. These activities all have financial implications, but unfortunately, most counties have no budgetary allocation to support such activities; where these resources do exist, they are very limited.
The strength of CLA lies in its social inclusion, and the principle of non-discrimination. Decision-making on the formalisation of communal rights must be done in a fair, transparent and accountable manner. Procedurally, at least two-thirds of all adult members must participate, consent, or vote on actions and decisions. When a member or a section of the people disagree with the rest over a certain matter, they can lodge their complaint with the registrar or the courts and stall the registration process. This has, to some extent, over-empowered individuals at the expense of the majority or collective voice of the community.
Poor or limited financial and technical capacity is the biggest impediment to implementing the Community Land Act.
The disadvantage of this arrangement is that the registration process comes to a halt until the dispute is successfully determined. For example, the registration of the Merti community land (one of the registration units) in Isiolo hit a snag due to a dispute over the naming of community land.
The proposed name, “Nagele Borana”, was rejected by some of the members for fear that other non-Borana communities may be excluded from the community. Isiolo is inhabited predominantly by the Borana ethnic group, but other nomadic ethnic groups such as the Sakuye, the Gabra and the Somali are also present. There is the assumption that the use of the name of one community will exclude the other communities, and this has caused unnecessary tension and delays.
The support of the county government—the trustee of all unregistered community land—is limited by to many factors. Overlapping claims between county and national governments over certain lands create a setback in fast-tracking the process of formalisation. Kenya Defence Forces (KDF), for example, claims part of Isiolo County land as part of their land, leading to evictions from land that is part of the extensive communal land in the county. The forceful evictions by KDF have been triggered by the assumption that unutilised community land is government/free land. The Constitution of Kenya 2010 failed to discern the overlap between public and community lands and to put measures in place to protect communities from the dispossession of their land.
While challenges remain, there are several bright spots, successes, and good practices across the 21 counties concerned. The first step for community land registration is civic education on the requirements and procedures. According to the Food and agricultural organisation (FAO) of United Nations, at least 24 counties have been sensitised on the CLA 2016 by the Ministry of Lands and Physical planning with the support of the Land Governance Programme funded by the European Union. However, this sensitisation drive only targeted the key decision-makers at the county level. There is a need for a serialised civic education campaign at the grassroots considering that rural people in these counties have had little or no prior contact with government authorities.
At least 10 counties have submitted the inventory of their community lands to the Lands and Physical Planning Cabinet Secretary as prescribed by law. These counties include Baringo, Turkana, West Pokot, Tana River, Isiolo, Wajir, Garissa, Mandera, Marsabit and Lamu. However, most of these inventories are not complete and there is need for follow-up with the counties for their completion. Five communities In Isiolo, namely Kalash, Lenguruma, Longobito, Sericho and Merti, are said to have initiated the registration process and are believed to be at the preliminary stages.
Laikipia and Samburu counties are trendsetters in community land registration in Kenya. In these two counties, a combined total of 24 communities have completed the election of their community land management committees and are ready for the transition. At least five former group ranches have successfully transited to community land and been issued with community title. Elsewhere, nine communities have also prepared for registration in West Pokot under the land governance programme that the FAO is implementing in partnership with the Ministry of Lands and Physical Planning. Even though transitioning from group ranches is straightforward compared to the registration of unregistered land, the progress made in these counties is a testament that community land registration is achievable with the financial and technical support of both government and non-governmental agencies.
Pastoral communities in Kenya have continued to be disadvantaged by the weak nature of their land tenure rights compared to other forms of tenure. Despite the constitutional provision that community land tenure is a lawful class of tenure on an equal footing with private and public land tenure, there is persisting anxiety that community land rights are not sufficiently protected or even restored under the CLA of 2016.
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