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The Indomitable Yash Pal Ghai – Part 1: The Father of the Constitution

14 min read.

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.

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The Indomitable Yash Pal Ghai: The Father of the Constitution
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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.”

Yash Pal Ghai with brother Dharam, two of his three sisters and another relative.

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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Seema Shah is an elections expert with experience in North America, Asia and Africa. She holds a doctorate in Political Science, and her research focuses on electoral politics, with an emphasis on electoral integrity and electoral violence.

Politics

Asylum Pact: Rwanda Must Do Some Political Housecleaning

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

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

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

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

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

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

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

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

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

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

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

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

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

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Politics

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

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

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

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

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

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

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

Labour migration as climate mitigation

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

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

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

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

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

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

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

Reparations include No Borders

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

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

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

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

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

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

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The Murang’a Factor in the Upcoming Presidential Elections

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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