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The Indomitable Yash Pal Ghai – Part 2: Years of Exile

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Ghai learned later that Attorney General Charles Njonjo did not want him in Kenya. It was the legal radicalism, politics in Tanzania and the publication of the book he co-authored with Patrick MacAuslan in 1970 – which was very critical, in the academic and political sense, of developments in East Africa – definitely made the conservative Njonjo fearful of such a teacher in the Faculty of Law at the University of Nairobi.

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The Indomitable Yash Pal Ghai: Years of Exile
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Professor Yash Pal Ghai had accepted the offer of a deanship at the University of Nairobi, packed up everything ready to leave Dar es Salaam, and was saying his goodbyes when he got a call from his former student Willy Mutunga. “So Willy said to me, ‘I hope you aren’t coming to Nairobi.’ And I said, ‘I am taking up the deanship at the University of Nairobi.’ He said, ‘I can’t say much now, but don’t come. I can’t talk now, but don’t come until we tell you.’ He was ringing from the AG’s office, where he worked. I didn’t know why they were saying that. But then the University of Nairobi rang me two days later and said they were sorry but my appointment was canceled. I said, ‘You spent hours and hours persuading me, even when you knew how happy I was. I agreed because of your pressure. Why has it been cancelled?’ They said that they couldn’t tell me.”

Ghai learned later that Attorney General Charles Njonjo did not want him in Kenya. He was warned by friends that he could face harassment and even torture if he returned. Ghai is emotional as he speaks of this time, expressing frustration and outrage at the way things unfolded. “To this day, I do not know what bothered the AG. I never knew what I did. When I asked Njonjo about it, he never admitted it, even though he had signed all the orders himself.” Following the warning from Mutunga, Ghai chose to go into exile.

Ghai’s colleagues and friends attribute the orders to the work he had done until then, pointing especially to Public Law. “I believe legal radicalism, politics in Tanzania and the publication of the book he co-authored with Patrick MacAuslan in 1970 – which was very critical, in the academic and political sense, of developments in East Africa – definitely made the conservative Njonjo fearful of such a teacher in the Faculty of Law at the University of Nairobi. Of course, when I joined the Faculty of law, University of Nairobi, I adopted the approach he would most likely have adopted had he joined the faculty. So, in a way, we had our last laugh,” says Mutunga. Whitford agrees, saying that Ghai’s attack on newly independent Kenya’s public policies led to Njonjo’s actions.

Although the news was devastating, Ghai’s time in Dar had catapulted him into the international limelight. The impact of his work, not just as a teacher and administrator, but also as a trusted international adviser, was becoming increasingly clear. Unsurprisingly, senior ministers in Tanzania asked Ghai to stay on, offering him positions in the Attorney General’s office. The University of East Africa at Dar es Salaam also invited him back when the news broke that he would not return to Kenya. Ghai declined these offers, choosing instead to take on some short-term work with the East African Community (EAC). While there, he advised the EAC on membership issues and on reforms aimed at addressing the vastly unequal economic conditions of member states. It was interesting work and Ghai enjoyed it. In fact, Ghai’s performance prompted the Tanzanian Attorney General to nominate Ghai to be the Chief Legal Officer of the EAC, but Njonjo stepped in again, vetoing the nomination.

At this point, Ghai could have turned to Kenyatta to ask for assistance. Says Mutunga, “Yash could have gone to Jomo, but he’s not that kind of person and I’m glad he didn’t. It would have destroyed him professionally. Everyone would have known that Kenyatta helped him return and then he would have been seen as ‘Kenyatta’s boy.’ He would have been seen as a sycophant.” Mutunga doubts that Njonjo knew of Ghai’s connection to Kenyatta, and he is confident that Kenyatta had no knowledge of Njonjo’s actions. “Even Njonjo wouldn’t have dared to do what he did if he had known of the connection.”

Ghai’s departure for the United States in 1971 was a loss for East Africa, but he left behind a model for teaching law. Indeed, Whitford calls Ghai’s vision of – and standards for – a law school the “Ghai ideal.” At the heart of this vision is the role of law faculty as “independent critics of legal developments.” The Ghai ideal envisions law schools as havens of intellectual scholarship, marked by well-resourced and up-to-date libraries as well as by full-time law professors, who are well remunerated and who have reasonable teaching loads.

Ghai epitomised his own vision of a law professor. Ambreena Manji, who teaches law at the University of Cardiff in the United Kingdom and who is the former head of the British Institute of East Africa, says she has been profoundly influenced by Ghai’s commitment to teaching. “He will just quietly talk to you about your ideas.” Manji remembers hosting several constitutional conferences while at the British Institute, and she particularly recalls Ghai’s attention to young scholars. “I used to watch him quietly sit with young people and just quietly talk to them and question and probe. He is a very committed teacher. A lot of what I’ve tried to do as a teacher has been influenced by him. He is an exemplar of how you should live your life as an academic.”

Hope in times of grief

In 1971, Ghai settled his young family in New Haven while he lectured at Yale Law School and served as the Director of Research at the New York-headquartered International Legal Centre. The family soon welcomed a son, Tor.

At the same time, Ghai continued to receive invitations to assist with constitution-making processes around the world. While at Yale, Ghai remembers receiving a telegram from Papua New Guinea, where leaders were trying to negotiate an independence constitution. Says Ghai, “I was quite surprised. I didn’t know very much about Papua New Guinea. It turns out that the Australians offered them some consultants from Australia, and the local leaders felt that they may be biased and they may be influenced by – or even directed by – the Australian Government. So they wanted input from a totally independent person. They had just established a law school and the first dean of the law school was, at one stage, my dean in Dar es Salaam. So they asked him and he recommended me.” Ghai accepted the offer, travelling to Port Moresby from New Haven for short periods, somehow also managing his other professional responsibilities as well as the demands of his family.

Ghai’s time at Yale was positive, and having received several offers from around the country, Ghai considered settling in the United States. “But my wife didn’t like the U.S. and so I gave up a number of offers, including the UN. Since she had come to the U.S. because of me, I decided to go to Sweden [for her].” In Sweden, Ghai worked as a researcher at Uppsala University as well as at the renowned Nordic Africa Institute. He also continued to travel to Papua New Guinea, sometimes for longer periods, as the country considered how to manage the demands of multiple ethnic groups in a time of transition to independence. The assignment was particularly invigorating for Ghai, who had a special interest in minority rights. Ghai and his team travelled around the country to canvass people’s views and desires, a hallmark of his constitution-making methodology. In the end, he advised the government to be open to devolution in areas where there was a demand for it – especially for the island of Bougainville. Without that option, he feared that groups would press for secession. When, at the end of the process, the Chief Minister lobbied successfully to eliminate the draft Constitution’s chapter on devolution, Bougainville did indeed declare its intention to secede.

When violence broke out, Ghai, who had no training as a negotiator, was asked to return to Papua New Guinea to act as a mediator. He agreed, but he quickly realised that the balance of expertise was strikingly unequal. Ghai explained, “Bougainville had no lawyer to speak of and the Government had quite senior lawyers.” It would be easy to conclude that Ghai’s decision to work on behalf of Bougainville would place him in a contentious position. He had spent months working for the government, only to finally end up working “for the other side.” Amazingly, however, the integrity Ghai had exhibited throughout the constitution-making process mitigated any tension that could have existed. “Fortunately, all the people we were negotiating with were sort of friends because of the time I had spent there working. I was seeing senior civil servants, economists, finance officers, people from the Ministry of Lands. So by the time the negotiations started, I knew most of them quite well and had become good friends with them.”

Ghai’s ability to connect with actors from across political divides is emblematic of his natural ease with people. Ghai’s own anecdotes about people he has met – from local artists whose works bring life to his garden, to former Indian Prime Minister Manmohan Singh, whom he met as a student at Oxford – often end with the words, “We became good friends.” Lulu Kavoi, who works as the Katiba Institute’s Executive Assistant, describes what she was expecting when she first met Ghai. “I had only read about him and seen him on TV. I was expecting a bossy person, someone too serious for life.” She was surprised at the reality. “Working for him is fun, because he likes to understand people. He’s a mentor and also a boss, but he’s not a bossy person. He is interested in what you’re doing for your education and in your life. He would come and ask me, ‘So Lulu, what are you doing and studying?’ More like a friend I can talk to for advice.”

Devolution was eventually reinstated in Papua New Guinea. When it was time to implement the new Constitution, Ghai was asked to return, this time to chair a commission responsible for implementing devolution. Although Ghai wanted to help, he did not want such a role for himself. “I wanted a local person to be chair. I asked [Papua New Guinea leaders], even in the very beginning, that I would like to work with one or two young lawyers so that they would acquire knowledge and experience of the constitution and the background to its various provisions, minimizing reliance on foreign lawyers.” Ghai’s response to this suggestion serves as an example of his commitment to sharing his knowledge and promoting local empowerment and ownership of democratic processes and institutions.” Indeed, the person who was finally chosen for this role, Bernard Narakobi, eventually became Attorney General of Papua New Guinea, and later a diplomat.

The Indomitable Yash Pal Ghai: The Father of the Constitution

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Ghai’s ability to take a backseat in order to promote local ownership and thereby plant the seeds for long-term, sustainable democratic rule has inspired many of those who have been lucky enough to meet and work with him. Manji says, “The thing about Yash is that he doesn’t give a monkey’s about your status. He doesn’t care. He’s not going to be impressed whether you’re the president or the professor. He doesn’t care. If you have got something interesting to say, he will sit and listen. He wants to know about you.” Indeed, Papua New Guinea would later recommend Ghai to leaders in the Solomon Islands; he had local legitimacy. In 1976, Ghai was awarded Papua New Guinea’s Independence Medal, created to honour those who had performed outstanding service to the country during the transition to full independence.

Ghai’s success in the South Pacific brought him even more attention, and requests kept coming. Over the course of his career, Ghai would work on constitutions and constitutional development in many other countries, including Vanuatu, Western Samoa, Sri Lanka, Fiji, Zambia, Cambodia, the Cook Islands, Kenya, East Timor, Iraq, Nepal, Somalia, Ghana, South Sudan, Libya, Tunisia, the Philippines, and Zimbabwe. Many of these assignments were borne of personal recommendations. Says Manji, “He’s utterly, utterly non-denominational and non-racist. He’s utterly scrupulous and fair-minded. That has been key to negotiating in complex terrain.”

Although Ghai’s work in Papua New Guinea was a professional success, prompting the beginning of an extensive career as an adviser in the region and eventually the world, it was also an emotionally traumatic time. As it became clear that Ghai would have to commit more time to being on the ground in Papua New Guinea, his wife advised him to go in advance of the rest of the family so that he could set up their house and living arrangements. “At one point, I realised I had been there for two months and she kept delaying her plans to travel. When I returned to Sweden, I realised that she had fallen in love with someone else and was living with him. She had moved to Stockholm [from Uppsala] with the children.”

It was a great shock for Ghai, who struggled to balance work in Uppsala with time with his children, who were in Stockholm. “I would go to Stockholm on the weekends and take them to a park and give them ice cream. They knew only Swedish. I found it so frustrating, and I would cry when I left them. It got to be too much for me.” Ghai told his ex-wife that he wanted custody. “I told her that she should be one to visit them on the weekends.” He consulted a lawyer, but he was told that, as a non-Swedish man, he stood very little chance of winning custody against a Swedish mother. It was a significant emotional blow. Whitford recalls, “He cooked, he did all that sort of stuff. He was the primary home person; he did more than she did in that regard.”

Ghai’s relationship with his ex-wife was tense in the immediate aftermath of the divorce, and for some time afterward. It was somewhat unsurprising, then, that Ghai decided to leave Sweden when his contract expired. Wanting to remain close enough to see his children regularly and easily, however, he chose to stay in Europe. In 1978, he took up an appointment as a professor of law at the University of Warwick in the United Kingdom, where he had friends and some family.

Ghai’s new position at Warwick was also like a professional homecoming. Whitford calls it “the path of least resistance” for that time in Ghai’s life. It was “filled with academics from Dar,” recalled Whitford. Indeed, the law school at Warwick is known for its leading work in “law in context,” and it has been home to “law in context” pioneers, including Twining, Ghai, McAuslan, and many others from the University of East Africa at Dar es Salaam. Ghai thrived at Warwick, teaching constitutional law classes, publishing extensively and even taking up short appointments as a visiting professor in Australia, Singapore and the United States. He enjoyed these experiences and the exposure to different environments, never allowing his outsider status to stand in the way of the work in which he believed. In Singapore, Ghai took the government to court in a case that sought to advocate for the rights of a group of domestic workers. After a string of legal victories, he was declared unwelcome and forced to quickly leave the country. His fellow lawyers were jailed, but Ghai continued to “make noise”, forging ahead until the lawyers were eventually released.

It was at Warwick that Ghai became reacquainted with Jill Cottrell, whom he had originally met on a visit to Yale when he was still Dean in Dar. Cottrell and Ghai had met occasionally over the years, mostly at academic conferences, and they were now faculty colleagues. Their relationship quietly but steadily evolved at Warwick. Manji laughingly remembers seeing them together more and more. “Every time someone would go around to Yash’s place, Jill would be there. Nobody was told there was a relationship, but intellectually they are a perfect fit. Their relationship was a long time brewing, and it is such a great intellectual partnership.” Indeed, Zein Abubakr, Ghai’s co-commissioner on the Constitution of Kenya Review Commission, described the couple as an inspiration. “Yash’s love and affection for his wife – it’s amazing to see them, how they complement each other. It’s an inspiration for all of us. If Mzee is still able to do this, maybe we should learn something from him.”

The birth of that relationship quickly grew into a professional partnership as well. Although they were different in many ways, Manji describes the importance of their commonalities. Referring to Cottrell Ghai’s early experiences as a law professor in Nigeria, Manji says, “She had this totally global life. It took a lot of courage as a woman in that era to embark on that kind of life. When she ended up at Warwick as a young woman, she already had that outward push.” Like Ghai, Cottrell Ghai is also a quiet but determined force. Unlike her husband, however, she tends to stay out of the limelight. “Jill is very quiet and very, very studious, says Manji. “She would almost prefer it if she never had to leave the house and if she could just get on with reading whatever textbook she was obsessing about at that particular time. She’s an absolute powerhouse.”

Ghai continued to act as an international adviser while at Warwick, balancing teaching and research responsibilities with missions around the globe. He found himself in a unique position, often working for the British Foreign Office but acting as an adviser to local groups. In so many of these cases, Ghai’s British training and official connections to the British government were considered background information. First and foremost, he was seen, and wanted to be seen – according to him – as “a Third World person”, as someone who could understand local views. Indeed, in the Solomon Islands, Ghai urged the Chief Minister and the leader of the opposition, who had a bitter relationship, to work together so that the British could not undercut their goals: “‘You should negotiate as a united people. If you are fighting yourselves, Britain will play one against the other.’ And I worked on it, and worked on it. I would wear slippers and go to the Leader of the Opposition. I said, ‘I’m coming home to you. Do you have a free moment?’ They liked that. For them, I was not a pompous civil servant coming from London. So I was able to establish a rapport.” At the end of the constitution drafting process, the leader of the opposition credited Ghai with uniting the country.

It was clear to Ghai that his work was about something bigger. Although he was in great demand, Ghai only accepted assignments that aligned with his political philosophy and that contributed to greater democratisation and respect for the rule of law. International missions were real-world applications of his academic work, a chance to have a hand in shaping progressive political frameworks that valued individual freedoms and protected minority rights. This is why, when he was first approached to help the Fijian government with constitutional issues after the first 1987 coup, he refused. Ghai explains, “I was afraid they wanted me there to ‘fix it.’ There had been some cases where the courts in other countries had accepted coups as lawful. [The coup leader’s] expectation was that I would help the new regime to achieve a similar status. I had no intention to help them ‘fix it’— and expressed my willingness to go to help [only] with the return to constitutionality.” When a delegation from the overthrown Fijian group arrived in London, Ghai reached out to them, eventually agreeing to be their adviser. Knowing that the coup leaders would be “furious” if they found out that Ghai had turned them down but had volunteered to help “the other side,” he returned to Fiji but stayed out of sight. When they required assistance, the delegation would ask for a break from negotiations and visit Ghai in his room. Negotiations were successful, resulting in a power-sharing agreement, a review of the Constitution, and a long-term agreement to resolve inter-party differences. By the time Ghai returned to Warwick, however, a second coup had been staged.

Ghai continued to be involved in Fiji, acting as an adviser to the parties in the wake of the second coup, and again in 1995-7 in the preparation of their submission to the Commission drafting the 1997 Constitution. During that period, Ghai also established the Citizens Constitutional Forum, a non-governmental organisation meant to “bring different races together in the common cause of a democratic and non-racial constitution.” The NGO reflected Ghai’s deep-felt concern about the racial divisions and inequalities in the country, issues which he attempted to address in his recommendations regarding the new Constitution. He had strong faith in the power and importance of civil society, a belief that would continue to drive his work throughout his career. In 2012, when the country’s military regime agreed to hand power back to civilians, Ghai was invited to head the Constitutional Commission.

At the same time, Ghai continued to produce legal analysis, publishing books and articles on decentralisation, the political economy of law, human rights, and multiple works devoted to the politics, law and government of the specific countries in which he had worked. His list of publications, which does not include works completed in the last two years, runs 15 pages in length. Ghai’s 1989 article entitled, “Whose human right to development?” was, according to Cottrell Ghai, a particularly important contribution and an example of his unique approach to the law. “He doesn’t always take the obvious approach. Very often, his analysis is out of the ordinary,” Cottrell Ghai explains. “In [that piece], he questioned the right to development in the sense of saying that it was for elites rather than for ordinary people. He takes a slightly more skeptical approach, and that has been important intellectually.”

In fact, Ghai’s unconventional approach to the law is what continues to impress and inspire lawyers to date. Waikwa Wanyoike, the first Executive Director of the Katiba Institute, the NGO which he founded with the Ghais in Kenya, describes Ghai’s ability to “create possibilities where a lot of people think there are none.” According to him, Ghai can “push new frontiers on nearly every subject. He’s able to find ways to read the same text and expand it in a manner that is so rights-focused. He shows hyper-creative rights-oriented thinking, and that’s probably his biggest contribution. His political savvy is also impressive – his ability to marry politics with the law and make the law work effectively on politics. He will contextualise issues, and he always starts from values and principles. That’s ingenious. He breaks the barrier between the technical elements of the law and values; he infuses rights-based values into the law.”

Despite his multiple responsibilities, Ghai also continued to act as a mentor. Mutunga says, “He made it his business to mentor me by inviting me to conferences in various places, by getting me to Warwick Law School as a visiting fellow when he taught there, by being an external examiner in my courses when I taught law in the University of Nairobi, and by sending me his writings and seeking my comments. Yash is the epitome of collective intellect. Many of his books are co-authored and some of the co-authors were his students.”

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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

Stealth Game: “Community” Conservancies and Dispossession in Northern Kenya

The fortress conservation model, created with support from some of the world’s biggest environmental groups and western donors, has led to land dispossession, militarization, and widespread human rights abuses.

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Stealth Game: “Community” Conservancies and Dispossession in Northern Kenya
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With its vast expanses and diversity of wildlife, Kenya – Africa’s original safari destination – attracts over two million foreign visitors annually. The development of wildlife tourism and conservation, a major economic resource for the country, has however been at the cost of local communities who have been fenced off from their ancestral lands. Indigenous communities have been evicted from their territories and excluded from the tourist dollars that flow into high-end lodges and safari companies.

Protected areas with wildlife are patrolled and guarded by anti-poaching rangers and are accessible only to tourists who can afford to stay in the luxury safari lodges and resorts. This model of “fortress conservation” – one that militarizes and privatizes the commons – has come under severe criticism for its exclusionary practices and for being less effective than the models where local communities lead and manage conservation activities.

One such controversial model of conservation in Kenya is the Northern Rangelands Trust (NRT). Set up in 2004, the NRT’s stated goal is “changing the game” on conservation by supporting communities to govern their lands through the establishment of community conservancies.

Created by Ian Craig, whose family was part of the elite white minority during British colonialism, the NRT’s origins date back to the 1980s when his family-owned 62,000-acre cattle ranch was transformed into the Lewa Wildlife Conservancy. Since its founding, the NRT has set up 39 conservancies on 42,000 square kilometres (10,378,426 acres) of land in northern and coastal Kenya – nearly 8 per cent of the country’s total land area.

The communities that live on these lands are predominantly pastoralists who raise livestock for their livelihoods and have faced decades of marginalization by successive Kenyan governments. The NRT claims that its goal is to “transform people’s lives, secure peace and conserve natural resources.”

However, where the NRT is active, local communities allege that the organization has dispossessed them of their lands and deployed armed security units that have been responsible for serious human rights abuses. Whereas the NRT employs around 870 uniformed scouts, the organization’s anti-poaching mobile units, called ‘9’ teams, face allegations of extrajudicial killings and disappearances, among other abuses. These rangers are equipped with military weapons and receive paramilitary training from the Kenyan Wildlife Service Law Enforcement Academy and from 51 Degrees, a private security company run by Ian Craig’s son, Batian Craig, as well as from other private security firms. Whereas the mandate of NRT’s rangers is supposed to be anti-poaching, they are routinely involved in policing matters that go beyond that remit.

Locals allege that the NRT compels communities to set aside their best lands for the exclusive use of wildlife.

Locals have alleged the NRT’s direct involvement in conflicts between different ethnic groups, related to territorial issues and/or cattle raids. Multiple sources within the impacted communities, including members of councils of community elders, informed the Oakland Institute that as many as 76 people were killed in the Biliqo Bulesa Conservancy during inter-ethnic clashes, allegedly with the involvement of the NRT. Interviews conducted by the Institute established that 11 people have been killed in circumstances involving the conservation body. Dozens more appear to have been killed by the Kenya Wildlife Services (KWS) and other government agencies, which have been accused of abducting, disappearing, and torturing people in the name of conservation.

Over the years, conflicts over land and resources in Kenya have been exacerbated by the establishment of large ranches and conservation areas. For instance, 40 per cent of Laikipia County’s land is occupied by large ranches, controlled by just 48 individuals – most of them white landowners who own tens of thousands of acres for ranching or wildlife conservancies, which attract tourism business as well as conservation funding from international organizations.

Similarly, several game reserves and conservancies occupy over a million acres of land in the nearby Isiolo County. Land pressure was especially evident in 2017 when clashes broke out between private, mostly white ranchers, and Samburu and Pokot herders over pasture during a particularly dry spell.

But as demonstrated in the Oakland Institute’s report Stealth Game, the events of 2017 highlighted a situation that has been rampant for many years. Local communities report paying a high price for the NRT’s privatized, neo-colonial conservation model in Kenya. The loss of grazing land for pastoralists is a major challenge caused by the creation of community conservancies. Locals allege that the NRT compels communities to set aside their best lands for the exclusive use of wildlife in the name of community conservancies, and to subsequently lease it to set up tourist facilities.

Although terms like “community-driven”, “participatory”, and “local empowerment” are extensively used by the NRT and its partners, the conservancies have been allegedly set up by outside parties rather than the pastoralists themselves, who have a very limited role in negotiating the terms of these partnerships. According to several testimonies, leverage over communities occurs through corruption and co-optation of local leaders and personalities as well as the local administration.

A number of interviewees allege intimidation, including arrests and interrogation of local community members and leaders, as tactics routinely used by the NRT security personnel. Furthermore, the NRT is involved not just in conservation but also in security, management of pastureland, and livestock marketing, which according to the local communities, gives it a level of control over the region that surpasses even that of the Kenyan government. The NRT claims that these activities support communities, development projects, and help build sustainable economies, but its role is criticized by local communities and leaders.

In recent years, hundreds of locals have held protests and signed petitions against the presence of the NRT. The Turkana County Government expelled the NRT from Turkana in 2016; Isiolo’s Borana Council of Elders (BCE) and communities in Isiolo County and in Chari Ward in the Biliqo Bulesa Conservancy continue to challenge the NRT. In January 2021, the community of Gafarsa protested the NRT’s expansion into the Gafarsa rangelands of Garbatulla sub-county. And in April 2021, the Samburu Council of Elders Association, a registered institution representing the Samburu Community in four counties (Isiolo, Laikipia, Marsabit and Samburu), wrote to international NGOs and donors asking them to cease further funding and to audit the NRT’s donor-funded programmes.

A number of interviewees allege intimidation, including arrests and interrogation of local community members and leaders, as tactics routinely used by the NRT security personnel.

At the time of the writing of the report, the Oakland Institute reported that protests against the NRT were growing across the region. The organization works closely with the KWS, a state corporation under the Ministry of Wildlife and Tourism whose mandate is to conserve and manage wildlife in Kenya. In July 2018, Tourism and Wildlife Cabinet Secretary Najib Balala, appointed Ian Craig and Jochen Zeitz to the KWS Board of Trustees. The inclusion of Zeitz and Craig, who actively lobby for the privatization of wildlife reserves, has been met with consternation by local environmentalists. In the case of the NRT, the relationship is mutually beneficial – several high-ranking members of the KWS have served on the NRT’s Board of Trustees.

Both the NRT and the KWS receive substantial funding from donors such as USAID, the European Union, and other Western agencies, and champion corporate partnerships in conservation. The KWS and the NRT also partner with some of the largest environmental NGOs, including The Nature Conservancy (TNC), whose corporate associates have included major polluters and firms known for their negative human rights and environmental records, such as Shell, Ford, BP, and Monsanto among others. In turn, TNC’s Regional Managing Director for Africa, Matt Brown, enjoys a seat at the table of the NRT’s Board of Directors.

Stealth Game also reveals how the NRT has allegedly participated in the exploitation of fossil fuels in Kenya. In 2015, the NRT formed a five-year, US$12 million agreement with two oil companies active in the country – British Tullow Oil and Canadian Africa Oil Corp – to establish and operate six community conservancies in Turkana and West Pokot Counties.

The NRT’s stated goal was to “help communities to understand and benefit” from the “commercialisation of oil resources”. Local communities allege that it put a positive spin on the activities of these companies to mask concerns and outstanding questions over their environmental and human rights records.

The NRT, in collaboration with big environmental organizations, epitomizes a Western-led approach to conservation that creates a profitable business but marginalizes local communities who have lived on these lands for centuries.

Despite its claims to the contrary, the NRT is yet another example of how fortress conservation, under the guise of “community-based conservation”, is dispossessing the very pastoralist communities it claims to be helping – destroying their traditional grazing patterns, their autonomy, and their lives.

The  Constitution of Kenyan  2010 and the 2016 Community Land Act recognize community land as a category of land holding and pastoralism as a legitimate livelihood system. The Act enables communities to legally register, own, and manage their communal lands. For the first three years, however, not a single community in Kenya was able to apply to have their land rights legally recognized. On 24 July 2019, over 50 representatives from 11 communities in Isiolo, Kajiado, Laikipia, Tana River, and Turkana counties were the first to attempt to register their land with the government on the basis of the Community Land Act. The communities were promised by the Ministry of Land that their applications would be processed within four months. In late 2020, the Ministry of Lands registered the land titles of II Ngwesi and Musul communities in Laikipia.

The others are still waiting to have their land registered. In October 2020, the Lands Cabinet Secretary was reported saying that only 12 counties have submitted inventories of their respective unregistered community lands in readiness for the registration process as enshrined in the law.

Community members interviewed by the Oakland Institute in the course of its research repeatedly asked for justice after years of being ignored by the Kenyan government and by the police when reporting human rights abuses and even killings of family members. The findings reported in Stealth Game require an independent investigation into the land-related grievances around all of the NRT’s community conservancies, the allegations of involvement of the NRT’s rapid response units in inter-ethnic conflict, as well as the alleged abuses and extrajudicial killings.

Pastoralists have been the custodians of wildlife for centuries – long before any NGO or conservation professionals came along. While this report focuses on the plight of the Indigenous communities in Northern Kenya, it is a reality that is all too familiar to indigenous communities the world over. In far too many places, national governments, private corporations, and large conservation groups collude in the name of conservation, not just to force Indigenous groups off their land, but to force them out of existence altogether.

Pastoralists have been the custodians of wildlife for centuries – long before any NGO or conservation professionals came along.

The latest threat comes from the so-called “30×30 initiative”, a plan under the UN’s Convention on Biological Diversity that calls for 30 per cent of the planet to be placed in protected areas – or for other effective area-based conservation measures (OECMs) –  by 2030.

The Oakland Institute’s report, Stealth Game, makes it clear that fortress conservation must be replaced by Indigenous-led conservation efforts in order to preserve the remaining biodiversity of the planet while respecting the interests, rights, and dignity of the local communities.

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Politics

Nashulai – A Community Conservancy With a Difference

Before Nashulai, Maasai communities around the Mara triangle were selling off their rights to live and work on their land, becoming “conservation refugees”.

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Nashulai – A Community Conservancy With a Difference
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The Sekenani River underwent a mammoth cleanup in May 2020, undertaken by over 100 women living in the Nashulai Conservancy area. Ten of the 18 kilometres of fresh water were cleaned of plastic waste, clothing, organic material and other rubbish that presented a real threat to the health of this life source for the community and wildlife. The river forms part of the Mara Basin and goes on to flow into Lake Victoria, which in turn feeds the River Nile.

The initiative was spearheaded by the Nashulai Conservancy — the first community-owned conservancy in the Maasai Mara that was founded in 2015 — which also provided a daily stipend to all participants and introduced them to better waste management and regeneration practices. After the cleanup, bamboo trees were planted along the banks of the river to curb soil erosion.

You could call it a classic case of “nature healing” that only the forced stillness caused by a global pandemic could bring about. Livelihoods dependent on tourism and raising cattle had all but come to a standstill and people now had the time to ponder how unpredictable life can be.

“I worry that when tourism picks up again many people will forget about all the conservation efforts of the past year,” says project officer Evelyn Kamau. “That’s why we put a focus on working with the youth in the community on the various projects and education. They’ll be the key to continuation.”

Continuation in the broader sense is what Nashulai and several other community-focused projects in Kenya are working towards — a shift away from conservation practices that push indigenous people further and further out of their homelands for profit in the name of protecting and celebrating the very nature for which these communities have provided stewardship over generations.

A reckoning

Given the past year’s global and regional conversations about racial injustice, and the pandemic that has left tourism everywhere on its knees, ordinary people in countries like Kenya have had the chance to learn, to speak out and to act on changes.

Players in the tourism industry in the country that have in the past privileged foreign visitors over Kenyans have been challenged. In mid-2020, a poorly worded social media post stating that a bucket-list boutique hotel in Nairobi was “now open to Kenyans” set off a backlash from fed-up Kenyans online.

The post referred to the easing of COVID-19 regulations that allowed the hotel to re-open to anyone already in the country. Although the hotel tried to undertake damage control, the harm was already done and the wounds reopened. Kenyans recounted stories of discrimination experienced at this particular hotel including multiple instances of the booking office responding to enquiries from Kenyan guests that rooms were fully booked, only for their European or American companions to call minutes later and miraculously find there were in fact vacancies. Many observed how rare it was to see non-white faces in the marketing of certain establishments, except in service roles.

Another conversation that has gained traction is the question of who is really benefiting from the conservation business and why the beneficiaries are generally not the local communities.

Kenyan conservationist and author Dr Mordecai Ogada has been vocal about this issue, both in his work and on social media, frequently calling out institutions and individuals who perpetuate the profit-driven system that has proven to be detrimental to local communities. In The Big Conservation Lie, his searing 2016 book co-authored with conservation journalist John Mbaria, Ogada observes, “The importance of wildlife to Kenya and the communities here has been reduced to the dollar value that foreign tourists will pay to see it.” Ogada details the use of coercion tactics to push communities to divide up or vacate their lands and abandon their identities and lifestyles for little more than donor subsidies that are not always paid in full or within the agreed time.

A colonial hangover

It is important to note that these attitudes, organizations and by extension the structure of safari tourism, did not spring up out of nowhere. At the origin of wildlife safaris on the savannahs of East Africa were the colonial-era hunting parties organised for European aristocracy and royalty and the odd American president or Hollywood actor.

Theodore Roosevelt’s year-long hunting expedition in 1909 resulted in over 500 animals being shot by his party in Kenya, the Democratic Republic of Congo and Sudan, many of which were taken back to be displayed at the Smithsonian Institute and in various other natural history museums across the US. Roosevelt later recounted his experiences in a book and a series of lectures, not without mentioning the “savage” native people he had encountered and expressing support for the European colonization project throughout Africa.

Much of this private entertaining was made possible through “gifts” of large parcels of Kenyan land by the colonial power to high-ranking military officials for their service in the other British colonies, without much regard as to the ancestral ownership of the confiscated lands.

At the origin of wildlife safaris on the savannahs of East Africa were the colonial-era hunting parties organised for European aristocracy and royalty.

On the foundation of national parks in the country by the colonial government in the 1940s, Ogada points out the similarities with the Yellowstone National Park, “which was created by violence and disenfranchisement, but is still used as a template for fortress conservation over a century later.” In the case of Kenya, just add trophy hunting to the original model.

Today, when it isn’t the descendants of those settlers who own and run the many private nature reserves in the country, it is a party with much economic or political power tying local communities down with unfair leases and sectioning them off from their ancestral land, harsh penalties being applied when they graze their cattle on the confiscated land.

This history must be acknowledged and the facts recognised so that the real work of establishing a sustainable future for the affected communities can begin. A future that does not disenfranchise entire communities and exclude them or leave their economies dangerously dependent on tourism.

The work it will take to achieve this in both the conservation and the wider travel industry involves everyone, from the service providers to the media to the very people deciding where and how to spend their tourism money and their time.

Here’s who’s doing the work

There are many who are leading initiatives that place local communities at the centre of their efforts to curb environmental degradation and to secure a future in which these communities are not excluded. Some, like Dr Ogada, spread the word about the holes in the model adopted by the global conservation industry. Others are training and educating tourism businesses in sustainable practices.

There are many who are leading initiatives that place local communities at the centre of their efforts to curb environmental degradation.

The Sustainable Travel and Tourism Agenda, or STTA, is a leading Kenyan-owned consultancy that works with tourism businesses and associations to provide training and strategies for sustainability in the sector in East Africa and beyond. Team leader Judy Kepher Gona expresses her optimism in the organization’s position as the local experts in the field, evidenced by the industry players’ uptake of the STTA’s training programmes and services to learn how best to manage their tourism businesses responsibly.

Gona notes, “Today there are almost 100 community-owned private conservancies in Kenya which has increased the inclusion of communities in conservation and in tourism” — which is a step in the right direction.

The community conservancy

Back to Nashulai, a strong example of a community-owned conservancy. Director and co-founder Nelson Ole Reiya who grew up in the area began to notice the rate at which Maasai communities around the Mara triangle were selling or leasing off their land and often their rights to live and work on it as they did before, becoming what he refers to as “conservation refugees”.

In 2016, Ole Reiya set out to bring together his community in an effort to eliminate poverty, regenerate the ecosystems and preserve the indigenous culture of the Maasai by employing a commons model on the 5,000 acres on which the conservancy sits. Families here could have sold their ancestral land and moved away, but they have instead come together and in a few short years have done away with the fencing separating their homesteads from the open savannah. They keep smaller herds of indigenous cattle and they have seen the return of wildlife such as zebras, giraffes and wildebeest to this part of their ancient migratory route. Elephants have returned to an old elephant nursery site.

In contrast to many other nature reserves and conservancies that offer employment to the locals as hotel staff, safari guides or dancers and singers, Nashulai’s way of empowering the community goes further to diversify the economy by providing skills and education to the residents, as well as preserving the culture by passing on knowledge about environmental awareness. This can be seen in the bee-keeping project that is producing honey for sale, the kitchen gardens outside the family homes, a ranger training programme and even a storytelling project to record and preserve all the knowledge and history passed down by the elders.

They keep smaller herds of indigenous cattle and they have seen the return of wildlife such as zebras, giraffes and wildebeest to this part of their ancient migratory route.

The conservancy only hires people from within the community for its various projects, and all plans must be submitted to a community liaison officer for discussion and a vote before any work can begin.

Tourism activities within the conservancy such as stays at Oldarpoi (the conservancy’s first tented camp; more are planned), game drives and day visits to the conservation and community projects are still an important part of the story. The revenue generated by tourists and the awareness created regarding this model of conservation are key in securing Nashulai’s future. Volunteer travellers are even welcomed to participate in the less technical projects such as tree planting and river clean-ups.

Expressing his hopes for a paradigm shift in the tourism industry, Ole Reiya stresses, “I would encourage visitors to go beyond the superficial and experience the nuances of a people beyond being seen as artefacts and naked children to be photographed, [but] rather as communities whose connection to the land and wildlife has been key to their survival over time.”

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Battery Arms Race: Global Capital and the Scramble for Cobalt in the Congo

In the context of the climate emergency and the need for renewable energy sources, competition over the supply of cobalt is growing. This competition is most intense in the Democratic Republic of the Congo. Nick Bernards argues that the scramble for cobalt is a capitalist scramble, and that there can be no ‘just’ transition without overthrowing capitalism on a global scale.

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Battery Arms Race: Global Capital and the Scramble for Cobalt in the Congo
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With growing attention to climate breakdown and the need for expanded use of renewable energy sources, the mineral resources needed to make batteries are emerging as a key site of conflict. In this context, cobalt – traditionally mined as a by-product of copper and nickel – has become a subject of major interest in its own right.

Competition over supplies of cobalt is intensifying. Some reports suggest that demand for cobalt is likely to exceed known reserves if projected shifts to renewable energy sources are realized. Much of this competition is playing out in the Democratic Republic of the Congo (DRC). The south-eastern regions of the DRC hold about half of proven global cobalt reserves, and account for an even higher proportion of global cobalt production (roughly 70 percent) because known reserves in the DRC are relatively shallow and easier to extract.

Recent high profile articles in outlets including the New York Times and the Guardian have highlighted a growing ‘battery arms race’ supposedly playing out between the West (mostly the US) and China over battery metals, especially cobalt.

These pieces suggest, with some alarm, that China is ‘winning’ this race. They highlight how Chinese dominance in battery supply chains might inhibit energy transitions in the West. They also link growing Chinese mining operations to a range of labour and environmental abuses in the DRC, where the vast majority of the world’s available cobalt reserves are located.

Both articles are right that the hazards and costs of the cobalt boom have been disproportionately borne by Congolese people and landscapes, while few of the benefits have reached them. But by subsuming these problems into narratives of geopolitical competition between the US and China and zooming in on the supposedly pernicious effects of Chinese-owned operations in particular, the ‘arms race’ narrative ultimately obscures more than it reveals.

There is unquestionably a scramble for cobalt going on. It is centered in the DRC but spans much of the globe, working through tangled transnational networks of production and finance that link mines in the South-Eastern DRC to refiners and battery manufacturers scattered across China’s industrializing cities, to financiers in London, Toronto, and Hong Kong, to vast transnational corporations ranging from mineral rentiers (Glencore), to automotive companies (Volkswagen, Ford), to electronics and tech firms (Apple). This loose network is governed primarily through an increasingly amorphous and uneven patchwork of public and private ‘sustainability’ standards. And, it plays out against the backdrop of both long-running depredations of imperialism and the more recent devastation of structural adjustment.

In a word, the scramble for cobalt is a thoroughly capitalist scramble.

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Chinese firms do unquestionably play a major role in global battery production in general and in cobalt extraction and refining in particular. Roughly 50 percent of global cobalt refining now takes place in China. The considerable majority of DRC cobalt exports do go to China, and Chinese firms have expanded interests in mining and trading ventures in the DRC.

However, although the Chinese state has certainly fostered the development of cobalt and other battery minerals, there is as much a scramble for control over cobalt going on within China as between China and the ‘west’. There has, notably, been a wave of concentration and consolidation among Chinese cobalt refiners since about 2010. The Chinese firms operating in the DRC are capitalist firms competing with each other in important ways. They often have radically different business models. Jinchuan Group Co. Ltd and China Molybdenum, for instance, are Hong Kong Stock Exchange-listed firms with ownership shares in scattered global refining and mining operations. Jinchuan’s major mine holdings in the DRC were acquired from South African miner Metorex in 2012; China Molybdenum recently acquired the DRC mines owned by US-based Freeport-McMoRan (as the New York Times article linked above notes with concern). A significant portion of both Jinchuan Group and China Molybdenum’s revenues, though, come from speculative metals trading rather than from production. Yantai Cash, on the other hand, is a specialized refiner which does not own mining operations. Yantai is likely the destination for a good deal of ‘artisanal’ mined cobalt via an elaborate network of traders and brokers.

These large Chinese firms also are thoroughly plugged in to global networks of battery production ultimately destined, in many cases, for widely known consumer brands. They are also able to take advantage of links to global marketing and financing operations. The four largest Chinese refiners, for instance, are all listed brands on the London Metal Exchange (LME).

In the midst of increased concentration at the refining stage and concerns over supplies, several major end users including Apple, Volkswagen, and BMW have sought to establish long-term contracts directly with mining operations since early 2018. Tesla signed a major agreement with Glencore to supply cobalt for its new battery ‘gigafactories’ in 2020. Not unrelatedly, they have also developed integrated supply chain tracing systems, often dressed up in the language of ‘sustainability’ and transparency. One notable example is the Responsible Sourcing Blockchain Initiative (RSBI). This initiative between the blockchain division of tech giant IBM, supply chain audit firm RCS Global, and several mining houses, mineral traders, and automotive end users of battery materials including Ford, Volvo, Volkswagen Group, and Fiat-Chrysler Automotive Group was announced in 2019. RSBI conducted a pilot test tracing 1.5 tons of Congolese cobalt across three different continents over five months of refinement.

Major end users including automotive and electronics brands have, in short, developed increasingly direct contacts extending across the whole battery production network.

There are also a range of financial actors trying to get in on the scramble (though, as both Jinchuan and China Molybdenum demonstrate, the line between ‘productive’ and ‘financial’ capital here can be blurry). Since 2010, benchmark cobalt prices are set through speculative trading on the LME. A number of specialized trading funds have been established in the last five years, seeking to profit from volatile prices for cobalt. One of the largest global stockpiles of cobalt in 2017, for instance, was held by Cobalt 27, a Canadian firm established expressly to buy and hold physical cobalt stocks. Cobalt 27 raised CAD 200 million through a public listing on the Toronto Stock Exchange in June of 2017, and subsequently purchased 2160.9 metric tons of cobalt held in LME warehouses. There are also a growing number of exchange traded funds (ETF) targeting cobalt. Most of these ETFs seek ‘exposure’ to cobalt and battery components more generally, for instance, through holding shares in mining houses or what are called ‘royalty bearing interests’ in specific mining operations rather than trading in physical cobalt or futures. Indeed, by mid-2019, Cobalt-27 was forced to sell off its cobalt stockpile at a loss. It was subsequently bought out by its largest shareholder (a Swiss-registered investment firm) and restructured into ‘Conic’, an investment fund holding a portfolio of royalty-bearing interests in battery metals operations rather than physical metals.

Or, to put it another way, there is as much competition going on within ‘China’ and the ‘West’ between different firms to establish control over limited supplies of cobalt, and to capture a share of the profits, as between China and the ‘West’ as unitary entities.

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Thus far, workers and communities in the Congolese Copperbelt have suffered the consequences of this scramble. They have seen few of the benefits. Indeed, this is reflective of much longer-run processes, documented in ROAPE, wherein local capital formation and local development in Congolese mining have been systematically repressed on behalf of transnational capital for decades.

The current boom takes place against the backdrop of the collapse, and subsequent privatization, of the copper mining industry in the 1990s and 2000s. In 1988, state-owned copper mining firm Gécamines produced roughly 450 000 tons of copper, and employed 30 000 people, by 2003, production had fallen to 8 000 tons and workers were owed up to 36 months of back pay. As part of the restructuring and privatization of the company, more than 10 000 workers were offered severance payments financed by the World Bank, the company was privatized, and mining rights were increasingly marketized. By most measures, mining communities in the Congolese Copperbelt are marked by widespread poverty. A 2017 survey found mean and median monthly household incomes of $USD 34.50 and $USD 14, respectively, in the region.

In the context of widespread dispossession, the DRC’s relatively shallow cobalt deposits have been an important source of livelihood activities. Estimates based on survey research suggest that roughly 60 percent of households in the region derived some income from mining, of which 90 percent worked in some form of artisanal mining. Recent research has linked the rise of industrial mining installations owned by multinational conglomerates to deepening inequality, driven in no small part by those firms’ preference for expatriate workers in higher paid roles. Where Congolese workers are employed, this is often through abusive systems of outsourcing through labour brokers.

Cobalt mining has also been linked to substantial forms of social and ecological degradation in surrounding areas, including significant health risks from breathing dust (not only to miners but also to local communities), ecological disruption and pollution from acid, dust, and tailings, and violent displacement of local communities.

The limited benefits and high costs of the cobalt boom for local people in the Congolese copperbelt, in short, are linked to conditions of widespread dispossession predating the arrival of Chinese firms and are certainly not limited to Chinese firms.

To be clear, none of this is to deny that Chinese firms have been implicated in abuses of labour rights and ecologically destructive practices in the DRC, nor that the Chinese state has clearly made strategic priorities of cobalt mining, refining, and battery manufacturing. It does not excuse the very real abuses linked to Chinese firms that European-owned ones have done many of the same things. Nor does the fact that those Chinese firms are often ultimately vendors to major US and European auto and electronic brands.

However, all of this does suggest that any diagnosis of the developmental ills, violence, ecological damage and labour abuses surrounding cobalt in the DRC that focuses specifically on the character of Chinese firms or on inter-state competition is limited at best. It gets Glencore, Apple, Tesla, and myriad financial speculators, to say nothing of capitalist relations of production generally, off the hook.

If we want to get to grips with the unfolding scramble for cobalt and its consequences for the people in the south-east DRC, we need to keep in view how the present-day scramble reflects wider patterns of uneven development under capitalist relations of production.

We should note that such narratives of a ‘new scramble for Africa’ prompted by a rapacious Chinese appetite for natural resources are not new. As Alison Ayers argued nearly a decade ago of narratives about the role of China in a ‘new scramble for Africa’, a focus on Chinese abuses means that ‘the West’s relations with Africa are construed as essentially beneficent, in contrast to the putatively opportunistic, exploitative and deleterious role of the emerging powers, thereby obfuscating the West’s ongoing neocolonial relationship with Africa’. Likewise, such accounts neglect ‘profound changes in the global political economy within which the “new scramble for Africa” is to be more adequately located’. These interventions are profoundly political, providing important forms of ideological cover for both neoliberal capitalism and for longer-run structures of imperialism.

In short, the barrier to a just transition to sustainable energy sources is not a unitary ‘China’ bent on the domination of emerging industries as a means to global hegemony. It is capitalism. Or, more precisely, it is the fact that responses to the climate crisis have thus far worked through and exacerbated the contradictions of existing imperialism and capitalist relations of production. The scramble for cobalt is a capitalist scramble, and one of many signs that there can be no ‘just’ transition without overturning capitalism and imperialism on a global scale.

This article was published in the Review of African political Economy (ROAPE).

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