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The Indomitable Yash Pal Ghai – Part 4: The Defender of Justice

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We still have a hugely corrupt and dangerous elite that will do anything to continue looting and raping this country, but Yash wrote this Constitution so they can’t mess with certain things.

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The Indomitable Yash Pal Ghai: The Defender of Justice
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Over the course of his career, Professor Yash Pal Ghai has had the opportunity to act as a visiting professor in a number of countries, teaching law across Australia, the United Kingdom, the United States, India, Singapore, South Africa, Canada, Fiji, and Italy. It was during one such visiting appointment in 2000, at the University of Wisconsin, Madison, that Ghai received one of the most important calls of his career.

When the phone rang, Ghai was sitting with Bill Whitford, his longtime friend, in Whitford’s home in Madison. It was Amos Wako, Ghai’s former student, then the Attorney General of Kenya. “Come home,” Wako said to a stunned Ghai. His initial reaction was disbelief. “Are you really serious?” he asked Wako. “Yes,” Wako explained, “Everyone wants you to come home, and President Moi wants you to write the new constitution.”

Ghai’s initial reaction was, unsurprisingly, one of hesitation. “The government had never shown any interest in me, and I still felt bitter about the way I had been treated.” His hesitation was compounded by a feeling of detachment. Although he had been home sporadically in the intervening years, it was never for more than a few days at a time; he did not have a strong sense of what was happening politically. “I said no,” Ghai says. “I didn’t know what was happening, my experience had been bad and I didn’t know how sincere they were.” Indeed, Ghai had missed the years of political turmoil that preceded this moment. He had been away while the Kenyan executive gradually consolidated power and eroded democratic rights; he had missed the decades of struggle for constitutional reform.

Over the next few days, however, he consulted with old friends, including Pheroze Nowrojee and Willy Mutunga, who advised him to visit and survey the landscape before making a final decision. “Then one day my secretary rings from Hong Kong and says, ‘This man who rang has called again and wants to see you. Can I give him your details in America?’ The next day, Wako arrived in Wisconsin. He spent time with me and said things had changed and that I should give it a chance.” Cottrell Ghai also recalls it clearly. “Wako actually went to Madison. It was most extraordinary.”

As Ghai considered the offer, many of his contacts in Nairobi told him not to accept. The country was deeply divided, and the thinking around constitutional reform was concentrated in two opposing camps, one led by the Moi government and the other led by a coalition of religious leaders and civil society organisations, known as Ufungamano. Many in civil society did not trust that any real change could come through government-led efforts, and they believed that the focus should remain on deposing Moi from power. Mutunga was relatively alone among Ghai’s closest friends in his support. “He had written constitutions all over the place in the Commonwealth. He was honoured by the Queen for it. As a patriot, writing one for Kenya would be a great accolade. He had his doubts, but as a human rights activist we urged him to take up the task, notwithstanding the challenges.”

The Indomitable Yash Pal Ghai: The Father of the Constitution

Read also: The Indomitable Yash Pal Ghai: The Father of the Constitution

After some initial thought, Ghai agreed to visit Kenya and survey the landscape without necessarily committing. First, however, he had to return to Hong Kong, which he did via Papua New Guinea, where he had some work. Ghai was relatively cut off for the duration of his short assignment, but by the time he returned to Hong Kong, Wako had (falsely) announced that he had accepted the position, a move that would eventually come back to haunt Wako.

When Ghai made his first visit to Kenya in December 2000, it was a momentous occasion. Wako and Raila Odinga, who was at the time representing the Langata constituency in parliament, personally met and welcomed Ghai home. He used this initial visit to meet with key players and get the lay of the land, eventually deciding to take the position but only on his own terms. When he returned to Hong Kong, though, the University was unwilling to allow Ghai to accept the assignment. A few days after the refusal, Ghai received a call from the Chancellor. “He said he hadn’t been able to sleep,” Ghai remembers. “He had raised this with the Council and they said they felt a bit bad. After all, it was a chance for me to go back to my country. So they said, ‘Ok, but this is the last time you can go.’ We felt it wasn’t right for Jill to also leave so she stayed back.”

Whitford remembers Ghai’s hesitation. “He didn’t need that job. He just felt this tremendous loyalty to Kenya. He always travelled on a Kenyan passport even though he could’ve gotten a British passport. That was a real pain in the ass, but he did it. It was just important to him to play that role. It was about the chance to do something for his country.” Mutunga agrees, saying, “Kenya remained his constant North.” It had been more than three decades since Ghai had been a young student, standing on the steps of Lancaster House, watching the Kenyan delegates arrive to negotiate an independence constitution. This was a chance for him to contribute to the next phase of that mission – to lend the wisdom he had gained through years of service to other countries to his own homeland.

When Ghai returned to Nairobi, now ready to begin work in earnest, he was under no illusions. Moi was under pressure. He wanted someone who would get it done and get it done quickly. “I told Moi I wasn’t ready to accept. I would only take it if all the key groups in the country were involved in this process. I didn’t want to come and talk to a few politicians. I made it clear that it had to be a very participatory process. I said, ‘If you are willing on that basis, I will consider it.’ ” Ghai told Moi he required two to three months to merge the Ufungamano and government groups and create one united constitutional process. Ghai then embarked on what many consider to be one of his crowning achievements, the process of bringing the two sides together. So committed was he to achieving unity that he refused to take the oath as Chair of the Constitution of Kenya Review Commission (CKRC) unless there was one, unified process.

In addition to the divisions between the government and Ufungamano, Ghai quickly found that he would also have to address divisions within the Ufungamano group itself. According to Zein Abubakar, who represented the Safina Party at Ufungamano and who also became a commissioner of the Constitution of Kenya Review Commission, a “radical” wing of the Ufungamano process saw Ghai as someone who undermined the revolutionary path. Indeed, a radical minority group remained opposed throughout, branding those who participated as “sell outs.” At the same time, Abubakar explains, it was understandable; the government had never kept its word in the past and the fear of betrayal was very real.

Ghai was aware of the divisions. “At that time,” he remembers, “civil society were very divided about my coming. They had already formed their own commission. They had already started going from town to town to talk about the constitution. I didn’t want to sabotage them.” Indeed, John Githongo, who was the head of Transparency International at the time, remembers being highly suspicious of Ghai. “I’ll be very honest. I was very concerned and completely opposed to him. I’ve never told him this, but we were very, very skeptical of a person brought by Amos Wako, even though the Ghai brothers had a sterling reputation as academics. Yash was bright and super-brained, but our attitude was that there’s no way he’s going to get our politics. He’s been away too long.” Abubakar agrees, explaining that Ghai – despite his international reputation – had no legitimate standing with local civil society and religious leaders.

His commitment to achieving unity greatly impressed skeptics in the Ufungamano group. Abubakar says, “One of the things we appreciated was his position that there can only be one process, which was principled. One of the things that bothered a number of leaders was that if you had two processes, apart from divisiveness, how would you implement the outcome of either one? The country was split 55-45 in our favour. It’s very difficult to have a constitutional order that is not supported by half the country. There was also potential for violence and reversal of some of the democratic gains that people had paid for and won by then. At a strategic level, we said that it is better to negotiate a unified process.”

Ghai’s style, based on an objective and open attitude, impressed key players. Abubakar remembers, “The first thing he did was to listen to various sections of society and the listening process allowed him to understand that this process was deeply dividing the nation. Based on those initial consultations and listening, he decided not to take the oath as Chair. That also helped build bridges with the religious sector and the other side, because he was seen as credible and as someone who is not showing any bias. He was willing to listen to everyone who had an opinion.” Githongo agrees, pointing to Ghai’s refusal to take the oath as one of the key factors in shifting the tide in his favour. “His credibility started very low with progressive forces. He was seen as Moi’s man, Wako’s man. I remember all of us sitting around, discussing. People said, ‘No, no. This is a hatchet man for Moi, a waste of time.’ But then he refused to take the oath. Yash’s credibility was first built on that – his unwillingness to take the oath until the two sides came together. It was a very slick move, very well executed. In fact, he doesn’t talk about it or show it but he is a very politically wily operator. After that, all of a sudden, people took him seriously.”

Ghai also made it clear that he was willing to walk away from the process if it did not live up to his standards. Unlike many others who had been competing for the position of Chair of what would be the review commission, Ghai had no personal ambition to win the position. Abubakar says, “He was willing to walk away and that was important in terms of people’s willingness to sit and talk.”

Finally, Ghai’s connections to all sides greatly facilitated communication and eventual cohesion. “He opened back channels to government and to opposition leaders,” Abubakar says. “I think the insistence then of both Ghai and Raila supporting Ghai is what reluctantly convinced Moi to agree to a common process. If it had been Ghai alone, it wouldn’t have happened. It had to be Ghai and Raila. Ghai then said if there is no willingness to unite the country in a process and make sure the process is credible, he was willing to walk away.”

After nearly five months of negotiations, Ghai achieved unity. The two sides came together, and now the real work began.

As Chair of the Constitution of Kenya Review Commission (CKRC), Ghai created and implemented a citizen-centred methodology based on his decades of experience. The CKRC set up local offices around the country, canvassing public views and educating Kenyan citizens about the process. The Commission also travelled extensively, in multiple rounds, to hold public hearings so that they could listen to what people wanted with regard to the key issues. It was important to Ghai to create a publicly-owned constitution, one that addressed people’s longstanding grievances and that offered equal empowerment and protection to all. He personally travelled to public hearings, further demonstrating his deep commitment to and investment in the work. Githongo says, “I was very impressed, and I grew to have a great fondness for him. He was not only giving intellectually. He believed deeply in the work.”

Yash Pal Ghai listening to views of a Kenyan at a CKRC event.

Indeed, the Ufungamano groups had already begun the process of canvassing public opinion, and Ghai was able to carry that initial momentum forward. “Many places were new to me,” Ghai remembers. “I had never been to so many places. In the beginning, it was not easy. My Swahili had deteriorated a lot, but I still enjoyed it and found it very interesting. I had never seen so many different Kenyans, different styles of dress and ways of life. I enjoyed getting people’s views, getting concrete feedback from the people.” Abubakar recalls Ghai’s personal touch on these journeys. “He has a willingness to learn from others, to talk to people, just ordinary people who flock around him. I had the occasion of him accompanying me to a number of public hearings. He has an ordinary touch with people. He has an ability to inspire people. He connects with young people, ordinary people, people from all different stations in life – from leaders all the way to people who don’t know where the next meal will come from. One time, we were driving to a hearing and he saw people walking on the side of the road. He said, ‘Stop the car and ask these people where they are going.’ They said they were going to the hearing. And then he asked for arrangements for them to be dropped there. And he’s in his element that way.”

The Commission was extremely successful, and by the end of the process, it had collected over 37,000 public submissions on a full range of issues. In its 2002 report to the country, the CKRC highlighted 13 main points from the people. Examples of these included a desire for a “decent life”, fair access to land, a request to have more control over decisions which affect daily life, leaders who meet a higher standard of intelligence and integrity, respectful police, gender equality, freedom of expression for minorities and accountable government. There was a clearly expressed demand to “bring government closer to us.” The CKRC was deeply moved by the public participation, commenting on how “humbling” it had been to see “people who, having so little, were most hospitable to the Commission teams, and [who were] prepared to raise their eyes from the daily struggle to participate with enthusiasm in the process of review.” Githongo calls this public consultation process the second pillar of Ghai’s credibility. “The process he defined and described helped people see that he was serious. He became a people’s hero.

The Indomitable Yash Pal Ghai: Years of Exile

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Ghai’s commitment to his work generated massive amounts of attention. Abubakar says he respects Ghai for his ability to remain “down to earth.” He says, “Prof. [Ghai] didn’t take big security. The only time that he took it was when the government insisted and that was periodic.” This was in sharp contrast to other commissioners, who insisted on 4-wheel drive cars and who even refused to share vehicles with Secretariat staff. Mutunga agrees, recalling, “They wanted him to drive a big car; he refused. Moi even announced that Yash was being too lax about security, and we all thought it meant he would be bumped off! One of the reasons why he became so popular was because of his humility.”

At the end of public review, the CKRC moved on to drafting, producing a draft constitution in September 2002. Ghai then broke his team into thematic groups, each responsible for refining and improving specific portions of the draft. He called in experts from around the world to assist and offer comparative knowledge. He also courted diplomats, many of whom were so impressed that they offered to help fund the process. “But I said, ‘no,’” remembers Ghai. “I wanted it to be a Kenyan process.” Three days before the debate on the draft was to begin, however, President Moi dissolved parliament. Since all MPs were part of the National Constitutional Conference, the body legally mandated to adopt the new Constitution, things could not proceed. In December 2002, Kenya held landmark elections. Moi, who had been in power for nearly a quarter of a century (24 years), finally stepped down, ceding power to the National Rainbow Coalition (NARC), headed by President Mwai Kibaki. One of NARC’s key campaign promises was the promulgation of a new constitution within the first 100 days in office. Once in office, Kibaki stalled. “When people talked about presidential and parliamentary systems, Kibaki used to say that we are opposed to an imperial presidency; we want a parliamentary system. Once he realised that he could be president, that all changed. There was a lot of this opportunism. Even Raila to a certain extent – once Raila realised he wouldn’t be president, he split away.” Indeed, speculation was rife that the aging Kibaki’s reluctance to move ahead with the Constitution was due, at least in part, to a provision that would prevent him from running for a second term.

In April 2003, four months after the elections, the process again got underway, this time at the Bomas of Kenya. Ghai remembers, “When we moved to Bomas, I told the people there that we are going to take over and we need six, seven months. This is going to be hundreds of people. I felt that people should have time to think about their own positions. The mood got better and better. People got to know each other. By the end, people who didn’t know each other had become good friends.” At the same time, however, there was increasing factionalisation amongst the delegates, each making decisions purely based on political self-interest. At one point, during a break in drafting, the government attempted to stop the process from continuing. “I don’t think I have ever seen him so apoplectic,” Githongo recalls with a smile. “Prof. started leading demos of delegates in the streets to demand entry into the Bomas, and that was against guys with guns and dogs,” recalls Abubakar.

Soon thereafter, Ghai was alerted that Kibaki was planning to take the CKRC to court and allege that the entire process was illegal. Upon hearing of the impending court case, Ghai moved quickly to finalise a draft. At this point, however, Ghai remembers that “the only people left in the constitution-making body were from Raila’s side. Others were told to boycott. Kibaki and the DP walked out ostentatiously at one point when they saw they wouldn’t get the vote they wanted.” Particularly contentious to the government were provisions for a parliamentary system and some aspects of devolution. He resolved to work hard to finish. “I had only ten or eleven days to finish and get an endorsement. We had to do so much so quickly, and that’s why some parts are not so good.” Kibaki succeeded in court, and the CKRC was prevented from passing its draft to the government. “That he was able to get the Bomas draft approved by the delegates before the reactionary forces disbanded the conference was a miracle,” says Mutunga.

Ghai returned to Hong Kong soon after finalising the Bomas draft. “I read in the papers that the High Court had declared the whole process and the constitution unconstitutional. I felt terrible. I think I issued a couple of strong articles saying that, based on the documents that started the process, we were legal. By that time, Kibaki had gotten enough support and bribed enough people. They dissolved parliament all together, and then there was nothing more for me to do.” Cottrell Ghai remembers the final push as particularly difficult. “They put huge pressure on the closing stages of the process. There was a sense of great satisfaction for having produced a document but he was disappointed.”

The government’s hijacking of the process became most clear at the end of the Bomas period, but Ghai faced enormous amounts of stress throughout the process. Cottrell Ghai remembers calling him every morning from Hong Kong, after reading the Kenyan papers online, to warn him about what he could expect that day.

Ghai had little say, for instance, regarding the team of commissioners he would lead, and it was clear that there were divisions. Some commissioners were little more than spies for the government side, sometimes purposely delaying progress, while others were more interested in using the opportunity for personal profit than for sincere constitutional reform. “After Yash had managed to unite the two sides, he found himself with a very difficult CKRC, riven with self-interest, corruption, people meeting with the president behind his back, people being paid off . . . which he had to mitigate on an ongoing basis,” says Githongo. Mistrust was so deeply embedded that Abubakar insisted on the verbatim recording of all meeting minutes. “It was the only protection against people who would change their views. Almost all our meetings were recorded verbatim with the exception of two to three of them, where it was so bad that people said to switch it off. Of course, that in itself was against what we had agreed.”

An early battle erupted over the Secretary of the Commission, who – according to both Abubakar and Ghai – was a severe alcoholic, incapable of discharging even the most basic of his duties. “The person was not fit for public office,” Abubakar remembers. When dismissal procedures started, however, Moi was against it, and he threatened to disband the entire CKRC. Ghai and others stood firm, making it clear that they were willing to walk away from the Commission if the Secretary was not dismissed. It worked. “It became so bad that when the other members realised that we were willing to disband, they backtracked and went to see Moi. They convinced him to give the Secretary a soft landing by appointing him to the Law Reform Commission,” Abubakar recalls.

Corruption and betrayal were significant issues, dogging Ghai throughout his time as head of the CKRC. Cottrell Ghai recalls this as a particular strain on Ghai. “Some of the commissioners were very nice, but others were lazy or corrupt. They were all a bit corrupt. That was all a big strain, constantly watching whether they were stealing. Yash would say, ‘I think I’m going to resign and then the next day, he would say, ‘It’s ok. I’ll carry on.’ The up and down was quite a strain.” Ghai agrees, attributing the onset of his diabetes to this period in his life.

Githongo also recalls Ghai’s stress and frustration. “Sometimes, he would rant and we would all sit and listen. And he would go on and on sometimes, talking about receipts and accounts, and then we would gently have to say, ‘Ok, let’s get back to the agenda.’ But he needed that outlet, that safe space to express himself.” Githongo explains that the kinds of problems he faced were new to him. “He is politically very savvy, but he had never functioned in a context where such avarice, corruption and greed were so blatant. It was even amongst people who were very respected legal scholars etc., and that seemed to really throw him. He was used to different types of problems.”

Abubakar remembers meetings in which members would try and build consensus around a certain issue. “Then you see a commissioner signal and leave the room. Then two or three people follow him. Then they would come back in and do a 180-degree turn on a position, or propose something that is inherently illegal. You could see from his facial expressions that he was angry, but there were few times when he would lose his temper. On a few occasions, he would just walk out of meetings.”

By the end, the process had taken a clear toll on Ghai. Recalls Githongo, “He has done some really difficult things. He has been in situations where guys would show up armed and he would have to negotiate with them to leave their AK-47s outside of the negotiation room. So he’s used to that, but this one is much more soul destroying. It’s avaricious, corrupt, deceitful and very money-oriented. That really threw him. He found himself interacting with some of the most respected law scholars, and he found himself completely stuck on issues like travel expenses. That took a toll. What was very clear to me is that Yash has not only put his whole mind and all his experience – which are both considerable – into this but he has put his whole heart into it. He would get very hurt by the betrayals, by the lies and by the realisation that he had been strung along.”

The Indomitable Yash Pal Ghai: The Hong Kong experience

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Ghai resigned in 2004, soon after returning to Hong Kong. Cottrell Ghai remembers being in Italy on vacation. “The internet was not that good. We had to use a dial-up connection, and after a lot of hassle he emailed his letter of resignation to the president from there.”

Despite all the challenges, Ghai does not regret accepting the job. “It meant a lot to me, especially because I had devoted a lot of my career to human rights.” He says that the chance to return home after having been “thrown out” was also significant. “In the long run, I feel it gave Kenya a new start. I don’t regret doing what I did. I met a lot of people, and I know so many more Kenyans than I would have otherwise known. It was really, really challenging, but I felt quite pleased in the end that I was able to bring some peace.”

There are still, however, elements that haunt him. “Our document was strongly parliamentary, and we were somewhat innovative about the role of the governor general in that context. I think people liked it. We were trying very hard to build a non-ethnic political system and many of those provisions are still in. I think a parliamentary system is better and more participatory; you have to be more careful as prime minister. Also, we hadn’t quite finished what we had wanted to do with devolution. I regret these two things very much indeed. The people who are now saying to change these elements are the ones who had not wanted it back then.”

In spite of the significant problems faced by Ghai and the CKRC, the Constitution of Kenya – finally promulgated in 2010 – is based largely on Ghai’s Bomas draft. For this reason, Ghai continues to be known as the “guru” and the “father” of the Constitution. One of his proudest achievements, and indeed one reason why the Constitution receives such widespread, international praise, is the Bill of Rights. “I am very proud of it,” Ghai says. “I think it’s a good document. It’s very people-oriented. There are a lot of methods through which they can take action, which they must be allowed to do. And I am particularly pleased about the Bill of Rights. If we are failing, it’s our fault. Our politicians have absolutely failed us, and now it’s up to us to solve it.”

Katiba Institute co-founder Waikwa Wanyoike agrees, describing the Bill of Rights as a personal reflection of Ghai’s thinking on human rights. Says Wanyoike, “He has a very strong connection to it. Even in terms of newer constitutions, I don’t think that we have any constitution that surpasses the Kenyan constitution, especially in terms of rights.” Wanyoike also credits Ghai for what he calls the uniquely “transformative” aspects of the Constitution. “What you get is an overthrow of the political order and the installation of a completely new political order which clearly spells out values and principles. That element of transformation is even more defining than any single chapter of the Constitution, and that was because of the design that he and the CKRC put in place, which was very, very participatory. It’s now very hard for the political class to try and trash what has been done.”

Mutunga agrees, especially with regard to the Bill of Rights. “Our Bill of Rights is the most modern in the world. It has borrowed from the progressive development of human rights from the world over . . . I am proud of it, too. In my writings I have called the jurisprudence envisioned by the Constitution ‘indigenous, rich, robust, progressive, decolonised, and de-imperialised.’ I see the constitution as rejecting and mediating the status quo that is unacceptable and unsustainable in its various provisions. If implemented, I have always argued, it could put the country in a social-democratic trajectory and act as a basis of further progressive social reform . . . if we have the political leadership committed to its implementation. It seems, however, that Kenyans as parents have given this ‘baby’ to a political leadership that cannot be trusted to grow and breathe life into it.”

Githongo also laments the nature of Kenya’s leaders, who he believes are incapable of implementing the Constitution with any sincerity. “On paper, our Bill of Rights is extremely progressive, but life is breathed into the Bill of Rights by leaders agreeing to be accountable and surprising their people by saying, ‘I can’t do this because it is wrong.’ Our guys make every effort to show that the Bill of Rights doesn’t apply to them. If you are poor, then you can die anytime; the Bill of Rights doesn’t apply to them. It hasn’t come to life for the majority of Kenyans.”

On the other hand, Githongo believes that Ghai’s work on the Constitution ensured that – despite everything – it continues to offer hope. He says, “We still have a hugely corrupt and dangerous elite that will do anything to continue looting and raping this country, but Yash wrote this Constitution so they can’t mess with certain things.”

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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

The Myth That Is Plastic Waste Recycling in Kenya

The quantities of recycled plastic in Kenya remain insignificant, but the long-term ecological cost of disposing plastic waste in the environment will be immeasurable.

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The Myth That Is Plastic Waste Recycling in Kenya
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One aspect of modern Kenyan urban living that takes getting used to are the regular, well-timed garbage collection days. Miss your day and you will have to keep the trash a week longer awaiting the next collection date when the beaten-up lorries full of garbage labour through city estates in mid-morning collecting the waste produced by city dwellers.

Should you find yourself in the central business district at around midnight, you may run into these rickety trucks collecting food waste from city restaurants, discarded cartons from offices, and empty drink cans from the city’s clubs that they ferry to the few landfills scattered around the city.

The barely roadworthy trucks are part of the more than 205 lorries working at the city’s many collection points in a hectic bid to keep Nairobi County hygienic. So profitable is the waste collection business that private contractors and cartels have infiltrated the trade.

In Nairobi alone, the county’s garbage collection service is complemented by nearly 150 private sector waste operators who also serve this city of over 4 million residents. Private investments have done a lot but not nearly enough to address the garbage crisis that plagues Kenya’s towns and cities.

Kenya’s urban households produce the bulk of the country’s solid waste, including a major share of the estimated 24 million plastic bags that are used and discarded every month. A significant portion of the plastic waste ends up in dumpsites alongside scrap metal, paper materials, glassware, and medical and toxic waste. Plastic waste constitutes a significant portion of this trash, and poses the biggest challenge to solid waste management in Kenya.

According to the International Union for Conservation of Nature (IUCN), 73 per cent of all plastic waste generated in Kenya goes uncollected. The National Environment Management Authority (NEMA) reports that between 2 and 8 per cent of the plastic waste is recycled while the rest is disposed of at dumpsites such as Dandora and Ruai in Nairobi, Kachok in Kisumu, and Kibarani at the coast. In Mombasa alone, some 3.7 kilogrammes of per capita plastic waste end up in the ocean, contributing to the 1,300 billion pieces of plastic that find their way into the Indian Ocean every year. Experts estimate that there will be more plastic than fish species in all the oceans globally by 2025.

Kenya banned plastic carrier bags in 2017, at the same time that the United Nations Environment Programme was launching the Clean Seas campaign to reduce marine litter. From June 2020, visitors entering game reserves, forests, beaches, protected areas and conservancies are no longer allowed to carry plastic water bottles, cups, cutlery, plates, drinking straws, and packaging within the protected areas.

On the production end, there are industry-led plastics initiatives such as the Kenya Plastic Action Plan and the creation of the Kenya Extended Producer Responsibility Organization (KEPRO), whose mandate is to ensure that plastics are mapped, ferried, sorted, and where possible, put back into circulation. Given the low garbage collection rates, and the even lower sorting rates, recycling has been misleadingly touted as the key to managing plastic waste.

For context, the cumulative global plastic waste produced since 1950 is estimated at 8.3 billion tonnes — half of which was produced in the last 13 years alone — at an average of 300 million tonnes annually.

In Kenya recycling doesn’t work    

Recycling has its limitations. Despite being cited as a major solution to the problem of plastic waste, a solution that has been taken up by 34 of the 54 African states,  numerous reports have proven that it costs more to recycle than to dispose of the waste. That of course begs the question: costlier for whom?

While disposing plastic is cheaper than recycling, the long-term ecological cost to Kenyans living close to landfills and downstream is provably much higher. Kenyan plastic manufacturers are in the business for profit and, for the most part, recycling does not offer them value for money.

According to Kenya’s PET plastic industry’s joint self-regulation effort, once plastic waste enters the recycling conveyer, it is assembled and packed into bales that are sold as industrial goods and sent to the dozens of recycling plants around the country to be sorted by quality, industrial variety, texture and colour. The waste is then shredded, sanitized, melted down, and moulded into smaller, smoother plastic pellets.

These pellets, known as nurdles, are bought and once again melted down and fashioned into other plastic products, ready for re-use by industries. This form of recycling is the optimal pathway for plastic waste, but it rarely is feasible. Recycling plastic waste is a lengthy and costly process that is avoided by many plastic producers.

To put it in context, less than 45 per cent of Nairobi’s overall waste is recycled, most of it undergoing what is referred to as down-cycling, open recycling, or cascaded recycling.

Cascaded recycling refers to the process of using recycled plastic waste to make an item of a lower quality than the original product. These items typically have reduced recycling potential, which destines them for the landfill after use. Models of cascaded recycling in Kenya’s informal settlements therefore turn the triangular recycling loop into a one-way direction to an incinerator or landfill.

Recycling plastic waste is a lengthy and costly process that is avoided by many plastic producers.

Global research led by plastics expert Dr Roland Geyer claims that only 9 per cent of all the plastic waste ever produced has been recycled. Kenya’s cascaded recycling rates are harder to quantify but an authoritative plastics report states that only 14 per cent of global plastic packaging waste was collected for recycling in 2013. Only 8 per cent of that amount was down-cycled, of which 4 per cent atrophied during the process while only 2 per cent was recycled into a product of equal or higher value.

Even locally, recycling plastic is a costly process and sorting it, many experts assert, is unfeasible, which means that there is no way out when dealing with plastic waste other than banning the production and use of plastics.

Kenya and the global dumping of plastic waste 

The non-feasibility of recycling plastic waste has been an open secret among plastics industry insiders since as far back as the 1970s. As early as 1973, senior executives of plastics multinationals had already ruled out plastic waste recycling on a large scale. Instead, these multinationals paid for misleading big-budget advertisements extolling the virtues of plastic products, and lying about the ease with which plastics could be recycled for other uses, while also placing the responsibility of recycling or disposing plastic waste on the end-user. However, the mounds of plastic waste that are now an eyesore in many urban areas belie the claim that recycling is the solution.

Old industry memos and library archives show that as far back as the mid-1980s Kenyan scholars like Kamau Hezron Mwangi had begun to call for a serious look into the efficacy of recycling  while, in the mid-1990s, researcher Dr J.N. Muthotho and his team demanded for greater research across specific plastic products supply chains. The growing concerns linked to plastic products, their quality, disposability and the economics of the industry paint an image of an industry that has always been well aware of the problems caused by plastic waste but has lacked the motivation to address the issue. In an increasingly consumerist society, plastic has continued to be affordable, readily available, cheap, convenient, and yet very difficult to dispose of.

Ending Kenya’s relationship with plastic

A radical behavioural shift by producers, packaging firms and end-users is required in order to rid the Kenyan environment of plastic pollution. The ban on plastic carrier bags has had an estimated 80 per cent efficacy rate. Industry insiders including manufacturers and distributors now say that the ban should be extended to disposable tableware, plastic straws, plates and cutlery.

The mounds of plastic waste that are now an eyesore in many urban areas belie the claim that recycling is the solution.

This, the stakeholders say, will reduce the amount of single-use plastic in landfills, reduce waste, minimize animal deaths, improve human safety, and save our water systems. However, a concerted effort is needed to ban single-use plastic bottles, plastic straws, and plastic packaging and replace them with organic, biodegradable plastic (BDP) alternatives.

Most BDP products in the Kenyan market are made of thermoplastic starch that uses a polyester similar in material strength to plastic. Currently there is only one manufacturer in the country. However, researchers are coming closer to finding organic alternatives to plastics.

Reimagining a post-plastic country

In Kenya, the stakeholders have to begin to reimagine new models of ridding the country of plastic waste in the everyday life and habits of Kenyan citizens. Nairobi and its environs alone is estimated to produce between 2,400 and 3,000 tonnes of general waste every single day, an estimated 20 per cent of which is plastic waste.

“People don’t want to stop using plastic. It is cheap and easy to use so I understand why people like [it]”, says Kinuthia, an unlicensed collector in Uthiru.

A consumer culture that creates an ever-increasing demand and use of plastic products ought to be overhauled, reimagined, and refashioned.

Even within economic circles, the focus on GDP as a measure of economic progress while ignoring the social, ecological and cultural impacts is increasingly frowned upon. As far back as the late 1980s, the World Bank President Barber Conable recognised that the ecological cost of economic production has to be accounted for. “Current calculations ignore the degradation of the natural-resource base and view the sales of nonrenewable resources entirely as income . . . A better way must be found.” he wrote.

Kenya’s plastic producers and importers have to begin to consider how to shift the society away from plastic products and integrate the alternatives in the marketplace. Kenyans have the opportunity to have a national conversation around local plastic producers and importers, if we are to work effectively towards phasing out all plastic products sold in the market.

With imports valued at an estimated US$883 million, Kenya’s plastics sector has a critical duty to phase out plastic products so as to, at the very least, ensure that the end-user does not have to choose between affordability, disposability, and sustainability of the packaging when making a purchasing decision.

The plastic waste crisis calls for Kenyans to design products with their life cycle and their end in mind at the outset. Therefore, designing products with their utility and disposal in mind is critical. For example, utilizing snap-together parts in appliances minimizes the use of screws, making the end product easier to disassemble, recover, and recycle at the end. This evolution in design proactively shapes the journey of a product in order to ensure that as much material as possible is recycled back into the production conveyer.

Even within economic circles, the focus on GDP as a measure of economic progress while ignoring the social, ecological and cultural impacts is increasingly frowned upon.

On 24 March 2021, Kenya’s Centre for Environment Justice and Development (CEJD) held a consultative forum with 24 grassroots Civil Society Organisations in the waste management sector with support from Break Free From Plastic. The members used the existing legislative framework that bans single-use plastic carrier bags in the country to launch the CSOs for Zero Plastics in Kenya network that integrates the input of stakeholders in the affected sectors. Still, this push by CSOs towards a wider ban seems to have created a policy tension between the National Environment Management Authority (NEMA) and multi-nationals that rely on plastic products for packaging.

In 2018, NEMA tried to extend the ban on plastic carrier bags to single-use plastic containers such as bottles made of PET. However, the companies involved in the production of PET products instead proposed a self-regulated, industry-led solution under PETCO.

Despite NEMA’s pledge in 2018 to make PETCO membership mandatory for all plastic industry players, its membership remains voluntary. This lapse has slowed the acceptance of membership by stakeholders and by industry players and minimized compliance. Kenya currently has eight PET converters, but only one of them is a PETCO member. Moreover, an estimated 900 bottling plants use PET containers but only eight (1 per cent) are members of PETCO.

The future of a post-plastic Kenya requires consolidation of existing industry efforts, ramping up scientific research on alternatives, a shift in consumer behaviour and robust incremental policies in enforcing the bans and restrictions. Only then can Kenya secure its ecology, manage the diverse interests of the stakeholders involved and still manage its ecological health with posterity in mind.

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Microplastics: the Destruction of Marine Life and the Blue Economy

Even as Kenya’s land-based resources continue to shrink because of a rapidly growing population, microplastic pollution of Kenya’s Indian Ocean is putting in jeopardy the country’s maritime resources.

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Microplastics: the Destruction of Marine Life and the Blue Economy
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Five scientists, Joyce Kerubo, John M. Onyari and Agnes Muthumbi from the University of Nairobi, Deborah Robertson-Andersson from the University of Kwa Zulu Natal, and Edward Ndirui Kimani from the Kenya Marine and Fisheries Research Institute (KMFRI), undertook a research study last year that returned a harsh verdict of a high presence of microplastics (MPs) in Kenya’s Indian Ocean.

MPs are plastic pellets, fragments, and fibres that enter the environment and are less than 5mm in dimension. The primary sources of MPs are vehicle tyres, synthetic textiles, paints, personal care products, and plastic products that have disintegrated into tiny particles because of environmental turbulence.

The study by the five scientists, Microplastic Polymers in Surface Waters and Sediments in the Creeks along the Kenya Coast, Western Indian Ocean (WIO), identified four polymer types in Kenya’s Indian Ocean. High-density polythene is the most abundant at 38.3 per cent, followed by polypropylene (34.6 per cent), low-density polythene (27.1 per cent), and medium density polythene (17.1 per cent). The research findings were published in the European Journal of Sustainable Development Research on 18 October 2021.

The concentration of MPs in the surface waters along the Kenyan coastline was higher compared to other parts of the world, the study warned. The findings of the study also confirmed those of previous studies on the presence of MPs in Kenya’s Indian Ocean.

The scientists also cautioned that the documented information on the specific polymeric composition of these particles in seawater and in the sediments along the Kenyan coast was insufficient. The findings, the study offered, demonstrated the extent of exposure to MPs in Kenya’s ocean ecosystems, therefore justifying policy intervention in the management and disposal of plastic waste, and the protection of the ocean’s rich biodiversity for sustainable development.

It drew testing samples from three creeks: Tudor and Port Reitz in Mombasa County and Mida in Kilifi County. Tudor Creek covers an area of approximately 20 square kilometres and is fed by two seasonal rivers—Kombeni and Tsalu—that originate around Mariakani, about 32 kilometres northwest of Mombasa. The two seasonal rivers collect runoff containing plastic and other waste from the mainland and discharge it into the creek.

Surrounding Tudor creek are several densely populated informal settlements that include Mishomoroni and Mikindani that may add MPs to the ocean. According to the study findings, the majority of the MPs were fibrous materials from textiles and ropes, probably from wastewater from washing clothes and from fishing activities.

Other key facilities that could contribute to the pollution include shipping activities at the Port of Mombasa, meat processing at Kenya Meat Commission (KMC), Coast General Hospital, Container Freight Stations (CFSs) and Kipevu Power Station. Before it was rehabilitated, Mombasa County Government dumped a lot of waste at Kibarani, near the two creeks and just next to the ocean.

Tudor Creek recorded the highest pollution, also as a result of rain runoff from Kongowea market and Muoroto slums, and Mikindani sewage effluent. Moreover, according to the study, which could, however, not determine the proportions, many industries on Mombasa Island release their effluent into the sea, increasing MPs in sediments.

Mida Creek was used as a control in the study as it does not have river inflows. In addition, the creek is in a marine reserve that forms part of the Watamu Marine National Park and Reserve. However, MPs from different polymers were found in sediment and surface water samples from all the sites—including Mida Creek which is within Watamu National Marine Reserve—which the researchers had thought to be safe from pollution by industrial effluent, sewage disposal, and fishing activities.

Many industries on Mombasa Island release their effluent into the sea, increasing MPs in sediments.

The study attributed the pollution at Mida Creek to high tourism activities, boat and dhow fishing activities, densely populated villages such as Dabaso, Ngala, and Kirepwe and the mangrove vegetation cover of tall trees that binds soil particles thus favouring the accumulation of MPs.

According to a United Nations Environment Programme (UNEP) report released in March 2019, plastic—which makes up a sizable proportion of marine pollution—can now be found in all the world’s oceans, but concentrations are thought to be highest in coastal areas and reef environments where the vast majority of this litter originates from land-based sources.

In Kenya, daily plastic consumption is estimated at 0.3 Kilograms per person. In 2018, Kenya imported between 45,000 and 57,000 metric tonnes of plastic.

Earlier in 2020, KMFRI had carried out its own study—Microplastics Pollution in Coastal Nearshore Surface Waters in Vanga, Mombasa, Malindi and Lamu, Kenya—that painted an even gloomier picture of MP pollution.

The four sampling locations represented the South coast, Mombasa and the North coast of Kenya’s coastal nearshore waters, and looked into considering fishing, recreation, and industrial activities, as well as the municipal effluent that finds its way into these target areas.

The objective of the study was to assess the abundance MPs and their composition in Kenya’s coastal near-shore waters during the two rainy seasons at the Kenyan coast: the north-east monsoon which runs between November and March, and the south-east monsoon which runs from April to October.

The results showed a widely varied distribution of MPs between the two seasons, with the overall highest concentrations occurring during the south-east monsoon when surface runoff from rainwater and from effluent from the major towns is high.

As confirmed in other research studies, the concentrations recorded by KMFRI, were quite high compared to other parts of the world. This provided baseline data for MPs, showing that population, anthropogenic activities and seasonal variations a play key role in influencing pollution by MPs.

Total MP concentrations in all the study areas during the north-east and the south-east monsoon seasons ranged between 83 MPs/m³ and 8266 MPs/m³ and between 126 MPs/m³ and 12,256 MPs/m³ respectively, with a mean of 3228 MPs/m³. The highest microplastic levels were found in Mombasa at 12,256 MPs/m³ during the south-east monsoon season, where runoff and effluent due to heavy rains are thought to be the primary source. The next highest levels were found in Malindi, occurring during the south-east monsoon season, because of inflows from River Sabaki.

Boat activities and tourism during the north-east monsoon season and runoff from the town during the south-east monsoon season mostly affected Lamu, while fishing activities, as well and runoff from the town, could be responsible for the abundance of MPs recorded in Vanga.

Solid waste management remains an enormous challenge in coastal towns, with Mombasa County facing the biggest challenge due to a burgeoning population. Although most of the solid waste generated in the county is organic—largely from households, hotels, restaurants and agricultural produce markets, the largest being Kongowea and Marikiti—plastic takes up a significant share.

In its County Sessional Paper No 01 of 2019, Mombasa County estimated daily waste production at 2,200 tons, 68 per cent of which is organic. Approximately 18 per cent of this waste is plastics, cardboard, paper and metals.

Other inorganic waste such as e-waste, construction waste and junk makes up an estimated 14 per cent of the waste generated. Public and private health facilities generate an estimated 2 to 3 tonnes of biomedical waste daily.

Solid waste management remains an enormous challenge in coastal towns, with Mombasa County facing the biggest challenge due to a burgeoning population.

Most of the solid waste generated is disposed in undesignated open grounds—in VOK, Kwa Karama, Kadongo, Junda, Saratoga, and Mcheleni. It is disposed in the same form as it is generated without being recycled or reused. Disposal of solid waste in the open has continuously had a negative environmental health impact through the contamination of water sources.

Moreover, with the limited investment in solid waste recycling and recovery systems, disposal methods in the county have been a contributor to public nuisance.

There are two designated dumpsites, namely Mwakirunge in Kisauni and Shonda in Likoni. However, these dumpsites are poorly managed and do not respect the prescribed environmental health standards while Mombasa County government’s budgetary allocation for solid waste management is not sufficient to meet the desired results.

MPs are harmful to human health, experts say. The ingestion of MPs by species at the base of the food web causes human food safety concerns, as little is known about their effects on the food that finally lands on our menu.

The minuscule size of MPs renders them invisible to filter-feeding fauna, leading to unintentional ingestion. In a study published in December 2020 in the Africa Journal of Marine Science, W. Awuor, Agnes Muthumbi and Deborah Robertson-Andersson confirmed the presence of MPs in marine life. The study investigated MPs in oysters and in three species of brachyuran crabs.

They did sampling in eight stations distributed between three sites—Tudor, Port Reitz and Mida Creek—in January and February 2018, during low spring tide. The sample comprised 206 crabs and 70 oysters.

The study identified MP fibres of different colours—red, yellow, black, pink, orange, purple, green, blue—as well as colourless ones. Colourless fibres were the most prevalent, comprising at least 60 per cent of the total MPs. The mean lengths of the MP fibres were between 0.1 and 4.2 mm.

The study exposes MP pollution along the Kenyan coast and its uptake by marine fauna, and thus strengthens the case for better control of plastic waste in the ocean. “Marine plastic litter pollution is already affecting over 800 marine species through ingestion, entanglement and habitat change,” said the head of UN Environment’s coral reef unit, Jerker Tamelander, in 2019.

“Waste continues to leak from land, and coral reefs are on the receiving end. They also trap a lot of fishing gear and plastic lost from aquaculture. With the effects of climate change on coral reef ecosystems already significant, the additional threat of plastics must be taken seriously.”

According to UNEP, there remains a significant lack of knowledge on the true impact of plastics on the reef environment, including the level of concentrations of MPs across coral reef eco-regions in order to understand the scale of the issue in a standardised manner.

“Marine plastic litter pollution is already affecting over 800 marine species through ingestion, entanglement and habitat change.”

Concerns about ocean pollution have been raised at a time when the country is looking at the Blue Economy as the country’s next economic growth frontier. In effect, Kenya’s land-based resources have been shrinking because of a rapidly growing population and it is therefore prudent for the government to shift the focus to the country’s ocean resources spread over an area of 245,000 km², or 42 per cent of the country’s total land mass.

Kenya has from the outset not been keen on growing the maritime sector. Even Kenya’s first independence economic blueprint, African Socialism and its Application to Planning in Kenya, published in 1965, failed to anchor the Blue Economy in the country’s economic growth agenda, despite its significant role in transporting 95 per cent of the country’s global transactions.

The Western Indian Ocean has resources worth more than KSh2.2 trillion in annual outputs, with Kenya’s share standing at about 20 per cent of this figure. The marine fishing sub-sector alone had an annual fish potential of 350,000 metric tonnes worth KSh90 billion in 2013. However, the region only yielded a paltry 9,134 metric tonnes worth KSh2.3 billion during that year.

In 2018, the then Agriculture Cabinet Secretary, Mwangi Kiunjuri, said that by failing to fully exploit the Blue Economy, Kenya was losing over Sh440 billion annually. But if the opportunities offered by the Blue Economy are to be exploited, a policy intervention in the management and disposal of plastic waste is urgently required to protect the ocean’s rich biodiversity for sustainable development.

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Western Sahara: Africa’s Last Colony

Meriem Naïli writes about the continuing struggle for the independence of Western Sahara. Occupied by Morocco since the 1970s, in contravention of the International Court of Justice and the UN. The internationally recognised liberation movement, POLISARIO, has fought and campaigned for independence since the early 1970s. Naïli explains what is going on, and the legal efforts to secure the country’s freedom.

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Western Sahara: Africa’s Last Colony
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The conflict over Western Sahara can be described as a conflict over self-determination that has been frozen in the past three decades. Western Sahara is a territory in North-West Africa, bordered by Morocco in the north, Algeria and Mauritania in the east and the Atlantic Ocean to the west. A former Spanish colony, it has been listed by the UN since 1963 as one of the 17 remaining non-self-governing territories, but the only such territory without a registered administrating power.

Since becoming independent from France in 1956, Morocco has claimed sovereignty over Western Sahara and has since the late 1970s formally annexed around 80% of its territory, over which it exercises de facto control in contravention of the conclusions reached by the International Court of Justice (ICJ) in its advisory opinion of October 15, 1975, on this matter. The court indeed did not find any “legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory” (Western Sahara (1975), Advisory Opinion, I.C.J. Reports 1975, p.12).

On 14 November 1975, the Madrid Accords – formally the Declaration of Principles on Western Sahara – were signed between Spain, Morocco, and Mauritania setting the conditions under which Spain would withdraw from the territory and divide its administration between the two African states. Its paragraph two reads that “Spain shall immediately proceed to establish a temporary administration in the territory, in which Morocco and Mauritania shall participate in collaboration with the Jemâa [a tribal assembly established by Spain in May 1967 to serve as a local consultative link with the colonial administration], and to which the responsibilities and powers referred to in the preceding paragraph shall be transferred.”

Although it was never published on the Boletin Oficial del Estado [the official State journal where decrees and orders are published on a weekly basis], the accord was executed, and Mauritania and Morocco subsequently partitioned the territory in April 1976. Protocols to the Madrid Accords also allowed for the transfer of the Bou Craa phosphate mine and its infrastructure and for Spain to continue its involvement in the coastal fisheries.

Yet in Paragraph 6 of his 2002 advisory opinion, UN Deputy Secretary General Hans Corell, reaffirmed that the 1975 Madrid Agreement between Spain, Morocco, and Mauritania “did not transfer sovereignty over the Territory, nor did it confer upon any of the signatories the status of an administering Power, a status which Spain alone could not have unilaterally transferred.”

The war

The Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (POLISARIO) is the internationally recognised national liberation movement representing the indigenous people of Western Sahara. Through the self-proclaimed Sahrawi Arab Democratic Republic (SADR), it has been campaigning since its creation in May 1973 in favour of independence from Spain through a referendum on self-determination to be supervised by the UN. A war broke out shortly after Morocco and Mauritania’s invasion in November 1975. Spain officially withdrew from the territory on 26 February 1976 and the Sahrawi leadership proclaimed the establishment of the SADR the following day.

In 1984, the SADR was admitted as a full member of the Organisation of African Unity (now the African Union), resulting in Morocco’s decision to withdraw the same year in protest. Morocco would only (re)join the African Union (AU) in 2017. The admission of the SADR to the OAU consolidated the movement in favour of its recognition internationally, with 84 UN member states officially recognising the SADR.

In the meantime, to strengthen its colonization of the territory, Morocco had begun building what it later called “le mur de défense” (the defence wall). In August 1980, following the withdrawal of Mauritanian troops the previous year, Morocco sought to “secure” a part of the territory that Mauritania had occupied. Construction of the wall – or “berm” – was completed in 1987 with an eventual overall length of just under 2,500km.

A “coordination mission” was established in 1985 by the UN and the OAU with representatives dispatched to find a solution to the conflict between the two parties. After consultations, the joint OAU-UN mission drew up a proposal for settlement accepted by the two parties on 30 August 1988 and would later be detailed in the United Nations Secretary General’s (UNSG) report of 18 June 1990 and the UN Security Council (UNSC) resolution establishing United Nations Mission for the Referendum in Western Sahara (MINURSO).

Since 1979 and the surrender of Mauritania, around 80% of the territory has remained under Morocco’s military and administrative occupation.

Deployment of MINURSO

The Settlement Plan agreed to in principle between Morocco and POLISARIO in August 1988 was submitted to the UNSC on 12 July 1989 and approved in 1990. On 29 April 1991, the UNSC established MINURSO in resolution 690, the terms of reference for it being set out in the UNSG’s report of 19 April 1991. The plan provided for a cease-fire, followed by the organisation of a referendum of self-determination for which the people of Western Sahara had to choose between two options: integration with Morocco or plain and simple independence.

In this regard, it provided for the creation of an Identification Commission to resolve the issue of the eligibility ofSahrawi voters for the referendum, an issue which has since generated a great deal of tension between the two parties. A Technical Commission was created by mid-1989 to implement the Plan, with a schedule based on several phases and a deployment of UN observers following the proclamation of a ceasefire.

Talks quickly began to draw up a voters list amid great differences between the parties. POLISARIO maintained that the Spanish census of 1974 was the only valid basis, with 66,925 eligible adult electors, while Morocco demanded inclusion of all the inhabitants who, as settlers, continued to populate the occupied part of the territory as well as people from southern Morocco. It was decided that the 1974 Spanish census would serve as a basis, and the parties were to propose voters for inclusion on the grounds that they were omitted from the 1974 census.

In 1991, the first list was published with around 86,000 voters. However, the process of identifying voters would be obstructed in later years, mainly by Morocco which attempted to include as many Moroccan settlers as possible. The criteria for eligibility had sometimes been modified to accommodate Morocco’s demands and concerns. Up to 180,000 applications had been filed on the part of the Kingdom, the majority of which had been rejected by the UN Commission as they did not satisfy the criteria for eligibility.

Consequently, the proclamation of “D-Day”, to mark the beginning of a twelve-week transition period following the cease-fire leading to the referendum on self-determination, kept being postponed and eventually was never declared.

The impasse

Following the rejection by Morocco of the Peace Plan for Self-Determination of the People of Western Sahara (known as Baker Plan II) and the complete suspension of UN referendum preparation activities in 2003, Morocco’s proposal for autonomy of the territory under its sovereignty in 2007 crystallised the stalemate [the Peace Plan is contained in Annex II of UNSG report S/2003/565, and available here].

The Baker Plan II had envisioned a four or five-year transitional power-sharing period between an autonomous Western Sahara Authority and the Moroccan state before the organisation of a self-determination referendum during which the entire population of the territory could vote for the status of the territory – including an option for independence. It was ‘supported’ by the UNSC in resolution S/RES/1495 and reluctantly accepted by POLISARIO but rejected by Morocco.

The absence of human rights monitoring prerogatives for MINURSO has emerged as an issue for the people of Western Sahara as a result of the stalemate in the referendum process in the last two decades. MINURSO is the only post-Cold War peacekeeping operation to be deprived of such prerogatives.

Amongst the four operations currently deployed that are totally deprived of human rights monitoring components (UNFICYP in Northern Cyprus, UNIFIL in Lebanon, UNDOF in the Israeli-Syrian sector and MINURSO), MINURSO stands out as not having attained its purpose through the organisation of a referendum. In addition, among the missions that did organise referendums (namely UNTAG in Namibia and UNAMET in East Timor), all had some sort of human rights oversight mechanism stemming from their mandates.

On 8 November 2010, a protest camp established by Sahrawis near Laayoune (capital of Western Sahara) was dismantled by the Moroccan police. The camp had been set up a month earlier in protest at the ongoing discrimination, poverty, and human rights abuses against Sahrawis. When dismantling the camp, gross human rights violations were reported – see reports by Fédération internationale des ligues des droits de l’Homme (2011) and Amnesty International (2010).

This episode revived the international community’s interest in Western Sahara and therefore strengthened the demand by Sahrawi activists to “extend the mandate of MINURSO to monitor human rights” (see Irene Fernández-Molina, “Protests under Occupation: The Spring inside Western Sahara” in Mediterranean Politics, 20:2 (2015): 235–254).

Such an extension was close to being achieved in April 2013, when an UNSC resolution draft penned by the US unprecedentedly incorporated this element, although it was eventually taken out. This failed venture remains to date the most serious attempt to add human rights monitoring mechanisms to MINURSO. Supporters of this amendment to the mandate are facing the opposition by Moroccan officials who hold that it is not the raison d’être of the mission, and it could jeopardize the negotiation process.

What’s going on now?

At the time of writing, the people of Western Sahara are yet to express the country’s right to self-determination through popular consultation or any other means agreed between the parties. The conflict therefore remains unresolved since the ceasefire and has mostly been described as “frozen” by observers.

On the ground, resistance from Sahrawi activists remain very much active. Despite the risks of arbitrary arrest, repression or even torture, the Sahrawi people living under occupation have organised themselves to ensure their voices are heard and violations are reported. Freedom House in 2021 have, yet again, in its yearly report, rated Western Sahara as one of the worst countries in the world with regards to political rights and civil liberties.

Despite a clear deterioration of the peace process over the decades, several factors have signalled a renewed interest in this protracted conflict among key actors and observers from the international community. A Special Envoy of the AU Council Chairperson for Western Sahara (Joaquim Alberto Chissano from Mozambique) was appointed by the Peace and Security Council in June 2014. This was followed by Morocco becoming a member of the AU in January 2017.

More recently, major events have begun to de-crystalise the status quo. The war resumed on 13 November 2020 following almost 30 years of ceasefire. Additionally, for the first time, a UN member state – the US – recognised Morocco’s claim to sovereignty over the territory. Former US President Trump’s declaration on 10 December 2020 to that effect was made less than a month after the resumption of armed conflict. It has not, however, been renounced by the current Biden administration. As this recognition secured Morocco’s support for Israel as per the Abrahamic Accords, reversing Donald Trump’s decision would have wider geopolitical repercussions.

In September 2021, the General Court of the European Union (GCEU) issued decisions invalidating fisheries and trade agreements between Morocco and the EU insofar as they extended to Western Sahara, rejecting Morocco’s sovereignty. This decision is the latest episode of a legal battle taking place before the European courts.

The Court of Justice of the European Union (CJEU), had previously reaffirmed the legal status of Western Sahara as a non-self-governing territory, set by the UN in 1963 following the last report transmitted by Spain – as Administering Power – on Spanish Sahara under Article 73 of the UN Charter. The Court rejected in December 2016 any claims of sovereignty by Morocco by restating the distinct statuses of both territories.

The last colony in Africa remains largely under occupation and the UN mission in place is still deprived of any kind of human rights monitoring. In the meantime, the Kingdom of Morocco has been trading away peace in the form of military accords and trade partnerships. This situation must end – with freedom, and sovereignty finally won by Western Sahara.

This article was first published by ROAPE.

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