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The Rebels Within: The Politics of Kieleweke and Tanga Tanga in Central Kenya

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Dissent is brewing in President Uhuru Kenyatta’s Kikuyu strongholds, which has allowed Deputy President William Ruto to gain support in the region.

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The Rebels Within: The Politics of Kieleweke and Tanga Tanga in Central Kenya
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The fracas that took place in Gitui Catholic Church in Murang’a County on September 8, 2019, is a harbinger of the political battles that are going to be fought in Central Kenya and the larger Mt Kenya region by the fractious Jubilee Party antagonists.

“The battle for the soul of the Kikuyu vote is on and what we witnessed in Murang’a was a proxy war being waged by two factional camps, split by succession politics that are intent on capturing the Kikuyu vote ahead of the 2022 general elections,” said a Central Kenya politician who requested for anonymity.

The camps are led by President Uhuru Kenyatta and his Deputy William Samoei Ruto. Fronted by their respective protégés, the factions are known by their signature monikers – Kieleweke (it shall [soon] be evident) and Tanga Tanga (the roving group). Although President Uhuru has not come out openly to associate with the @Kieleweke group, which is being fronted by one Ngunjiri Wambugu, the flip-flopping Nyeri Town MP, his deputy, no doubt, has made it known that he is the de facto Tanga Tanga leader, a label he proudly carries.

The church lent itself as a perfect scene on a Sunday afternoon for the antagonists to outdo each other as they sought to prove to their respective masters that were ready and willing to wage a proxy battle on their behalf. As it will soon be evident, Murang’a County, sandwiched between Kiambu and Nyeri counties, is the very ground where the battle for the much-coveted Kikuyu electorate will be viciously fought.

If the Kieleweke group has smelt dissent and infiltration of enemies in what they consider to be their unrivalled turf, the Tanga Tanga group, in its roving mission, has stumbled upon a restless electorate, anxious and willing to be wooed by a ready suitor. The electorate has sniffed a one-time opportunity to prove (to its sister counties) that it too can also ascend to the highest echelons of political power and it should not be taken for granted.

The Kieleweke group, this time led by nominated MP Maina Kamanda – a man who now carries the label KYM (kanda ya moko, Kikuyu for a hatchet man) – “sneaked” into Kiharu constituency, an unacceptable political tourism into another MP’s territory without his prior notice. As Uhuru’s man on the ground, he had carried Sh1 million to be donated to the church on behalf of the president. Getting whiff of Kamanda’s meandering into his constituency, Ndindi Nyoro, the greenhorn Kiharu MP, who today is described as the “Murkomen” of Central Kenya, burst into the church to let Kamanda know that he was the sheriff in town and that others could not appear in his turf without his prior knowledge and permission.

“The ensuing kerfuffle between Nyoro and the elderly Kamanda inside the church was, as unfortunate, the proxy battles being fought elsewhere in the country by the Jubilee factional wings,” said a Mt Kenya politician who has known Kamanda for well over three decades. “We were with Kamanda in the opposition politics in the 1990s and one time I and another Central Kenya MP went to bail him out in Embu town after former President Daniel arap Moi ordered that he be locked in a police cell for his utterances.”

If the Kieleweke group has smelt dissent and infiltration of enemies in what they consider to be their unrivalled turf, the Tanga Tanga group, in its roving mission, has stumbled upon a restless electorate, anxious and willing to be wooed by a ready suitor.

The politician told me he has been calling Kamanda’s mobile phone number to no avail. “He has refused to pick my call…just as well…because I wanted to tell him that the September 8 ugly scene was beneath him. As a senior politician, he should have known better than to engage in such like shenanigans.”

But the Mt Kenya politician reserved the harshest barbs for both the Catholic Church’s leadership and the parish priest, Fr John Kibuuru. “That priest is a vagabond. For him to have allowed the politicians to desecrate the offertory was a cardinal sin to, especially us Catholics. The offertory is where we go to offer our supplications, it is a sacrosanct place – how dare he let vagabonds like him defile the holy sanctuary?”

The politician, a staunch Catholic known for his morning mass and an unfailing Sunday service attendance wherever he is, reminded me: “I have never conducted my politics inside the precincts of the church for all the 30-something years I have been in politics. The Church can bare me out…you can bare me out. If and when I want to meet the electorate, who form part of the congregation, I ask it we meet outside the church, after the priest is done with the mass. I’ve always respected the sanctity of the church.”

It was useless for Bishop John (Maria) Wainaina, of Murang’a diocese who also oversees the Kirinyaga diocese to issue a belated decree the day after, ordering politicians to keep off the church’s sanctum, said the politician. “The pulpit should not, at all times, be a place for politicians to address the electorate – the politicians have their forums to do that – and the church’s rostrum is not one of them.” The politician accused Fr Kibuuru of being partisan on the current succession politics and for letting himself be dined and wined by politicians.

“For my church, I’m sorry to say it has lost its direction: the clergy is no longer the light of the laity. For that ugly scene to have taken place in a Catholic church shows you just how lowly the Catholic church leadership in Kenya has sunk. Priests nowadays do what they feel like doing. The bishops cannot reign in on the priests because they themselves are no better.”

He added that the Catholic Church has been infiltrated by ethnic baronial politics, which has chosen to serve the interests of political power brokers. The politician said the church in general, in Kenya has ceded ground to the politician because of greed for money and power.

Gitui Catholic Church is on your way to Kangema and some of the congregants told me that Kamanda’s coming to Kiharu without notifying Nyoro was disrespectful and uncalled for. “Kamanda should know we have an MP whom we elected ourselves, he shouldn’t stomp here like it’s his area, Nyoro is young, but he is ours.” The Kiharu residents let it be known to me that “after all, Kamanda is not from here, he is from Nyandarua, if he wants to be elected, there is Nyandarua for him if Nairobi has become too hot for him to handle.”

The 36-year-old excitable Ndindi Nyoro has been riding on the crest of a popular wave since that hullabaloo with Kamanda. His electorate right now think of him as a local hero for standing up to Kamanda and for expressing his political stand – which at the moment gels with the electorate: dissatisfaction with President Uhuru’s disastrous politics.

Ndindi’s Kiambugi Mixed Secondary schoolmates remember him as a feisty young man who dreamt of one day being an important (wealthy) man. A relative of Ngenye Kariuki, Ngenye refers to Nyoro as his grandson. He campaigned for Ngenye in 1997 when he run for the same Kiharu seat, as a student. “He was very active, organising for Ngenye’s supporters to be ferried in trucks to his rallies and exclusive meetings,” said one of his schoolmates. Ngenye won the seat on a Safina ticket and Ndindi four years later transitioned to Kenyatta University. Kiambugi Mixed Secondary School later on was transformed into a boys’ only high school.

Between 2013 and 2017, Ndindi Nyoro, served as the Constituency Development Fund (CDF) manager for Kiharu under Irungu Kangata. When Kangata decided to go for the senator seat, there was understandably a mutual agreement between them that Nyoro should “take over” from Kangata. Today, Nyoro has publicly identified his politics with those of Deputy President William Ruto, claiming that he is the best suited to “take over” from President Uhuru who is serving his last second term. His Kiharu constituents seem to largely agree with him…for now.

The Matiba factor

Kiharu constituency is famous for being at one time represented by the irrepressible Kenneth Stanley Njindo Matiba, the rambunctious politician who was detained by President Moi in 1990 and never recovered from his stroke till his death in April 2018. Matiba still evokes nostalgic emotions from Murang’a residents, who still view him as the president they never had. It is a “grudge” they carry against their cousins from both Kiambu and Nyeri counties, albeit surreptitiously.

The general election of November, 1979 called by a new President Moi, who had taken over from Mzee Jomo Kenyatta, who had died on August 22, 1978, saw an energetic, bold and young Matiba enter the race for Kiharu, then known as Mbiri, armed to the teeth with the latest statistical data on the constituency. Fresh from being the managing director of East African Breweries Limited (EABL), Matiba waged a political battle pitted against the “mighty” Gikonyo Kiano, which Kiano, until his death in April 2003, was never to recover from.

In an era when statistics as an effective campaign tool was unheard off, Matiba came to Mbiri with data that laid bare the geographical, socio-political and economic facts of the constituency: gender composition, household incomes, number of graduates, population density, the area’s topography, voting patterns, I mean…name it. With these facts, Matiba, with military precision, combed the length and breadth of Mbiri, and floored Gikonyo, the first post-independence Minister of Trade and Commerce, in a battle royal that is the stuff of political legends.

When the son of Njindo entered the presidential race in 1992, it was not the same Matiba who, more than a decade before, had entered constituency elective politics as a corporatist, dare-devil, intelligent and sharp man. Although the presidential race was won by the incumbent Moi, Murang’a people to date believe that Matiba won that election, in which he ran alongside Ford Kenya’s Jaramogi Oginga Odinga and the Democratic Party’s Mwai Kibaki.

However, it was Kibaki’s entering the presidential race in 1992 that still rankles the Murang’a folks: Had he not run, the Kikuyu vote would not have been split and, therefore, Matiba would easily have romped home, many of them believe. It is something they will not say loudly, but it is still a chip on their shoulder after all these years.

Kiharu constituency is famous for being at one time represented by the irrepressible Kenneth Stanley Njindo Matiba, the rambunctious politician who was detained by President Moi in 1990 and never recovered from his stroke till his death in April 2018. Matiba still evokes nostalgic emotions from Murang’a residents, who still view him as the president they never had.

“The people of Murang’a County break no bones when they insist they have supported both Kiambu and Nyeri people to ascend to the presidency. But those same people have yet to reciprocate the gesture,” said a former Nairobi city councillor from Dagoretti. “This feeling of ‘abandonment and betrayal’ by their cousins, was aggravated in 2017, when the Murang’a moguls ceded control of Nairobi to a ‘lay about and nonentity’ through Uhuru’s carelessness and cowardly politics.”

The former councillor, who keeps tabs with the Rwathia Group, the influential and richest group of Kikuyu men who since independence have controlled the business and politics of Nairobi city, said the moguls seethe with anger against President Uhuru for the loss of the Nairobi County governor’s seat to Mike Mbuvi Sonko in 2017. “That is all we had asked from Uhuru, to allow us to have Nairobi, but even that he could not deliver,” confided the moguls to my councillor friend.

“The Murang’a people have smelt an opportunity and they are ready to seize it,” said the former councillor. “Uhuru is not going to be a factor insofar as 2022 succession politics are concerned: no Kikuyu voter, much less the political elite, is going to listen to him – he has done his call of duty and as it is, they are not amused with his performance,” the former councillor said.

The Raila factor

The anger against President Uhuru among the Kikuyu electorate makes Ruto seem like the only viable alternative. “It is going to take a near miracle for President Uhuru to persuade the Kikuyus to listen to him. The Kikuyu rebellion against the Kenyatta Family this time is real.”

The Kikuyus are plotting to vote for William Ruto as a protest vote and teach President Uhuru a lesson, said one of the richest magnates in Murang’a. “Raila will never rule this country. If Uhuru thinks we will be swayed by his belated shaking of hands with that ‘mad man’, he has another thing coming. Uhuru has overseen the systematic destruction of the Kikuyu economy – he was supposed to protect it, instead, what has he done? He has presided over its deliberate collapse. Is that not why he is sending Kamanda to us? Because he cannot dare venture into Central Kenya or anywhere near Mt Kenya region?”

The Murangá magnate said, “The Kikuyu people will frustrate Raila’s presidential efforts until he grows so old that he will not have the stamina to run. We are waiting for that Uhuru to come and tell us about the handshake. We will tell him our minds.” If by supporting Ruto, the Murangá people can attempt a stab at the presidency so be it, said the tycoon. He said that President Uhuru spent half of his presidential campaigns demonising Raila, so much so that, to now point the Kikuyu people to his direction is to really mock them. “Has Uhuru come back to the Kikuyu people to undo the damage?” he asked.

The many forays by Deputy President Ruto’s team into the heartland of the Kikuyu domain is because he has established that the people are divided and are not speaking in one voice, said a one-time senior civil servant from the Mt Kenya region. “He knows the President’s core constituency is bitter with him and because he [Uhuru] is unsure of their retribution against him, he has dilly-dallied going home. So the DP has taken advantage of this lacuna to make inroads into the region and is consistently preaching a message that entrenches their hatred for Raila Odinga.”

A poll survey conducted recently by a professional research group showed that if presidential elections were to be held today, William Ruto would win by 45 per cent countrywide, and in the Mt Kenya region, he would garner a very strong support. The poll’s sample size, significantly larger than the usual 3000 people, was picked across the 47 counties. The somewhat surprising poll results dissuaded the firm from publishing its findings and making them public. Ruto is considered an incumbent, and therefore a frontrunner, and the only person who has explicitly said he would be gunning for the presidency come 2022. His is not only a brand name, but he has name recognition across the country.

To tame the deputy’s presidential ambitions and to curtail his perceived inroads into Central Kenya and the larger Mt Kenya region, his political nemeses in the Jubilee Party have been making his interlocutors lives’ in the region, difficult.

The Kikuyus are plotting to vote for William Ruto as a protest vote and teach President Uhuru a lesson, said one of the richest magnates in Murang’a. “Raila will never rule this country. If Uhuru thinks we will be swayed by his belated shaking of hands with that ‘mad man’, he has another thing coming…”

“The hauling of the Kiambu governor to court and making him spend some days in police cells over corruption charges is part of the handshake’s efforts to throttle the DP’s penetration of the area,” said the former senior civil servant. “When he was thrown into custody at the Industrial Police Station cells, Ferdinand Waititu (Kiambu Governor) was visited at night by a Jubilee Party mandarin allied to President Uhuru’s wing who mocked him by telling him ‘to now call the DP’ to bail him out.” The mandarin allegedly warned Waititu that he was going to pay for his cavorting with the Deputy President.

Governor Waititu apparently is not the first Central Kenya politician to be “punished” by the “handshake team” for not toeing the line: “The first to be tamed was the deleterious Gatundu South MP Moses Kuria, who immediately after the swearing-in of President Uhuru Kenyatta for his second term in November 2017, was seen as Ruto’s point man in Central Kenya. He was slapped with an unpaid tax accumulated over the years that effectively cooled his heels,” said the former senior civil servant.

Yet, according to the senior civil servant, it was Governor Ann Mumbi Waiganjo, formerly known as Ann Waiguru, who had to be quickly nipped in the bud because she was thought to be running ahead of herself. Immediately after being confirmed as the Governor of Kirinyaga, after a protracted court battle filed by her opponent, former Gichugu MP and 2013 presidential contender, Martha Wangari Karua, it is alleged that Governor Ann Mumbi Waiganjo went around telling and whispering to anybody who cared to listen that she was primed to be Deputy President William Ruto’s running mate come 2022.

“The Kirinyaga governor was therefore seen as a possible and viable teammate of Ruto in his search for a deputy from the all-important Mt Kenya region,” said the former civil servant. “To stop forthwith that talk that apparently was interpreted as rallying the larger Mt Kenya region in the direction of the Deputy President’s team 2022, the governor was aptly reminded of the National Youth Service (NYS) mega scandal that took place in 2016 when Ann Waiguru was the Cabinet Secretary for Devolution.”

The sudden change of tune by the Kirinyaga governor is not out of step, said my source: “That today she is singing the ‘handshake tune’ is not as a result of a Damascus moment, the realisation that after all, it isn’t a good idea to be a deputy president of Kenya. It is the flexing of power of the opposing sides within the Jubilee Party at play.”

Since her change of tune regarding local and national politics, the governor has had to face the wrath of some of her constituents: Last month, when she went to open a market in Kagumo town, she was jeered by a mob that she claimed was paid to do so. Paid to do so, because it told her off over her support of “the handshake” and the Building Bridges Initiative (BBI).

Kagumo town in Kirinyaga Central constituency is the hotbed of Kirinyaga County politics. And this is not the first time the governor was being chased away from Kagumo: When she was campaigning for the governor’s seat, she was also one time ferreted out of the town. It took the intervention of Purity Wangui Ngirici, then campaigning for the Women Representative seat, to help her navigate around Kirinyaga County.

“It is Ngirici who held Ann’s hand in a manner of speaking and showed her the ropes in Kirinyaga,” said one of Karua’s chief campaigners. “Waiguru didn’t know the nooks and crannies of the county – it was Ngirici who showed her around. Remember Ngirici was always a William Ruto person: the helicopter she was campaigning in – which was emblazoned with her name Wangui – was lent to her by Ruto.” Purity Wangui Ngirici hails from one of the two most powerful families in Mwea: Mbari ya Douglas, (the clan of Douglas) and Mbari ya Mkombozi (the clan of the saviour). She is married to Ngirici, who is the son of the late spy master James Kanyotu.

Ngirici, who is in her late 40s, is the Women’s Rep, but by and large she controls the politics of Kirinyaga: three-quarters of all the elected MCAs owe allegiance to her. To checkmate her, the governor equally nominated her loyalist MCAs to counterbalance Ngirici’s force. Ngirici has trashed the handshake and has been telling the Kirinyaga electorate that the BBI’s motive is to unload Raila onto them by creating additional executive positions.

In Ngirici, Ruto has a powerful ally in the county. It is, therefore, not improbable to imagine where Ngirici’s politics are headed: in 2022 Ann Mumbi Waiganjo will have a worthy opponent for the governor’s seat. And if all factors remain the same, it is also not too difficult to imagine whose drumbeats she will be beating: William Ruto’s.

On the peripheries of Mt Kenya region, other Ruto allies include the Kikuyu MP Kimani Ichungwá, Kandara MP Alice Wahome, Kiharu MP Ndindi Nyoro and Bahati MP Kimani Ngunjiri. “These are relatively young MPs (of course apart from Kimani) in age and politics. They are pragmatic enough to know where their political bread is buttered; not with Uhuru, but with Ruto…so it’s nothing personal,” said a Jubilee Party politician from Mt Kenya.

In an area where 70 per cent of the incumbent MPs are thrown out every five years, these MPs are closely reading the signs on the wall – and the signs on the wall currently in the Mt Kenya region are that William Ruto is the man to beat.

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Politics

Big Pharma and the Problem of Vaccine Apartheid

In this report on the TWN-Africa and ROAPE webinar on vaccine imperialism held last month, Cassandra Azumah writes that the unfolding vaccine apartheid which has left Africa with the lowest vaccination rates in the world is another depressing example of the profit and greed of Big Pharma facilitated by imperialist power.

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Big Pharma and the Problem of Vaccine Apartheid
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The webinar on ‘Vaccine Imperialism: Scientific Knowledge, Capacity and Production in Africa’ which took place on 5 August 5, 2021, was organized by the Review of African Political Economy (ROAPE) in partnership with the Third World Network-Africa (TWN-Africa). It explored the connections and interplay of Africa’s weak public health systems, the profit and greed of Big Pharma enabled by the governments of the industrialized Global North, and the Covid-19 pandemic from a political economy perspective. This report summarizes the main discussions held during the conference, including an overview of each of the main points discussed. The webinar was the first in a three-part series of webinars scheduled by the two organizations under the theme Africa, Climate Change and the Pandemic: interrelated crises and radical alternatives.

The format of the event involved keynote presentations from three speakers, a five-minute activist update on the COVID-19 situation from two African countries, and an interactive discussion with participants. Chaired by Farai Chipato, a Trebek Postdoctoral Fellow at the University of Ottawa and ROAPE editor, the session included presentations from Rob Wallace, an evolutionary epidemiologist and public health geography expert at the Agroecology and Rural Economics Research Corps; Tetteh Hormeku, Head of Programmes at Third World Network-Africa (TWN-Africa) and Marlise Richter, a senior researcher at the Health Justice Initiative in South Africa.

The current state of the pandemic – Rob Wallace

Rob Wallace began the session by providing a global perspective on the current state of the COVID-19 pandemic. He presented data showing that though the total number of vaccinations are increasing, the percentage of people fully vaccinated is concentrated in the West. We are currently experiencing a third wave of the pandemic, which is being driven by the delta variant. Though the cases in Africa are relatively lower than in other parts of the world, it is still a marked increase from the first and second waves which were less severe. This is not the trajectory that was predicted for COVID-19 on the continent in the early days of the pandemic. Marius Gilbert et al had speculated that Africa would be vulnerable to the virus due to a lower public health capacity and underlying co-morbidities that might increase the spread and damage of the virus. However, the incidence of the virus has played out in a different way, Africa’s cases are not as high as that of other continents. The possible reasons that have been given for this are: demographics (a younger population), open housing (which allows greater ventilation), and an ongoing circulation of other types of coronaviruses which have induced a natural, partial immunity in the population.

Wallace also commented on herd immunity, stating that it is not a panacea for defeating the virus. He referenced a paper by Lewis Buss et al on COVID-19 herd immunity in the Brazilian Amazon which found that although 76% of the population had been infected with the virus by October 2020, they had not achieved herd immunity (which is usually estimated at 70-75%), and proliferation of the virus was ongoing. He pointed out that the key lesson from this study is that there is no magical threshold for herd immunity; it may be different for different populations or there may be no threshold at all.

Likewise, he contended that defeating COVID-19 has little to do with vaccination as a silver bullet, but much to do with governance and the wellbeing of the population being at the crux of any public health decisions a government would take. A multi-pronged approach should be taken to defeat the virus, one that includes vaccinations, wearing of masks, social distancing, and testing and tracing. He argued however, that in the neoliberal regimes of the industrialised North, dealing with COVID-19 is organized around profit.

This was not the case in the early days of the outbreak. Initially, the World Health Organisation (WHO) and the National Institutes of Health (NIH) in the US were in favour of having open medicine and making sure any pharmaceutical products produced to fight the virus were free to all. To this end, WHO developed the COVID-19 Technology Access Pool (C-TAP). However, the lobbying of Big Pharma and the likes of Bill Gates worked to centre the COVID-19 response around the model of intellectual property rights. This has had a considerable impact on the evolution of the virus, allowing it enough room to evolve such that pharmaceutical companies can make profits by selling booster shots of the vaccine. According to Wallace, this speaks to the “sociopathic nature” of the neoliberal regimes in the Global North who are willing to put the profits of Big Pharma over the lives of people. He opined that we need to act in solidarity to create a system in which disparities between the Global South and Global North are removed.

Health justice and the pandemic in South Africa – Marlise Richter

Marlise Richter’s presentation shed light on the work of the Treatment Action Campaign (TAC) and the lessons that can be learnt from their struggles for access to medicines (in particular ARVs). She pointed out that the TRIPS agreement (Trade-Related Aspects of Intellectual Property Rights – TRIPS – is a legal agreement between member states of the World Trade Organisation) had a big impact on how the HIV/AIDS epidemic was addressed, resulting in a limited number of ARVs reaching the Global South.

The HIV epidemic was particularly acute in South Africa, the number of people living with the virus ballooned from 160,000 in 1992 to over 4.2 million people by 2000. At this time, ARV’s had been developed but were unaffordable in Africa, costing up to US$10,000 a year in 1998.

The TAC used multiple strategies such as skilled legal advocacy, high quality research, social mobilization, demonstrations, and public education to fight the pharmaceutical industry and their abuse of intellectual property rights protections. It joined the case brought by the Pharmaceutical Manufacturers Association (PMA) against the South African government for allowing parallel importation of drugs in order to bring down prices of medicines. Its intervention contributed to pressuring the PMA to withdraw its claims in 2001. In addition, it applied pressure at the 13th International AIDS Conference in Durban in 2000 by staging a march to highlight the danger of President Mbeki’s AIDS denialism and demanded access to ARVs in Africa.

From 1999 onwards, the TAC also campaigned for a national prevention of mother-to-child transmission of HIV. This case was won at the high court and precipitated a national ARV roll-out plan in April 2004. Finally, in 2002, TAC and the AIDS Law Project filed a complaint with the Competition Commission against GlaxoSmithKline (GSK) and Boehringer Ingelheim arguing that they violated the competition law by abusing their dominance in the market and charging excessive prices for ARVs. This forced the companies to reach a settlement in 2003 leading to a drastic cut in ARV prices. By employing these tactics, the TAC and other activists were able to transform both the national and global conversation on drug pricing, eventually leading to South Africa having the largest HIV treatment program globally and pharmaceutical companies reducing the prices of ARVs.

Following the success of the campaigns to provide access to ARVs in Africa, activists in the Global South fought for the Doha Declaration. The Doha Declaration waived some of the provisions in TRIPS in order to prevent public health crises and promote access to medicines for all. However, Richter commented that not many of these flexibilities have been used. She posits that this is due to immense political pressure from the West. The US in particular has singled out governments that seek to use the TRIPS flexibilities and placed them on the US Special 301 Watch List.

Returning to the present, Richter presented data that showed that on 3 August, there have been just under 200 million confirmed cases and over 4.2 million deaths of COVID-19. 28.6% of the world’s population has received at least one dose of the vaccine with 14.8% fully vaccinated. But to give a sense of the disparity in vaccine administration across the world, she indicated that 4.21 billion doses have been administered globally with 38.67 million administered daily, but in low-income countries only 1.1% of people have received at least one dose. Narrowing it down to Africa, only 1.58% of the population has been fully vaccinated. This variance in administered vaccines is also present across the continent. In July 2021, Morocco had 28.9% of its population fully vaccinated, Botswana and South Africa had 5.3% and 5% of their populations fully vaccinated, and the Democratic Republic of the Congo had 0%. These incongruities are also evident when we assess the number of vaccines promised against vaccines delivered, with South Africa receiving only 26% of the vaccines promised. Continuing at the current pace, it would take South Africa two years and three months just to vaccinate 67% of its population.

Richter quoted the WHO Director-General saying, “The world is on the brink of a catastrophic moral failure – and the price of this failure will be paid with lives and livelihoods in the world’s poorest countries.” Following from this, she believes that it makes ethical sense and public health sense for vaccines to be distributed equitably amongst the world’s population. In a bid to fight for vaccine equity, South Africa and India co-sponsored the TRIPS waiver in October 2020. If successful, this waiver will bring about flexibilities in the TRIPS agreement which would have an immense impact on the manufactured supplies of vaccines and other medical goods. For the waiver to be passed, a consensus amongst all member states of the WTO needs to be reached. While the waiver is supported by over 100 countries (predominantly in the Global South), it has been blocked most notably by the EU, Australia, Norway and Japan, countries which have enough vaccines to vaccinate their population many times over. Putting this into perspective, in January 2021 the EU had 3.5 vaccines per person and Canada had 9.6 vaccines per person, as compared to 0.2 vaccines per person in the African Union. By blocking this waiver, the industrialised North is further entrenching the extreme inequalities currently faced by the Global South.

Richter concluded her presentation by speaking on a recent development in South Africa, where Pfizer-BioNtech has recently signed a ‘fill and finish’ contract with the Biovac Institute. She claimed that while this is a first step in developing manufacturing capacity, it is not enough to achieve vaccine independence because it does not include the sharing of Pfizer-BioNtech’s technology or know-how. In addition, the ‘fill and finish’ approach does not address issues of security of supply, nor does it allow local manufacturers the freedom to make their own pricing decisions. She believes that if we start from the premise that health is a human right, as the TAC does, we will regard health equity and especially vaccine equity as essential in the struggle against the pandemic.

The political economy of the continuing fight against intellectual property rights negatively affecting public health goods in Africa – Tetteh Hormeku

Tetteh Hormeku’s presentation was centred around the challenges that African countries have confronted in the process of trying to develop their own pharmaceutical capacity. These challenges go beyond the struggles for the TRIPS waiver and include the impact of some of the choices governments have made. He focused on two interrelated points that frame the predicament of African countries in relation to the current vaccine situation:

1) The vaccine process is dominated by pharmaceutical Multinational Corporations (MNCs) based in the advanced industrial countries and supported by their governments. The controversy around the TRIPS waiver is a clear example of the extent to which advanced countries and their MNCs would like to hold on to their place in the international order.

2) On the non-existent domestic pharmaceutical capacity in African countries, Tetteh explained that he uses the phrase “domestic pharmaceutical capacity” because:

  • It does not include a subsidiary of an MNC signing a production agreement with a local African company.
  • The word ‘domestic’ combines both the local character of production and the fact that it is embedded within the nation, its challenges, people, drives and imperatives.
  • It does not refer to nations alone, but also to regional and continental initiatives.
  • It captures pharmaceutical capacity beyond the production of vaccines.

Tetteh provided the following case-study to show how these two points are interrelated. 24 February marked the first shipment of COVID-19 vaccines to Ghana, and there was an optimism that it would be the beginning of a steady supply of vaccines to the country – six months later, less than 2% of the population has been vaccinated. Around the time Ghana received this first shipment, it was in talks with the Cuban government for support on the transfer of technology to improve its pharmaceutical capacity.

This date in February also marked the anniversary of the overthrow of Kwame Nkrumah in 1966. Six months before the coup Nkrumah’s government had established a state pharmaceutical enterprise. After the coup, the military government tried to hand it over to Abbott Laboratories, an American pharmaceutical company, under such outrageous terms that the resulting backlash from the populace led to the abandonment of this plan.

The creation of a state-owned pharmaceutical enterprise in Ghana and in other African countries in the post-independence era was a reaction to colonial policies which deliberately curtailed the production of knowledge and science across the continent. The aim of developing a pharmaceutical industry domestically was to intervene on three levels:

  • Creating an industry with the technical know-how and the machinery to be able to participate in the production of pharmaceutical products.
  • Creating an industry which is linked to the process of developing and building knowledge and being at the frontiers of knowledge. This involved creating linkages with universities and scholars.
  • Making use of traditional sources of medical knowledge. The state pharmaceutical enterprise was in operation until the 1980s when due to the Structural Adjustment Programs (SAPs) it was privatized and unable to compete in the free market.

Tetteh pointed out that two lessons can be taken from this anecdote:

  • The government strongly intervened to ensure pharmaceutical production was linked to public procurement and public policy. The market for the product was guaranteed (army, public hospitals etc.).
  • The government intervened to ensure that certain medical products could not be imported into the country. These interventions were crucial in creating the legal and scientific conditions within which the state-owned enterprise thrived until the SAP period.

A key success of the state pharmaceutical enterprise was that it was able to bargain with Big Pharma on its own terms. At the time, Big Pharma needed to negotiate with the state pharmaceutical enterprise to produce their products locally since they had no access to the Ghanaian market. Although Ghana’s intellectual property rights regime replicated and mimicked some of the standards in the Global North, it was an indication of the amount of space countries in the Global South had to develop their own legislation with respect to intellectual property for public health. However, this option is no longer available to these countries. According to Tetteh, TRIPS inaugurated the monopoly that Big Pharma has over technical know-how for medical products. It has also enabled bio-piracy which allows Big Pharma to appropriate African traditional knowledge and patent it for themselves. In the 1990s, the Organisation of African Unity (OAU) tried to create an African model law to enable a fight against bio-piracy but was unsuccessful.

The creation of a state-owned pharmaceutical enterprise in Ghana and in other African countries in the post-independence era was a reaction to colonial policies, which deliberately curtailed the production of knowledge and science across the continent

Tetteh noted that the current situation highlights the importance of getting the TRIPS waiver, as it is a starting point for building domestic pharmaceutical capacity. The waiver goes beyond just patents and encompasses a host of other intellectual property rights such as copyrights, and industrial design. It covers all the important bases for making medicines in a modern context. Looking back to the Doha Declaration, very few countries were able to make real changes to their laws in order to make use of the flexibilities. This was due in part to the entrenchment of TRIPS in other agreements such as AGOA (the African Growth and Opportunity Act) and the EPAs (Economic Partnership Agreements). However, importantly, there was no real commitment by African leaders to making these changes.

Tetteh argued that African leaders are not making the strategic choices that would eventually lead them to developing independent pharmaceutical industries. Suggesting that South-South cooperation is an avenue to address the current issues the continent faces, he argued that instead of using all their funds to buy vaccines, African countries could have allocated some funds to support phase three of Cuba’s vaccine trials. By doing this, they would have been able to negotiate for a consistent relationship in terms of knowledge exchange and the transfer of technology.

Updates on COVID-19 in Senegal and Kenya

Cheikh Tidiane Dieye provided an update on the COVID-19 situation in Senegal. The country recorded its first case of the virus in March 2020. Since then, the government has put in place measures such as curfews, travel restrictions and the banning of public gatherings to contain the spread of the disease. The Senegalese government did not enforce a lockdown because the country has a large informal sector which would have been negatively impacted by a lockdown.

Senegal is currently experiencing its third wave – driven by the delta variant. The total number of cases has increased significantly over the last year, moving from 9,805 cases and 195 deaths in July 2020 to 63,560 cases with 1,365 deaths as of July 2021. This increase in cases has taken a toll on the country as it does not have the healthcare infrastructure to deal with the virus caseload. The vaccination campaign was launched in February this year, with about 1.2 million doses received, 1.8% of the population fully vaccinated and 3% receiving their first dose.

He stated that Senegal is currently facing two issues:

  1. Lack of access to the vaccines. This is because the country does not have the means to purchase enough vaccines for its population and is currently relying on donations from COVAX. This has resulted in protracted waiting times for the vaccine. These waiting times can cause complications for vaccine administration, since there are people who have received the first dose but must wait for longer than the recommended time of eight weeks to receive their second dose.
  2. A significant part of the population is reluctant to receive vaccines and sensitization campaigns are proving ineffective.

He remarked on one key development in Senegal – the creation of a vaccine manufacturing plant funded by the World Bank, the US, and a few European countries. The plant is expected to produce 300 million doses a year, first of COVID-19 vaccines and then other types of vaccines against endemic diseases. This project will be implemented by the Institut Pasteur de Dakar which already produces yellow fever vaccines.

ROAPE’s Njuki Githethwa provided an update on the COVID-19 situation in Kenya. He mentioned that the delta variant has caused a surge in cases and deaths. There have been currently over 200,000 cases since the pandemic began with the total number of deaths at 4,000 at the end of July. He pointed out that this third wave is affecting the lower classes which were spared in the initial stages of the pandemic. Kenya has received 1.8 million doses of the vaccine, with about 1.7% of Kenyans vaccinated. He noted that if vaccinations continue at this pace, it will take over two years for Kenyans to be fully vaccinated.

A key success of the state pharmaceutical enterprise was that it was able to bargain with Big Pharma on its own terms. At the time, Big Pharma needed to negotiate with the state pharmaceutical enterprise to produce their products locally since they had no access to the Ghanaian market

According to Njuki, the disbursement of vaccines from the West is being portrayed as a symbol of charity, solidarity, and sympathy. This portrayal is underlain by the West positioning themselves as saints while vilifying other countries like India and China. He also mentioned that there is a class dynamic at play in Kenya regarding the distribution of vaccines. People in affluent areas have ease of access whereas the less privileged wait in long queues to get vaccinated. As a result, most of the population, including frontline workers, are yet to be vaccinated. Schools in the country reopened at the end of July, and only about 60% of teachers have been vaccinated. Njuki touched on the fact that there is an optimism that more vaccines are coming, however the government is not doing enough to sensitise the population. There is still a lot of misinformation and superstition surrounding the vaccines.

Moving beyond the state?

The discussion was further enriched by contributions from the participants. Gyekye Tanoh, for example, noted that in the past the presence of state pharmaceutical enterprises around the continent constituted an active and embodied interest. This influenced the way transnational pharmaceutical companies were able to negotiate, severely limiting their power. However, such a thing is not present today on the continent. In fact, a study from the McKinsey Institute pointed to the fact that the pharmaceutical industry has the highest markups in Africa, meaning that while the continent is not the biggest market, it is the most profitable region in the world. Currently, the interests of Big Pharma dominate, he asked, how do we begin to shift this? Is it time to look beyond the state as a leading agent for change? What can progressives do in this situation?

Senegal is currently experiencing its third wave – driven by the delta variant. The total number of cases has increased significantly over the last year, moving from 9,805 cases and 195 deaths in July 2020 to 63,560 cases with 1,365 deaths as of July 2021

In response to Gyekye’s question, Tetteh argued that he does not believe that it is time to look beyond the government. In the case of the pharmaceutical industry, the market is created by production and government procurement of pharmaceutical products. Real change cannot be realised without the involvement of the government and well thought out policies. But there is still a role for progressives. Activists need to mobilise and organize around broad paradigmatic changes and clear concrete policy choices that can be implemented in the immediate, medium, and long term.

Wallace added that the objectives of activists in the Global North should be to support the efforts of those in the Global South. This is especially important because COVID-19 is not the only virus that can cause real damage. We need to make structural changes that ensure the Global South is not at the mercy of the Global North whose economic model has contributed to the current situation.

Farai Chipato ended the session by thanking the speakers and participants for their contributions to the fruitful and important discussion. Chipato urged participants to join ROAPE and TWN-Africa for their two upcoming webinars: ‘Popular public health in Africa: lessons from history and Cuba’ and ‘Alternative strategies and politics for the Global South: climate-change and industrialisation.’

This article was originally published in the Review of African Political Economy (ROAPE) Journal. 

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Omissions of Inquiry: Kenya and the Limitations of Truth Commissions

Gabrielle Lynch provides a radical analysis of the mechanisms of transitional justice. Looking at the case of Kenya, Lynch argues that truth commissions which hope to achieve truth, justice and reconciliation also require ongoing political struggles, and substantive socio-economic and political change. While reconciliation and justice may be goals which truth commission can recommend, and sometimes contribute to, they cannot be expected to achieve them.

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In today’s world, it is almost expected that a truth commission will be introduced in the wake of conflict or a period of authoritarianism to try and consolidate a transition to democracy and peace. A truth commission generally understood – as per Priscilla Hayner – as a temporary state-sanctioned body that investigates a pattern of past abuse, engages ‘directly and broadly with the affected population, gathering information on their experiences’ and which aims to conclude with a public report.

The underlying idea is that societies need to confront and deal with unjust histories if they are to establish a qualitative break with that past. Proponents of modern truth commissions thus ‘look backwards’, not as interested historians, but as a way to ‘reach forwards.’ As Archbishop Desmond Tutu explained in his foreword to the South African Truth and Reconciliation Commission (TRC) report:

The other reason amnesia simply will not do is that the past refuses to lie down quietly. It has an uncanny habit of returning to haunt one … However painful the experience, the wounds of the past must not be allowed to fester. They must be opened. They must be cleansed. And balm must be poured on them, so they can heal. This is not to be obsessed with the past. It is to take care that the past is properly dealt with for the sake of the future.

Motivated by this desire to render the past ‘passed’ in the substantial sense of being ‘dead’ or ‘over and done with’, modern truth commissions dedicate most of their time to two activities: the holding of public hearings and production of a final report.

This is a relatively recent development. Early truth commissions did not hold public hearings and were largely fact-finding bodies. However, ever since the South African TRC of the 1990s, truth commissions have held hearings as a stage for various actors – victims, perpetrators, political parties, state institutions and so forth – to present their account of past wrongs. The underlying idea is that people will have a chance to speak and be heard, and thus regain their humanity; that a wider (and engaged) audience will bear witness to a new human rights-conscious regime; and the overview provided will feed into, and help legitimise, a final report. The latter in turn intended to record and acknowledge past wrongs and provide recommendations that can help to promote truth, justice and reconciliation.

However, while much hope is often placed, and much time and money expended, on truth commissions and their hearings and final reports, it is evident that these processes generally fall far short of ambitious goals and high expectations. But what explains this gap between aspiration and reality?

This is one of the questions that I address in a new book – Performances of Injustice: The politics of truth, justice and reconciliation in Kenya – which analyses several transitional justice mechanisms introduced following Kenya’s post-election violence of 2007/8 when over 1,000 people were killed and almost 700,000 were displaced.

This includes the establishment of the Truth, Justice and Reconciliation Commission (TJRC). Significantly, the Commission’s mandate recognised that, while the 2007/8 post-election violence was triggered by a disputed election, it was fuelled by more deep-rooted problems.  In turn, the Commission was tasked with investigating a wide array of injustices – from state repression and causes of political violence to perceptions of economic marginalisation and irregular land acquisition – between Kenya’s independence in 1963 and the end of the post-election violence in February 2008.

Established through an Act of Parliament in 2008, and operational from 2009 to 2013, the TJRC sought to meet its mandate, in large part, by collecting statements (with over 40,000 collected in total), holding public and women’s hearings in 35 locations across the country and adversely mentioned person (AMP) hearings in western and Nairobi, and publishing a substantial final report that runs to over 2,000 pages.

Despite such achievements, the Commission was soon mired in controversy with calls for the chairman – who was soon linked to three injustices that the Commission was meant to investigate – to resign, while the public hearings attracted little media attention, and the final report is yet to be discussed in parliament let alone implemented.

The Kenyan experience highlights a range of lessons and insights. This includes the fact – as recently outlined in a piece for The Conversation – that transitional justice mechanisms are not ‘tools’ that can be introduced in different contexts with the same effect. Instead, their success (or failure) rests on their design, approach and personnel – all of which are incredibly difficult to get right – but also on their evaluation and reception, and thus on their broader contexts, which commissions have little or no control over.

However, the lessons that can be drawn go beyond reception and context and extend to the inherent shortcomings of such an approach.

First, while victims appreciate a chance to speak and be heard, the majority clearly submitted statements or memoranda or provided testimony in the hope that they would be heard and that some action would be taken to redress the injustices described. As one woman explained after a women’s hearing in Nakuru, she was glad that she had spoken and how, having told her story, the Commission would ‘come in and help.’

To be fair, the TJRC’s founders were aware of the inadequacies of speaking, which is why they included ‘justice’ in the title and gave the Commission powers to recommend further investigations, prosecutions, lustration (or a ban from holding public office), reparations and institutional and constitutional reforms.

However, on the question of whether recommendations would be implemented, the Commission rather naively relied on the TJRC Act (2008), which stipulated that ‘recommendations shall be implemented.’ However, such legal provisions proved insufficient. Amidst general scepticism about the Commission’s work, parliament amended the TJRC Act in December 2013 to ensure that the report needed to be considered by the National Assembly – something that is yet to happen.

Moreover, to document and acknowledge the truth requires that one hears from both victims and perpetrators. However, the latter often have little motivation, and much to lose, from telling the truth. This was evident in Kenya where, during the AMP hearings I attended, where I heard little that was new and not a single admission of personal responsibility or guilt. Instead, testimonies were characterised by five discursive strands of responsibility denied: denial through a transfer of responsibility, denial through a questioning of sources, denial through amnesia, denial through a reinterpretation of events and an assertion of victimhood, and denial that events constituted a wrongdoing. However, while AMPs denied responsibility, none denied that injustices had occurred. As a result, while the hearings provided little clarity on how and why a series of reported events may have occurred, they simultaneously drew attention to, and recognised, past injustice. In this way, they provided a public enactment of impunity: Kenya’s history was replete with injustice, but AMPs were unwilling to shoulder any responsibility for it.

This ongoing culture of impunity points to another issue, which is that – for most victims – injustices clearly do not belong to the past but to the present and future. The loss of a person or income, for example, often constitutes a course that now seems beyond reach – from the hardship that accompanies the loss of a wage earner to the diminished opportunities that stem from a child’s extended absence from school. However, the past also persists in other ways, from the injustices that never ended, such as gross inequalities or corruption, to fears of repetition and experiences of new injustice.

Unfortunately, the idea that one can ‘look backwards to reach forwards’ downplays the complex ways in which the past actually persists, and possible futures infringe on the present. This is problematic since it can encourage a situation where small changes dampen demands for more substantive reform. At the same time, it can facilitate a politicised assertion of closure that excludes those who do not buy into the absence of the past, the newness of the present, or the desirability of imagined futures and provides a resource to those who seek to present such ‘difficult people’ as untrusting, unreasonable and unpatriotic.

This is not to say that truth commissions are useless and should never be considered. On the contrary, many view speaking as better than silence, while the commission’s report provides a historical overview of injustice in Kenya and a range of recommendations that activists and politicians are using to lobby for justice and reform.

However, when introduced, truth commissions should be more aware of the importance of persuasive performances and how their initial reception and longer-term impact is shaped by broader socio-economic, political and historic contexts. Truth commissions also need to adopt a more complex understanding of the ways in which the past persists, and possible futures infringe on the present and avoid easy assertions of closure.

Ultimately, such ambitious goals as truth, justice and reconciliation require not Freudian ‘talk therapy’, although catharsis and psycho-social support are often appreciated, but an ongoing political struggle, and substantive socio-economic and political change, which something like a truth commission can recommend, and sometimes contribute to, but cannot be expected to achieve.

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

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The African Union and the ICC: One Rule for Kings, another for the Plebs

The African Union complains that the International Criminal Court is biased only when an African head of state stands accused.

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During the five-year-long proceedings at the International Criminal Court (ICC) against former Ugandan rebel commander Dominic Ongwen, there was not a peep from the Ugandan government about the ICC’s bias against Africans.

Uganda’s President Yoweri Museveni did not show any such restraint towards the ICC when he was the chief guest at the April 2013 inauguration of then newly elected Kenyan President Uhuru Kenyatta.

“I was one of those that supported the ICC because I abhor impunity. However, the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution,” Museveni said in his 9 April 2013 speech. The actors he made indirect reference to were unnamed Western countries.

Museveni accused those actors of using the ICC, “to install leaders of their choice in Africa and eliminate the ones they do not like.”

At the time Museveni spoke, Kenyatta and his deputy William Samoei Ruto were due to face trial at the ICC. The case against Kenyatta was terminated in March 2015 before trial hearings began. Ruto’s case was terminated in April 2016 after the prosecution had called its witnesses. In a majority decision, the judges said the case against Ruto and former journalist Joshua arap Sang had deteriorated so much that they could not determine Ruto’s and Sang’s innocence or guilt. The judges said the case deteriorated because of a campaign to intimidate and bribe witnesses.

No sense of irony

During the April 2013 inauguration of Kenyatta, Museveni exhibited no sense of irony when he accused unnamed actors of using the ICC to eliminate leaders they did not like. By the time Museveni was making his speech, his government had already debated and agreed to use the ICC as one way of “eliminating” its problems with the Lord’s Resistance Army (LRA) rebel group in northern Uganda. In December 2003 Uganda formally asked the ICC to investigate the atrocities committed in northern Uganda.

Following that formal request, Uganda shared with the ICC’s Office of the Prosecutor (OTP) several years’ worth of recordings of the government’s intercepts of LRA radio communications. Together with those recordings, the government also gave the OTP the contemporaneous notes made of the intercepts. On top of that, the government also gave the OTP a list of 15 LRA leaders it believed were responsible for the atrocities committed in northern Uganda.

All this emerged during the course of Ongwen’s trial at the ICC for his role in atrocities committed between 2002 and 2005 in northern Uganda. Ongwen, a former LRA commander, was convicted of 61 counts of war crimes and crimes against humanity in February this year and was sentenced to 25 years in prison in May. Ongwen is in the process of appealing against his conviction and sentence.

In his April 2013 speech, Museveni acknowledged that his government had cooperated with the ICC. “We only referred Joseph Kony of LRA to the ICC because he was operating outside Uganda. Otherwise, we would have handled him ourselves,” said Museveni. This statement is only partly true.

When in December 2003 Uganda formally requested the ICC to investigate the atrocities committed in northern Uganda, Kony was based in what is today South Sudan. But he was there with a small group of senior LRA commanders and other LRA members. During Ongwen’s trial, the court heard that by the time Uganda made its referral to the ICC, most of the LRA’s commanders and members had left the group’s rear bases in then southern Sudan and crossed the border back into northern Uganda. This is because Uganda had reached a deal with Sudan that allowed it to cross the border and attack the LRA’s rear bases. Uganda called this military offensive Operation Iron Fist.

African leaders protecting each other

The Ugandan government’s actions may seem contradictory but they fall well within the pattern African leaders have adopted when it comes to the ICC. Whenever there has been a case against an African president or deputy president at the ICC, this has been discussed at the African Union. As for ICC cases against other Africans, the African Union has not discussed them or passed resolutions on them, even if those cases involved former presidents or vice presidents. Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.

Ever since, in July 2008, the OTP applied for an arrest warrant against then Sudanese President Omar al-Bashir in connection with the atrocities committed in Sudan’s western region of Darfur, the ICC has been on the agenda of the regular African Union meetings of presidents and prime ministers. ICC pre-trial judges eventually issued two arrest warrants against al-Bashir in March 2009 and July 2010.

African heads of state and government usually meet twice a year as the summit of the AU. Between 2009 and 2020, at each of those summits, they passed resolutions on the ICC or they reaffirmed past resolutions on the matter and directed a ministerial committee to follow up on those resolutions. The resolutions African leaders have passed at these summits have called for the termination or deferral of cases at the ICC implicating serving heads of state or their deputies.

Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.

None of the resolutions has mentioned any of the other cases that have come before the ICC such as the one against Laurent Gbagbo, Ivory Coast’s former president, or the one against Jean-Pierre Bemba, a former vice-president and senator of the Democratic Republic of Congo. The ICC has concluded the cases against Gbagbo and Bemba, acquitting both of them.

The African Union has not been the only critic of the Africa-bias in case selection at the ICC. Academics, lawyers and members of civil society have all criticised or highlighted this bias. But the African Union has been the loudest critic. And what the African Union has said on the issue has often been summarised to mean Africa is against the ICC.

Presidents have immunity, ok?

But this paring-down a complicated issue has blurred the African Union’s two-track approach in its relationship with the ICC. Whenever a head of state such as Sudan’s Omar al Bashir is the target of an arrest warrant, the African Union is strident in its criticism of the court. After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.

Instead, the AU has now turned its focus on the issue of the immunity of heads of state and other senior government officials. Under the Rome Statute, head of state does not have immunity if that person is charged with a crime under that Statute. What’s more, the ICC regularly communicates with member states when the court has been informed that a person for whom there is an outstanding arrest warrant is traveling to those member states.

This was the case with al-Bashir when he was Sudan’s president. Some countries chose to ignore the ICC’s communication. Others advised al-Bashir not to travel to their country and risk arrest. And some have argued they could not arrest al-Bashir because he was in their country to attend an international meeting they were hosting and that, under international customary law, al-Bashir enjoyed immunity for the purpose of the meeting. This is what South Africa and Jordan argued when the issue of immunity for heads of state was litigated before the ICC.

The most recent AU summit resolution on the ICC was issued in February 2020. In it, AU member states are called on to “oppose” the ICC Appeals Chamber judgement in a case Jordan had filed. The resolution said the decision by the ICC Appeals Chamber was, “at variance with the Rome Statute of the International Criminal Court, customary international law and the AU Common Position.”

The judgement referred to in the AU resolution dealt with the question of whether Jordan, as an ICC member, should have arrested al-Bashir when he went to Jordan in March 2017 to attend a regular summit of the League of Arab States. The ICC Appeals Chambers was unanimous that Jordan should have arrested al-Bashir when he visited that country.

After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.

The five-judge panel also agreed that customary international law gave heads of state immunity in certain circumstances such as immunity from another country’s jurisdiction. But the Appeals Chamber concluded that such immunity did not extend to executing ICC arrest warrants.

The AU’s call to oppose the ICC Appeals Chamber’s May 2019 judgement on Jordan ignores one thing: the AU made submissions to the Appeals Chamber before it reached its judgement. The AU made its submissions at the invitation of the Appeals Chamber. The AU’s chief lawyer, Namira Negm, led the team that argued its submission during the hearings on the Jordan case that were held between 10 and 14 September 2018.

In the February 2020 resolution, the AU also asked African members of the ICC to raise before the court’s membership issues that concern African states such as “the rights of the accused and the immunities of Heads of State and Government and other senior officials.” The resolution further asked African members to “propose necessary amendments to the Rome Statute within the ambit of the ongoing discussions on the reform of the ICC,” by its membership.

Making peace without al Bashir

One reason the AU gave against effecting the arrest warrants against al Bashir was that he was key to bringing peace to Sudan’s western region of Darfur. The AU was involved in negotiations for peace in Darfur, a process that has been on and off over the years. Ironically, once al-Bashir was removed from power in April 2019, the transitional authorities who replaced him were able to initiate and conclude peace deals on the Darfur conflict last year.

In August this year, the Cabinet in Sudan resolved to hand over al Bashir to the ICC in execution of the two arrest warrants against him. This is a significant step since the transitional government took office in 2019 and indicated that Sudanese authorities were considering reversing the previous position that al Bashir would not be handed over to the ICC. The next step is for the overall transitional authority in Sudan, the Sovereignty Council, to discuss the Cabinet decision and decide whether to endorse it.

Ignoring victims

The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent. When a conflict is at its peak, victims will receive emergency aid. The more prolonged a conflict becomes, the less aid victims receive. Rarely will such aid be from the victims’ government. And often that foreign-donated aid is all that victims of conflict can expect.

The perpetrators of the conflict that made them victims are rarely held to account for the atrocities they committed. Yet, victims live with the consequences of those atrocities for the rest of their lives. This was the constant refrain of the victims of the northern Uganda conflict who testified during the Ongwen trial.

The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent.

Women testified about their families rejecting them because they returned home with children they gave birth to while with the LRA. One person testified about having to change schools several times because teachers and students abused him when they found out he had been in the LRA. Another person testified about wanting to resume his education that was interrupted when he was abducted by the LRA but he did not earn enough to do that and also educate his children. So he has focused on educating his children.

These and other victim stories are rarely spoken about whenever the ICC is criticised of having an African bias.

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