On October 17, 2019, while speaking at the unveiling of the plaque for the expressway linking the Jomo Kenyatta International Airport to the Westlands area in Nairobi, President Uhuru Kenyatta said: “Wanasema ati BBI ni ya kutafutia Uhuru kazi. Mimi sitaki kazi, nimechoka. Eeeh, BBI ni ya kuhakikisha ya kwamba hakuna Mkenya hatamwaga damu tena katika nchi yetu kwa sababu ya siasa. Tuko pamoja?” People are saying BBI is an excuse for getting Uhuru a job. I don’t want a job, I’m tired. BBI is for ensuring that no Kenyan will ever shed blood again because of politics. Are we together?
Exactly a month later, on November 16, the president met a 3,000-strong delegation of MPs, senators, former MPs and other leaders from the Mt Kenya region at Sagana State Lodge in Kiganjo, Nyeri County, for an eyeball-to-eyeball face-off meeting. This meeting had been overdue because, as the president himself acknowledged, there had been simmering disapproval of his leadership in his backyard that had led to loud murmurs of discontent and grievances.
At the meeting, to which he came late, delegates had been asked to assemble as early as 8 am, (Uhuru himself arrived in the afternoon). President Uhuru conducted the business of the day in the Gikuyu language. “Ati Uhuru niigutuika Prime Minister? Ndingethura kuneneha ringi…” You mean, Uhuru can be the Prime Minister? Huh, I wouldn’t mind being at the helm once more…” expressed the president, while claiming that he did not know the contents of the Building Bridges Initiative (BBI).
In 30 short days, President Uhuru had forgotten his vow to Kenyans that he would give up presidential powers in 2022. At Sagana, he had the effrontery to allow himself to be enticed with an (executive) job offer that of a prime minister, which was purportedly contained in a document whose contents he allegedly knew nothing about.
In the seven years that he has been president, Uhuru has become the master of doublespeak: he will wax lyrical about one thing, and then will do the exact opposite. And when put to task about his sudden change of position, he will blame overwhelming demons or will become overtly angry and hot-tempered.
Restricting ourselves to his promise of “going home” once his term is over, because apparently he is “tired”, the “sudden surprise” posture of interest in the prime minister’s position is very telling. “The BBI is all about creating the position of an executive prime minister for Uhuru Kenyatta,” said a Jubilee MP who counts the president and his deputy as his personal friends and has known them since the time they were all in KANU. Dubbing it BBI (II), the MP said, “This is the real BBI, forget about BBI I and the shenanigans that took place at Bomas of Kenya.”
After the BBI team rounded off its town hall-like meetings across the country sometime in early August last year, it launched its report at the Bomas of Kenya on November 27, 2019, where it publicly handed over the report to the “handshake” duo: President Uhuru and ex-Prime Minister Raila Odinga, the former 2017 presidential contender under the National Super Alliance (NASA) coalition outfit. “What we saw on that day was a charade, a farcical display of political tomfoolery of a people whose intentions were to test the waters, even as they tested the patience of Deputy President William Ruto,” said the Jubilee MP.
“The BBI is all about creating the position of an executive prime minister for Uhuru Kenyatta,” said a Jubilee MP who counts the president and his deputy as his personal friends and has known them since the time they were all in KANU. Dubbing it BBI (II), the MP said, “This is the real BBI, forget about BBI I and the shenanigans that took place at Bomas of Kenya.”
That charade was witnessed by scores of Kenyans across the country – the function was beamed live on radio and television stations. Seventy-year-old Wandia Kimaita, who watched the proceedings from Iriani village in Mathira constituency in Nyeri, was later to observe how she was appalled by how President Uhuru treated his deputy. “I really sympathised with Deputy President Ruto for all the humiliation he underwent that day. Why would Uhuru behave like this; seemingly gleeful and laughing recklessly? This was unbecoming of the President. Even if they humiliate him [Ruto], my vote is still with him.”
A matter of trust
The 156-page BBI (I) document that was hailed at the Bomas jamboree as a “peace document” included a non-executive position of prime minister, with its attendant deputies. The prime minister in the BBI (I) report is an appointee of the president who wields executive powers.
“The BBI (II) is about expanding the executive,” said the influential Jubilee MP. “It is about creating a powerful position for the ‘tired’ president. It is true, the president doesn’t intend to extend his presidential term, but it is not true that once his terms expires, he wants to fade into oblivion. He wants to stick around in a powerful position within the government because – I’ll be very forthright with you – the Kenyatta family doesn’t trust one William Ruto.”
This trust issue is something that has consistently cropped up in my interviews with Jubilee Party politicians, most of whom are past or present MPs from Central Kenya and the greater Rift Valley regions who have remained close to the two powerful men. I have also spoken to Jubilee Party mandarins and aficionados who have worked around and with President Uhuru and his deputy and who, therefore, can, with a fair amount of surety, authoritatively comment on the two. The verdict I always get on why the bromance between the president and his deputy has been waning since January 2018 (when Uhuru and Raila shook hands) is that trust between the two has been broken.
But in seeking to understand precisely why, after fighting so hard to retain their power as incumbents in 2017, their bromance “suddenly” died, I sought the views of two senior politicians, one from Central Kenya and the other from Rift Valley, who are knowledgeable in Kenya’s presidential and succession politics. Both have been witnesses to Kenya’s tumultuous presidential successions at their critical junctures.
“The now emerging problems between Uhuru Kenyatta and William Ruto are not about the presumed governance style, the apparent contestations and greed for power, state theft, or even ethnic affiliations. They are just about one thing – trust,” said a senior veteran Central Kenya politician, who requested anonymity. “The Kenyatta family simply doesn’t trust Ruto. Trust is not something you feed someone like porridge – if the trust is not there, it’s not there; you cannot force yourself to trust someone.”
The Kenyatta family is not convinced that Ruto, once he assumes the reins of the presidency, will not destroy their business empire – they know it, said the politician. “They are persuaded that this is what he will do when he becomes president.” The politician claimed that the Kenyatta family (here he referred specifically to Mama Ngina, Uhuru’s mother, and Muhoho, his younger brother) categorically asked Uhuru to stick around because he was too young to exit the political scene, least of all, to even contemplate going home. They advised him to work to create the position of an executive prime minister purely in order to protect and safeguard the family’s wealth.
Why the position of the prime minister? I asked. “Because it doesn’t interfere with the constitutionally-mandated two-term presidential limit. The idea of changing the constitution to sneak in a third term clause was going to be messy and Kenyans were going to reject it outright,” said the senior politician. “Hence, no one can accuse him of abrogating the law. Still, he would have to change the constitution to accommodate the new position and its deputies”.
“The now emerging problems between Uhuru Kenyatta and William Ruto are not about the presumed governance style, the apparent contestations and greed for power, state theft, or even ethnic affiliations. They are just about one thing – trust,” said a senior veteran Central Kenya politician, who requested anonymity.
Recently, President Uhuru spoke about being betrayed by people he had entrusted to work for him: he was referring to his deputy after the narrative of corruption failed to fly. He now seems to have stumbled on a new idea: the trust narrative, which he hopes Kenyans this time will buy, pointed out the veteran politician. “William Ruto was being used as a ladder by the Kenyatta family to capture power; after that he was going to be dumped like a used rag”.
“Uhuru telling us that he has been betrayed is really stale news,” said a mzee from Limuru. “Who tells Uhuru he’s the only one who can be betrayed? We entrusted him with the presidency, and he has betrayed us big time. That’s why we don’t want him anywhere near the executive – he should just go quietly and leave us alone. They want to create the position of the executive prime minister with this BBI (II) for him, we know, and we will defeat the referendum when it comes.”
The mzee said that the BBI project has one linear argument: “Don’t vote for Ruto because he’s bad, he’s untrustworthy. What I object to, is the moral highhandedness of the purveyors of BBI to think that we Kikuyus don’t know Ruto is bad. We know he is very bad. Has Uhuru and all the others been good? Ruto is corrupt, a thief, will bring down the country…we know. They have numerously hinted to us that the country will be worse off…where is it now? Is it any better? Who has amassed more wealth and money in this country than the Kenyatta family? Who has brought down the country? Who did we elect as president? Is it Ruto? If Ruto has been the president, please let us know.
“To paint Ruto as the most wicked politician will not change our resolve: we [Kikuyus] will still vote for him in 2022. Those talking about Ruto have nothing else to talk about, or offer any alternative. It’s best they keep quiet and go away. Agikorwo Gikuyu matigothoma na giki kia Uhuru…gutiri hindi magathoma, megutura me ngombo cia mbari ya Kenyatta”. If Kikuyus this time will not learn from the travails that Uhuru has made them go through…they will never learn, they will remain slaves to the Kenyatta family.”
The senior politician from Central Kenya said the president has been telling Kenyans – and specifically Kikuyus – that the sole aim of BBI is to sue for peace and that this country should never go to war again, which the Kikuyus totally agree with. “But they part company when then he tells them, by his words and deeds, that they should shun William Ruto…”
The senior politician from Central Kenya said the president has been telling Kenyans – and specifically Kikuyus – that the sole aim of BBI is to sue for peace and that this country should never go to war again, which the Kikuyus totally agree with. “But they part company when then he tells them, by his words and deeds, that they should shun William Ruto. How? ‘If we don’t want Rift Valley Kikuyus to ever shed blood again because of politics, it is prudent then we vote for one William Ruto’ say the Kikuyus. But the president doesn’t seem to get it, or does he?”
“The Kenyatta family’s property”
The politician said President Uhuru cannot believe the Kikuyus have turned their back on him. “Because since 1963, it has always worked: The Kenyatta family has always beckoned on the Kikuyus to do their bidding without fail and without opposition. The Kikuyus have been the Kenyatta family’s property – they do with them as they wish. Now the family is facing open rebellion and the president doesn’t want to believe it’s over – it’s the people who are tired with the Kenyatta family, for taking them too much for granted and ensuring they are economically finished.” The politician said that the Kenyatta family replaced the British masters who had ruled Kenya for 70 year, as the new black Kenyan colonisers.
“All what the Kenyattas want is to expand and ensure their business empire is intact and thriving going forward, the rest are details. Everybody else could be eating cake for all they care. The only thing that has grown in this seven years is the Kenyatta family businesses. As its empire grew, the converse has been happening to the Kikuyu people and the rest of Kenyans.”
The politician, who knows Uhuru since his formative years, says the president is living in the past: “He’s used to getting his way, doesn’t listen to [wise] counsel, but worse still, and more ruefully, to hide his ineptitude, his stupefying reaction is to be bombastic, dictatorial, lose his temper and throw tantrums. He cannot believe Kikuyus are no longer enamoured by the Kenyattas, much less him. He wants to be feared, just like his father and Moi wanted. When that doesn’t happen, he becomes abusive and insults everyone. He wants to be feared and loved at the same time.”
The BBI (II) is a dynastic elite pact between the Kenyatta and Moi families that is assisted by Raila Odinga to retain their stranglehold on the country’s political power, surmised a senior from Rift Valley and a close friend of the deputy president. “For Uhuru to hang onto power, he has to expand the executive to accommodate and calm the aspirations of several other ethnic kings to assuage his own power grab.”
To this extent, said the politician, BBI (II) wants the executive expanded into having a president and his two deputy presidents, an executive prime minister and his two deputies and finally regional governors. “In short, BBI (II), by proposing the new positions of regional governors, is resorting to the old format of a provincial administration structure of provincial commissioners, district officers and local chiefs reporting to the centre.” The politician hinted that the centre has never been comfortable with devolution. The recent unconstitutional transfer of powers from the Nairobi County to the executive is just a curtain-raiser of things to come.”
For this to happen, the grand architects of BBI (II) cannot escape a referendum. “Änd this is where their real problems will begin,” said the Ruto ally. “Why? Because Ruto has stolen the thunder from President Uhuru and Raila. His strategy is to fight within the BBI territory and not without. As his close friend told me, he is better off peeing inside than outside, which is why Ruto and his team decided to not openly fight the proponents of BBI and their document.”
“But the 60-million-dollar question is this,” posed the politician, “Do you think if it came to the referendum question and Ruto decided to oppose it, the BBI (II) proponents would defeat him in a straight fight?” The Ruto ally told me that the deputy president was toying with several options in his efforts to tame BBI (II). One of them is to, at the appropriate time, assemble a team of between 30 to 50 legal experts who would have scrutinised and scoured the document with a toothcomb before going to court and arguing that the document is neither anchored in the Kenyan law nor recognised by any constitutional statutes.
The beginning of the year saw BBI (II) commence its popularisation campaign meetings in what one Jubilee Party mandarin cheekily described as NASA zones: Kakamega, Kisii, Mombasa and Kitui. “Let’s see how they are going to fair on in Eldoret, Kiambu, Kirinyaga, Meru, Nakuru and Nyeri.”
The BBI (II) is a dynastic elite pact between the Kenyatta and Moi families that is assisted by Raila Odinga to retain their stranglehold on the country’s political power, surmised a senior from Rift Valley and a close friend of the deputy president. “For Uhuru to hang onto power, he has to expand the executive to accommodate and calm the aspirations of several other ethnic kings to assuage his own power grab.”
A friend who works at the Makueni County governor’s office in Wote told me he recently accompanied the governor to inspect some county projects and the people who generally are happy with their governor, Prof Kivutha Kibwana, did not fail to put him to task over his apparent cozying up to BBI (II) mandarins.
“Musomi withinwa ni kyao yiulu wa BBI? Na yiikwaatene na maundu ma andu onthe. Nitwisi BBI nikyau…tikwondu wa mathina maitu…indi ni kwa kuaana maunini kwa ala oi nakumuthingii Uhuru silikalini.” Professor, why are you getting entangled with this BBI politics? We know what BBI is all about…it’s not about our welfare…it’s about elite power sharing and sneaking Uhuru back to power.
On January 20, 2019, Jubilee Party MPs and senators who are aligned to the deputy president, after congregating in Naivasha town for two days, issued a raft of ultimatums concerning the ongoing BBI (II) meetings. They styled their meeting like a Parliamentary Group meeting, which the party Secretary-General and Cabinet Secretary without portfolio, Raphael Tuju, objected to by issuing a press statement saying the MPs’ meeting was not a Jubilee Party affair. “We have noted with great concern the manner in which BBI popularisation rallies have been conducted so far,” said part of the Naivasha memo. “The discussions have mainly been on personalities and positions for the political class.”
On that same day, the president, feeling the heat of the Naivasha meeting, summoned Ruto to his office at State House, Nairobi. According to my sources, the president was breathing fire. Why are Jubilee Party MPs rebelling against him? asked a worked-up president to his deputy. The president also wondered loudly why Kikuyu MPs were taking him on. Convene a parliamentary group meeting and call the MPs to order, was supposedly his deputy’s answer.
Indeed, even as 2022 fast approaches and the political temperature in the country rises amidst hard economic times, food insecurity and locust invasions, it is crystal clear that BBI (II) inspires little confidence, especially in the president’s own backyard where people are tired of being held hostage by the Kenyatta family. It is a reminder that Kenya is stuck in a deep political rut and held hostage by a cabal of ethno-chauvinists who have perfected the art of subverting democracy by introducing a new cast of enemies-turned-allies.
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Is Somalia’s Quest for Membership of the EAC Premature?
Somalia must first ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the East African Community.
The current members of the East African Community (EAC) are Tanzania, Kenya, Uganda, Rwanda, Burundi, and South Sudan. The Somali Federal Government, under the leadership of Hassan Sheikh Mohamud, has expressed a strong interest in joining the EAC, sparking questions among Somali citizens as to whether the country is ready to join such a large and complex regional bloc.
During President Hassan Sheikh Mohamud initiated Somalia’s pursuit of EAC membership during his previous term as a president from 2012 to 2017. However, little progress was made during his first term and, following his re-election, President Hassan reignited his pursuit of EAC membership without consulting essential stakeholders such as the parliament, the opposition, and civil society. This unilateral decision has raised doubts about the president’s dedication to establishing a government based on consensus. Moreover, his decision to pursue EAC membership has evoked mixed responses within Somalia. While some Somalis perceive joining the EAC as advantageous for the country, others express concerns about potential risks to Somalia’s economic and social development. President Hassan has defended his decision, emphasising that Somalia’s best interests lie in becoming a member of the EAC.
To assess Somalia’s readiness to join the EAC, the regional bloc undertook a comprehensive verification mission. A team of experts well versed in politics, economics, and social systems, was tasked with evaluating Somalia’s progress. The evaluation included a thorough review of economic performance, trade policies, and potential contributions to the EAC’s integration efforts. During this process, the team engaged with various government institutions and private organisations, conducting comprehensive assessments and discussions to gauge Somalia’s preparedness.
One of the key requirements for Somalia is demonstrating an unwavering commitment to upholding principles such as good governance, democracy, the rule of law, and respect for human rights. Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Successful integration into the EAC would not only elevate Somalia’s regional stature but would also foster deeper bonds of cooperation and shared prosperity among the East African nations. While this is a positive step towards regional integration and economic development, there are several reasons for pessimism about the potential success of Somalia’s membership in the EAC.
Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Somalia has faced significant challenges due to prolonged conflict and instability. The decades-long civil war, coupled with the persistent threat of terrorism, has had a devastating impact on the country’s infrastructure, economy, governance systems, and overall stability.
The following fundamental factors raise valid concerns about Somalia’s readiness to effectively participate in the EAC.
Infrastructure plays a critical role in regional integration and economic growth. However, Somalia’s infrastructure has been severely damaged and neglected due to years of conflict. The country lacks adequate transportation networks, reliable energy systems, and while communications infrastructure has improved, internet penetration rates remain low and mobile networks – which are crucial for seamless integration with the EAC – can be unavailable outside of urban centres. Rebuilding such infrastructure requires substantial investments, technical expertise, and stability, all of which remain significant challenges for Somalia.
Political stability and governance
The EAC places emphasis on good governance, democracy, and the rule of law as prerequisites for membership. Somalia’s journey towards political stability and effective governance has been arduous, with numerous setbacks and ongoing power struggles. The lack of a unified government, coupled with weak state institutions and a history of corruption, raises doubts about Somalia’s ability to meet the EAC’s standards. Without a stable and inclusive political environment, Somalia may struggle to effectively contribute to the decision-making processes within the regional bloc.
Economic development and trade
Somalia’s economy has been heavily dependent on the informal sector and faces substantial economic disparities. The country needs to demonstrate a vibrant market economy that fosters regional trade and collaboration, as required by the EAC. However, the challenges of rebuilding a war-torn economy, tackling high poverty rates, and addressing widespread unemployment hinder Somalia’s ability to fully participate in regional trade and reap the benefits of integration.
Somalia continues to grapple with security challenges, including the presence of extremist groups and maritime piracy. These issues have not only hindered the country’s development but also pose potential risks to the stability and security of the entire EAC region. It is crucial for Somalia to address these security concerns comprehensively and to establish effective mechanisms to contribute to the EAC’s collective security efforts.
Economic Disparity and Compatibility
Somalia’s economy primarily relies on livestock, agriculture, and fishing, which may not align well with the more quasi-industralised economies of the other EAC member states. This mismatch could result in trade imbalances and pose challenges for integrating Somalia into the regional economy. For instance, according to the World Bank, Somalia’s GDP per capita was US$447 in 2021 whereas it is US$2081 for Kenya, US$1099 for Tanzania, and US$883 for Uganda. Furthermore, Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
This divergence in economic structures could lead to trade imbalances and impede the seamless integration of Somalia into the regional economy. The substantial economic gap between Somalia and other EAC member states suggests a significant disparity that may hinder Somalia’s ability to fully participate in the EAC’s economic activities. Additionally, Somalia has yet to demonstrate fiscal or economic discipline that would make it eligible for EAC membership. While Somalia has a functioning Central Bank and the US dollar remains the primary mode of financial transactions, the risk of integration lies with the other EAC members; cross-border trade would occur in an environment of instability, posing potential risks to the other member state.
Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
While these fundamental challenges remain, it is important to acknowledge the progress Somalia has made in recent years. This includes the gradual improvement in security conditions, the establishment of key governmental institutions, and the peaceful transfer of power. One can also argue that many of these fundamental economic, infrastructure, political instability, and security concerns exist across the East African Community. However, what makes Somalia unique is the scale of the challenges it faces today. Somalia has adopted a federal political structure, which has not worked well so far. This level of fragmentation and civil political distrust makes Somalia’s case unique. More than ever, Somalia needs meaningful political and social reconciliation before it can embark on a new regional journey.
The absence of an impact assessment by the relevant ministries in Somalia is alarming. Without this assessment, it becomes challenging to make informed decisions about the potential benefits of joining the EAC and the impact on our economy and society. Conducting this assessment should be a priority for Somalia’s ministries to ensure a comprehensive evaluation of the potential benefits and risks involved in EAC membership. Furthermore, President Hassan Sheikh Mohamud’s decision to pursue Somalia’s integration into the EAC lacks political legitimacy as a decision of this nature would normally require ratification through a popular vote and other legal means through parliament. The failure to achieve this could potentially allow another president in the future to unilaterally announce withdrawal from the EAC.
Fragile state of Affairs and internal disputes
The recent reopening of the Gatunda border post between Uganda and Rwanda after a three-year period of strained relations indicates a fragile state of affairs. The East African Court of Justice has ruled that Rwanda’s initial closure of the border was illegal, highlighting the contentious nature of inter-country disputes. Furthermore, Tanzania and Uganda have formally lodged complaints against Kenya, alleging unfair advantages in trade relations, and have even gone as far as threatening Kenya with export bans. These grievances underscore the underlying tensions and competition between member states, which could potentially hinder the harmonious functioning of the East African Community. These political and economic disagreements among member states increase the risks associated with Somalia’s membership. Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions. Joining the East African Community at this juncture carries the risk of being drawn into ongoing disputes and potentially being caught in the crossfire of inter-country rivalries.
Conflict in South Sudan
The prolonged conflict in South Sudan, which has been ongoing since its admission to the East African Community (EAC) in 2016, serves as a cautionary tale for Somalia. Despite the EAC’s efforts to mediate and foster peace in the region, the outcomes have been mixed, resulting in an unsustainable peace. This lack of success highlights the challenges faced by member states in resolving conflicts and maintaining stability within the community. Somalia must carefully evaluate whether its participation in the EAC will genuinely contribute to its stability, economic growth, and development, or if it risks exacerbating existing internal conflicts. Joining the community without a solid foundation of political stability, institutions, and peace could potentially divert resources and attention away from domestic issues, hindering Somalia’s progress towards resolving its own challenges. South Sudan’s admission to the EAC in 2016 was seen as a major step towards regional integration and stability. However, the country has been mired in conflict ever since, with two civil wars breaking out in 2013 and 2016. The EAC has been involved in mediation efforts, with mixed results.
Somalia must evaluate the readiness of its institutions, infrastructure, and economy to effectively engage with the East African Community. Comprehensive preparations are crucial to ensure that joining the community is a well thought-out and strategic decision, rather than a hasty move that could further destabilise the nation. Somalia needs to assess whether its infrastructure, institutions, and economy are sufficiently developed to cope with the challenges and demands of integration. Premature membership could strain Somalia’s resources, impede its growth, and leave it at a disadvantage compared to more established member states.
Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions.
Somalia must ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the EAC. A phased approach that prioritises capacity building, institution-strengthening, and inclusive governance would enable Somalia to lay a solid foundation for successful integration and reap the maximum benefits from EAC membership in the long term. Failure to address these concerns would make Somalia vulnerable to exploitation and market monopolies by stronger economies, and could also risk a lack of seamless convergence for Somalia’s membership. While there is political will from EAC leaders to support Somalia’s membership, it is vitally important that they make the right decision for Somalia and the EAC bloc as a whole to ensure a successful integration. I believe that, at this juncture, the disadvantages of Somalia joining the EAC outweigh the benefits.
2023 Marks 110 Years Since the Maasai Case 1913: Does it Still Matter?
It was a landmark case for its time, a first for East Africa and possibly for the continent. A group of Africans challenged a colonial power in a colonial court to appeal a major land grab and demand reparations. They lost on a technicality but the ripple effects of the Maasai Case continue to be felt.
In the name Parsaloi Ole Gilisho there lies an irony. It was spelled Legalishu by the colonial British. Say it out loud. He gave them a legal issue, all right. And a 110-year-old headache.
This extraordinary age-set spokesman (a traditional leader called ol-aiguenani, pl. il-aiguenak) led non-violent resistance to the British, in what was then British East Africa, that culminated in the Maasai Case 1913. Ole Gilisho was then a senior warrior, who was probably in his mid- to late thirties. In bringing the case before the High Court of British East Africa, he was not only challenging the British but also the Maasai elders who had signed away thousands of acres of community land via a 1904 Maasai Agreement or Treaty with the British. This and the 1911 Agreement – which effectively rendered the first void – are often wrongly called the Anglo-Maasai Agreements. In Ole Gilisho’s view, and those of his fellow plaintiffs, these elders had sold out. The suit accused them of having had no authority to make this decision on behalf of the community. This represented a very serious challenge by warriors to traditional authority, including that of the late laibon (prophet) Olonana, who had signed in 1904, and died in 1911.
The British had expected the Maasai to violently rebel in response to these issues and to colonial rule in general. But contrary to modern-day myths that the Maasai fought their colonisers, here they resisted peacefully via legal means. They hired British lawyers and took the British to their own cleaners. Spoiler: they lost, went to appeal, and lost again. But archival research reveals that the British government was so convinced it would eventually lose, if the Maasai appealed to the Privy Council in London (they didn’t), that officials began discussing how much compensation to pay.
The facts are these. The lawsuit was launched in 1912. There were four plaintiffs, Ole Gilisho and three fellow Purko (one of the 16 Maasai territorial sections) Maasai. In Civil Case No. 91 they claimed that the 1911 Maasai Agreement was not binding on them and other Laikipia Maasai, that the 1904 Agreement remained in force, and they contested the legality of the second move. They demanded the return of Laikipia, and £5,000 in damages for loss of livestock during the second move (explained below). Ole Gilisho was illiterate and had never been to school. But he and his fellow plaintiffs were assisted by sympathetic Europeans who were angered by the injustice they saw being perpetrated against a “tribe” that British administrators conceded had never given them any trouble. These sympathisers included people who worked for the colonial government, notably medical Dr Norman Leys and some district officials, lawyers, a few missionaries, the odd settler, and a wider group of left-wing MPs and anti-colonial agitators in Britain.
What had led up to this? After the 1904 Agreement, certain groups or sections of Maasai had been forcibly moved from their grazing grounds in the central Rift Valley around Naivasha into two reserves – one in Laikipia, the other in the south on the border with German East Africa. The British had pledged that this arrangement was permanent, that it would last “so long as the Maasai as a race shall exist”. But just seven years later, the British went back on their word and moved the “northern” Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve. In all, it is estimated that the Maasai lost at least 50 per cent of their land, but that figure could be nearer 70 per cent. The ostensible reason for moving them was to “free up” land for white settlement – largely for British settlers but also for South Africans fleeing the Boer War (also called the South African War).
But just seven years later, the British went back on their word and moved the ‘northern’ Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve.
By the time the case came to court, Ole Gilisho had become a defendant, even though he was in favour of the plaint. So were at least eight other defendants. He had signed the 1904 Agreement, and now stood accused with 17 other Maasai of having no authority to enter into such a contract. The first defendant was the Attorney General. Ole Gilisho’s son-in-law Murket Ole Nchoko, misspelled Ol le Njogo by the British, and described as a leading moran (il-murran or warrior) of the Purko section, was now the lead plaintiff. The plaint was called Ol le Njogo and others v. The Attorney General and others.
Challenges facing the plaintiffs
Most Maasai were illiterate in those days, and this obviously placed them at a major disadvantage. They could not write down their version of events. They were forced to rely, in their dealings with officials and their own lawyers, upon translators and semiliterate mediators whose reliability was questionable. But it is evident, from the archival record which includes verbatim accounts of meetings between Maasai leaders and British officials in the run-up to the moves and case, that the level of verbal discourse was highly sophisticated. This comes as no surprise; verbal debate is a cornerstone of Maasai society and customary justice. Unfortunately, that alone could not help them here. They knew they needed lawyers, and asked their friends for help. Leys, who was later sacked from the colonial service for his activism, admitted in a private letter: “I procured the best one in the country for them.” This was more than he ever admitted openly.
Local administrators used intimidation and all kinds of devious means to try and stop the case. (I didn’t come across any evidence that the Colonial Office in London sanctioned this; in fact, it ordered the Governor not to obstruct the main lawyer or his clients.) They allegedly threatened Ole Gilisho with flogging and deportation. They threatened and cross-questioned suspected European sympathisers, including Leys and the lawyers. They banned Maasai from selling cattle to raise the legal fees, and placed the Southern Reserve in continuous quarantine. It was hard for the plaintiffs, confined to a reserve, to meet their lawyers at all. At one point, lawyers were refused passes to enter the reserve, and their clients were prevented from leaving it.
We hear Ole Gilisho’s voice in the archival record. Forced to give a statement explaining his actions to officials at Enderit River on 21 June 1912, when asked if he had called Europeans to his boma, he replied: “Is it possible for a black man to call a white man?” He denied having called the Europeans (probably lawyers or go-betweens), saying they had come to him. Leys later explained to a friend that Ole Gilisho had probably been “terrified out of his wits”, and hadn’t meant what he said.
What happened in court
The case was thrown out when it first came before the High Court in Mombasa in May 1913. The Maasai appealed, and that is when the legal arguments were fully aired by both sides – lawyers for the Crown and the Maasai. The appeal was dismissed in December on the grounds that the plaintiffs’ claims were not cognisable in municipal courts. The two agreements were ruled not to be agreements but treaties, which were Acts of State. They could not, therefore, be challenged in a local court. It was impossible for the plaintiffs to seek to enforce the provisions of a treaty, said the judges – “The paramount chief himself could not bring such an action, still less can his people”. Claims for damages were also dismissed.
The Court of Appeal’s judgement centred on the status of a protectorate, in which the King was said to exercise powers granted to him under the Foreign Jurisdiction Act of 1890. Irrational as it sounds, the Crown claimed that British East Africa was not British territory, and the Maasai were not British subjects with any rights of access to British law, but “protected foreigners, who, in return for that protection, owe obedience” to the Crown. As Yash Pal Ghai and Patrick McAuslan later put it, when discussing the case in a 1970 book: “A British protected person is protected against everyone except the British.” On the plus side, the judges ruled that the Maasai still retained some “vestige” of sovereignty. (The Maasai’s lawyer argued that they did not.) This triggered later moves by Maasai politicians, in the 1960s, to float the idea of secession from Kenya and the possible creation of a sovereign Maasai state. John Keen had threatened this in 1962 at the second Lancaster House Conference in London, attended by a Maasai delegation.
Alexander Morrison, lawyer for the Maasai, argued that British rule and courts were established in the protectorate, which had not been the case 30 years earlier. The Maasai were not foreigners but equal to other British subjects in every way. The agreements were civil contracts, enforceable in the courts, and not unenforceable treaties. If one took the Crown’s claim about Acts of State to its logical conclusion, he argued, a squatter refusing to leave land reserved for the Maasai could only be removed by an Act of State. None of his arguments washed with the judges. (See my 2006 book Moving the Maasai for a fuller account.)
Morrison advised his clients to appeal. It seems they couldn’t raise the funds. However, oral testimony from elders reveals a different story: Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea. This is impossible to verify, but it rings true.
In an interview carried out on my behalf in 2008 by Michael Tiampati, my old friend John Keen had this to say about the outcome of the case: “If the hyena was the magistrate and the accused was a goat, you should probably know that the goat would not get any form of justice. So this is exactly how it was that the Maasai could not get any fair justice from British courts.”
Contemporary African resistance
Unbeknown to the Maasai, there was growing anti-colonial resistance in the same period in other parts of Africa. All these acts of resistance have inspired African activists in their continuing struggles. To mention a few: the Chilembwe rebellion in Nyasaland, now Malawi (1915); the Herero revolt in German South West Africa, now Namibia (1904–1908); resistance in present-day Kenya by Mekatilili wa Menza (largely 1913-14); the First Chimurenga or First War of Independence in what is now Zimbabwe (1896–1897); and the Maji Maji rebellion in German East Africa, now Tanzania (1905–1907). But none of these rebellions involved lawsuits. The closest precedent may have been R vs Earl of Crewe, Ex-parte Sekgoma in 1910. Chief Sekgoma, who had been jailed by the British in the Bechuanaland Protectorate (now Botswana) after many attempts to remove him as chief, instructed his lawyer to bring a writ of habeus corpus against the Secretary of State for the Colonies, Lord Crewe. He demanded to be tried in an English court, refusing an offer of release on condition that he agrees to live in a restricted area of the Transvaal. The suit was dismissed, the court ruling that the King had unfettered jurisdiction in a protectorate, and his right to detain Sekgoma was upheld. Sekgoma apparently said: “I would rather be killed than go to the Transvaal. I will not go because I have committed no crime – I wish to have my case tried before the courts in England or else be killed.” Freed in 1912, he died two years later.
The case, and other key events in early twentieth century Maasai history, have given rise to several myths. They include the idea that the stolen land should “revert” to the Maasai after 100 years, but that was not stated in the 1904 Agreement, which was not limited in time, was not a land lease, and has not “expired” as many people claim. Neither agreement has. Keen knew this, but nonetheless called for the land to “revert”. Other myths include the idea that Olonana’s thumbprint was placed on the 1911 Agreement posthumously, and it must therefore be invalid. But neither his thumbprint nor name are on the document, which was “signed” by his son Seggi. Anyhow, Olonana was a key ally of the British, who had no reason to kill him (which is another myth).
The original of the 1904 Agreement has never been found, which has led some Maasai to believe that it never existed and therefore all the land must be restored and compensation paid for its use to date. There may be sound legal arguments for restorative justice, but this is not one of them. These myths are ahistorical and unhelpful, but may be understood as attempts to rationalise and make sense of what happened. Some activists may wish that the Maasai had resisted violently, rather than taken the legal route. Hence the insistence by some that there was a seamless history of armed resistance from the start of colonial rule. Not true. There are much better arguments to be made, by professional lawyers with an understanding of international treaty rights and aboriginal title, which could possibly produce results.
Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea.
Where does all this leave the Maasai today? Over the years, there has been much talk of revisiting the case and bringing a claim against Britain (or Kenya) for the return of land or reparations for its loss. None of this has resulted in concrete action. I attended a planning workshop in Nairobi in 2006 when plans were laid for a lawsuit. VIPs present included the late Ole Ntimama, scholar Ben Kantai and John Keen. Keen declared, with his customary flourish, that he would stump up a million shillings to get the ball rolling. I don’t know how much money was raised in total, but it disappeared into thin air. As did the lawyers.
Leading lawyers have advised that too much time has passed, and (unlike the successful Mau Mau veterans’ suit) there are no living witnesses who could give evidence in court. It is unclear whether the agreements still have any legal validity. The British government might argue, as it previously has, including in response to my questions, that it handed over all responsibility for its pre-1963 actions to the Kenyan government at independence. This is a ludicrous argument, which is also morally wrong. Former colonial powers such as Germany have accepted responsibility for historical injustices in their former colonies, notably Namibia. Has the time come for Ole Gilisho’s descendants to call a white man to court?
Who Is Hustling Who?
In Kenya, political elites across the spectrum are trying to sell off the country for themselves—capitulation is inevitable.
My drive to Limuru happened on the first Wednesday (July 19) of the protests. Everything was eerily quiet, Nairobi, renowned for its traffic jams, was quiet. Matatus and buses were parked in their hubs. Shops and stalls were closed. Even the hawkers that dot the roads and highways stayed home. Save for the heavy police presence everywhere, it felt like the country had come to a standstill.
We got to Kangemi shortly after the police had shot and wounded two protestors—the road was strewn with stones and armed riot police huddled by the side of the road waiting for the next wave of attacks that never came. In the end, six people would be shot to death throughout the country, and countless were injured and arrested. Coming from the US, where police arrest protestors and shoot black people, there were no surprises here. The US can hardly be the standard of good policing or democratic practices, but the lives lost simply for asking the government to center the people in its economic planning seemed especially cruel.
But it was the emptiness of the roads that made the whole drive eerie. Perhaps I was refracting what was happening in Kenya through what followed the 1982 coup in which 240 people were killed; or the ethnic clashes of the 1990s that culminated in the 2007 post-election violence. Yet, there was a general agreement among people that there was something different about the Kenya of today—that something was already broken and the nightmares to come were slowly but surely revealing themselves—like a bus carrying passengers and the driver realizing the brakes were out just as it was about to descend a steep hill.
Voting with the middle finger
But all this was predictable. President Ruto has been a known quantity since the 1990s when he led the violent Moi youth wingers. He and his running mate and later president, Uhuru Kenyatta, were brought in front of the ICC to face charges of crimes against humanity following the post-election violence in 2007. Some key witnesses disappeared and others were intimidated into silence. Who in their right mind gives evidence against those in control of the state? The ICC was already discredited as being Western-crimes-against-humanity friendly (the US has never been a signatory rightly afraid its former presidents, such as George Bush, would be hauled before the court). The ICC eventually withdrew the case in March 2015.
I kept asking everyone I met, why was Ruto voted in spite of his history? The answers varied: He rigged the elections; he did not rig and if he did, he only managed to be better at it than Raila Odinga; he appealed to the youth with the idea of building a hustler nation (what a telling term); the Kikuyus have vowed never to have a Luo president and therefore opted for Ruto who is Kalenjin as opposed to Odinga who is Luo.
I sat with older Kikuyu men in the little Nyama Choma spot in Limuru Market and they talked about a generational divide between the Kikuyu and youth (Ruto) and the elderly Kikuyus (Odinga). But the one I heard over and over again was that Kenyans are tired of the Kenyatta and Odinga political dynasties. As one Trump supporter was to say, they voted for him with the middle finger. And so, the Kenyans who voted for Ruto were giving a middle finger to the Kenyatta, Moi and Odinga political dynasties. But no one had really expected buyer’s remorse to kick in one year into the Ruto presidency.
I also asked about Odinga’s protests: what was the end game? One theory is that he was looking at power-sharing, having done it once before, following the 2007 elections. In our shorthand political language, he was looking for another handshake. Some said the people have a right to protest their government, and he is simply asking the government to repeal the tax hikes and reinstate the fuel subsidies. Others believed that he wants to be a genuine and useful voice of opposition for the good of the country and its poor.
My own theory is that he is attempting a people-powered, centered, democratic, and largely peaceful takeover—where people take to the streets to overthrow an unpopular government. We saw this in Latin America in the 2000s. In response to Odinga’s absence during the three days of protests (he was sick), some leaders in his Azimio party have started using this language. The only problem with this strategy is that the sitting government has to be wildly unpopular. Ruto still has a lot of support, meaning that he does not have to compromise or give up power. It was to my mind turning into a stalemate and I was worried that the state would respond with more state-sponsored violence.
But real economics broke the stalemate. In a country where people are barely surviving and the majority are poor without savings to rely on, or relatives to reach out to for help, the hawkers, small stall and shop owners simply went back to work. In other words, those that would have been hurt the most by three days of protests (a day at home literally means a day without food for the family) simply went back to work, and the matatus and buses hummed back to life, slowly on Thursday and full throttle by Friday.
Saturday around Westlands might as well have been as busy as a Monday as people overcompensated for lost time to either sell or shop. If the protests were going to succeed the opposition (composed of some of the wealthiest families in Kenya, including Odinga’s) really should have thought about how best to protect those who would be the most affected. They should find legal and innovative ways to put their money where their political mouths are.
Cuba as Kenya’s north star
Odinga had to change tactics and called for a day of protest against police violence instead of three-day weekly protests in perpetuity. He is now in danger of turning into a caricature of his old revolutionary self and becoming an Al Sharpton, who instead of protesting the American government for the police killings of black people, protests the police themselves leaving the government feeling sanctimonious. Obama or Biden could weigh in, in righteous indignation without offering any real change (remember Obama’s emotional pleas over gun shootings and police shootings as if he was not the one occupying the most powerful office in the US)?
The one question that keeps eating at me is this: why is the most apparent outcome at the time a surprise later? Ruto was always going to sell off Kenya with a percentage for himself and his friends. Odinga was always going to capitulate. The end result is that the Kenyan bus will continue to careen on without brakes. So, what is to be done?
I was in Cuba earlier this year. I got a sense of the same desperation I felt in Kenya but the difference is Cubans have free access to healthcare, education, housing, and food security. They have free access to all the things that make basic survival possible. Before calling for the tax hikes and cutting fuel subsidies might it not have been more prudent to have a safety net for Kenyans? Would that not have been the most logical thing? But of course not, Ruto is acting at the behest of the IMF and big money. Ruto has learned the art of pan-African political rhetoric. Abroad he can call for a different non-US-centered economic system and castigate the French president over paternalism but at home, his politics are hustler politics.
Life in Cuba is difficult, as a result of relentless sanctions from the US, but it is far from impossible. It remains the north star for those who understand discussions around fundamental change as the only starting point. We can have arguments about the nature of those fundamental changes, but we can all agree we should not be a country where one family, say the Kenyatta family, owns more than half a million acres of land. Or where, as Oxfam reported, four individuals hold more wealth than that held by 22 million Kenyans. The kind of politics that begin with a necessity for fundamental change will obviously not come from Ruto.
But one hopes it can still come from the Odinga camp. Or even better, from a genuinely progressive people-powered movement that has inbuilt questions of fundamental change in its political, economic, and cultural platform.
In spite of the empty roads, Limuru Market was thriving and Wakari Bar kept its reputation as one of the best places for Nyama Choma and for lively political conversations. People are paying attention, after all, it is their lives and livelihoods on the line. Politicians, especially those in the opposition and the political left should listen as well.
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