Connect with us

Politics

Why It Is Highly Unlikely That the Constitution Can Be Amended Before 2022

11 min read.

There are at least three fundamental reasons why it is improbable that there will be BBI-inspired constitutional amendments before Kenya’s general elections in August 2022: one, the amendment procedure is long, onerous and complex; two, a broad and genuine political consensus is required; and three, the constitution explicitly creates checks against unconstitutional constitutional amendments.

Published

on

Why It Is Highly Unlikely That the Constitution Can Be Amended Before 2022
Download PDFPrint Article

When the Building Bridges Initiative (BBI) was launched and the promise made that we would soon have significant constitutional changes, I doubted that we would achieve any constitutional changes before 2022 – a critical timeline because of the general elections in August that year. I also doubted whether those who were rushing to speak about the imminent changes to the constitution had full appreciation of what it would really take to effect amendments to the 2010 constitution. Yet, some critical voices supporting the BBI even gave timelines of early to mid-2019 when Kenyans should expect the amendments to be in place.

Two years ago, I had both legal and political reasons to doubt why constitutional changes through the BBI process were an implausible improbability. I still hold most of those views but with the benefit of evidence, unlike two years back when my views were based mostly on logical deduction of what the constitution provides and anticipates on constitutional changes.

However, before I get into the reasons why constitutional changes before 2022 are highly improbable, a critical word about the nature of our constitution.

A people’s transformative constitution

The 2010 constitution is transformative. This nomenclature is critical. The constitution sought to overhaul instead of build on the past. The past was, in totality, undesirable and unsustainable. The constitution itself – and the process that brought it into being – contains many explicit and specific markers evincing its transformative nature.

First on process.

The 2010 constitution was drafted through a very participatory process. Critically, and as Yash Ghai argues, the 2010 constitution was the constitution the people imposed on the political elite. The level of participation facilitated by civil society and the Constitution of Kenya Review Commission (CKRC) and later the Committee of Experts (COE) was deliberate to ensure that significant content of the constitution derived from what the people wanted. In fact, desperate, last-minute attempts by Members of Parliament (MPs) to dilute the draft constitution through a raft of amendment proposals in Parliament failed, thanks to the ingenuity of the Constitution of Kenya Review Act 2018, which contained time-bound self-executing provisions to forestall any attempt at political subterfuge.

The 2010 constitution was drafted through a very participatory process. Critically, and as Yash Ghai argues, the 2010 constitution was the constitution the people imposed on the political elite.

The architecture of the constitution is additional evidence of its transformative nature. The constitution opens by underscoring the sovereignty of the people and the supremacy of the constitution, followed by national values and principles of governance, and then with a detailed and elaborate Bill of Rights. Unlike the former constitution, institutions of governance only feature in the middle part of the constitution – and not before it details, in Chapter Six, the integrity principles that regulate leadership. This is unlike the former 1969 constitution whose chapter arrangements consciously signalled a hierarchical president-centred state with the chapter on the presidency featuring very early on in the constitution in Chapter Two. In contrast, in the 2010 constitution, the executive is tucked away in Chapter Nine.

Additionally, the length and language of the 2010 constitution lends significant credibility to its mission of transformation. On length, the constitution is overly detailed, which signals a trust issue that Kenyans had, especially with lawmakers and the executive. The details were to ensure that lawmakers did not have much discretion to legislate on issues considered critical by the people (a sign of past constitutional trauma), given that under the former constitution lawmakers had, under the thumb of presidential patronage, been overly enthusiastic to amend the constitution and legislate on infinite retrogressive laws. On language, the constitution was drafted in the most plain and accessible English to dispel the past practice of making a constitution a document that is accessible mainly to lawyers and other elites in society. This accessibility creates a greater sense of ownership of the constitution by the people.

On implementation, the constitution attempted to insulate itself from executive manipulation by establishing and by extensively spelling out the institutions and rules of its implementation. To illustrate, the constitution created many independent bodies and commissions responsible for monitoring and enforcing implementation of varying aspects and granted courts extensive powers to adjudicate and enforce all constitutional aspects on any individual. While the executive may have now found a way to patronise most of those institutions through unmeritorious appointments, the institutions’ constitutional stature and powers still remain intact.

Finally, and critically, the content. There is a lot to discuss here, but I want to list four key features in the content of the constitution that points to its transformative nature: the centrality of the people; the ubiquity of values and principles of governance in every chapter of the constitution; the emphasis on the rule of law vis-à-vis the powers of the judiciary; and a very elaborate and onerous amendment procedure.

Now, let me go back to what I set out to discuss: the improbability of constitutional amendments through the BBI process.

The time and constitutional tethers on BBI

There are at least three fundamental reasons why constitutional amendments before 2022 are an improbability. First, our constitution provides a complex and onerous amendment procedure for any consequential amendment. Second, and because of this complex and onerous amendment procedure, for any amendment to succeed, a broad and genuine political consensus is required. The third reason is more technical and relates to the fact that our constitution explicitly creates checks against unconstitutional constitutional amendments, including those that affect the basic structure of the constitution.

Let me try to elaborate a bit more on each of these.

A complex and onerous amendment procedure

Articles 255 to 257 expressly stipulate the procedures necessary to effect constitutional amendments. Three possibilities are contemplated:

  1. The first amendment process is a simple one that only involves Parliament. This process, provided for under Article 256, allows for constitutional amendments through parliamentary approval. This procedure is reserved for minor, non-structural and mostly non-controversial amendments. However, even though the least demanding procedurally, the process is still quite elaborate. For example, it requires significant public participation, including ensuring that there is a three-month public consultation period between the time a constitutional amendment bill is tabled in the National Assembly or the Senate and its debate and consideration. Additionally, for a constitutional amendment to succeed, it must be supported by two-third members of each House of Parliament– a critical number that requires significant parliamentary mobilisation.
  2. The second amendment process involves more controversial amendments that touch on a subject that requires both the passage of amendments by Parliament through two-thirds support and a referendum. As I will discuss later, there are imponderable number of amendments that require passage through a referendum.
  3. The third amendment process through a popular initiative is the most onerous. The first step requires the sponsor of the amendment to collect, and have the Independent Electoral Boundaries Commission (IEBC) to verify that at least one million registered voters support the amendment. Once verified, the Bill is sent to the County Assemblies with a requirement that more than half of them approve it for it to be eligible for consideration by Parliament. The Okoa Kenya Bill of 2016 sponsored by the Coalition for Reform and Democracy (CORD) with so much fanfare failed at this first step. Thirdway Alliance’s Punguza Mzigo Bill of 2019 failed at the second step when only one County Assembly supported it. An amendment bill through a popular initiative still requires consideration by Parliament and has to meet the procedural hurdles required of amendment bills going through the other two processes except for one exception – if Parliament fails to pass a popular initiative bill, then the bill is put to a vote in a referendum. Regardless, even when a popular initiative bill is passed by Parliament but deals with an issue stipulated to require a referendum, it must still be voted for in a referendum.

The mandatory time needed to effect a constitutional amendment is lengthy. The timeline for passing a non-controversial Parliament-only amendment is at least seven months from the date the bill is first tabled in Parliament. This is because, beside the usual administrative processes a bill has to go through, there is the extra requirement that each house must wait for at least ninety days between the first and second reading of a constitutional amendment bill in order to facilitate thorough public participation. In legislative politics, seven months is a lifetime. It is impossible for sponsors of the bill to guarantee, from the outset, that initial support or consensus they procured for an amendment would be sustained for that long. This has been the fate of endless constitutional amendment bills introduced in Parliament to amend the 2010 constitution.

The role of courts in amending the constitution

There is another factor that makes the amendment process even more onerous and time-consuming – the courts. Courts have the power to look at whether the sponsors of a constitutional amendment have complied with the necessary constitutional procedure for each relevant step.

While it is unlikely that courts would interfere with amendments that are before Parliament – by, for example issuing orders to stall the parliamentary process – still the uncertainty that litigation presents becomes a hiccup in the process. This was the lesson MPs learnt, and through the hard way, in 2013 when they introduced a constitutional amendment bill that sought to take them out of the designation of state officers. The MPs had mistakenly thought that the amendment would allow them to raise their salaries and perks unfettered by the Salaries and Remuneration Commission. The Commission for the Implementation of the Constitution sued, requesting the court to declare the proposed amendments unconstitutional. Although Justice Lenaola, who decided the matter, did not restrain Parliament from its efforts to amend the constitution, his judgment was clear that if Parliament passed a constitutional amendment through a process that was non-compliant with the constitution, the court would invalidate the amendment. After the judgment, Parliament quietly abandoned the amendment bill. I still return to the role of courts when I discuss unconstitutional constitutional amendments below.

There is another factor that makes the amendment process even more onerous and time-consuming – the courts. Courts have the power to look at whether the sponsors of a constitutional amendment have complied with the necessary constitutional procedure for each relevant step.

Broad support and genuine consensus

The complexity and onerous demands to enact constitutional amendments were tools that the drafters of the constitution used to ensure that any proposed constitutional amendments enjoyed broad and multi-partisan and multi-sectoral support. The lengthy timeline needed to successfully pass constitutional amendments underlines the need for broad and genuine civic and political consensus-building. Because constitutional changes are high-stake issues, sustaining civic and political support that is based either on intimidation or political convenience is mostly untenable. Essentially the type of proposals that can weather the onerous amendment procedures and lengthy amendment processing timelines would be of the nature that address a genuine, enduring and people-centric issue.

There is another reason why broad support and consensus that go beyond the political elites is necessary to achieve constitutional amendments. Article 255 spells out amendments that must be subjected to a referendum, including on critical and significant issues, such as the territory of Kenya, the independence of the judiciary and the Bill of Rights.

The complexity and onerous demands to enact constitutional amendments were tools that the drafters of the constitution used to ensure that any proposed constitutional amendments enjoyed broad and multi-partisan and multi-sectoral support.

The list in Article 255 may seem unexpansive, but in reality and substance, it is a very elastic and nearly imponderable list. Regardless, most of the critical provisions that politicians would be keen to amend (judging from the Okoa Kenya Bill and the initial BBI report) would demand a referendum. This is because the politicians’ proposals have always oscillated around amendments relating to the supremacy of the constitution, the sovereignty of the people, the nature of or term of the president, national values, the functions of Parliament, the independence of the judiciary or devolution, all of which are enumerated as requiring passage through a referendum. Thus the kind of changes that politicians wish for to be able to create a power-sharing matrix that allows as many of them to be on the trough at the same time call for a referendum.

A referendum not only adds to the timelines, but presents other complexities. These include the need for significant financial outlay to fund the referendum, as well as the high possibility of political volatility and unsettling political and economic paralysis triggered by the referendum campaigns. These factors should be consequential in determining how much push BBI should expect from the state – and Kenyans’ goodwill – especially given the financial disruption that COVID-19 has imposed on the economy.

Those wielding executive political or “handshake” power might easily haggle for support for the amendments from the political elites by, for example, doling out political positions and financial handouts or through political intimidation. Yet these tactics are likely to be ineffective in procuring voters’ acquiescence. To be sure, without the certainty that a critical mass of voters will readily support proposed amendments makes a push for constitutional amendments tentative, illogical, unwise, and a fragile political gamble.

Importantly, when such a gamble is being taken so close to a constitutionally-ordained general election date, it is likely an unworthy venture. That is likely to be the fate of BBI. Essentially, by the time (if) the process has fully matured for a referendum, it will likely be too close to August 2022, forcing Raila Odinga to choose between a campaign for the presidency or a campaign to change the constitution. I can bet what his choice will be – as I can easily bet that if he decides to straddle both, it will likely be the surest way to lose both the referendum and the presidency. And for Uhuru Kenyatta, overseeing a general election and a referendum close to each other will only be politically sensible if he wants to be prime minister – an obvious political minefield.

Unconstitutional constitutional amendments and the basic constitution structure doctrine

A much more technical and unpredictable issue poses additional significant risks to the anticipated BBI amendments. Again, going by the initial reports and credible political rhetoric, the changes proposed are likely to affect at least two critical areas: the system of governance to introduce either a parliamentary system or a fused presidential and parliamentary system; and changes to help neuter the judiciary because of its consistent fidelity to the 2010 constitution and for arrogating itself the guard rail role to push back against the executive’s push towards authoritarianism.

An additional possible change is on devolution, dangled as a carrot either to appease voters by increasing the minimum amount of funds constitutionally transferred to counties or as a strategy to buy off the support of governors by creating a third tier of government which the retiring governors will believe is theirs to superintend.

Certainly I could be off the mark with the above predictions, but the bottom line is that after so much hype, it is hard to see what consequential amendments BBI would propose that will not, in form or substance, at least significantly alter the system of governance under the 2010 constitution.

But first a clarification on what unconstitutional constitution amendments and basic structure doctrine entails. The notion of basic structure holds that a constitution, like a multi-storey building, has varying architectural features. Some of these features (chapters or provisions) could be removed or substituted without affecting the structural integrity of the building. But there are basic or fundamental features that cannot be removed or substituted without compromising a building’s foundational and structural integrity. In the constitution, the basic or fundamental features or provisions constitute the basic structure of the constitution. The rule then is that provisions or features that constitute the basic structure of the constitution are unamendable. The only way to replace them is by overhauling the entire constitution.

The concept of unconstitutional constitutional amendments is broader. It encompasses the aspect of the basic structure of the constitution – which tend to deal with substantive content of the constitution – as well as the processes the constitution provides for its amendment. Where the constitution requires a certain procedure to be followed in its amendment, the consequence of non-compliance with any aspect of the procedure results in an unconstitutional constitutional amendment. Both concepts are central in determining the constitutionality and validity of any amendments made to the Kenyan constitution. But let’s start with the basic structure doctrine.

Essentially, by the time (if) the process has fully matured for a referendum, it will likely be too close to August 2022, forcing Raila Odinga to choose between a campaign for the presidency or a campaign to change the constitution.

Already Kenyan courts have accepted that certain features of the constitution constitute its basic structure, including the national values and principles of governance. Importantly, the court in the case pitting MPs against the Salaries and Remuneration Commission was emphatic and precise that it would declare invalid any constitutional amendments that interfere with the basic structure of the constitution. Additionally, in that case, the court demonstrated that it would thoroughly interrogate any constitutional amendment to be sure that in no way does it affect the basic structure or interfere with the internal coherence of the constitution. This approach allows the court – as it should – significant leeway to invalidate constitutional amendments created for political convenience or which are just a patchwork to facilitate selfish ends.

The logic of intertwining the basic structure doctrine and the concept of unconstitutional constitutional amendments is readily available. The latter insists on the need for those sponsoring an amendment to the constitution to ensure that they strictly adhere to constitutional processes of amendments, including observing the relevant mandatory timelines, ensuring adequate and effective public participation, including observing a mandatory 90-day constitutional hiatus between the first and second reading of the bill, among other more technical procedural requirements. Failure to comply with any of the enumerated or derivative normative requirements exposes any constitutional amendment to the risk of being invalidated by the court.

The true fate of BBI

Critically, the concept of unconstitutional constitutional amendments and the confirmation that Kenya’s 2010 constitution contains a basic structure has one significant implication for BBI or any other substantial amendments that may be proposed. The implication is that any substantial amendments that Parliament forces through without the involvement of the people through a referendum will be invalid.

This means that the efforts that Uhuru Kenyatta and Raila Odinga are currently involved in of whipping parliamentarians into line through carrot-and-stick tactics in preparation of stifling parliamentary dissent against BBI amendments may all end in nought. The true fate of BBI amendments hinge on time and the people.

Support The Elephant.

The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.

Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.

By

Waikwa is a constitutional lawyer and co-founder of Katiba Institute.

Politics

Asylum Pact: Rwanda Must Do Some Political Housecleaning

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

Published

on

Asylum Pact: Rwanda Must Do Some Political Housecleaning
Download PDFPrint Article

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

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

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

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

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

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

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

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

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

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

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

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

Continue Reading

Politics

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

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

Published

on

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

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

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

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

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

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

Labour migration as climate mitigation

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

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

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

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

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

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

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

Reparations include No Borders

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

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

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

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

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

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

Continue Reading

Politics

The Murang’a Factor in the Upcoming Presidential Elections

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

Published

on

The Murang’a Factor in the Upcoming Presidential Elections
Download PDFPrint Article

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue Reading

Trending