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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.

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

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

Politics

Kenya Chooses Its Next Chief Justice

The search for Kenya’s next Chief Justice that commenced Monday will seek to replace Justice David Maraga, who retired early this year, has captured the attention of the nation.

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Since Monday, the 12th of April 2021, interviews to replace retired Chief Justice David Maraga for the post of the most important jurist in Kenya and the president of the Supreme Court have been underway.

The Judiciary is one of the three State organs established under Chapter 10, Article 159 of the Constitution of Kenya. It establishes the Judiciary as an independent custodian of justice in Kenya. Its primary role is to exercise judicial authority given to it, by the people of Kenya.

The institution is mandated to deliver justice in line with the Constitution and other laws. It is expected to resolve disputes in a just manner with a view to protecting the rights and liberties of all, thereby facilitating the attainment of the ideal rule of law.

The man or woman who will take up this mantle will lead the Judiciary at a time when its independence and leadership will be paramount for the nation. He/she will be selected by the Judicial Service Commission in a competitive process.

KWAMCHETSI MAKOKHA profiles the ten candidates shortlisted by the JSC.

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IMF and SAPs 2.0: The Four Horsemen of the Apocalypse are Riding into Town

Stabilisation, liberalisation, deregulation, and privatisation: what do these four pillars of structural adjustment augur for Kenya’s beleaguered public health sector?

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IMF and SAPs 2.0: The Four Horsemen of the Apocalypse are Riding into Town
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The International Monetary Fund’s announcement on the 2nd of April 2020 that it had approved a US$ 2.3 billion loan for Kenya prompted David Ndii to spell it out to young #KOT (Kenyans on Twitter) that “the loan Kenya has taken is called a structural adjustment loan (SAPs). It comes with austerity (tax raises, spending cuts, downsizing) to keep Kenya creditworthy so that we can continue borrowing and servicing debt”, adding that the “IMF is not here for fun. Ask older people.” With this last quip, Ndii was referring to the economic hardship visited on Kenyans under the structural adjustment programmes of the 80s and 90s.

Well, I’m old enough to remember; except that I was not in the country. I had left home, left the country, leaving behind parents who were still working, still putting my siblings through school. Parents with permanent and pensionable jobs, who were still paying the mortgage on their modest “maisonette” in a middle class Nairobi neighbourhood.

In those pre-Internet, pre-WhatsApp days, much use was made of the post office and I have kept the piles of aerogramme letters that used to bring me news of home. In those letters my parents said nothing of the deteriorating economic situation, unwilling to burden me with worries about which I could do nothing, keeping body and soul together being just about all I could manage in that foreign land where I had gone to further my education.

My brother Tony’s letters should have warned me that all was not well back home but he wrote so hilariously about the status conferred on those men who could afford second-hand underwear from America, complete with stars and stripes, that the sub-text went right over my head. I came back home for the first time after five years — having left college and found a first job — to find parents that had visibly aged beyond their years and a home that was palpably less well-off financially than when I had left. I’m a Kicomi girl and something in me rebelled against second-hand clothes, second-hand things. It seemed that in my absence Kenya had regressed to the time before independence, the years of hope and optimism wiped away by the neoliberal designs of the Bretton Woods twins. I remember wanting to flee; I wanted to go back to not knowing, to finding my family exactly as I had left it — seemingly thriving, happy, hopeful.

Now, after eight years of irresponsible government borrowing, it appears that I am to experience the effects of a Structural Adjustment Programme first-hand, and I wonder how things could possibly be worse than they already are.

When speaking to Nancy* a couple of weeks back about the COVID-19 situation at the Nyahururu County Referral Hospital in Laikipia County, she brought up the issue of pregnant women having to share beds in the maternity ward yet — quite apart from the fact that this arrangement is unacceptable whichever way you look at it — patients admitted to the ward are not routinely tested for COVID-19.

Nancy told me that candidates for emergency caesarean sections or surgery for ectopic and intra-abdominal pregnancies must wait their turn at the door to the operating theatre. Construction of a new maternity wing, complete with its own operating theatre, has ground to a halt because, rumour has it, the contractor has not been paid. The 120-bed facility should have been completed in mid-2020 to ease congestion at the Nyahururu hospital whose catchment area for referrals includes large swathes of both Nyandarua and Laikipia counties because of its geographical location.

According to Nancy, vital medicine used to prevent excessive bleeding in newly delivered mothers has not been available at her hospital since January; patients have to buy the medication themselves. This issue was also raised on Twitter by Dr Mercy Korir who, referring to the Nanyuki Teaching and Referral Hospital — the only other major hospital in Laikipia County — said that lack of emergency medication in the maternity ward was putting the lives of mothers at risk. Judging by the responses to that tweet, this dire situation is not peculiar to the Nanyuki hospital; how much worse is it going to get under the imminent SAP?

Kenya was among the first countries to sign on for a SAP in 1980 when commodity prices went through the floor and the 1973 oil crisis hit, bringing to a painful halt a post-independence decade of sustained growth and prosperity. The country was to remain under one form of structural adjustment or another from then on until 1996.

Damaris Parsitau, who has written about the impact of Structural Adjustment Programmes on women’s health in Kenya, already reported in her 2008 study that, “at Nakuru District Hospital in Kenya, for example, expectant mothers are required to buy gloves, surgical blades, disinfectants and syringes in preparation for childbirth”. It would appear that not much has changed since then.

The constitution of the World Health Organisation states that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition” and that “governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.”

The WHO should have added gender as a discrimination criteria. Parsitau notes that “compared to men, women in Kenya have less access to medical care, are more likely to be malnourished, poor, and illiterate, and even work longer and harder. The situation exacerbates women’s reproductive role, which increases their vulnerability to morbidity and mortality.”

With economic decline in the 80s, and the implementation of structural adjustment measures that resulted in cutbacks in funding and the introduction of cost sharing in a sector where from independence the government had borne the cost of providing free healthcare, the effects were inevitably felt most by the poor, the majority of who — in Kenya as in the rest of the world — are women.

A more recent review of studies carried out on the effect of SAPs on child and maternal health published in 2017 finds that “in their current form, structural adjustment programmes are incongruous with achieving SDGs [Sustainable Development Goals] 3.1 and 3.2, which stipulate reductions in neonatal, under-5, and maternal mortality rates. It is telling that even the IMF’s Independent Evaluation Office, in assessing the performance of structural adjustment loans, noted that ‘outcomes such as maternal and infant mortality rates have generally not improved.’”

The review also says that “adjustment programmes commonly promote decentralisation of health systems [which] may produce a more fractious and unequal implementation of services — including those for child and maternal health — nationally. Furthermore, lack of co-ordination in decentralised systems can hinder efforts to combat major disease outbreaks”. Well, we are in the throes of a devastating global pandemic which has brought this observation into sharp relief. According to the Ministry of Health, as of the 6th of April, 325,592 people had been vaccinated against COVID-19. Of those, 33 per cent were in Nairobi County, which accounts for just 9.2 per cent of the country’s total population of 47,564,296 people.

The Constitution of Kenya 2010 provides the legal framework for a rights-based approach to health and is the basis for the rollout of Universal Health Coverage (UHC) that was announced by President Uhuru Kenyatta on 12 December 2018 — with the customary fanfare — as part of the “Big Four Agenda” to be fulfilled before his departure in 2022.

However, a KEMRI-Wellcome Trust policy brief states that UHC is still some distance to achieving 100 per cent population coverage and recommends that “the Kenyan government should increase public financing of the health sector. Specifically, the level of public funding for healthcare in Kenya should double, if the threshold (5% of GDP) … is to be reached” and that “Kenya should reorient its health financing strategy away from a focus on contributory, voluntary health insurance, and instead recognize that increased tax funding is critical.”

These recommendations, it would seem to me, run counter to the conditionalities habitually imposed by the IMF and it is therefore not clear how the government will deliver UHC nation-wide by next year if this latest SAP is accompanied by budgetary cutbacks in the healthcare sector.

With the coronavirus graft scandal and the disappearance of medical supplies donated by Jack Ma still fresh on their minds, Kenyans are not inclined to believe that the IMF billions will indeed go to “support[ing] the next phase of the authorities’ COVID-19 response and their plan to reduce debt vulnerabilities while safeguarding resources to protect vulnerable groups”, as the IMF has claimed.

#KOT have — with outrage, with humour, vociferously — rejected this latest loan, tweeting the IMF in their hundreds and inundating the organisation’s Facebook page with demands that the IMF rescind its decision. An online petition had garnered more than 200,000 signatures within days of the IMF’s announcement. Whether the IMF will review its decision is moot. The prevailing economic climate is such that we are damned if we do take the loan, and damned if we don’t.

Structural adjustment supposedly “encourages countries to become economically self-sufficient by creating an environment that is friendly to innovation, investment and growth”, but the recidivist nature of the programmes suggests that either the Kenyan government is a recalcitrant pupil or SAPs simply don’t work. I would say it is both.

But the Kenyan government has not just been a recalcitrant pupil; it has also been a consistently profligate one. While SAPs do indeed provide for “safeguarding resources to protect vulnerable groups”, political choices are made that sacrifice the welfare of the ordinary Kenyan at the altar of grandiose infrastructure projects, based on the fiction peddled by international financial institutions that infrastructure-led growth can generate enough income to service debt. And when resources are not being wasted on “legacy” projects, they are embezzled on a scale that literally boggles the mind. We can no longer speak of runaway corruption; a new lexicon is required to describe this phenomenon which pervades every facet of our lives and which has rendered the years of sacrifice our parents endured meaningless and put us in debt bondage for many more generations to come. David Ndii long warned us that this moment was coming. It is here.

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Politics

East Africa: A ‘Hotbed of Terror’

African states are involved in the War on Terror more than we think. They’re surrounded by an eco-system of the war industry.

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In late January, reports circulated on social media about a suspected US drone strike in southern Somalia, in the Al-Shabaab controlled Ma’moodow town in Bakool province. Debate quickly ensued on Twitter about whether the newly installed Biden administration was responsible for this strike, which was reported to have occurred at 10 p.m. local time on January 29th, 2021.

Southern Somalia has been the target of an unprecedented escalation of US drone strikes in the last several years, with approximately 900 to 1,000 people killed between 2016 and 2019. According to the nonprofit group Airwars, which monitors and assesses civilian harm from airpower-dominated international military actions, “it was under the Obama administration that a significant US drone and airstrike campaign began,” coupled with the deployment of Special Operations forces inside the country.

Soon after Donald Trump took office in 2017, he signed a directive designating parts of Somalia “areas of active hostilities.” While the US never formally declared war in Somalia, Trump effectively instituted war-zone targeting rules by expanding the discretionary authority of the military to conduct airstrikes and raids. Thus the debate over the January 29 strike largely hinged on the question of whether President Joe Biden was upholding Trump’s “flexible” approach to drone warfare―one that sanctioned more airstrikes in Somalia in the first seven months of 2020 than were carried out during the administrations of George W. Bush and Barack Obama, combined.

In the days following the January 29 strike, the US Military’s Africa Command (AFRICOM) denied responsibility, claiming that the last US military action in Somalia occurred on January 19, the last full day of the Trump presidency. Responding to an inquiry from Airwars, AFRICOM’s public affairs team announced:

We are aware of the reporting. US Africa Command was not involved in the Jan. 29 action referenced below. US Africa Command last strike was conducted on Jan. 19. Our policy of acknowledging all airstrikes by either press release or response to query has not changed.

In early March, The New York Times reported that the Biden administration had in fact imposed temporary limits on the Trump-era directives, thereby constraining drone strikes outside of “conventional battlefield zones.” In practice, this means that the US military and the CIA now require White House permission to pursue terror suspects in places like Somalia and Yemen where the US is not “officially” at war. This does not necessarily reflect a permanent change in policy, but rather a stopgap measure while the Biden administration develops “its own policy and procedures for counterterrorism kill-or-capture operations outside war zones.”

If we take AFRICOM at its word about January 29th, this provokes the question of who was behind that particular strike. Following AFRICOM’s denial of responsibility, analysts at Airwars concluded that the strike was likely carried out by forces from the African Union peacekeeping mission in Somali (AMISOM) or by Ethiopian troops, as it occurred soon after Al-Shabaab fighters had ambushed a contingent of Ethiopian troops in the area. If indeed the military of an African state is responsible for the bombing, what does this mean for our analysis of the security assemblages that sustain the US’s war-making apparatus in Africa?

Thanks to the work of scholars, activists, and investigative journalists, we have a growing understanding of what AFRICOM operations look like in practice. Maps of logistics hubs, forward operating sites, cooperative security locations, and contingency locations―from Mali and Niger to Kenya and Djibouti―capture the infrastructures that facilitate militarism and war on a global scale. Yet what the events of January 29th suggest is that AFRICOM is situated within, and often reliant upon, less scrutinized war-making infrastructures that, like those of the United States, claim to operate in the name of security.

A careful examination of the geographies of the US’s so-called war on terror in East Africa points not to one unified structure in the form of AFRICOM, but to multiple, interconnected geopolitical projects. Inspired by the abolitionist thought of Ruth Wilson Gilmore, who cautions activists against focusing exclusively on any one site of violent exception like the prison, I am interested in the relational geographies that sustain the imperial war-making infrastructure in Africa today. Just as the modern prison is “a central but by no means singularly defining institution of carceral geography,” AFRICOM is a fundamental but by no means singularly defining instrument of war-making in Africa today.

Since the US military’s embarrassing exit from Somalia in 1993, the US has shifted from a boots-on-the ground approach to imperial warfare, instead relying on African militaries, private contractors, clandestine ground operations, and drone strikes. To singularly focus on AFRICOM’s drone warfare is therefore to miss the wider matrix of militarized violence that is at work. As Madiha Tahir reminds us, attack drones are only the most visible element of what she refers to as “distributed empire”—differentially distributed opaque networks of technologies and actors that augment the reach of the war on terror to govern more bodies and spaces. This dispersal of power requires careful consideration of the racialized labor that sustains war-making in Somalia, and of the geographical implications of this labor. The vast array of actors involved in the war against Al-Shabaab has generated political and economic entanglements that extend well beyond the territory of Somalia itself.

Ethiopia was the first African military to intervene in Somalia in December 2006, sending thousands of troops across the border, but it did not do so alone. Ethiopia’s effort was backed by US aerial reconnaissance and satellite surveillance, signaling the entanglement of at least two geopolitical projects. While the US was focused on threats from actors with alleged ties to Al-Qaeda, Ethiopia had its own concerns about irredentism and the potential for its then-rival Eritrea to fund Somali militants that would infiltrate and destabilize Ethiopia. As Ethiopian troops drove Somali militant leaders into exile, more violent factions emerged in their place. In short, the 2006 invasion planted the seeds for the growth of what is now known as Al-Shabaab.

The United Nations soon authorized an African Union peacekeeping operation (AMISOM) to “stabilize” Somalia. What began as a small deployment of 1,650 peacekeepers in 2007 gradually transformed into a number that exceeded 22,000 by 2014. The African Union has emerged as a key subcontractor of migrant military labor in Somalia: troops from Burundi, Djibouti, Ethiopia, Kenya, and Uganda deployed to fight Al-Shabaab are paid significantly higher salaries than they receive back home, and their governments obtain generous military aid packages from the US, UK, and increasingly the European Union in the name of “security.”

But because these are African troops rather than American ones, we hear little of lives lost, or of salaries not paid. The rhetoric of “peacekeeping” makes AMISOM seem something other than what it is in practice—a state-sanctioned, transnational apparatus of violent labor that exploits group-differentiated vulnerability to premature death. (This is also how Gilmore defines racism.)

Meanwhile, Somali analyst Abukar Arman uses the term “predatory capitalism” to describe the hidden economic deals that accompany the so-called stabilization effort, such as “capacity-building” programs for the Somali security apparatus that serve as a cover for oil and gas companies to obtain exploration and drilling rights. Kenya is an important example of a “partner” state that has now become imbricated in this economy of war. Following the Kenya Defense Forces (KDF) invasion of Somalia in October 2011, the African Union’s readiness to incorporate Kenyan troops into AMISOM was a strategic victory for Kenya, as it provided a veneer of legitimacy for maintaining what has amounted to a decade-long military occupation of southern Somalia.

Through carefully constructed discourses of threat that build on colonial-era mappings of alterity in relation to Somalis, the Kenyan political elite have worked to divert attention away from internal troubles and from the economic interests that have shaped its involvement in Somalia. From collusion with Al-Shabaab in the illicit cross-border trade in sugar and charcoal, to pursuing a strategic foothold in offshore oil fields, Kenya is sufficiently ensnared in the business of war that, as Horace Campbell observes, “it is not in the interest of those involved in this business to have peace.”

What began as purportedly targeted interventions spawned increasingly broader projects that expanded across multiple geographies. In the early stages of AMISOM troop deployment, for example, one-third of Mogadishu’s population abandoned the city due to the violence caused by confrontations between the mission and Al-Shabaab forces, with many seeking refuge in Kenya. While the mission’s initial rules of engagement permitted the use of force only when necessary, it gradually assumed an offensive role, engaging in counterinsurgency and counterterror operations.

Rather than weaken Al-Shabaab, the UN Monitoring Group on Somalia observed that offensive military operations exacerbated insecurity. According to the UN, the dislodgment of Al-Shabaab from major urban centers “has prompted its further spread into the broader Horn of Africa region” and resulted in repeated displacements of people from their homes. Meanwhile, targeted operations against individuals with suspected ties to Al-Shabaab are unfolding not only in Somalia itself, but equally in neighboring countries like Kenya, where US-trained Kenyan police employ military tactics of tracking and targeting potential suspects, contributing to what one Kenyan rights group referred to as an “epidemic” of extrajudicial killings and disappearances.

Finally, the fact that some of AMISOM’s troop-contributing states have conducted their own aerial assaults against Al-Shabaab in Somalia demands further attention. A December 2017 United Nations report, for example, alleged that unauthorized Kenyan airstrikes had contributed to at least 40 civilian deaths in a 22-month period between 2015 and 2017. In May 2020, senior military officials in the Somali National Army accused the Kenyan military of indiscriminately bombing pastoralists in the Gedo region, where the KDF reportedly conducted over 50 airstrikes in a two week period. And in January 2021, one week prior to the January 29 strike that Airwars ascribed to Ethiopia, Uganda employed its own fleet of helicopter gunships to launch a simultaneous ground and air assault in southern Somalia, contributing to the deaths—according to the Ugandan military—of 189 people, allegedly all Al-Shabaab fighters.

While each of the governments in question are formally allies of the US, their actions are not reducible to US directives. War making in Somalia relies on contingent and fluid alliances that evolve over time, as each set of actors evaluates and reevaluates their interests. The ability of Ethiopia, Kenya, and Uganda to maintain their own war-making projects requires the active or tacit collaboration of various actors at the national level, including politicians who sanction the purchase of military hardware, political and business elite who glorify militarized masculinities and femininities, media houses that censor the brutalities of war, logistics companies that facilitate the movement of supplies, and the troops themselves, whose morale and faith in their mission must be sustained.

As the Biden administration seeks to restore the image of the United States abroad, it is possible that AFRICOM will gradually assume a backseat role in counterterror operations in Somalia. Officially, at least, US troops have been withdrawn and repositioned in Kenya and Djibouti, while African troops remain on the ground in Somalia. Relying more heavily on its partners in the region would enable the US to offset the public scrutiny and liability that comes with its own direct involvement.

But if our focus is exclusively on the US, then we succumb to its tactics of invisibility and invincibility, and we fail to reckon with the reality that the East African warscape is a terrain shaped by interconnected modes of power. The necessary struggle to abolish AFRICOM requires that we recognize its entanglement in and reliance upon other war-making assemblages, and that we distribute our activism accordingly. Recounting that resistance itself has long been framed as “terrorism,” we would do well to learn from those across the continent who, in various ways over the years, have pushed back, often at a heavy price.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.
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