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Is the Kenyan Constitution on its Deathbed?

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The undermining of the 2010 constitution by the Executive and an emasculated opposition that has failed to defend constitutionalism threaten to unravel thirty years of constitution-building in Kenya. Will the Kenyan constitution die as a result of this? The quick answer to this question depends almost entirely on who the country chooses to be president in 2022 and on who will be the two speakers of Parliament.

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Is the Kenyan Constitution on its Deathbed?
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2010 – 2020: Ten years of constitutional resilience

Most of the commentary about the first ten years of the Constitution of Kenya 2010 have largely revealed a constitution under siege. The assault on the constitution has intensified in the last eight years during Uhuru Kenyatta’s presidency. This is not surprising since it is an open secret that Uhuru has little regard for the constitution, for the rule of law and for constitutionalism.

Worse, in the last few years, formal organised opposition – a significant guard rail of the constitution – crumbled. With the rapport between Uhuru and Raila Odinga through the so-called handshake, the opposition, a significant buffer that previously gave Uhuru’s government a bit of pause on assaulting the constitution, was eliminated. It is therefore not surprising that Uhuru and Raila are making a concerted effort to amend the constitution largely to suit their personal and political interests.

There is no doubt that the constitution has performed sub-optimally in the last ten years, especially because of the antagonism from state officers and agencies. Still, it is remarkable that it has survived the first ten years of its birth, despite the consistent and sustained assault on it by Uhuru’s regime.

But how much longer can the constitution endure the intentional, well-orchestrated and nefarious scheme to kill it? Will the constitution last long enough to see the passing of another decade? Even if it does, what state of ruin will it be in? Are there obvious things that will accelerate its death or strengthen its resilience?

Why constitutions die

Professors Zachary Elkins, Tom Ginsburg and James Melton, who have conducted empirical studies on the endurance of constitutions, identify the key factors that help predict how long a constitution will last. However presented, the factors boil down to two things: the design of the constitution and the environment under which the constitution operates.

There are different ways to expand on each of these factors, but first a critical statistic on the average age a constitution. In their analysis of national constitutions enacted since 1789, Elkins, Ginsburg, and Melton found that national constitutions only lasted an average of seventeen years. Yes, 17. This is a depressing fact, especially when one looks at how much effort and time goes into bringing about a new constitution. For example, the 2010 Kenyan constitution was the result of more than thirty years of active and persistent citizen and civil society agitation. And this is not appreciating that even the initial constitutional tensions immediately after independence were the first signs of the need to bring about a home-grown and more responsive people-centred constitution.

Operating environment and design of the 2010 constitution

No doubt, the ruling class has poisoned the environment in which the 2010 constitution has operated since its promulgation. It started with President Mwai Kibaki who tried to subvert it by usurping the powers of constitutional agencies through the illegal nominations of the Chief Justice and the Director of Public Prosecutions. The courts had to step in to restrain him. Many times, he violated the transitional provisions of the constitution by failing to follow the procedures that required him to consult with the Prime Minister before making significant decisions affecting the state. Worse, and despite working under a constitution that stipulated national values of leadership to include inclusion, Kibaki continued to perpetuate nepotism and tribalism in the manner in which he chose high-level public officers.

But while Kibaki was bad at priming the environment under which the constitution operated, his successor, Uhuru, has been worse. Although Kibaki regularly flouted the constitution, he was often quick to walk back whenever he was called out on his transgressions – in a sense confirming that the constitution was the ultimate decider. Unfortunately, this has not been the case with Uhuru, who obstinately disregards the constitution, consistently ignores court orders and actively encourages other public officers to do the same. Worse, he has perfected many of the vices that the constitution intended to eliminate – centralisation of power; rule by law; unmeritorious and unprocedural appointments; corruption; fanning nepotism and tribalism; undermining decentralisation, name it. His has deliberately and fully contaminated the environment under which the 2010 constitution has operated for the last eight years.

But while Kibaki was bad at priming the environment under which the constitution operated, his successor, Uhuru, has been worse. Although Kibaki regularly flouted the constitution, he was often quick to walk back whenever he was called out on his transgressions – in a sense confirming that the constitution was the ultimate decider.

Perhaps what has helped sustain the constitution is its design. No doubt, the 2010 Constitution was designed with the full awareness that the political elite will attempt to undermine it. A few illustrative design issues will make the point much better. These include the provisions on defending the constitution, including empowering any citizen to go to court and to petition other institutions, such as Parliament, to enforce it; and strong separation of power provisions, including setting up an independent Judiciary which can invalidate anything that is done by anyone outside the law. Other provisions include the creation of independent offices and commissions that are intended to be the front line enforcers of the constitution. Finally, and perhaps the most critical design aspect on the endurance of the constitution, is its provisions on amendments, which are complex, onerous and mostly impossible without critical national consensus.

Saving the constitution from premature death

If one was to obsess about the seventeen years statistic on the average life span of constitutions, it would suggest that the 2010 constitution is already past its mid age, with a great likelihood it will die before its 20th anniversary. However, the short life of national constitutions begs a much more important and forward-looking question – what could help save the 2010 constitution from possible early death?

I identify three things that need to be put into place if we are to save the constitution from premature death, and especially if we wish to see the constitution survive the next decade unscathed. Even if the constitution is amended, how can we ensure that the amendments will benefit Kenyans and not the political elites? Three things need to happen: (i) rebuilding confidence in the constitution; (ii) finding critical formal actors that believe in and can defend the constitution; and (iii) an implementation that delivers tangible constitutional goods to citizens.

Rebuilding confidence in the constitution

Perhaps the greatest threat to the constitution is the waning sense of confidence in it. There are fears that the constitution is taking too long to find stability. But we should have foreseen and prepared for this.

Kenya’s political life has been built on a scaffolding of simplistic narratives of messianic moments. It started with the struggle for independence, with a narrative that the coming of independence would obliterate Kenyans’ political and economic misery. Then there was the expectation that a change of guard from Jomo Kenyatta to Daniel arap Moi would be a turnaround opportunity for the country – and for a moment, Moi seemed to have fed that hope, especially by releasing political prisoners and developing a high-sounding but essentially hollow “Nyayo philosophy” of peace, love and unity. All this soon buckled under the weight of the lie for which the simplistic and feel-good “philosophy” was constructed.

The next messianic moment was in 1991 with the deletion of Section 2A from the 1969 Constitution which prohibited multipartyism. However, with the opposition politicians endlessly feuding, that messianic moment was also quickly lost.

Then in 2002 the country seemed to pin all its hopes for rejuvenation in the seemingly nationalistic alliance led by Mwai Kibaki. But Kibaki quickly killed the budding sense of nationalism as soon as he took over as president by denigrating the role that Raila Odinga and other key political actors were to play in the government. This disillusionment would – in less than five years – bring a people, who had been regarded as the most optimistic in the world in 2003, on the verge of civil war because of ethnicised political contestations.

But even the devastating events of the post-election violence of 2007/2008 were not sufficient to dissuade Kenyans from believing that there was still a chance for a magic wand moment. So, when the 2010 constitution was promulgated, many believed that this was the tool that would, with speed, transform Kenya politically and economically. The 2010 constitution was the ultimate political-legal messiah.

In many ways, placing overbearing hopes on the new constitution was not overly irrational. When fully implemented, this constitution has the potential to transform Kenya into an egalitarian society that places human dignity and social transformation for all at the centre. Devolution, even with all its infirmities in design and implementation, offers snippets of evidence of this. But because of the constitution’s social transformation potential, the political and economic elites, who thrive on an environment of lawlessness, have invested their last penny to undermine it.

But even the devastating events of the post-election violence of 2007/2008 were not sufficient to dissuade Kenyans from believing that there was still a chance for a magic wand moment. So, when the 2010 constitution was promulgated, many believed that this was the tool that would, with speed, transform Kenya politically and economically.

Worse, those hell-bent on immobilising the constitution have done so by conjuring up and feeding a narrative that it is an idealistic and unrealistic charter. Because they wield power, they have used their vantage points to counter most of the salutary aspects of the constitution. Uhuru Kenyatta’s consistent and contemptuous refusal to follow basic requirements of the constitution in executing the duties of his office, including his endless defiance of court orders, stands out as the most apt example here.

Yet all this is calculated to create cynicism among Kenyans about the potency of the constitution. Hoping that the cynicism will erode whatever goodwill Kenyans have towards the constitution, the elites believe that they can fully manipulate or eliminate the constiution entirely and replace it with laws that easily facilitate and legitimise their personal interests, as did Jomo Kenyatta and Moi.

Still, this constitution is unique because of the participatory manner through which it was developed and the fact that it is a consensus document for the people and not – as was with all past constitutions – a pact between the political and economic elites. The people’s goodwill towards it still seems inordinately firm.

Regardless, to give the constitution more authority, it is important to eliminate the growing sense of cynicism towards it and regenerate confidence amongst Kenyans about its the potential as a social transformation charter. A significant part of that regeneration must come from recruiting new critical formal actors who believe in and are committed to the implementation of the 2010 constitution.

Recruiting formal supporters of the constitution

The 2010 Constitution of Kenya survived the last ten years largely because of the Judiciary, some Chapter 15 Commissions and independent offices (especially the now defunct Commission for the Implementation of the Constitution), the Office of the Auditor General, the Kenya National Commission on Human Rights, and the first Salaries and Remuneration Commission (SRC). It has also survived because of a few vigilant citizens – leading among them being Okiya Omtatah Okoiti. Equally, there have been numerous civil society organisations that have sustained citizens’ mobilisation for the support of the constitution and relentlessly pushed for its implementation.

Ironically, two of the primary state organs created by the constitution – that is the Executive and Parliament – have posed the greatest threat to the constitution. Worse, Uhuru has been on a nefarious campaign to weaken even the key formal institutions that have been pro-constitution – especially the Judiciary and Chapter 15 commissions and independent offices. Presently, he has found a way to fully capture Chapter 15 institutions through a warped process of hiring commissioners and heads of independent offices to capture those institutions, thus isolating the Judiciary as the only state agency that is largely committed to constitutionalism.

But it is too much (and quite unfair) to expect the Judiciary to be the only state agency that shoulders the burden of trying to keep the constitution alive. Kenyans must find ways to generate sustained support for the constitution from other state officers and agencies.

If the constitution has a chance of surviving the next ten years, it must have additional state agencies who unequivocally believe and support it. The starting point must be the Executive. There is no doubt that if the next president (post-2022) is not a strong defender of constitutionalism, the 2010 constitution will likely irretrievably wither. Even if the document survives, we will not only have the situation that Prof. Okoth Ogendo aptly described as “constitution without constitutionalism”, we will be left with just a shell – a constitution without any pulse.

Why is the president so critical? Although the 2010 constitution dispersed power as much as possible, it still gave the resident a significant responsibility. Article 131 states that the president is the symbol of national unity. This requires him or her to be the first at respecting, upholding and safeguarding the constitution and the rule of law, as well as promoting and enhancing the unity of the nation. Hence, while there are many checks on the powers of the president, in practice he still wields significant legal, political and symbolic influence on all aspects of governance. If the next president leads at disrespecting or showing utter contempt for the constitution – as has been the case with Uhuru – the chances that the constitution will survive will be negligible.

Following the promulgation of the constitution in 2010, Parliament showed mixed results on its conviction on constitutionalism. But for all its faults, the 10th Parliament did a lot to help set up the infrastructure that the constitution needed for its implementation. This included laws and approval of persons to critical offices – including the Chief Justice and Chapter 15 commissioners who strongly believed in the rule of law. The then Speaker of Parliament, Kenneth Marende, also helped greatly to give Parliament some institutional integrity.

Regrettably, that cannot be said of the two current speakers of Parliament or the parliamentarians of the 12th Parliament. In fact, in 12th Parliament we have seen an institution that is so keen to supplicate at the feet of the president that it has fully eroded the enormous institutional power the constitution gives it and has fully compromised on its role as a check on the Executive.

Hence, for the constitution, what will be worse than a president who does not believe in constitutionalism will be the continuation of the unholy alliance between Parliament and the Executive. Yet, if Parliament was to fully appreciate its power of fostering the entrenchment of constitutionalism and its primary role of being the critical check on the Executive, the 2010 constitution would not only have a chance at survival, but would also likely deliver the tangible transformation it intends.

In a nutshell, it is unlikely that the Judiciary alone will be able to save the constitution in the next decade. In fact, it is unlikely that left as the lone ranger that fights for the constitution, the Judiciary itself will survive or manage to maintain any modicum of professionalism and independence. All this is to say that 2022 is a critical year for the 2010 constitution. A great deal of its survival largely depends on the persons who becomes president and who are the speakers in Parliament.

Implementation of the constitution must yield tangible goods

This takes me back to constitutional cynicism. Having executive and parliamentary leadership that believes in the 2010 constitution and constitutionalism will be key – but citizens’ patience of trying to relate a constitution to their economic and social welfare is running thin. This is not because people have no ability to do so since, even with all its infirmities, they have been able to see how the patchwork implementation of devolution has brought about tangible transformation.

This is sad for at least a couple of reasons. First, the national government has been undermining devolution either directly or indirectly by undermining county leadership, by failing to devolve sufficient funds or by undermining county functions through function-hogging or recentralisation.

In a nutshell, it is unlikely that the Judiciary alone will be able to save the constitution in the next decade. In fact, it is unlikely that left as the lone ranger that fights for the constitution, the Judiciary itself will survive or manage to maintain any modicum of professionalism and independence.

Second, the leadership has also undermined the most critical pillar of the 2010 constitution, which is on social and economic transformation. There are few constitutions in the world that have detailed what the state must do in order to bring about equitable social transformation as does Kenya’s constitution. Yet, the government has refused or failed to follow through on the roadmap provided by the constitution, opting instead on ad hoc, politically inspired, unsustainable and mostly badly thought-out and short-lived programmes designed to benefit only a few.

The operating environment that will save the constitution

And it is back to where we started – constitutional design and the operating environment as the two overarching factors that dictate the survival of a constitution. For the last ten years, the constitution has operated under a toxic environment – with most of the toxicity coming from the Executive. Parliament (especially the 11th and 12th) surrendered most of its authority to the Executive and hence failed miserably at defending the constitution. The complete capture of all the independent offices and commissions by the Executive has mostly left the Judiciary as the sole state institution struggling, albeit now in a wobbly way, to defend the constitution.

Constitutional design contributed greatly to the survival of the 2010 constitution in the last ten years. But design alone will not save it for the next ten years. Whether it dies or not will now largely depend on whether our next heads of the Executive and Legislature are believers of constitutionalism and whether they are keen to provide the constitution with the enabling environment that the people intended for it to thrive.

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

Politics

Dadaab: Playing Politics With the Lives of Somali Refugees in Kenya

Somali refugees in Kenya should not be held hostage by political disagreements between Mogadishu and Nairobi but must continue to enjoy Kenya’s protection as provided for under international law.

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Dadaab: Playing Politics With the Lives of Somali Refugees in Kenya
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For several years now, Kenya has been demanding that the UNHCR, the UN Refugee Agency, close the expansive Dadaab refugee complex in north-eastern Kenya, citing “national security threats”. Kenya has argued, without providing sufficient proof, that Dadaab, currently home to a population of 218,000 registered refugees who are mostly from Somalia, provides a “safe haven” and a recruitment ground for al-Shabaab, the al-Qaeda affiliate in Somalia that constantly carries out attacks inside Kenya. Threats to shut down have escalated each time the group has carried out attacks inside Kenya, such as following the Westgate Mall attack in 2013 and the Garissa University attack in 2015.

However, unlike previous calls, the latest call to close Dadaab that came in March 2021, was not triggered by any major security lapse but, rather, was politically motivated. It came at a time of strained relations between Kenya and Somalia. Kakuma refugee camp in Turkana County in north-western Kenya, is mostly home to South Sudanese refugees but also hosts a significant number of Somali refugees. Kakuma has not been included in previous calls for closure but now finds itself targeted for political expediency—to show that the process of closing the camps is above board and targets all refugees in Kenya and not only those from Somalia.

That the call is politically motivated can be deduced from the agreement reached between the UNHCR and the Kenyan government last April where alternative arrangements are foreseen that will enable refugees from the East African Community (EAC) to stay. This means that the South Sudanese will be able to remain while the Somali must leave.

Security threat

Accusing refugees of being a security threat and Dadaab the operational base from which the al-Shabaab launches its attacks inside Kenya is not based on any evidence. Or if there is any concrete evidence, the Kenyan government has not provided it.

Some observers accuse Kenyan leaders of scapegoating refugees even though it is the Kenyan government that has failed to come up with an effective and workable national security system. The government has also over the years failed to win over and build trust with its Muslim communities. Its counterterrorism campaign has been abusive, indiscriminately targeting and persecuting the Muslim population. Al-Shabab has used the anti-Muslim sentiment to whip up support inside Kenya.

Moreover, if indeed Dadaab is the problem, it is Kenya as the host nation, and not the UNHCR, that oversees security in the three camps that make up the Dadaab complex. The camps fall fully under the jurisdiction and laws of Kenya and, therefore, if the camps are insecure, it is because the Kenyan security apparatus has failed in its mission to securitise them.

The terrorist threat that Kenya faces is not a refugee problem — it is homegrown. Attacks inside Kenya have been carried out by Kenyan nationals, who make up the largest foreign group among al-Shabaab fighters. The Mpeketoni attacks of 2014 in Lamu County and the Dusit D2 attack of 2019 are a testament to the involvement of Kenyan nationals. In the Mpeketoni massacre, al-Shabaab exploited local politics and grievances to deploy both Somali and Kenyan fighters, the latter being recruited primarily from coastal communities. The terrorist cell that conducted the assault on Dusit D2 comprised Kenyan nationals recruited from across Kenya.

Jubaland and the maritime border dispute 

This latest demand by the Kenyan government to close Dadaab by June 2022 is politically motivated. Strained relations between Kenya and Somalia over the years have significantly deteriorated in the past year.

Mogadishu cut diplomatic ties with Nairobi in December 2020, accusing Kenya of interfering in Somalia’s internal affairs. The contention is over Kenya’s unwavering support for the Federal Member State of Jubaland — one of Somalia’s five semi-autonomous states — and its leader Ahmed “Madobe” Mohamed Islam. The Jubaland leadership is at loggerheads with the centre in Mogadishu, in particular over the control of the Gedo region of Somalia.

Kenya has supported Jubaland in this dispute, allegedly hosting Jubaland militias inside its territory in Mandera County that which have been carrying out attacks on federal government of Somalia troop positions in the Gedo town of Beled Hawa on the Kenya-Somalia border. Dozens of people including many civilians have been killed in clashes between Jubaland-backed forces and the federal government troops.

Relations between the two countries have been worsened by the bitter maritime boundary dispute that has played out at the International Court of Justice (ICJ).

The latest call to close Dadaab is believed to have been largely triggered by the case at the Hague-based court, whose judgement was delivered on 12 October.  The court ruled largely in favour of Somalia, awarding it most of the disputed territory. In a statement, Kenya’s President Uhuru Kenyatta said, “At the outset, Kenya wishes to indicate that it rejects in totality and does not recognize the findings in the decision.” The dispute stems from a disagreement over the trajectory to be taken in the delimitation of the two countries’ maritime border in the Indian Ocean. Somalia filed the case at the Hague in 2014.  However, Kenya has from the beginning preferred and actively pushed for the matter to be settled out of court, either through bilateral negotiations with Somalia or through third-party mediation such as the African Union.

Kenya views Somalia as an ungrateful neighbour given all the support it has received in the many years the country has been in turmoil. Kenya has hosted hundreds of thousands of Somali refugees for three decades, played a leading role in numerous efforts to bring peace in Somalia by hosting peace talks to reconcile Somalis, and the Kenyan military, as part of the African Union Mission in Somalia, AMISOM, has sacrificed a lot and helped liberate towns and cities. Kenya feels all these efforts have not been appreciated by Somalia, which in the spirit of good neighbourliness should have given negotiation more time instead of going to court. In March, on the day of the hearing, when both sides were due to present their arguments, Kenya boycotted the court proceedings at the 11th hour. The court ruled that in determining the case, it would use prior submissions and written evidence provided by Kenya. Thus, the Kenyan government’s latest demand to close Dadaab is seen as retaliation against Somalia for insisting on pursuing the case at the International Court of Justice (ICJ).

Nowhere safe to return to

Closing Dadaab by June 2022 as Kenya has insisted to the UNHCR, is not practical and will not allow the dignified return of refugees. Three decades after the total collapse of the state in Somalia, conditions have not changed much, war is still raging, the country is still in turmoil and many parts of Somalia are still unsafe. Much of the south of the country, where most of the refugees in Dadaab come from, remains chronically insecure and is largely under the control of al-Shabaab. Furthermore, the risk of some of the returning youth being recruited into al-Shabaab is real.

A programme of assisted voluntary repatriation has been underway in Dadaab since 2014, after the governments of Kenya and Somalia signed a tripartite agreement together with the UNHCR in 2013. By June 2021, around 85,000 refugees had returned to Somalia under the programme, mainly to major cities in southern Somalia such as Kismayo, Mogadishu and Baidoa. However, the programme has turned out to be complicated; human rights groups have termed it as far from voluntary, saying that return is fuelled by fear and misinformation. 

Many refugees living in Dadaab who were interviewed by Human Rights Watch said that they had agreed to return because they feared Kenya would force them out if they stayed. Most of those who were repatriated returned in 2016 at a time when pressure from the Kenyan government was at its highest, with uncertainty surrounding the future of Dadaab after Kenya disbanded its Department of Refugee Affairs (DRA) and halted the registration of new refugees.

Many of the repatriated ended up in camps for internally displaced persons (IDPs) within Somalia, with access to fewer resources and a more dangerous security situation. Somalia has a large population of 2.9 million IDPs  scattered across hundreds of camps in major towns and cities who have been displaced by conflict, violence and natural disasters. The IDPs are not well catered for. They live in precarious conditions, crowded in slums in temporary or sub-standard housing with very limited or no access to basic services such as education, basic healthcare, clean water and sanitation. Thousands of those who were assisted to return through the voluntary repatriation programme have since returned to Dadaab after they found conditions in Somalia unbearable. They have ended up undocumented in Dadaab after losing their refugee status in Kenya.  

Many refugees living in Dadaab who were interviewed by Human Rights Watch said that they had agreed to return because they feared Kenya would force them out if they stayed.

Camps cannot be a permanent settlement for refugees. Dadaab was opened 30 years ago as a temporary solution for those fleeing the war in Somalia. Unfortunately, the situation in Somalia is not changing. It is time the Kenyan government, in partnership with members of the international community, finds a sustainable, long-term solution for Somali refugees in Kenya, including considering pathways towards integrating the refugees into Kenyan society.  Dadaab could then be shut down and the refugees would be able to lead dignified lives, to work and to enjoy freedom of movement unlike today where their lives are in limbo, living in prison-like conditions inside the camps.

The proposal to allow refugees from the East African Community to remain after the closure of the camps — which will mainly affect the 130,000 South Sudanese refugees in Kakuma —  is a good gesture and a major opportunity for refugees to become self-reliant and contribute to the local economy.

Announcing the scheme, Kenya said that refugees from the EAC who are willing to stay on would be issued with work permits for free. Unfortunately, this option was not made available to refugees from Somalia even though close to 60 per cent of the residents of Dadaab are under the age of 18, have lived in Kenya their entire lives and have little connection with a country their parents escaped from three decades ago.

Many in Dadaab are also third generation refugees, the grandchildren of the first wave of refugees. Many have also integrated fully into Kenyan society, intermarried, learnt to speak fluent Swahili and identify more with Kenya than with their country of origin.

The numbers that need to be integrated are not huge. There are around 269,000 Somali refugees in Dadaab and Kakuma. When you subtract the estimated 40,000 Kenyan nationals included in refugee data, the figure comes down to around 230,000 people. This is not a large population that would alter Kenya’s demography in any signific ant way, if indeed this isis the fear in some quarters. If politics were to be left out of the question, integration would be a viable option.

Many in Dadaab are also third generation refugees, the grandchildren of the first wave of refugees.

For decades, Kenya has shown immense generosity by hosting hundreds of thousands of refugees, and it is important that the country continues to show this solidarity. Whatever the circumstances and the diplomatic difficulties with its neighbour Somalia, Kenya should respect its legal obligations under international law to provide protection to those seeking sanctuary inside its borders. Refugees should only return to their country when the conditions are conducive, and Somalia is ready to receive them. To forcibly truck people to the border, as Kenya has threatened in the past, is not a solution. If the process of returning refugees to Somalia is not well thought out, a hasty decision will have devastating consequences for their security and well-being.

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Politics

The Assassination of President Jovenel Moïse and the Haitian Imbroglio

As CARICOM countries call for more profound changes that would empower the Haitian population, Western powers offer plans for “consensual and inclusive” government that will continue to exclude the majority of the citizens of Haiti from participating in the running of their country.

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The Assassination of President Jovenel Moïse and the Haitian Imbroglio
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On Wednesday 7 July 2021, the President of Haiti, Jovenel Moïse, was assassinated in his home. His wife was injured in the attack. That the president’s assassins were able to access his home posing as agents of the Drug Enforcement Agency of the United States (DEA) brought to the fore the intricate relationship between drugs, money laundering and mercenary activities in Haiti. Two days later, the government of Haiti reported that the attack had been carried out by a team of assailants, 26 of whom were Colombian. This information that ex-soldiers from Colombia were involved brought to the spotlight the ways in which Haiti society has been enmeshed in the world of the international mercenary market and instability since the overthrow of President Jean-Bertrand Aristide and the Lavalas movement in 2004.

When the French Newspaper Le Monde recently stated that Haiti was one of the four drug hubs of the Caribbean region, the paper neglected to add the reality that as a drug hub, Haiti had become an important base for US imperial activities, including imperial money laundering, intelligence, and criminal networks. No institution in Haiti can escape this web and Haitian society is currently reeling from this ecosystem of exploitation, repression, and manipulation. Under President Donald Trump, the US heightened its opposition to the governments of Venezuela and Cuba. The mercenary market in Florida became interwoven with the US Drug Enforcement Agency (DEA) and the financial institutions that profited from crime syndicates that thrive on anti-communist and anti-Cuba ideas.

But even as Haitian society is reeling from intensified destabilization, the so-called Core Group (comprising of the Organization of American States (OAS), the European Union, the United States, France, Spain, Canada, Germany, and Brazil) offers plans for “consensual and inclusive” government that will continue to exclude the majority of the citizens of Haiti from participating in the running of their country. Elsewhere in the Caribbean, CARICOM countries are calling for more profound changes that would empower the population while mobilizing international resources to neutralize the social power of the money launderers and oligarchs in Haitian society.

Haiti since the Duvaliers

For the past thirty-five years, the people of Haiti have yearned for a new mode of politics to transcend the dictatorship of the Duvaliers (Papa Doc and Baby Doc). The Haitian independence struggles at the start of the 19th century had registered one of the most fundamental blows to the institutions of chattel slavery and colonial domination. Since that revolution, France and the US have cooperated to punish Haiti for daring to resist white supremacy. An onerous payment of reparations to France was compounded by US military occupation after 1915.

Under President Woodrow Wilson, the racist ideals of the US imperial interests were reinforced in Haiti in a nineteen-year military occupation that was promoted by American business interests in the country. Genocidal violence from the Dominican Republic in 1937 strengthened the bonds between militarism and extreme violence in the society. Martial law, forced labour, racism and extreme repression were cemented in the society. Duvalierism in the form of the medical doctor François Duvalier mobilized a variant of Negritude in the 50s to cement a regime of thuggery, aligned with the Cold War goals of the United States in the Caribbean. The record of the Duvalier regime was reprehensible in every form, but this kind of government received military and intelligence assistance from the United States in a region where the Cuban revolution offered an alternative. Francois Duvalier died in 1971 and was succeeded by his son, Jean-Claude Duvalier, who continued the tradition of rule by violence (the notorious Tonton Macoute) until this system was overthrown by popular uprisings in 1986.

The Haitian independence struggles at the start of the 19th century had registered one of the most fundamental blows to the institutions of chattel slavery and colonial domination.

On 16 December 1990, Jean-Bertrand Aristide won the presidency by a landslide in what were widely reported to be the first free elections in Haiti’s history. Legislative elections in January 1991 gave Aristide supporters a plurality in Haiti’s parliament. The Lavalas movement of the Aristide leadership was the first major antidote to the historical culture of repression and violence. The United States and France opposed this new opening of popular expression such that military intervention, supported by external forces in North America and the Organization of American States, brought militarists and drug dealers under General Joseph Raoul Cédras to the forefront of the society. The working peoples of Haiti were crushed by an alliance of local militarists, external military peacekeepers and drug dealers. The noted Haitian writer, Edwidge Danticat, has written extensively on the consequences of repeated military interventions, genocide and occupation in the society while the population sought avenues to escape these repressive orders. After the removal of the Aristide government in 2004, it was the expressed plan of the local elites and the external forces that the majority of the Haitian population should be excluded from genuine forms of participatory democracy, including elections.

Repression, imperial NGOs and humanitarian domination

The devastating earthquake of January 2010 further deepened the tragic socio-economic situation in Haiti. An estimated 230,000 Haitians lost their lives, 300,000 were injured, and more than 1.5 million were displaced as a result of collapsed buildings and infrastructure. External military interventions by the United Nations, humanitarian workers and international foundations joined in the corruption to strengthen the anti-democratic forces in Haitian society. The Clinton Foundation of the United States was complicit in imposing the disastrous presidency of Michel Martelly on Haitian society after the earthquake. The book by Jonathan Katz, The Big Truck That Went By: How the World Came to Save Haiti and Left Behind a Disaster, provides a gripping account of the corruption in Haiti. So involved were the Clintons in the rot in Haiti that Politico Magazine dubbed Bill and Hilary, The King and Queen of Haiti.

In 2015, Jovenel Moïse was elected president in a very flawed process, but was only able to take office in 2017. From the moment he entered the presidency, his administration became immersed in the anti-people traditions that had kept the ruling elites together with the more than 10,000 international NGOs that excluded Haitians from participating in the projects for their own recovery. President Moïse carved out political space in Haiti with the support of armed groups who were deployed as death squads with the mission of terrorizing popular spaces and repressing supporters of the Haitian social movement. In a society where the head of state did not have a monopoly over armed gangs, kidnappings, murder (including the killing of schoolchildren) and assassinations got out of control. Under Moïse, Haiti had become an imbroglio where the government and allied gangs organized a series of massacres in poor neighbourhoods known to host anti-government organizing, killing dozens at a time.

Moïse and the extension of repression in Haiti

Moïse remained president with the connivance of diplomats and foundations from Canada, France and the United States. These countries and their leaders ignored the reality that the Haitian elections of 2017 were so deeply flawed and violent that almost 80 per cent of Haitian voters did not, or could not, vote. Moïse, with the support of one section of the Haitian power brokers, avoided having any more elections, and so parliament became inoperative in January 2020, when the terms of most legislators expired. When mayors’ terms expired in July 2020, Moïse personally appointed their replacements. This accumulation of power by the president deepened the divisions within the capitalist classes in Haiti. Long-simmering tensions between the mulatto and black capitalists were exacerbated under Moïse who mobilized his own faction on the fact that he was seeking to empower and enrich the black majority. Thugs and armed gangs were integrated into the drug hub and money laundering architecture that came to dominate Haiti after 2004.

After the Trump administration intensified its opposition to the Venezuelan government, the political and commercial leadership in Haiti became suborned to the international mercenary and drug systems that were being mobilized in conjunction with the military intelligence elements in Florida and Colombia. President Jovenel Moïse’s term, fed by spectacular and intense struggles between factions of the looters, was scheduled to come to a legal end in February 2021. Moïse sought to remain in power, notwithstanding the Haitian constitution, the electoral law, or the will of the Haitian people.

So involved were the Clintons in the rot in Haiti that Politico Magazine dubbed Bill and Hilary, The King and Queen of Haiti.

Since the removal of Aristide and the marginalization of the Lavalas forces from the political arena in Haiti, the US has been more focused on strengthening the linkages between the Haitian drug lords and the money launderers in Colombia, Florida, Dominican Republic, and Venezuelan exiles. It was therefore not surprising that the mercenary industry, with its linkages to financial forces in Florida, has been implicated in the assassination of President Moïse. The Core Group of Canada, France and the US has not once sought to deploy the resources of the international Financial Action Task Force (FATF) to penetrate the interconnections between politicians in Haiti and the international money laundering and mercenary market.

Working for democratic transition in Haiti

The usual handlers of Haitian repression created the Core Group within one month of Moïse’s assassination. Canada, France and the United States had historically been implicated in the mismanaging of Haiti along with the United Nations. Now, the three countries have mobilized the OAS (with its checkered history), Brazil and the European Union to add their weight to a new transition that will continue to exclude the majority of the people of Haiti. It has been clear that under the current system of destabilization and violence, social peace will be necessary before elections can take place in Haiti.

Moïse sought to remain in power, notwithstanding the Haitian constitution, the electoral law, or the will of the Haitian people.

The continuous infighting among the Haitian ruling elements after the assassination was temporarily resolved at the end of July when Ariel Henry was confirmed by the US and France as Prime Minister. Henry had been designated as prime minister by Moïse days before his assassination. The popular groups in Haiti that had opposed Moïse considered the confirmation of Ariel Henry as a slap in the face because they had been demonstrating for the past four years for a more robust change to the political landscape. These organizations mobilized in what they called the Commission, (a gathering of civil society groups and political parties with more than 150 members), and had been holding marathon meetings to publicly work out what kind of transitional government they would want to see. According to the New York Times, rather than a consensus, the Core Group of international actors imposed a “unilateral proposal” on the people of Haiti.

Haiti is a member of CARICOM. The Caribbean community has proposed a longer transition period overseen by CARICOM for the return of Haiti to democracy. With the experience of the UN in Haiti, the Caribbean community has, through its representative on the UN Security Council, proposed the mobilization of the peacekeeping resources and capabilities of the UN to be deployed to CARICOM in order to organize a credible transition to democracy in Haiti. The nature and manner of the assassination of President Moïse has made more urgent the need for genuine reconstruction and support for democratic transition in Haiti.

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How Dadaab Has Changed the Fortunes of North-Eastern Kenya

Despite the hostile rhetoric and threats of closure, the presence of refugees in the camps in northern-eastern Kenyan has benefited the host communities.

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How Dadaab Has Changed the Fortunes of North-Eastern Kenya
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In the 1960s, Kenya had a progressive refugee policy that allowed refugees to settle anywhere in the country and to access education. This approach created in Kenya a cadre of skilled and professional refugees. However, the policy changed in the 1990s due to an overwhelming influx of refugees and asylum seekers escaping conflict in Somalia, Ethiopia and South Sudan. Kenya switched to an encampment policy for refugees, who were mainly confined to camps.

Although there are refugees living in urban and peri-urban areas elsewhere in the country, for over two decades, northern Kenya has hosted a disproportionate number of the refugees living in Kenya. The region has been home to one of the world’s largest refugee camps, with generations of lineage having an impact on the economic, social, cultural, and ecological situation of the region because of the support provided by the government and by non-governmental organisations (NGOs) in education, health and security services.

Mandera and Marsabit counties, both of which boarder with Ethiopia, Wajir County which borders with both Ethiopia and Somalia and, Garissa County which borders with Somalia, have hosted refugees and migrants displaced from their countries of origin for various reasons. In 2018, the town of Moyale, which is on the Ethiopian boarder in Marsabit County, temporarily hosted over 10,000 Ethiopians escaping military operations in Ethiopia’s Moyale District.    

Elwak town in Wajir County occasionally hosts pastoralist communities from Somalia who cross into Kenya seeking pasture for their livestock. While the movement of refugees into Marsabit and Wajir counties has been of a temporary nature, Garissa County has hosted refugees for decades.

Located 70 kilometres from the border with Somalia, the Dadaab refugee complex was established in the 1990s and has three main camps: Dagahaley, Ifo, and Hagadera. Due to an increase in refugee numbers around 2011, the Kambioos refugee camp in Fafi sub-county was established to host new arrivals from Somalia and to ease pressure on the overcrowded Hagadera refugee camp. The Kambioos camp was closed in 2019 as the refugee population fell.

According to the UN Refugee Agency, UNHCR, and the Refugee Affairs Secretariat (RAS), the Dadaab refugee complex currently hosts over 226, 689 refugees, 98 per cent of whom are from Somalia. In 2015, the refugee population in the Dadaab refugee complex was over 300,000, larger than that of the host community. In 2012, the camp held over 400,000 refugees leading to overstretched and insufficient resources for the growing population.

Under international refugee and human rights law, the government has the sole responsibility of hosting and caring for refugees. However, there is little information regarding the investments made by the Kenyan government in the refugee sector in the north-eastern region over time. Moreover, the government’s investment in the sector is debatable since there was no proper legal framework to guide refugee operations in the early 1990s. It was only in 2006 that the government enacted the Refugee Act that formally set up the Refugee Affairs Secretariat mandated to guide and manage the refugee process in Kenya.

While the Refugee Act of 2006 places the management of refugee affairs in the hands of the national government, devolved county governments play a significant role in refugee operations. With the 2010 constitution, the devolution of social functions such as health and education has extended into refugee-hosting regions and into refugee camps. While devolution in this new and more inclusive system of governance has benefited the previously highly marginalised north-eastern region through a fairer distribution of economic and political resources, there is however little literature on how the refugees benefit directly from the county government resource allocations.

The three north-eastern counties are ranked among the leading recipients of devolved funds: Mandera County alone received US$88 million in the 2015/2016 financial year, the highest allocation of funds after Nairobi and Turkana, leading to developmental improvements.

However, it can be argued that the allocation of funds from the national government to the northern frontier counties by the Kenya Commission on Revenue Allocation—which is always based on the Revenue Allocation table that prioritizes population, poverty index, land area, basic equal share and fiscal responsibility—may not have been taking the refugee population into account. According to the 2019 census, the population of Dadaab sub-county is 185,252, a figure that is well below the actual refugee population. The increase in population in the north-eastern region that is due to an increase in the refugee population calls for an increase in the allocation of devolved funds.

The three north-eastern counties are ranked among the leading recipients of devolved funds.

Dadaab refugee camp has been in the news for the wrong reasons. Security agencies blame the refugees for the increased Al Shabaab activity in Kenya, and even though these claims are disputed, the government has made moves to close down the camp. In 2016, plans to close Dadaab were blocked by the High Court which declared the proposed closure unconstitutional. In 2021, Kenya was at it again when Ministry of Interior Cabinet Secretary Fred Matiang’I tweeted that he had given the UNHCR 14 days to draw up a plan for the closure of the camp. The UNHCR and the government issued a joint statement agreeing to close the camp in June 2022.

The security rhetoric is not new. There has been a sustained campaign by Kenya to portray Dadaab as a security risk on national, regional and international platforms. During the 554th meeting of the African Union Peace and Security Forum held in November 2015, it was concluded that the humanitarian character of the Dadaab refugee camp had been compromised. The AU statements, which may have been drafted by Kenya, claimed that the attacks on Westgate Mall and Garissa University were planned and launched from within the refugee camps. These security incidents are an indication of the challenges Kenya has been facing in managing security. For example, between 2010 and 2011, there were several IED (Improvised Explosive Devices) incidents targeting police vehicles in and around Dadaab where a dozen officers were injured or killed. In October 2012, two people working for the medical charity Médicins Sans Frontières (MSF) were kidnapped in Dadaab. Local television network NTV has described the camp as “a womb of terror” and “a home for al-Shabaab operations”.

There has been a sustained campaign by Kenya to portray Dadaab as a security risk on national, regional and international platforms.

Security restrictions and violent incidents have created a challenging operational environment for NGOs, leading to the relocation of several non-local NGO staff as well as contributing to a shrinking humanitarian space. Some teachers and health workers from outside the region have refused to return to the area following terrorist attacks by Al-Shabaab, leaving behind large gaps in the health, education, and nutrition sectors.

However, despite the challenging situation, the refugee camps have also brought many benefits, not only to Kenya as a country but also to the county governments and the local host communities.

Education

According to the Intergovernmental Authority on Development (IGAD) half the refugee population in the IGAD member states are children of school-going age, between 4 and 18 years.

In Garissa, the education sector is one of the areas that has benefited from the hosting of refugees in the county because the host community has access to schools in the refugee camps. Windle Trust, an organisation that offers scholarships to students in secondary schools and in vocational training institutes, has been offering scholarships to both the refugees and the host communities. In July 2021, over 70 students benefited from a project run by International Labour Organisations (ILO) in partnership with Garissa county governments, the East African Institute of Welding (EAIW) and the Kenya Association of Manufacturers (KAM) to give industrial welding skills to refugees and host communities.

However, despite the measures taken by the Kenyan government to enrol refugees in Kenyan schools, there is a notable gap that widens as students go through the different levels of education. Statistics show that of the school-going refugee population, only a third get access to secondary education of which a sixth get to join tertiary institutions. This is well below the government’s Sustainable Development Goal (SDG) 4 target that seeks to ensure that all girls and boys complete free, equitable and quality primary and secondary education. This also reflects the situation of the host community’s education uptake. Other investments in the education sector that have targeted the host communities include recruitment and deployment of early childhood education teachers to schools in the host community by UNHCR and other non-governmental organizations (NGOs).

Non-governmental/intergovernmental support 

The presence of refugees has led to NGOs setting up and running projects in the camps. According to Garissa County’s Integrated Development Plan, there are over 70 non-governmental organisations present, with the majority operating around the Dadaab refugee complex and within the host communities. The UNHCR estimates that it will require about US$149.6 million to run its operations in Dadaab Camp this year. However, as of May 2021, only US$45.6 million—31 per cent of the total amount required—had been received.

The decrease in humanitarian funding has had an impact on the livelihoods of refugees and host communities in north-eastern Kenya.  According to the World Bank, 73 per cent of the population of Garissa County live below the poverty line. In the absence of social safety nets, locals have benefited from the humanitarian operations in and around the camp. The UNHCR reports that about 40,000 Kenyan nationals within a 50km radius of the Dadaab refugee camp ended up enrolling as refugees in order to access food and other basic services in the camps.

In 2014, the UNHCR reported that it had supported the Kenyan community residing in the wider Daadab region in establishing over US$5 million worth of community assets since 2011. The presence of refugees has also increased remittances from the diaspora, and there are over 50 remittance outlets operating in the Dadaab camp, increasing economic opportunities and improving services. Using 2010 as the reference year, researchers have found that the economic benefits of the Dadaab camp to the host community amount to approximately US$14 million annually.

The UNHCR reported that it had supported the Kenyan community residing in the wider Daadab region in establishing over US$5 million of community assets since 2011 since 2011.

To reduce overdependence on aid and humanitarian funding in running refugee operations, the County Government of Garissa developed a Garissa Integrated Socio-Economic Development Plan (GISEDP) in 2019 that provided ways of integrating refugees into the socio-economic life of the community to enhance their self-reliance. The European Union announced a Euro 5 million funding programme to support the socio-economic development plan, thus opening up opportunities for development initiatives including income generating activities such as the flourishing businesses at Hagadera market. The recent announcement of the planned closure of the camp has put these plans at risk.

A voice

The host community is increasingly involved in issues that affect both the locals living around the Dadaab refugee complex and the refugees themselves, with the voice of the community gaining prominence in decision-making regarding the county budget and sometimes even regarding NGO operations. NGOs periodically conduct needs assessments in and around the camp to guide the budgeting and planning process for subsequent years and the host community is always consulted.

Interest in governance issues has also increased. For example, between 2010 and 2015 the host community successfully lobbied for increased employment opportunities for locals in the UNHCR operations. With experience in the humanitarian field, some from within the host communities have secured positions as expatriates in international organizations across the globe, adding to increased international remittances to Garissa County.

Health

Research reveals that, compared to other pastoralist areas, health services for host communities have improved because of the presence of aid agencies in Dadaab. Hospitals managed by Médicins Sans Frontières and the International Red Cross in Dagahaley and Hagadera respectively are said to be offering better services than the sub-county hospital in Dadaab town. The two hospitals are Ministry of Health-approved vaccination centres in the fight against the COVID-19 pandemic.

Despite the massive investments made in the health sector by humanitarian organisations in and around Dadaab, both UNICEF and the World Health Organisation have identified the camp as an entry point for infectious diseases like polio and measles into Kenya. There was a confirmed case of WPV1 (wild poliovirus) in a 4-month-old girl from the Dadaab refugee camp in May 2013. This is a clear indication of the health risks associated with the situation.

Researchers have found that the economic benefits of the Dadaab camp to the host community amount to approximately US$14 million annually.

Other problems associated with the presence of the camps include encroachment of the refugee population on local land, leading to crime and hostility between the two communities. These conflicts are aggravated by the scramble for the little arable land available in this semi-arid region that makes it difficult to grow food and rear farm animals, leading to food shortages.

While it is important to acknowledge that progress has been made in integrating refugees into the north-eastern region, and that some development has taken place in the region, more needs to be done to realise the full potential of the region and its communities.  Kenya’s security sector should ensure that proper measures are put in place to enhance security right from the border entry point in order to weed out criminals who take advantage of Kenya’s acceptance of refugees. The country should not expel those who have crossed borders in search of refuge but should tap fully into the benefits that come with hosting refugees.

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