Politics
Geothermal Development in Kenya: The Good, the Bad and the Ugly
13 min read.Geothermal development in Kenya is widely welcomed as green, clean and good for the country. But behind the glowing publicity is a hidden story of forced relocation, human rights abuses, land loss, shattered lives, joblessness, deepening poverty, and serious negative impacts on the health of local people and their livestock.
Geothermal development in Kenya’s Rift Valley is expected to reap enormous energy benefits for the nation as a whole. Geothermal energy is widely seen as green and clean, a superior alternative to other forms of renewable energy that is sustainable and environmentally friendly with low carbon emissions.
However, new research by an international collaborative team that includes Kenyans shows that the impacts of this industry upon local communities (in this case, in the Ol Karia area of Nakuru County) are often negative. The research also provides evidence that geothermal expansion, which took off here in the 1970s, has led to many divisions and ongoing conflicts, including conflicts over equitable resource use. Other issues of concern include environmental degradation, the negative health impact on humans and animals, forced resettlement, increasing poverty, lack of access to benefits, including jobs, houses and profit-sharing, violation of human and land rights, and the absence of community representation in the geothermal companies (largely KenGen, the Kenya Electricity Generating Company).
The negative impacts of the geothermal industry on local communities are rarely, if ever, listed among its disadvantages. Issues of greatest concern to companies and funders have more to do things like high up-front costs, technical challenges, and high risks faced in the early stages of development. Too often, the negative impacts on humans, livestock and the environment seem to be regarded as collateral damage.
Many questions have been raised about the role of the state and international financial institutions in this scenario, which this story will go on to discuss. From my observations as an academic researcher who has studied imperial history, there is more than a whiff of colonial arrogance in the behaviour of major lenders, such as the European Investment Bank (EIB) and the World Bank, which have both invested heavily in the geothermal industry at Ol Karia, the latter since the early 1980s. As I pointed out in person to EIB and EIB-Complaints Mechanism (EIB-CM) staff at an NGO workshop in Brussels earlier this year, decisions made in European and other foreign capitals can have life-long and devastating impacts on what funders call “project-affected persons” (PAPs), long after investors and other international players have left the scene. What the banks regard as “completed” is never over for PAPs on the receiving end. (These staffers did not look me in the eye, or respond.)
At the grassroots level in Ol Karia, accusations of nepotism, corruption and discrimination also abound. Some indigenous residents (such as the Turkana and the Samburu) accuse the majority Maasai of doubly marginalising them in the scramble for rights and benefits. Though Maasai representatives have made repeated formal complaints to the banks concerned, and some contentious issues have been addressed, people face serious ongoing challenges that leave them impoverished, frustrated and despairing. Our research showed that youth, women, non-literates, the poorest and elders (apart from those on village and other liaison committees, who tend to be relatively well-off and well-connected) have been hardest hit.
From my observations as an academic researcher who has studied imperial history, there is more than a whiff of colonial arrogance in the behaviour of major lenders, such as the European Investment Bank (EIB) and the World Bank, which have both invested heavily in the geothermal industry at Ol Karia.
In East Africa as a whole, electricity demand is expected to quadruple by 2033, with geothermal, wind and hydropower seen as important means of meeting that demand. For Kenya, geothermal (which literally means “earth’s heat”) is now officially favoured over hydropower because of the climatic changes that hydropower is susceptible to.
By April 2020, Kenya had risen to seventh place in the list of top geothermal power producers, the only African country on the list. Kenya is Africa’s largest producer of geothermal energy. Geothermal power is flagged in Vision 2030, the Government of Kenya’s vision for the future, as a central plank in the development of the country. Kenya aims to produce 50 per cent of its energy from geothermal sources by 2025, and 100 per cent by 2050. Geothermal now accounts for 30 per cent of Kenya’s total installed power capacity of 2,700MW, with the remainder taken up by hydropower, wind, solar and thermal power. The benefits are not only for the national grid; other uses of geothermal energy include powering some Naivasha flower farms. A group of Nakuru farmers has also signed a deal with the parastatal GDC (Geothermal Development Company) that allows them to use geothermal energy in agriculture.
Threats to marginalised people and lands
The extractive industry, together with large-scale infrastructure projects of various kinds, have become increasingly invasive of the lands and other natural resources of indigenous and marginalised communities across Africa and other parts of the world. Lands once considered worthless have become sites of intense interest to states, investors and other players because of the rich resources they contain. Unsurprisingly, this has triggered acute contestation over natural and cultural resource rights.
Historical marginality often places indigenous and marginalised people at a distinct disadvantage when they try to articulate their concerns and fight their corner. Forced resettlement to make way for extractive industries has involved human rights abuses. Governments, industries and funders often fail to abide by the principle of Free, Prior and Informed Consent (FPIC), or to consult sufficiently with affected communities before geothermal projects start, or even to follow their own policies on indigenous peoples, which the World Bank has admitted failing to do at Ol Karia. The other foreign banks involved in funding this project agreed to follow World Bank policies rather than their own.
Although it didn’t matter for the purposes of this project, the EIB also decided that the Ol Karia Maasai did not meet its criteria for indigenous peoples and chose to classify them as “vulnerable” instead. This does not provide anything like the same level of protection, and has proved disastrous for this community.
Forced resettlement to make way for extractive industries has involved human rights abuses. Governments, industries and funders often fail to abide by the principle of Free, Prior and Informed Consent (FPIC), or to consult sufficiently with affected communities before geothermal projects start…
The EIB has explained (in responses to me and Bankwatch) that it decided not to classify these Maasai as indigenous in 2009 (when it was making plans to fund the power plant Olkaria IV) because it believed that “tribal sentiments were still on the rise” after the post-election violence of 2008. It believed that such a classification might lead to more ethnic strife. This nonsensical interpretation demonstrates how little the EIB understands Kenyan politics, and the socio-political climate in which it operates. From observation and written evidence, its so-called “experts” on the ground are anything but. One, an official mediator between the Maasai and KenGen, even expressed shockingly derogatory remarks to me about the alleged “backwardness” of the Maasai, views which hardly make him suitable as a mediator. Maasai informants said they regarded the mediators as “KenGen’s spies”.
It is important to note that although the community is predominantly Maasai and Maa-speakers (people who speak the Maa language but who are not necessarily Maasai) who have lived here for centuries, it also includes members of other ethnic groups who have intermarried and inter-settled with the Maasai over many years. The community is, therefore, a microcosm of multicultural Kenya. Some Maasai rights activists tend to ignore this fact for obvious reasons: it does not fit their mono-ethnic narrative.
Recent history, some impacts
Geothermal exploration first began in this area of Naivasha Sub-County in 1956 with exploratory drilling. But it was not until the 1970s that geothermal development began to intensify. Olkaria I was the first power plant in Africa, commissioned in three phases starting in 1981. There are now five geothermal plants in the Greater OlKaria (sic) Geothermal Complex, with others planned or in development. (Other plants, either built or planned outside this Complex, follow the line of the Rift Valley.) Akiira One is not built yet, partly because the company behind it, Akiira Geothermal Ltd. (AGL), is mired in issues around alleged human rights abuse against squatters it forced off its land with the aid of police and county officials. European funders of AGL, including the EIB, are investigating. (I say more about these events below.)
Three of KenGen’s five plants have been built in Hell’s Gate National Park. These plants have devastated this once beautiful heritage site. Large areas of the park now look more like an industrial estate than a protected area: plants and wells constantly gush steam, the well-heads make deafening 24-hour noise, huge pipelines snake across the landscape, roads are choked with company and subcontractors’ lorries and machinery, water sources are polluted, and the air around the plants stinks of rotten eggs (hydrogen sulphide). After just a couple of weeks’ fieldwork, I fell ill with respiratory problems.
However, what I endured is nothing compared to what the people who have to live here permanently have to go through. A 44-year-old Samburu blacksmith told me: “I have done an experiment – I sent my children to Samburu, and when they came back they were very healthy. After a few weeks of staying here, their faces have changed, and skin rashes have started appearing on their bodies. They’re suffering a lot of coughing and common cold almost every day.” Locals blame geothermal for the rise in respiratory illness and miscarriages, among other things.
Complaints
A number of formal complaints have been made to KenGen and the external funders’ complaints mechanisms: the World Bank Inspection Panel (WB-IP) and the EIB Complaints Mechanism (EIB-CM). Many of the complaints relate to the forced resettlement in 2014 of four Maasai villages to a new settlement called RAPland (RAP stands for Resettlement Action Plan), a remote area next to the Akiira One/AGL concession. This was done to make way for Olkaria IV. Some 1,000 people were moved to new two-bedroom houses in RAPland, each on a 0.41-hectare plot. But this move involved swapping an area of 4,200 acres for just 1,700 acres. Many people complain about the houses, which are not built in a traditional culturally-acceptable style, which cannot accommodate extended families, and which are more expensive to furnish and run.
Moreover, the new land is much less productive than the one they were forced to leave. It is full of steep gullies into which cattle regularly fall and injure themselves, or even die. The pasture is poor and soil erosion is rife. Worst of all, the area is fenced in, which is antithetical to free-roaming pastoralism. “They have put us in a fence like animals in a zoo,” said one informant. People are also very unhappy about the communal leasehold land title that KenGen has given them, and claim it is not what was promised. The document does not refer to RAPland but to a totally different geographical area.
Three of KenGen’s five plants have been built in Hell’s Gate National Park. These plants have devastated this once beautiful heritage site. Large areas of the park now look more like an industrial estate than a protected area…
Other complaints include those relating to the loss of cultural sites and livelihoods, the remoteness of RAPland, which is far from shopping centres and other urban services (KenGen has refused to allow a commercial centre to be built), lack of public transport, (which forces people to use very expensive private transport), KenGen’s failure to employ many Maasai, other than in insecure, low-paid, low-skilled jobs, corruption, nepotism and discrimination (which have fouled the process of awarding compensation to PAPs), and failure to fully implement a May 2016 Mediation Agreement between the community and KenGen. (Though Maasai representatives signed this, they are deeply unhappy about how it has unravelled. Some call the mediation process “a hidden wolf”.)
On the positive side, KenGen has provided the new houses, and built facilities including a school, dispensary, community hall, roads, bridges and water points. They have, to some extent, acted upon the complaints. The Maasai did agree to the move, but our research shows that many people did not fully understand the long-term implications. Failure to communicate in the Maa language led to many people being excluded from the consultations (the World Bank has admitted this). Some folk have complained that they failed to get new houses despite being eligible. As a result, several poor widows, and indigenous people who are not Maasai, have been forced to squat with relatives in RAPland after being made homeless. One Samburu widow, 46, whose family has broken up as a result of the resettlement, said: “We are scattered like the faeces of a high-flying bird.”
Responses
In 2015, the EIB-CM and the WB-IP carried out a joint investigation into the complaints, Two reports, in 2015 and 2016, admitted that serious mistakes had been made, and some of the complainants’ allegations were founded. I counted eight incidences of admitted “non-compliance” with World Bank protocols in the 2015 report; there may be more.
Notably, the World Bank admitted failing to apply its policy on indigenous peoples (Operational Policy 4.10). This led to “significant shortcomings regarding consultation, the cultural compatibility of the resettlement, benefit sharing…The Panel believes applying the Policy might have avoided or mitigated some of the harms caused by the Project”.
Most importantly, by not classifying the Maasai as indigenous, the banks failed to draw up an Indigenous Peoples Plan, as they normally would, and to secure Free, Prior and Informed Consent (FPIC) from the community – a prerequisite in funding projects of this kind. In a series of email exchanges with the EIB over many months, it could not tell me why it classified the Maasai in this way, nor explain the reasoning behind its definition of indigenous peoples, which (as I pointed out to them) contains criteria not used by the World Bank or any other international organisation. I got the impression it has no idea what indigeneity means, and relies on ill-informed staff who know nothing about indigenous peoples and their rights in international law. On telling them this, all the EIB could do was crossly accuse me of unethical academic practice, and of maligning one particular staffer. Not true. I was simply asking legitimate questions of a bank that purports to be transparent and accountable.
The EIB-CM and the WB-IP initiated a mediation process, starting in August 2015, with the aim of reaching agreement between KenGen and the complainants on remedial actions. KenGen pledged, among other things, to improve roads and water supplies, take action on soil erosion and gullies, transfer communal land titles for RAPland and another area called Cultural Centre (the site of a village that was razed to make way for Olkaria IV), build more houses, assist people in marketing their cultural wares, and re-examine the cases of people who claimed to have been unfairly treated in censuses that took place before the resettlement. KenGen is still carrying out some remedial work, such as road repairs and bridge building.
The project also involved other external funders. Our research (and that of other scholars such as Jeanette Schade) shows there is a risk in having multiple funders since lines of responsibility can become blurred. For example, the EIB told me that the French development agency AfD (Agence Française de Développement) was the lead agency responsible for due diligence and safeguarding at Ol Karia, therefore it was not responsible. Efforts to find out from the AfD how they had monitored due diligence, and to access their post-project assessment reports (if they even exist), came to nothing.
What else people told us
Most informants said the funders and companies had exploited existing divisions in the community, for example by siding with one group against another, and favouring individuals with special privileges. They complained that engagement mechanisms, such as liaison committees, created as part of the resettlement process to help PAPs engage with the companies, are deeply flawed (something the World Bank has recognised), and characterised by nepotism and bribery. Few people trust their elected community representatives, who tend to be male village elders who often shout women down. Neither do they trust the welfare society at RAPland, made up of selected “community trustees” to whom the land title was given.
Non-Maasai communities, including members of other indigenous groups, blame the Maasai for discriminating against them. One example is 54-year-old Fatuma Hitler, who claims she is discriminated against because she is a divorced Muslim Samburu; she believes this is why she wasn’t given a new house despite being a PAP. “But if I go to complain [to KenGen] I will be like a barking dog, because of this corruption.” In other words, she thinks she won’t get a hearing, and believes corruption – both within the geothermal companies and the local community – works against powerless women like her.
Eviction of the Lorropil villagers
Lorropil village, a tiny settlement commonly referred to by locals as Kambi Turkana because some of its residents were Turkana, used to lie just outside the RAPland perimeter fence on land owned by the geothermal company AGL that was excised from Kedong Ranch. After repeated threats of eviction, police swooped suddenly in the early hours of 3 November 2019, working in collusion with AGL to not only evict the villagers, but also burn the village down.
A day later, police went after the evictees and teargassed them, burning their remaining belongings. I have seen photographic evidence of all this.
Activists, lawyers and human rights defenders were alerted, and complaints made to AGL and its funders, which include the EIB. Though AGL claims it “consulted” the villagers beforehand, the villagers refute this. There was no attempt by AGL to treat them as PAPs, or to follow due process over the eviction and resettlement of squatters; several of AGL’s funders, including the EIB, have clear policies on this, which AGL did not abide by. The company accused its critics, which included me, of being “malicious liars”. It attempted to counter the allegations and buy good publicity by using local reporters to write stories favourable to AGL, which contained factual errors and painted the evictees as fraudsters and “fake squatters”. I complained to the national newspaper editors concerned about shoddy journalism; they did not respond.
The evictees (who included a number of children) ended up squatting in RAPland, where they were forced to live out in the open until a local pastor opened his church to them. Adding insult to injury, the Kenya Red Cross, alerted by villagers and their supporters, made an initial assessment a few days after the eviction, but then disappeared, failing to deliver humanitarian aid or follow up in any way. I mailed their directors, accusing them of failing to abide by the Red Cross mandate. This had an immediate effect: they swung into action. The repercussions of this eviction are ongoing; European funders of AGL are still investigating what happened.
Bankwatch report on the EIB
In a new report, “Can the EIB become the ‘EU Development Bank’? A Critical View on EIB Operations Outside Europe”, the NGOs Bankwatch and Counter Balance jointly examine EIB-funded projects in Kenya (and elsewhere) that include Olkaria IV and the Nairobi-Mombasa Road. It asks whether the EIB, which plans to “step up its development role”, is up to the task. The answer, by and large, is no. Some of the report’s key points that are relevant to this case study include:
- The EIB “ultimately exacerbates inequalities rather than alleviates them”;
- It makes “empty promises on human rights” and must introduce a “proper human rights due diligence system”;
- Human rights abuses are “largely unknown” and often addressed only after they occur;
- There is a large gap between EIB policies and implementation on the ground;
- Its existing social standards on human rights, environmental and social principles must be replaced; they fail to prevent such things as forced eviction, or protect the most vulnerable stakeholders;
- It has a long way to go on transparency, and lags behind the transparency and disclosure practices of other multilateral financial institutions.
The report calls the RAPland resettlement case a “scandal”. It supports my claim that the EIB uses incorrect criteria in its definition of indigenous peoples, and calls on the Bank to review this. Its case study on Ol Karia supports our research conclusions, and states: “The non-recognition of Maasai as indigenous peoples as well as several other breaches resulted in serious negative impacts on the resettled communities, which have not been fully addressed.”
In its response to Bankwatch, the EIB claims that the report contains inaccuracies, and that the Bank is “constantly improving and further developing its approach to essential issues such as human rights, environmental and social impacts…”.
And so it goes on…
As I finish writing this story, RAPland elders have sent more complaints to the funders that reiterate much of what they raised before. They are particularly upset about the failure to fully address the issue of livelihoods lost as a result of resettlement (which funders had pledged to do), and the dodgy RAPland land title.
The elders were responding to the World Bank’s “final” report of June 2020 on the progress of mediation. It maintains that “all the agreed livelihood activities have been completed”. It blames a “clerical error” on the fact that the title refers to the wrong piece of land; the Bank says it supports the PAPs’ request to convert it to freehold.
RAPland elders have sent more complaints to the funders that reiterate much of what they raised before. They are particularly upset about the failure to fully address the issue of livelihoods lost as a result of resettlement (which funders had pledged to do), and the dodgy RAPland land title.
It is clear from the report that the IEB, which insists that the Management Action Plan (MAP) for RAPland is “completed”, sees this as the end of its obligations to the PAPs; now it’s up to KenGen to resolve outstanding issues that are broader than the Bank’s MAP. But for the community (and the former Lorropil villagers, who have submitted a separate complaint to the EIB-CM), this isn’t over by a long way. To sum up community sentiments: “We feel that the banks value their business more than our lives and wellbeing,” said the RAPland resident and human rights activist Daniel Ntanana Ole Shaa.
Furthermore, plans are now underway for a new 140MW KenGen plant, Olkaria VI, on the site of the village of Olomayiana Kubwa, which lies near the four villages whose residents were moved to RAPland. This public-private partnership project will involve another forced resettlement. From reports received, there is no evidence that the company, funders and other groups involved are following due process, abiding by protocols and fully consulting the PAPs.
Have no lessons been learned? A distinct sense of déjà vu hangs over the steaming, stinking plants of Hell’s Gate.
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Politics
Pax Savannah: Adjusting Kenyan Foreign Policy for Prosperity
A Pax Savanna doctrine would end the ambiguity of historical non-alignment that makes Kenya “Look East” today and “Look West” tomorrow.
One of the most confounding aspects of Kenyan foreign policy is the fact that there is generally no official doctrine guiding the conduct of the country’s external relations or its decision making. Kenyan international relations aficionados are left to speculate on the actions of the leadership with regards to questions of economics, peace, migration, climate, and culture.
As for the citizens, there is increasing disappointment with the conduct of the country’s foreign affairs due to numerous faux pas, an unresponsive officialdom, minimal camaraderie with fellow African countries on issues, and significant dalliance with the West on issues of global concern.
Remarkably, this could be because Kenya’s current foreign policy document published in 2014 makes no mention of the word “doctrine” despite it being the guiding framework for the country’s diplomatic engagements.
Foreign policy doctrine is the overarching justification grounding the rules upon which political leadership handles situations or explains the actions of one country towards another.
Subsequently, the justifications provided, or the activities carried out in the diplomatic community, tend to confound many observers, be they local or international. For example, there are numerous interpretations of what “pragmatism” means in Kenyan foreign policy. For some, it is “a cunning and ruthless pursuit of her national goals irrespective of ideals” while for others it is mainly an “emphasis on economic considerations when tackling national challenges”, among other interpretations.
In November 2022, President William Ruto’s international relations dealings were reported in the news as both “Look East” and “Look West”, and also as the “Here and There Diplomacy” characterized by conflicting signals, questionable or controversial conduct, and poor communication.
Kenyan foreign policy proclamations and practice, therefore, contradict the country’s projection of consistency in pursuit of stability within its national, regional, continental, and global engagements even while possessing a very realist understanding of threat in its traditionalist diplomatic conduct.
This is despite attaining a “pluralist dividend” following promulgation of the Constitution of Kenya 2010. It is therefore important to recognize that an understanding of opportunities from a post-modernist context can increase the benefits of including non-state actors in Kenya’s foreign policy.
In a sense, their inclusion would infuse new ways of thinking about global power relations, increase the country’s understanding of its potential sphere of influence, encourage consideration of entities outside of officialdom, and the possibility of novel ideas in the country’s external relations.
Kenyan diplomacy in a multipolar world
Shifts in polarity within global developments seem to be a new feature of the post-COVID and post-truth world.
The Russia-Ukraine conflict, the rise of China, disruptive technology, inflationary shocks, continued troubles in the Middle East, energy challenges, inadequate growth, an unexceptional America, demographic pressures, and a strain on natural resources seem to have ushered in a multipolar world by means of force; force, in this instance, being both natural and man-made events resulting in crisis in which one disaster builds into another, making situations worse. This context of polycrisis is particularly affecting power distribution within the international system.
Shifts in polarity within global developments seem to be a new feature of the post-COVID and post-truth world.
A modernization of Kenyan foreign policy is, therefore, required to establish a transformative diplomacy that can consider new nuances, increase sophistication in negotiation, and actualize greater responsiveness in the country’s conduct of its external relations.
Kenya must begin imagining itself on its own terms instead of based on Western “exceptionalist” predetermination illustrated by, for example, the Council on Foreign Relations (CFR) description of the country as an “anchor state” that provides stability.
This categorization is on account of the strategic confidence Kenya offers the US based on its financial services and infrastructural connectedness that make it a “hub of its subregion”. Further, this is due to Kenya’s promotion of regional peace and security among its neighbours in tandem with US/Western interests.
However, this perspective limits Kenya’s ability to become an African exemplar state; the appropriate democratic model within its immediate sphere of influence which is primarily the East African Community (EAC) and the greater Horn of Africa region.
As such, developing a doctrine would help pursue international peace and prosperity as championed by Kenya in response to an increasingly multipolar world through a multilateralism that focuses on building profitable relations as a means to building alliances within the savanna climate countries.
Peace in the savanna equals peace in the world
Generally, Kenya’s diplomatic pillars (peace diplomacy, economic diplomacy, diaspora diplomacy, environmental diplomacy, cultural diplomacy) are captured as a list of priorities, that is, a shared common purpose with the international community as opposed to being a defined, inherent framework for the country’s global ambitions.
In this sense, Kenya identifies issues of concern, spaces for action, institutions to influence, and opportunities for collaboration without giving a clear picture or viewpoint of what a harmonious world looks like according to its national interests.
Considering its history, Kenya must, therefore, develop a doctrine that offers guidance on domestic linkages to its foreign affairs, foundations in regional integration, prospects for new diplomatic constituencies, efforts towards modernization, and responses to emerging threats – essentially, explaining the centrality of Kenyan external relations logic in building profitable relations as a means of acquiring positive and sustainable alliances that benefit the world.
Kenya’s understanding of redistributed power requires a geostrategic reorganization of its motivations for cultural, economic, military, or political distinctiveness towards making an impression on the Savanna Climate Countries.
By distinguishing The Savanna as the space within which to optimize its global footprint, Kenya will be able to deploy an “Africa plus World” strategy that will harness the maritime advantages of the Indian Ocean Rim as a portal to increased economic collaboration in trade, investment, and the development of the country.
A Pax Savanna doctrine offers the language and reasoning of a “looking worldwide” foreign policy position that searches for partnership from all corners of the globe while ending the ambiguity of historical non-alignment that makes Kenya “Look East” today and “Look West” tomorrow.
Such a construct of objectives – a policy imagination of Kenya’s place in the world – must consider the geopolitical ways and means to become a part of either the current global economic system, the emerging alternative world order or, better still, a continental renaissance architecture.
While it interacts with the Bretton Woods system, the country should consider whether it will be a part of BRICKS (Brazil, Russia, India, China, Kenya, South Africa) or BRICSEA (Brazil, Russia, India, China, Southern and Eastern Africa).
This can only be achieved if the country works in tandem with the EAC to become a fast-growing economy that can, together with the BRICS countries, participate in dominating the world by 2050. EAC members’ engagement would be on equal terms with the BRICS member countries based on their combined advantage in terms of land mass, population, and GDP.
Ultimately, through whatever promising form or formation of international politics, Kenya should seek to take up the mantle of championing African prosperity, legitimacy, and welfare both for its own benefit and for the benefit of its continental compatriots.
A Pax Savanna doctrine offers the language and reasoning of a “looking worldwide” foreign policy position.
In doing so, Kenya would provide clarity concerning its participation in the African Continental Free Trade Area (AfCFTA), its intervention in Haiti, and justifications for Double Taxation Agreements (DTAs) or Free Trade Agreements (FTAs), among other actions.
Projection of influence in intergovernmental forums such as the Group of 20 (G20), the principal organisations of the United Nations (the UN General Assembly, the Security Council, the Economic and Social Council, the International Court of Justice, the UN Secretariat, and the Trusteeship Council) and coalitions such as the Group of 77 (G77), among others, must then be channelled towards achieving a Pax Savanna, an “Africa plus World” strategy that focuses on the Indian Ocean Rim as a theatre of specific transformational interest for Kenya.
Transformative diplomacy initiatives as rejuvenation
Non-state actors tend to be viewed or engaged with from a significant distance in Kenyan foreign policy. For instance, in and of their own right, professionals are only mentioned or acknowledged once in the entire 2014 foreign policy document.
This may be a consequence of previous clashes on questions concerning human rights as seen on issues regarding the Kenyan cases at the International Criminal Court (ICC) and the handling of suspects in the ongoing global war on terror.
Regrettably, these lenses of contestation are similarly applied to non-state actors in a whole range of other global spaces such institutional reforms, tax governance, debt sustainability, regional integration, climate change, trade advocacy, consumer rights, gender responsiveness, non-communicable diseases, and civil protection, i.e. emergency response.
Unlike the diaspora whose geolocational and financial influence are well captured (to the point of a ministerial evolution that has seen the creation of a state department for diaspora affairs), the vast human resource experience(s) and occupational positioning outside officialdom are yet to be truly harnessed for purposes of informing the national development agenda. Experts, scholars, practitioners, and students in spaces outside established diplomatic bureaucracy are peripheral entities in Kenyan foreign affairs policymaking.
Non-state actors tend to be viewed or engaged with from a significant distance in Kenyan foreign policy.
Adopting transformation as restorative diplomatic force of interactions will therefore champion more inclusion of non-state actors or professionals in decision-making, thereby helping to move current foreign policy away from its exclusive traditions, practices, and its policymaking roots to a more productive working relationship despite the differences that may emerge from time to time.
Such an approach would encourage the Kenyan government to embrace various platforms that expand access to expertise from the wider diplomatic professional community and from among its citizens. It would offer the government the opportunity to support the inclusion of new foreign policy ideas, and avenues for contribution by non-state actors thereby ending their marginalisation.
Deliberate mapping of Kenyan citizens in academia, non-governmental organisations (international and local), staffers within various diplomatic offices in Kenya, including the United Nations, the private sector, and faith-based organisations, among others, is critical in building support and partnerships in the national interest.
Moreover, such an initiative would infuse new ideas on improving Kenya’s foreign policy through emerging institutions such as the Foreign Service Institute (FSI), National Defence University (NDU) of Kenya, and the International Relations Society of Kenya (IRSK) to build bridges across existing tensions to prevent reversals and orchestrate diplomatic transformation for the modern age.
This would serve as a means of moving beyond the simple recognition and inclusion of multiple actors in decision-making to the establishment of an “Emergence Doctrine” of “The Exemplar State” to become a force for good in Africa and the world.
Politics
Is Somalia’s Quest for Membership of the EAC Premature?
Somalia must first ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the East African Community.
The current members of the East African Community (EAC) are Tanzania, Kenya, Uganda, Rwanda, Burundi, and South Sudan. The Somali Federal Government, under the leadership of Hassan Sheikh Mohamud, has expressed a strong interest in joining the EAC, sparking questions among Somali citizens as to whether the country is ready to join such a large and complex regional bloc.
During President Hassan Sheikh Mohamud initiated Somalia’s pursuit of EAC membership during his previous term as a president from 2012 to 2017. However, little progress was made during his first term and, following his re-election, President Hassan reignited his pursuit of EAC membership without consulting essential stakeholders such as the parliament, the opposition, and civil society. This unilateral decision has raised doubts about the president’s dedication to establishing a government based on consensus. Moreover, his decision to pursue EAC membership has evoked mixed responses within Somalia. While some Somalis perceive joining the EAC as advantageous for the country, others express concerns about potential risks to Somalia’s economic and social development. President Hassan has defended his decision, emphasising that Somalia’s best interests lie in becoming a member of the EAC.
To assess Somalia’s readiness to join the EAC, the regional bloc undertook a comprehensive verification mission. A team of experts well versed in politics, economics, and social systems, was tasked with evaluating Somalia’s progress. The evaluation included a thorough review of economic performance, trade policies, and potential contributions to the EAC’s integration efforts. During this process, the team engaged with various government institutions and private organisations, conducting comprehensive assessments and discussions to gauge Somalia’s preparedness.
One of the key requirements for Somalia is demonstrating an unwavering commitment to upholding principles such as good governance, democracy, the rule of law, and respect for human rights. Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Successful integration into the EAC would not only elevate Somalia’s regional stature but would also foster deeper bonds of cooperation and shared prosperity among the East African nations. While this is a positive step towards regional integration and economic development, there are several reasons for pessimism about the potential success of Somalia’s membership in the EAC.
Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Somalia has faced significant challenges due to prolonged conflict and instability. The decades-long civil war, coupled with the persistent threat of terrorism, has had a devastating impact on the country’s infrastructure, economy, governance systems, and overall stability.
The following fundamental factors raise valid concerns about Somalia’s readiness to effectively participate in the EAC.
Infrastructure development
Infrastructure plays a critical role in regional integration and economic growth. However, Somalia’s infrastructure has been severely damaged and neglected due to years of conflict. The country lacks adequate transportation networks, reliable energy systems, and while communications infrastructure has improved, internet penetration rates remain low and mobile networks – which are crucial for seamless integration with the EAC – can be unavailable outside of urban centres. Rebuilding such infrastructure requires substantial investments, technical expertise, and stability, all of which remain significant challenges for Somalia.
Political stability and governance
The EAC places emphasis on good governance, democracy, and the rule of law as prerequisites for membership. Somalia’s journey towards political stability and effective governance has been arduous, with numerous setbacks and ongoing power struggles. The lack of a unified government, coupled with weak state institutions and a history of corruption, raises doubts about Somalia’s ability to meet the EAC’s standards. Without a stable and inclusive political environment, Somalia may struggle to effectively contribute to the decision-making processes within the regional bloc.
Economic development and trade
Somalia’s economy has been heavily dependent on the informal sector and faces substantial economic disparities. The country needs to demonstrate a vibrant market economy that fosters regional trade and collaboration, as required by the EAC. However, the challenges of rebuilding a war-torn economy, tackling high poverty rates, and addressing widespread unemployment hinder Somalia’s ability to fully participate in regional trade and reap the benefits of integration.
Security Concerns
Somalia continues to grapple with security challenges, including the presence of extremist groups and maritime piracy. These issues have not only hindered the country’s development but also pose potential risks to the stability and security of the entire EAC region. It is crucial for Somalia to address these security concerns comprehensively and to establish effective mechanisms to contribute to the EAC’s collective security efforts.
Economic Disparity and Compatibility
Somalia’s economy primarily relies on livestock, agriculture, and fishing, which may not align well with the more quasi-industralised economies of the other EAC member states. This mismatch could result in trade imbalances and pose challenges for integrating Somalia into the regional economy. For instance, according to the World Bank, Somalia’s GDP per capita was US$447 in 2021 whereas it is US$2081 for Kenya, US$1099 for Tanzania, and US$883 for Uganda. Furthermore, Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
This divergence in economic structures could lead to trade imbalances and impede the seamless integration of Somalia into the regional economy. The substantial economic gap between Somalia and other EAC member states suggests a significant disparity that may hinder Somalia’s ability to fully participate in the EAC’s economic activities. Additionally, Somalia has yet to demonstrate fiscal or economic discipline that would make it eligible for EAC membership. While Somalia has a functioning Central Bank and the US dollar remains the primary mode of financial transactions, the risk of integration lies with the other EAC members; cross-border trade would occur in an environment of instability, posing potential risks to the other member state.
Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
While these fundamental challenges remain, it is important to acknowledge the progress Somalia has made in recent years. This includes the gradual improvement in security conditions, the establishment of key governmental institutions, and the peaceful transfer of power. One can also argue that many of these fundamental economic, infrastructure, political instability, and security concerns exist across the East African Community. However, what makes Somalia unique is the scale of the challenges it faces today. Somalia has adopted a federal political structure, which has not worked well so far. This level of fragmentation and civil political distrust makes Somalia’s case unique. More than ever, Somalia needs meaningful political and social reconciliation before it can embark on a new regional journey.
The absence of an impact assessment by the relevant ministries in Somalia is alarming. Without this assessment, it becomes challenging to make informed decisions about the potential benefits of joining the EAC and the impact on our economy and society. Conducting this assessment should be a priority for Somalia’s ministries to ensure a comprehensive evaluation of the potential benefits and risks involved in EAC membership. Furthermore, President Hassan Sheikh Mohamud’s decision to pursue Somalia’s integration into the EAC lacks political legitimacy as a decision of this nature would normally require ratification through a popular vote and other legal means through parliament. The failure to achieve this could potentially allow another president in the future to unilaterally announce withdrawal from the EAC.
Fragile state of Affairs and internal disputes
The recent reopening of the Gatunda border post between Uganda and Rwanda after a three-year period of strained relations indicates a fragile state of affairs. The East African Court of Justice has ruled that Rwanda’s initial closure of the border was illegal, highlighting the contentious nature of inter-country disputes. Furthermore, Tanzania and Uganda have formally lodged complaints against Kenya, alleging unfair advantages in trade relations, and have even gone as far as threatening Kenya with export bans. These grievances underscore the underlying tensions and competition between member states, which could potentially hinder the harmonious functioning of the East African Community. These political and economic disagreements among member states increase the risks associated with Somalia’s membership. Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions. Joining the East African Community at this juncture carries the risk of being drawn into ongoing disputes and potentially being caught in the crossfire of inter-country rivalries.
Conflict in South Sudan
The prolonged conflict in South Sudan, which has been ongoing since its admission to the East African Community (EAC) in 2016, serves as a cautionary tale for Somalia. Despite the EAC’s efforts to mediate and foster peace in the region, the outcomes have been mixed, resulting in an unsustainable peace. This lack of success highlights the challenges faced by member states in resolving conflicts and maintaining stability within the community. Somalia must carefully evaluate whether its participation in the EAC will genuinely contribute to its stability, economic growth, and development, or if it risks exacerbating existing internal conflicts. Joining the community without a solid foundation of political stability, institutions, and peace could potentially divert resources and attention away from domestic issues, hindering Somalia’s progress towards resolving its own challenges. South Sudan’s admission to the EAC in 2016 was seen as a major step towards regional integration and stability. However, the country has been mired in conflict ever since, with two civil wars breaking out in 2013 and 2016. The EAC has been involved in mediation efforts, with mixed results.
Assessing Readiness
Somalia must evaluate the readiness of its institutions, infrastructure, and economy to effectively engage with the East African Community. Comprehensive preparations are crucial to ensure that joining the community is a well thought-out and strategic decision, rather than a hasty move that could further destabilise the nation. Somalia needs to assess whether its infrastructure, institutions, and economy are sufficiently developed to cope with the challenges and demands of integration. Premature membership could strain Somalia’s resources, impede its growth, and leave it at a disadvantage compared to more established member states.
Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions.
Somalia must ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the EAC. A phased approach that prioritises capacity building, institution-strengthening, and inclusive governance would enable Somalia to lay a solid foundation for successful integration and reap the maximum benefits from EAC membership in the long term. Failure to address these concerns would make Somalia vulnerable to exploitation and market monopolies by stronger economies, and could also risk a lack of seamless convergence for Somalia’s membership. While there is political will from EAC leaders to support Somalia’s membership, it is vitally important that they make the right decision for Somalia and the EAC bloc as a whole to ensure a successful integration. I believe that, at this juncture, the disadvantages of Somalia joining the EAC outweigh the benefits.
Politics
2023 Marks 110 Years Since the Maasai Case 1913: Does it Still Matter?
It was a landmark case for its time, a first for East Africa and possibly for the continent. A group of Africans challenged a colonial power in a colonial court to appeal a major land grab and demand reparations. They lost on a technicality but the ripple effects of the Maasai Case continue to be felt.
In the name Parsaloi Ole Gilisho there lies an irony. It was spelled Legalishu by the colonial British. Say it out loud. He gave them a legal issue, all right. And a 110-year-old headache.
This extraordinary age-set spokesman (a traditional leader called ol-aiguenani, pl. il-aiguenak) led non-violent resistance to the British, in what was then British East Africa, that culminated in the Maasai Case 1913. Ole Gilisho was then a senior warrior, who was probably in his mid- to late thirties. In bringing the case before the High Court of British East Africa, he was not only challenging the British but also the Maasai elders who had signed away thousands of acres of community land via a 1904 Maasai Agreement or Treaty with the British. This and the 1911 Agreement – which effectively rendered the first void – are often wrongly called the Anglo-Maasai Agreements. In Ole Gilisho’s view, and those of his fellow plaintiffs, these elders had sold out. The suit accused them of having had no authority to make this decision on behalf of the community. This represented a very serious challenge by warriors to traditional authority, including that of the late laibon (prophet) Olonana, who had signed in 1904, and died in 1911.
The British had expected the Maasai to violently rebel in response to these issues and to colonial rule in general. But contrary to modern-day myths that the Maasai fought their colonisers, here they resisted peacefully via legal means. They hired British lawyers and took the British to their own cleaners. Spoiler: they lost, went to appeal, and lost again. But archival research reveals that the British government was so convinced it would eventually lose, if the Maasai appealed to the Privy Council in London (they didn’t), that officials began discussing how much compensation to pay.
The facts are these. The lawsuit was launched in 1912. There were four plaintiffs, Ole Gilisho and three fellow Purko (one of the 16 Maasai territorial sections) Maasai. In Civil Case No. 91 they claimed that the 1911 Maasai Agreement was not binding on them and other Laikipia Maasai, that the 1904 Agreement remained in force, and they contested the legality of the second move. They demanded the return of Laikipia, and £5,000 in damages for loss of livestock during the second move (explained below). Ole Gilisho was illiterate and had never been to school. But he and his fellow plaintiffs were assisted by sympathetic Europeans who were angered by the injustice they saw being perpetrated against a “tribe” that British administrators conceded had never given them any trouble. These sympathisers included people who worked for the colonial government, notably medical Dr Norman Leys and some district officials, lawyers, a few missionaries, the odd settler, and a wider group of left-wing MPs and anti-colonial agitators in Britain.
What had led up to this? After the 1904 Agreement, certain groups or sections of Maasai had been forcibly moved from their grazing grounds in the central Rift Valley around Naivasha into two reserves – one in Laikipia, the other in the south on the border with German East Africa. The British had pledged that this arrangement was permanent, that it would last “so long as the Maasai as a race shall exist”. But just seven years later, the British went back on their word and moved the “northern” Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve. In all, it is estimated that the Maasai lost at least 50 per cent of their land, but that figure could be nearer 70 per cent. The ostensible reason for moving them was to “free up” land for white settlement – largely for British settlers but also for South Africans fleeing the Boer War (also called the South African War).
But just seven years later, the British went back on their word and moved the ‘northern’ Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve.
By the time the case came to court, Ole Gilisho had become a defendant, even though he was in favour of the plaint. So were at least eight other defendants. He had signed the 1904 Agreement, and now stood accused with 17 other Maasai of having no authority to enter into such a contract. The first defendant was the Attorney General. Ole Gilisho’s son-in-law Murket Ole Nchoko, misspelled Ol le Njogo by the British, and described as a leading moran (il-murran or warrior) of the Purko section, was now the lead plaintiff. The plaint was called Ol le Njogo and others v. The Attorney General and others.
Challenges facing the plaintiffs
Most Maasai were illiterate in those days, and this obviously placed them at a major disadvantage. They could not write down their version of events. They were forced to rely, in their dealings with officials and their own lawyers, upon translators and semiliterate mediators whose reliability was questionable. But it is evident, from the archival record which includes verbatim accounts of meetings between Maasai leaders and British officials in the run-up to the moves and case, that the level of verbal discourse was highly sophisticated. This comes as no surprise; verbal debate is a cornerstone of Maasai society and customary justice. Unfortunately, that alone could not help them here. They knew they needed lawyers, and asked their friends for help. Leys, who was later sacked from the colonial service for his activism, admitted in a private letter: “I procured the best one in the country for them.” This was more than he ever admitted openly.
Local administrators used intimidation and all kinds of devious means to try and stop the case. (I didn’t come across any evidence that the Colonial Office in London sanctioned this; in fact, it ordered the Governor not to obstruct the main lawyer or his clients.) They allegedly threatened Ole Gilisho with flogging and deportation. They threatened and cross-questioned suspected European sympathisers, including Leys and the lawyers. They banned Maasai from selling cattle to raise the legal fees, and placed the Southern Reserve in continuous quarantine. It was hard for the plaintiffs, confined to a reserve, to meet their lawyers at all. At one point, lawyers were refused passes to enter the reserve, and their clients were prevented from leaving it.
We hear Ole Gilisho’s voice in the archival record. Forced to give a statement explaining his actions to officials at Enderit River on 21 June 1912, when asked if he had called Europeans to his boma, he replied: “Is it possible for a black man to call a white man?” He denied having called the Europeans (probably lawyers or go-betweens), saying they had come to him. Leys later explained to a friend that Ole Gilisho had probably been “terrified out of his wits”, and hadn’t meant what he said.
What happened in court
The case was thrown out when it first came before the High Court in Mombasa in May 1913. The Maasai appealed, and that is when the legal arguments were fully aired by both sides – lawyers for the Crown and the Maasai. The appeal was dismissed in December on the grounds that the plaintiffs’ claims were not cognisable in municipal courts. The two agreements were ruled not to be agreements but treaties, which were Acts of State. They could not, therefore, be challenged in a local court. It was impossible for the plaintiffs to seek to enforce the provisions of a treaty, said the judges – “The paramount chief himself could not bring such an action, still less can his people”. Claims for damages were also dismissed.
The Court of Appeal’s judgement centred on the status of a protectorate, in which the King was said to exercise powers granted to him under the Foreign Jurisdiction Act of 1890. Irrational as it sounds, the Crown claimed that British East Africa was not British territory, and the Maasai were not British subjects with any rights of access to British law, but “protected foreigners, who, in return for that protection, owe obedience” to the Crown. As Yash Pal Ghai and Patrick McAuslan later put it, when discussing the case in a 1970 book: “A British protected person is protected against everyone except the British.” On the plus side, the judges ruled that the Maasai still retained some “vestige” of sovereignty. (The Maasai’s lawyer argued that they did not.) This triggered later moves by Maasai politicians, in the 1960s, to float the idea of secession from Kenya and the possible creation of a sovereign Maasai state. John Keen had threatened this in 1962 at the second Lancaster House Conference in London, attended by a Maasai delegation.
Alexander Morrison, lawyer for the Maasai, argued that British rule and courts were established in the protectorate, which had not been the case 30 years earlier. The Maasai were not foreigners but equal to other British subjects in every way. The agreements were civil contracts, enforceable in the courts, and not unenforceable treaties. If one took the Crown’s claim about Acts of State to its logical conclusion, he argued, a squatter refusing to leave land reserved for the Maasai could only be removed by an Act of State. None of his arguments washed with the judges. (See my 2006 book Moving the Maasai for a fuller account.)
Morrison advised his clients to appeal. It seems they couldn’t raise the funds. However, oral testimony from elders reveals a different story: Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea. This is impossible to verify, but it rings true.
In an interview carried out on my behalf in 2008 by Michael Tiampati, my old friend John Keen had this to say about the outcome of the case: “If the hyena was the magistrate and the accused was a goat, you should probably know that the goat would not get any form of justice. So this is exactly how it was that the Maasai could not get any fair justice from British courts.”
Contemporary African resistance
Unbeknown to the Maasai, there was growing anti-colonial resistance in the same period in other parts of Africa. All these acts of resistance have inspired African activists in their continuing struggles. To mention a few: the Chilembwe rebellion in Nyasaland, now Malawi (1915); the Herero revolt in German South West Africa, now Namibia (1904–1908); resistance in present-day Kenya by Mekatilili wa Menza (largely 1913-14); the First Chimurenga or First War of Independence in what is now Zimbabwe (1896–1897); and the Maji Maji rebellion in German East Africa, now Tanzania (1905–1907). But none of these rebellions involved lawsuits. The closest precedent may have been R vs Earl of Crewe, Ex-parte Sekgoma in 1910. Chief Sekgoma, who had been jailed by the British in the Bechuanaland Protectorate (now Botswana) after many attempts to remove him as chief, instructed his lawyer to bring a writ of habeus corpus against the Secretary of State for the Colonies, Lord Crewe. He demanded to be tried in an English court, refusing an offer of release on condition that he agrees to live in a restricted area of the Transvaal. The suit was dismissed, the court ruling that the King had unfettered jurisdiction in a protectorate, and his right to detain Sekgoma was upheld. Sekgoma apparently said: “I would rather be killed than go to the Transvaal. I will not go because I have committed no crime – I wish to have my case tried before the courts in England or else be killed.” Freed in 1912, he died two years later.
Enduring myths
The case, and other key events in early twentieth century Maasai history, have given rise to several myths. They include the idea that the stolen land should “revert” to the Maasai after 100 years, but that was not stated in the 1904 Agreement, which was not limited in time, was not a land lease, and has not “expired” as many people claim. Neither agreement has. Keen knew this, but nonetheless called for the land to “revert”. Other myths include the idea that Olonana’s thumbprint was placed on the 1911 Agreement posthumously, and it must therefore be invalid. But neither his thumbprint nor name are on the document, which was “signed” by his son Seggi. Anyhow, Olonana was a key ally of the British, who had no reason to kill him (which is another myth).
The original of the 1904 Agreement has never been found, which has led some Maasai to believe that it never existed and therefore all the land must be restored and compensation paid for its use to date. There may be sound legal arguments for restorative justice, but this is not one of them. These myths are ahistorical and unhelpful, but may be understood as attempts to rationalise and make sense of what happened. Some activists may wish that the Maasai had resisted violently, rather than taken the legal route. Hence the insistence by some that there was a seamless history of armed resistance from the start of colonial rule. Not true. There are much better arguments to be made, by professional lawyers with an understanding of international treaty rights and aboriginal title, which could possibly produce results.
Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea.
Where does all this leave the Maasai today? Over the years, there has been much talk of revisiting the case and bringing a claim against Britain (or Kenya) for the return of land or reparations for its loss. None of this has resulted in concrete action. I attended a planning workshop in Nairobi in 2006 when plans were laid for a lawsuit. VIPs present included the late Ole Ntimama, scholar Ben Kantai and John Keen. Keen declared, with his customary flourish, that he would stump up a million shillings to get the ball rolling. I don’t know how much money was raised in total, but it disappeared into thin air. As did the lawyers.
Leading lawyers have advised that too much time has passed, and (unlike the successful Mau Mau veterans’ suit) there are no living witnesses who could give evidence in court. It is unclear whether the agreements still have any legal validity. The British government might argue, as it previously has, including in response to my questions, that it handed over all responsibility for its pre-1963 actions to the Kenyan government at independence. This is a ludicrous argument, which is also morally wrong. Former colonial powers such as Germany have accepted responsibility for historical injustices in their former colonies, notably Namibia. Has the time come for Ole Gilisho’s descendants to call a white man to court?
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