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What Code is Your [TRIBE]?

12 min read.

Kenyan demographers seem blind to the politics of identity and belonging. Yet the codification and recognition of tribe or ethnicity in Kenya has evolved into an exercise that gives – or denies – people political and social visibility.

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What Code is Your ?
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Take ye the sum of all the congregation of the children of Israel, after their families, by the house of their fathers, with the number of their names, every male by their polls.” Numbers 1:2

The broken promise

The Kenya Human Rights Commission (KHRC) shared pictures of Shona women dressed in immaculately white dresses, deliberately invoking a religious sensibility. This was necessary since the Shona had arrived in Kenya as African missionaries in the 1950s. These pictures were taken at a podium draped in the Kenyan national flag on the occasion of what KHRC referred to on Twitter as the #ShonaCitezenshipPrayer. At the back of the dais was a canvas poster with the words “Prayer for the government of Kenya to grant the Shona citizenship.”

When they moved labourers from one part of their empire to another, the British didn’t think of the kind of long-term damage they left behind among translocated communities like the Warundi (sisal farmers in Kwale), the Makonde (rescued slaves resettled in Kilifi),  the Shona (African missionaries), the Nubians (King’s African Rifles who helped the British expand their empire) and the Pemba from Zanzibar. Or the Indians who were brought to work on the Uganda Railway. The post-colonial governments in Kenya, while instrumentalising ethnicity, had not evolved any mechanism to incorporate this translocated population who have over the past 57 years hovered in the margins of the Kenyan state.

Whether affected by the British Empire or rejected by the post- independence regimes, Kenya has been notorious for locking entire communities from accessing services and crucial papers through elaborate exclusionary mechanisms like censuses and ethnic coding.

Illusions and smoke screens

On 18th December, 2018, at an event in Marsabit, the then social services minister and former Marsabit governor, Amb. Ukur Yatani, presided over the issuance of legal status to “Wayyu”, the newly acknowledged name of the Waata community. The event, dubbed “rebirth of Wayyu”, was an official rejection of their old name, Waata, which had been considered pejorative and connotive of a low caste hunter gatherer group. With the name change also came their recognition as Kenya’s 46th tribe.

This recognition was a culmination of many factors. The idea was mooted by a Waata researcher in a 1993 paper where he suggested that “The Waata be registered as a distinct sub-group of the Boran-speaking peoples as are the Boran, Gabbra, Sakuye, etc;” as a means of preserving the Waata culture and identity. Over the years this quest took on different forms:  advocacy through petitions and threats, until at the end the quest for state recognition had become for Ali Bala Bashuna and for the Waata an existential question.

In a 2000 paper titled “When will we be people as well? Social identity and the politics of cultural performance, Aneesa Kassam gives a broader context for Ali’s quest, noting that:

“With no political support, his (Ali Bala’s) campaign has had little success. The state is, in fact, generally inimical to such manifestations of ethnicity. It considers them counter to its programmes of nation-building and will only support such movements when they are to its own political advantage.”

Wayyu was the third group to be given official ethnic codes and with it a form of a legal status.   The government made it look like this granting of legal status through ethnic code was a necessary and desired development.

Before Wayyu, and through a presidential proclamation, Kenyan Asians were recognised as Kenya’s 44th tribe on 22 July, 2017. In a TV interview, Farah Manzoor, a fifth-generation Kenyan human rights activist and the main architect behind the recognition of Kenyan Asians, led a choir thanking the president for recongising the Asian community.

Arabaini na nne
Twashukuru raisi
Arabaine na nne
Sisi ni wakenya
Wahindi wakenya
Kabila la kenya 

When the Minister for Interior, Fred Matiangi, announced the presidential proclamation, he told Kenyan Asians, “Now, you are part and parcel of us formally. You are part and parcel of Kenya’s great family.”

A few months earlier, the Makonde community received their own ethnic code on 1st February 2017 when the president himself conferred citizenship status to this erstwhile stateless community. They had been asked by the Minister for Interior, Joseph Nakaissery, “to feel liberated”.

Other groups came forward asking that they too be recognised. This is where the #ShonaCitizenshipPrayer finds a meaning.

When the Minister for Interior, Fred Matiangi, announced the presidential proclamation, he told Kenyan Asians, “Now, you are part and parcel of us formally. You are part and parcel of Kenya’s great family.”

A section of the Kirinyaga community came forward, asking that they be recognised as the 45th tribe of Kenya away from the Gikuyu tribe. One of the speakers said, “We are not here to promote tribalism…we don’t want our children to suffer from inferiority complex when they are talking. Another one added, “We claim social benefits, recognition…”

Just before the 2019 census, the Lembus community came forward with a legal suit for what they claimed to be an erroneous classification that had been “done without their consent thereby denying them crucial rights”.

Intentions and meaning  

The issuance of tribal codes and their recognition in all the three cases of Makonde, Wayyu and Asians meant something different. For the Makonde, their recognition as Kenya’s tribe 043 changed their statelessness and made them Kenyan citizens. For the Kenyan Asians, to be Kenya’s tribe 044 meant someone was playing a political game with the community’s name. For the Wayyu, there was a social political validation; they were now a distinct, independent and legit “tribe” who would never live under the shadow of other tribes.

Kenyans watched the “admission” of these “tribes” into an imaginary Kenyan National Register of tribal groups. No one noticed that from Makonde 043, Kenyan Asian 044 the government had skipped Tribe 045 and named Wayyu as Tribe 046. But that didn’t matter; this was vintage Kenyan ethos at play.

Census code

A few days prior to the 2019 Kenyan census, a video of an elderly man in a Kanzu and seated next to a wall with the words “Gurreh 509” scribbled on the wall went viral in Mandera. The man kept asking people to “wake up” and to “pass word around” that the people of Mandera were Gurreh–code 509 and not Garre–code 532. This, on his part, was short notice civic education to remedy the confusion of multiple codes provided as options for the Garre in the 2019 census. The man told the people to choose Gurreh 509 and to be vigilant enough to ensure that they were not recorded as Garre 532.

The 2019 census revived an old discussion on census and tribal codes.

Old game

In his book Define and Rule, Mahmood Mamdani says that the census was an imperial tool that propped up indirect colonial rule. Censuses, he says, “…endeavoured to shape the present, past and future of the colonised by casting each in a nativist mould, the present through a set of identities in the census, the past through the driving force of a new historiography, and the future through an extensive legal and administrative apparatus.”

A few days prior to the 2019 Kenyan census, a video of an elderly man in a Kanzu and seated next to a wall with the words “Gurreh 509” scribbled on the wall went viral in Mandera. The man kept asking people to “wake up” and to “pass word around” that the people of Mandera were Gurreh-code 509 and not Garre-code 532.

An example of the quest of such a classification was visible during the colonial times in the curious case of the Isaaq and Harti Somalis who in 1937 petitioned the British colonial government demanding that they be charged a higher tax under the “non natives” category. Keren Witzenberg, writing about this, says that “fearful of losing their privileged status within the colonial racial order, Isaaq elites claimed that they were not Africans, nor Somalis, but rather “Asiatics”.

This classification for the Isaaq/Harti Somalis came with benefits, including “pass exemptions, special rations in prison and the military, higher salaries, and access to separate wards in hospitals…and access to many of the civil rights denied to other African subjects”.

Census code as mother of ethnic code 

The magical Kenyan number of 42 ethnic tribes was, according to Gabrielle Lynch, born out of the options provided during the 1962 census. Census reports, however, have not over those years been consistent in reporting on the number of ethnic groups in the country, as illustrated in the table below.

Kenyan tribes, as reported in the Kenyan census over the years

Source: Kenya National Bureau of Statistics

Source: Kenya National Bureau of Statistics

In the 2009 enumerators’ manual, at least 114 different tribes were coded, including subgroups under the big tribes like the Luhya, the Kalenjin, the Swahili and the Mijikenda. If this is compared with the census results and the ethnic data found on the Kenya National Bureau of Statistics (KNBS) website, it becomes easily apparent that even where one’s community had been coded and options provided, it did not automatically translate to their ethnic data being included in the final census report. The reverse is also true for some communities whose names were not coded or provided as options but their numbers and final figures were included in the final ethnic data report. By 2019 the number of coded ethnic/nationality options were 135.

It was obvious that the census was not serious about what and who they included in their ethnic lists. Numerous examples abound.

The 2009 census codes were different from the 2019 codes. Nubians who had been included in the 2009 census for the first time under code 220 were now coded 021 in the 2019 census. Even the Makonde with ethnic code 043 were listed under census code 320.

Other inconsistencies in the census include repetitions, double entries, misspelt community names, for example, Garre,Gurreh or Waat,Watta,Aweer/Watta, Wayyu.

While many minorities fought for inclusion, a community like the Orma are fighting to have the name Galla removed from the census since it is a pejorative reference invented in the colonial period. (Mgalla muue na haki mpe? )

The 2009 census codes were different from the 2019 codes. Nubians who had been included in the 2009 census for the first time under code 220 were now coded 021 in the 2019 census. Even the Makonde with ethnic code 043 were listed under census code 320.

Kenyan demographers seem blind to the politics of identity and belonging. It was obvious that KNBS hasn’t given serious thought to the socio-political implications of what the census means. In the enumerators manual we see a cautionary attitude from KNBS. To the question “What is <NAME>’s ethnicity or Nationality?” enumerators were asked to:

Accept the answer as given to you without question. Do not get involved in any argument on this issue. The census is not concerned with the legal position. Accept what the person tells you and record the ethnicity or nationality to which the person considers he/she belongs.

When did census coding become political?

While the census transitioned from its narrow orientation in 1962 where only 16 ethnic groups were tallied to 2019 where 135 options were provided, including minorities like Waat and Nubians, an examination of the census reports over the decades shows unexplained inclusion or exclusion of ethnic groups. This has created the perception that ethnic exclusion from the census tallying process means exclusion from opportunities and resources.  The inclusion of any ethnic groups in the census one year and its removal in the next census has led to the general idea that one’s existence and identity is being questioned. Here a protest begins.

At least 17 tribes/Nationalities/options included in the 1989 census report had been left out of the 2009 results. But there was the addition of 18 new ethnicity/tribes/nationalities/options provided in the 2009 census.

Addition of new tribes in the Kenyan census over the decades

Addition of new tribes in the Kenyan census over the decades

Source: KNBS

But even as new tribes were added, over the decades some were suddenly dropped from the reports.

Tribes left out of census reports over the years

Tribes left out of census reports over the years

Source: KNBS

Source: KNBS

In the 2009 census, there were 114 options provided, including the subgroups for larger groups like Luhya (18), Mijikenda (12) Swahili (20) The census report only gave the figures for 55 different tribes.

In 2019, the options provided were 143, including subgroups for larger groups. The 2019 census reports has also shown the figures for all the subgroups, a departure from the past where the subgroups were amalgamated and their figures reported as one.

Efforts towards state recognition 

The “rebirth of the Wayyu Nation ” began with the population census dating back to the 1990s. This bore fruit in 2009 because finally and for the very first time the Waata were counted as Waata and not as “others”.

Then their second quest begun in Ethiopia on 8th January 2013 at an event in which eight supreme traditional leaders (Aba Gadas) unanimously agreed to Waata changing their name to “Wayyu” because, as an activist put it, “Kabila haliwezi kujiita na Matusi“.

After this, the Wayyu set out on the quest for state recognition in Kenya. They began with the county commissioner’s office. “We got letters from the Marsabit, Isiolo, Tana River and Mandera county commissioners respectively confirming that our community lived in each of these counties.” County commissioners were instrumental in this quest since part of the ministry’s mission is “maintain a credible national population register, enhance nationhood”.

The Waata activists’ efforts included “taking the letters to the Gender and Equality Commission, who referred them to KNBS who referred them to Kenya National Census who referred them to the Attorney General’s office to whom they made a presentation justifying why we need to change our name from Watta to Wayyu and why we need an ethnic code”.

The Attorney General, Githu Muigai, then wrote a letter to the Office of the President through the Secretary to the Cabinet. They waited for the electioneering period to end, went back to the Secretary to the Cabinet, and also “asked for Ukur Yatani’s intervention, we even took the state recognition of Wayyu in Ethiopia, letters from the UN confirming the minority status of Wayyu”. Then a letter was written “to the registrar of persons….from the president himself”. These events eventually led to the community being recognised as Kenya’s tribe 046.

To be recognised as Kenya’s 43rd tribe, the Makonde embarked on a long journey. “We started the journey for recognition as Kenyan citizens early in 1995 “with the last major effort being “a walk for the stateless” where the Makonde community walked from Kwale County to State ouse in Nairobi, a distance of almost 500 kilometres.

Census as an eating opportunity?

But why, if the Makonde’s wanted recognition as Kenyan citizens through ethnic coding,  did the Wayyu and Asians also agitate for a code when they were already recognised as citizens, as they were already included in the census?

In post-devolution Kenya, a background is created. Employment and other resources were given along ethnic considerations. Thus, to add a “constitutional status” or a presidential pat to one’s ethnic existence redefines the framework in which local ethnic alliances are discussed and navigated, granting groups a new confidence and renewing their efforts to organise.

A Wayyu community activist captures the prevailing sentiment that an ethnic code might affect substantive changes in the community’s present and future access to resources and related opportunities. This speculative streak was putting a political question on the census/coding exercise. I ask how an ethnic code was different from a census code.  “Census is a research, they keep on changing the number ascribed to a community for purposes of analysis…census codes are not permanent. But an ethnic code is permanent, and that was our desire…If you cannot elect Wayyu by voting them as a minority then they can be given nomination seats, something like the old ‘bunge Maalum’ or even as an MCA in the county assembly.” 

For the Nubians, inclusion in the census was thought to lead to an express access to land. Samantha Balaton-Chrimes, writing about the Nubians’ reaction to being included in the 2009 census, observes that, “land was thought by many participants to be one of the reasons why the code in the census was so long in coming, and was of the primary benefits they hoped to gain from the 2009 code”

Samantha adds that “recognition in the form of a census code gave an institutional context for the multiple and complex modes of belonging that carry actual salience in their real lives”.

A year after the Makonde had been coded, the Daily Nation visited the community to see what had changed for them and were told: “Two youths joined the Kenya Police Service and four joined National Prisons Service. About 200 youth have also been participating in community work under the National Youth Service.”

In addition 1,875 members of the community had been issued with IDs and were registered as voters in Kwale County.

Post-independence anxiety

For many communities, an anxiety emerged at independence. In Kenya the post-independence governments inherited and wholly adopted the same simplified notion of ethnicity, which in most areas worked against the economic, social and political context of some groups, especially those that had been brought to Kenya in the service of the colony, such as the Indians, the Nubians or even the Burji. Kenya did not adopt an active denationalisation policy and did not undertake a mass expulsion of “non-nationals”, as was seen in Uganda where Asians under Amin and Banyarwanda under Obote were expelled en masse. In Kenya this was instrumentalised at a certain level as a manipulation tool. Murmurs of “rudi kwenu” or being called “wageni” never ceased.

Inclusion in the census, for some, has over the past decades brought back these anxieties because censuses in Kenya have evolved into exercises that give people political and social visibility.

It looks like the problem of exclusion from censuses is experienced elsewhere too. Even in the United States, the exclusion of the Middle East and North Africa (MENA) identity category brought some controversy when it was ignored in the 2020 census. This erasure was challenged by congresswoman Rashida Tlaib who said, “By ignoring us you are erasing us…we will be invisible for another decade in our country” The MENA community, like others, relies on accurate census representation for health research, language assistance, civil rights laws, and reporting educational outcomes.

A convergence of confused expectations

It is obvious that another purpose can also be added to the census code. These communities between them capture a microcosm of the anxieties that emerge in the face of statehood, problems of citizenship, belonging and access to opportunities.

This is the wellspring of the overly optimistic notion that with an ethnic/census code minorities will also gain an expressway to all the things that they had been denied or had lacked; respect, political representation and full inclusion into national decision making. But this ambition had been adopted without proper assessment.

A year after the Makonde had been coded, the Daily Nation visited the community to see what had changed for them and were told: “Two youths joined the Kenya Police Service and four joined National Prisons Service. About 200 youth have also been participating in community work under the National Youth Service.”

Only four members of the Wayyu community have contested  an electoral office. On all but one of these occasions, the performance were dismal. These candidates suffered not only electoral loss but social ridicule and references to a “lower caste”, which meant that they lost their social standing and reputation. This ridicule and mocking jeers seemed intended to discourage further electoral contestation. The issue of forming political alliances, or their quest for ethnic codes was thus a matter of political necessity and of nationalistic expediency.

BBI games

The Building Bridges Initiative (BBI), like the census, reflects a quest for ethnic codes. Kenyan ethnic groups submitted memoranda on what they desired for their communities. Regional tribal alliances were formed to show allegiance to the president. Public political declarations were issued in support of BBI but also factions emerged as tribal elites sought to be the true spokespersons in submitting their ethnic group’s grievances and needs.

Mahmood Mamdani says “tribalism is a reified ethnicity”. And in Kenya a narrow utilitarian value has been ascribed to ethnicity and tribalism as the parameters of resource distribution and political mobilisation. Many Kenyan politicians often decry that tribalism is the cause of many of the country’s woes. The paths of these problems pass through the narrow bridges of ethnicf and census codes.

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The author is a writer based in Marsabit, Kenya.

Politics

Big Pharma and the Problem of Vaccine Apartheid

In this report on the TWN-Africa and ROAPE webinar on vaccine imperialism held last month, Cassandra Azumah writes that the unfolding vaccine apartheid which has left Africa with the lowest vaccination rates in the world is another depressing example of the profit and greed of Big Pharma facilitated by imperialist power.

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Big Pharma and the Problem of Vaccine Apartheid
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The webinar on ‘Vaccine Imperialism: Scientific Knowledge, Capacity and Production in Africa’ which took place on 5 August 5, 2021, was organized by the Review of African Political Economy (ROAPE) in partnership with the Third World Network-Africa (TWN-Africa). It explored the connections and interplay of Africa’s weak public health systems, the profit and greed of Big Pharma enabled by the governments of the industrialized Global North, and the Covid-19 pandemic from a political economy perspective. This report summarizes the main discussions held during the conference, including an overview of each of the main points discussed. The webinar was the first in a three-part series of webinars scheduled by the two organizations under the theme Africa, Climate Change and the Pandemic: interrelated crises and radical alternatives.

The format of the event involved keynote presentations from three speakers, a five-minute activist update on the COVID-19 situation from two African countries, and an interactive discussion with participants. Chaired by Farai Chipato, a Trebek Postdoctoral Fellow at the University of Ottawa and ROAPE editor, the session included presentations from Rob Wallace, an evolutionary epidemiologist and public health geography expert at the Agroecology and Rural Economics Research Corps; Tetteh Hormeku, Head of Programmes at Third World Network-Africa (TWN-Africa) and Marlise Richter, a senior researcher at the Health Justice Initiative in South Africa.

The current state of the pandemic – Rob Wallace

Rob Wallace began the session by providing a global perspective on the current state of the COVID-19 pandemic. He presented data showing that though the total number of vaccinations are increasing, the percentage of people fully vaccinated is concentrated in the West. We are currently experiencing a third wave of the pandemic, which is being driven by the delta variant. Though the cases in Africa are relatively lower than in other parts of the world, it is still a marked increase from the first and second waves which were less severe. This is not the trajectory that was predicted for COVID-19 on the continent in the early days of the pandemic. Marius Gilbert et al had speculated that Africa would be vulnerable to the virus due to a lower public health capacity and underlying co-morbidities that might increase the spread and damage of the virus. However, the incidence of the virus has played out in a different way, Africa’s cases are not as high as that of other continents. The possible reasons that have been given for this are: demographics (a younger population), open housing (which allows greater ventilation), and an ongoing circulation of other types of coronaviruses which have induced a natural, partial immunity in the population.

Wallace also commented on herd immunity, stating that it is not a panacea for defeating the virus. He referenced a paper by Lewis Buss et al on COVID-19 herd immunity in the Brazilian Amazon which found that although 76% of the population had been infected with the virus by October 2020, they had not achieved herd immunity (which is usually estimated at 70-75%), and proliferation of the virus was ongoing. He pointed out that the key lesson from this study is that there is no magical threshold for herd immunity; it may be different for different populations or there may be no threshold at all.

Likewise, he contended that defeating COVID-19 has little to do with vaccination as a silver bullet, but much to do with governance and the wellbeing of the population being at the crux of any public health decisions a government would take. A multi-pronged approach should be taken to defeat the virus, one that includes vaccinations, wearing of masks, social distancing, and testing and tracing. He argued however, that in the neoliberal regimes of the industrialised North, dealing with COVID-19 is organized around profit.

This was not the case in the early days of the outbreak. Initially, the World Health Organisation (WHO) and the National Institutes of Health (NIH) in the US were in favour of having open medicine and making sure any pharmaceutical products produced to fight the virus were free to all. To this end, WHO developed the COVID-19 Technology Access Pool (C-TAP). However, the lobbying of Big Pharma and the likes of Bill Gates worked to centre the COVID-19 response around the model of intellectual property rights. This has had a considerable impact on the evolution of the virus, allowing it enough room to evolve such that pharmaceutical companies can make profits by selling booster shots of the vaccine. According to Wallace, this speaks to the “sociopathic nature” of the neoliberal regimes in the Global North who are willing to put the profits of Big Pharma over the lives of people. He opined that we need to act in solidarity to create a system in which disparities between the Global South and Global North are removed.

Health justice and the pandemic in South Africa – Marlise Richter

Marlise Richter’s presentation shed light on the work of the Treatment Action Campaign (TAC) and the lessons that can be learnt from their struggles for access to medicines (in particular ARVs). She pointed out that the TRIPS agreement (Trade-Related Aspects of Intellectual Property Rights – TRIPS – is a legal agreement between member states of the World Trade Organisation) had a big impact on how the HIV/AIDS epidemic was addressed, resulting in a limited number of ARVs reaching the Global South.

The HIV epidemic was particularly acute in South Africa, the number of people living with the virus ballooned from 160,000 in 1992 to over 4.2 million people by 2000. At this time, ARV’s had been developed but were unaffordable in Africa, costing up to US$10,000 a year in 1998.

The TAC used multiple strategies such as skilled legal advocacy, high quality research, social mobilization, demonstrations, and public education to fight the pharmaceutical industry and their abuse of intellectual property rights protections. It joined the case brought by the Pharmaceutical Manufacturers Association (PMA) against the South African government for allowing parallel importation of drugs in order to bring down prices of medicines. Its intervention contributed to pressuring the PMA to withdraw its claims in 2001. In addition, it applied pressure at the 13th International AIDS Conference in Durban in 2000 by staging a march to highlight the danger of President Mbeki’s AIDS denialism and demanded access to ARVs in Africa.

From 1999 onwards, the TAC also campaigned for a national prevention of mother-to-child transmission of HIV. This case was won at the high court and precipitated a national ARV roll-out plan in April 2004. Finally, in 2002, TAC and the AIDS Law Project filed a complaint with the Competition Commission against GlaxoSmithKline (GSK) and Boehringer Ingelheim arguing that they violated the competition law by abusing their dominance in the market and charging excessive prices for ARVs. This forced the companies to reach a settlement in 2003 leading to a drastic cut in ARV prices. By employing these tactics, the TAC and other activists were able to transform both the national and global conversation on drug pricing, eventually leading to South Africa having the largest HIV treatment program globally and pharmaceutical companies reducing the prices of ARVs.

Following the success of the campaigns to provide access to ARVs in Africa, activists in the Global South fought for the Doha Declaration. The Doha Declaration waived some of the provisions in TRIPS in order to prevent public health crises and promote access to medicines for all. However, Richter commented that not many of these flexibilities have been used. She posits that this is due to immense political pressure from the West. The US in particular has singled out governments that seek to use the TRIPS flexibilities and placed them on the US Special 301 Watch List.

Returning to the present, Richter presented data that showed that on 3 August, there have been just under 200 million confirmed cases and over 4.2 million deaths of COVID-19. 28.6% of the world’s population has received at least one dose of the vaccine with 14.8% fully vaccinated. But to give a sense of the disparity in vaccine administration across the world, she indicated that 4.21 billion doses have been administered globally with 38.67 million administered daily, but in low-income countries only 1.1% of people have received at least one dose. Narrowing it down to Africa, only 1.58% of the population has been fully vaccinated. This variance in administered vaccines is also present across the continent. In July 2021, Morocco had 28.9% of its population fully vaccinated, Botswana and South Africa had 5.3% and 5% of their populations fully vaccinated, and the Democratic Republic of the Congo had 0%. These incongruities are also evident when we assess the number of vaccines promised against vaccines delivered, with South Africa receiving only 26% of the vaccines promised. Continuing at the current pace, it would take South Africa two years and three months just to vaccinate 67% of its population.

Richter quoted the WHO Director-General saying, “The world is on the brink of a catastrophic moral failure – and the price of this failure will be paid with lives and livelihoods in the world’s poorest countries.” Following from this, she believes that it makes ethical sense and public health sense for vaccines to be distributed equitably amongst the world’s population. In a bid to fight for vaccine equity, South Africa and India co-sponsored the TRIPS waiver in October 2020. If successful, this waiver will bring about flexibilities in the TRIPS agreement which would have an immense impact on the manufactured supplies of vaccines and other medical goods. For the waiver to be passed, a consensus amongst all member states of the WTO needs to be reached. While the waiver is supported by over 100 countries (predominantly in the Global South), it has been blocked most notably by the EU, Australia, Norway and Japan, countries which have enough vaccines to vaccinate their population many times over. Putting this into perspective, in January 2021 the EU had 3.5 vaccines per person and Canada had 9.6 vaccines per person, as compared to 0.2 vaccines per person in the African Union. By blocking this waiver, the industrialised North is further entrenching the extreme inequalities currently faced by the Global South.

Richter concluded her presentation by speaking on a recent development in South Africa, where Pfizer-BioNtech has recently signed a ‘fill and finish’ contract with the Biovac Institute. She claimed that while this is a first step in developing manufacturing capacity, it is not enough to achieve vaccine independence because it does not include the sharing of Pfizer-BioNtech’s technology or know-how. In addition, the ‘fill and finish’ approach does not address issues of security of supply, nor does it allow local manufacturers the freedom to make their own pricing decisions. She believes that if we start from the premise that health is a human right, as the TAC does, we will regard health equity and especially vaccine equity as essential in the struggle against the pandemic.

The political economy of the continuing fight against intellectual property rights negatively affecting public health goods in Africa – Tetteh Hormeku

Tetteh Hormeku’s presentation was centred around the challenges that African countries have confronted in the process of trying to develop their own pharmaceutical capacity. These challenges go beyond the struggles for the TRIPS waiver and include the impact of some of the choices governments have made. He focused on two interrelated points that frame the predicament of African countries in relation to the current vaccine situation:

1) The vaccine process is dominated by pharmaceutical Multinational Corporations (MNCs) based in the advanced industrial countries and supported by their governments. The controversy around the TRIPS waiver is a clear example of the extent to which advanced countries and their MNCs would like to hold on to their place in the international order.

2) On the non-existent domestic pharmaceutical capacity in African countries, Tetteh explained that he uses the phrase “domestic pharmaceutical capacity” because:

  • It does not include a subsidiary of an MNC signing a production agreement with a local African company.
  • The word ‘domestic’ combines both the local character of production and the fact that it is embedded within the nation, its challenges, people, drives and imperatives.
  • It does not refer to nations alone, but also to regional and continental initiatives.
  • It captures pharmaceutical capacity beyond the production of vaccines.

Tetteh provided the following case-study to show how these two points are interrelated. 24 February marked the first shipment of COVID-19 vaccines to Ghana, and there was an optimism that it would be the beginning of a steady supply of vaccines to the country – six months later, less than 2% of the population has been vaccinated. Around the time Ghana received this first shipment, it was in talks with the Cuban government for support on the transfer of technology to improve its pharmaceutical capacity.

This date in February also marked the anniversary of the overthrow of Kwame Nkrumah in 1966. Six months before the coup Nkrumah’s government had established a state pharmaceutical enterprise. After the coup, the military government tried to hand it over to Abbott Laboratories, an American pharmaceutical company, under such outrageous terms that the resulting backlash from the populace led to the abandonment of this plan.

The creation of a state-owned pharmaceutical enterprise in Ghana and in other African countries in the post-independence era was a reaction to colonial policies which deliberately curtailed the production of knowledge and science across the continent. The aim of developing a pharmaceutical industry domestically was to intervene on three levels:

  • Creating an industry with the technical know-how and the machinery to be able to participate in the production of pharmaceutical products.
  • Creating an industry which is linked to the process of developing and building knowledge and being at the frontiers of knowledge. This involved creating linkages with universities and scholars.
  • Making use of traditional sources of medical knowledge. The state pharmaceutical enterprise was in operation until the 1980s when due to the Structural Adjustment Programs (SAPs) it was privatized and unable to compete in the free market.

Tetteh pointed out that two lessons can be taken from this anecdote:

  • The government strongly intervened to ensure pharmaceutical production was linked to public procurement and public policy. The market for the product was guaranteed (army, public hospitals etc.).
  • The government intervened to ensure that certain medical products could not be imported into the country. These interventions were crucial in creating the legal and scientific conditions within which the state-owned enterprise thrived until the SAP period.

A key success of the state pharmaceutical enterprise was that it was able to bargain with Big Pharma on its own terms. At the time, Big Pharma needed to negotiate with the state pharmaceutical enterprise to produce their products locally since they had no access to the Ghanaian market. Although Ghana’s intellectual property rights regime replicated and mimicked some of the standards in the Global North, it was an indication of the amount of space countries in the Global South had to develop their own legislation with respect to intellectual property for public health. However, this option is no longer available to these countries. According to Tetteh, TRIPS inaugurated the monopoly that Big Pharma has over technical know-how for medical products. It has also enabled bio-piracy which allows Big Pharma to appropriate African traditional knowledge and patent it for themselves. In the 1990s, the Organisation of African Unity (OAU) tried to create an African model law to enable a fight against bio-piracy but was unsuccessful.

The creation of a state-owned pharmaceutical enterprise in Ghana and in other African countries in the post-independence era was a reaction to colonial policies, which deliberately curtailed the production of knowledge and science across the continent

Tetteh noted that the current situation highlights the importance of getting the TRIPS waiver, as it is a starting point for building domestic pharmaceutical capacity. The waiver goes beyond just patents and encompasses a host of other intellectual property rights such as copyrights, and industrial design. It covers all the important bases for making medicines in a modern context. Looking back to the Doha Declaration, very few countries were able to make real changes to their laws in order to make use of the flexibilities. This was due in part to the entrenchment of TRIPS in other agreements such as AGOA (the African Growth and Opportunity Act) and the EPAs (Economic Partnership Agreements). However, importantly, there was no real commitment by African leaders to making these changes.

Tetteh argued that African leaders are not making the strategic choices that would eventually lead them to developing independent pharmaceutical industries. Suggesting that South-South cooperation is an avenue to address the current issues the continent faces, he argued that instead of using all their funds to buy vaccines, African countries could have allocated some funds to support phase three of Cuba’s vaccine trials. By doing this, they would have been able to negotiate for a consistent relationship in terms of knowledge exchange and the transfer of technology.

Updates on COVID-19 in Senegal and Kenya

Cheikh Tidiane Dieye provided an update on the COVID-19 situation in Senegal. The country recorded its first case of the virus in March 2020. Since then, the government has put in place measures such as curfews, travel restrictions and the banning of public gatherings to contain the spread of the disease. The Senegalese government did not enforce a lockdown because the country has a large informal sector which would have been negatively impacted by a lockdown.

Senegal is currently experiencing its third wave – driven by the delta variant. The total number of cases has increased significantly over the last year, moving from 9,805 cases and 195 deaths in July 2020 to 63,560 cases with 1,365 deaths as of July 2021. This increase in cases has taken a toll on the country as it does not have the healthcare infrastructure to deal with the virus caseload. The vaccination campaign was launched in February this year, with about 1.2 million doses received, 1.8% of the population fully vaccinated and 3% receiving their first dose.

He stated that Senegal is currently facing two issues:

  1. Lack of access to the vaccines. This is because the country does not have the means to purchase enough vaccines for its population and is currently relying on donations from COVAX. This has resulted in protracted waiting times for the vaccine. These waiting times can cause complications for vaccine administration, since there are people who have received the first dose but must wait for longer than the recommended time of eight weeks to receive their second dose.
  2. A significant part of the population is reluctant to receive vaccines and sensitization campaigns are proving ineffective.

He remarked on one key development in Senegal – the creation of a vaccine manufacturing plant funded by the World Bank, the US, and a few European countries. The plant is expected to produce 300 million doses a year, first of COVID-19 vaccines and then other types of vaccines against endemic diseases. This project will be implemented by the Institut Pasteur de Dakar which already produces yellow fever vaccines.

ROAPE’s Njuki Githethwa provided an update on the COVID-19 situation in Kenya. He mentioned that the delta variant has caused a surge in cases and deaths. There have been currently over 200,000 cases since the pandemic began with the total number of deaths at 4,000 at the end of July. He pointed out that this third wave is affecting the lower classes which were spared in the initial stages of the pandemic. Kenya has received 1.8 million doses of the vaccine, with about 1.7% of Kenyans vaccinated. He noted that if vaccinations continue at this pace, it will take over two years for Kenyans to be fully vaccinated.

A key success of the state pharmaceutical enterprise was that it was able to bargain with Big Pharma on its own terms. At the time, Big Pharma needed to negotiate with the state pharmaceutical enterprise to produce their products locally since they had no access to the Ghanaian market

According to Njuki, the disbursement of vaccines from the West is being portrayed as a symbol of charity, solidarity, and sympathy. This portrayal is underlain by the West positioning themselves as saints while vilifying other countries like India and China. He also mentioned that there is a class dynamic at play in Kenya regarding the distribution of vaccines. People in affluent areas have ease of access whereas the less privileged wait in long queues to get vaccinated. As a result, most of the population, including frontline workers, are yet to be vaccinated. Schools in the country reopened at the end of July, and only about 60% of teachers have been vaccinated. Njuki touched on the fact that there is an optimism that more vaccines are coming, however the government is not doing enough to sensitise the population. There is still a lot of misinformation and superstition surrounding the vaccines.

Moving beyond the state?

The discussion was further enriched by contributions from the participants. Gyekye Tanoh, for example, noted that in the past the presence of state pharmaceutical enterprises around the continent constituted an active and embodied interest. This influenced the way transnational pharmaceutical companies were able to negotiate, severely limiting their power. However, such a thing is not present today on the continent. In fact, a study from the McKinsey Institute pointed to the fact that the pharmaceutical industry has the highest markups in Africa, meaning that while the continent is not the biggest market, it is the most profitable region in the world. Currently, the interests of Big Pharma dominate, he asked, how do we begin to shift this? Is it time to look beyond the state as a leading agent for change? What can progressives do in this situation?

Senegal is currently experiencing its third wave – driven by the delta variant. The total number of cases has increased significantly over the last year, moving from 9,805 cases and 195 deaths in July 2020 to 63,560 cases with 1,365 deaths as of July 2021

In response to Gyekye’s question, Tetteh argued that he does not believe that it is time to look beyond the government. In the case of the pharmaceutical industry, the market is created by production and government procurement of pharmaceutical products. Real change cannot be realised without the involvement of the government and well thought out policies. But there is still a role for progressives. Activists need to mobilise and organize around broad paradigmatic changes and clear concrete policy choices that can be implemented in the immediate, medium, and long term.

Wallace added that the objectives of activists in the Global North should be to support the efforts of those in the Global South. This is especially important because COVID-19 is not the only virus that can cause real damage. We need to make structural changes that ensure the Global South is not at the mercy of the Global North whose economic model has contributed to the current situation.

Farai Chipato ended the session by thanking the speakers and participants for their contributions to the fruitful and important discussion. Chipato urged participants to join ROAPE and TWN-Africa for their two upcoming webinars: ‘Popular public health in Africa: lessons from history and Cuba’ and ‘Alternative strategies and politics for the Global South: climate-change and industrialisation.’

This article was originally published in the Review of African Political Economy (ROAPE) Journal. 

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Omissions of Inquiry: Kenya and the Limitations of Truth Commissions

Gabrielle Lynch provides a radical analysis of the mechanisms of transitional justice. Looking at the case of Kenya, Lynch argues that truth commissions which hope to achieve truth, justice and reconciliation also require ongoing political struggles, and substantive socio-economic and political change. While reconciliation and justice may be goals which truth commission can recommend, and sometimes contribute to, they cannot be expected to achieve them.

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In today’s world, it is almost expected that a truth commission will be introduced in the wake of conflict or a period of authoritarianism to try and consolidate a transition to democracy and peace. A truth commission generally understood – as per Priscilla Hayner – as a temporary state-sanctioned body that investigates a pattern of past abuse, engages ‘directly and broadly with the affected population, gathering information on their experiences’ and which aims to conclude with a public report.

The underlying idea is that societies need to confront and deal with unjust histories if they are to establish a qualitative break with that past. Proponents of modern truth commissions thus ‘look backwards’, not as interested historians, but as a way to ‘reach forwards.’ As Archbishop Desmond Tutu explained in his foreword to the South African Truth and Reconciliation Commission (TRC) report:

The other reason amnesia simply will not do is that the past refuses to lie down quietly. It has an uncanny habit of returning to haunt one … However painful the experience, the wounds of the past must not be allowed to fester. They must be opened. They must be cleansed. And balm must be poured on them, so they can heal. This is not to be obsessed with the past. It is to take care that the past is properly dealt with for the sake of the future.

Motivated by this desire to render the past ‘passed’ in the substantial sense of being ‘dead’ or ‘over and done with’, modern truth commissions dedicate most of their time to two activities: the holding of public hearings and production of a final report.

This is a relatively recent development. Early truth commissions did not hold public hearings and were largely fact-finding bodies. However, ever since the South African TRC of the 1990s, truth commissions have held hearings as a stage for various actors – victims, perpetrators, political parties, state institutions and so forth – to present their account of past wrongs. The underlying idea is that people will have a chance to speak and be heard, and thus regain their humanity; that a wider (and engaged) audience will bear witness to a new human rights-conscious regime; and the overview provided will feed into, and help legitimise, a final report. The latter in turn intended to record and acknowledge past wrongs and provide recommendations that can help to promote truth, justice and reconciliation.

However, while much hope is often placed, and much time and money expended, on truth commissions and their hearings and final reports, it is evident that these processes generally fall far short of ambitious goals and high expectations. But what explains this gap between aspiration and reality?

This is one of the questions that I address in a new book – Performances of Injustice: The politics of truth, justice and reconciliation in Kenya – which analyses several transitional justice mechanisms introduced following Kenya’s post-election violence of 2007/8 when over 1,000 people were killed and almost 700,000 were displaced.

This includes the establishment of the Truth, Justice and Reconciliation Commission (TJRC). Significantly, the Commission’s mandate recognised that, while the 2007/8 post-election violence was triggered by a disputed election, it was fuelled by more deep-rooted problems.  In turn, the Commission was tasked with investigating a wide array of injustices – from state repression and causes of political violence to perceptions of economic marginalisation and irregular land acquisition – between Kenya’s independence in 1963 and the end of the post-election violence in February 2008.

Established through an Act of Parliament in 2008, and operational from 2009 to 2013, the TJRC sought to meet its mandate, in large part, by collecting statements (with over 40,000 collected in total), holding public and women’s hearings in 35 locations across the country and adversely mentioned person (AMP) hearings in western and Nairobi, and publishing a substantial final report that runs to over 2,000 pages.

Despite such achievements, the Commission was soon mired in controversy with calls for the chairman – who was soon linked to three injustices that the Commission was meant to investigate – to resign, while the public hearings attracted little media attention, and the final report is yet to be discussed in parliament let alone implemented.

The Kenyan experience highlights a range of lessons and insights. This includes the fact – as recently outlined in a piece for The Conversation – that transitional justice mechanisms are not ‘tools’ that can be introduced in different contexts with the same effect. Instead, their success (or failure) rests on their design, approach and personnel – all of which are incredibly difficult to get right – but also on their evaluation and reception, and thus on their broader contexts, which commissions have little or no control over.

However, the lessons that can be drawn go beyond reception and context and extend to the inherent shortcomings of such an approach.

First, while victims appreciate a chance to speak and be heard, the majority clearly submitted statements or memoranda or provided testimony in the hope that they would be heard and that some action would be taken to redress the injustices described. As one woman explained after a women’s hearing in Nakuru, she was glad that she had spoken and how, having told her story, the Commission would ‘come in and help.’

To be fair, the TJRC’s founders were aware of the inadequacies of speaking, which is why they included ‘justice’ in the title and gave the Commission powers to recommend further investigations, prosecutions, lustration (or a ban from holding public office), reparations and institutional and constitutional reforms.

However, on the question of whether recommendations would be implemented, the Commission rather naively relied on the TJRC Act (2008), which stipulated that ‘recommendations shall be implemented.’ However, such legal provisions proved insufficient. Amidst general scepticism about the Commission’s work, parliament amended the TJRC Act in December 2013 to ensure that the report needed to be considered by the National Assembly – something that is yet to happen.

Moreover, to document and acknowledge the truth requires that one hears from both victims and perpetrators. However, the latter often have little motivation, and much to lose, from telling the truth. This was evident in Kenya where, during the AMP hearings I attended, where I heard little that was new and not a single admission of personal responsibility or guilt. Instead, testimonies were characterised by five discursive strands of responsibility denied: denial through a transfer of responsibility, denial through a questioning of sources, denial through amnesia, denial through a reinterpretation of events and an assertion of victimhood, and denial that events constituted a wrongdoing. However, while AMPs denied responsibility, none denied that injustices had occurred. As a result, while the hearings provided little clarity on how and why a series of reported events may have occurred, they simultaneously drew attention to, and recognised, past injustice. In this way, they provided a public enactment of impunity: Kenya’s history was replete with injustice, but AMPs were unwilling to shoulder any responsibility for it.

This ongoing culture of impunity points to another issue, which is that – for most victims – injustices clearly do not belong to the past but to the present and future. The loss of a person or income, for example, often constitutes a course that now seems beyond reach – from the hardship that accompanies the loss of a wage earner to the diminished opportunities that stem from a child’s extended absence from school. However, the past also persists in other ways, from the injustices that never ended, such as gross inequalities or corruption, to fears of repetition and experiences of new injustice.

Unfortunately, the idea that one can ‘look backwards to reach forwards’ downplays the complex ways in which the past actually persists, and possible futures infringe on the present. This is problematic since it can encourage a situation where small changes dampen demands for more substantive reform. At the same time, it can facilitate a politicised assertion of closure that excludes those who do not buy into the absence of the past, the newness of the present, or the desirability of imagined futures and provides a resource to those who seek to present such ‘difficult people’ as untrusting, unreasonable and unpatriotic.

This is not to say that truth commissions are useless and should never be considered. On the contrary, many view speaking as better than silence, while the commission’s report provides a historical overview of injustice in Kenya and a range of recommendations that activists and politicians are using to lobby for justice and reform.

However, when introduced, truth commissions should be more aware of the importance of persuasive performances and how their initial reception and longer-term impact is shaped by broader socio-economic, political and historic contexts. Truth commissions also need to adopt a more complex understanding of the ways in which the past persists, and possible futures infringe on the present and avoid easy assertions of closure.

Ultimately, such ambitious goals as truth, justice and reconciliation require not Freudian ‘talk therapy’, although catharsis and psycho-social support are often appreciated, but an ongoing political struggle, and substantive socio-economic and political change, which something like a truth commission can recommend, and sometimes contribute to, but cannot be expected to achieve.

This article was first published in the Review of African political Economy (ROAPE).

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The African Union and the ICC: One Rule for Kings, another for the Plebs

The African Union complains that the International Criminal Court is biased only when an African head of state stands accused.

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During the five-year-long proceedings at the International Criminal Court (ICC) against former Ugandan rebel commander Dominic Ongwen, there was not a peep from the Ugandan government about the ICC’s bias against Africans.

Uganda’s President Yoweri Museveni did not show any such restraint towards the ICC when he was the chief guest at the April 2013 inauguration of then newly elected Kenyan President Uhuru Kenyatta.

“I was one of those that supported the ICC because I abhor impunity. However, the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution,” Museveni said in his 9 April 2013 speech. The actors he made indirect reference to were unnamed Western countries.

Museveni accused those actors of using the ICC, “to install leaders of their choice in Africa and eliminate the ones they do not like.”

At the time Museveni spoke, Kenyatta and his deputy William Samoei Ruto were due to face trial at the ICC. The case against Kenyatta was terminated in March 2015 before trial hearings began. Ruto’s case was terminated in April 2016 after the prosecution had called its witnesses. In a majority decision, the judges said the case against Ruto and former journalist Joshua arap Sang had deteriorated so much that they could not determine Ruto’s and Sang’s innocence or guilt. The judges said the case deteriorated because of a campaign to intimidate and bribe witnesses.

No sense of irony

During the April 2013 inauguration of Kenyatta, Museveni exhibited no sense of irony when he accused unnamed actors of using the ICC to eliminate leaders they did not like. By the time Museveni was making his speech, his government had already debated and agreed to use the ICC as one way of “eliminating” its problems with the Lord’s Resistance Army (LRA) rebel group in northern Uganda. In December 2003 Uganda formally asked the ICC to investigate the atrocities committed in northern Uganda.

Following that formal request, Uganda shared with the ICC’s Office of the Prosecutor (OTP) several years’ worth of recordings of the government’s intercepts of LRA radio communications. Together with those recordings, the government also gave the OTP the contemporaneous notes made of the intercepts. On top of that, the government also gave the OTP a list of 15 LRA leaders it believed were responsible for the atrocities committed in northern Uganda.

All this emerged during the course of Ongwen’s trial at the ICC for his role in atrocities committed between 2002 and 2005 in northern Uganda. Ongwen, a former LRA commander, was convicted of 61 counts of war crimes and crimes against humanity in February this year and was sentenced to 25 years in prison in May. Ongwen is in the process of appealing against his conviction and sentence.

In his April 2013 speech, Museveni acknowledged that his government had cooperated with the ICC. “We only referred Joseph Kony of LRA to the ICC because he was operating outside Uganda. Otherwise, we would have handled him ourselves,” said Museveni. This statement is only partly true.

When in December 2003 Uganda formally requested the ICC to investigate the atrocities committed in northern Uganda, Kony was based in what is today South Sudan. But he was there with a small group of senior LRA commanders and other LRA members. During Ongwen’s trial, the court heard that by the time Uganda made its referral to the ICC, most of the LRA’s commanders and members had left the group’s rear bases in then southern Sudan and crossed the border back into northern Uganda. This is because Uganda had reached a deal with Sudan that allowed it to cross the border and attack the LRA’s rear bases. Uganda called this military offensive Operation Iron Fist.

African leaders protecting each other

The Ugandan government’s actions may seem contradictory but they fall well within the pattern African leaders have adopted when it comes to the ICC. Whenever there has been a case against an African president or deputy president at the ICC, this has been discussed at the African Union. As for ICC cases against other Africans, the African Union has not discussed them or passed resolutions on them, even if those cases involved former presidents or vice presidents. Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.

Ever since, in July 2008, the OTP applied for an arrest warrant against then Sudanese President Omar al-Bashir in connection with the atrocities committed in Sudan’s western region of Darfur, the ICC has been on the agenda of the regular African Union meetings of presidents and prime ministers. ICC pre-trial judges eventually issued two arrest warrants against al-Bashir in March 2009 and July 2010.

African heads of state and government usually meet twice a year as the summit of the AU. Between 2009 and 2020, at each of those summits, they passed resolutions on the ICC or they reaffirmed past resolutions on the matter and directed a ministerial committee to follow up on those resolutions. The resolutions African leaders have passed at these summits have called for the termination or deferral of cases at the ICC implicating serving heads of state or their deputies.

Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.

None of the resolutions has mentioned any of the other cases that have come before the ICC such as the one against Laurent Gbagbo, Ivory Coast’s former president, or the one against Jean-Pierre Bemba, a former vice-president and senator of the Democratic Republic of Congo. The ICC has concluded the cases against Gbagbo and Bemba, acquitting both of them.

The African Union has not been the only critic of the Africa-bias in case selection at the ICC. Academics, lawyers and members of civil society have all criticised or highlighted this bias. But the African Union has been the loudest critic. And what the African Union has said on the issue has often been summarised to mean Africa is against the ICC.

Presidents have immunity, ok?

But this paring-down a complicated issue has blurred the African Union’s two-track approach in its relationship with the ICC. Whenever a head of state such as Sudan’s Omar al Bashir is the target of an arrest warrant, the African Union is strident in its criticism of the court. After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.

Instead, the AU has now turned its focus on the issue of the immunity of heads of state and other senior government officials. Under the Rome Statute, head of state does not have immunity if that person is charged with a crime under that Statute. What’s more, the ICC regularly communicates with member states when the court has been informed that a person for whom there is an outstanding arrest warrant is traveling to those member states.

This was the case with al-Bashir when he was Sudan’s president. Some countries chose to ignore the ICC’s communication. Others advised al-Bashir not to travel to their country and risk arrest. And some have argued they could not arrest al-Bashir because he was in their country to attend an international meeting they were hosting and that, under international customary law, al-Bashir enjoyed immunity for the purpose of the meeting. This is what South Africa and Jordan argued when the issue of immunity for heads of state was litigated before the ICC.

The most recent AU summit resolution on the ICC was issued in February 2020. In it, AU member states are called on to “oppose” the ICC Appeals Chamber judgement in a case Jordan had filed. The resolution said the decision by the ICC Appeals Chamber was, “at variance with the Rome Statute of the International Criminal Court, customary international law and the AU Common Position.”

The judgement referred to in the AU resolution dealt with the question of whether Jordan, as an ICC member, should have arrested al-Bashir when he went to Jordan in March 2017 to attend a regular summit of the League of Arab States. The ICC Appeals Chambers was unanimous that Jordan should have arrested al-Bashir when he visited that country.

After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.

The five-judge panel also agreed that customary international law gave heads of state immunity in certain circumstances such as immunity from another country’s jurisdiction. But the Appeals Chamber concluded that such immunity did not extend to executing ICC arrest warrants.

The AU’s call to oppose the ICC Appeals Chamber’s May 2019 judgement on Jordan ignores one thing: the AU made submissions to the Appeals Chamber before it reached its judgement. The AU made its submissions at the invitation of the Appeals Chamber. The AU’s chief lawyer, Namira Negm, led the team that argued its submission during the hearings on the Jordan case that were held between 10 and 14 September 2018.

In the February 2020 resolution, the AU also asked African members of the ICC to raise before the court’s membership issues that concern African states such as “the rights of the accused and the immunities of Heads of State and Government and other senior officials.” The resolution further asked African members to “propose necessary amendments to the Rome Statute within the ambit of the ongoing discussions on the reform of the ICC,” by its membership.

Making peace without al Bashir

One reason the AU gave against effecting the arrest warrants against al Bashir was that he was key to bringing peace to Sudan’s western region of Darfur. The AU was involved in negotiations for peace in Darfur, a process that has been on and off over the years. Ironically, once al-Bashir was removed from power in April 2019, the transitional authorities who replaced him were able to initiate and conclude peace deals on the Darfur conflict last year.

In August this year, the Cabinet in Sudan resolved to hand over al Bashir to the ICC in execution of the two arrest warrants against him. This is a significant step since the transitional government took office in 2019 and indicated that Sudanese authorities were considering reversing the previous position that al Bashir would not be handed over to the ICC. The next step is for the overall transitional authority in Sudan, the Sovereignty Council, to discuss the Cabinet decision and decide whether to endorse it.

Ignoring victims

The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent. When a conflict is at its peak, victims will receive emergency aid. The more prolonged a conflict becomes, the less aid victims receive. Rarely will such aid be from the victims’ government. And often that foreign-donated aid is all that victims of conflict can expect.

The perpetrators of the conflict that made them victims are rarely held to account for the atrocities they committed. Yet, victims live with the consequences of those atrocities for the rest of their lives. This was the constant refrain of the victims of the northern Uganda conflict who testified during the Ongwen trial.

The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent.

Women testified about their families rejecting them because they returned home with children they gave birth to while with the LRA. One person testified about having to change schools several times because teachers and students abused him when they found out he had been in the LRA. Another person testified about wanting to resume his education that was interrupted when he was abducted by the LRA but he did not earn enough to do that and also educate his children. So he has focused on educating his children.

These and other victim stories are rarely spoken about whenever the ICC is criticised of having an African bias.

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