Politics
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.
“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
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
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
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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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?
Politics
Who Is Hustling Who?
In Kenya, political elites across the spectrum are trying to sell off the country for themselves—capitulation is inevitable.
My drive to Limuru happened on the first Wednesday (July 19) of the protests. Everything was eerily quiet, Nairobi, renowned for its traffic jams, was quiet. Matatus and buses were parked in their hubs. Shops and stalls were closed. Even the hawkers that dot the roads and highways stayed home. Save for the heavy police presence everywhere, it felt like the country had come to a standstill.
We got to Kangemi shortly after the police had shot and wounded two protestors—the road was strewn with stones and armed riot police huddled by the side of the road waiting for the next wave of attacks that never came. In the end, six people would be shot to death throughout the country, and countless were injured and arrested. Coming from the US, where police arrest protestors and shoot black people, there were no surprises here. The US can hardly be the standard of good policing or democratic practices, but the lives lost simply for asking the government to center the people in its economic planning seemed especially cruel.
But it was the emptiness of the roads that made the whole drive eerie. Perhaps I was refracting what was happening in Kenya through what followed the 1982 coup in which 240 people were killed; or the ethnic clashes of the 1990s that culminated in the 2007 post-election violence. Yet, there was a general agreement among people that there was something different about the Kenya of today—that something was already broken and the nightmares to come were slowly but surely revealing themselves—like a bus carrying passengers and the driver realizing the brakes were out just as it was about to descend a steep hill.
Voting with the middle finger
But all this was predictable. President Ruto has been a known quantity since the 1990s when he led the violent Moi youth wingers. He and his running mate and later president, Uhuru Kenyatta, were brought in front of the ICC to face charges of crimes against humanity following the post-election violence in 2007. Some key witnesses disappeared and others were intimidated into silence. Who in their right mind gives evidence against those in control of the state? The ICC was already discredited as being Western-crimes-against-humanity friendly (the US has never been a signatory rightly afraid its former presidents, such as George Bush, would be hauled before the court). The ICC eventually withdrew the case in March 2015.
I kept asking everyone I met, why was Ruto voted in spite of his history? The answers varied: He rigged the elections; he did not rig and if he did, he only managed to be better at it than Raila Odinga; he appealed to the youth with the idea of building a hustler nation (what a telling term); the Kikuyus have vowed never to have a Luo president and therefore opted for Ruto who is Kalenjin as opposed to Odinga who is Luo.
I sat with older Kikuyu men in the little Nyama Choma spot in Limuru Market and they talked about a generational divide between the Kikuyu and youth (Ruto) and the elderly Kikuyus (Odinga). But the one I heard over and over again was that Kenyans are tired of the Kenyatta and Odinga political dynasties. As one Trump supporter was to say, they voted for him with the middle finger. And so, the Kenyans who voted for Ruto were giving a middle finger to the Kenyatta, Moi and Odinga political dynasties. But no one had really expected buyer’s remorse to kick in one year into the Ruto presidency.
I also asked about Odinga’s protests: what was the end game? One theory is that he was looking at power-sharing, having done it once before, following the 2007 elections. In our shorthand political language, he was looking for another handshake. Some said the people have a right to protest their government, and he is simply asking the government to repeal the tax hikes and reinstate the fuel subsidies. Others believed that he wants to be a genuine and useful voice of opposition for the good of the country and its poor.
My own theory is that he is attempting a people-powered, centered, democratic, and largely peaceful takeover—where people take to the streets to overthrow an unpopular government. We saw this in Latin America in the 2000s. In response to Odinga’s absence during the three days of protests (he was sick), some leaders in his Azimio party have started using this language. The only problem with this strategy is that the sitting government has to be wildly unpopular. Ruto still has a lot of support, meaning that he does not have to compromise or give up power. It was to my mind turning into a stalemate and I was worried that the state would respond with more state-sponsored violence.
But real economics broke the stalemate. In a country where people are barely surviving and the majority are poor without savings to rely on, or relatives to reach out to for help, the hawkers, small stall and shop owners simply went back to work. In other words, those that would have been hurt the most by three days of protests (a day at home literally means a day without food for the family) simply went back to work, and the matatus and buses hummed back to life, slowly on Thursday and full throttle by Friday.
Saturday around Westlands might as well have been as busy as a Monday as people overcompensated for lost time to either sell or shop. If the protests were going to succeed the opposition (composed of some of the wealthiest families in Kenya, including Odinga’s) really should have thought about how best to protect those who would be the most affected. They should find legal and innovative ways to put their money where their political mouths are.
Cuba as Kenya’s north star
Odinga had to change tactics and called for a day of protest against police violence instead of three-day weekly protests in perpetuity. He is now in danger of turning into a caricature of his old revolutionary self and becoming an Al Sharpton, who instead of protesting the American government for the police killings of black people, protests the police themselves leaving the government feeling sanctimonious. Obama or Biden could weigh in, in righteous indignation without offering any real change (remember Obama’s emotional pleas over gun shootings and police shootings as if he was not the one occupying the most powerful office in the US)?
The one question that keeps eating at me is this: why is the most apparent outcome at the time a surprise later? Ruto was always going to sell off Kenya with a percentage for himself and his friends. Odinga was always going to capitulate. The end result is that the Kenyan bus will continue to careen on without brakes. So, what is to be done?
I was in Cuba earlier this year. I got a sense of the same desperation I felt in Kenya but the difference is Cubans have free access to healthcare, education, housing, and food security. They have free access to all the things that make basic survival possible. Before calling for the tax hikes and cutting fuel subsidies might it not have been more prudent to have a safety net for Kenyans? Would that not have been the most logical thing? But of course not, Ruto is acting at the behest of the IMF and big money. Ruto has learned the art of pan-African political rhetoric. Abroad he can call for a different non-US-centered economic system and castigate the French president over paternalism but at home, his politics are hustler politics.
Life in Cuba is difficult, as a result of relentless sanctions from the US, but it is far from impossible. It remains the north star for those who understand discussions around fundamental change as the only starting point. We can have arguments about the nature of those fundamental changes, but we can all agree we should not be a country where one family, say the Kenyatta family, owns more than half a million acres of land. Or where, as Oxfam reported, four individuals hold more wealth than that held by 22 million Kenyans. The kind of politics that begin with a necessity for fundamental change will obviously not come from Ruto.
But one hopes it can still come from the Odinga camp. Or even better, from a genuinely progressive people-powered movement that has inbuilt questions of fundamental change in its political, economic, and cultural platform.
In spite of the empty roads, Limuru Market was thriving and Wakari Bar kept its reputation as one of the best places for Nyama Choma and for lively political conversations. People are paying attention, after all, it is their lives and livelihoods on the line. Politicians, especially those in the opposition and the political left should listen as well.
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This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site every week.
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