Politics
Who Are Kenya’s 42+ ‘Tribes’? and Should We Be Asking?
14 min read.Asking whether or not the census should continue to count ethnic groups is one way into the difficult conversation about how to reckon with the legacies of colonial weaponisation of ethnicity.
It was a hot and dusty day in January 2019. Sam had been driving me around Nairobi since my first visit, ten years earlier. I often float ideas past him as we endure interminable traffic. “Sam, how many tribes are there in Kenya?” I knew there was no definitive answer but I wanted to know his thoughts. “Well, now we are . . . is it . . . 46? Or 47? We used to be 42 but some new ones were recently added. Makondes. Asians. Who else was it? Nubians . . .” “And where is the list?” I probed. “Oh that one . . . is it gazetted somewhere? I don’t know.” Later that day, while he refined my left hook, I asked my boxing trainer. Embarrassed, he laughed and said “You know . . . I’ve not brushed up on my tribes lately . . .” “Just roughly . . . how many?” He replied after some thought, “I think . . . well . . . I know that we used to be . . . is it 41? Or 42? 42. We used to be 42. But now, I don’t know.”
In multiple interviews with various government officials I was repeatedly told there were 42+ tribes, but nobody could tell me the nature or location of the list. “Do you know?” one official asked me. Ten years earlier, I had asked members of the minority Nubian community too: “Forty-two tribes. And we will be the 43rd.” They even had a letter from a Minister declaring they would, indeed, be counted as such in the 2009 census. But I struggled to find the list. Who is on it? Does it even exist? And if so, who controls it, and how? Why does nobody know? And does it matter?
In my research, this idea of “the 42” kept coming up over and over again. I have been conducting academic research in Kenya since 2009, mostly with the minority Nubian community which has long sought recognition as Kenyan, and has had considerable success in recent years in getting it. It was my first interviews with Nubian elders in 2009 that made me start wondering about this idea of “the 42”, where it comes from, why it matters.
So why does it matter?
Being recognised as a “tribe of Kenya” is important to people. It’s important symbolically as it makes people feel like legitimate citizens. And it is important materially, or at least there is an anticipation that it is. There is a belief that if you are one of the tribes of Kenya, then you can access the state’s resources. The exact mechanisms through which this is expected to happen include, for example, revenue sharing to the counties, drawing of administrative and electoral boundaries, and accessing special provisions like the Equalisation Fund. There is a popular belief that these are somehow connected to ethnicity, even though many Kenyans will point out they mostly shouldn’t be.
Counties, wards and so on are often treated as if they “belong” to a particular group. So, the idea is you have to be a recognised group to get your hands on government resources. Whether this is true or not, the perception that it is matters a lot for how people feel they belong, and how they might feel they are in competition with each other for resources. Plenty has been written on inter-ethnic competition and tribalism in Kenya. That’s not my focus here.
There is a belief that if you are one of the tribes of Kenya, then you can access the state’s resources.
At another level, the idea of “the 42(+)”, or the idea that there is or could be a list somewhere, matters for debates – prominent here in The Elephant among other places – about what it might mean to decolonise identity. On one hand, I’ve heard some Kenyans suggest that Africans should abandon ethnicity altogether, as it is a colonial construct used by the British and other imperial powers to conquer; to divide and rule. On the other hand, there is an argument that ethnicity is an important facet of African identities, and that these days “the West” has turned around and wants to eradicate it, especially around elections; therefore, the anti-imperial thing to do would be to affirm ethnicity. Both arguments have merit. My proposition here is not to take a strong position on either side, but to look at this idea of “the 42(+)” and its bureaucratic origins as a way of thinking through this debate. Decolonising identity is not only a personal thing – it is also a bureaucratic thing.
The title of this essay, and the academic research article on which it is based, is, then, deliberately provocative. I never thought – and my research confirmed this – that there would be a clear answer to these questions. I have never even been sure that “who are the tribes of Kenya?” is quite the right question to be asking. It carries some very politically loaded assumptions: that “tribe” is an appropriate term (more on this below); that there is a clear-cut way to determine who is and isn’t Kenyan based on their ethnic identity; that there are only 42 (or 43, 44 or 45) ethnic groups which can call Kenya home. My suggestion here is that asking why we ask this question is more important than the question itself.
The ‘facts’
The census is the only official list of “all” ethnic groups, and the only official tool to count the population by ethnicity. And 1969 is the only year that 42 ethnic groups were counted. Voter rolls prepared by the Independent Electoral and Boundaries Commission do not record ethnic identity.
Electoral boundaries do not involve listing ethnic groups. Boundaries are connected to the census – insofar as they draw on population data – but before the 2010 constitution they bore no official relation to ethnic data. The 2010 constitution allows for a possible use of ethnic data. Under chapter 7, one explicit consideration for boundary redrawing is “community of interest, historical, economic and cultural ties”, which could potentially be interpreted to mean ethnic communities. However, the exact role this clause – or ethnicity more generally – now plays in boundary drawing is not clear.
The civil service doesn’t list ethnic groups. Civil service employment records routinely record and make public how many people are employed in the civil service from each ethnic group, but that only captures, of course, civil servants. To establish the “fairness” of each ethnic group’s share of civil service jobs, that data is compared to census data, but only at the national level or by problematically inferring ethnicity by location – for example, by assuming that if you live in Ukambani you must be Kamba.
Identification cards do not record ethnicity.
Nor, contrary to popular understanding, does the Kenya Gazette (the government’s official announcement record) list ethnic groups, although it was used as if it does when Asians were gazetted as the 44th Tribe of Kenya in 2017, despite no identification of the preceding 43.
So that leaves us with only the census.
In my research, I compared all ethnic classifications in all Kenyan censuses from 1948 to 2019. I looked at every census report, but also, where available, all the questionnaires used by enumerators when visiting households, instructions to enumerators about how to record “tribe”, explanations made by the Bureau of Statistics and its predecessors for what “tribe” means and why they chose the lists they did, and archival material (for 1948 and 1962) where colonial administrators debated in letters and meetings how they would conduct the census.
The list of “tribes” has changed in every single census, and since the first census in 1948, 150 different groups have been named. Of those, there are only 14 ethnic groups which have been named and counted exactly the same way in every census. The others have all changed, sometimes multiple times, for example by adding or deleting “sub-tribes”, by moving from a “sub-tribe” to a “main tribe” or vice versa, or by appearing or disappearing altogether. There are also some instances where a “tribe” was listed on the questionnaire but didn’t make it to the final census report, or where – curiously – they were not listed on the questionnaire but did make it to the final report.
You might recognise your ethnic group(s) in this list, possibly in multiple forms as some groups have changed names over time (e.g. Sudanese to Nubi), or even – unfortunately – in a derogatory form (such as Dorobo, which was only removed in 2019 because it refers to having no cattle, suggesting some form of inferiority). Some groups included on the list for “the tribe question” aren’t even really tribes: for example “Stateless” in 2019, or “Kenyan” in 2009.
So, how are these lists determined? There is no transparency on how these lists are decided, or what it means to be “coded”.
The first census in Kenya was carried out in 1948 and was part of an East African census that included other British territories in the region. More interested in the European population than the Indigenous one, the “non-native” census was extremely thorough, and the “native” one much more basic. Whereas all kinds of details that are useful for development purposes were gathered for the white population, the only three statistics gathered for the African population in every household were age, sex and – you guessed it – “tribe”. For Census Superintendent C. J. Martin, it was so obvious that you would count “tribe” that, in his extremely detailed report on the census, he didn’t even bother to explain why. Other factors that are much more useful in making sense of a population’s development needs, like fertility, education and occupation, were only counted for 10% of the African population in a sample census, and then generalised.
The list of “tribes” has changed in every single census, and since the first census in 1948, 150 different groups have been named.
The actual list of “tribes” that enumerators were given in 1948 was also, for Martin and the other census organisers, self-evident. The British authorities acted as if it was obvious which ethnic groups should be counted, but it clearly wasn’t, because there were differences between the list provided on the questionnaire, and that which appeared in the final report. We can only assume that any range of factors may have shaped the final 1948 list, including self-identification by householders, initiatives on the part of the enumerators or District Commissioners who compiled the returns, or maybe even political lobbying. In other words, determining the tribes of Kenya was not as self-evident as Martin imagined. Decisions about which ethnic groups, what names they use, how they are spelled, what and whether “sub-tribes” are counted and so on, always have to be made by someone.
But the thing about a census, as with so many official tools, is that it gives off an air of authority. When a list like that of “Kenya’s tribes” is made in this way, it comes to feel as if it is definitive, even when it never can be. Even though every census after 1948 has changed the list, it always builds on that first list made by British administrators, some of whom had very little understanding of the communities they were counting and classifying.
In 1962, the list was very similar to the one of 1948, but it dropped most of the ethnic groups which mostly live in other parts of East Africa (Tanzania, Uganda) and added some from the North and East of Kenya. By this time, the British authorities had established much more administrative control in those regions and had learnt of new groups not included in that earlier census, showing again major gaps in their knowledge of the people they had colonised. Morgan, another colonial administrator, this time involved in the 1962 census, later admitted that the concept of “tribe” was a bit arbitrary, but stuck to it anyway, stating:
[Tribe is] a unit which evades satisfactory definition but which was widely recognised. It may be said to be a group to which the individual feels a strong sense of belonging and which is usually distinguished by a common language and culture and, since marriages are mostly within it, may have inherited traits. […] For this study we have to accept the classification used in the census, for which no justification was published. The ascriptions were those routinely used by the administration and which appear to have presented few problems to those recording or those being recorded. They were the socio-political groups encountered by the colonial power upon its entry and with which it had to deal. Administrative boundaries were normally constructed to contain them and this probably increased the sense of tribal identity at that level.
Though he admits some arbitrariness, Morgan goes on, in this passage, to suggest again that it was obvious, uncontroversial and accepted by everyone – African and colonial administrator alike – who the “tribes” of Kenya were. If this was really the case, why then would it have changed?
The 1969 census, the first one conducted by the first post-colonial government, used the same list as was used 1962, but added two more Somali groups, without really explaining why. The 1979 census used the same list again, but collapsed a number of groups into “Kalenjin”. It is likely no coincidence that this happened the year after Moi became President, and Gabrielle Lynch has done some great research about the creation of the Kalenjin identity around this time. In 1989 there were only a few small changes. In short, with the exception of the introduction of Kalenjin as an ethnic group rather than just a linguistic group, the list remained pretty similar to the colonial-created one for the first three decades of Kenya’s independence, but not similar enough to agree with colonial officials Martin and Morgan that it was ever truly “obvious” which ethnic groups should be counted.
By 1999, with the politics of democratic reform in full swing, and the effects of Moi’s majimboist politics being felt across the country, no results were published on ethnicity from that year’s census. It was too sensitive.
Then, come 2009, only eighteen months after the post-election violence of 2007-08, the list of ethnic groups in the census underwent its first radical change since independence, with the number of groups skyrocketing to well over a hundred. This included long lists of “sub-tribes” for groups such as Swahili, Kalenjin, Mijikenda and Luhya, as well a considerable number of newly recognised ethnic groups, including Nubians (last counted in 1948 as “Sudanese”). The political mood was an inclusive one, seeking peace and inter-ethnic harmony. It felt right at the time to generously offer recognition. And it didn’t hurt that chopping up the population into lots of small groups might help cool the temperature on inter-ethnic competition between the larger groups. The 2019 census added yet more sub-tribes and new tribes, moved some around from one category to another, and renamed a few.
The only thing the history of the census classifications shows conclusively, then, is that there cannot be any conclusions. The census, though it has an air of officialdom, is really just a result of layer upon layer of bureaucracy, politics and coloniality. Politicians and civil servants might want to bed this down and make it feel certain, but they can’t. It changes every decade. They also can’t, practically, start from scratch either. The lists they have built are based on everything that came before – both colonial and postcolonial. They bear the markings of all the political moments in which censuses were conducted, and the particular concerns of politicians and statisticians at those times. And this is true of every census, everywhere in the world. They are not foolproof. They are not certain. They are not conclusive or definitive. The idea of the 42(+) is just that – an idea – however widespread and deeply believed.
The only thing the history of the census classifications shows conclusively is that there cannot be any conclusions.
The reality is that there is no definitive list of Kenya’s ethnic groups. That is, there is no list that does (or could) state with certainty and finality who the ethnic groups of the nation are. But there are official lists – those in the census – that are often perceived as certain, and those have to be reckoned with.
How colonial is ethnicity?
From one perspective, the story of ethnic classifications in the census is interesting as a puzzle. Working out who got added, who got removed, when, how and why is fascinating. There is a lot to be learnt about Kenyan history and ethnicity by looking at the details.
But from another perspective there is a bigger question to be considered here, and that is about whether, how, to what extent or in what ways ethnicity is colonial. The Elephant and other discussions in various forums are increasingly – and rightly – working through what it might mean to decolonise African identities. From renaming streets to pulling down monuments to pushing back against arbitrary determination of one’s identity by another, Kenyans and other Africans are questioning why ethnicity is such a strong form of identity; in what ways it was imposed by the colonial experience; and in what ways it has changed or should change form, or maybe even be abandoned.
Terence Ranger, a keen scholar of Kenya but also a former colonial official, coined the term “invention of tradition” to explain how the British came, saw, and invented ethnicity or – more specifically – “tribe”. Seeing Africans as being defined first and foremost by tribe allowed the British to divide and rule, and to imagine they were not just extracting and exploiting, but also civilising. The roots of ethnicity, in this sense, are problematic. The concept itself as well as the specific ethnic groups the British identified and made names and Native Reserves for, were fundamental tools of colonial control. Ethnicity kept Africans divided from each other and in a supposedly inferior place on the hierarchy of civilisation that justified British colonial authority. To the British, at least.
It is this history that makes the word “tribe” a problematic one for many people. Ngugi has written compellingly about how the word – the whole concept – should be abandoned because of its role in colonisation. Nonetheless, it remains the word used by KNBS to ask the ethnicity question in the census, which is why I have used it in this piece. It is something to think about.
Ethnicity kept Africans divided from each other and in a supposedly inferior place on the hierarchy of civilisation that justified British colonial authority.
This history of ethnicity gives cause to ask some critical questions about what to do with ethnicity in any project aimed at decolonising identity. It is indisputable that ethnicity has been – at least partly – invented by colonialism. We must, therefore, be attentive to ways in which some of the projects of colonialism – divide and rule, hierarchies of civilisation, extraction – are perpetuated by ethnic identification today. But I think it would be a mistake to reduce ethnicity to this.
How postcolonial is ethnicity?
Ranger, and others after him, including myself, have also shown that Africans also participated – and continue to participate – in the construction of ethnic identities. And this is not necessarily a terrible thing.
During the colonial period, some ethnic groups had special favour with the British and so it suited them to identify ethnically. Intermediaries like African teachers, missionaries, soldiers and so on, benefitted from colonial patronage. If a man (never a woman, of course) could position himself as a leader of his tribe, he could gain from that. So, he needed the tribe to exist. On the concerning side of the ledger, this kind of patronage politics and the inter-ethnic competition it led to are not such great outcomes.
On the more positive side of the ledger, though, many Kenyans have also come to identify with their ethnic group in more positive ways, as many did before the arrival of the British as well. Most obviously, the cultural practices and community connections that make people feel safe, secure, valued and which give many people’s lives meaning and structure, are not bad.
Then there are dimensions of ethnic identity that are more ambiguous. Many, including Rasna Warah, believe – for better or worse – that to belong to Kenya, you have to belong to a Kenyan ethnic group. This is why the announcement that Asians are the 44th tribe was so significant, even though most people wouldn’t have used the word “tribe” to describe this community in the past. Warah laments, “What makes me uneasy about the designation of Kenyan Asians as one of Kenya’s 44 tribes is that it reinforces the idea that one must belong to a tribe to be recognised as a bona fide Kenyan citizen.”
Seeing Africans as being defined first and foremost by tribe allowed the British to divide and rule, and to imagine they were not just extracting and exploiting, but also civilising.
In my book on the marginalisation of Kenya’s Nubians, I made a similar argument – that ethnic identity, and specifically recognition as being an ethnic group of Kenya, was necessary to feel one belonged to the nation. I showed how it was a source of pride and security for Nubians to identify ethnically. It has been the only way they can imagine securing a place for themselves in Kenya. When the Nubians were recognised in the 2009 census, it felt really very good for them. It has for many different groups. That can’t be disregarded, even though it might be questioned.
The postcolonial history of ethnicity, therefore, raises some additional questions for those interested in decolonising identity, questions about whether or not there might be “good” aspects of ethnic identity that are worth retaining, even if they contain shadows of the colonial past. Perhaps it is transformation, rather than abandonment, that is needed in a decolonial project?
Decolonising identity in the census?
The census is a key tool in the maintenance of ethnic identities. Any discussion about what it might mean to decolonise identity really must think through the role of the census in sustaining ethnic codes first invented by the British, but also actively continued and transformed by the postcolonial government and its citizens. Indeed, bringing the abstract conversation about decolonising identity down to the level of this very concrete list is both a challenge and an opportunity to explore and test ideas and emotions related to ethnicity.
Asking whether or not the census should continue to count ethnic groups is one way into the difficult conversation about how to reckon with the legacies of colonial weaponisation of ethnicity, as well as what it means to people today. Such a conversation needs to consider the varied effects of counting, both good (recognition for minority groups) and bad (competition and posturing based on group size). I wonder if there is a way that ethnicity can be recognised without reproducing the negative effects that first arose under colonial authorities. It is a genuine question – I don’t know the answer. Any such system of recognition, though, would have to be carefully thought through with respect to who gets to determine which groups are recognised, through what processes, with what official outcomes, and with attention to how the inevitable changes in how people identify ethnically will be accommodated. Reflecting on how you, as the reader, feel about how your ethnic group has been counted, or not, in the census, can be a useful entry point to clarifying where you sit on this question of what it might mean to decolonise identity.
–
Editors note: This essay is based on the author’s article ‘Who are Kenya’s 42(+) tribes? The census and the political utility of magical uncertainty’ published in The Journal of Eastern African Studies. To see the full table of all codes, click on the link, then on ‘Supplemental’. The first 50 readers can access the full article for free here. If these are all used up, Africa-based readers can access the full article for free by signing up to the STAR program.
Support The Elephant.
The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.
Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.
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.
–
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.
-
Op-Eds1 week agoTigray Atrocities: Extending ICHREE Mandate Crucial for Accountability
-
Op-Eds1 week agoClimate Change and the Injustice of Environmental Globalism
-
Reflections1 week agoAma Ata Aidoo: A Tribute
-
Reflections1 week agoMĩcere Gĩthae Mũgo: A Mother and a Gardener
-
Data Stories1 week agoSex Education: Are We Doing Enough?
-
Op-Eds2 days agoAre These the Dying Days of La Françafrique?
-
Op-Eds1 day agoWave of Coups in Françafrique: Is Africa’s Oldest Autocracy Next?
-
Data Stories2 hours agoState of Hunger: Unravelling Kenya’s Food Crisis