The BBI Judgment and Project Kenya7 min read.
The BBI judgment is therefore historic in two ways. It is historic for its elaboration of basic structure doctrine. But it is also historic because it does history work. It is a deeply historical reading that enables us to see what the Kenyan people meant when they gave themselves the 2010 constitution.
On 13 May 2021, the Constitutional and Human Rights Division of the High Court of Kenya delivered its judgment in David Ndii and Others vs The Attorney General and Others, widely referred to as the BBI judgment.
The judgment has led to a flurry of analysis. All commentators have included in their analyses reflections on how the court was attentive to history, specifically Kenya’s constitutional history since independence in 1963. Indeed, the court found in this history a guide to the people’s intentions in ‘bequeathing themselves’ the 2010 Constitution. The court reasoned that although ‘there is no clause in the Constitution that explicitly makes any article in the Constitution un-amendable’:
“…the scheme of the Constitution, coupled with its history, structure and nature creates an ineluctable and unmistakable conclusion that the power to amend the Constitution is substantively limited. The structure and history of this Constitution makes it plain that it was the desire of Kenyans to barricade it against destruction by political and other elites… the Kenyan Constitution was one in which Kenyans bequeathed themselves in spite of, and at times, against the Political and other elites. Kenyans, therefore, were keen to ensure that their bequest to themselves would not be abrogated through either incompatible interpretation, technical subterfuge, or by the power of amendment unleashed by stealth.”
The court’s reliance on history in part explains the excitement the judgment has generated. Commentators have pointed out that the basic structure doctrine elaborated by the court rests on the foundations of Kenyan history. They have carefully analysed the work that history does in the judgment. But the inverse is also an interesting question: what work has law done for history? I will argue that the court has added to Kenya’s archive in important ways.
Background to the litigation
In 2018, President Uhuru Kenyatta and Mr. Raila Odinga, opponents in a fraught and contentious Presidential election in 2017, sought to come to an accommodation in what is known as ‘the Handshake’. Purporting to seek a lasting peace, President Uhuru Kenyatta appointed a Building Bridges to Unity Taskforce to recommend administrative and other changes to achieve this. The taskforce’s report was followed by the appointment of a BBI Steering Committee tasked with proposing constitutional and other changes. These recommendations morphed into the Constitution of Kenya Amendment Bill 2020, following which a number of petitioners moved to court to challenge the controversial amendment proposals it contained. The resulting judgment rules on eight consolidated petitions challenging the proposed changes to the Constitution.
History in the BBI judgment
In its judgment, the court laid great emphasis on the attributes of the constitution-making process that resulted in the 2010 Constitution. Relying on the writings of Chief Justice Willy Mutunga as he then was, the court notes that the 2010 document ‘has been described as a “model” of “participatory constitution building process” and as
“a story of ordinary citizens striving and succeeding to reject or as some may say, overthrow the existing social order and to define a new social, economic, cultural, and political order for themselves. Some have spoken of the new Constitution as representing a second independence.”
The court held that a detailed grasp of Kenya’s constitutional history was essential to considering the matter before it. It elaborated on how the 1963 independence Constitution had been amended so thoroughly by an over-weaning executive that by the time Kenya became a multi-party state in 1991 the constitution had been ‘stripped of most of its initial democratic and social justice protections’ so that the country ‘had effectively become an authoritarian state’. The court cites detention without trial, abuse of legal process, personalized rule, entrenched patronage, endemic corruption, oppressive use of police force, severely compromised judicial independence, discrimination, and marginalization as characterising Kenya during those years.
In his analysis of the judgment, Gautam Bhatia has noted that it is ‘designed to respond to two sets of pathologies that had plagued Kenyan constitutionalism in its previous iterations’. These are, first, a ‘culture of hyper-amendment’ [para 406 citing amici curiae Duncan Ojwang’, John Osogo Ambani, Linda Musumba, and Jack Mwimali] and, second, ‘a two-decade emphasis on a citizen-led process’ Bhatia notes that the ‘entire analysis was focused on how Kenyans struggled for – and won – the right to public participation in constitution-making, and that was the basis for holding that the core of the Constitution could not be altered without going back to the People.’ (author’s emphasis)
Considering the judgment, Jill Cottrell Ghai and Yash Pal Ghai have written that the High Court was concerned not just with how Kenya had come to be badly governed ‘but how it happened’. They point out astutely that ‘[t]he methodology was not by simply ignoring the Constitution…but particularly by changing it.’ The court put its historical analysis to ‘use’ to reason that ‘some aspects of the Constitution cannot be changed by ordinary amendment processes.’
In his analysis of the judgment, Gautam Bhatia has noted that it is ‘designed to respond to two sets of pathologies that had plagued Kenyan constitutionalism in its previous iterations’
The court used history to exclude the possibility that ‘having gone through this whole, complex and participatory, process of getting a new constitution’ the people would be happy to allow it ‘to be changed in fundamental ways by any less people-centred process.’ Because Article 259(1)(a) requires a purposive approach to constitutional interpretation, at the ‘forefront of the court’s mind [was] what the constitution was designed to achieve.’ At a webinar on the judgment organised by the East Africa Law Society, Issa Shivji described this as the court’s attentiveness to the mischief which the 2010 constitution sought to address.
Yaniv Roznai has noted the court’s ‘holistic reading of the constitution, the history and context of the constitution, and the fundamental structure of the constitution, including the Preamble.’ And Upendra Baxi has described the judgment as ‘decisively people-centred rather than State-friendly’ whilst also drawing on the Indian experience since the Kesavananda Bharti case (upon which the Kenya High Court relies to assert the doctrine of basic structure) to ask pressing questions about the possibility of the ‘judicial and demosprudential co-governance of the nation.’
Joshua Malidzo Nyawa has written that: ‘the Court emphasizes that the Constitution of Kenya 2010 is both monumental and memorial – monumental because it celebrates our achievements, memorial because it reminds us of our past atrocities.’ For Bhatia, ‘the High Court’s account of this history – starting at para 411 of the judgment – is deeply fascinating, and repays careful study.’ Building on both these insights, I want to suggest that we should think about the historical account given by the court beyond the work it does to bolster the basic structure argument.
The shape and future of the constitution is not all that is contested. So too is Kenya’s history. What is and should be an authoritative account of the period of constitutional reform is up for grabs. If lawyers are worried about a renewed culture of hyper-amendment in which the BBI constitutional proposals are the first act, historians are right to worry about the risks of historical revisionism in scholarship and more widely. Citizens should worry about both.
The revision of history to minimise or call into question the history of the struggle over constitutional change and the demands of the people for an end to repression, patronage and illegality is a certainty: many would say it is already underway, as evidenced in the veneration by some of Kenya’s Presidents since independence.
In his 1995 essay The Invention of Kenya, ES Atieno-Odhiambo argued that one of the tasks of the postcolonial historian of Kenya has been to forge a new history, one which ‘had to be invented, assembled together, arranged around the metaphor of struggle.’ Writing about the struggle for land and justice, I have argued that Kenyans have developed a peoples’ history of land. I have analysed how a deep engagement with history is to be found in the Kenya Supreme Court’s Advisory Opinion on the National Land Commission which gave considerable space to elaborating on Kenya’s land and constitutional history. In so doing, I have argued, the court gave Kenya’s history of struggles over land what Grace Musila labels ‘epistemic authority’ (though, I argued, their resultant ruling disappointed).
On this reading, what the court was doing in the BBI judgment was the work of bolstering not just the constitution but history itself. By narrating history in the ‘epistemic register’ of a court judgment, they lent Kenya’s constitutional history some authority. The judgment was thus anticipatory in two regards. It sought to create a shield against a return to the ‘culture of hyper-amendment’ which came to characterise Kenya’s regimes after 1963.
And it was anticipatory too in relation to the historical record: setting out on paper an authoritative account not to be amended in future. To be clear, I am not imputing this intention to the judges. But reading the judgment the danger strikes me that, sometime in the future (including on appeal), an amended history could be attempted, one that would lie alongside an amended constitution. This makes all the more important the robust work the court has done to try to give legal authority to Kenya’s constitutional history in its judgment.
Ann Laura Stoler has written that we should think of archives ‘not as sites of knowledge retrieval, but of knowledge production, as monuments of states as well as sites of state ethnography.’ Archives are not just places. Court judgments too can be sites of knowledge production not just of retrieval. We see this in relation to land inquiries: reports recording the land grabbing, dispossession, irregular land dealing, and land related violence committed by a predatory Kenyan state become available because of the concerted work of civil society calling for their publication (see for example the Ndung’u commission report and the Truth Justice and Reconciliation commission report).
I have argued that they have come to form an archive of sorts, and that when the Constitution of Kenya Review Commission heard evidence around the country in preparation for a new draft constitution, it was on a people’s archive accumulated over many years that citizens were able to draw (see ‘What the people told the CKRC’).
An Historic Judgment
As commentators have shown, it is difficult to envisage a basic structure doctrine argument that stands up unless undergirded by the historical account given by the court. The BBI judgment is therefore historic in two ways. It is historic for its elaboration of basic structure doctrine. But it is also historic because it does history work. It is a deeply historical reading that enables us to see what the Kenyan people meant when they gave themselves the 2010 constitution. The court imputes intention to the people, invoking the everywoman of Kenyan constitutional history, Wanjiku, whom Wambui Mwangi has described as ‘a Kenyan every-body or Kenyan any-body’ forged ‘out of an ethnically specific but poignantly disembodied no-body.’ Wanjiku is mentioned twelve times in the judgment.
Bhatia has written that the judgment relies upon
“an expanded interpretive canon, which centres people – and social movements – in its understanding of constitutional meaning. The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.”
I have suggested here that Kenya’s radical social history also relies on constitutionalism and the opportunity for courts to record – and to valorise – the struggles of the people.
This article was first published in Verfassungsblog. You can find the original text here.
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The Dictatorship of the Church
From the enormously influential megachurches of Walter Magaya and Emmanuel Makandiwa to smaller ‘startups,’ the church in Zimbabwe has frightening, nearly despotic authority.
In Zimbabwe, the most powerful dictatorship is not the Zimbabwe African National Union-Patriotic Front (ZANU-PF) party. Despite the party’s 40 year history of ruthlessly cracking down on opposition parties, sowing fear into the minds of the country’s political aspirants, despite the party’s overseeing of catastrophic policies such as the failed land reform, and despite the precarious position of the social landscape of the country today, neither former president Robert Mugabe, nor the current president Emmerson Mnangagwa, nor any of their associates pose as significant an existential threat to Zimbabweans as the most influential dictatorship at play in the country: the church.The church has frightening, near despotic authority which it uses to wield the balance of human rights within its palms. It wields authority from enormously influential megachurches like those of Walter Magaya and Emmanuel Makandiwa, to the smaller startup churches that operate from the depths of the highest-density suburbs of the metropolitan provinces of Bulawayo and Harare. Modern day totalitarian regimes brandish the power of the military over their subjects. In the same way, the church wields the threat of eternal damnation against those who fail to follow its commands. With the advent of the COVID-19 vaccine in 2020, for example, Emmanuel Makandiwa vocally declared that the vaccine was the biblical “mark of the beast.” In line with the promises of the book of Revelations, he declared that receiving it would damn one to eternal punishment.
Additionally, in just the same way that dictators stifle discourse through the control of the media, the church suppresses change by controlling the political landscape and making themselves indispensable stakeholders in electoral periods. The impact of this is enormous: since independence, there has been no meaningful political discourse on human rights questions. These questions include same-sex marriage and the right to access abortions as well as other reproductive health services. The church’s role in this situation has been to lead an onslaught of attacks on any institution, political or not, that dares to bring such questions for public consideration. But importantly, only through such consideration can policy substantively change. When people enter into conversation, they gain the opportunity to find middle grounds for their seemingly irreconcilable positions. Such middle-grounds may be the difference between life and death for many disadvantaged groups in Zimbabwe and across the world at large. The influence of the church impedes any attempt at locating this middle ground.
Additionally, because the church influences so many Zimbabweans, political actors do not dare oppose the church’s declarations. They fear being condemned and losing the support of their electorate. The church rarely faces criticism for its positions. It is not held accountable for the sentiments its leaders express by virtue of the veil of righteousness protecting it.
Furthermore, and uniquely so, the church serves the function of propping up the ZANU-PF party. The ZANU-PF mainly holds conservative ideals. These ideals align with those of the traditionalist Zimbabwean church. In short, the church in Zimbabwe stands as a hurdle to the crucial regime change necessary to bring the country to success. With a crucial election slated for the coming months, this hurdle looms more threatening than at any other time in the country’s history.
The impact of the church’s dictatorship on humans is immeasurable. Queer people, for example, are enormously vulnerable to violence and othering from their communities. They are also particularly vulnerable to sexually transmitted diseases and infections due to the absence of healthcare for them. The church meets the attempts of organizations such as the Gays and Lesbians of Zimbabwe to push for protection with cries that often devolve into scapegoating. These cries from the church reference moral decadence, a supposed decline in family values, and in the worst of cases, mental illness.
Similarly, the church meets civil society’s attempts at codifying and protecting sexual and reproductive rights with vehement disapproval. In 2021, for example, 22 civil society organizations petitioned Parliament to lower the consent age for accessing sexual and reproductive health services. Critics of the petition described it as “deeply antithetical to the public morality of Zimbabwe” that is grounded in “good old cultural and Christian values.”
Reporting on its consultations with religious leaders, a Parliamentary Portfolio Committee tasked with considering this petition described Christianity as “the solution” to the problem posed by the petition. This Committee viewed the petition as a gateway to issues such as “child exploitation … rights without responsibility … and spiritual bondages.” The petition disappeared into the annals of parliamentary bureaucracy. A year later, the Constitutional Court unanimously voted to increase the age of consent to 18.
A more horrifying instance of this unholy alliance between the church and the state in Zimbabwe is a recently unearthed money laundering scheme that has occurred under the watchful eye of the government. Under the stewardship of self-proclaimed Prophet Uebert Angel, the Ambassador-at-Large for the Government of Zimbabwe, millions of dollars were laundered by the Zimbabwean government. Here, as revealed by Al Jazeera in a four-part docuseries, Ambassador Angel served as a middleman for the government, facilitating the laundering of millions of dollars and the smuggling of scores of refined gold bars to the United Arab Emirates. He did this using his plenipotentiary ambassadorial status to vault through loopholes in the government’s security systems.
Importantly, Prophet Angel was appointed in 2021 as part of a frenetic series of ambassadorial appointments. President Mnangagwa handed out these appointments to specifically high-profile church leaders known for their glamorous lifestyle and their preaching of the prosperity gospel. Through these appointments, Emmerson Mnangagwa’s government earned itself a permanent stamp of approval from the church and access to a multi-million member base of voting Christians in the country. Mnangagwa’s gained access to freedom from accountability arising from the power of the endorsements by “men-of-God,” one of whom’s prophetic realm includes predicting English Premier League (EPL) football scores and guessing the color of congregants’ undergarments.
In exchange, Prophet Angel has earned himself a decently large sum of money. He has also earned the same freedom from critique and accountability as Zimbabwe’s government. To date, there is no evidence of Angel ever having faced any consequences for his action. The most popular response is simple: the majority of the Christian community chooses either to defend him or to turn a blind eye to his sins. The Christian community’s response to Prophet Angel’s actions, and to the role of the church in abortion and LGBTQ discourse is predictable. The community also responds simply to similar instances when the church acts as a dialogical actor and absolves itself of accountability and critique
Amidst all this, it is easy to denounce the church as a failed actor. However, the church’s political presence has not been exclusively negative. The Catholic Commission for Justice and Peace, for example, was the first organization to formally acknowledge Gukurahundi, a genocide that happened between 1982 and 1987 and killed thousands of Ndebele people. The Commission did this through a detailed report documenting what it termed as disturbances in the western regions of the country. Doing so sparked essential conversations about accountability and culpability over this forgotten genocide in Zimbabwe.
Similarly, the Zimbabwe Bishops’ Justice and Peace Commission has been involved in data collection that is sparking discourse about violence and human rights abuses in Zimbabwe. In doing so, the Commission is challenging Zimbabweans to think more critically about what constructive politics can look like in the country. Such work is hugely instrumental in driving social justice work forward in the country. What uniquely identifies the church’s involvement in both of these issues, however, is that neither touches on matters of Christian dogma. Instead, the Commission responds to general questions about the future of both God and Zimbabwe’s people in ways that make it easy for the church to enter into conversation with a critical and informed lens.
The conclusion from this is simple: if Zimbabwe is to shift into more progressive, dialogical politics, the church’s role must change with it. It is unlikely that the church will ever be a wholly apolitical actor in any country. However, the political integration of the church into the politics of Zimbabwe must be a full one. It must be led by the enhanced accountability of Zimbabwean religious leaders. In the same way that other political actors are taken to task over their opinions, the church must be held accountable for its rhetoric in the political space.
A growing population has, thus far, been involved in driving this shift. Social media has taken on a central role in this. For example, social media platforms such as Twitter thoroughly criticized megachurch pastor Emmanuel Makandiwa for his sentiments regarding vaccinations. This and other factors led him to backtrack on his expressed views on inoculation. However, social media is not as available in rural areas. There, the influence of the religion is stronger than elsewhere in the country. Therefore investments must be made in educating people about the roles of the church and the confines of its authority. This will be instrumental in giving people the courage to cut against the very rough grain of religious dogma. Presently, few such educational opportunities exist. To spark this much-needed change, it will be useful to have incentivizing opportunities for dialogue in religious sects.
More than anything else, the people for whom and through whom the church exists must drive any shift in the church’s role. The people of Tunisia stripped President Zine El Abidine Ben Ali of his authority during the Jasmine Revolution of January 2011. The women of Iran continue to tear at the walls that surround the extremist Islamic Republic. In just the same way, the people of Zimbabwe have the power to disrobe the church of the veil of righteousness that protects it from criticism and accountability.
In anticipation of the upcoming election, the critical issues emerging necessitate this excoriation even more. This will open up political spaces for Zimbabweans to consider a wider pool of contentious issues when they take to the polls in a few months. Above all, the people of Zimbabwe must start viewing the church for what it is: an institution, just like any other, with vested interests in the country’s affairs. As with any other institution, we must begin to challenge, question, and criticize the church for its own good and for the good of the people of Zimbabwe.
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 once a week.
Pattern of Life and Death: Camp Simba and the US War on Terror
The US has become addicted to private military contractors mainly because they provide “plausible deniability” in the so-called war on terror.
Though it claimed the lives of three Americans, not 2,403, some liken the January 2020 al-Shabaab attack at Manda Bay, Kenya, to Pearl Harbour. The US would go on to unleash massive airstrikes against al-Shabaab in Somalia.
“We Americans hate being caught out,” a spy-plane pilot and contractor recently told me. “We should have killed them before they even planned it.”
Both the Manda Bay and Pearl Harbour attacks revealed the vulnerability of US personnel and forces. One brought the US into the Second World War. The other has brought Kenya into the global–and seemingly endless–War on Terror.
Months before launching the assault, members of the Al Qaeda-linked faction bivouacked in mangrove swamp and scrubland along this stretch of the northeast Kenyan coast. Unseen, they observed the base and Magagoni airfield. The airfield was poorly secured to begin with. They managed not to trip the sensors and made their way past the guard towers and the “kill zone” without being noticed.
At 5.20 a.m. on 5 January, pilots and contractors for L3Harris Technologies, which conducts airborne intelligence, surveillance and reconnaissance (ISR) for the Pentagon, were about to take off from the airfield in a Beechcraft King Air b350. The twin engine plane was laden with sensors, cameras, and other high tech video equipment. Seeing thermal images of what they thought were hyenas scurrying across the runway, the pilots eased back on the engines. By the time they realized that a force of committed, disciplined and well-armed al-Shabaab fighters had breached Magagoni’s perimeter, past the guard towers, it was too late.
Simultaneously, a mile away, other al-Shabaab fighters attacked Camp Simba, an annex to Manda Bay where US forces and contractors are housed. Al-Shabaab fired into the camp to distract personnel and delay the US response to the targeted attack at the airfield.
Back at the Magagoni airfield, al-Shabaab fighters launched a rocket-propelled grenade at the King Air. “They took it right in the schnauzer,” an aircraft mechanic at Camp Simba who survived the attack recently recalled to me. Hit in the nose, the plane burst into flames. Pilots Bruce Triplett, 64, and Dustin Harrison, 47, both contractors employed by L3Harris, died instantly. The L3Harris contractor working the surveillance and reconnaissance equipment aft managed to crawl out, badly burned. US Army Specialist Henry J Mayfield, 23, who was in a truck clearing the tarmac, was also killed.
The attack on Camp Simba was not the first al-Shabaab action carried out in Kenya. But it was the first in the country to target US personnel. And it was wildly successful.
AFRICOM initially reported that six contractor-operated civilian aircraft had been damaged. However, drone footage released by al-Shabaab’s media wing showed that within a few minutes, the fighters had destroyed six surveillance aircraft, medical evacuation helicopters on the ground, several vehicles, and a fuel storage area. US and Kenyan forces engaged al-Shabaab for “several hours”.
Included in the destroyed aircraft was a secretive US Special Operations Command (SOCOM) military de Havilland Dash-8 twin-engine turboprop configured for intelligence, surveillance, and reconnaissance missions. A report released by United States Africa Command (AFRICOM) in March 2022 acknowledges that the attackers “achieved a degree of success in their plan.”
Teams working for another air-surveillance company survived the attack because their aircraft were in the air, preparing to land at Magagoni. Seeing what was happening on the ground, the crew diverted to Mombasa and subsequently to Entebbe, Uganda, where they stayed for months while Manda Bay underwent measures for force protection.
I had the chance to meet some of the contractors from that ISR flight. Occasionally, these guys—some call themselves paramilitary contractors—escape Camp Simba to hang out at various watering holes in and around Lamu, the coastal town where I live. On one recent afternoon, they commandeered a bar’s sound system, replacing Kenyan easy listening with boisterous Southern rock from the States.
Sweet home Alabama!
An ISR operator and I struck up an acquaintance. Black-eyed, thickly built, he’s also a self-confessed borderline sociopath. My own guess would be more an on-the-spectrum disorder. Formerly an operator with Delta Force, he was a “door kicker” and would often—in counter-terror parlance—“fix and finish” terror suspects. Abundant ink on his solid arms immortalizes scenes of battle from Iraq and Afghanistan. In his fifties, with a puffy white beard, he’s now an ISR contractor, an “eye in the sky”. His workday is spent “finding and fixing” targets for the Pentagon.
Occasionally, these guys—some call themselves paramilitary contractors—escape Camp Simba to hang out at various watering holes in and around Lamu.
He tells me about his missions—ten hours in a King Air, most of that time above Somalia, draped over cameras and video equipment. He gathers sensitive data for “pattern of life” analysis. He tells me that on the morning of the attack he was in the King Air about to land at the Magagoni airstrip.
We talked about a lot of things but when I probed him about “pattern of life” intel, the ISR operator told me not a lot except that al-Shabaab had been observing Camp Simba and the airstrip for a pattern of life study.
What I could learn online is that a pattern of life study is the documentation of the habits of an individual subject or of the population of an area. Generally done without the consent of the subject, it is carried out for purposes including security, profit, scientific research, regular censuses, and traffic analysis. So, pattern-of-life analysis is a fancy term for spying on people en masse. Seemingly boring.
Less so as applied to the forever war on terror. The operator pointed out the irony of how the mile or so of scrubland between the base and the Indian Ocean coastline had been crawling with militant spies in the months preceding the attack at Camp Simba. Typically, the ISR specialist says, his job is to find an al-Shabaab suspect and study his daily behaviours—his “pattern of life.”
ISR and Pattern of Life are inextricably linked
King Airs perform specialized missions; the planes are equipped with cameras and communications equipment suitable for military surveillance. Radar systems gaze through foliage, rain, darkness, dust storms or atmospheric haze to provide real time, high quality tactical ground imagery anytime it is needed, day or night. What my operator acquaintance collects goes to the Pentagon where it is analysed to determine whether anything observed is “actionable”. In many instances, action that proceeds includes airstrikes. But as a private military contractor ISR operator cannot “pull the trigger”.
In the six weeks following the attack at Magagoni and Camp Simba, AFRICOM launched 13 airstrikes against al-Shabaab’s network. That was a high share of the total of 42 carried out in 2020.
Airstrikes spiked under the Trump administration, totalling more than 275 reported, compared with 60 over the eight years of the Barack Obama administration. It is no great mystery that the Manda Bay-Magagoni attack occurred during Trump’s time in office.
Typically, the ISR specialist says, his job is to find an al-Shabaab suspect and study his daily behaviours—his “pattern of life.”
Several al-Shabaab leaders behind the attack are believed to have been killed in such airstrikes. The US first launched airstrikes against al-Shabab in Somalia in 2007 and increased them in 2016, according to data collected and analysed by UK-based non-profit Airwars.
Controversy arises from the fact that, as precise as these strikes are thought to be, there are always civilian casualties.
“The US uses pattern of life, in part, to identify ways to reduce the risk of innocent civilian casualties (CIVCAS) (when/where are targets by themselves or with family) whereas obviously Shabaab does not distinguish as such and uses it for different purposes,” a Department of Defense official familiar with the matter of drone operations told me.
The Biden administration resumed airstrikes in Somalia in August 2021. AFRICOM claimed it killed 13 al-Shabaab militants and that no civilians were killed.
According to Secretary of State Anthony Blinken, Mustaf ‘Ato is a senior Amniyat official responsible for coordinating and conducting al-Shabaab attacks in Somalia and Kenya and has helped plan attacks on Kenyan targets and US military compounds in Kenya. It is not clear, however, if this target has been fixed and killed.
A few days after the second anniversary of the Manda Bay attack, the US offered a US$10 million bounty.
The American public know very little about private military contractors. Yet the US has become addicted to contractors mainly because they provide “plausible deniability”. “Americans don’t care about contractors coming home in body bags,” says Sean McFate, a defense and national security analyst.
These airstrikes, targeted with the help of the operators and pilots in the King Airs flying out of Magagoni, would furnish a strong motive for al-Shabaab’s move on 5 January 2020.
The Pentagon carried out 15 air strikes in 2022 on the al-Qaeda-linked group, according to the Long War Journal tracker. Africom said the strikes killed at least 107 al-Shabaab fighters. There are no armed drones as such based at Camp Simba but armed gray-coloured single-engine Pilatus aircraft called Draco (Latin for “Dragon”) are sometimes used to kill targets in Somalia, a well-placed source told me.
The US has become addicted to contractors mainly because they provide “plausible deniability”.
The contractor I got to know somewhat brushes off the why of the attack. It is all too contextual for public consumption, and probably part of army indoctrination not to encourage meaningful discussion. He had, however, made the dry observation about the al-Shabaab affiliates out in the bush near the airfield, doing “pattern of life” reconnaissance.
The strike on Magagoni was closely timed and fully coordinated. And it appears that the primary aim was to take out ISR planes and their crews. It was private contractors, not US soldiers, in those planes. I pointed out to the operator that those targets would serve al-Shabaab’s aims both of vengeance and deterrence or prevention. His response: “Who cares why they attacked us? Al-Shabaab are booger-eaters.”
With that he cranks up the sound, singing along off-key:
And this bird, you cannot change
Lord help me, I can’t change….
Won’t you fly high, free bird, yeah.
Breaking the Chains of Indifference
The significance of ending the ongoing war in Sudan cannot be overstated, and represents more than just an end to violence. It provides a critical moment for the international community to follow the lead of the Sudanese people.
They say that the only thing necessary for the triumph of evil is for good men to do nothing.
As someone from the diaspora, every time I visited Sudan, I noticed that many of the houses had small problems like broken door knobs, cracked mirrors or crooked toilet seats that never seemed to get fixed over the years. Around Khartoum, you saw bumps and manholes on sand-covered, uneven roads. You saw buildings standing for years like unfinished skeletons. They had tons of building material in front of them: homeless families asleep in their shade, lying there, motionless, like collateral damage. This has always been the norm. Still, it is a microcosm of a much broader reality. Inadequate healthcare, a crumbling educational system, and a lack of essential services also became the norm for the Sudanese people.
This would be different, of course, if the ruling party owned the facility you were in, with the paved roads leading up to their meticulously maintained mansions. This stark contrast fuelled resentment among the people, leading them to label the government and its associates as “them.” These houses were symbols of the vast divide between the ruling elite and the everyday citizens longing for change. As the stark divide between “them” and “us” deepened, people yearned to change everything at once, to rid themselves of the oppressive grip of “them.”
Over the years, I understood why a pervasive sense of indifference had taken hold. The people of Sudan grew indifferent towards a government that remained unchanged. It showed no willingness to address the needs of its citizens unless it directly benefited those in power. For three decades, drastic change eluded the Sudanese people. They woke up each day to a different price for the dollar and a different cost for survival. The weight of this enduring status quo bore down upon them, rendering them mere spectators of their own lives. However, as it always does, a moment of reckoning finally arrived—the revolution.
Returning home after the 2019 revolution in Sudan, what stood out in contrast to the indifference was the hashtag #hanabnihu, which from Arabic translates to “we will build it.” #Hanabnihu echoed throughout Sudanese conversations taking place on and off the internet, symbolizing our determination to build our nation. To build our nation, we needed to commit to change beyond any single group’s fall, or any particular faction’s victory. Our spirits were high as everyone felt we had enough muscle memory to remember what happened in the region. We remembered how many of “them” came back to power. With the military still in power, the revolution was incomplete. Yet it still served as a rallying cry for the Sudanese people. It was a collective expression of their determination to no longer accept the unfinished state of their nation.
Many Sudanese people from the diaspora returned to Sudan. They helped the people of Suean create spaces of hope and resilience, everyone working tirelessly to build a new Sudan. They initiated remarkable projects and breathed life into the half-built houses they now prioritized to turn into homes. We had yearned for a time when broken door knobs and crooked toilet seats would be fixed, and for a time when the government would smooth out the bumps on the road. For four years following the revolution, people marched, protested, and fought for a Sudan they envisioned. They fought in opposition to the military, whose two factions thought that a massacre or even a coup might bring the people back to the state of indifference that they once lived in.
Remarkably, the protests became ingrained in the weekly schedule of the Sudanese people. It became part of their routine, a testament to their unwavering dedication and the persistence of their aspirations. But soon, the people found themselves normalized to these protests. This was partly due to the fact that it was organized by the only body fighting against the return of this indifference: the neighborhood’s resistance committees. These horizontally structured, self-organized member groups regularly convened to organize everything from planning the weekly protests and discussing economic policy to trash pickup, and the way corruption lowered the quality of the bread from the local bakery.
The international media celebrated the resistance committees for their innovation in resistance and commitment to nonviolence. But as we, the Sudanese, watched the news on our resistance fade, it was clear that the normalization of indifference extended beyond Sudan’s borders. The international community turned a blind eye to justice, equality, and progress in the celebrated principles of the peaceful 2019 revolution. In a desperate attempt to establish fake stability in Sudan, the international community continued their conversations with the military. Their international sponsors mentioned no retribution against the military for their actions.
During my recent visit to Sudan, the sense of anticipation was palpable. It was just two months before the outbreak of war between the army and the paramilitary group. The protests had intensified and the economy was faltering. The nation stood at the precipice as the activism continued and the tensions between “us” and “them” had begun to grow once again.
Now, as war engulfs the nation, many Sudanese find themselves torn. At the same time, they hope for the victory of the Sudanese Army. Despite the army’s flaws, Sudanese people hope the army will win against “them” while recognizing that this war remains primarily between different factions of “them.” We wake up every day with a little less hope. We watch them bomb Khartoum and the little infrastructure that existed turn to dust. We watch as the resistance committees continue to do the army’s job for them. They work fiercely to deliver medicine, evacuate people and collect the nameless bodies on the sides of the streets next to the burnt buildings that were almost starting to be completed.
Another battle takes place online. On Sudanese social media, people challenge the negative mood of the war. Sudanese architects and designers work from their rented flats in Cairo or Addis, posting juxtaposed images that place the grainy, rashly captured photos of the latest burnt-down building in Khartoum next to different rendered perspectives. These perspectives reimagine the same building in a rebuilt Sudan. They thus instantly force a glimpse of hope in what now looks like a far-fetched reality to most people.
Just as these young visionaries attempt to defy the odds, international intervention and support are pivotal to help Sudan escape the clutches of this devastating conflict. Let Sudan serve as a catalyst for the change that was meant to be. Diplomatic engagement, humanitarian aid, and assistance in facilitating peaceful negotiations can all contribute.
The significance of ending the ongoing war in Sudan cannot be overstated. It represents more than just a cessation of violence. It provides a critical moment for the international community to follow the lead of the Sudanese people. The international community should dismantle the prevailing state of indifference worldwide. The fight against indifference extends far beyond the borders of Sudan. It is a fight that demands our attention and commitment on a global scale of solidarity. We must challenge the systems that perpetuate indifference and inequality in our own societies. We must stand up against injustice and apathy wherever we find it.
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 once a week.
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