The Currency of Clinging and Belonging
The tales that Kenyans tell of landing abroad are often woeful in the beginning. The humour comes years later, after one has overcome adversity and can sit down with fellow diaspora Kenyans over mbuzi choma at Swahili Village in Washington DC and reminisce about that first day.
We once traded stories about how much money each of us had on arrival at the airport. The guy who said he had exactly eleven Kenya shillings in his pocket provoked uproarious knee-slapping laughter from all of us. I had US$200, I confessed. My college tuition fees which were due the week of my arrival amounted to US$4,000. It was also pouring freezing rain on the day I landed at JFK airport in New York. All this was a familiar story to many of us who eventually found a second belonging in a foreign land. Fast-forward to the year 2020, and these Kenyans who arrived with nothing are now sending home US$3 billion a year.
If ever there is a moment when Kenyans cling tightest to their Kenyan belonging, it is on the day of their arrival abroad, when everything seems too foreign, too cold, too unfriendly, too distant, too bricked-in, when everything feels intensely out of place.
This clinging to Kenyanness is an emotional reservoir that is transformed into hard currency. Any government would be wise to cultivate it, to encourage its diaspora’s connection to their home country no matter how far away they settle. But Kenya’s history proves that those who have come into political power have had no such wisdom. They have blamed the diaspora’s characteristic clinging to their ethnocultural enclaves for their own failure to enable their population in the diaspora to fully enjoy their rights as Kenyan citizens.
The Kenyan abroad is an ethnolocalized citizen. They localize their global belonging through ethnic cocooning that offers social insurance against loneliness and material need especially when faced with adversity. This ethnic enclaving becomes a primitive form of tribal territorialism that works by keeping other Kenyan ethnic groups out. It assumes a group’s resources are too meagre to be shared with outsiders.
This is a primal stage of diaspora belonging and clinging that all dispersed communities go through. It is not unique to Kenyans, but as late entrants into the field of national diasporic populations, Kenyans abroad have the advantage of growing away from its narrowness because they already have the examples of other diasporas to follow. The fact remains that this primal stage of tribalisation in global spaces, which is an expected part of the journey of a dispersed people, is no reason to lock them out of their civic engagement as citizens of their home country.
In the balancing of their ethnolocalized realities, the easiest way to maintain the connection with Kenya has been through remittances; families in Kenya are sustained and the social-economic fabric is patched up sufficiently to keep life moving through the ravages of political fraying. Does this count for political engagement? Not if the sender does not have a say in what goes on in Kenya. Over time, and with the rising number of Kenyans abroad, it has become a long-drawn out battle for diaspora Kenyans to be allowed to fully engage in Kenya’s politics.
Diaspora battles against lockout
When President Kibaki came to Washington DC as a guest of President George W. Bush in 2005, we as officials of the Kenyan Community Abroad grabbed the opportunity to present our case for dual citizenship as the debates for constitutional review and change were happening in Kenya. After the president of the Kenyan Community Abroad (KCA) spoke to the packed ballroom on the issue, President Kibaki responded in his speech, “You can’t have one foot here and another one there!” He was wrong.
The naysayers said that if the president has spoken, then that’s that. Luckily, with the death of the de jure single party system, the days when a president’s word was law were gone. But much as our struggle bore fruit that proved the president wrong, the diaspora community remains politically ineffective as our right to vote remains suppressed, as those who dare to challenge authority can still get kicked out of their own home country, and as our opinions about Kenya are still rubbished. A brief reminder of this struggle will establish that Kenya’s diaspora has never shied away from confronting marginalisation.
In 2000, Kenyans abroad started challenging the idea that taking the citizenship of your country of residence made you unKenyan. The Kenyan Community Abroad, the organization that spearheaded that battle, mobilised over 10,000 diaspora Kenyans who appended their signatures to a petition that carried the fight to the Bomas Draft process where KCA had successfully lobbied to have two delegates. Dual citizenship was finally entrenched in the 2010 Constitution. It was a win that all diaspora Kenyans felt entitled to claim credit for, even those who had opposed it.
The roots of political neutering
A decade after their Kenyan citizenship and voting rights were constitutionally entrenched, dual citizens are still fighting to be recognised as eligible for political office, representation and voting. What they send home should not matter. But what diaspora Kenyans ought to never lose sight of is that every time they fight for their right to civic engagement, they are entering a battlefield strewn with the skeletons of politically powerless Kenyan communities whose members have died fighting or waiting for their inclusion.
The troubling history of disconnect and discontent followed diaspora Kenyans wherever they settled, like a witchcraft token that was secretly placed in their suitcases. They joined the political struggles of the Nubi Kenyans, the Makonde Kenyans, the Somali Kenyans, the northern Kenya communities and the Pwani people who have fought long and hard against the imposed political impotence where are denied the vote or are perceived as outsiders.
In 2000, Kenyans abroad started challenging the idea that taking the citizenship of your country of residence made you unKenyan.
The neutering of marginalised populations is done to prevent them from tipping the political scales unfavourably. Whether this is a real or imagined possibility is inconsequential. As long as you recognise someone as eligible to vote, you acknowledge their power to put you in or out of office. Marginalisation also comes about through the neglect and laziness of leaders who have no vision, not an iota of patriotism, and no understanding of what it takes to build a nation.
Necropolitics and the weaponisation of citizenship
Citizenship, which refers to the legally recognised state of belonging to a given territory, is where political power lies. With it, every citizen gains the ability to engage politically and become a co-architect of their country’s reality. But Kenyans have a country that has cultivated a culture of manipulating, disavowing and devouring its citizens’ state of belonging. There is something fundamentally broken about a country that weaponises citizenship against its own populations.
In a perfect set-up of necropolitics, where those in power choose how some may live and how others must die, Kenya has created a culture of choosing who belongs and who does not, and in so doing, it has crippled the ability of many Kenyans to contribute to national growth. Citizens are a country’s most valuable resource. It should always be in the interest of any government to engage and include all those who are born within its borders and who proudly call that country home.
There is something fundamentally broken about a country that weaponises citizenship against its own populations.
Necropolitics also refers to the subjection of a people to a political death so that their existence is like a carcass that a vulture state feeds upon. In this group also lies Kenya’s hoi polloi whose votes are always manipulated at every general election. They are locked out of justice, entombed in apathy, and silenced or denied belonging when they rise up in protest. Their lives are valueless to those in power, which is why ethnic cleansing, extrajudicial killings, elimination of witnesses and shooting peaceful protesters is a part of Kenya’s long history of political deathing. This history lays the foundation that now informs the political marginalisation of diaspora Kenyans.
The ghost of duality that came before diaspora
The history of the marginalisation of Kenya’s Muslim community goes way back to the incorporation of the coastal strip, also known as Pwani, into the Kenyan territory at independence. Until then, Pwani had for long been under the Sultan of Zanzibar. Post-independent economic repression, theft of community lands and poor investment in education for Pwani people led to calls for secession under the cry Pwani si Kenya (the Coast is not Kenya). In the nineties, the Mombasa Republican Council (MRC) gave voice to this frustration and this led to waves of victimisation of Mombasa Muslims who were conveniently accused of terrorism.
Kenya’s coastal leaders were scrutinised and victimised because of their connections to other countries. It is not uncommon for Mombasa Kenyans to have family in Yemen and Oman, countries with which we share Swahili language and culture. After all, it wasn’t until 1869 that the Suez Canal artificially split the Horn of Africa from the Arab Peninsula and made it a separate landmass. Before KCA’s fight against discrimination of dual citizens, there was the Islamic Party of Kenya’s (IPK) fight against Moi’s repressive regime in Mombasa.
Kenyan-born IPK leader Sheikh Khalid Balala was accused of secretly being a citizen of Yemen by birth. The government stripped Balala of his Kenyan citizenship after he travelled to Germany, a move that was meant to stop him from re-entering Kenya and continuing his fiery attack against the oppression of Kenya Muslims by the Moi government. Kenyans abroad understand this nefarious tactic of being labelled foreigners as a way of blocking them from becoming an active force for change in Kenya’s politics. While Balala’s Kenyan citizenship was reinstated through the dramatic protest and lobbying by an opposition that established he was indeed a Kenyan by birth, it wasn’t until nearly two decades later that Kenyans abroad would legally secure their right to dual citizenship and, in essence, their right to engage politically without facing discrimination.
The well-known case of Dr Miguna Miguna, who was denied entry into his own country, remains fresh. The self-styled “General” and leader of the National Resistance Movement (NRM) who had famously sworn in a rigged-out candidate as the People’s President, created drama at airports reminiscent of Sheikh Balala. Both had the dual belonging dagger drawn against them. Thousands of Kenyans abroad saw the injustice of it and felt the terror that they too could be locked out of their own country on flimsy grounds.
Kenyans who challenge political injustices in Kenya will quickly get their citizenship weaponised against them. Those who hold dual citizenship and who are viewed as troublemakers by the establishment have had their passports disappear when presented for renewal. I am a victim of this injustice and to date, my Kenyan citizenship remains in limbo, all the paperwork having been disappeared and all traces of my application for the renewal of my Kenyan passport completely erased.
When diaspora individuals have chosen to battle it out with the big boys in the political rough-and-tumble, they have faced fierce pushback that often includes seeking court intervention. In 2013, Bishop Donald Kisaka Mwawasi took the Independent Electoral and Boundaries Commission (IEBC — an oxymoron if ever there was one, for there is nothing independent about the IEBC) to court. Mwawasi was appealing the High Court’s decision that a person who holds dual citizenship cannot run for elective office as a Member of Parliament. Court records show that the appellant was in fact born and raised in Kenya. Mwawasi won the battle and helped move the diaspora closer to victory against political exclusion.
Thousands of Kenyans abroad saw the injustice of it and the terror that they too could be locked out of their own country on flimsy grounds.
In 2019, the nomination of Mwende Mwinzi as Kenya’s Ambassador to South Korea once again brought to the fore the country’s primal fear of imagined foreignness. The spurious charge that an envoy with dual-citizenship would have split loyalties caught the imagination of Kenyans; fantasised betrayals against the country were evoked and the sensationalism remains in the minds of Kenyans furiously fighting the discomfort brought on by new ideas about who is eligible to influence the country’s destiny.
Ideas about the ineligibility of dual citizens are pushed by members of parliament whose motives are, in the quintessential form of necropolitics, to decide how one dies and how another lives, in this case, how to kill off a perceived political threat and how to strategically put in place the preferred person who gets to live in that political space. This is the ideology of mtu wetu politics, and diaspora Kenyans are not mtu wetu material unless they are willing to bow to the keepers of political power.
The secret to diaspora’s political power
Kenya also has communities that, until very recently, had lived in Kenya for decades, some for over a century, in a vacuum of statelessness where dreams died at birth. They lived through political, economic and social marginalisation that drove them into generational poverty. These are Africans, ethnic groups born in colonised spaces other than what became Kenya. In the 19th century, the Nubi who had served as military slaves to the British Crown were relocated from a non-existent South Sudan to non-existent Kenya. Decades after becoming a sovereign nation, Kenya saw the Nubi as foreigners and denied them the right to citizenship.
The same fate of statelessness befell the Makonde who had migrated to Kenya from Mozambique long before independence. It took them eighty years before Kenya granted them citizenship rights. Within that time, generations of Kenyan Makonde were subjected to politically orchestrated poverty since they could not obtain the legal paperwork that would allow them to go to school, get employment, start businesses, run for leadership or vote. Other communities such as the Kenyan Somali in the north have long been seen as misfits and have suffered for it. Being labelled shifta (ragtag terrorists) became the common way of viewing this neglected community.
While all these communities have undergone intense suffering within their own country of birth and residence from which they could not flee, the stigma of the systemic rejection of the Kenyan diaspora on the same basis of perceived foreignness is lessened by that population’s economic power. Diaspora Kenyans must always tie their struggle for inclusion to the struggle of those Kenyan communities who are not as fortunate to have the resources to raise their voice. Diaspora Kenyans will only start being truly effective in Kenyan politics when they strategically begin to tie their battles to those of Kenyans at home, no matter the difference in distance and economic standing.
The diaspora’s political power and impact lies in moving away from purist diaspora issues such as voting rights, investment opportunities and rights to political representation and public office, to a strategy that involves connecting with the most marginalised Kenyans on the ground. This connecting will in turn provide diaspora Kenyans with the impetus they need to speak on specific diaspora issues. It is not enough that the Nubi and Makonde Kenyans were granted citizenship; it takes a long time to implement those rights. Kenya is a country now in the throes of class warfare where once again the political class that is stoking the fires of civil strife will come out unscathed at the end of it all. There is, therefore, an entire tribe of marginalised Kenyans that diaspora Kenyans have an opportunity to connect with and to help fight against the insidious culture of political deathing where their lives become valueless, and their deaths are only a statistic.
The myth about Kenyans as political movers and shakers in Washington DC
The Kenyan diaspora is still too young to effectively engage in influencing foreign policy on behalf of Kenya. It is important to understand that significant impact on US foreign policy is made by ethnic communities living in the US as American citizens. Ethnic in this case refers to national identities such as Jewish, Indian, Filipino, Hispanic, Armenian, and Arab, among others.
The African immigrant community has yet to develop a formidable continental identity with the organising power of these other groups. Only then perhaps can an African lobby group as powerful as the American Israel Public Affairs Committee (AIPAC) successfully lobby the US to implement policy that is beneficial to African countries. Individually, African countries will remain too weak to influence foreign policy on their own behalf.
African diasporas are even weaker and only now beginning to find ground as the latest immigrant group in the US. With 54 countries, each with its own ethnic communities, it has been near impossible to amalgamate the 54 African nations into a single interest group that can lobby for any of the 54 countries’ national interests. These attempts have been made, and there are still continental organisations attempting to speak for African countries. But for now, they remain a feeble light in the firmament of international affairs.
Diaspora Kenyans must always tie their struggle for inclusion to the struggle of those Kenyan communities who are not as fortunate to have the resources to raise their voice.
There is another way. An African country can individually lobby to influence US foreign policy through its embassy in what is referred to as Track One Diplomacy. However, African embassies always end up hiring lobbyists in Washington DC at a fee that could provide Kenyan students with free high school education for some years. Like many African countries, Kenya has taken this route when lobbying for favourable US policies. The challenge with the governments of African countries lobbying the US government is that they will not address the issues that oppress the people as that would amount to the political class lobbying against itself.
It has therefore always been the burden of citizens to fight for foreign policy that erases oppressive measures, against the interests of the political class and in the interest of the citizens.
Power protects power, and the history of US policy in Kenya has largely remained detrimental to the Kenyan masses that have suffered the effects of bad contracts, mismanaged loans and Structural Adjustment Programmes that come with punishing austerity measures. This is about to hit Kenya again as a result of the government taking a US$2.4 billion IMF loan. Inflation will rise as before, and it is the ordinary Kenyan who will no longer be able to afford a packet of unga. We know this game, we’ve been here before, and the diaspora as singular actors remains powerless in reversing or renegotiating this deal.
In the US, the Kenyan diaspora community will have the power to influence foreign policy when it is able to achieve three things: promise substantial votes in congressional districts where the member of congress can speak on their behalf; amass enough financial power to contribute to and impact political campaigns; and master the art of organising and lobbying around their issues. African diasporas have not reached this stage yet.
Power protects power, and the history of US policy in Kenya has largely remained detrimental to the Kenyan masses.
Legislation has been won and bad foreign policy has been reversed on behalf of African countries through the power and influence of the African American community. Organised Black power by the descendants of enslaved Africans has been the wind beneath the wings of African continental and nationalistic struggles since the late nineteenth century. The Kenyan diaspora would do well to be aware of this historical fact and discard the stereotypes it holds against Black America.
This calls for building Track Two Diplomacy that involves non-state actors. It means seeking the attention and partnership of groups such as the Congressional Black Caucus and its Africa Braintrust, the Progressive Caucus, HBCUs (Historically Black Colleges and Universities) and influential Black internationalists. This cannot be done without an organised diaspora. We have organised and succeeded before when we fought for dual citizenship. We can do it again and build stronger connections with non-Kenyans. That would be political maturity and the source of the Kenya diaspora’s new political power.
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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 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.
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.
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.
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.
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?
Who Is Hustling Who?
In Kenya, political elites across the spectrum are trying to sell off the country for themselves—capitulation is inevitable.
My drive to Limuru happened on the first Wednesday (July 19) of the protests. Everything was eerily quiet, Nairobi, renowned for its traffic jams, was quiet. Matatus and buses were parked in their hubs. Shops and stalls were closed. Even the hawkers that dot the roads and highways stayed home. Save for the heavy police presence everywhere, it felt like the country had come to a standstill.
We got to Kangemi shortly after the police had shot and wounded two protestors—the road was strewn with stones and armed riot police huddled by the side of the road waiting for the next wave of attacks that never came. In the end, six people would be shot to death throughout the country, and countless were injured and arrested. Coming from the US, where police arrest protestors and shoot black people, there were no surprises here. The US can hardly be the standard of good policing or democratic practices, but the lives lost simply for asking the government to center the people in its economic planning seemed especially cruel.
But it was the emptiness of the roads that made the whole drive eerie. Perhaps I was refracting what was happening in Kenya through what followed the 1982 coup in which 240 people were killed; or the ethnic clashes of the 1990s that culminated in the 2007 post-election violence. Yet, there was a general agreement among people that there was something different about the Kenya of today—that something was already broken and the nightmares to come were slowly but surely revealing themselves—like a bus carrying passengers and the driver realizing the brakes were out just as it was about to descend a steep hill.
Voting with the middle finger
But all this was predictable. President Ruto has been a known quantity since the 1990s when he led the violent Moi youth wingers. He and his running mate and later president, Uhuru Kenyatta, were brought in front of the ICC to face charges of crimes against humanity following the post-election violence in 2007. Some key witnesses disappeared and others were intimidated into silence. Who in their right mind gives evidence against those in control of the state? The ICC was already discredited as being Western-crimes-against-humanity friendly (the US has never been a signatory rightly afraid its former presidents, such as George Bush, would be hauled before the court). The ICC eventually withdrew the case in March 2015.
I kept asking everyone I met, why was Ruto voted in spite of his history? The answers varied: He rigged the elections; he did not rig and if he did, he only managed to be better at it than Raila Odinga; he appealed to the youth with the idea of building a hustler nation (what a telling term); the Kikuyus have vowed never to have a Luo president and therefore opted for Ruto who is Kalenjin as opposed to Odinga who is Luo.
I sat with older Kikuyu men in the little Nyama Choma spot in Limuru Market and they talked about a generational divide between the Kikuyu and youth (Ruto) and the elderly Kikuyus (Odinga). But the one I heard over and over again was that Kenyans are tired of the Kenyatta and Odinga political dynasties. As one Trump supporter was to say, they voted for him with the middle finger. And so, the Kenyans who voted for Ruto were giving a middle finger to the Kenyatta, Moi and Odinga political dynasties. But no one had really expected buyer’s remorse to kick in one year into the Ruto presidency.
I also asked about Odinga’s protests: what was the end game? One theory is that he was looking at power-sharing, having done it once before, following the 2007 elections. In our shorthand political language, he was looking for another handshake. Some said the people have a right to protest their government, and he is simply asking the government to repeal the tax hikes and reinstate the fuel subsidies. Others believed that he wants to be a genuine and useful voice of opposition for the good of the country and its poor.
My own theory is that he is attempting a people-powered, centered, democratic, and largely peaceful takeover—where people take to the streets to overthrow an unpopular government. We saw this in Latin America in the 2000s. In response to Odinga’s absence during the three days of protests (he was sick), some leaders in his Azimio party have started using this language. The only problem with this strategy is that the sitting government has to be wildly unpopular. Ruto still has a lot of support, meaning that he does not have to compromise or give up power. It was to my mind turning into a stalemate and I was worried that the state would respond with more state-sponsored violence.
But real economics broke the stalemate. In a country where people are barely surviving and the majority are poor without savings to rely on, or relatives to reach out to for help, the hawkers, small stall and shop owners simply went back to work. In other words, those that would have been hurt the most by three days of protests (a day at home literally means a day without food for the family) simply went back to work, and the matatus and buses hummed back to life, slowly on Thursday and full throttle by Friday.
Saturday around Westlands might as well have been as busy as a Monday as people overcompensated for lost time to either sell or shop. If the protests were going to succeed the opposition (composed of some of the wealthiest families in Kenya, including Odinga’s) really should have thought about how best to protect those who would be the most affected. They should find legal and innovative ways to put their money where their political mouths are.
Cuba as Kenya’s north star
Odinga had to change tactics and called for a day of protest against police violence instead of three-day weekly protests in perpetuity. He is now in danger of turning into a caricature of his old revolutionary self and becoming an Al Sharpton, who instead of protesting the American government for the police killings of black people, protests the police themselves leaving the government feeling sanctimonious. Obama or Biden could weigh in, in righteous indignation without offering any real change (remember Obama’s emotional pleas over gun shootings and police shootings as if he was not the one occupying the most powerful office in the US)?
The one question that keeps eating at me is this: why is the most apparent outcome at the time a surprise later? Ruto was always going to sell off Kenya with a percentage for himself and his friends. Odinga was always going to capitulate. The end result is that the Kenyan bus will continue to careen on without brakes. So, what is to be done?
I was in Cuba earlier this year. I got a sense of the same desperation I felt in Kenya but the difference is Cubans have free access to healthcare, education, housing, and food security. They have free access to all the things that make basic survival possible. Before calling for the tax hikes and cutting fuel subsidies might it not have been more prudent to have a safety net for Kenyans? Would that not have been the most logical thing? But of course not, Ruto is acting at the behest of the IMF and big money. Ruto has learned the art of pan-African political rhetoric. Abroad he can call for a different non-US-centered economic system and castigate the French president over paternalism but at home, his politics are hustler politics.
Life in Cuba is difficult, as a result of relentless sanctions from the US, but it is far from impossible. It remains the north star for those who understand discussions around fundamental change as the only starting point. We can have arguments about the nature of those fundamental changes, but we can all agree we should not be a country where one family, say the Kenyatta family, owns more than half a million acres of land. Or where, as Oxfam reported, four individuals hold more wealth than that held by 22 million Kenyans. The kind of politics that begin with a necessity for fundamental change will obviously not come from Ruto.
But one hopes it can still come from the Odinga camp. Or even better, from a genuinely progressive people-powered movement that has inbuilt questions of fundamental change in its political, economic, and cultural platform.
In spite of the empty roads, Limuru Market was thriving and Wakari Bar kept its reputation as one of the best places for Nyama Choma and for lively political conversations. People are paying attention, after all, it is their lives and livelihoods on the line. Politicians, especially those in the opposition and the political left should listen as well.
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