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The Puzzling Political Powerlessness of the Kenyan Diaspora

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Building Track Two Diplomacy involving non-state actors and forging stronger connections with non-Kenyans could be the source of the Kenyan diaspora’s new political power.

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The Puzzling Political Powerlessness of the Kenyan Diaspora
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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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Ms Hall is a freelance writer based in the USA

Politics

Big Pharma and the Problem of Vaccine Apartheid

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

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

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

The current state of the pandemic – Rob Wallace

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

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

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

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

Health justice and the pandemic in South Africa – Marlise Richter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Updates on COVID-19 in Senegal and Kenya

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

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

He stated that Senegal is currently facing two issues:

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

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

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

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

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

Moving beyond the state?

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

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

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

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

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

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

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Omissions of Inquiry: Kenya and the Limitations of Truth Commissions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No sense of irony

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

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

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

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

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

African leaders protecting each other

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

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

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

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

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

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

Presidents have immunity, ok?

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

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

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

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

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

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

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

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

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

Making peace without al Bashir

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

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

Ignoring victims

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

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

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

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

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

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