On the 9th of April 2013, three members of parliament from West Pokot held a media press conference in Nairobi during which they vehemently protested the characterization of the Pokot people of northern Kenya as “criminals and thieves“. They were reacting to a statement attributed to President Yoweri Museveni of Uganda, who was giving a speech on behalf of other invited heads of states during the inauguration of President Uhuru Kenyatta and his Deputy William Ruto.
President Museveni, perhaps in jest, had said, “These people have been stealing my cattle. I have agreed with these [Pokot] MPs. . . . I urge Uhuru, this people from West Pokot should stop stealing my cows.”
In their rebuttal, the three MPs claimed that they had been compelled to respond to the neighbouring president’s “wholesome condemnation” of the Pokot since, as they averred, it had become his practice to make such spurious statements about the Pokot people. The MPs claimed that following President Museveni’s statement, they had faced taunting and disparaging remarks from fellow Kenyan MPs who called them “the president’s thieves”, amongst other unsavoury epithets. They, therefore, wanted to change the perception and stereotyped portrayal of the Pokot as cattle bandits.
The MPs arguments were based on a phenomenon that social psychologist Claude Steele calls the “stereotype threat”, the fear of what effects such stereotypes may have on an individual or targeted group. In this case, the impact it may have on the innocent Pokot who does not practice cattle rustling and banditry as well on inter-communal relations between the Pokot and other communities. “In as much as these remarks could pass off as soft, friendly and populist, we are not averse to the grave repercussions that remarks could have in mopping [sic] ethnic passions and cross-border tensions particularly among pastoralist communities in the said regions,” said Pkosing, who is the MP for Pokot South.
The MPs highlighted the risks associated with persistent stereotyping and misguided narratives about “others” and raised the challenge of what needs to be done to maintain social cohesion in Kenya.
But there were those who disagreed with the pronouncements of the Pokot leaders. “While we abhor the general characterization of a whole community as cattle rustlers, it does not help either to deny the shame and embarrassment the few errant elements have caused our people and neighbours,” said the then Baringo County Speaker William Kamket.
Stereotyping is pervasive, persistent, but…
Kenya is a multi-ethnic, multi-linguistic and multicultural country where any individual or ethnic community may be subjected to stereotyping and coded language by others. There are, however, concerns that the open and persistent stereotyping of particular communities — bordering on hate speech — could be counterproductive in many respects.
Stereotyping “other” communities could lead to prejudice, discrimination, and open hostility amongst groups. This, therefore, begs the question of whether it would not be prudent to educate social groups on the need to avoid using wounding words that could ignite prejudice, discrimination, tension, and conflict. Indeed, the National Integration and Cohesion Commission (NCIC) gives ethnic stereotyping as grounds for prosecution.
Stereotyping is an instance of what the psychologist Jerome Bruner calls “going beyond the information given”, the capacity for equivalence grouping — assigning objects to categories and making inferences about their specific attributes based on what we think we know about the class in general. It is part of the cognitive machinery that allows us to deal with novelty in everyday life. As Bruner puts it, “If we were to respond to each event as unique and to learn anew what to do about it or even what to call it, we would soon be swamped by the complexity of our environment. This is the reason why stereotyping is a common human feature.
Just because stereotyping is cognitively inescapable, however, does not mean that stereotypes are generally accurate. We also have cognitive mechanisms in place that make stereotypes resistant to change in the face of conflicting evidence. Despite evidence to the contrary about the targeted social groups, the in-group tends to always hold onto the adopted stereotypes. This is especially the case when stereotypes are laden with emotional content and thus form the basis for prejudice.
Concerning prejudice and discrimination, it may not be uncommon for stereotypes and misleading narratives to influence official attitudes, policy, institutional and administrative orientations towards certain ethnic/social groups or regions, resulting in unfavourable social, economic, political, and administrative outcomes. This is irrespective of how remotely realistic such assessments may be. Officers, in any case, are part of society, dominant or otherwise.
Stereotypes and narratives on pastoralists and arid lands
Pastoralists have long borne a barrage of unfavourable and misleading stereotypes and narratives that have impacted their well-being. These are either based on their livelihoods, their environment, or their cultural practices. Importantly, these stereotypes and narratives have led to, or become, a reflection of these communities’ marginalization, exclusion, and discrimination.
There are several ways in which pastoralists and other social groups are socially constructed and (re)presented in daily discourse. These forms vary from well-publicized political speeches, policy statements and approaches, to media coverage, and commentaries expressing concern about conflicts and insecurity in pastoralists’ areas. Kenyans are therefore well exposed to the different ways in which pastoralists and other minorities are constructed as essential categories.
In his report titled The Unrelenting Persistence of Certain Narratives, Michael Ochieng catalogues the narratives and stereotypes about Kenya’s arid and semi-arid regions where pastoralists reside, and their adverse effects on social policy change. He identifies the national actors responsible for defining policy narratives on development and climate change adaptation in Kenya, their perceptions about ASALs (Arid and Semi-Arid Lands) and the premises that underpin these perceptions and narratives.
Ochieng observes that powerful narratives about the ASALs are a legacy of the Sessional Paper Number 10 of 1965 that laid the basis for subsequent policy and marginalization of arid lands. These include the security/insecurity/conflict narrative perpetrated by the state of emergency that revolved around security (specifically, insecurity). He notes, “The area and the people came to be viewed largely in terms of security, and interactions between them and organs of the state were defined in the same terms. Most government resources spent in these areas went to security, law and order, albeit with little respect for the rule of law.”
Hardly any investments were made in social service delivery or economic development between independence in 1963 and the reintroduction of multi-party politics in 1992. As a result, the ASALs, particularly those in northern Kenya, missed out almost entirely on the development opportunities of the first three decades of independence. The narrative that mobile pastoralism was irrational, unproductive, and environmentally destructive was essentially an all-embracing narrative with economic, socio-cultural and environmental overtones. “It had devastating effects on the way both policymakers and the rest of the society viewed pastoralists – largely as backward and resistant to change, refusing to modernize and take advantage of the benefits of civilization and development. Anthropological explanations such as ‘cattle complex’ were used to validate such characterization.”
Hardly any investments were made in social service delivery or economic development between independence in 1963 and the reintroduction of multi-party politics in 1992.
The little policy attention extended to the ASALs in the late 1970s led to the creation of the Ministry of Reclamation of Arid and Semi-Arid Areas and Wastelands, a perfect condemnation of the ASAL areas based on their perceived non-productivity. This, notwithstanding that the country continued to rely on these regions for the steady supply of livestock and livestock products and to benefit from its rich biodiversity in support of a thriving tourism economy. Ochieng links this narrative to the proclamation of Sessional Paper No. 10 of 1965 that the ASALs could only benefit from the economy as recipients of “grants of subsidized loans” from the more economically productive parts of the country.
Purveyors of stereotypes, hostilities
Whether held by the majority/dominant or minority/non-dominant groups, stereotypes explain things easily. They take less effort and give the appearance of order without the difficult work that understanding the entire hierarchy of things demands. They reinforce the belief and disbelief of its users and furnish the basis for the development and maintenance of solidarity for the prejudiced.
Minority groups do not escape the tendency toward stereotype, partly because of the set of economic, political, cultural, and personal reasons they find themselves in. The hostility of the minority/target group is expressed partly towards other minority groups and in part towards the dominant groups (pastoralists amongst themselves and pastoralists jointly against farmer/ agricultural groups). And when minorities become dominant groups, they sometimes discriminate against their own (non-dominant clans). Claude Steele, for instance, has pointed out that stigmatized populations may adopt counter-stereotypical behaviours to dissociate themselves from stereotypes. Thus, prejudice and discrimination affect not only the attitudes and behaviour of minority group members towards the standards set by the dominant society but also their responsibility to themselves and their groups. Self-regarding attitudes are as much part of one’s social experience as attitudes toward other persons and social norms.
When minorities become dominant groups, they sometimes turn to discriminate against their own.
An assessment of descriptive content of cultural stereotypes not only indicates their consensual sharing but also that the content influences accepted norms for inter-group relations that finally justify discrimination.
Content of Kenyan ethnic group stereotypes
In their study, An Examination of Ethnic Stereotypes and Coded Language Use in Kenya and its Implication for National Cohesion, Joseph Naituli and Sellah King’oro have provided stereotypes of nearly every community in Kenya based on region. The graphic below presents the common stereotypes used in Baringo and Elgeyo Marakwet counties.
|Common Stereotype||Targeted Community||Translation||Meaning|
|Ng’oroko||Pokot||Cattle rustlers||People who steal livestock|
|Punyoot||Any community||Enemy||Any community not meant to share resources with -Elgeyo and Marakwet views|
|Chepng’al||Nandi||Person of many words||Very proud and talkative|
|Cheptukenyot||Tugen||Tugen lady||The very mean lady|
|Kimurkelda||Kikuyu||Brown teeth||Community of people with brown teeth|
|Chepturkanyat||Turkana||Turkana lady||The dirty lady who never observes hygiene|
Source: Naituli and King’oro (2018)
Just what is it with the Pokot and others?
The Pokot (Pochoon singular, Pokot plural) of north-western Kenya and the Amudat District of north-eastern Uganda have been at the centre of national and regional discussions, narratives and stereotypes around cattle raiding, conflict and insecurity. Often portrayed as the exemplars of cattle rustling and banditry in the north-western corner of Kenya, many Pokot strongly protest what they perceive as the tendency to criminalize the entire community because of the practice of a few. In the narratives and stereotypes, they are usually accompanied by a supporting cast of their neighbours — the Keiyo, Marakwet, and Turkana, not forgetting fellow travellers from across the Ugandan border — the Karamojong, amongst others.
Some members of the Pokot community and their allies argue that most individuals in the community are against the practice of cattle raiding. Yet, the Pokot community is persistently cast in blanket, villainous terms. Little consideration is given to context and the historical realities in which the Pokot, and indeed the other communities in their localities, have found themselves. It should be noted that the Pokot also have stereotypes of their own that target other communities.
Many Pokot strongly protest what they perceive as the tendency to criminalize the entire community because of the practice of a few.
While the “transformative” school of thought in conflict studies holds that cattle rustling — an activity that has been practised for hundreds of years — might have radically changed and acquired a horrendously sophisticated character in manifold ways, it is imperative, the Pokot argue, to interrogate the deep and tangled roots of the persistence of the practice and find urgent, pragmatic, and long-term measures to eradicate it rather than condemning a whole community.
A quick sampling — from different timelines and sources — of the various favourable or unfavourable narratives, stereotypes and analytical proclamations targeting the Pokot, that could well refer to other communities too, might be illustrative:
“The region’s most formidable and battle-hardened ethnic war machine” — Paul Goldsmith, The Cost of Cattle Rustling in Northern Kenya, 1994.
“The Pokot have hostile relations with almost all of their neighbours.”
“Vulnerability to frequent harassment from their neighbours has made the Pokot a tough and ruthless people.”
“The heaviest losses of the Kenya military since independence has been sustained during the ill-fated suppression of the Pokot.”
“Due to their small territory the Pokot have remained the most ethnically cohesive society, and often their conflict for grazing area is about community survival.”
“It is therefore important to educate the Pokot and other communities on issues related to stereotypes and coded language because it is evident that it can cause violent reactions between one community and another.”
“Cattle are symbols of wealth, blessings, and the male identity. Raiding has been common place, as warriors are expected to replenish declining herds or to take vengeance on those who have raided them.”
“You have reached the Heart of Africa. You are now entering Karamoja Closed District. No visitor may enter without an outlying districts permit” — Colonial signposts marking Karamoja region.
“Pokot raids do not aim at expanding their territory.”
“Conflict is concentrated in the village of Loruk, where Pokot and Tugen live. Three districts meet at this ribbon-built village, and the boundary lines are unclear, which causes tension because both groups suspect each other of encroaching on their own land. Furthermore, the Pokot claim their right to a primary school that was allegedly built for them in 1984 but later was assigned to Baringo Central where Tugen are the majority.”
“There is the facile, shorthand cultural explanation that conveniently fits preconceptions of timeless ‘tribal’ warfare. This ‘cultural’ explanation is facile not because it is untrue, but because it is only one of several entangled causes that range from the colonial and independent Kenyan governments’ culpability in resource depletion through underdevelopment and reduction of land holdings.”
“The overriding factor that makes pastoral communities prone to conflict (whether violent or otherwise) is their ambiguous relationship with the state and the majority of sedentary populations that reside within them.”
“Recent new factors fuel ongoing conflicts along the Pokot–Turkana border. Successful oil-prospecting missions and a proposed geothermal power plant increase the desirability of land areas claimed by both sides. The Pokot are not the main aggressors.”
“No common policy on intervention by the states is available. Attempts at interventions have been poorly coordinated and executed, too often taking a narrow definition of security that has focused on coercive disarmament without focusing sufficiently on providing viable economic alternatives to those whose livelihoods have become dependent on gun. Finally, traditional structures of authority within communities have been gravely weakened, as have some of the cultural restraints upon violence that operated in the past.”
“Currently, the Pokot in Uganda are allied to the Pokot in Kenya and jointly carry out raids on the Karamojong and the Karamojong from Uganda also have alliances with the Turkana of Kenya and carry out raids in Pokot North (Kenya).” — David Aliker
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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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