Today, arguments commenced before a seven-judge bench of the Supreme Court of Kenya in Attorney-General v David Ndii and Ors, popularly known as “the BBI Case.” On this blog, I have covered in some detail the progress of this case, including the judgment of the High Court (see here), the oral arguments at the Court of Appeal (see here), and the judgment(s) of the Court of Appeal (Part 1, Part 2, Part 3, Part 4). Because of the issues that it raises – about the limits of the constitutional amending power, public participation in popular initiatives, the conduct of referenda and the framing of referenda questions, the role of fourth branch institutions, and presidential immunity, to name just a few – the BBI Case is not only hugely significant for Kenya and for Kenyan constitutionalism, but also for global and comparative constitutionalism more generally. The three-day argument this week is now the final round, and the Supreme Court’s judgment will be the last chapter of this story.
Oral proceedings before the Kenyan courts are broadcast live, and can be watched all over the world. Over the next three days, therefore, I will post summaries of the day’s arguments in the case, with some analysis (if applicable). A quick disclaimer: I am now formally a part of the proceedings, having submitted an amicus brief to the Supreme Court of Kenya, supporting the correctness of the High Court and Court of Appeal judgments.
The Basic Structure
Recall that the BBI Bill [“the BBI”] is a set of seventy-four proposed amendments to the Kenyan Constitution. Both the High Court (5-0) and the Court of Appeal (6-1) struck down BBI on the ground that it violated the Kenyan Constitution’s basic structure. The High Court held (5-0) – and the Court of Appeal confirmed (4 – 3) – that the basic structure could not be amended through the procedures set out within the Kenyan Constitution itself, under Articles 255 – 257 (“the secondary constituent power”). Rather, the basic structure could only be amended through a process that recreated the conditions under which the Kenyan Constitution of 2010 was framed (“the primary constituent power”). This required a sequential four-step process – civic education, public participation, a Constituent Assembly, and a referendum.
Before the Supreme Court, this finding was under challenge by the Appellants and the supporting Respondents, most of whom argued today. In my opinion, the clearest and most lucid statement of the Appellants’ case can be reconstructed by studying the combined oral arguments of the Solicitor-General and – after him – George Oraro SC. Put simply, the argument is this: the mischief that the High Court and the Court of Appeal were seeking to remedy through the basic structure had already been identified – and then remedied – within the text of the Kenyan Constitution itself, specifically through Article 257 (the popular initiative).
The Solicitor-General noted that the core problem – that is, the problem of “quick and fundamental” amendments to a Constitution effectively eviscerating constitutionalism itself – was specifically recognised during the framing of the 2010 Constitution, and it was solved through the drafting of Articles 255 and 257. Where an amendment to a core feature (i.e., the basic structure, taken in a non-technical sense) was sought to be made, Articles 255 (that listed these core features) and 257 would kick in, which required a detailed process of public participation and – eventually – a referendum. In other words, the Solicitor-General argued that Article 255 and 257 were doing the same work that a basic structure doctrine was otherwise meant to do: that is, protect a Constitution’s core identity from majoritarian abrogation. The Kenyan Constitution did have a basic structure; it was contained in Article 255; and the procedure for its amendment was set out in Article 257.
The theoretical gloss upon this argument was put by George Oraro SC, who argued that what the High Court defined as “primary constituent power” – i.e., the power of creation (or re-creation of a Constitution, as opposed to simple amendment) had been textualised within the Constitution itself, through Articles 255 and 257. Thus, when the Kenyan Constitution stated that for amending certain parts (set out under Article 255), the popular initiative process of public participation and referendum (under Article 257) had to be followed, it was effectively providing an internal, constitutional route for the exercise of primary constituent power. And both the Solicitor-General and Oraro SC noted that with this two-track procedure of amendment, which reflected the exercise of primary constituent power, there was no need of a basic structure doctrine, as the two were effectively meant to do the same thing.
Echoes of this argument were made by various counsel through the day. Counsel for the National Assembly specifically argued, for example, that the basic structure doctrine – as it judicially originated in India – was not meant to be a limitation on constitutional amendments per se, but on parliamentary monopoly over constitutional amendments (an argument repeated by counsel for the Senate as well as counsel for the 74th Respondent). Where Parliamentary monopoly had already been taken away by the constitutional text – and indeed, taken away in favour of direct participation by the people – there could be no place for the basic structure doctrine.
One notes a subtle – but unmistakable – shift in the Appellants’ arguments from the Court of Appeal (and indeed, in response to the Court of Appeal’s judgment(s)). In the Court of Appeal, it was straightforwardly argued that Articles 255 – 257 provided a self-contained code that explicitly contemplated the amendment of every provision of the Constitution; now, it was argued that conceptually, Articles 255 – 257 were encoding primary constituent power (or something like it). This shift is expressed most clearly in Oraro SC’s argument that amendment procedures in a Constitution are best understood upon a spectrum; and – on this spectrum – the closer that an amendment process is to the exercise of primary constituent power in its design, the less scope should there be for judicial intervention via the basic structure doctrine.
I want to use this idea of the spectrum as the springboard for a few brief comments.
I think Oraro SC’s insight that amendment procedures are best understood along a spectrum that goes from Parliamentary monopoly at one end (India) towards primary constituent power on the other, is an important one. However – and this is crucial – in exactly the same way, the basic structure doctrine is also best understood along a spectrum, a spectrum that goes in precisely the opposite direction. The particular form that a basic structure doctrine takes in a particular jurisdiction is directly responsive to where, on the spectrum, that jurisdiction’s amendment procedures lie. So, in a jurisdiction like India, where there exists parliamentary monopoly over the amendment process, the basic structure doctrine takes a thick, substantive form, and is effectively a judicial veto over amendments (because that is the only way to protect constitutional identity from evisceration). On the other hand, in a jurisdiction like Kenya, where the amendment process creates space for the People, the basic structure doctrine takes a thin, procedural form, and the judiciary no longer exercises a veto over amendments. This was the fundamental point that – in my view – the High Court correctly grasped when it crafted a doctrine of the basic structure that was radically different from Kesavananda Bharati, precisely because the Indian and Kenyan Constitutions were at different places along the spectrum.
If we understand this, we are also in a position to re-formulate the argument made by counsel for the Senate and for the National Assembly. Thus, it is perhaps not entirely accurate to argue that the basic structure doctrine is limited to curtailing parliamentary monopoly over amendments. It is more accurate to say that the basic structure doctrine in its thick, substantive, judicial veto form is limited to curtailing parliamentary monopoly over amendments. However, as the judgments of the High Court and the Court of Appeal show, that is not the only basic structure doctrine that is on offer. The basic structure doctrine can take a form that is applicable to a Constitution where the amendment process incorporates elements of participation and democracy. This form will be thinner, it will be procedural, and the judiciary will take a more backstage role – exactly the features of the doctrine that the High Court did evolve (note that – contrary to Oraro SC’s submissions – this is not the first time this has happened. The basic structure doctrine in Bangladesh evolved at a time when the amendment process did provide for a referendum).
The Popular Initiative
The Appellants’ arguments on the popular initiative – and the question of whether the President could be involved in the popular initiative – were more familiar and straightforward. Textually, the Appellants (and their supporting Respondents) argued that there was no express bar upon the President’s involvement in the popular initiative process. Structurally, they argued that much like the President did not lose their other constitutionally guaranteed rights on becoming President (such as the right to vote), there was no justification for denying them the right to political participation through involvement in the popular initiative. Historically, they argued that Article 257 – the popular initiative – was meant to curb Parliamentary monopoly over the amendment process. Purposively, they argued that Article 257 was meant to address situations where a President who had been elected on a platform of constitutional reform was stymied by a hostile or recalcitrant Parliament. On a combination of all these arguments, they therefore submitted that Article 257(1) ought to be interpreted liberally: that is, the words “an amendment to this Constitution may be proposed by popular initiative” should be read to mean “an amendment to this Constitution may be proposed by any person by popular initiative. . .”
Readers will note that these are – more or less – the arguments that were made before the Court of Appeal, and have been discussed in previous posts. As I have argued earlier, the interpretation of Article 257 depends, ultimately, upon the interpretation of a constitutional silence. Article 257 neither permits nor prohibits Presidential involvement in the popular initiative. The question, however, is whether Presidential involvement is consistent with a provision that seeks to encode bottom-up direct democracy as a method of constitutional amendment. In other words – and there is an interesting tension here between the Appellants’ arguments on Presidential involvement on the one hand, and their argument that Article 257 encodes primary constituent power on the other – will the political agency that Article 257 seeks to provide to the People be fatally undermined by allowing the process to be taken over by the State’s most powerful public official? If the answer to that is “yes”, then the structural argument falls away; and as to the historical and purposive arguments, it is equally plausible to argue that a recalcitrant Parliament standing in the way of the President is precisely the point: the very purpose of separation of powers – and of distributing power among different branches of government as opposed to concentrating them in one – is to prevent unilateral decisions, especially on matters as significant as constitutional reforms of basic principles.
It is also perhaps important to flag arguments on the issue of whether different referendum questions could be lumped together into an omnibus bill, whether different questions would have to be put separately to the People (the High Court judgment), or whether the “unity of theme” approach should apply (Court of Appeal judgment). Other than the familiar, Oraro SC made the (I believe) new argument that prescribing how the referendum should be carried out wasn’t a task for the judiciary at all; rather, the issue would have to be governed by rules prescribed by Parliament, and by legislation (in this case, the Elections Act). However, Oraro SC also went on to argue that the Court could step in if the referendum was carried out in contravention of the Constitution. This – in my submission – potentially cuts out the legs from under the argument, because the import of the High Court and Court of Appeal judgments is precisely that a referendum in which disparate issues are shoe-horned into a straight up-down vote is unconstitutional. The before/after distinction, therefore, falls away.
The IEBC and the Quorum
The Independent Electoral and Boundaries Commission addressed submissions at some length on the question of whether or not the IEBC had quorum to carry out the BBI process. As in the Court of Appeal, the argument turned on a technical point about the consequences of a judgment striking down a legal provision, and its operation in rem (i.e., against the world at large). In brief, the IEBC argued that at the time the BBI case was being heard in the High Court and in the Court of Appeal, a prior judgment of the High Court had already struck down Sections 5 and 7 in the Second Schedule of the IEBC Act (which had altered the quorum requirements of the IEBC). The effect of this striking down – the IEBC argued – meant that these amendment provisions were gone altogether, and the previous provisions – which they had replaced – were also gone. Thus, there was no law governing the question of quorum anymore, and the position reverted to the default under the Constitution (see Article 250(1)), which was a quorum of three (this was fulfilled).
While the Court of Appeal judgment(s) addressed this point at some length, I believe one important addition to the discussion is the idea of a constitutional statute. Certain constitutional rights cannot be implemented directly, but need an institutional framework for effective implementation. A classic example is the right to vote, which is meaningless without an independent election commission. A constitutional statute is a statute that creates the institutional framework that is necessary to implement a constitutional right. Now, the crucial point is this: as long as a constitutional statute has not been enacted, the State is arguably in breach of its positive obligation to fulfil constitutional rights; but also, there is no real remedy, as the Court cannot force the State to legislate. However, once a constitutional statute has been enacted, there is arguably a bar on the State from then affirmatively going back to the pre-statute position where the right in question was unprotected (think of it like the principle of non-retrogression): because to do so would be a judicially reviewable breach of the State’s constitutional obligations. To take an example: having passed a voting law and set up an independent election commission, it would then be unconstitutional for the State to repeal the law and erase the Commission altogether (unless it proposed an equally efficacious statutory framework for fulfilling the right to vote).
I think that similar logic applies to the IEBC issue. If the Appellants’ arguments are to be accepted, then the consequence of a judicial striking down of amendments to the IEBC Act is not simply that the amendments are gone, but that the statutory regulation of that sphere (in this case, the quorum requirements for the IEBC to function) is gone altogether, sending us back to a situation where no legislative framework holds the field. For the reasons I have advanced above, I think that a better route is the route taken by the High Court and the Court of Appeal.
Towards the end of the day’s hearing, James Orengo SC noted that once the People had clearly established the route by which they wanted to enact amendments to the Constitution, the Court should be slow to interfere; and doing so might “prompt Kenyans to find other paths to reach their desired goals.” This formulation, in my view, represents the fundamental wedge in this case. Orengo SC’s critique – which he termed as judicial usurpation – would be undoubtedly accurate if the High Court and the Court of Appeal had actually “usurped” the power of amendment – i.e. established a judicial veto over constitutional amendments, based on their substantive content. However, it is questionable whether the High Court and the Court of Appeal did that. Both Courts were fairly clear that even the basic structure of the Constitution is amendable, but that conceptually, the procedure for amending it and for altering constitutional identity itself – the exercise of primary constituent power – has to be found outside the Constitution, and not within it. That process was anchored (by both Courts) in the re-creation of the conditions under which the Constitution was enacted: i.e., public participation in a deep sense, going beyond what is provided under Article 257.
It will now be interesting to see how the Respondents argue these points in the coming two days.
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Moving to the Metropole: Migration as Revolution
In an act that should be seen as revolutionary, Africans are moving to the centre to benefit from the resources that continue to be extracted from their continent.
When African students and other black persons escaping Ukraine at the start of the Ukraine-Russia conflict were being ejected from exiting transport (trains and busses) and denied entry into neighbouring Poland, many Africans were enraged with the shameless display of racism. One of these Africans was a middle-aged man from Congo—must have been a graduate student—only recently settled in Germany. Seated inside a café at the Berlin central train station with five of his German and British friends, he exploded: “One wonders how they built all these things? From where did you get all this money? Look where we are, this Hauptbahnof [main train station] must have consumed a fortune. The vehicles you make? No way!” His monologue lasted a while as his friends listened either in agreement or disbelief: “This is our money,” he went on. “This is why you never stop these civil wars on the continent only to treat us like sub-humans. But we will not stop coming, whatever the cost!” he declared. His voice sounded austere, choked with emotion. None of his friends volunteered an immediate response. Then one said, this Ukraine situation is embarrassing.
While the angry tirade was sparked by the treatment of Africans trying to escape a war zone, clearly, this man had thought about all this stuff for some time. He must have been educated or observant enough to make the connections between the extraction back home in the DRC, the endless violent wars, the resources in Europe (as coming from his home), and the racist treatment of his kindred who otherwise deserve some respect for sustaining the beautiful lifestyles and infrastructures of the western world. Had he listened to Mallence Bart-Williams’ viral TEDx Talk? The story of this Congolese man, whom I will call Tshibumba Matulu (after the painter Tshibumba Matulu that Dutch anthropologist, Johannes Fabian writes about in Remembering the Present) is the story of “the metropole and the periphery” that dependency theorists Samir Amin, Immanuel Wallerstein and Andre Gunder Frank developed in the 1970s and 1980s. The last line of his vitriol is interesting enough in the sense that now, Africans are seeking to see the world as one whole and thus determined to move to the centre—follow up on and seek to enjoy their resources—at whatever cost. Indeed, despite the innumerable roadblocks (immigration laws, expensive and convoluted visa processes, slave traders in the Maghreb, drowning in the Mediterranean, rank racism, and Islamophobia in the western world), Africans are moving to the centre, to the metropole, en masse. They are determined to follow up on their resources.
This is the story of both the open and disguised violence of neoliberalism, where Africa is heavily mined on the cheap, exploited through unequal exchange, climate/conservation colonialism, with the proceeds coming from African human and natural resources being stolen through inexplicable claims of value addition. This point of view has been recently, succinctly and loudly expressed by Italian Prime Minister Giorgia Meloni in her fight with French President Emmanuel Macron over immigration policies in Europe. Known for her anti-immigrant policies, Meloni’s (selfish) position is that if the French stopped stealing resources from 14 African countries through the clearly colonial and extortionist CFA, Africans would not be forced to make the dangerous journeys to Europe (where, by implication, they come to follow up on their resources, which are violently extracted leaving behind absolute poverty and suffering). In that viral clip doing the rounds across the globe, Meloni concludes that the solution to stop Africans from moving from their country to Europe is to leave them alone and have them receive the full benefit of their God-given resources:
So, the solution is not to take Africans and bring them to Europe, the solution is to free Africa from certain Europeans [especially France] who exploit it and allow these people to live off what they have.
While this message seemed directed at the French, the spread of (both violent and structural) capitalism across the African continent is real and threatening. With the collapse of the African economies about 30 years ago (via structural adjustment programmes), where foreign-owned companies returned under the neoliberal order and took over Africa’s major resources or the pillars upon which these economies stood—mineral resources (gold, oil, coffee, diamonds), banking, telecommunications, selling of agricultural products which used to be a function of cooperatives and direct government help—the continent has been left in a clear condition of morbidity. The bold choice, which I argue should be seen as revolutionary, is to move to the centre and demand the benefits of the resources that have been endlessly stolen from the continent, violently and through disguised extractivist structures.
Being a Congolese from Goma, Tshibumba Matulu must have witnessed the scramble for Congolese resources by the rich and mighty of the western world very up-close and personal—Dan Gertler International (DGI), Glencore Plc. and Alain Goetz, all of whom have a strong foothold in the country’s mining sector. These multinational companies own almost all the mining sites in the DRC, and have been implicated in the unending violence in the country, which is connected to the ways in which resources are mined. Take South Sudan as the other example where Glencore has a strong foothold in South Sudanese oil. In early November 2022, Glencore Plc. executives were found guilty of bribing the South Sudanese leadership—starting just four weeks after the country’s independence—as “they sought to profit from political turmoil . . . they inserted themselves into government-to-government deals that had been negotiated at preferential rates”. The Africa Progress Panel estimated that in a period of two years (2010-2012), DRC lost US$1.3 billion in asset sales to DGI. A 2021 study showed that DRC risked losing US$3.71 billion to controversial Israeli businessman Dan Gertler. This is a lot of money—which ends up in Israel where Gertler is one of the richest men and has been controversially implicated in a thousand scandals in Congo. To understand the fact that modern extraction follows a colonial model, one has to appreciate the fact that colonialism’s extraction was and is always outsourced to corporations. King Leopold operated in his individual capacity as a businessman, using his loot to build estates, infrastructures and palaces in Belgium (and not on the African continent). That an independent businessman, Dan Gertler, would promise guns to a government and actually deliver on his promise exposes the ways in which governments in the west outsource businessmen to colonise Africa on their behalf.
These multinational companies own almost all the mining sites in the DRC, and have been implicated in the unending violence in the country.
Dependency theory so succinctly exposed the roots and execution of underdevelopment in Black Africa, which is, in brief, resources being extracted on the cheap from the periphery (Africa), to be moved and generate more value in the metropole. If these resources ever come back to the continent (Latin America or Africa), they return more expensively. In this periphery-metropole dichotomy, endless capitalist exploitation (which mostly thrives on violence) not only depletes resources and opportunities at the periphery, but also makes life unliveable and unbearable. It then enacts tougher controls to keep the peoples of the periphery at the periphery so that they do not move to the metropole and overwhelm its amenities. This is why African journeys to the metropole are not only dangerous, but are also defined by more drama that tends to generate an incredible amount of grim news broadcasts. Dependency theory does not explicitly follow up on the revolutionary journeys where the exploited—like Tshibumba Matulu—painstakingly seek the benefits of their resources in the metropole. This is perhaps because it pursued another route out of this colonial conundrum, which was to de-link the metropole from the periphery.
Capitalism’s violence, revolutionary journeys
Transiting through airports in Dubai or Doha, one will encounter East African languages, especially Kiswahili and Luganda. Manning a counter in twos or threes, staff tend to speak to each other in their languages. While duty stations may not be allocated depending on the mutual native linguistic intelligibility between workers, since all speak English, somehow, workers from the same Great Lakes linguistic community find themselves together. That the numbers of labour migrants moving to the Middle East have soared over the past years is not just testament to the availability of job opportunities in the Middle East, but also to the dire conditions in which they live in their countries—conditions made difficult by the capitalist neoliberal reforms of the 1980s, and in some cases by conflict (especially in Northern Uganda, Karamoja, Turkana areas, South Sudan and Somalia). Middle Eastern salaries are not the greatest attraction as they range between US$600 and US$900 depending on seniority (far much less for domestic work). But that the same amounts cannot be earned back home speaks more to the dire conditions at home.
Data from the Uganda Ministry of Gender, Labour and Social Development published in the Daily Monitor, indicates that for the last six years (2016-2022), an average of 24,086 Ugandans left the country annually in search of employment, especially in the Middle East. What makes conditions so hostile in the Great Lakes Region? Besides Somalia and Central African Republic—where there is outright violence—why is the scale of movement of young people in particular so high in the Great Lakes region? It is the ravages of both internal capitalism (by the petty bourgeoisies) and foreign capital moving from South Africa northwards, but also coming from Europe and North America—and China exploiting the neoliberal environment. This is evident in cases of land grabbing, forced evictions, refugee crises caused by resource wars, especially in DRC and South Sudan, and the terrible business environment in the region.
Dependency theory does not explicitly follow up on the revolutionary journeys where the exploited painstakingly seek the benefits of their resources in the metropole.
Theoretically and practically, without the violence of the state and other related state actors, it is difficult for capitalism to reproduce itself. States do not only set the conditions under which extraction occurs (such as banking regimes, neoliberal regimes), but they are also ready to commit violence on the exploited. In Uganda, cases of land grabbing by local capitalists have made land ownership and agriculture difficult. In other cases, collusion between the state and foreign capitalists to evict peasants off their lands is causing first, rural urban-migration, and then journeys abroad. Among the most memorable cases is that of the 2001 evictions in Mubende where the German coffee company Neumann Gruppe used outright violence (with the help of the state), including shooting, burning houses and animals, and maiming people to create way for a coffee plantation. Over 2,000 families remain destitute and are yet to find justice. Faced with mass unemployment, extortionist banking regimes with high interest rates that have stymied creativity and made business difficult across East Africa, many young people struggle to start thriving businesses.
Violent evictions have also taken place in Kenya and Tanzania to create way for capitalist expansion or capitalist ostentation (Franz Fanon warned that political elites would turn the continent into an entertainment centre for foreign capitalists). This is the story in Samburu where evictions have taken place to create way for American charities. It is the story of the green colonialism that led to the Ogiek and Maasai evictions from the Mau Forest in the name of conservation. Guillaume Blanc’s recently published book, The Invention of Green Colonialism, demonstrates how the rhetoric of conservation (by colonially founded organisations including UNESCO, WWF, IUCN) perpetuates a colonial model of conservation that privileges animals and plants over humans. While capitalists in Europe and North America—consuming endlessly—have destroyed nature, they have maintained a mythical, fictionalised Eden in Africa, insisting that peasants, who have developed ways of coexisting with nature, who eat very little meat, have neither cars, nor computers nor smartphones, are a danger to the environment. They are evicted from huge swathes of land that are then reserved for white people to hunt and gaze at wild animals.
Away from the forests and the plains, the poor are also being “cleansed” from the capital cities. The 2021 Mukuru Kwa Njega eviction in Nairobi that left 40,000 people homeless is etched in the memories of Kenyans. In what Mwaura Mwangi aptly termed “Demolition Colonialism”, thousands of poor Nairobians have had their houses demolished so that the rich can enjoy easy transit. This is not anti-development position, but rather a reading that seeks to recognise the rights of the poor, and make visible the history of slums in major cities across Africa.
Theoretically and practically, without the violence of the state and other related state actors, it is difficult for capitalism to reproduce itself.
Then come the wars in the DRC, Somalia, CAR, and South Sudan—a product of business dealings by multinationals including Glencore and CNOOC, among others— that have led to an increase in refugees numbers, now reaching 2.3 million people according to UNHCR. In his book Saviours and Survivors, Mahmood Mamdani implicates CNOOC and ExxonMobil in protecting oil wells using different rebel groups in the Sudan-South Sudan conflict. The end product of these clandestine oil dealings are the over 1.5 million refugees hosted in Uganda, making it the country with the largest number of refugees in the world. The influx of people escaping resource-related conflicts has overwhelmed resources in the Great Lakes region. And while many of the refugees will stay in the region, many others are making the journey to the Middle East, to Europe and to North America.
With all this aggressive capitalist expansion manifesting in different forms, the African in the Great Lakes (and other places on the continent) is left with no choice but to make the journey to Europe and to North America. I want to read these journeys not just as migration, but as revolution. They might seem puny, unorganised and migrating out of desperate need, but Africans are moving to the centre to benefit from the resources that continue to be extracted from their continent. This is how the extractors perceive these journeys—not as migration, but as revolution—which explains why there are so many roadblocks along the way.
The Campaign that Remembered Nothing and Forgot Nothing
Once a master of coalition building, Raila Odinga killed his own party and brand, handed over his backyard to William Ruto, threw in his lot with Uhuru Kenyatta, ended up being branded a “state project”, and lost.
The Original sin
A seasoned Nairobi politician, Timothy Wanyonyi had cut a niche for himself in the Nairobi governor’s race that was filled with a dozen candidates who had up to that point not quite captured the imagination of Nairobians. Some candidates were facing questions over their academic qualifications while others were without a well-defined public profile. In that field Wanyonyi, an experienced Nairobi politician, stood out. On 19th April, the Westlands MP’s campaign team was canvasing for him in Kawangware. They had sent pictures and videos to news teams seeking coverage. But that evening their candidate would receive a phone call to attend a meeting at State House Nairobi that would put an end to his campaign. Before Tim made his way to State House, insiders around President Uhuru Kenyatta told reporters that Wanyonyi was out of the Nairobi governor’s race.
Wanyonyi’s rallying call “Si Mimi, ni Sisi”—a spin on US Senator Bernie Sanders’ “Not me. Us” 2020 presidential campaign slogan—distinguished him as a candidate who understood the anxieties of Nairobians. “They were looking for someone who would see the city as a home first, before seeing it as a business centre,” one of his political consultants told me. But the Azimio coalition to which Wanyonyi’s ODM party belonged was very broad, with several centres of power that didn’t take into account—or maybe didn’t care about— Nairobi’s political landscape. Wanyonyi’s candidacy was hastily sacrificed at the altar of the coalition’s politics. Former President Uhuru Kenyatta, the coalition’s chairman, had prevailed on Raila Odinga, its presidential candidate, to essentially leave Nairobi to Kenyatta’s Jubilee Party in exchange for ODM picking the presidential candidate.
That was the only consideration on the table.
However, it was a miscalculation by the coalition. Azimio failed to appreciate the complex matrix that is a presidential election in Kenya. While the top ticket affects the races downstream, it can be argued that the reverse is also true. It is ironic that Raila Odinga, a power broker and a master of coalition building who was running for presidency for the fifth time, was choosing to ignore these principles. His own ascension in politics had been based on building a machine—ODM—that he used carefully during every election cycle. Yet in this election he was killing his own party and brand. The Azimio La Umoja coalition party was built as a party of parties that would be the vehicle Raila would use to contest the presidency. However, the constituent parties were free to sponsor parliamentary candidates. It sounded like a good idea on paper but it created friction as the parties found themselves in competition everywhere. To keep Azimio from fracturing both itself and its votes, the idea of “zoning”—having weaker candidates step down for stronger ones, essentially carving out exclusive zones for parties—gained traction, and would itself lead to major fall-outs, even after it was adopted as official Azimio policy in June.
However, beyond the zoning controversy, Wanyonyi’s candidacy served as a marker for a key block of Odinga voters—the Luhya—assuring them of their place within the Azimio coalition. Luhya voters have been Odinga’s insurance policy during his last three presidential runs. With Nyanza and the four western Kenya counties of Kakamega, Bungoma, Vihiga and Busia in his back pocket, he would be free to pick up other regions. Odinga claimed 71 per cent of the Luhya bloc in 2017 but this time, western voters were feeling jittery about the new political arrangements.
There is also another consideration. The Luhya voting bloc in Nairobi is also significant, and Odinga had carried the capital in his previous three presidential runs. The Nairobi electoral map is largely organized around five big groups: the Kikuyu, Luo, Luhya, Kamba, and Kisii. For the ODM party, having a combination of a Luo-Luhya voting bloc in Nairobi has enabled Odinga to take the city and to be a force to reckon with.
However, it appeared that all these factors were of no importance in 2022. So, Tim Wanyonyi was forced out of the race. He protested. Or attempted to. Western Kenya voters were furious, but who cared?
The morning after the State House meeting, a group calling themselves Luhya professionals had strong words for both Odinga and Azimio.
“We refuse to be used as a ladder for other political expediencies whenever there is an election,” Philip Kisia, who was the chairman of this loose “professional group” said during a press conference that paraded the faces of political players from the Luhya community. The community had “irreducible minimum” and would not allow itself to “to be used again this time.” Other speakers at that press conference—including ODM Secretary General Edwin Sifuna—laid claim to what they called the place of the Luhya community in Nairobi. The political relationship between Luhyas and Luos has not been without tensions; in the aftermath of the opposition’s unravelling in the 90s, Michael Kijana Wamalwa and Raila Odinga fought for supremacy within the Ford Kenya party. Wamalwa believed the throne left by Jaramogi Oginga Odinga was his for the taking. However, Odinga’s son, Raila, mounted a challenge for the control of the party, eventually leaving Ford Kenya to build his own party, the National Development Party (NDP). The Luhya-Luo relationship was broken. Luhya sentiment was that, having been faithful to Odinga’s father, it was time for Wamalwa to lead the opposition.
These old political wounds have flared up during every election cycle, and Raila Odinga has worked for decades to reassure the voting bloc and bury the hatchet. This time, however, he was different. He didn’t seem to care about those fragile egos. After the press conference, a strategist in Odinga’s camp wondered aloud, “Who will they [Luhyas] vote for?”
The next 21 days were to be pivotal for Kenya’s presidential election. Azimio moved on and introduced Polycarp Igathe as their candidate for Nairobi. A former deputy governor in Nairobi who had quit just months after taking office, Igathe is well known for his C-suite jobs and intimate links to the Kenyan political elite. His selection, though, played perfectly into the rival Kenya Kwanza coalition’s “hustlers vs dynasties” narrative which sought to frame the 2022 elections as a contest between the political families that have dominated Kenya’s politics and economy since independence. The sons of a former vice president and president respectively, Odinga and Uhuru were branded as dynasties while the then deputy president claimed for himself the title of “hustler”.
These old political wounds have flared up during every election cycle, and Raila Odinga has worked for decades to reassure the voting bloc and bury the hatchet.
But, William Ruto’s side also saw something else in that moment—an opportunity to get a chunk of the important Luhya vote. Ruto first entered into a coalition with Musalia Mudavadi, selling their alliance as a “partnership of equals”, and then followed that up with the offer of a Luhya gubernatorial candidate to Nairobians in the name of Senator Johnson Koskei Sakaja.
Meanwhile, Wanyonyi’s half-brother, the current Speaker of the National Assembly, Moses Wetangula, was a principle in Ruto’s camp. Up to this point, Wetangula had struggled to find a coherent message to sell Ruto’s candidacy to the Luhya nation. But, with his brother being shafted by Azimio, Wetangula saw a political opening; he quickly called a press conference and complained bitterly about the “unfair Odinga” whom he said the Luhya community would not support for “denying their son a ticket to run for the seat of the governor of Nairobi”. His press conference went almost unnoticed and it is not even clear if Azimio took notice of the political significance of Wetangula’s protestations.
Azimio had offered their opponents an inroad into western Kenya politics and Ruto wasted little time trying turn a key Odinga voting bloc. With Sakaja confirmed as the Kenya Kwanza candidate for the Nairobi governor’s race, Wetangula and Kenya Kwanza made Western Kenya a centrepiece of their path to presidency. Tim Wanyonyi was presented as a martyr. The Ford Kenya leader took to all the radio stations, taking calls or sending emissaries, to declare Odinga’s betrayal. In the days and weeks that followed, William Ruto would make a dozen more visits to Luhyaland than his rival, assuring the voters that there would be a central place reserved for them in his administration. In contrast, on a visit to western Kenya, Raila Odinga expressed anger that an opinion poll had shown him trailing Ruto in Bungoma. “He is at nearly 60 per cent and I am at 40 per cent. Shame on you people! Shame on you people! Shame on you!” he told the crowd. He would eventually lose Bungoma and Trans Nzoia to William Ruto.
To be sure, Odinga won western Kenya with 55 per cent of the vote, but William Ruto had 45 per cent, enough to light his path to the presidency. He would repeat the same feat in Nairobi and coast regions, traditionally Odinga strongholds where he would have expected to bag upwards of 60 per cent of the vote. Azimio modelling had put these regions in Raila’s column but Kenya Kwanza took advantage of the mistake-prone Odinga. And wherever Odinga blundered, Ruto mopped up. As Speaker, Wetangula is today the third most powerful man in in the country. Yet just four years ago, he was an Odinga ally who had been stripped off his duties as a minority leader in the Senate by Odinga’s ODM party. At the time he warned that the divorce “would be messy, it would be noisy, it would be unhelpful, it would not be easy, it would have casualties”. It was the first of many political blunders that Odinga would make.
Looking back, Odinga’s 2022 run for the presidency had all the hallmarks of a campaign that didn’t know what it didn’t know; it was filled with assumptions, and sometimes made the wrong judgment calls. By handing over his backyard to Ruto and choosing to ally with President Uhuru Kenyatta, Raila ended up being branded a “state project”.
In 2005, Odinga had used the momentum generated by his successful campaign in a referendum against Mwai Kibaki’s attempt to foist on the country a bastardized version of the constitution negotiated in Bomas to launch early campaigns for his 2007 presidential run. However, this time, as the courts hamstrung his attempt to launch the BBI referendum, Ruto was already off to the races, having begun his presidential campaign three years early.
“He is at nearly 60 per cent and I am at 40 per cent. Shame on you people! Shame on you people! Shame on you!”
With the rejection of constitutional changes, which were found to be deeply unpopular among many Kenyans, Odinga was finally in a strange place, a politician now out of touch, defending an unpopular government, a stranger to his own political base. The failure of BBI as a political tool was really the consequence of Odinga’s and Kenyatta’s inability to understand the ever-changing Kenyan political landscape. Numerous times they just seemed to not know how to deal with the dynamism of William Ruto. He would shape-shift, change the national conversation, and nothing they threw at him seemed to stick, including, corruption allegations. For a politician who created the branding of opponents as his tool, Odinga had finally been branded and it stuck.
In the final day of the campaigns, both camps chose Nairobi to make their final submissions. Azimio chose Kasarani stadium. It was, as expected, full of colour, with a Tanzanian celebrity musician, Diamond Platnumz, brought in to boot. Supporters were treated to rushed speeches by politicians who had somewhere else to be. Azimio concluded its final submission early and the speeches by Odinga and his running mate, Martha Karua, weren’t exactly a rallying call. It was as if they were happy to be put out of their pain as they quickly stepped off the stage and left the stadium. In contrast, Ruto’s final submission was filled with speeches of fury by politicians angered by “state capture” and the “failing economy”. Speaker after speaker roused the audience with their defiant messages. They ended the meeting an hour before the end of IEBC campaign deadline. A video soon appeared online of William Ruto sprinting across the Wilson airport runway to catch a chopper and make it to one final rally in central Kenya before the IEBC’s 6 p.m. campaign deadline.
Pictures of the deputy president on top of a car at dusk in markets in Kiambu were the last images of his campaign to be shared on social media. Ruto won because he wanted the presidency more than Odinga and was willing to work twice as hard as both Odinga and Kenyatta.
Lagos From Its Margins: Everyday Experiences in a Migrant Haven
From its beginnings as a fishing village, Lagos has grown into a large metropolis that attracts migrants seeking opportunity or Internally Displaced Persons fleeing violence.
Lagos, City of Migrants
From its origins as a fishing village in the 1600s, Lagos has urbanised stealthily into a vast metropolis, wielding extensive economic, political and cultural influence on Nigeria and beyond. Migration in search of opportunities has been the major factor responsible for the demographic and spatial growth of the city as Lagos has grown from 60,221 in 1872 to over 23 million people today. The expansion of the city also comes with tensions around indigene-settler dynamics, especially in accessing land, political influence and urban resources. There are also categories of migrants whose status determines if they can lay hold of the “urban advantage” that relocating to a large city offers.
A major impetus to the evolution of modern Lagos is the migration of diverse groups of people from Nigeria’s hinterland and beyond. By the 1800s, waves of migrants (freed slaves) from Brazil and Freetown had made their way to Lagos, while many from Nigeria’s hinterland including the Ekiti, Nupes, Egbas and Ijebus began to settle in ethnic enclaves across the city. In the 1900s, migrant enclaves were based on socio-economic and/or ethnicity status. Hausas (including returnees from the Burma war) settled in Obalende and Agege, while the Ijaw and Itsekiri settled in waterfront communities around Ajegunle and Ijora. International migrant communities include the Togolese, Beninoise and Ghanaian, as well as large communities of Lebanese and Indian migrants. The names and socio-cultural mix in most Lagos communities derive from these historical migrant trajectories.
A study on coordinated migrations found that, as a destination city, Lagos grew 18.6 per cent between 2000 and 2012, with about 96 per cent of the migrants coming from within Nigeria. While migration to Lagos has traditionally been in search of economic opportunities, new classes of migrants have emerged over the last few decades. These are itinerant migrants and internally displaced persons.
Itinerant migrants are those from other areas of Nigeria and West Africa who travel to work in Lagos while keeping their families back home. Mobility cycles can be weekly, monthly or seasonal. Such migrants have no address in Lagos as they often sleep at their work premises or in mosques, saving all their earned income for remittance. They include construction artisans from Benin and Togo who come to Lagos only when they have jobs, farmers from Nigeria’s northern states who come to Lagos to work as casual labourers in between farming seasons (see box), as well as junior staff in government and corporate offices whose income is simply too small to cover the high cost of living in Lagos.
While people from Nigeria’s hinterland continue to arrive in the city in droves, the wave of West African in-migration has ebbed significantly. This is mostly because of the economic challenges Nigeria is currently facing that have crashed the Naira-to-CFA exchange rates. As a result, young men from Togo, Ghana and Benin are finding cities like Dakar and Banjul more attractive than Lagos.
Aliu* aka Mr Bushman, from Sokoto, Age 28
Aliu came to Lagos in 2009 on the back of a cattle truck. His first job was in the market carrying goods for market patrons. He slept in the neighbourhood mosque with other young boys. Over the years, he has done a number of odd jobs including construction work. In 2014, he started to work as a commercial motorcyclist (okada) and later got the opportunity to learn how to repair them. He calls himself an engineer and for the past four years has earned his income exclusively from riding and repairing okada. Even though he can afford to rent a room, he currently lives in a shared shack with seven other migrants.
He makes between N5000 and N8000 weekly and sends most of it to his family through a local transport operator who goes to Sokoto weekly. His wife and three children are in the village, but he would rather send them money than bring them to Lagos. According to him, “The life in Lagos is too hard for women”.
Since he came to Lagos thirteen years ago, Aliu has never spent more than four months away from Sokoto at a time. He stays in Sokoto during the rainy season to farm rice, maize and guinea corn, and has travelled back home to vote every time since he came to Lagos.
The second category of migrants are those who have been displaced from their homesteads in Northern Nigeria by conflict, either Boko Haram insurgency or invasions by Fulani herdsmen. The crises have resulted in the violent destruction of many communities, with hundreds of thousands killed and many more forced to flee. With many who initially settled in camps for Internally Displaced Persons (IDP) dissatisfied with camp conditions, the burden of protracted displacement is now spurring a new wave of IDP migration to urban areas. Even though empirical data on the exact number of displaced persons migrating out of camps to cities is difficult to ascertain, it is obvious that this category of migrants are negotiating their access to the city and its resources in circumstances quite different from those of other categories of migrants.
IDPs as the emerging migrant class in Lagos
According to the United Nations High Commission for Refugees, two of every three internally displaced persons globally are now living in cities. Evidence from Nigeria suggests that many IDPs are migrating to urban areas in search of relative safety and resettlement opportunities, with Lagos estimated to host the highest number of independent IDP migrants in the country. In moving to Lagos, IDPs are shaping the city in a number of ways including appropriating public spaces and accelerating the formation of new settlements.
There are three government-supported IDP camps in the city, with anecdotal evidence pointing to about eighteen informal IDP shack communities across the city’s peri-urban axis. This correlates with studies from other cities that highlight how this category of habitations (as initial shelter solutions for self-settled IDPs) accelerate the formation of new urban informal settlements and spatial agglomerations of poverty and vulnerability.
While people from Nigeria’s hinterland continue to arrive in the city in droves, the wave of West African in-migration has ebbed significantly.
IDPs in Lagos move around a lot. Adamu, who currently lives in Owode Mango—a shack community near the Lagos Free Trade zone—and has been a victim of forced eviction four times said, “As they [government or land owners] get ready to demolish this place and render us homeless again, we will move to another area and live there until they catch up with us.”
In the last ten years, there has been an increase in the number of homeless people on the streets of Lagos—either living under bridges, in public parks or incomplete buildings. Many of them are IDPs who are new migrants, and unable to access the support necessary to ease their entry into the city’s established slums or government IDP camps. Marcus, who came from Adamawa State in 2017 and has been living under the Obalende Bridge for five years, said, “I am still managing, living under the bridge. I won’t do this forever, my life will not end like this under a bridge. I hope to one day return to my home and continue my life”.
Blending in or not: Urban integration strategies
Urban integration can be a real challenge for IDP migrants. Whereas voluntary migrants are often perceived to be legal entrants to the city and so can lay claim to urban resources, the same cannot be said about IDPs. Despite being citizens, and despite Nigeria being a federation, IDPs do not have the same rights as other citizens in many Nigerian cities and constantly face stigmatisation and harassment, which reinforces their penchant for enclaving.
The lack of appropriate documentation and skillsets also denies migrants full entry into the socio-economic system. For example, Rebekah said: “I had my WAEC [Senior Secondary school leaving certificate] results and when Boko Haram burnt our village, our family lost everything including my certificates. But how can I continue my education when I have not been able to get it? I have to do handwork [informal labour] now”. IDP children make up a significant proportion of out-of-school children in Lagos as many are unable to get registered in school simply because of a lack of address.
Most IDPs survive by deploying social capital—especially ethnic and religious ties. IDP ethnic groupings are quite organized; most belong to an ethnic-affiliated group and consider this as particularly beneficial to their resettlement and sense of identity in Lagos. Adamu from Chibok said, “When I come to Lagos in 2017, I come straight to Eleko. My brother [kinsman] help me with house, and he buy food for my family. As I no get work, he teach me okada work wey he dey do.”
The crises have resulted in the violent destruction of many communities, with hundreds of thousands killed and many more forced to flee.
Interestingly, migration to the city can also be good for women as many who were hitherto unemployed due to cultural barriers are now able to work. Mary who fled Benue with her family due to farmer-herder clashes explained, “When we were at home [in Benue], I was assisting my husband with farming, but here in Lagos, I have my own small shop where I sell food. Now I have my own money and my own work.”
Need for targeted interventions for vulnerable Lagosians
“Survival of the fittest” is an everyday maxim in the city of Lagos. For migrants, this is especially true as they are not entitled to any form of structured support from the government. Self-settlement is therefore daunting, especially in light of systemic limiting factors.
Migrants are attracted to big cities based on perceived economic opportunities, and with limited integration, their survival strategies are inevitably changing the spatial configurations of Lagos. While the city government is actively promoting urban renewal, IDP enclaving is creating new slums. Therefore, addressing the contextualised needs of urban migrant groups is a sine qua non for inclusive and sustainable urban development.
“I am still managing, living under the bridge. I won’t do this forever, my life will not end like this under a bridge. I hope to one day return to my home and continue my life”.
There is an established protocol for supporting international refugees. However, the same cannot be said for IDPs who are Nigerian citizens. They do not enjoy structured support outside of camps, and we have seen that camps are not an effective long-term solution to displacement. There is a high rate of IDP mobility to cities like Lagos, which establishes the fact that cities are an integral part of the future of humanitarian crisis. Their current survival strategies are not necessarily harnessing the urban advantage, especially due to lack of official recognition and documentation. It is therefore imperative that humanitarian frameworks take into account the role of cities and also the peculiarities of IDP migrations to them.
Lagos remains a choice destination city and there is therefore need to pay more attention to understanding the patterns, processes and implications of migration into the city. The paucity of migration-related empirical data no doubt inhibits effective planning for economic and social development. Availability of disaggregated migration data will assist the state to develop targeted interventions for the various categories of vulnerable Lagosians. Furthermore, targeted support for migrant groups must leverage existing social networks, especially the organised ethnic and religious groups that migrants lean on for entry into the city and for urban integration.
*All names used in this article are pseudonyms
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