The Commitment to Timely Elections unravels
Its remarkable successes notwithstanding, Somaliland’s democratisation process has been marred by recurrent delay and resultant disputes since its inception more than 20 years ago. Until just a few weeks ago, it looked as though for the first time, Somaliland would be holding its presidential election – due in November 2022 – on time. Following on from the successful and widely praised local council and parliamentary elections of May 2021, the government of President Muse Bihi had consistently confirmed its readiness to hold the polls on schedule. Allocations for the election expenses were made in the 2022 national budget, and the National Electoral Commission (NEC) was tasked with setting up a timeline. The government reiterated its commitment to the international donor community in Nairobi and in return secured financial support for the election.
However, prospects of a timely election were thrown into disarray in late December 2021, when the Somaliland Government started to change course by calling for the “opening of political parties”.
Background: Three Party Limit and derailed Party Licensing Cycle
Article 9 of the Somaliland Constitution limits the number of political parties to three. Arguably, this limits the freedom of association and the political space within the country. But based on historical experience of the first post-independence elections, this limitation is intended to prevent a proliferation of political parties along (sub)clan lines and to ensure that each of the three pursues a wide national base.
According to the original political parties law which governed the local council elections of 2002, three political parties were to be licensed out of so-called “political associations” contesting local council elections every five years. In 2011, a review of Law 14 – which governs the formation and selection of political parties – granted the three political parties a license of ten rather than five years. The logic behind the change was to provide more continuity and to give the three political parties the opportunity to compete in two presidential elections during the decade for which they would be licensed. However, the law did not factor in the recurrent delays in Somaliland’s electoral timetable: To date, the parties (Kulimye, Waddani and UCID), licensed in December 2012, only contested one presidential election in late 2017 (delayed from 2015). The next presidential election is due in November 2022, and the next local council elections are not due until 2026, but the licenses of the current parties expire on 26 December 2022.
A Party Election?
In 2021, the current administration proposed fresh amendments to Law 14 of 2011. These were designed to enable a direct election — not to elect candidates into offices, but only to determine the three political parties to be registered for a ten year period following expiry of the current licenses. The changes also included a clause that was detrimental to the opposition: Existing political parties would become “transitional” and would therefore be barred from competing in any presidential, parliamentary or local council election once the process of registering new political associations and parties was initiated. In effect, the revised version of the law would have “neutralised” the three existing political parties in May 2022.
Parliament passed the proposed amendments in 2021, but the government later changed course. It vetoed the amended law in a letter dated 20 July 2021, but only received by the (newly elected) Parliament on 21 August 2021. The President’s main objection was that the election period for the political parties would have been in conflict with the timeline of the constitutionally mandated presidential election. He requested Parliament to address this conflict between the Constitution and Law 14/2021.
However, sections of the government and some members of Parliament (MPs) continued to push for the implementation of the amended law, arguing that the President failed to reject the bill within the required 21 day period and that it had therefore become law. The call for the application of this controversial version of Law 14 infuriated the opposition parties, who saw their chance to contest in the presidential election thrown in doubt.
Wrangling over the legality of the 2021 amendments of Law 14 continued in the courts. The Supreme Court, in its ruling of 16 January 2022, affirmed the legality of the original Law 14 of 2011. However, the court endorsed one clause from the amended Law 14 of 2021 to enable the direct election of new political parties. Tensions were somewhat eased by the ruling. The leaders of the opposition felt that the court ruling favoured them because it did not accept the key proposed government amendment to Law 14/2011 that would have relegated the political parties to a “transitional” status at the onset of a fresh registration process. Although the court did not explicitly rule on the legality of the supposedly adopted new Law 14 of 2021, the confirmation of Law 14 of 2011 in principle gives the political parties – especially the opposition – a “new lease of life” to compete in the forthcoming presidential election.
Presidential or Political Parties Election first?
Law 14 of 2011 stipulates that the registration process for new political parties begins six months before the polling date[i]. The latter would be on 26 November 2022, one month before the expiration of the parties’ licenses on 26 December 2022[ii]. This would place the two elections in short sequence, starting with the presidential election on 13 November, theoretically followed by the political parties elections 13 days later, on 26 November 2022[iii].
However, statements by the Ministry of Information leave no doubt that the intention remains to select new political parties ahead of (not after) the presidential election, and to let the three newly elected national parties compete in it. The announcement of a new “Political Associations Registration Committee” by President Bihi at the end of January underlines that the government continues to pursue a swift “opening” of the political parties. The technical timelines of this process would inevitably lead to the postponement of the presidential poll.
In effect, this implies that the issue is not only a matter of sequence. Local commentators, legal and electoral experts strongly believe that only one electoral process is technically possible by November 2022.[iv] Prioritizing one election therefore automatically means pushing the second election beyond its constitutional (in the case of the presidential election) or legal (in the case of the parties election) timeline, leading to political crisis.
Meanwhile, the continuing confusion effectively prevents the electoral commission from mobilising the required funds, updating the voter register and preparing a technical process on time. Therefore the lack of clarity and the disagreement on the way forward jeopardizes the chances of realizing one or even both processes by November 2022.
For all sides, but especially for the ruling party Kulmiye and the larger opposition party Waddani, the issue at stake concerns vital political and clan interests. The government’s sudden move to initiate the registration of new political associations has been attributed to recent changes in Somaliland’s domestic political dynamics.[v] Among these is Kulmiye’s unexpectedly poor performance in the combined elections of May 2021[vi], which local observers saw as an indication of voters’ rejection of government policies and performance as well as deepening rifts within the clan coalition carrying the current government[vii]. The situation was exacerbated when Kulmiye narrowly lost the highly contested election of the new Speaker of Parliament, effectively handing control over this key institution to the opposition. Both events are perceived to have led to a less favourable political atmosphere for the ruling party and its chances in the presidential election[viii] – a prospect that has obviously excited the opposition[ix].
Against the background of their disappointment during the 2017 presidential election and in light of their performance in 2021, there is a strong belief among Waddani supporters that their candidate would be able to defeat the incumbent President Bihi in 2022. Therefore, the interpretation among Waddani supporters is that the push for the opening of political parties is a scheme to deny the Waddani candidate any chance of contesting and winning the Presidency[x]. Whether these assumptions are true or not, it is safe to assume that a delay in the election would produce particularly strong opposition to a government term extension from Waddani quarters, raising the spectre of violent confrontation, particularly if the government resorts to physical intimidation to counter protests instead of exercising political tolerance and self-restraint.
The circumstances are particularly sensitive on account of the underlying clan constellation and the assumed formula of “power sharing through rotation” – a concept that does not align easily with electoral democracy. At the centre are the three major Issaq sub-clans: Habar Awal, Habar Je’lo, and Habar Younis, whose capacity to work together and accommodate each other has been essential to securing Somaliland’s long-term stability. The election of Ahmed Silanyo as President in 2010 was seen as a political accommodation of the Haber Je’lo, who believed that their “turn” to hold the highest office of the land had arrived. Similarly, there is an expectation of a Habar Younis to be elected in 2022 (as there was in 2017). Waddani party is the primary political vehicle of the Habar Younis. A second failure of the party/clan to win the Presidency – especially if based on a procedural manoeuvre and a suspected manipulation of the process – would put Somaliland’s democracy under severe stress.
Several scenarios are on the horizon. In the first, the government continues to pursue the process of opening political parties immediately, with the intention to hold the contest over the licensing of political parties before the presidential election. The resources to cover the process are available and it is expected to kick off officially in May 2022. While President Bihi has already appointed the Political Party Registration Committee (RAC) to oversee the vetting of political associations, they are yet to be confirmed by parliament.
In this scenario, the government would hold the political parties’ election before November 2022, capitalising on strong public support for opening the political parties. This would likely split and weaken the opposition parties who would not be able to challenge the popular demand. Following the election, government would likely seek to reach an agreement with the emerging parties on a new election date and an extension of its term based on a technical timeline developed by the NEC. This scenario entails two distinct risks: Either the Guurti, the Upper House of Parliament, endorses a “technical” extension pitting the ruling party Kulmiye against either weakened or entirely new, unfunded and largely unprepared contestants; or, the Guurti – as in the past – affords the President a generous extension by e.g. two more years in office and once again jeopardizes the electoral cycle.
The second scenario is that the process falters and the government does not succeed in its bid to hold the political parties contest before November 2022 due to strong challenges from the opposition and other interested stakeholders. The opposition would likely accuse government of circumventing the election bodies, i.e. the RAC and the National Electoral Commission (NEC), and manipulating their mechanisms to achieve a certain outcome of the process. The opposition and some political aspirants are already referring to the new members of RAC as “partisan”, since four of the seven proposed commissioners are members Kulmiye party. Protracted political deadlock would drag the process out and would “necessitate” an extension of the government’s term by the Guurti. Under these circumstances, the Guurti would adopt such an extension without a prior consensus between the stakeholders. If unmitigated, this would return Somaliland to political crisis comparable to the ones that engulfed the country from 2008 to 2010 and between 2015 and 2017, the two two-year spells that followed the respective term expiries of President Rayale and President Silanyo. Except that in this case, the licenses of the current political parties would expire on 26 December 2022. Without remedy, this would throw the country into a severe and unprecedented constitutional crisis. In the absence of these legally recognized bodies, it would no longer be clear who the legitimate stakeholders for consensus building to resolve this crisis would be. This could further encourage the opposition leaders to threaten establishment of a parallel government in defiance, as other opposition parties have done before.
In the third possible scenario, the party election process falters. However, the government and parties reach a consensus to extend both the term of government and the licenses of the political parties, e.g. for a period of two years. The government term extension would have to be adopted by the Guurti, the parties extension would require an amendment of Law 14 by the parliament. In this scenario, extension of the parties’ licenses would lead the opposition to accept the extension of the government’s term more easily[xi]. In fact, some argue that this could even be a preferred outcome of the crisis for some opposition leaders, as it would be more likely to make Muse Bihi a one-term president and would buy the opposition time and opportunity to build momentum. Early indications are that forging such a “deal” would not be an easy undertaking. The opposition parties’ right to stand in the (delayed) presidential election would certainly be a key point of contention. Needless to say, political actors outside the current trio of existing parties who are preparing to register new associations would passionately oppose such a scenario, since it would deny them the chance to enter the political playing field.
The fourth scenario would be a return to the presidential election timeline as mandated by the constitution. This would require swift consensus between the political parties and the government to postpone the “opening” up of political associations and to extend the licenses of the current parties through yet another amendment of Law 14. Presidential elections would take place – only between the existing political parties – on 13 November 2022. Like the third scenario, such a move would dash the hopes of aspiring political associations and a large section of the public which was generated by the government’s earlier signals towards the opening the party registration process.
Technically, there would also be the (remote) possibility of holding the two processes together, i.e. electing a new President and the future political parties on the same day. However, this option is widely thought to risk serious confusion. Aspiring new political associations would complain of being cut out of the presidential competition, and having nothing to fundraise or build momentum around until the next scheduled elections in 2026. Theoretically, the election could also lead to a “President without party”.
There does not seem to be final clarity on whether the presidential contest will be between the old or new political parties, despite signals towards the opening of political associations. This question will guide whether Somaliland heads into scenario 1 (new parties) or scenarios 3, 4 or 5 (old parties). The prevailing public sentiment and the visible political indications suggest that the country is in scenario 1. However, delays caused by the foreseeable confrontations over the RAC and its process have a strong potential to push it towards scenario 2. Scenarios 3 and 4 would depend on consensus building between the existing political parties and are unlikely to materialise in the absence of significant changes in Somaliland’s political dynamics and landscape. Scenario 5 is a remote possibility.
Reform the Party System?
Since the adoption of the constitution in 2002, calls for reforms to deal with the restriction of political parties have been constant. Today some MPs believe the on-going debate could be an opportunity for broad discussions on the restriction of political parties, and to come up with an enduring solution that prevents the problem from resurfacing every 10 years[xii]. Indeed, there is need to re-think the political party system beyond the immediate challenge. Political observers tend to view the restriction of political parties as undemocratic and in contradiction to the constitutional right to freedom of association[xiii]. What was once conceived as a temporary measure to secure the gradual development of Somaliland’s democracy has in reality allowed three entities to form an oligopoly that controls the political space.
Moreover, it is increasingly clear that the three-party-limit has failed to achieve its stated intention, namely to promote political parties with a broad national base. Instead, all three have strong and identifiable clan allegiances. Political actors tied together in identity-based segments rather than policy-based units are hardly fit to pursue national interests. More so as the political parties as well as the Registration Committee have been overly focussed on the rights and registration of the parties as entities, whilst showing little to no regard to the democratic duties that come with these, especially in a context where only three parties are allowed to compete. As a result, the parties have de facto been owned by a handful of leaders with very little concern for democratic practices within their own structures.
Neither the 2002 nor the 2012 elections of political parties (through local council elections) produced democratic and inclusive political parties with a broad national base as intended by the constitution. Rather than evaluating and rectifying these challenges, Somaliland is now in the midst of repeating the same exercise, expecting a different outcome. In fact, if anything, detaching the political parties election from an actual contest for offices (as in the local elections) is likely to reinforce the problem.
Therefore, regardless of how the current standoff plays out, it will be important for Somaliland to “re-invent” itself in this area. Political parties have been vital to the consensus-based state-building process in Somaliland. They must continue to play this role without holding the country’s political space “hostage” in the long term.
The best hope of overcoming the current electoral preparation challenge and the seemingly perpetual cycle of electoral delays and crisis would be through a return to consensus politics, the remedy to which Somaliland has traditionally turned in moments of fierce political contestation. Somaliland’s political leaders should cooperate to reach a political compromise at the negotiation table. However slim, the opportunity to set a consensual electoral timeline and stage peaceful elections still exists, and should be pursued at all costs.
Somaliland rightly earned praise from both domestic and international observers for holding peaceful and transparent parliamentary and local council elections on 31 May 2021[xiv]. At the time, the international community[xv] and the people of Somaliland commended the President and his administration for organizing the long overdue polls and financing 70%[xvi] of the election operation.
If Somaliland’s political elites were to capitalize on these successes by forging a political consensus on the key challenges to holding the two processes, they would spare the country the grim prospect of acute political tension and possibly even violent confrontation. They would also capitalize on the unique opportunities of the recent spike in international interest in Somaliland and reinforce its distinct political trajectory from Somalia at a time when the latter is still struggling to stage even indirect elections a year after President Farmajo’s electoral term expired. And, last not least, President Bihi would continue to demonstrate the kind of leadership he provided after the opposition’s strong performance in the 2021 elections, allowing Somaliland’s democratic process to continue to thrive. Without doubt, the world is craving for such “rare good news in the troubled Horn of Africa”.[xvii]
This article was published in collaboration with Hbs Horn of Africa.
[ii] According to an MP with legal background, in a press conference held in Hargeisa in January 2022.
[iii] The registration process would begin on 26 May 2022.,
[iv] Phone interview with a member of NEC, Hargeisa, 18 January 2022. According to Local commentators and legal expert on local satellite TVs analysing the court ruling on Jan 16, 2022
[v] Suleiman Ibrahim Hashi, local political analyst, MMTV Somali on 12 January 2022. See: https://youtu.be/-Esa4v_VImc
[vi] International Crisis Group (ICG), 2021: Building on Somaliland’s Successful Elections. Crisis Group Africa Briefing N°174. Nairobi/Brussels, 12 August 2021. https://www.crisisgroup.org/africa/horn-africa/somaliland/b174-building…
[vii] Informal discussion with media people, Hargeisa, 13 December 2021.
[viii] Informal discussion with media people, Hargeisa, 13 December 2021.
[ix] Informal discussion with media people, Hargeisa, 13 December 2021.
[x] Informal discussion a Waddani youth supporter. Hargeisa, 11 January 2022.
[xi] Phone conservation with former MP. Hargeisa, 16 December 2021.
[xiii] Michael Walls (et. al.) 2021: Limited International Election Observation Mission Somaliland House of Representatives and local council elections, 31 May 2021, DPU Consultancy Report. October 2021. See: https://www.ucl.ac.uk/bartlett/development/sites/bartlett_development/f…
[xiv] ICG 2021.
[xvi] Academy for Peace and Development and Institute of Public Policy (APD-IPP) (2021): A Vote for Change: Somaliland’s Two Decades Old Electoral Democracy, May 2021. https://apd-ipp.com/2021/05/24/a-vote-for-change-somalilands-two-decades-old-electoral-democracy/
[xvii] ICG 2021.
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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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