Politics
Colonial Deportation in Context: What Goes Around, Comes Around
10 min read.There are parallels to be drawn between the colonial measures of regulation, control and containment imposed on Africans and those imposed on today’s refugees and migrants.
Brexit Britain’s dismal plan to export its “immigration problem” to Rwanda through the forced deportation of asylum seekers is in some ways redolent of how, more than a century earlier, Kenya Colony dealt with its “native question”. That centred upon how to control the “natives” in a white European colony.
Some of the same buzzwords can be heard again this time around. Morality, betterment, economics, labour, containment, segregation and deterrence. Africans (and migrants of other ethnicities) must be contained in the equivalent of “native” reserves so that states can better control them. Moving them into reserves (aka migrant hostels, barracks, camps or detention centres) is for their own good. They will learn to give up whatever they were doing and labour for the white man (or in Rwanda’s case, industrious black and brown people). They will learn by example to pull themselves up by their bootstraps, as if they had never worked hard before. They will be mighty grateful for the opportunities offered – or they damn well ought to be. Saviours, of whatever colour, will save the lazy “natives” from themselves – or in the case of cross-Channel migrants, from people smugglers. Morally, it is the right thing to do. Civilisation will rub off on them. But whether the deported migrants will be treated as citizens or subjects in their new “home” remains unclear.
Writing in The Times in April, the then Home Secretary Priti Patel, chief architect of the UK-Rwanda deportation scheme, said, “We can provide legal, safe, orderly and controlled ways for people to better their lives, flee oppression, persecution or conflict and enjoy new opportunities” (emphasis mine). This ignores the fact that forced deportation is itself oppressive, and a form of trafficking. The “best interests” argument was regularly used by colonial administrators, in Kenya and in other British colonies, to justify forced removals and other oppressive measures against Africans, such as the Maasai removals and the Talai resettlement (discussed below).
Continuities in the colonial treatment of mobile Africans, and the modern-day treatment of refugees and asylum seekers (both African and other non-whites), are plain to see. Scholars Hanna Brankamp and Patricia Daley write of labourers, migrants and refugees, then and now: “Colonial biopolitics dictated that nonwhite bodies only move at the behest of capital, colonial authorities, and certainly never of their own volition”. Discussing both colonial migrant labourers and post-colonial refugees and migrants, and historical trajectories of migration control, their term “racialized subjects in need of spatial fixation” is a useful one. They draw parallels between measures of regulation, control and containment that are still in vogue today.
The role of Brexit
The goal of ending unfettered immigration to Britain lay at the heart of the Brexit vote in 2016, when a slim majority of British people voted to leave the European Union (EU). Those voters, known as Brexiteers, seem to forget that 47.5 million people did not vote to leave. Though this figure includes 13 million people who did not vote at all, those who voted to stay in the EU are called Remainers. The country formally left the EU in January 2020. But Brexiteers are furious that Brexit has not delivered what they expected, or were promised. In particular, they rage at what they see as out-of-control immigration, and the spectre of “hordes” of young men “of fighting age” from Africa and the Middle East arriving on our beaches. The majority are wrongly assumed to be Muslims, who are believed, in the wake of several terrorist attacks by young Muslim men living in Britain, to pose a terror threat. Immigration, especially by cross-Channel dinghy from France, aided by people smugglers, has soared under successive Tory governments; 28,500 migrants crossed the Channel this way in the past year, treble the figure for the previous 12 months. More than 20,000 people have crossed since the start of 2022. Crossings have continued since the Home Office announced its deportation plan, which indicates that it is not a deterrent. Some 1295 people crossed in one day (22 August), a record for 2022 so far. The fact that the migrants are escorted ashore by Border Force officials, housed in hotels, fed and watered, and “paid” £39 a week, all at taxpayers’ expense, only infuriates Brexiteers more.
“Colonial biopolitics dictated that nonwhite bodies only move at the behest of capital, colonial authorities, and certainly never of their own volition”.
Gloating over this fiasco is the divisive figure of Nigel Farage, an éminence grise obsessed with immigration and the EU, who has never managed to get elected to the British parliament, despite seven attempts. He was, nonetheless, the driving force behind Brexit, when leader of the fringe UKIP (UK Independence Party) and Brexit Party. Farage continues to whip up anti-migrant sentiment on right-wing broadcast channels such as GB News, but also in the pages of serious national newspapers. If one person is single-handedly responsible for the anti-migrant rhetoric, it is Farage. Shamefully, the two final candidates who fought to succeed Boris Johnson as Prime Minister, Rishi Sunak and Liz Truss, parroted Farage in their frantic attempt to appeal to Tory Party members who chose the new PM. As predicted, Truss won. (The British electorate as a whole was not allowed to vote.) At an earlier stage of the contest, all the candidates said they supported the Rwanda deportation plan – despite the fact that several of them are, like Patel and Sunak, the children of immigrants to the UK. (Sunak’s parents were born in Kenya and Tanganyika, Patel’s are from Uganda.)
Fear of a mass invasion by Africans features in much of this rhetoric. Online comments contain hysterical claims that “the whole continent” is headed for Europe. “Most of Africa would prefer to live in Britain”, posted a reader at the Daily Telegraph on 22 June, one example that stands for many. In fact, the top countries of migrants’ origin include non-African countries such as Syria, Afghanistan, Iraq, Albania, Myanmar and Vietnam.
The deportation plan can be seen as the culmination of the Tories’ hostile environment policy towards immigrants, which was first introduced ten years ago. In 2012, the then Home Secretary, Theresa May, announced a strategy aimed at tackling “illegal” immigration by making life so unbearable for certain migrants they would voluntarily choose to leave. May herself used the words “a really hostile environment”. (Ironically, she now criticises the Rwanda deportation policy.) However, the opposition Labour Party first coined the expression in 2007. The then Labour immigration minister Liam Byrne referred to the desirability of creating a “hostile environment” in a consultation document that year, although the policy was not implemented. He has angrily denied May’s claims that Labour invented it.
Migration within colonial Kenya
Switching my focus to Kenya and the deeper historical context of forced migration, many of the internal relocations that took place in colonial Kenya (and the British protectorate that preceded it, before 1920) involved coercing Africans into leaving home to labour for white settlers. They moved seasonally in large numbers. “Squatters had not looked for work; [Lord Delamere] had sent for them, fetching their families and flocks by train”, writes historian John Lonsdale. However, not all displacement was coerced; this denies African and Asian agency, and overlooks all the other reasons why men, and women (often ignored in migration studies), moved as individuals in search of work.
The deportation plan can be seen as the culmination of the Tories’ hostile environment policy towards immigrants, which was first introduced ten years ago.
Norman Leys (a medical doctor and rights activist) reported how many colonial district officers initially refused to comply with demands from settlers and other private employers to use their influence and procure labourers. “Then an agitation began in Nairobi and in London. As a result of that agitation instructions were sent to district officers that, while no compulsion was to be used, ‘moral suasion’ was to be resorted to, chiefs were to be ‘encouraged’ to persuade their people to leave home to work for Europeans.” Then as now, Anglican bishops issued a statement condemning the plan. “We believe that ideally all labour should be voluntary. We recognise that, at present, this is impossible … [But] we are of the opinion that compulsory labour, so long as it is clearly necessary, should be definitely legalised.”
Under colonial vagrancy laws, it even became impossible for Africans who were not in employment to move around the country. The raising of the hut and poll tax also “encouraged” (Leys’ word, he was being ironic) Africans to seek wage labour outside their home areas. Settler estates depended on African labour to function, but recruitment proved difficult. Some settlers resorted to “exceptional violence” in order to get labour, in the words of scholars Bruce Berman and John Lonsdale. “The ferocity and unpredictability of the settler assault on the African population threatened to undermine the whole apparatus of colonial control”. The state had to step in to control labour supply, and did so after World War I when mass forced conscription into the Carrier Corps was seen to have been a “success”. (Some success; 95,000 African porters died.) It was a matter of carrots but more often sticks, as this appalling statement exemplifies:
I always treat my natives the same as I treat my children, I try to be kind to them, and to advise and direct them, but when kindness has no effect you have to do the same as they do in the public schools at home and throughout the empire – cane them. (Lt. Col. J.G. Kirkwood, Legislative Council member, Legco debate, 28 November 1941).
The language of infantilization persists today in the narratives around migrants.
Although the state, including the railway, was the largest single employer in the country at this point, thousands of men moved seasonally between the settler estates and African reserves, where their families tended to remain on the land. But over time, whole families moved to live on settler estates as squatters, and were initially allowed to bring their cattle with them. They grew subsistence crops, while women and children also provided labour to settlers during peak harvest and planting times. By 1931, the number of squatters in the highlands had risen to 113,176, the majority Kikuyu. They occupied one million acres of settler land, some of it land that the Maasai had formerly occupied. Although this arrangement brought some benefits for squatters (for one, it allowed them to expand beyond crowded Kikuyuland, creating a toe-hold that lasts to this day), harsh new laws forced African compliance with government. One of the most hated was the Registration of Natives Ordinance of 1915, which forced all males over the age of 15 to carry a form of identity called the kipande.
Over time, settlers became alarmed about the large number of squatter stock on their land, and fearing the diseases that this stock allegedly carried, began forcing squatters and their stock off farms. Resentment at this was among the issues that sowed the seeds of Mau Mau (aka the Land and Freedom Army). “The squatters saw their economic deprivation as linked to their political subordination and it was these two problems that they hoped to eradicate when they took the oath and swore to support the Mau Mau movement,” wrote Tabitha Kanogo in her ground-breaking book Squatters and the Roots of Mau Mau.
Maasai and other forced moves
Some communities were forcibly moved in their thousands, to become internally displaced in other parts of colonial Kenya. The most infamous forced migrations were the Maasai moves following two treaties or “agreements” made between Maasai leaders and British protectorate officials in 1904 and 1911. The moves were ordered to make way for white settlement, first in the central Rift Valley, later in the highlands of Laikipia. Maasai from certain socio-territorial sections (not the Maasai as a whole) were initially moved into two reserves, one in the north, the other in the south on the border with German territory (later Tanganyika and Tanzania). In 1904, the British promised the Maasai they could keep Laikipia for ever. But only seven years later, under pressure from settlers, they broke their pledge and moved the Maasai again, this time at gunpoint, into an enlarged southern reserve in what is now Narok County.
It is estimated that the Maasai lost up to at least 50 per cent of the territory they had once used, but the figure could be nearer 70 per cent. The losses did not just involve land, but included the loss of good grazing, access to water sources and sacred sites, and the fatal exposure of both humans and livestock to diseases like East Coast fever and malaria, which were unknown in Laikipia in those days. The ripple effects of these events continue to the present day, in agitation by Maasai for the return of lost land or compensation. Neither is likely to materialise, for a variety of reasons.
The language of infantilization persists today in the narratives around migrants.
Fears about Maasai warriors and the assumed threat they posed to Europeans in the early years of colonial rule were remarkably similar to the current rhetoric in Britain, centred on the irrational fear of “hordes of young men of fighting age” arriving on our shores. Not only is their potential (but unproven) violence feared, but also their perceived sexuality – “Lock up your daughters!” is the cry of the anti-migrant Tory right. This is obviously part of a larger racist trope, referred to as the “black peril” in the scholarship on settler colonies, but also prevalent in the USA, especially in the formerly segregated Deep South.
British administrators saw the warriors as a dangerous standing army, which could let rip at any moment. In a discussion of the merits of confining the Maasai to reserves, Protectorate Commissioner Sir Charles Eliot (the equivalent of a governor) wrote to the Foreign Office in 1903: “[Maasai] simplicity, loyalty, and soldierlike qualities inspire a sympathy which makes people forget that a race which regards fighting and raiding as the only occupations for a young man of honour can never be anything but a dangerous race.” He also condemned the warriors’ alleged “immorality”. In fact, as other officials who knew the Maasai better than Eliot were constantly telling him, they had never attacked Europeans and posed no danger. “And they are not likely to,” wrote Deputy Commissioner Frederick Jackson, “so long as they are treated fairly”. On the contrary, several administrators sympathetic to the Maasai feared that racist South African settlers in the Rift Valley might attack the Maasai if they were not physically separated. For these and other reasons, they were forced into reserves.
Today, the Maasai are not alone in their grievance with historical injustices. The Talai clan of Kericho County, part of the Kipsigis community, has for years sought reparations for forced resettlement. The British evicted them in 1934-36 from the Kipsigis Reserve to an allegedly mosquito-infested valley at Gwassi near Lake Victoria, where they stayed, under supervision, until the mid-1950s. They claim to have been moved to make way for tea plantations, some of which are still owned by UK-based multinationals. A group of Talai wrote to Prince William (elder son of King Charles III) in May this year seeking an apology and his support for reparations. The letter says: “We inherited the pain, you inherited the profit.” They hoped for sympathy from Will “because Kenya is special to him”. Earlier appeals to the British government appear to have received no reply.
Some communities were forcibly moved in their thousands, to become internally displaced in other parts of colonial Kenya.
Historians who have researched Talai history, most particularly the role of ritual leaders or orkoiik, say there is in fact no evidence that the Talai were evicted from land that became tea estates. But they were certainly evicted under colonial laws, said one leading scholar, and “unquestionably have a case”. UN human rights rapporteurs investigated the case and found for the Talai in 2021, which the community hailed as a great victory. However, the UN may have “ordered” the British government to apologise and pay compensation, but that does not mean anything will happen. The Tory government has been a tad preoccupied since Prime Minister Boris Johnson was ousted, and a bitter struggle ensued to replace him. And since Prince William has no political power or influence, all he can say is pole sana.
The Rwanda scheme is becoming more bogged down by the day. It recently emerged that British ministers who backed the plan were warned months ago, by the government’s own advisor, that Rwanda tortures and kills political opponents. The government wants to keep these comments in a Foreign Office report secret, partly in order not to offend Rwanda. Media houses, including the BBC, are challenging this. The doomed flights are postponed until after a judicial review of the policy at the High Court, London, which began on 5 September and is expected to last five days. President Paul Kagame has also thrown a spanner in the works by announcing, after pocketing the £120 million down-payment, that Rwanda will only take 200 migrants – a drop in the ocean. Patel and the Home Office she previously headed (she resigned on Monday 5 September, hours after Truss’s victory) made a major mistake by not specifying, in the MoU with Rwanda, how many migrants Britain planned to deport. Some of us suspect that our government never intended to carry out the policy in the first place. It was simply red meat thrown to Brexit voters.
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This article is part of a series on migration and displacement in and from Africa, co-produced by the Elephant and the Heinrich Boll Foundation’s African Migration Hub, which is housed at its new Horn of Africa Office in Nairobi.
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Politics
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 development
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.
Security Concerns
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.
Assessing Readiness
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.
Politics
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.
Enduring myths
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?
Politics
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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This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site every week.
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