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High and Low or Light and Dark: The Illumination of Northern Kenya and the New Digital Divide

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Northern Kenya Enlighten
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High and Low, or Down and Out?

Writing in The East African back in 1997, John Githongo described a visit to Mathare Valley. The tour began with the stone structures bordering Juja Road housing and proceeded to pass through successive strata of wood, iron sheet, and finally composite scrap and plastic houses. The number of changaa dens, incidents of criminal activity, and the flow of effluent and filth increased on the way down, directing Mr Githongo to graphically describe the descending levels of the settlement as a de facto class system.

The same relationship between elevation and socio-economic class also holds across most of the countryside. Remove several geographic zones like the narrow coastal fringe between Malindi and Diani, add the linked variable of distance from the ‘centre’ and we have a spatial equation that accurately predicts the socioeconomic status of most Kenyans. Two factors, altitude and proximity to the capital, account for why the material conditions of the country’s rural dwellers become incrementally meaner as one moves down and away from Nairobi.

This allows us to assume with a reasonable degree of confidence that indicators like economic opportunity, household income, educational standards, access to social services, environmental vulnerability, daily calorie intake, access to electricity, and other factors like insecurity will correlate inversely as one moves away from the center and down the country’s ecological gradient.

For example: we can expect people in Machakos to be better off than those in Mbeere, that farm incomes are likely to be higher around Nyahururu than Siaya; and that households in Trans-Nzoia or Chavakali will be wealthier than those on similar-sized farms in Voi. When altitude is similar, distance from the centre comes into play. This indicates conditions in Vanga should be marginally better than in Kiunga while residents of Wundanyi are most likely better off than those in Marsabit although both are high altitude (2300 meters) settlents.

Two factors, altitude and proximity to the capital, account for why the material conditions of the country’s rural dwellers become incrementally meaner as one moves down and away from Nairobi.

The interactive effect of these variables intensifies upon passing the extended arc demarcating Kenya’s highland-lowland interface. The lowlands are often called ‘Kenya B’ due to their isolation. In Africa, spatial separation was a condition to be avoided at all costs. In many societies, banishment from the group, not execution, was the ultimate punishment. Although Westerners may go to great lengths to seek it out – in Africa, there is no splendour in isolation: spatial separation incubates vulnerability in the face of unpredictable dangers and environmental risk while increasing transaction costs.

Yet this was precisely the sentence meted out to the inhabitants of Kenya’s rangelands at the onset of colonialism. The colonial regime erected administrative and economic barriers that transformed spatial separation into a de jure state of economic seclusion.

It is otherwise logical to assume that lower and less predictable rainfall is the single-most important determinant explaining conditions on both sides of the arc. Insofar as rural productive output is largely a function of rainfall, it forms a co-linear relationship with the altitude variable in our equation. But this was not exactly the case before; higher returns to labor made pastoraists the masters of the precolonial economy. As subsequent developments illustrated, in the regions beyond the zones of rain-fed agriculture, state policy became the more critical factor, adding a third independent variable to the equation.

Kenya’s Sessional Paper No. 10 directed the newly independent government to focus investment in high potential areas. The policy framework predictably widened the socio-economic gap between agricultural and pastoral communities created by decades of colonial era spatial separation. Post-independence policy biases soon morphed into a recipe for social exclusion. The rangelands came to be regarded as economically peripheral to the national interest.

For decades, the ingrained perception that ‘we are high and you are low’ defined the natural status quo.

This structural bifurcation still drives perceptions of the country’s expansive lowland landscapes as a breeding ground for livestock rustlers, bandits, and other anti-progressive forces—even while the tourist industry banks on the images of colourful tribesmen, the north’s dramatic landscapes, and pockets of abundant wildlife. While such conditions came to describe the prevailing state of affairs in the north, this was not always the case.

The colonial regime erected administrative and economic barriers that transformed spatial separation into a de jure state of economic seclusion.

The region’s livestock specialists were the premier risk takers of the pre-colonial era. Domesticated animals were both the main repository of agricultural surplus and regional currency of exchange. As the bankers of the regional economy, like the capitalist elite of our times, they may have been proud, aloof and possessed of strong predatory instincts. But they were not separate and independent of their agricultural neighbors. Rather, access to agricultural produce was also a sine qua non for the emergence of pure pastoralism. Dietary driven demand for carbohydrates in the form of grain and the social status associated with owning livestock linked herders and farmers together. Exchange based on niche production drove the expansion of the trade networks across Kenya’s interior prior to colonization.

The acquisition of cattle and the adoption of herders’ military institutions allowed agriculturalists occupying ecologically stable highland zones to expand territorially. During the latter decades of the 19th century they integrated many Maasai, Samburu, and hunter-gather refugees created by conflicts and environmental crisis, tilting the demographic balance towards the highlands on the eve of European intervention.

The Pax Britannica subsequently froze ethnic identities and short-circuited the dynamics of ecozone symbioses. A century of change conditioned by the altitude-spatial model subsequently inverted the pre-colonial dynamic.

Now the equation is again undergoing change. The discovery of oil in Turkana and Marsabit, the LAPSSET mega-project, and the presence of various extractable resouces are now conditioning the notion that the former Northern Frontier District will be the pivot point for Kenya’s next phase of economic expansion. The region’s proposed contribution to the national economic equation presents a mix of cautionary opportunities and potential dangers for the northerners.

Drivers of Kenya’s Top-Down Development Revisited

Around a decade ago a meeting outside Kinna called ‘the University in the Bush’ brought together a collection of pastoralist political leaders, researchers, and civil society actors. During one of the informal evening sessions on the banks of the Bisanadi River, one of the MPs present summed up the discussion of imminent developments by warning, “capitalism is coming!”

The region’s livestock specialists were the premier risk takers of the pre-colonial era. Domesticated animals were both the main repository of agricultural surplus and regional currency of exchange.

He was referring to the planned infrastructural projects, investment in natural resource exploitation, and the accompanying influx of warm bodies that will swamp local communities. The group commiserated over the prospects of the impending changes overwhelming the region’s distinctive way of life.

During the previous decades Kenya’s top-down development had relegated the region’s pastoralists to the bottom rung of the country’s economic pyramid, but had left them in control of most of their economic resources while reinforcing their cultural autonomy. Now both are under threat.

The baraza on the Bisanadi also saw the penetration of capital as hardening the marginalisation and spatial isolation of the rangelands into the same kind of class system Githongo observed on the slopes of Mathare Valley.

This discussion, it should be noted, took place at a time when the constitutional reform process had generated the unwieldly Bomas draft. The draft constitution became mired in repetitive cycles of partisan obstruction and political revisionism. The problems, however, were eventually sorted out. Kenyans approved a new and more elegant constitutional dispensation, and its provisons for devolution in the form of counties based on Kenya’s original forty-seven districts came into effect following the 2013 national elections.

Even though the county governments are still young and frequently beset with internal wrangling, they have provided a platform for contesting the imposition of developmental schemes and budgetary decisions by the national government and external investors. Kenya’s national elite, in contrast, retain their old school mentality in regard to their sense of entitlement and their central planning mentality.

The prime exhibit of the latter is Vision 2030. Kenya’s blueprint for joining the ranks of emeging economies, is a pre-devolution document that highlights the role of LAPSSET for opening up remote areas of the coast and northern Kenya for development.

LAPSSET is a US$25 billion fantasy scheme drawn up by plannners in Nairobi, and a potentially attractive honey pot for international investors. The original scheme focusing on the Magogoni port and accompanying facilities and infrastructure was first offered to the Qatari royal family as the Roola Project. The exceedingly generous Memorandum of Understanding involved a 30 year B-O-T (build, operate, and turn-over) project tender that even ceded the control of labor hired to build and man the project to the investor. Some 200,000 hectares of prime Tana Delta land were included as a sweetner.

The Pax Britannica subsequently froze ethnic identities and short-circuited the dynamics of ecozone symbioses.

The Roola MoU became a casualty of the 2007 post election violence and Raila Odinga’s inclusion in the new coalition government. The Prime Minister was interested in selling an expanded version of the project that would include, among other things, a network of roads, railways, and pipelines extending into South Sudan and Ethiopia. It also included ‘state of the art’ tourist cities in Lamu and Isiolo and a new international airports. Governments in Asia and Europe and a number of private sector parties expressed their interest in the project.

The Chinese are now funding the new port while other components of the scheme are awaiting external finance. But the prospects of LAPSSET lifting off as planned are diminishing because funding LAPSSET is actually contingent on oil and other forms of energy generation, like the Lamu coal generation plant, wrapped in an investor-friendly package.

As the people of Lamu and Kenya’s north are discovering, the inhabitants of the areas affected are expected to be passive spectators until that time when they will be allowed to queue up for jobs consistent with their skills and educational background. They are also finding out that implementation of constitutional provisions for community land and redressing historical injustices, along with the new bill of rights, have been put on the back burner.

The Energy Boom Conundrum

Many observers believe that oil, renewable energy resources, and extractive industries will unlock the region’s economic potential. Unfortunately, bringing extractive industries and other capital-intense ventures like large-scale agribusiness industries into a region undergoing socioeconomic transition often ends up creating what the French analyst, Alain de Janvry, defined as disarticulated economies. Where de Janvry’s critique focused on the role of large estates in South America, the same functional dualism is emerging in the north and areas of Ethiopia where local households subsidize the external investors by absorbing the cost of maintaining and reproducing the labor force.

During the previous decades Kenya’s top-down development had relegated the region’s pastoralists to the bottom rung of the country’s economic pyramid, but had left them in control of most of their economic resources while reinforcing their cultural autonomy. Now both are under threat.

For many locals, this form of subsidization still may be preferable to hordes of outsiders snapping most of the jobs and small-scale business opportunities that will come with the new investments. In Africa, the dilemma extends to the creation of economic enclaves in general. The unrelenting cycle of conflict and criminality in the Niger delta illustrates the longer term impact of such disarticluated regional economy; the current conflict in Laikipia represents another variation.

The short but convoluted history of the Turkana wind farm is a case study directly relevant to the high and low thesis. The land for the wind farm was procured through an agreement formed between county council and local investors fronting for a consortium of international companies. The shadowy deal was brokered by the MP for Laisamis and reportedly involved ‘bonuses’ for Marsabit’s county councilors that if once attractive now look like a pittance. The 310 MW wind farm and support facilities are constructed on forty thousand hectares but some 125,000 were allocated to the project. The deal by-passed the standard land board review, and there was no formal contract or MOU catering for the interests of residents and local government alike.

The prospect of inexpensive or subsidized lighting for the locals may have compensated for the arrangements shrouded in darkness. But although the Kenya government is legally commited to purchasing the electricity—there is no provision or contract catering to inhabitants’ access to the electricity generated. The same problem followed construction of the Turkwell Dam, where local Turkana and Pokot children study by lantern light while the highpower lines overhead deliver power to downcountry consumers.

The excuse in both of these cases is that the energy producer is contracted to deliver their power to the national grid. The Lake Turkana Wind Power project web page says locals will be able access the power insofar as the electricity contributes to the supply being tapped by the government’s Rural Electrification Authority. In other words, the herders displaced by the project are supposed to take the pens and notebooks provided to local schools by the project’s corporate responsibility programme, and to keep quiet.

LAPSSET is a US$25 billion fantasy scheme drawn up by plannners in Nairobi, and a potentially attractive honey pot for international investors.

The area’s MP reportedly told his disgruntled constituents, ‘if the donkeys make too much noise, predators will come to eat them’.

In the meantime 98 per cent of the County’s inhabitants depend on wood and charcoal for fuel, with attendant environmental consequences. In addition to the loss of community land and the corresponding ecological stress, pastoralist hopes of reaping direct benefits beyond the counties’ statutory share of profits from Kenya’s energy boom are probably a mirage.

Even if Turkana Governor Jospeph Nanok suceeds in his legal battle to up counties’ share of proceeds to 10 per cent, it is naive to think oil will redefine local counties’ developmental trajectory for the better. The likelihood of a national level oil export boom is also not good in light of the reduced long-term value of crude and the billions required to build the requisite export infrastructure. Oil is no longer the black gold of the past. Some observers see oil recovering from the current glut and sustaining prices in the range of $70 per barrel for another two decades; many believe it will continue to slip, and is unlikely to rise above $25 per barrel after 2025.

The age of carbon has peaked and is being dispaced by the new electric economy. Renewable energy sources and power storage technologies transforming the international energy industry have reduced the world’s spending on oil by US$2 trillion over the past decade. The auto industry is another harbinger of things to come. Today’s electric vehicles halve the maintenance costs of petrol and diesel vehicles because their engines and drivetrains use 200 parts where internal combustion engines have 2,000; the expected lifespan of the typical electric car is 800,000 kilometres compared to 250,000 for your average Toyota Probox. And this is just the beginning.

Electrifying the Future

There are several important variables underpinning the shifts we can anticipate during the transition from Kenya’s Vision 2030 to the real world Kenya of the year 2030. The expansion of transport and communication infrastructure will gather speed, attracting a diversified portfolio of external and domestic investment that goes beyond the rent and resource capture focus discussed above. There is no guarantee that socioeconomic conditions in the north will be amenable to such projections. Cultivating an active culture of constitutionalsm is essential if the new legal framework is to translate into adaptive governance—a prerequisite for levelling differentials arising out of a century of high-and-low state policy.

The region’s leaders and brain trust are going to have to take the lead in sorting its internal problems. The formation of the Frontier Counties Development Council (FCDC) is a promising development on this front. It also follows that a more peaceful Horn of Africa region and stabilization of cross-border regions are equally essential for rangeland progress. The expansion of the CEWARN cross-border conflict early warning system and related peace infrastructure initiatives taking root on the ground are also promising developments that will help counter the spatial divide and support more participatory democracy.

They are also finding out that implementation of constitutional provisions for community land and redressing historical injustices, along with the new bill of rights, have been put on the back burner.

There are two other forces that make conventional assumptions about the futurology of northern Kenya a precarious proposition. One is the nation’s unprecedented demographic surge. Rangeland districts hosted the highest birthrates tabulated in the 2009 census and this demographic bulge is driving a socioeconomic de-coupling from the pattern of incremental change on the national scale. The usual measures for alleviating marginal areas’ post independence malaise will not get the job done for the current generation coming of age on the periphery.

Technological change is the real game changer now. But the potential impact of developments in this domain remains problematic, especially for low-tech regions where the digital divide is replacing longstanding spatial and policy-based determinants of inequality. Those who think the often-uncomfortable implications of artificial intelligence, automation, and other avatars of technological efficiency for employment and society in general are limited to the industrial West are sorely deluded.

We are witnessing only the early manifestations of the data-driven technological revolution that include machine learning, cognitive computing, and a range of other more basic technological applications that are reaching into virtually every niche and crevice of economic activity. Technological innovation will be equally critical for enhancing traditional pastoralist livestock production, the management of water, animal health, and conserving the natural resource base. Most importantly are the implications of the information economy and new educational and training methodologies for the unleashing the potential of the human population.

Twenty years after John Githongo’s perceptive observations on the relationship between altitude and class in Kenya, the Digital Divide is the new High and Low. Or, as one sectoral expert recently observed, before the most basic requirement for human existence used to be food and water; now it is food, water, and electricity.

The same problem followed construction of the Turkwell Dam, where local Turkana and Pokot children study by lantern light while the highpower lines overhead deliver power to downcountry consumers.

For the frontier counties, access to electricity is key to harnessing fast moving developments in the field of information and data based technologies. Even the oil industry now employs more data scientists than geologists. The electricity economy is consumer and environmental friendly, increasingly decentralized, and can integrate many different large and small sources of power into highly reliable power grids.

The catch-up strategy for Kenya’s marginalised lowlands and coastal counties will arguably require the overhauling of the rigid education system and remaking it in line with a well-informed curriculum relevant to contemporary issues. But the provision of electricity is the essential enabling factor for the education sector and other local developmental priorities.

If electrifying the rangelands is a test case for the larger region’s process of highland-lowland integration, the current prospects are not encouraging. Kenya Power and Electric Company’s Last Mile Connectivity Project will connect some 312,500 households to the grid, but mainly in peri-urban and other densely populated areas in all counties. European donor funding will help connect another 296,647 households. The company has also subsidized connections for close to 800,000 low-income residents in informal settlements.

Expanding the consumer base and finding markets for the increasing supply is critical for the profitability of the majority state-owned corporation. With new energy generation projects coming on line across the region, the capital-intensive infrastructure for delivering the electricity is a significant constraint. The scale of front-end investment required to expand the national grid partially explains why Nairobi still accounts for 50 per cent of Kenya’s electricity consumption.

The expanding rate of connections is still modest compared to the country’s population growth rate. Kenya has a comprehensive energy sector road map but political interests unfortunately take precedence over technocratic implementation. Supplying outlying regions will be a slow process despite the importance of access to electricity for rectifying historical inequalities dividing the nation.

The absence of meaningful consultation and provisions for at least some local distribution of the power generated are primary reasons why the Lake Turkana Wind Farm is turning out to be a backhanded example of how not to go about closing the gap.

Renewable energy initially seemed to be a win-win proposition, but examples like the Marsabit problem illustrate why its proving more complicated. Technical and economic challenges have dominated the movement towards the planet’s renewable energy future. Local opposition in areas across Europe, the USA, and developing areas now underscore why project planners need to direct equal attention to public attitudes, local benefits, interference with established lifestyles, and impacts on the landscapes affected.

The absence of meaningful consultation and provisions for at least some local distribution of the power generated are primary reasons why the Lake Turkana Wind Farm is turning out to be a backhanded example of how not to go about closing the gap.

The ticket for illuminating much of Africa instead lies with a new crop of creative off-grid options for the region’s low density and scattered population. Methods allowing households to divert money spent on kerosene and candles to purchase solar panels is a major factor behind the spread of innovative start-ups based on a range of adaptive micro-level methods now delivering power to many poorer households.

The problem is not just about catching-up. The former Northern Frontier District, or the New Frontier for Development according to switched-on young northerners, is together with adjacent areas of Ethiopia and South Sudan home to the world’s most diverse collection of indigenous peoples. Empowering these communities will bring a new set of problem-solving energies, social values, and fresh ideas to the region’s stale developmental model with its inherited legacy of class, conflict, marginalization, and social exclusion.

This article appeared in the second issue of The Northerner

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Dr. Goldsmith is an American researcher and writer who has lived in Kenya for over 40 years.

Ideas

Equality, Family and Unpaid Domestic Work: Kenyan High Court Ruling

The judgment of the Kenyan High Court joins a global constitutional conversation of how institutional inequalities within the family may be judicially redressed.

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Equality, Family and Unpaid Domestic Work: Kenyan High Court Ruling
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In an interesting judgment delivered earlier this month, the High Court of Kenya at Nakuru held that the housework and care-work performed by a female spouse (the plaintiff) entitled her to an equal share of the matrimonial property at the time of the dissolution of marriage. The facts of MW v AN were that the parties were married in 1990, separated in 2003, and divorced in 2011. The dispute centred on the fate of a house constructed at Nakuru. While the house was registered in the name of the male spouse (the defendant), the plaintiff argued that she had taken out extensive loans to finance the purchase of the land and the construction of the house. Moreover, despite having a job herself, she had been the sole caregiver in the family. The defendant, for his part, argued that not only had he bought the plot on his own, but had also been providing financial contributions towards the upkeep of his wife.

The High Court of Kenya at Nakuru held that the housework and care-work performed by a female spouse (the plaintiff) entitled her to an equal share of the matrimonial property at the time of the dissolution of marriage.

Justice Mumbua Matheka observed that Section 6(7) of the Matrimonial Property Act of 2013, matrimonial property “vests in the spouses according to the contribution of either spouse towards its question, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved.” In Echaria v Echaria, it had been held by the Court of Appeal that where there was a “substantial but unascertainable contribution” by both parties, a default rule of equal division would apply. The question, of course, turned upon the meaning of the word “contribution”.

In this context, Justice Matheka observed that “contribution” would have to include not only tangible financial contribution, but also the “unseen” contribution of housework and care-work. In paragraph 38, she observed:

This other part of mothering, housekeeping and taking care of the family is more often than not not given any value when it comes to sharing matrimonial property. It is easy for the spouse working away from home and sending money to lay claim to the whole property purchased and developed with that money by the spouse staying at home and taking care of the children and the family. That spouse will be heard to say that the other one was not employed so they contributed nothing. That can no longer be a tenable argument as it is a fact that stay at home parents and in particular women because of our cultural connotations do much more work (house wives) due to the nature of the job . . . hence for a woman in employment who has to balance child bearing and rearing this contribution must be considered. How do we put monetary value to that process where a woman bears the pregnancy, gives birth, and takes care of the babies and where after divorce or separation she takes care of the children single handedly without any help from the father of the children. . . . Should this court take this into consideration when distributing matrimonial property where the husband as in this case is left in the matrimonial home where the wife rents a house to provide shelter for herself and the children? I think it should count, especially where the husband has not supported the raising of the children, has not borne his share of parental responsibility.

Furthermore, this would have to be determined by evidence:

It is time that parties took time to give evidence, sufficient enough to support the value to be placed on the less obvious contribution. It is unfair and unjust for one party to be busy just making their money (the ‘seen’ income) while the other is doing two or three other jobs in the family whose income is ‘unseen’ and then claim this other one did nothing. This attitude is so entrenched we still hear women especially who are housewives say: sifanyi kazi (literally I do not do any work) simply because they do not leave the home to go earn money elsewhere.

Consequently, Justice Matheka held that notwithstanding the fact that the matrimonial property was registered in the name of the husband, the maximum “equality is equity” would apply, and that consequently “the property be valued, sold and each party have 1⁄2 share of the proceeds of the sale.”

Justice Matheka’s judgement is important because of the explicit recognition it gives to “unseen” and unpaid housework, within the context of domestic relationships; as has been well established by now, across the world and across societies, within the institution of the family, the burden of such work is gendered in nature (see, e.g., The Second Shift) – and often, unseen and unpaid domestic work by the female spouse is what “frees up” the male spouse to enter the labour market and engage in the kind of financially remunerative work that, ultimately, results in (for example) matrimonial property being bought with “his” money, and therefore registered in his name. Thus, departures from traditional notions of property are essential in order to do justice in and within the institution of the family.

It is important to contextualise this judgment, both within the framework of Kenyan and comparative law. In Kenya, the default position used to be (as in many other countries) that only financial contributions were to be taken into account in calculating respective shares in the matrimonial property upon dissolution of marriage. Explicitly seeking to change this, the Kenyan Constitution of 2010 contained Article 45(3), which – borrowed from CEDAW – states that, “Parties to a marriage are entitled to equal rights at the time of marriage, during the marriage and at the dissolution of the marriage.” In her book, Equality in Kenya’s 2010 Constitution (2021), Dr Victoria Miyandazi notes that the intention behind Article 45 was, inter alia, to address “harmful practices such as . . . unequal claims to matrimonial property upon divorce.” In Agnes Nanjala Williams vs Jacob Petrus Nicholas Vandergoes, the Court of Appeal directly applied Article 45 between two private parties to mandate an equal division of assets between the spouses, even in the absence of a statutory framework (“horizontal application of rights”).

Justice Matheka’s judgement is important because of the explicit recognition it gives to “unseen” and unpaid housework.

This position, however, was arguably overruled by the Matrimonial Property Act of 2013, which required judges to take into account the relative contributions of the spouses (as indicated above), but also explicitly specified that the word “contributions” included “domestic work, childcare, and companionship.” The Matrimonial Property Act was challenged by the Federation of Woman Lawyers on the basis that the displacement of the 50 per cent rule in favour of “non-monetary contributions” would restore the gendered inequality within marriage, based on the difficulty of calculating non-monetary contributions. This challenge, however, was rejected by the court.

In that context, the judgment in MW v AN is important, as it essentially restores the position of the default equality rule where there is evidence of “non-monetary contribution”, and allays fears that judiciaries that might not have entirely broken out of patriarchal norms will use the vagueness of the statutory clause to devalue housework or care-work.

Furthermore, this is a position that has been advanced by progressive courts across the world. Perhaps the most outstanding example is New Zealand, where the Property Relations Act of 1976 established a presumption of equal sharing at the time of dissolution, and specifically provided that financial contribution was not to be treated as weightier than non-financial contribution. In numerous judgments interpreting the Property Relations Act, the New Zealand courts have interpreted it with a view towards fulfilling the statutory purpose of achieving the “equal status of women in society”, holding, for example, that wherever the provisions of the Act were ambiguous, the default presumption would be in favour of the property being matrimonial/joint (and therefore, subject to equal division).

The judgment in MW v AN is important, as it essentially restores the position of the default equality rule where there is evidence of “non-monetary contribution”.

Indeed, Justice Matheka’s language is also remarkably similar to a 1992 judgment of the Colombian Constitutional Court. In Sentencia No. T-494/1992, the Constitutional Court was considering the eviction of a widow from the matrimonial home; the widow’s non-monetary contributions had not been taken into account in determining whether or not she had a legal interest in the home. The Constitutional Court noted that such a position would have the effect of “invisiblising” domestic work, and deepening inequalities within social relations. The court went on to question the “artificial” distinction between “productive” and “non-productive work”, and noted that refusal to factor in unpaid domestic work would violate the Colombian Constitution’s guarantee of equality and non-discrimination.

The judgment of the Kenyan High Court, thus, joins a global constitutional conversation of how institutional inequalities within the family may be judicially redressed; and it also, I submit, advances the goals of Article 45(3) – itself a fascinating constitutional provision. For these reasons, it deserves careful study by students of comparative constitutional law.

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Ideas

The False Narratives That Stand in the Way of Our Future

Science vs the arts is a false dichotomy. We must intertwine our artistic skills with our scientific insights to invent our future.

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The False Narratives That Stand in the Way of Our Future
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Over the last few years, I have come to understand at least three narratives that some Kenyans use to wish away the contradictions of the Kenyan state. No matter how much such Kenyans are presented with evidence of changing times or with history that gives a different perspective, they will repeat these narratives louder to drown out the other voices.

​Behind all these narratives lies an effort to wish away the fragmentation of the people by the Kenyan state. But, more than that, these narratives are protected by the curriculum of the public schools which does not allow the teaching of the arts, and particularly the teaching of history. Kenyans are thus denied the opportunity to develop their intellectual capacity to understand not just the limitations of the Kenya state, but to understand the reality of the world in the 21st century.

These narratives are: Social issues such as crime, truancy and drug abuse afflict young men due to the neglect of the “boy child” (by whom, it is never clear), which in turn is due to advocacy for girls by Western feminists; Tanzania is communist and Kenya is capitalist; more Kenyan students need to study the sciences because that’s what the job market needs.

The boy child

Kenyans use the narrative of the neglect of the boy child to deflect questions that affect mostly poor young men, such as police brutality against men, the flawed masculinity promoted by the Kenyan male elite, and the culture of rape that is not only sexual but also financial, intellectual and environmental. By avoiding such analysis, we evade acknowledging that although Kenyan men dominate property ownership and positions of power, those men belong to a socio-economic minority.

Not dealing with the interaction between gender and class allows us to cling to the hope that manhood can be a ticket for all Kenyan men to gain same access to the wealth and power enjoyed by the ruling class. The reality is, though, that this model of the state cannot accommodate more than a minority with that much wealth and power. But rather than dismantle this exploitation, Kenyans would rather blame girls. Imagine that. We adults are blaming children for our failure to establish an equitable society.

This distraction of Kenyans from the inequality of the state is further integrated with race through Kenyans’ focus on Western feminism. Ironically though, the goal of Western feminism is exactly that: to silence questions about the Eurocentric global system and instead simply negotiate white women’s place in it. And this argument has been made for decades by scholars like Micere Mugo, Oyeronke Oyewumi, Ifi Amadiume and Amina Mama, while men such as Ousmane Sembene and Thomas Sankara have tied women’s freedom to African freedom as a whole. However, Kenyan education is grossly Eurocentric. Many graduate students have never heard of these names, and what many Kenyans know of feminism is what they read from white American evangelicals, whose thoughts are shared every Sunday on many Kenyan pulpits.

Tanzania

The narrative of communist Tanzania vs. capitalist Kenya is equally twisted, especially when one remembers that the Berlin Wall fell twenty-seven years ago and the Soviet Union collapsed twenty-five years ago. However, holding onto this myth serves a purpose: it helps us avoid asking questions about our country’s internal exploitation and poor foreign policy choices. The narrative also comforts a certain superiority complex that is rooted in eurocentrism. We think we’re better than Tanzanians because we’re richer. However, we forget that the “we” who are richer are a minority of Kenyans, all thanks to tribalism, which enables us to “share” in the wealth of the privileged few in our respective ethnic groups. In tribalist thinking, kumeza mate ndiko kula nyama, to swallow saliva is to eat meat.

We can also avoid the reality that Tanzania may have a point in questioning the Economic Partnership Agreement (EPA) that Kenya has enthusiastically signed with the European Union. Already, there are credible voices, like former president Benjamin Mkapa and scholar Horace Campbell, indicating that the EPA will benefit only the flower industry (whose members include colonial settlers), and will take the rest of Kenya to the cleaners. But instead of us asking whether our own government signed the EPA agreement in the interests of the Kenyan people, it is easier to dismiss Tanzania as “communist” and “cold” towards Kenya. 

We have also not come to terms with the history of Kenya’s anti-African foreign policy choices since independence. In word, Kenya publicly declared opposition to apartheid, but in deed, Kenya did not support the ANC and was, in fact, trading with apartheid South Africa. Tanzania, on the other hand, was a base for the ANC. A similar thing happened with the genocide against the Tutsi in Rwanda. As Tanzania welcomed Rwandan refugees, Kenya was home to the rich génocidaires (President Juvenal Habyarimana’s wife was one of those who fled to Europe through Kenya). At the height of the killings, Kenya sent a planeload of Tutsi refugees back to Rwanda. What happened to those refugees is anyone’s guess.

Education: Science vs. arts

In the war against the arts, the narrative of science vs. the arts deflects responsibility for a crawling economy from the leaders to the people. If graduates are jobless, the narrative implies, it is because the graduates are studying the wrong subjects in school, not because the greed and stupidity of the Kenyan ruling class has been an obstacle to the economy expanding to accommodate all talents and professions. That is why the truth that medical and engineering graduates are not getting employed, and the few who do find work are not getting paid, has not yet entrenched itself in public conversations about careers in the sciences.

The problem is that this narrative against arts education is stuck in the industrial era (yes, the 19th century in the West, not Africa), where the governments and industries expected mass education to produce workers for factories. The world has since moved on to the information age, where the automation of knowledge by computers means that “progress” is determined by access to information. And experts are now talking of a conceptual age where what counts is not only information, but also the ability to use it creatively, otherwise called innovation.

In the war against the arts, the narrative of science vs. the arts deflects responsibility for a crawling economy from the leaders to the people.

The division between arts and sciences is traumatizing, even to the individual learner. I remember our frustration as form five students being forced to choose between sciences and arts. A number of us actually loved mathematics and scored distinctions in O levels, but we were told that if we did mathematics we had to do biology, chemistry or physics, in which we were not interested. Can you imagine what innovations would have come out of my generation had we been allowed to do both arts and science, even at university?

What this means is that the whole science vs. arts narrative is literally useless. And yet, the Jubilee government has entrenched this schism, with the Education Cabinet Secretary and his boss, the Deputy President, attacking arts programmes as irrelevant to the country’s needs. As if that is not bad enough, the proposed new curriculum talks of separating schools into “talent” and “technical” schools.

This country does not need to widen this schism in knowledge but to narrow it, so that our youth learn to combine data and information with creativity, and in so doing, craft solutions at both the macro and micro level. Kenyan students should be able to do mathematics and linguistics, or music and physics, agriculture and fine art, or history of the sciences, if they so wish. But instead of bridging this gap, the government is stuck in the 60s, when it saw science and arts as opposite poles.

Worse, the government is basing this division on the equally archaic idea of the job market that belongs to the days of independence. In those days, the government was so desperate for Africans to fill the posts left behind by colonialists that people were guaranteed jobs even after primary school, and they would rise up the ranks in those careers and then retire. But that era no longer exists. These days, a growing proportion of people are in careers different from the ones for which they were trained, and are likely to have changed jobs at least four times before they retire. The job market is no longer the same. What we need is a critical and creative reflection on what these changing times mean for education.

Dealing with our contradictions

​We Kenyans need to stop hiding behind dated narratives of colonial tribalism and the Cold War and develop the guts to confront the good, the bad and the ugly of our history and our national consciousness. We must not shy away from asking ourselves difficult questions about what colonialism actually did to us, how that colonialism is deeply embedded in the current political culture, and how that exploitation is masculinized and transmitted through the education system. We can get the facts about our oppression from science and the social sciences. But we can only face the accompanying dread and implications for social change through the arts.

Experts are now talking of a conceptual age where what counts is not only information, but also the ability to use it creatively, otherwise called innovation.

We also must realize that the reason successive Kenya governments have deliberately discouraged us from learning the arts, and particularly the history of Kenya and of the African continent, is not because they are concerned with development needs. The political class does not want us to understand the reality that we the people are slaving away to enrich a minority.

The schisms that divide Kenyans from each other along ethnicity and gender, or separate Kenyans from their neighbours, or delude us that our professions have no link to our talents, all serve to prevent us from making connections across time, space and cultures. We understand our realities only with a healthy dose of the arts, and we can only craft solutions by weaving our creativity with the tools of science and all the knowledge available to humankind.

​We must therefore reject these narratives that fragment the Kenyan psyche along gender, ethnicity, religious and professional lines. Let us choose to uproot patriarchy, misogyny and religious bigotry, to understand our continental history, and to intertwine our artistic skills with our scientific insights. Only then can we, as Thomas Sankara said, dare to invent the future.

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I Write What I Like: Steve Biko’s Legacy of Black Consciousness and Anti-Capitalism Revisited

Continuing our look at the life of Steve Biko, Heike Becker writes about two extraordinary events.

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I Write What I Like: Steve Biko’s Legacy of Black Consciousness and Anti-Capitalism Revisited
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In 2015 students at South African universities rose up in a mass revolt. Young women and men born after the end of apartheid in 1994 demanded free education; they forcefully insisted that tuition fees be scrapped, and also that the contents, methodologies and academic teachers reflect the post-apartheid ‘free’ South Africa.

In the new student movements the legacy of Steve Biko, who was murdered by the apartheid regime on 12 September 1977 became important again. Young students regarded Biko’s call to autonomous Black action as still relevant for contemporary South Africa. Black Consciousness philosophy gained significance again when students insisted upon the reform of curricula, which they said conveyed racist and colonialist forms of knowledge and ignored, even scorned African intellectual experience. Calls on black people to first free their own minds, become conscious of their own, and each other’s conditions and work together to change the material conditions of black students have been the guiding principles of the new South African student movements as they were for the generation of the 1970s.

A brush with the police: Biko’s early politicisation

Stephen Bantu (Steve) Biko was born in what is today the Eastern Cape province of South Africa on 18 December 1946. His father worked as a policeman, and later as a clerk in the King William’s Town Native Affairs office. He was also enrolled for legal studies at the University of South Africa (UNISA), the distance-learning university. Steve’s father died suddenly in 1950, when Steve was four years old. His mother subsequently raised the children on her own, working as a cook at a local hospital.

In 1962 Steve started his senior secondary schooling at the famous mission educational insitutiton in the Eastern Cape, Lovedale college, where his elder brother Khaya was already a student. Khaya, who was politically active with the Pan Africanist Congress (PAC), became a major influence on Steve’s introduction to resistance and liberation politics. A few months into Steve’s studies at Lovedale the Biko brothers were taken into custody by the police. Khaya, who was suspected of being involved with Poqo, the armed wing of the PAC, was charged and sentenced to two years imprisonment, with 15 months suspended. Steve was interrogated by the police and though released he was subsequently expelled from the school after only attending it for three months.

Though he was forced to return home he continued going to classes at Lovedale, where he became friends with Barney Pityana, at the time a student at the school. This friendship became significant in the formation of the Black Consciousness movement, and especially the South African Student Organisation (SASO).

Black Consciousness ideology and the formation of SASO

SASO arose out of profound revolts against apartheid and institutional racism, which spread across South African universities from the mid-1960s. In 1968 at Fort Hare, a fairly independent black institution for higher education, students boycotted the installation of the new rector Johannes Marthinus de Wet, a member of the Afrikaner broederbond (a secret society of male white nationalists). Later in the year the university was closed and 23 students, among them Barney Pityana were not allowed to come back. Significantly, a new organisation of student protest arose in the very last days of 1968 when SASO was founded during a meeting, exclusively attended by black students. This event took place at Mariannhill, a Catholic mission west of Durban, and the site of St. Francis College, a coeducational independent secondary school, which was the alma mater of Biko, from which he had matriculated with very good grades in 1965 and subsequently taken up studies at the ‘non-European’ medical school of the University of Natal. Biko became the new organisation’s first President when SASO was officially inaugurated at the Turfloop campus of the University of the North (UNIN) in July of the following year.

The developments that led to the formation of SASO need to be understood in the politics of South Africa’s 1968 moment, a reinvention of the politics of protest. The late 1960s and early 1970s saw the emergence of new repertoires of resistance in student protests. Yet SASO’s formation was also due to the complex relations of black students with the country’s long-existing national student organisation NUSAS (National Union of South African Students). NUSAS, which had been founded in 1924, was open to students of all races.

At the ‘black’ universities which had been established as apartheid institutions in the early 1960s small numbers of students joined NUSAS, and at some institutions battles took place for permission to form autonomous Student Representative Councils (SRC) and to affiliate to NUSAS. Yet there also was frustration about racist tendencies within the student association. At issue was that NUSAS despite its multiracial membership was essentially dominated and controlled by white students.

In 1968 Biko and others thus formed SASO, which for political reasons offered membership to students of all ‘black’ sections of the population, which included those assigned to the apartheid categories of ‘African’, ‘Coloured’ and ‘Indian’. In 1971 the SASO Policy Manifesto set out the Black Consciousness doctrine.

On the organisational level, the SASO activists held that to avoid domination by white ‘liberals’ black people had to organise independently. In 1970 Biko wrote in the SASO Newsletter, suggestively signing as ‘Frank Talk’:

The role of the white liberal in the black man’s history in South Africa is a curious one. Very few black organisations were not under white direction. True to their image, the white liberals always knew what was good for the blacks and told them so…

Nowhere is the arrogance of the liberal ideology demonstrated so well as in their insistence that the problems of the country can only be solved by a bilateral approach involving both black and white. This has, by and large, come to be taken in all seriousness as the modus operandi in South Africa by all those who claim they would like a change in the status quo. Hence the multiracial political organisations and parties and the ‘nonracial’ student organisations, all of which insist on integration not only as an end goal but also as a means.

Black Consciousness as SASO’s official ideology was profoundly influenced by the SASO leadership’s reading of Frantz Fanon, particularly the militant philosopher’s Black Skin, White Masks and the African-American Black Power movement. In the early years the focus was on the psychological empowerment of black people; they believed that black people needed to rid themselves of any sense of racial inferiority, an idea they expressed by popularizing the slogan ‘black is beautiful’. As early as 1971, the SASO leadership discussed proposals to cast off the students-only attitude, including the formation of a Black Workers’ Council (later renamed the Black Workers Project) and launched the Black People’s Convention (BPC), a new political movement that would soon run alongside SASO. Practically the activists organised Black Community Programmes (BCPs).

In the early years of its existence, the all-black SASO was allowed space to grow at the black universities, in part because the government regarded the separate black student association and its emphasis on largely psychological-oriented black consciousness as quite compatible with the apartheid ideology. They were to learn soon that SASO, and more generally the ‘black conscious movement’ that Biko promoted, posed a major threat to the regime. But by the time that SASO began to be more active in political campaigns, from about 1972 onwards, the organisation had established already firm structural roots, which made it difficult for the government to entirely suppress it.

An early example of the dialectics of repression and radicalised politicization included the 1972 student protests at ‘Turfloop’ after the Student Representative Council (SRC) President, Onkgopotse Tiro, was expelled after speaking out against Bantu education during a graduation ceremony at the university. 1974 became a crucial year. In January SASO officially condemned the presence of the Apartheid forces in Namibia; the organisation also reaffirmed the non-collaboration stance of the Black Consciousness Movement and condemned the Bantustan leaders. In September of the same year a rally celebrated the ascension of FRELIMO (the Mozambican liberation movement under the leadership of Samora Machel) into power in Mozambique was held despite the refusal to grant permission for the action.

Repression followed suit. Eighty SASO and BPC leaders were detained without trial for their support of the pro-FRELIMO rally and during the following year tried at the Supreme Court in Pretoria, eventually in 1976 they were sentenced and incarcerated on Robben Island. In 1974 SASO was listed as one of the affected organisation under the Affected Organisation Act of 1974. This prohibited it from receiving foreign funding to pursue its objectives. In July 1975 SASO held its annual conference under very difficult conditions. Only one member of the executive committee could attend the meeting. The rest of the executive members were either banned or had been arrested. Finally in October 1977, SASO and other Black Consciousness organisations were banned under the Internal Security Act. The most brutal example of repression of course was the murder of Steve Biko while in detention in September 1977.

The ‘Durban Moment’

As South African student politics radicalised, the protests initially confined to university politics grew beyond campus concerns; they became instrumental in laying the grounds for the new black trade unions that emerged in the 1970s. In some instances, black and white students, and a few younger, radical academics, worked together in these new-left politics. Radical academics were involved particularly in the efforts around strikes and black labour unions. The connection between students, radical academics, workers and other marginalised social groups becomes brilliantly apparent in the ‘Durban moment’, probably the most significant political development ensuing from South Africa’s 1968. The ‘Durban moment’ is often regarded as the beginning of the new wave of resistance that led to the Soweto uprising, the massive uprisings of the 1980s and eventually the demise of the regime.

Early 1973 saw a massive strike wave in the port town of Durban. By the end of March 1973, almost 100,000, mainly African workers, approximately half of the entire African workers employed in Durban, had come out on strike. Through songs and marches, workers made their demands heard – the first public mass action since the political activism of the 1950s. This was political action, and also more immediately a labour revolt; workers exercised the power of factory-based mass action.

What looked like spontaneous strikes, originated in a complex mix: low wages, the humiliation of pass laws and racism, the hardship of migrant labour, forced removals, and significantly the denial of black workers’ right to organize. The strikes signalled the growth of militant non-racial trade unionism, and in a wider sense a revived spirit of rebellion in the country.

There were links between the eruption of workers’ action and the underground liberation movements; the resurgence of Marxist thinking among a new generation came into play. There was however also, though this has sometimes been denied, decisive influence of the recently emerged Black Consciousness movements’ ideas. Of special importance was the links between activist intellectuals, who in different ways embodied South Africa’s 1968 moment, thinking in new ideological perspectives, and having tried out new methods of activism. Most significant here was the special political alliance, intellectual and personal friendship between Steve Biko and Richard (‘Rick’) Turner, a lecturer in political philosophy at the University of Natal, who held a doctorate on the political works of Jean-Paul Sartre, which he had completed at the Sorbonne in Paris. In the early 1970s Turner was a researcher into labour issues, and a community and labour organiser in Durban, deeply influenced by the French Left, including Althusserian readings of Marxism.

Turner’s and Biko’s philosophical and political ideas significantly shaped the massive strikes in Durban in the early 1970s and continued to impact on the resistance movement against apartheid in different ways throughout the 1980s. Biko’s radical emancipatory Black Consciousness ideology in conversation with Turner’s anti-capitalist notion of ‘participatory democracy’ provided a brief glimpse into the possibilities of another South Africa.

The murder of Biko while in police detention in September 1977, and the assassination of Turner a few months later, in January 1978 at his home in Durban were devastating for their families, friends and comrades. They were shattering too for the country’s politics of resistance, closing off new non-authoritarian radical forms of resistance. Biko’s (and Turner’s) imaginative power and creativity, and their reflection on alternatives to apartheid beyond the management of the state by the liberation movement in power remains a tremendous inspiration.

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

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