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Speak of Me as I Am: Ethiopia, Native Identities and the National Question in Africa

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Does a country create a people, or do a people create a country? KALUNDI SERUMAGA responds to Mahmood Mamdani’s recent analysis on the political situation in Ethiopia.

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Speak of Me as I Am: Ethiopia, Native Identities and the National Question in Africa
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The Westphalian principles, rooted in the 1648 Treaties signed in the European region of that name, have been monstrously mis-applied when it comes to the African continent, yet they established modern international relations, particularly the inviolability of borders and non-interference in the domestic affairs of sovereign states.

The default position of a certain generation and class of African nationalist, is to cleave unto the “new” nation born at Independence, as the only legitimate basis upon which African progress can be conceived and built. Everything else, especially that dreaded category, ‘ethnicity’ is cast as a diversion and dangerous distraction.

This is the tone that runs through Ugandan Professor Mahmoud Mamdani’s one thousand-word opinion piece: The Trouble With Ethiopia’s Ethnic Federalism, published on 3rd January for the New York Times by (and patriotically reproduced in Uganda’s Daily Monitor newspaper), bearing a total of fifty-four iterations of the word ‘ethnic’.

The default position of a certain generation and class of African nationalist, is to cleave unto the “new” nation born at Independence, as the only legitimate basis upon which African progress can be conceived and built.

At Independence, the Westphalia protocols were conferred on to the former colonial contraptions. The results were economic stagnation and political repression. For over five decades, these new nations have been the focus of intellectual and political agitation among Africa’s thinkers. When, after all that rumination and fulmination, our thinkers still get things horribly back to front, we all get stuck at a crossroads.

Mamdani’s essay comes as our current Exhibit A in this long history of intellectual malfunction. Current Prime Minister, the youthful Abiy Ahmed is faced with a many-sided series of demands from a deeply frustrated population. Many of these relate directly to the lack of an economic growth model that palpably raises living standards. Others reach further back to the age-old question of land ownership and reform. Naturally, the demand for greater civic rights to speech and assembly come as a prerequisite. One feature common to these demands is the tendency for the Ethiopians to speak through, and/or on behalf of the various constitutionally recognised native identities within the country. Some may have even formed militias for this purpose.

Mamdani’s essay comes as our current Exhibit A in this long history of intellectual malfunction.

Mamdani engages with this to make an analysis not just of the Ethiopian crisis itself, but of the question of what he terms “ethnicity” which, he sees as the issue – or more accurately, the ‘problem’ – permanently bedevilling African politics. “Fears of Ethiopia suffering Africa’s next interethnic conflict are growing,” he warns.

Prime Minister Abiy has been quick to concede much, and roll out as many reforms as he can. Most notably, he has ended the two-decade stand-off with his northern neighbour, Eritrea.

Mamdani engages with this to make an analysis not just of the Ethiopian crisis itself, but of the question of what he terms “ethnicity” which, he sees as the issue – or more accurately, the ‘problem’ – permanently bedevilling African politics.

This may not be enough, Mamdani tells us. The real problem, as he sees it, is the introduction of ethnicity into Ethiopian governance, and its central position in the Ethiopian constitution. This, Professor Mamdani says, was done by former Prime Minister, the late Meles Zenawi, who served as the de facto Ethiopian strongman from 1991 to 2012. Mamdani describes this as an attempt to replicate a similar strategy of ethnic organization that, in his view, was introduced to Africa as part of the colonial method of governing:

“In most of Africa, ethnicity was politicized when the British turned the ethnic group into a unit of local administration, which they termed ‘indirect rule.’ Every bit of the colony came to be defined as an ethnic homeland, where an ethnic authority enforced an ethnically defined customary law that conferred privileges on those deemed indigenous at the expense of non-indigenous minorities.”

This analysis fails to stop itself there, which would have been bad enough.

“The move,” continues the Professor, “was a response to a perennial colonial problem: racial privilege for whites mobilized those excluded as a racialized non-white majority. By creating an additional layer of privilege, this time ethnic, indirect rule fragmented the racially conscious majority into so many ethnic minorities, in every part of the country setting ethnic majorities against ethnic minorities.”

Describing native homelands as a “fiction”, the Professor goes on to say that while such ethnic labelling and selective privileging may have served the colonial purpose, it had the effect of first, “dividing a racially conscious African population” and second, turning them into people who saw themselves as “tribes” first and foremost.

Thus, he concludes, “Wherever this system continued after independence, national belonging gave way to tribal identity as the real meaning of citizenship.”

Having thus problematized the “ethnic” thing, Mamdani goes on to imply that there may be no peace to come in Ethiopia unless the issue is excised from the Ethiopian body politic in particular, and Africa in general.

These words have many meanings, none of them good for Africans, at least.

First, this is the same thing as saying that before European arrived in Africa, “ethnic” identities were not politicized, and neither were they units of administration. Taken to its logical conclusion, this is to say that there were no ‘politics’ in precolonial Africa, and neither were there forms of administration.

Having thus problematized the “ethnic” thing, Mamdani goes on to imply that there may be no peace to come in Ethiopia unless the issue is excised from the Ethiopian body politic in particular, and Africa in general.

Africans seem to have been roaming the continent as a cohort of an undefined but also homogenous mass, with wholly insignificant identities, which were only solemnised, formalized, and bestowed with political meaning with the arrival of a European power amongst them.

Second, it also implies that only the European had the skill to animate these identities, without them tearing the (therefore necessary) European-planted state apart.

Third, that the tragedy of modern Africa began when the European withdrew his controlling hand. Left to their own devices, the identities he had created, mutated into a Frankenstein’s monster of tribal strife.

Fourth, that there is such a thing as ‘national identity’ that sprung to life fully formed at independence, a good by-product of the European-planted state, and that it is African ‘tribalism’ that destroys it. In other words, European-invented African tribalism spoils the one good thing (nationalism) that Europe brought to Africa.

Finally, that belonging to the European-planted nation in Africa is the only viable means of an African citizenship. But if the British were pre-occupied with “ethnicizing”, and the resultant people’s feelings and loyalties were exclusively ethnic, where then does “national belonging” come from at independence?

The entire analysis of the crisis is a crisis in itself: of naming, histories, theories and practice. It is intellectually disingenuous and patronising, and goes beyond the usual linguistic demotion and belittling one usually encounters from many an expert on Africa.

Naming

Why are 34 million Oromo in Ethiopia an ‘ethnicity’, and 5.77 million Danes a ‘nation’?

Why are the three great wars that shaped modern Europe (Franco-Prussian, the 1914-18 and 1939-1945 great wars), not conceptualized as ethnic conflicts?

Mamdani’s entire analysis of the crisis is a crisis in itself: of naming, histories, theories and practice. It is intellectually disingenuous and patronising, and goes beyond the usual linguistic demotion and belittling one usually encounters from many an expert on Africa.

Why are there only a handful of contemporary states in Africa whose names bear a relation to the identity of people actually living there. Everyplace else is a reference to a commodity, or an explorer’s navigational landmarks.

This frankly malevolent labelling offers the space for the linguistic demotion of entire peoples. To wit: 34 million Oromo, seven million Baganda, 43 million Igbo, 10 million Zulu will always remain ‘ethnicities’ and ‘tribes’ to be chaperoned by ‘whiteness’. 5.77 million Danes, 5.5 million Finns, and just 300,000 Icelanders can be called ‘nations’, complete with their own states with seats at the UN.

Some of these states were only formed less than two centuries ago (Italy: 1861, Germany: 1815, Belgium: 1830), while some of those ‘tribes’, and most critically for the argument, their governing institutions had already been created.

Why has the ethno-federalization of Great Britain itself, not been seen as such, and as a recipe for conflict?

This, in fact, is the real ‘fiction’, and it has led to decades of instability. But just because Westphalia does not see them, does not mean the African nations don’t exist. The denial of their existence is in fact, an act of violence.

This is what led a thus exiled Buganda’s Kabaka Edward Muteesa II to write: “I have never been able to pin down precisely the difference between a tribe and a nation and see why one is thought to be so despicable and the other so admired.”

Many modern Africans, especially those whose identity is a product of the European imposition of contemporary African states, have a vested interest in making a bogeyman out of native African identity. The starting point of this enterprise is to invite the African to agree to see our own identities as a liability to African progress, by labelling them “ethnic”.

When “ethnic” conflicts do flare up, those natives who have refused to jump on to this bandwagon are subjected to a big “I told you so”, as Mamdani’s essay now seeks to do.

Many modern Africans, especially those whose identity is a product of the European imposition of contemporary African states, have a vested interest in making a bogeyman out of native African identity.

This was the position of the OAU member states, and many African political parties, including those in opposition to their increasingly repressive post-Independence governments.

But Ethiopia presents a huge problem for Professor Mamdani’s theory of the colonial roots of “ethnicity”, since its history falls outside the usual African pattern of a direct experience of European colonialism.

Since his initial assertion when introducing the issue of ‘ethnicity’, was that it was a result of European labelling leading to a “divide and rule” situation, Mamdani is then faced with the difficulty of explaining where those particular Ethiopian ‘ethnicities’ spring from if there were no Europeans creating them. Unless, to develop his assertion of homelands being a ‘fiction’, he thinks Ethiopia’s various nationalities are fictional too?

Ethiopia presents a huge problem for Professor Mamdani’s theory of the colonial roots of “ethnicity”, since its history falls outside the usual African pattern of a direct experience of European colonialism

He covers up this logical gap by pre-empting a proper discussion of that history. Then changing tack, he suggests that the presence of “ethnic” problems in Ethiopia, despite the country’s lack of a European colonial history actually shows that “ethnicity” is somehow a congenital defect in the body politic of all Africa.

“The country today resembles a quintessential African system marked by ethnic mobilization for ethnic gains.”

Of course the correct answer to all the above questions is that Africa’s Africans had their ‘ethnic’ identities well known and in place long before the arrival of any European explorer or conqueror. And these were not anodyne proto-identities, but actual political institutions and methods of organization and governance. But this is an inconvenient truth, because then it forces the proper naming of these alleged ‘ethnicities’: nations.

All told, deploying notions of “ethnicity” and “tribe” is a tactic to corral Africans into primordial nomenclatures, thereby avoiding a recognition of their pre-colonial formations as nations. It serves to fetishize the colonial project as the godsend device to rescue the African ethnic strife and predestined mayhem.

But if the 34 million Oromo are an ethnicity, then so are the 5.77 million Danes. More so for our situation so are the English, Scots and Welsh who field national teams during the World Cup and the Commonwealth games. We need consistency, people must be spoken of as they are.

Deploying notions of “ethnicity” and “tribe” is a tactic to corral Africans into primordial nomenclatures, thereby avoiding a recognition of their pre-colonial formations as nations.

Naturally, the emergent Independence-era African middle class was more than happy to go along with this erasure, in what Basil Davidson called an attempt at “the complete flattening of the ethnic landscape”, and even fine-tuned it. Where some concessions had been made to the existence of the old nations, these were quickly, often violently, dispensed with.

In British Africa, the politics of trying to dispense with this reality is what dominated virtually all the politics of pre-independence constitutional negotiations. The question informed even the political alliances that emerged at independence.

In Zambia it required a special constitutional pact between the new head of state, Kenneth Kaunda and the ruling council of the Barotse people – they have recently sought to repudiate it and return to their pre-colonial status.

Ghana’s Asante kings were against the British handing power to Nkrumah’s government. They argued that since they had ceded power to the British via treaty, then the departure of the British meant a termination of those treaties. Logically, therefore, that power should be re-invested in the ones it had been taken from under treaty.

In Kenya, the Maasai and the Coastal peoples used the same argument during the decolonisation conferences at Lancaster House. Significantly, the Somali rejected inclusion in the independence Kenyan state, insisting that they wanted to be integrated into independent Somalia. Unable to resolve the ‘Three Questions’ the Foreign and Colonial Office cynically kicked them into the not-very-long grass for the incoming leadership to deal with. The Mombasa Republican Council of today draws its political legitimacy from the updated colonial-era Witu Agreement of 1906, signed between their ancestors and the independence government.

Histories

To understand the current situation in Ethiopia, one must face up to the challenge of properly understanding any part of Africa, a continent so taxonomised and anthropologised by white thinking that it is barely recognizable on paper to its indigenous inhabitants.

It is a two-stage challenge. First: to understand Ethiopia’s history. To do that, one must first recognise and accept the possibilities of an African history not shaped, defined and animated by European imperatives. Africans, like all people, have been making their own history. And like people elsewhere, this has as much narration of the good as it does the bad.

To understand the current situation in Ethiopia, one must face up to the challenge of properly understanding any part of Africa, a continent so taxonomised and anthropologised by white thinking that it is barely recognizable on paper to its indigenous inhabitants.

Ethiopia’s crisis is a consequence of a century-old unravelling of the empire built by Emperor Menelik II (1889-1904).

As his title implies, this was not a nation, but an Empire: a territory consisting of many nations, brought into his ambit by one means or another.

Menelik’s motives and method can, and should be debated, but the fact is that Europe met its match in the Ethiopian Highlands, and were forced to leave Menelik to it.

Ethiopia’s crisis is a consequence of a century-old unravelling of the empire built by Emperor Menelik II (1889-1904).

Yes. Africans also produce momentous historical events. It is not an exclusive trait of white people.

We must get into the habit of discussing our own non-European driven history as a real thing with real meanings. Just as we may talk about the continuing long-term effects of the collapse of the Austro-Hungarian Empire on the European Balkan region, so can we talk about how the demise of Menelik’s empire continues to impact on the greater Horn region.

If that sounds far-fetched, bear in mind that since Menelik’s passing 120 years ago, Ethiopia has had only six substantive rulers: Zewditu/Selassie, Mengistu, Zenawi, Dessalegn and now Abiy.

On his passing, Menelik left a region covering more than three times the area he inherited. Prince Tafari, upon eventually inheriting the throne as Emperor Haile Selassie in 1930 simply sought to consolidate it.

In his 2002 biography: Notes from the Hyena’s Belly: An Ethiopian Boyhood, the Ethiopian author Nega Mezlekia tells the story of him and his family, as one of many Amhara families that migrate to Jijiiga, a region in the far east of Ethiopia during the reign of Emperor Selassie. This was part of a government programme of Amhara settlement to many parts of the Ethiopian countryside. Jijiiga is home to ethnic Somalis. Amhara expansion, one of several factors, eventually provokes an armed revolt. Ironically, the author in his youth joined the insurgents.

Emperor Selassie can be said to have made some errors, but the context is critical: his reign spanned a period that saw immense changes in global politics, and social ideas.

Consider his life and times:

He witnessed the two great inter-European wars, the fall of its empires (Italian, German, Ottoman, Japanese) and the end of direct European occupation of Africa. He suffered two European invasions of his realm, and lived in exile. He was a regent during the Bolshevic Revolution in 1917, and saw the emergence of the Soviet Union as a world superpower and the Cold War that followed. He may have been one of only a handful of world leaders to have been a member of both the United Nations, and the League of Nations that preceded it.

This sweep of history also had its impact on the Ethiopian peoples. One response was a growing demand for social, economic and political reform, including loosening the bonds of Selassie’s empire.

By the time of the 1975 coup against him, the world was a fundamentally different one than the one he had met when he took the throne. He was, in fact, so “old school” that his captors were taken aback when he calmly informed them that he had no personal income or savings to look after himself.

He took a hard line on Eritrea, which had settled into an uneasy federation, provoking a war of secession; continued Amhara settler expansion into Oromo and elsewhere; and he failed to manage Tigrayan nationalism, rooted partly in their dynastic loss of the imperial throne to that of Menelik’s Shewa kingdom. Critically, he did not effectively address agrarian land reform, one of the roots of the country’s political and agricultural crises.

So, to sum up Emperor Selassie: ultimately, he neither succeeds to fully consolidate his empire, nor does he re-order the empire’s boundaries and strictures, which he had inherited in a fundamentally different era. He found himself fighting the more conservative elements of his aristocracy opposed to his reforms; the modernist republicans concerned that he was not reforming fast enough; and the increasingly radical nationalists in the regions demanding self-determination.

Enter Colonel Mengistu, something of a zealot, but who, for all his violent tendencies, was more of the “social reform” persuasion, and sympathetic to the “land to the tiller” demands of the early radical youth movements. Having overthrown a monarch, he saw himself in the image of the Soviet Union’s Communist party in Russia which had deposed the Russian King Tsar Nicholas II. His task, as he saw it, was to create a socialist state.

However, Mengistu had basically taken over the same state that Selassie inherited and he was still wedded to it. His modernist concept of history and the world prevented him from understanding that he was dealing with a home-grown imperial history, and that he was in effect therefore, running an empire.

This blinds him to the “nationalities question”, and only intensifies the agitations among the various indigenous nations trapped in his now secular empire.

So, he basically tries to kill everybody opposed to him.

This is the reality Mamdani fails to see, and mistakenly calls Mengistu’s state a ‘unified republic’; interestingly, he does not offer any of the gruesome details of how Mengistu ‘instituted’ this so-called unification. The only places where Ethiopia was unified and a republic was in Mengistu’s mind (and in his armory). What the various territories wanted was recognition of their separate identities, and an unchallenged say over the land of their ancestors.

Mengistu’s response was to raise even higher the levels of violence needed to keep these rebellions in check, simultaneously fighting Tigrayan, Eritrean, Somali and Oromo insurgencies.

Theory and practice.

Ideologically, the leaderships of the Ethiopian insurgencies were taken over by persons claiming to be as Marxist as Lenin was. Eventually, all the belligerents, including the regime, claimed to be Marxist organisations, yet they were in conflict with each other. What intensified the crisis was the conflicting understandings of what Marxist practice should therefore be, in their context. It was at this point that a number of left-ideological debates came into play, and where a lot of left-ideologues lost their way.

Marxist theory, which mobilized millions of people worldwide, and its practical implications, should be examined with some care. History on this point is necessary.

These nationalist struggles based their arguments on the Leninist principle of “The Right of Small Nations to Self-Determination”, which had been partially applied in the Soviet Union from its formation in 1917. After Lenin’s death in 1924, his successor, Josef Stalin, found less time for it, and, in the face of sustained Western European aggression seemed to see it as a liability to the security of the revolution.

The 1975 coup that brought Mengistu to power (or, more accurately, the coup that Mengistu then subsequently violently hijacked) was a response to widespread unrest, particularly among youth and student movements. This led to a number of practical problems on the ground, in relation to ideology.

At the heart of both the Dergue and the later Tigrayan movements was the issue of land reform. Mamdani does note that the initial upheavals of the 1970s were driven by this, but then fails to make the correct links.

For the vast majority of Africans, especially back then, land is not just a place to live, but also a place of work. To be without land is to be without a secure job. Subsistence peasant agriculture is back-breaking, often precarious, and not financially lucrative. It is also – and many progressives fail to recognize this – autonomous. To a very great extent, the subsistence peasant is not dependent on the state or the global economy. If anything, those entities depend on the farmer whose austere lifestyle acts as a hidden subsidy in providing the market with cheaply-grown food at no investment risk to the consumer or the state. Clearly, one thing that can transform and undergird this existence is sensible reforms to the way the farmer secures tenure of the land they work.

But what happens when land rights encounter cultural rights based on land? A “homeland” is certainly not the “fiction” of Mamdani’s assertion. It hosts the identity and worldview of the people that occupy it. It holds their sacred sites, and places marking their cultural consciousness. More so, that culture underpins their ability to keep producing autonomously. To suggest that it does not exist or does not matter, actually shows a complete failure to grasp who black African people are and how they live, and think. It is a fundamentally anti-African statement implying, as it does, that black Africans do not have an internal intellectual and spiritual logic, developed indigenously, and augmented by physical spaces and objects within them, that informs a worldview. Africans, the suggestion is, are inherently transposable, as they are not tied to any thing or any place.

The captains of the old transatlantic slave ships could not have theorized it better.

Coming from someone who lives in Africa, this is a bit surprising. Coming from a professor heading an institute within one of Africa’s new universities, designed to bolster the colonial state’s mission of deracinating the African, perhaps less so.

However, the current crisis in Ethiopia is very real, and failure to finally resolve it holds huge implications for the entire region. That is precisely why a correct analysis is needed. Not a comfortable one rooted in essentially racist tropes.

The allegedly ‘ethnic demands’ were demands for a different type of guarantee to land rights than those being promoted by Mengistu. For example, would an Amhara family like Nega Mezlekia’s, originally settled by Emperor Selassie in Jijiiga, have a legally equal claim to land against the ethnic Somali communities native to the area, just because they now happen to be the ‘tillers’ there? Would there be a hierarchy of claims? In any event, who should decide? A central authority in Addis Ababa, or a federated unit representing the historic native community?

There are no easy answers. But the regime’s (and other ‘progressives’) complete refusal to even consider the issue, is what led to the conclusion that for there to be justice in Ethiopia, the issue of native nationalities, and their land-based cultural rights, would have to be physically resolved first. In short, it became clear that the land reform question could not be effectively addressed without also addressing the underlying question of productive cultural identities and the historical land claims that arise from that.

This was particularly sharp in those areas of the country –such as Oromo and Tigray- that are dominated by pastoralist communities. Historically, much of Africa’s land grabs have taken place against pastoralist communities, the great city of Nairobi being a prime example.

This is the basis of the ‘ethnic’ movements that have so perturbed Professor Mamdani. It was, in fact, a debate of the Left, and not some right-wing atavist distraction.

So, the great irony is that Ethiopia, home to that great bastion of mis-applied Westphalian thinking, the Organisation of African Unity, becomes ground zero for the great unresolved National Question as it applies to Independent Africa: what is an African nation, and is it the same thing as a given African state (or, more accurately, a state located in Africa)?

The armed struggle began in Eritrea, after Selassie’s unilateral abrogation of the federal arrangement. The original fighting group, called the Eritrean Liberation Front was soon violently displaced from the field by a more radical Eritrean Peoples’ Liberation Front of Isias Afwerki, espousing those aspects of Leninism and Maoism that enabled it to mobilise a broad front of all classes affected by the feeling of Occupation.

The rebels’ demands were clear: a federation of Ethiopia or separation from it; control of their own lands, and an equal recognition of cultures.

For his part, Mengistu, now fighting five separate militant groups, including a very militant hard-line the Ethiopian People’s Revolutionary Front based in urban Ethiopia, placed all his faith in military might. He ended up building the largest armed force in Sub-Saharan Africa (if not Africa as a whole) of some half- a million soldiers, and being heavily dependent on the Soviet Union, which saw him as a vital foothold in Africa, for war materiel and other supplies. He also received military support from Cuba. It again may not be widely known that at the height of the fighting, these different forces which had grown in to wholesale armies, were fighting some of the largest engagements (including tank battles) since the 1939-1945 European inter-ethnic conflict called the Second World War.

The fight progressively turned in favour of the rebels. With Mengistu’s main arms supplier, the Soviet Union, finally capitulating against the US in the Superpower contest in 1989, his forces were routed and he was driven from the capital in 1991.

The Eritrean armed struggle started in 1961, the Tigrayan one in 1975 and Oromo’s in 1973. All end with Mengistu’s fall.

If Mamdani genuinely believes these nationalities are just “ethnicities”, and that Ethiopia is now running the risk of hosting “Africa’s next inter-ethnic conflict”, then this history shows that Ethiopia has in fact already had the “next inter-ethnic” conflict. Mamdani’s fears, this is to say, are 30 or 40 years late.

To sum up Mengistu: he seized power in response to a severe political crisis, and then, misreading his position, sought to impose his concept of “socialism” on the various peoples still caught in the net of Menelik’s Empire state. This led to a situation of mounting violence, in which he saw just about everyone as an enemy to be physically crushed. His regime eventually succumbed to the overwhelming resistance.

Enter Meles Zenawi, who came out of that generation of student activists who took up the nationalities and land reform demands during the time of the Emperor. To many of them, Mengistu’s high-handedness in dealing with the matter was a disappointment. Tigrayans today do not easily recall that when Meles led the the youth to start the war, they sought refuge in Eritrea, and were nurtured and trained there by Isias Afwerki’s EPLF forces already at war against the Ethiopian state.

The issue of identity does not therefore mean that Africans are perennially and illogically at each others throats in some kind of primordial frenzy. They do politics, and are fully capable of defining their interests and maintaining relations, or breaking them off, as needs may dictate.

Zenawi (to an extent like Daniel Ortega on the other side of the world, and even Yoweri Museveni, in his own way), found himself in charge of a state now encountering a new, neo-liberal global world order being enforced by the only super power left standing. Like Selassie, the circumstances around them had changed greatly from when they had begun their political journeys.

Far from simply “introducing” a federal constitution whose “ethnic” nature Mamdani is problematizing, Zenawi’s regime was finally having the Ethiopian state recognise the long-standing historical realities that had emerged from decades of political and armed struggle.

To reduce the product of all that sweeping history to a notion of “fictions”, is a dangerous over-simplification.

In this quest for erasure, Mamdani applies the same misleading thinking backwards by calling the 1994 Ethiopian constitution a “Sovietificaton” of Ethiopia. The Russian nationalities were no more an invention of Lenin than the Ethiopian ones are of Meles Zenawi’s creation. The various units that made up the Union of Soviet Socialist Republics were based on nationalities long in place before the 1917 communist revolution took place there. The responsible thing to do, as a starting point, was acknowledge that fact, which the communists did (and Stalin to a greater extent than Lenin before him).

Yes, Meles was a dictator. And yes, the constitution is based on indigenous nations. That does not automatically suggest causality: Meles Zenawi did not “turn Ethiopia to ‘ethnic’ federalism”. Its long history did.

In fact, events show that Zenawi and the dominant faction he governed with, were no longer in support of the “rights of small nations” by the time they took power.

With the exception of holding the pre-agreed referendum on Eritrean independence (he may have had little choice in the matter: friends in Addis used to like to tell the story of how Meles’ own stepmother, who happens to be Eritrean, and who raised him, left him in his official Addis residence to go and vote for independence in Eritrea, then returned after), he fails to implement the spirit and the letter of the new arrangements that were based on principles forged in the course of the long war.

The best example is found in the very incident that sparked the current uprising: if the regime knew that – as Mamdani points out – the 1994 federal constitution guaranteed the nationalities concerned authority over their land, why then did it try to expand the boundaries of the Federal capital Addis further into Oromo territory over the objections of people there?

In other words, the problem in Ethiopia is the exact opposite of what Professor Mamdani sees. It is not the “ethnic” constitution at fault; it is the failure by the Zenawi regime to genuinely implement it, by negating the spirit of the idea in private, while pretending to uphold it in public.

In particular, Zenawi’s “Woyane” regime repeated Mengistu’s mistake of trying to hold on to Menelik’s state. Critically, he too failed to address the historic issue of land reform that began the whole shake-up of Ethiopia with the student protests against the Emperor. In practice, land is still the property of the state, to be handed out for “developmental” purposes, upholding the Mengistu mentality, but now in the context of global neo-liberalism.

“Derg and [the TPLF] took a very similar approach to the land question. Which is why, three decades after TPLF comes to power, they have still been unable to do land reform, abandoned agrarian reform and ironically, put rural Ethiopian land on the international auction. Something like four million acres of rural farmland, mostly in southern Ethiopia has been leased out to foreign investors since the mid-2000s, ” observes journalist Parselelo Kantai, who frequents the country.

Power comes with its temptations, and a state machine comes with its own institutional imperatives. It would appear that once a group finds itself in control of the apparatus of an empire such as Menelik’s, they become very reluctant to abandon its workings. Perhaps it is only the armed forces in Portugal, having overthrown their autocratic Caetano regime in 1974, that ever went on to immediately dismantle their empire and allow the conquered to go free.

The politics of the armed coalition coming together and finally driving Mengistu out may well have been the moment for this change in attitude to begin, not least because the Meles’ TPLF was by far the militarily dominant faction of the alliance.

To sum up Meles Zenawi: he evolved into what many ‘revolutionaries” became after the Cold War era: a technocratic autocrat placing his hopes in a neo-liberal approach to solving the country’s deep economic problems through a “developmentalist” strategy. He quite literally burned himself out hoping that, by bringing rapid infrastructural development, he could perhaps outpace the historical political claims, and thus render them redundant.

This essentially meant a new form of what Mengistu and Selassie had done before him: overlook people’s ancestral claims to this or that, and simply see the whole landmass as a site for “development” projects, no matter who they may displace or inconvenience.

But “any notion of ‘progress’ or ‘modernization’ that does not start from a peoples’ culture is tantamount to genocide.” the late Professor Dan Nabudere warned us.

Meles Zenawi sought to hold on to the very imperial state he had once fought. His unwillingness to fully honour the terms of the broad alliance of all the fighting groups, and instead consolidated his armed group to take factional control of the whole state and set the course for new upheavals. His sudden death became the opening for these issues to spill out into the streets.

His immediate successor, Hailemariam Desalegn, soon found that the kind of extreme state violence that had served Zenawi, and Mengistu before him, and Selassie before them both, no longer worked, forcing Deslaegn to resign in failure.

Abiy Ahmed must finally deal with these realities. Ultimately, any attempt to do politics based on the imperatives of the Menelik-created state was, and is, going to come up against the fact that this state actually started life as an empire. If the history of Ethiopia has shown one thing, it is that this approach has always provoked rebellions.

Ethiopia, one could say, is back to the pre-war situation it was in just before Mengistu’s coup.

The problem is conceptual; the same one that confronted Selassie and Mengistu: are we running a nation, or a homegrown empire made up of several? 

Mr Abiy Ahmed would be wise not to go down that path.

His challenge is to dismantle the remnants of Meles’ personal military apparatus, genuinely re-orient the country back to its federal constitutional ethos, begin to address the land tenure question, and quickly, before the political grievances – and the economic challenges underlying them – completely boil over.

As the world becomes less secure and with fewer overlords, there will be more and more examples of Africa’s invisible nations asserting themselves to manage control of their resources.

Dismissing them as “ethnic” is simply laying a foundation to justify violence against them.

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Kalundi Serumaga is a social and political commentator based in Kampala.

Long Reads

Why the LSK Choice of Female Representative to the JSC Is Crucial

To promote the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice, the JSC needs members of impeccable character.

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Why the LSK Choice of Female Representative to the JSC Is Crucial
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Since the promulgation of the Constitution of Kenya in August 2010, the Judicial Service Commission (JSC) is one of the Constitutional Commissions which has gone through what was described by scientist Thomas Kuhn as a “paradigm shift” in his book, The Structure of Scientific Revolutions. A paradigm shift was described in scientific terms as a way in which there occurs, or needs to occur, a fundamental change in how to describe a scientific development of basic concepts and practices that had previously guided that science.

Assuming exercise of judicial power is a science (even if social), and reflecting on where Kenya was during the tenure of the previous JSC that reigned before the fundamental changes that have taken place under the 2010 Constitution, Kenya has fundamentally transformed that institution.

The single most significant difference is that whereas in both the repealed constitution and the current one the JSC is a constitutional commission, the composition and number of members are radically different, giving the current commission 11 members with  some independence of thought and decision-making unlike the previous 5-member JSC.

The five members of the previous JSC were direct appointees of the president. They included the Chief Justice, the Attorney General, two judges appointed from amongst the puisne judges and finally the chair of the Public Service Commission. The requirement today that judicial officers elect their own JSC with a broad-based representation of various interests within the legal profession contrasts with the previous JSC which only represented the interests of the appointing authority. The President.

Therefore, whereas the previous JSC was filled with presidential appointees whose appointment was not even approved by the National Assembly, today all but six of the JSC members are officially nominated by the president but may or may not be approved by the National Assembly. This gives the National Assembly veto powers to approve or disprove that membership.

Chaired by the Chief Justice, the JSC includes a judge representing the Supreme Court; a judge elected by members of the Court of Appeal; a judge elected by judges of the High Court; a Chief Magistrate representing the Magistracy; and finally, two members (one man and one woman) representing the Law Society of Kenya (LSK).

The other members are more or less appointed with the tacit approval of the National Assembly. That is, if the president has sway over the National Assembly membership, as the current President has, through what in The Elephant has been described as the “Tyranny of Parliament by the Jubilee Party”, then the nominees have been appointed tacitly by the president in the knowledge that members of the National Assembly will raise no objections.

These other members of the JSC include the Attorney General, a member nominated by the Public Service Commission, and two members (one man, one woman) to represent the members of the public. Finally, the Chief Registrar of the Judiciary makes up the 11th member and is the Secretary to the JSC. The latter has no voting rights in decision-making.

Current context

In the current political context of the Building Bridges Initiative (BBI) debates, there are radical proposals around the JSC. Some of these include introducing an Office of the Ombudsperson, whose occupant will sit in the JSC. This has caused a political and judicial furore, particularly because it is proposed that the Ombudsperson will be appointed directly by the president.

In social and political spaces, some have opined that the Ombudsperson will be the president’s “watchman” in the JSC. It is no wonder then that there has been overt and covert resistance from the LSK, the JSC and the entire Judiciary. Kenyans have been here before and it is obvious that they do not want a return to the past.

Furthermore, the BBI intends that the two judges and one magistrate who are elected by their peers serve for a fixed term of five years. The constitution bestows the powers of nomination and election of these members on judicial officers, not on itself. Yet the BBI proposals tend to crystalise that power on the constitution. Thus, it has been argued that this is total interference with and an erosion of the independent choice of the electorate (judicial officers in this case) to hold their representatives to account.

Moreover, it is perceived as an attempt by the Executive to interfere with the Judiciary, with many recalling the president’s warning following the nullification of the August 2017 presidential poll that “we shall revisit” the judiciary. On his way out, Uhuru Kenyatta seemingly intends to make good his threat — let us also not forget that David Maraga departed office on a controversial note.

The former Chief Justice, David Maraga, ended his term by recommending that the president dissolve parliament for not conforming to Article 27 of the constitution — which provides that “The State shall take legislative and other measures to implement the principle that not more than two thirds of the members of elective or appointive bodies shall be of the same gender” — which did not go down well with members of his inner circle, and hence perhaps the need to “tame” the Judiciary.

Therefore, in the current debate pitting the Executive against the Judiciary through the BBI process, it is incumbent upon the JSC to stand tall and protect itself. It requires members of impeccable integrity, character, tone, gravitas and bravado to face present and future challenges.

This commentary delves specifically into the role of the JSC as provided in Article 172 of the Constitution, which is to promote and facilitate the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice.

Given that the Office of the Chief Justice is still vacant, it points out to the nuances that may emerge in the recruitment process, and why the role of each member is important, including that of the future female representative of the LSK to the JSC.

The JSC needs members with impeccable integrity, character, tone, gravitas and bravado to face present and future challenges.

This is so because currently there are only nine members, split between those who may be considered fully independent, who are five, and those representing the Executive, who are four. However, with the departure of the female representative, the “independents” go down to four: Mohammed Warsame, David Majanja, Evalyne Olwande (who represents the Judiciary) and Macharia Njeru (who represents the LSK).

It is my view that, as Philomena Mwilu is the acting Chief Justice, her legal and social history, her pending criminal cases and of course her controversial “acting capacity” as the Chief Justice, render her susceptible to the influence of “other forces” other than those she should ideally represent — her peers in the Supreme Court — when deciding who will be Kenya’s next Chief Justice. In case of a 4-4 tie, she may be called upon to be the tie-breaker. This is an important decision to make.

Electing the LSK Female Representative

As alluded to above, two members are elected directly by the membership of the Roll of Advocates (that the LSK scrutinises through an Elections’ Board) and they are formally appointed by the president through a Gazette Notice. In May 2019, Macharia Njeru — formerly the Chairperson of the Independent Policing Oversight Authority (IPOA) — won the Male Representative seat by trouncing the then incumbent Tom Ojienda. Today, Macharia represents the LSK in the JSC.

The first five-year term of the Female Representative of the LSK, Mercy Deche, came to an end on 24 March 2021 and although she is eligible for a second five-year term, she will be stepping down. In her view, Deche has served her term and is satisfied with her performance; she therefore wants to be succeeded.

However, since institutions are led by people, they reflect the personal convictions and commitments of those within them. The current JSC has been led by former Chief Justices Willy Mutunga and David Maraga, with the latter exiting the scene only recently in January 2021. The JSC advertised its search for the third Chief Justice following the “paradigm shift” in the appointment of members of the JSC referred to above.

This article aims to point out issues as they appear, issues that should be dealt with, and issues that should make advocates line up to vote in large numbers for whoever their choice will be. It is an election that advocates cannot afford to ignore, particularly in view of the ongoing BBI debates previously referred to.

Politics at the LSK

The LSK is in crisis — with some members seeking to remove the current president, Nelson Havi while others support him. Already a meeting to remove Havi had been called for the 27th March 2021.

With regard to the Female Representative position, the advertisement was made on 18 December 2020 by beleaguered Chief Executive Officer Mercy Wambua, who is not on good terms with Havi. The deadline for the submission of interest in the position was 18 January 2021. However, since then, the LSK has been suffering a severe crisis of leadership — both at the level of the Secretariat and at the Council which is led by Havi.

It is therefore inconceivable that the LSK will be a composite body with a leadership capable of successfully steering the election processes.

It is an election that advocates cannot afford to ignore, particularly in view of the ongoing BBI debates.

Unless something is done by the whole Council working together in harmony, with unity of purpose, and demonstrating ethical leadership, the upcoming elections are bound to be perhaps the most controversial in LSK’s history since the promulgation of the 2010 Constitution.

As stated, unlike the former Male Representative, Tom Ojienda, who sought a second term in accordance with the JSC Act, Mercy Deche is not seeking re-election. That election was very competitive since the difference between Ojienda and Njeru was not more than 300 votes. With Deche not in the race, the power of the incumbency is non-existent unlike during the Ojienda poll, which was a huge challenge.

With a divided Council, a seemingly authoritarian president who is accused of not consulting by some members of the Council, and a CEO faced with a dictatorial president, and court cases flying left and right, LSK is in troubled waters.

Changes in the Judicial Service Commission

As changes are happening to the LSK and the Judiciary, the JSC is also facing imminent changes. The biggest change has been the retirement of the former Chief Justice Maraga and the search for his replacement.

Since Maraga retired, media and other pundits, including lawyers, have been very vocal about the eligibility of the “acting Chief Justice”, Philomena Mwilu, to be given such a role considering the various criminal matters facing her in court. Indeed, a petition was also filed by Okiya Omtatah seeking a constitutional interpretation regarding this transition, and her eligibility and/or the legality of her position as “acting Chief Justice”.

Moreover, even within the JSC itself, similar questions have been raised both by the Commissioners and in the Secretariat, not to mention the murmurs at the top echelons of the Judiciary. Therefore, as the Commissioners seek to recruit the next Chief Justice, the politics of the institution will be laid bare.

The JSC will most likely be split in their opinion based on how they join(ed) the JSC. As mentioned above, only the Chief Justice is appointed through a public process and the nominee is sent to the president for formal appointment. The president’s “direct nominees” are four compared to the four who may be called “independent”. This is because, currently, the seat of the Female Representative of the LSK fell vacant on 24 March 2021. The Acting Chief justice is likely to lean towards the former group of “conservatives” as I shall demonstrate.

Therefore, as campaigns for the position of the LSK’s Female Representative begin in earnest, all the eight candidates for this position and the voting advocates will need to bear in mind what is going on in the JSC, as that is the institution they seek to join together with the new Chief Justice who will be the chairperson of the JSC.

The Campaign environment

In addition to the foregoing, there are other issues that shaped the campaign agenda in the period between the submission of papers on January 18, and the election on March 24, 2021. Already, we observed stay orders emerging from the courts stopping the LSK’s Elections Board from proceeding with the shortlisting and processes of preparing for the election of the LSK Female Representative.

Campaigning in the midst of the COVID-19 pandemic

There is no doubt that COVID-19 has altered our social, economic and political landscape. This elections taking place in an environment which is largely restricted through: limiting the number of gatherings; observing physical and social distancing even if the campaign is done in public halls; and no campaigns outside curfew hours, among other COVID-19 protocols that must be respected.

In this context, violation of the protocols could cost a candidate the seat. This could happen since the media will be watching, as will advocates. If candidates cannot observe the law, then their reputations are at serious risk.

Second, candidates who are tech-savvy will have an advantage, since campaigns will be done on new media, using Facebook, Twitter, Zoom meetings, and other such platforms. Those that will attract the biggest number of followers are likely to tip the balance of this campaign.

Finally, any candidate who wishes to win this election should of necessity be seen to be supporting the government, especially the Ministry of Health. This is not because one should support blindly, but in order to create linkages with the Ministry to support efforts to have Kenyans respect COVID-19 protocols and encourage them to get vaccinated. This could be as easy as linking one’s campaign sites with the relevant information from the Ministry, especially their daily updates.

Political knowledge and the IEBC

Running for political office requires knowledge of politicking, and the ability to debate issues without losing arguments. One should be consistent in messaging whether on social media or on traditional media such as pamphlets, television, radio, etc. Second, politics has neither permanent friends nor permanent enemies. It’s bare knuckles in political debates, but with respect when differences emerge.

Third, this is a political position, not a legal position and candidates need to learn this fast. In a period of less than eight weeks or so, things will turn hot, and it is not the best legal mind that will win the position, but the one with political guts.

Finally, the Independent Electoral and Boundaries Commission (IEBC) will oversee the elections. Knowledge of this institution will prove very vital for any candidate. The institution has a series of codes of conduct, protocols, regulations, and so on. Familiarity with the IEBC rules of procedure is essential for candidates.

The IEBC is an institution that has faced serious issues of integrity during every electoral cycle in Kenya. However, it has conducted itself professionally for other institutional elections such as that of the LSK. Candidates’ knowledge of past LSK elections and whether there were complaints concerning voting, counting, tallying, verification and announcement of the eventual winner is a valuable asset.

The typologies of voters

In his book, The Science of Election Campaigning, Afrifa Gitonga makes the argument that there are three types of voters in the world of politics. These typologies have been manifested variously in political competition and they include voters who are rational and who seek to question everything the candidate has done, if seeking re-election, or is committing to do for them for them by seeking office.

Second, sentimental voters are those attracted by sensual appeal and they will vote on that very basis. These voters are impressed by the looks, by the mannerisms and by the beauty of the candidate, and even by how they dress.

Thirdly, Afrifa talks of conformist voters who, unlike the two above, simply conform to how the tide is moving, by asking questions like “who are we voting for?” They go with the flow and do not make any rational or sentimental decision.

The advocates may or may not understand these concepts fully. Back in 2007 I wrote about the three typologies above and added two more: there are those who vote with the head (rational), those who vote with the heart (sentimental), and those who vote with the wind (conformist).

In addition, there are those who vote with the tongue (ethnicity of a candidate, which is very familiar in Kenya) and, finally, those who vote with the stomach (those whose decision is based on what they have “eaten” from the candidate). These typologies exist even amongst the advocates despite references to “learned friend” or “senior”.

Role of young lawyers

It is evident that there has been a debate between the long-serving “seniors” and the “juniors” — recently admitted advocates. The debate is basically about what young lawyers feel about the old and established advocates and the young lawyers’ role in the advancement of the legal profession in Kenya in the absence of equal and fair opportunities for progress. This debate has not ended, and it is not ending any time soon. It should be approached with caution and information on where this debate is headed could be a great piece of the puzzle in the elections.

There are those who vote with the tongue and those who vote with the stomach.

In my opinion, since each candidate has at least 15 years of practice as per the requirements, they belong to the “seniors” category. Those who have been practicing for less than 15 years have different perspectives about what these elections are about, unlike the “seniors” who know the difference between practicing law under the old legal framework of the repealed constitution and under the current decade-old constitution.

This was a hot issue during the May 2019 and is not to be ignored by any candidate as it could be a deciding factor in the forthcoming election.

Selling the agenda

Selling the agenda is the most important matter for consideration. It should document what the first five years, between 2021 and 2026, would involve. There are many problems mentioned in the policies — such as the BBI proposals — in the laws being proposed, the LSK leadership wrangles, the possible splits between the ”independents” and the “conservatives” in the JSC, etc. Prioritising what is to be tackled, and in which sequence, should not just be documented but should also be verbalised throughout the campaigns.

This should include appreciating, upholding and defending the advances made by the 2010 Constitution; providing a considered legal opinion about the BBI process; transforming the case management system to reduce the backlog of cases and ensure the speedy dispensation of justice; and, strengthening ethics and integrity by enforcing the codes of conduct, among others.

Eight candidates have been cleared to run for the position of Female Representative of the LSK to the JSC and they have formally submitted their nomination papers. The election board will vet these aspirants and determine who actually appears on the electoral ballot. Using the above typologies, lawyers are spoilt for choice, but this independent and objective assessment should help advocates select the best female candidate to represent the LSK at the JSC. Be on the lookout.

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Long Reads

Dark Web: How Companies Abuse Data and Privacy Protections to Silence Online Media

A whole industry of reputation management has been spawned online with companies dedicated, through means fair and foul, to gaming the system in favor of their clients. An investigation by Qurium shows how some are utilizing intimidation and deception in campaigns to suppress unflattering information in the online press.

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Around the world, the internet has become an important source of information, influencing decisions on everything from news and politics to shopping and recreation. Employers today will use internet search engines to check out prospective employees just as voters are likely to “google” politicians they are considering voting for. The search engines, of which Google is the most dominant, categorize the mass of available online information on any particular topic into consumable chunks and decide which ones are most relevant for any particular search.

With so much resting on search results, it is no surprise that a whole industry of reputation management has been spawned with companies dedicated, through means fair and foul, to gaming the system in favor of their clients. While some engage in enlightened best-practice, such as optimizing content and websites for the search engines, others are practitioners of the dark arts, utilizing intimidation and deception in campaigns to suppress unflattering information.

According to its website, the Spanish firm, Eliminalia “was born to ensure every individual and company maintains its privacy and network security, regardless of the uncensored information that has been posted on the Internet – whether malicious, incorrect, or embarrassing”. In short, its mission is to erase internet content its clients consider objectionable. Media reports in August last year – denied by both parties – claimed that Kenya’s Deputy President, William Ruto, had retained the company to spruce up his online image as he prepares for a run at the country’s presidency in 2022.

While some engage in enlightened best-practice, such as optimizing content and websites for the search engines, others are practitioners of the dark arts, utilizing intimidation and deception in campaigns to suppress unflattering information.

However, the techniques the company utilises are not always transparent and could even be illegal. A newly released investigation by Qurium has found that the company is involved in a campaign of intimidation and deceit using fake lawyers and impersonating regulators to threaten websites into taking down content, and creates fake websites to manipulate search results.

In an initial report summarising some of their findings, Qurium shows how the Digital Millennium Copyright Act (DMCA), a US law enacted in 1998 that requires hosting services and internet service providers to take down content when notified of copyright infringements, and data protection regulations as the EU’s General Data Protection Regulation (GDPR), are systematically abused to restrict the freedom of the press, particularly when investigating corruption or abuses of power.

Some of the techniques used by Eliminalia to eliminate, modify or de-index content from the Internet identified by Qurium include creating copies of original content in other websites, backdating it and then filing a DMCA complaint to Google for copyright infringement. Thanks to research access granted by the Lumen Database, Qurium found several identities used by Eliminalia to file such complaints. The company also sends fake GDPR abuse reports using fake legal e-mails and domain names.

De-indexing agreement

Part of a de-indexing agreement

De-indexing is a process that involves removing a website from the search engine’s index but not from the page where it originates which means that a website or a specific URL stops being seen in search results. The Google search engine will automatically de-index content that it determines is not original, that is, which has been previously published on another web page. Cloned websites abuse this by making it difficult for the search engine to determine which is the authoritative source.

One of the methods to push down results in search engines is to clone the full content of the websites in similar domains. During the cloning of the content, all articles that their clients do not want to be published are avoided. This strategy is consistent with their definition of de-indexing in their contracts.

The forensic analysis by Qurium determined that Eliminalia creates fake domain names and impersonates the EU Commission in order to send fake take down requests. The company also submits fake copyright complaints to Google and clones original articles from websites in an attempt to de-index content from search engines. It also uses hundreds of fake newspapers hosted in the Ukraine to support disinformation campaigns on Social Media.

The Google search engine will automatically de-index content that it determines is not original, that is, which has been previously published on another web page. Cloned websites abuse this by making it difficult for the search engine to determine which is the authoritative source.

The Elephant has been among those targeted by such content take-down campaigns. They involve notices from fake legal firms claiming copyright infringement or invoking data protection legislation and demanding removal of the content without revealing the identity of who is paying for their legal services.

After exchanging dozens of e-mails with different “lawyers” in the course of several months, Qurium, which provides secure hosting services for human rights organisations and independent media – including The Elephant – from more than twenty countries, managed to identify those behind such campaigns and the infrastructure that has been put in place to support such businesses.

Emails from IP addresses associated with Eliminalia, which has registered offices in Spain, the US and the Ukraine, were sent to Qurium, purporting to be from lawyers and from the Legal Department of the European Commission in Brussels demanding removal of articles related to corruption in Angola involving Isabel dos Santos or Vincent Miclet.

The Elephant has been among those targeted by such content take-down campaigns. They involve notices from fake legal firms claiming copyright infringement or invoking data protection legislation and demanding removal of the content without revealing the identity of who is paying for their legal services.

One of the emails concerned a story published in The Elephant two years ago regarding French businessman Vincent Miclet’s corruption-tinged exploits in Angola. It was sent February this year to one of Qurium’s internet service providers in the Netherlands by one “Raul Soto” claiming to be from the Legal Department of European Commission.

Fake take down requests

Fake take down requests

The physical address provided was actually that of Regus, an office space rental agency in Brussels, Belgium, which happens to be situated in front of one of the buildings of the European Commission. However, the information on the header shows that the email was actually sent from a Ukrainian IP address using a server in France.

The domain it was sent from, abuse-report.eu, appears to have been registered in September last year for the sole purpose of sending fake data protection complaints as it lacks a website or other contact details. Queries on both Censys and Shodan, which are internet search engines that enable researchers to probe hosts, networks and devices, quickly revealed that Eliminalia was behind the fake setup.

Who.is data on the abuse-report.eu domain name

Who.is data on the abuse-report.eu domain name

A further examination of the internet infrastructure of Eliminalia in the Ukraine found that several of their servers are within an IP address range (62.244.51.50 – 62.244.51.58) which includes the servers of World Intelligence Ltd, a company registered to Diego Sanchez. Diego (Didac) Sanchez Jimenez/Gimenez is also the founder and CEO of Eliminalia. World Intelligence Ltd. hosts almost 300 fake newspapers which are used to run all sorts of “information campaigns” and to clone existing websites in order to “de-index” content out of search engines.

To understand how the 300 fake newspaper websites were used and whether they were used in a coordinated manner, Qurium analysed 3,000 articles published by them during one calendar month. They found that many of the newspapers shared common articles and groups of them posted the same content simultaneously.

The domain it was sent from, abuse-report.eu, appears to have been registered in September last year for the sole purpose of sending fake data protection complaints as it lacks a website or other contact details.

Apart from trying to de-index content from Google Search, they also found that clusters of websites are used to promote fake content. For example, a campaign targeting the Tanzanian whistle-blower website Fichua Tanzania used social media and a cluster of websites to distribute the fake news.

Campaign bots use dozens of registered domains to run disinformation campaigns against a target.

Campaign bots use dozens of registered domains to run disinformation campaigns against a target.

The dangers posed by such tactics to democracy are obvious. Information is the oxygen of democracy, allowing citizens to hold governments to account and to accurately assess their options when making selections in voting booths. Much of this information is today to be found online where it is curated by search engines. However, when companies use laws meant to protect online privacy and guard against copyright theft are abused to silence the press, and when they use fraudulent means to manipulate search results, then the public is deprived of the tools it needs to meaningfully participate in democracy.

This is a problem for the search engines as well. Trust is the currency of the internet. Left unchecked, companies like Eliminalia will inevitably damage public confidence in the results delivered by the engines and thus the public’s propensity to use them.

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Long Reads

The True – Hidden – Cost of the Proposed Lamu Coal Plant

The claim by Amu Power that the proposed Lamu Coal Plant will generate cheap electricity and provide employment does not hold up to scrutiny.

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It is common knowledge that coal has significant impacts on the environment, human health and livelihoods, and oceans and marine life yet Amu Power, the entity behind the proposed 1,050 MW Lamu Coal Plant, is minimising these risks and arguing that the plant is necessary on economic grounds.  Their arguments do not hold up under scrutiny.

Amu Power makes three claims about the plant:  1) that it will provide cheap electricity – their marketing states that the plant will provide electricity at KSh7.8/kWh; 2) that it will create employment opportunities for Kenyans; and 3) that inexpensive electricity from the coal plant will spur manufacturing in Kenya and transform the country into a middle-income economy by 2030.

In January 2021 the Kenya Power and Lighting Company (KPLC) sold electricity to domestic consumers at KSh24.06/kWh. In comparison, the KSh7.8/kWh promised by Amu Power looks great. But that is what KPLC, not its customers, will pay. This amount is a component of only one line item, known as the Fuel Cost Charge (FCC), of the total cost per kilowatt hour that KPLC charges consumers.

In January 2020, the Fuel Cost Charge was KSh2.58/kWh for residential and commercial consumers. This means that the electricity Amu Power is offering is at least three times more expensive than what KPLC is currently paying.

That in itself should put an end to any economic argument for the Lamu Coal Plant.  However, and as we shall see, the true costs of this plant are much higher.

1) Claim: Coal as a cheap source of power

Three inputs to the cost-of-electricity equation demonstrate that power from the plant will always cost more than KSh7.8/kWh and will therefore never be competitive against renewable resources:  1) price of coal; 2) capacity factor; and 3) hidden costs.

Price of coal: When Amu Power sold the idea of the Lamu Coal Plant to Kenya in 2014, their plan was to import coal from South Africa because there will be no coal available in Kenya to fuel the plant in the foreseeable future.

Amu Power’s claim that electricity from the plant would cost KSh7.8/kWh was based on a coal price of US$50/metric tonne. However, even at the time they made the claim, the average price of South African coal delivered to Kenya was already 50 per cent higher — over US$77.3/metric tonne. Coal prices fluctuate and so will the cost of power from a coal plant. At least once in the past six years, South African coal has been higher than US$106/metric tonne — more than twice what Amu Power quoted to convince the Kenyan government to give the company a permit.

The Power Purchase Agreement (PPA) between Amu Power and KPLC provides formulae to calculate the cost of electricity from the plant. Inputting a coal price of US$77.3/metric tonne — with all other of the proponent’s assumptions holding steady — increases the cost of electricity from the plant to KSh8.98/kWh. At a coal price of US$106/metric tonne, it would go up to KSh10.21/kWh.

In 2017, the Ministry of Energy and Petroleum (MoEP) projected the price of coal will be USD$108/tonne in 2040. That would make the cost of electricity from the Lamu Coal Plant at least KSh10.27/kWh, almost four times the FCC today.

Cost of electricity based on price of coalBut accounting for a more accurate cost of coal does not bring to an end the adjustments necessary to Amu Power’s fantasy pricing. There are two other factors that must be taken into account to arrive at a more realistic price for the electricity from the proposed coal-fired plant.

2) Capacity Factor:  This is the actual amount of electricity generated by a plant as compared to the maximum amount it can produce. Amu Power’s projected price of KSh7.8/kWh is not only based on an inaccurate price of coal, but it is also based on the assumption that the plant will run at 85 per cent capacity.  For context, the global average utilisation for a coal-fired plant in 2019 was 54 per cent.

According to Amu Power, at 85 per cent capacity the Lamu Coal Plant would generate 7,305 gigawatt hours of electricity each year, which would enable it to meet the inflated demand forecasts presented in the MoEP’s 2011 Least Cost Power Development Plan. Based on more realistic demand forecast scenarios, in 2017 the Ministry calculated that the plant would generate – at most – only a third of Amu Power’s pledge. More damaging, in 2020, the MoEP calculated that in a fixed-case scenario the Lamu Coal Plant would operate at 2.8 per cent in 2030, at 4.6 per cent in 2035, and at 14.4 per cent in 2040. In an optimized, best-case scenario, the MoEP calculated that the plant would reach an operating capacity of only 26.2 per cent in 2040 (two-thirds into its lifespan). Therefore, based on the MoEP’s own calculations, Kenya does not need a 1,050 Mw coal plant.

The PPA commits ratepayers to paying Amu Power KSh37 billion annually for each of the 25 years the plant is expected to operate – a total of KSh900 billion. This capacity payment – approximately KSh100 million every single day – will be paid regardless of how much electricity the plant produces. If the plant is operating, the annual capacity payment is amortised and included in the price we pay per kWh for electricity.  That is significant because the higher the capacity factor, the less we pay per kWh.

The MoEP’s 2020 calculation that in an optimised, best-case scenario, the plant will operate at 26.2 per cent capacity – and not the 85 per cent capacity that Amu Power needs to make their electricity even marginally cost-competitive with geothermal and wind – is thus significant because a change in the capacity factor has more of an impact on the price of electricity from the plant than a change in the price of coal.

Coal-fired electricity from the proposed Lamu Coal Plant will be two to ten times more expensive than from current sources of generation.

If the plant operates at 26.2 per cent, the cost of electricity will be KSh19/kWh (using Amu Power’s claim of US$50/tonne). But if we also include a more realistic price of coal (US$77.3/tonne – the actual price in 2014), electricity from the plant would cost KSh20/kWh. Using the most recent highest price of South African coal (US$106/tonne), the cost would be KSh21/kWh, nearly eight times what we are paying now.

Cost of electricity based on price of coalWhen the Institute of Energy Economics and Financial Analysis (IEEFA) analysed the 2017 MoEP data, it found that the plant would more likely run at between 5 per cent and 34 per cent capacity. If the plant runs at 5 per cent capacity, the price of electricity increases by KSh79.3/kWh, and at 34 per cent capacity, it goes up by KSh7.4/kWh, for a price range of between KSh15.2 and KSh87.1/kWh (assumming coal were miraculously available at US$50/tonne).  If coal were at US$77.3/metric tonne, the price of the electricity generated by the Lamu Coal Plant would be between KSh17/kWh (at 34 per cent capacity) and KSh88/kWh (at 5 per cent capacity).

Cost of electricity based on price of coalPlotting the price of electricity under the MoEP fixed-case scenarios, things look even worse.  At 2.8 per cent capacity – assuming US$$77.3/tonne of coal – electricity from the plant would be KSh154/kWh, at 4.6 per cent it is KSh95/kWh, and at 14.4 per cent it is KSh33/kWh.

This is not looking good for Kenyans. But there are more adjustments needed to generate a more realistic price of electricity from the Lamu Coal Plant.

3) Hidden Costs:  There are two hidden cost centres that make the economics of the plant even worse for Kenyans – the Power Purchase Agreement itself and unaccounted-for construction costs.

The PPA and Letter of Support signed by the Kenyan government guarantee that Amu Power will be paid KSh37 billion annually for providing a plant to generate electricity – even if the plant does not produce a single kilowatt. These two documents guarantee that the Government of Kenya will pay Amu Power if the plant ceases to operate due to a political event, a change in the law, or a force majeure event including acts of God, epidemics, plagues, terrorism, labour disputes, public unrest, or piracy.

If the Government of Kenya is on the hook for the bill, this means that Kenyans will need to pay extra to ensure that Amu Power makes its profits for the remainder of the 25 years.  Based on the amount of electricity consumed annually in Kenya in 2018 and 2019, paying the KSh37 billion to Amu Power via KPLC would increase the price of electricity by KSh4.6/kWh for 25 years.  We would not be getting even a kilowatt of electricity for this tariff while Amu Power owners would be doing nothing and still making billions off the backs of Kenyans.

The other hidden cost is that of construction. In order for the electricity generated in Lamu to be available on the national grid, a transmission line must be built to transport the electricity from Lamu to Nairobi and in order for coal to get from the proposed mine in Kitui, a railway line must be built from Kitui to Lamu. Neither of these costs is included in the price of the plant.

The latest Least Cost Power Development Plan 2020-2040 estimated that the transmission line will cost approximately KSh55.9 billion.  The Environmental and Social Impact Assessment (ESIA) estimates that the railway line will cost KSh290 billion.  In addition, prior to coal being sourced from Kitui, a 15 km conveyor belt must be built to bring the coal that is delivered to the port at Kililana in Lamu to the site of the coal plant at Kwasasi. The ESIA does not provide a cost for the conveyor belt.

Amu Power owners would be doing nothing and still making billions off the backs of Kenyans.

Together, the railway and transmission lines add at least an additional KSh345.9 billion to the cost of the plant.  Because the costs for transmission lines and railroads were not included in the formula calculating the price of electricity from the Lamu Coal Plant that was disclosed in the PPA, we do not know if our electricity bills will increase per kWh to cover the cost of these necessary components of the plant or if, instead, Kenyans will pay for this via taxes. A rough calculation using the formula for electricity pricing shows that if KSh345.9 billion is repaid over 25 years via our utility bills and the plant is operating at 26.2 per cent capacity (the MoEP’s best-case scenario), the cost will increase by an additional KSh6/kWh.

Looking at the reality of the price of coal inputs, plant utilisation, and the full cost of construction, it is clear that the Lamu Coal Plant cannot possibly generate electricity for KSh7.8/kWh. It is much more likely that the electricity from the coal plant will cost KSh26/kWh assuming a more realistic cost of coal (US$77.3/tonne), with the plant running at 26.2 per cent capacity as predicted by the MoEP, and that rail and transmission costs are amortised over the 26.2 per cent capacity factor.

It is possible for the cost to be as low as KSh15/kWh if the cost of coal is US$77.3/tonne and the plant operates at the international average of 54 per cent utilisation, with rail and transmission costs amortised over 54 per cent capacity factor. Or it could be as high as KSh213/kWh if coal costs US$100/tonne, the plant operates at the 2.8 per cent utilisation rate in the MoEP’s lowest fixed-case scenario, and rail and transmission costs are amortised over the 2.8 per cent capacity factor.

Cost of electricity based on price of coal2) Claim:  Coal as an employment creator

The Lamu Coal Plant Environmental Impact Assessment states that the plant will employ between 2,000 and 3,000 people during the 42-month construction period and 400 people during its 25 years of operation.

While on the face of it this seems like a good thing for Kenya, it is important to look closely at the jobs lost due to the construction and operation of the plant, the jobs gained, and who gets these jobs.

To explore this, we can look at the two main industries in Lamu, tourism and fishing. Pre-COVID data found that tourism injects over Ksh2 billion per year into Lamu’s economy and pays over KSh500 million in taxes each year. This sector directly employs more than 3,000 locals in hotels and restaurants and several thousand more as boat operators for the visiting tourists, and tourist guides.

Particulate emissions from the coal plant will result in significant damage to the historic buildings and structures in Lamu Old Town, a UNESCO World Heritage Site. The effluent emissions will cause ocean temperatures to rise, destroying the coral reefs and increasing toxicity which will make it unsafe for tourists and locals to swim, snorkel, and dive.  With the plant in operation, Lamu will no longer be a pristine and unique tourist attraction.

Most significant is the impact of the smoke from the stacks at the plant. The Kaskazi winds blow from October through May, when the island welcomes 80 per cent of its tourists. The winds blow from the northeast – the direction of the plant – and across the archipelago.  This air will carry the toxic, noxious emissions from the plant to Lamu as well as cause haze pollution that will reduce visibility of the shoreline so beloved of tourists and locals.  The Lamu Tourism Association expects that business will drop by at least 80 per cent due to this pollution.  As such, the industry expects to lose, at a minimum, 2,400 jobs. There are not many alternative sources of income in Lamu and most of these people will be permanently unemployed.

Together, the railway and transmission lines add at least an additional KSh345.9 billion to the cost of the plant.

The approximately 6,000 people who derive their livelihoods from participating in Lamu’s KSh1.5 billion fishing industry will be similarly affected.  Most are local fishermen who use hand-crafted fishing boats and equipment to fish close to the shoreline.

The plant’s emissions and effluent, and the leachate from coal ash waste which is to be stored in a flood zone along Manda Bay, will increase the nitrogen content, water temperature, and heavy metals and carcinogens in the bay. This will negatively impact the quantity, quality, and health of fish and shellfish.

As the water in the bay becomes inhospitable for fish, the industry will move farther into the Indian Ocean. Unfortunately, the boats and equipment used by most of the local fishermen are not appropriate for deep ocean fishing. The move to deeper waters also leads to a transformation and consolidation in the industry where larger companies with petroleum-based deep-sea fishing vessels make it noncompetitive for local independent fishermen even if they were to obtain the necessary boats and equipment.  In addition, not as many fishermen are needed on the commercial vessels and few locals will be able to retain their jobs. The work requirements on a commercial fishing boat are such that the Chair of the Lamu Beach Management Unit estimates that only 1 per cent of current fishermen will find work on commercial vessels and that 70 per cent of local fishermen will completely lose their livelihoods.  The rest of the fishermen are expected to find other, non-fishing, work locally.

Amu Power has falsely led the public to believe that locals who may lose their jobs due to the coal plant will gain employment during its construction and operation. But they are not transparent about who will get these jobs.

If built, the Lamu Coal Plant would be the first in East Africa. This means that, as a country, we do not have the experience and expertise needed to be among the skilled workforce that will get the better-paying jobs. The coal plant’s Environmental and Social Impact Assessment confirms that 1,700 Chinese expatriates will construct the coal plant leaving us with between 300 and 1,300 jobs to allocate to Kenyans during the construction phase of 3.5 years — less than half what was promised, even in a best-case scenario. The jobs allocated to Kenyans are not skilled labour and do not make up for the thousands who will have lost their livelihoods due to the impacts from the plant.

The ESIA states that the plant will employ 400 people once it is operational. It does not disclose how many of these positions will be technical, requiring experience and expertise that we do not yet have, nor how many will be unskilled jobs – such as coal handling, which comes with health risks – given to Kenyans. Even so, 400 jobs over 25 years neither reemploys the number of local fishermen and people in the tourism industry who will have lost their jobs due to the plant, nor reduces current levels of unemployment in the region.

Amu Power has falsely led the public to believe that locals who may lose their jobs due to the coal plant will gain employment during its construction and operation.

The plant will therefore create job opportunities for expatriates at the expense of thousands of fishermen and locals who are dependent on fishing and tourism as a source of employment while creating – at best – 1,700 jobs over a 25-year period and causing approximately 4,200 job losses in the fishing industry and 2,400 in tourism – a net loss of 4,900 Kenyan jobs.

3) Claim:  Coal will help Kenya transform into a manufacturing economy 

Manufacturing is one pillar of President Kenyatta’s Big Four agenda. The government’s aim is to raise the contribution of manufacturing to GDP from the current for 9.4 per cent of constant-price [inflation-adjusted] GDP to 20 per cent of GDP by 2022. Amu Power has sold the point that coal provides inexpensive baseload power that is required to boost Kenyan manufacturing to achieve President Kenyatta’s goals. Baseload electricity is the electricity that is always available to commercial and residential consumers. Coal plants run 24-7 so historically they have been used for baseload electricity (as have natural gas and diesel turbines). In contrast, wind and solar are considered intermittent sources of electricity because wind does not blow and the sun does not shine 24 hours a day, 365 days a year.

But Amu Power ignored two things:  1) there are less expensive options for baseload power in Kenya and 2) coal-fired electricity will increase the cost of manufacturing in Kenya.

1) There are less expensive options. Amu Power’s claim that Kenya needs coal for its baseload electricity ignores both that coal is more expensive per kilowatt hour than natural gas and wind power and – more significantly for Kenya – that it is cost competitive with geothermal. Kenya has among the highest geothermal potential in the world – 7,000 to 10,000 MW.  Unlike wind and solar, geothermal energy is available for electricity generation 24 hours per day, every day of the year. Unlike coal, it is locally available and is not dependent on purchasing fossil-fuel inputs whose costs fluctuate wildly on international markets.

Kenya’s Least Cost Power Development Plan 2017-2037 states that the price of power from geothermal plants is, on average, about a third the cost of electricity from coal: US$10 cents/kWh compared to US$29.5 cents/kWh.  Because geothermal (like wind and sunshine) is free, it is less expensive in the long-term than coal-fired electricity (and has none of the environmental impacts of coal which increase the community’s burden of costs for environmental clean-up and healthcare due to increased cases of pulmonary and cardiac diseases).

Unlike coal, geothermal energy is locally available and is not dependent on purchasing fossil-fuel inputs whose costs fluctuate wildly on international markets.

2) Coal-fired electricity will increase the cost of manufacturing in Kenya. Considering more realistic capacity factors and the prices of coal, rail, and transmission lines, the cost of electricity from the Lamu Coal Plant ranges from KSh15 to KSh213/kWh (instead of the KSh2.58/kWh commercial enterprises paid for FCC in January 2021).  If the Lamu Coal Plant is built, the price of electricity for industry could be more than ten times higher than what they are currently paying (in January 2021, commercial consumers paid between Ksh14.61 and KSh23.82 per kWh of electricity).

In order to manufacture with such electricity costs, the prices of goods produced in Kenya would also have to increase, rendering Kenyan products uncompetitive locally and undesirable on international markets.

Conclusion

None of the three claims made by Amu Power to convince the government that Kenyans not only need, but will benefit from, a coal plant hold up under examination.  Coal-fired electricity from the proposed Lamu Coal Plant will be two to ten times more expensive than from current sources of generation, causing dramatic increases in our electricity bills. The Lamu Coal Plant will create jobs for Chinese expat workers and cause an overall loss of 4,900 Kenyan jobs.  The cost of electricity from the Lamu Coal Plant will make manufacturing in Kenya so expensive that not only will the country not deliver on the president’s Big Four Agenda, but Kenyan goods will become non-competitive on local, regional, and international markets.

The poor economics of the Lamu Coal Plant will be disastrous for Kenya’s economy. It will make electricity unaffordable for most Kenyans and will eliminate competitive growth in the manufacturing sector. Furthermore, with the Lamu Coal Plant saddling Kenyans with billions in debt and hundreds of megawatts of expensive excess generation capacity, the Kenyan government will be prevented from investing in sustainable, low-cost, local sources of electricity generation, hampering the country’s economic development for decades.

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