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Unrecognized Vote: Somaliland’s Democratic Journey

12 min read.

If Somaliland’s democratic transition is to last, there must be strict regulation of the behaviour of political parties and the National Election Commission must be re-evaluated.

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Unrecognized Vote: Somaliland’s Democratic Journey
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Somaliland reinstated its independence in 1991 following the collapse of the military regime that had ruled Somalia for two decades. The Somali National Movement which took over the northern regions facilitated a broad-based conference in Burco attended by traditional leaders of all six regions of Somaliland who unanimously agreed to the dissolution of the union with Somalia and proclaimed independence on 18 May 1991.

The conference also established Somaliland’s first government, based on the SNM’s organisational structure, with its Chairman, Abdirahman Ahmed Ali, becoming Somaliland’s first executive president and the SNM Central Committee functioning as the country’s first parliament. It had a two-year mandate, and was tasked with accommodating non-Isaaq clans into the government, developing a constitution and preparing Somaliland for elections.

The new country continued to suffer violence and weak institutions, with elders stepping in to prevent degeneration into protracted civil war. In 1992, the first of two major clan conferences, held in Sheekh, created the national Guurti, or council of elders, bringing together elders from all the clans responsible for controlling clan militia and preventing conflict, as well as defending the country.

The 1993 Borama Conference 

The second major clan conference assembled in Borama, a city in the West of Somaliland, for nearly five months in 1993. It eventually produced a National Charter which established government structures and the separation of powers for a transitional two-year period, pending the adoption of a new constitution. The charter included the creation of a bicameral parliament, with the Guurti formally institutionalised as the upper house, and the lower house made up of elected representatives. A clan-based electoral college elected Mohamed Haji Ibrahim Egal president for two years as well as members of the guurti and the lower house.

The political system established in 1993 became known as Shirbeelad, meaning “clan” or “community,” integrating indigenous forms of institutional arrangements with modern institutions of government. It was only meant to be in place for three years but lasted a decade.

Following the transition of power from the SNM leader Abdirahman to Egal, the new administration now had two years to prepare an interim constitution for approval by parliament and the upper house. The process proved to be time-consuming, necessitating extensions of the charter’s deadline.

Ultimately, two drafts were produced. In 1994, the government hired a Sudanese lawyer to write the constitution while the House of Representatives appointed an ad-hoc committee advised by lawyers, traditional leaders, religious figures and politicians which, suspecting the government’s draft would give excessive power to the executive branch, drafted an alternate version. Following deliberations to reconcile the two documents, a unified draft was adopted as the interim constitution in 1996, with a three-year implementation period leading up to a referendum. A final, revised constitution was approved by both houses on 30 April 2000 and overwhelmingly endorsed by 97 per cent of voters in a public referendum held on 31 May 2001.

The local government and parliamentary electoral system

The constitutional referendum paved the way for popular elections. The first set of municipal and national elections held between 2002 and 2005 were conducted by a novice electoral commission with almost no international technical and financial support and without many of the accoutrements of modern elections such as censuses, comprehensive voter registers and voter education. Though not without problems, disagreements and accusations of malpractice, the elections were considered largely credible, free and fair, and their outcomes were widely accepted.

The constitution defined a new political system for Somaliland — a democratic, multi-party system, in which the head of state and members of parliament and district councils would be elected directly by the public by secret ballot, instead of through electoral colleges of elders.

Within two years, a body of laws was passed to facilitate formation of political parties, define citizenship, delineate the structure of local government, and lay down electoral procedures. The laws provided for a seven-member Registration Committee which administered the registration process for political parties as well as the process of qualifying three to become national parties as stipulated by the constitution. The constitutional limitation to the number of national parties was meant to prevent the political system from fracturing along clan or regional lines.

The first local government elections were held In December 2002. Voter registration was only carried out in urban areas, with around 330,000 people being registered. However, on polling day people were allowed to vote irrespective of whether they had a registration card or not (and were then marked with indelible ink).

Six registered political formations qualified to compete in the polls, with the top three in terms of number of seats won recognised as national parties which could field candidates in national elections, including for the position of president. The successful parties were Egal’s UDUB, Kulmiye and UCID. European Union observers declared the elections — during which 440,000 votes were cast — to be “of as high a quality as is realistic within the prevailing environment”.

The presidential polls

In 2003, with the presidential elections fast approaching, President Dahir Riyale Kahin, who had succeeded Egal after the latter’s death in May 2002, met with the three national parties and agreed on the composition of the seven-member National Election Commission. The president and the Guurti would each nominate two commissioners while the political parties would pick one each.

The elections were held on 14 April 2003, pitting President Riyale of UDUB, Ahmed Mohamed Silanyo of Kulmiye and Feisal Ali Hussein of UCID. The result was a wafer-thin victory for the incumbent, who won by just 80 votes out of the 500,000 cast. The Kulmiye Party immediately asked for a recount at some of the polling stations but this did not change the original tally. The result was eventually challenged in the Supreme Court which endorsed Kahin’s victory. Silanyo conceded and Kahin was sworn in on 16 May.

Many who were uncertain and wary of a disputed election and its consequences, expressed gratitude to the Kulmiye leader, Silanyo, for his incredible decision. A seasoned politician, Silanyo had weighed the situation and seen the turmoil that lay ahead. He sacrificed his own political and party ambitions in order to save the fragile democracy. Given that he had served the longest in the SNM leadership and was from the dominant Isaaq clan, Silanyo’s concession removed the latent suspicion that the powerful Isaak would establish hegemony over the other clans.

2005 legislative elections

On 29 September 2005, Somaliland held its first, and so far only, multiparty contest for the 82 parliamentary seats. The 82 members of the house were elected on the basis of proportional representation. UDUB won with 33 seats, Kulmiye garnered 28 and UCID captured 21.

Smarting from their 2003 presidential loss. Kulmiye and UCID blocked or rejected any motion from the executive branch. It was the beginning of political tensions in Somaliland, which crippled the cohesive nature of Somaliland democracy. The parliament elected in 2005 is still glued to their seats because the opposition political majority in the house has continued to filibuster and shoot down any progressive motion pertaining to elections.

He sacrificed his own political and party ambitions in order to save the fragile democracy.

It was only after the 2005 elections that political stakeholders agreed to establish the first voter registry. A law was enacted in 2007 to govern the process and, following some amendments, voter registration proceeded in 2008. It was, however, briefly suspended following suicide bombings in Hargeisa on 29 October 2008, and was also marred by widespread fraud and mismanagement. Nearly 1.3 million names were collected throughout the country, each of which was meant to be validated through a biometric fingerprint system. According to Michael Walls —  Co-Coordinator of the international election observation mission for the Somaliland presidential election in 2009 and lecturer at University College London — registration centres permitted more than half of those registering to do so without taking a readable fingerprint and “large numbers were permitted to hold photos in front of the camera rather than presenting themselves for the purpose”.

The 26 June 2010 presidential election 

With the term of President Kahin expiring in May 2008, the voter registration exercise was meant to facilitate municipal and presidential elections. However, the polls were repeatedly delayed because of infighting within the higher political circles, specifically between the parliament, opposition leaders and the president, necessitating two extensions of his term. As provided for in the constitution, the Guurti approved the president’s request for an extension of his term and that of parliament to March 2009 due to the instability in the eastern regions. The second extension occurred at the request of the NEC which needed another year to prepare for the polls due to the prevailing political situation, economic problems and technical issues.

The elections were finally held two years late — on 26 June 201 — and were again contested by Kulmiye, UDUB and UCID. Nearly 540,000 voters cast their ballots across the country on election day, electing Kulmiye leader Silanyo, with 50 per cent the vote. It was now Kahin’s turn to gracefully concede and Silanyo was sworn in on July 26 in a ceremony attended by delegations from across East Africa, including officials from Kenya, Djibouti and Ethiopia.

Local government elections in 2012

On 28 November 2012, Somaliland held its second round of local council elections, the results of which, like the first a decade earlier, would  determine the three national political parties that could contest national elections for the next decade. Though largely free and relatively peaceful, the elections were marred by multiple voting exacerbated by the lack of a voter register – the previous one having been nullified by parliament after it defied attempts to clean up the voter roll — and the ease with which supposedly indelible ink was removed.

With two of the three national parties in trouble — many of UCID’s supporters and MPs had transferred their allegiance to Wadani, a new political organisation, while UDUB, the party of the two previous presidents, was widely thought to be dissolving — there was space for new political formations. Five new formations contested the 2012 elections alongside Kulmiye and UCID. Despite some dispute and violence in the immediate aftermath, the results were accepted and Kulmiye, UCID and Wadani emerged as the national political parties.

Presidential elections 2017

On 13 November 2017, Somaliland conducted its third presidential election, its sixth popular national voting exercise in 15 years. The election — which had originally been scheduled for June 2015 but was delayed, initially at the request of the NEC and then due to the drought ravaging the country in January 2017 — saw three candidates competing to replace the incumbent Silanyo, who had decided to step down: Wadani’s Abdirahman Mohamed Abdullahi Irro, UCID’s Faisal Ali Warabe, and Kulmiye’s Muse Bihi Abdi. The polls, which were preceded by the rollout of a new biometric voter registration system, experienced considerable delay caused by technical and political challenges, and drought. Compared to over a million in 2010, 873,000 voters were registered, although only just over 700,000 actually collected the voter cards that would allow them to vote.

Once again, peaceful voting was followed by delays in the tabulation and collation of results, and allegations of malpractice. Violence led to some fatalities and the results were disputed, especially by Wadani which demanded a recount but eventually relented. On 21 November, Abdi was declared the winner with 55 per cent of the vote and became the country’s fifth president, cementing a tradition of peaceful handovers of power that is relatively rare in the region.

On November 7th 2020, as the country prepared for the long-delayed parliamentary and municipal elections that are now to be held at the end of May 2021, the National Electoral Commission (NEC) released the timetable for the voter registration exercise that was scheduled to start on November 29th 2020 and end on January 13th 2021. The voter registration exercise targeted those who had missed the 2016 voter registration exercise as well as those who had attained the voting age. The exercise would also be used to clean up the 2016 register. The NEC also gave voters who needed to change voting locations the opportunity to do so and to also replace lost voter cards.

Successes and challenges in the democratisation process

The Somaliland constitution contains fundamental principles strengthening citizens’ rights and freedoms, and emphasises the transition from clan-based politics to a multi-party democracy. However, political parties have not transformed themselves in terms of structure, vision and strategy. Rather than becoming vehicles for transmitting the noble constitutional principles of a multi-party system, in practice they derailed it and became clan-oriented in order to secure more votes. For example, they deferred to clan leaders in the selection of candidates, favouring those from the larger, vote-rich clans, ignoring the smaller ones, and generating conflicts and divisions between them.

The heteromorphic nature of Somali politics and democracy 

Somali society is considered ethnically homogenous, monolingual and singularly Islamic. However, it is characterised by an entrenched paternal clan system. These clans are communities of relationships that share common ancestral origins and are interrelated. Clan relations extend over clan territories marked by fluid borders. Upon birth, a Somali is given one name — their first name. The second name is their father’s, the third their paternal grandfather’s and so on and so forth until you arrive at the sub-clan name. Knowing one’s genealogy several generations back is of paramount importance in Somali culture; it is a primary identifier for the individual and the clan. This genealogical identity has been used successfully in Somaliland to curb crime, insecurity and terrorism. It is the most successful approach to community policing.

The clan therefore is at the core of politics in Somali culture. Clan groups became the basis of the political parties for the parliamentarian election in 1964, which meant that from the outset Somalia political parties had a strong clan consciousness. The political system adopted in the 1960s was a clan-based parliamentary democratic system that inevitably led to the politicisation of the clan and the death of ideological politics and democracy.

Clanism, nepotism and patronage

This is the omnipresent danger to all Somali political and democratic initiatives. In such a clan-based political system, the government must have robust and powerful institutions. The governance culture must also emphasise meritocracy over clanism, nepotism and patronage. Governance must be inclusive economically, socially and in terms of development and must be seen to be meritocratic in the filling of public office. The tenets of democracy are optimistic; they envisage a rational human society. But humans are often irrational and their decisions, beliefs and bias is born out of their own selfish interests and desires.

Democracy calls for one man, one vote, and victory to the majority. This is ideal in a democracy that practices ideological politics. But where ideology is replaced by clanism, the majority will always be the most populous clan or the most populous clan alliance. This denies a country visionary leadership because political contests are not based on ideologies, development agenda or unity.

Further, elections in Somaliland have been characterised by unnecessary postponements when politicians are uncomfortable either with the electoral laws or with the appointment of NEC members. For example, the 2008 presidential elections were postponed for two years due to the opposition severely pressuring the incumbent president on controversial issues related to the choice of NEC members.

The political system adopted in the 1960s was a clan-based parliamentary democratic system that inevitably led to the politicisation of the clan and the death of ideological politics.

More recently, between 2017 and 2019, opposition parties UCID and Wadani were at loggerheads with the president over the nomination of the National Electoral Commission. The opposition was challenging the president’s prerogative to increase the number of the NEC commissioners from seven to nine. That dispute led to the postponement of the elections to 2021.

The political parties have truly shackled many opportunities to develop true democracy in Somaliland. The parliamentarians elected in 2005 are still in office 16 years later due to the cycle of postponements driven by political parties. There is a light at the end of the tunnel, however, as new political parties are rising unburdened by the tedious process of using local government elections to select the parties to compete in national elections. The four-year delay in holding the local government elections now means they will be held on the same day as the parliamentary polls.

Due to this, on April 4th 2021 the Somaliland parliament drew up new criteria for identifying national political parties which will now be selected through a separate electoral process in all the six regions. The political organisations that obtain the highest cumulative votes from all six regions will qualify for the three spots, allowing them to run for national elections in future. This elective process for new political parties will most likely be carried out before the expiration of the 10-year period for the current three political parties in November 2022.

Significance of the May 2021 elections 

With 1.3 million registered voters (approximately 30 per cent of the population of Somaliland) expected to cast their votes — with 246 candidates gunning for 82 parliamentary seats and 966 vying for 249 district municipality seats in the six regions — these elections will be the most competitive yet. The outgoing parliamentarians were elected in 2005 and sat for 16 years, a decade longer than their mandated term limit. Similarly, the outgoing local government council was elected in 2012. The citizens of Somaliland are determined to bulldoze these unethical politicians. As stated earlier, the dysfunctional political parties are responsible for the postponements, while incumbent presidents have often played the game to gain more time on the throne.

The government will provide at least 80 per cent of the NEC’s budget, with international partners covering the rest. According to the NEC, it will be using biometric voter registration and a sophisticated voting system which university students have trained operate at the polling stations to ensure smooth operations with minimum technical errors and disruptions.

May 31 is of historic significance for Somaliland as it marks the 30th anniversary of Somaliland’s independence and the 20th anniversary of Somaliland’s multiparty democracy. It was on May 31st 2001 that Somaliland voters approved the constitution through a referendum. Somaliland youth born after 1991 have never had a chance to elect their parliamentary representatives.

Which way forward?

If Somaliland’s democratic transition is to last there must be strict regulation of the behaviour of political parties. Moreover, the structure, composition, competence and size of the National Election Commission must be re-evaluated and the best way to do this is to make its membership independent of political parties. The inclusion of political interests in an institution that is supposed to be a neutral adjudicator only destabilises and weakens the NEC with serious repercussions as the constant bickering brought on by political entities diminishes the trust that the electorate has in the organ. Elections are an emotive exercise in Somaliland especially since political compromise and consensus in Somaliland politics is almost absent. Further, the habitual postponing of the elections by the NEC, allowing elected officials to continue to hold seats beyond the end of their terms without the mandate of the electorate is a direct result of the inclusion of political stakeholders within the NEC.

May 31 is of historic significance for Somaliland as it marks the 30th anniversary of Somaliland’s independence and the 20th anniversary of Somaliland’s multiparty democracy.

The elders’ house is aged and incompetent; many of the key members have either died or are crippled. The Guurti is a powerful legal institution but it has not been re-elected since 1993; dead elders are replaced by their next-of-kin regardless of merit. The president must urgently form an ad-hoc commission to study the criteria required to elect the members of the upper house and laws to eradicate the postponement of elections and the extension of political mandates must be put in place.

And finally, mechanisms to engage citizens’ aspirations, to build trust and confidence in the democratisation process, seminars, lectures, debates and discussions may play a vital role, while the involvement of external experts/institutions will be necessary in providing training in democratisation, specifically for the upcoming parliament and the emerging political parties.

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Saeed Shukri is the founder and manager of Saryan Museum in Hargeisa, Somaliland.

Long Reads

Museveni’s Paradox, Class Dynamics and the Rise of the Hustler Politics in Uganda

In this long-read, Liam Taylor explores the politics and class dynamics of Kampala, Uganda. Taylor unpicks the enigma of Yoweri Museveni’s background – a former student militant who was taught by Walter Rodney, and argued for the necessity of revolutionary violence, socialism and radical transformations. Yet he soon became the apostle of neoliberal change, always promising that real change was forthcoming.

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Museveni’s Paradox, Class Dynamics and the Rise of the Hustler Politics in Uganda
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During thunderstorms in Kampala the rainwater comes rushing down the hillsides in torrents, through clogged drainage ditches and silty channels, inundating the valleys with sudden floods. The rich make their homes on the hilltops, where the rain runs off their paved compounds. The poor crowd into the wetlands, in one-roomed mizigo rentals sometimes built with small brick walls around the doorway, to hold back the impending tide. In Luganda, an ordinary person is omuntu wa wansi, literally, a “person from down”. It is a metaphor that maps onto the very contours of the city.

The ruptures in Ugandan politics can be seen in the contrast between those valleys and hilltops. January’s tumultuous election was a generational contest and a struggle against dictatorial power.  But it was also an eruption of class politics, embodied by the rise of Robert Kyagulanyi, a popstar-turned-politician best known as Bobi Wine. “If parliament will not come to the ghetto,” he said when elected MP in 2017, “then the ghetto will come to parliament.”

For Yoweri Museveni, now in his 36th year of rule, this upsurge is baffling. His self-proclaimed mission is to haul Uganda out of the sectarian logic of peasant society into the industrial age. In that brave new world, class would replace religion and ethnicity as the axis along which politics was organised. But the distortions of his rule have instead perpetuated old logics and blocked economic transformation, creating alternative forms of urban class politics that he can neither understand nor control. This long-read explores the politics and class dynamics of Museveni’s rule.

The next section explores Museveni’s sociological understanding of politics. Subsequent sections examine how its premises are undermined by the economic realities of neoliberalism and the rise of the “hustling class”. The conclusion considers how Museveni maintains his power in the Uganda he has created.

It’s not like in genesis chapter one

In the 1960s the western region of Nkore was going through a social upheaval. The spread of Christianity and colonial education had reconfigured relations between the high-status, cattle-keeping Bahima and the lowlier Bairu cultivators. Cash-cropping and enclosures were fuelling land conflicts. Politics had fractured along religious and ethnic lines.

The young Museveni was a schoolboy in Nkore at the time. He wrote later of his “revulsion at the sectarian politics in Ankole [which] was a microcosm of the sad story of political sectarianism in the whole of Uganda”. In 1967, when he enrolled at the University of Dar es Salaam, he found the intellectual tools to make sense of his experiences. Campus life was a cauldron of socialist and pan-African politics. Museveni attended a study group taught by Walter Rodney, and argued for the necessity of revolutionary violence in his dissertation on Frantz Fanon.

Museveni’s formative years in Nkore and Dar have shaped his politics ever since. They instilled in him the teleological notion that society progresses in stages from “backwardness” to “modernity”.  As a young man in Nkore he had trekked between kraals, encouraging nomadic cattle-keepers to “modernise” and  settle down. In Dar he learned a certain version of Marx’s historical materialism, with its dialectic unfolding from feudalism to capitalism to the coming era of communism. But he saw that if history had a direction, it could also be thrown off course. He thought that the petty local divisions in Nkore and the great divisions in African society had opened the door to imperialists and left the peasants poor.

In his speeches, Museveni still reiterates these themes of modernisation and unity. And yet they ring hollow. The long war he waged against the Lord’s Resistance Army has left a legacy of trauma and dispossession in the Acholi region of the north. In the Rwenzori mountains families mourn more than 150 people who were massacred by the army in 2016. There is resentment almost everywhere against the westerners, especially Bahima, who dominate the security apparatus. Division endures.

How can we reconcile Museveni’s political thought with his political practice?  The temptation is to reach for psychology: to insist either that he was a imposter from the start, or a young idealist corrupted by the spoils of office. But a better solution to the Museveni enigma lies in political economy. One way to read Uganda’s predicament is as a dialogue between Museveni’s ideas, refracted through militarism, and the international economic order which confronted him.

Museveni was never a liberal. Political competition is dangerous, in his view, because opportunists will sow division for personal gain. After fighting his way to power in 1986, he established a system of “no-party democracy”, in which candidates stood for office without party affiliation. His own National Resistance Movement (NRM) was to be the all-encompassing arena of politics, containing the fractures which had once torn the country apart. Calls for multiparty democracy were missing the point, he told other African leaders in 1990. Democracy was like water, which can exist as liquid, vapour or ice: “Yes, I need water, but let me determine the form which I want to use.”

Museveni, with his Marxist training, believed that political institutions were hostage to the material circumstances of their time. “A society like ours here is still preindustrial,” he said at Makerere University in 1991, “which means that it is still primarily a tribal society, and that its stratification is, therefore, vertical. In an industrialised society, on the other hand, you have horizontal linkages and, therefore, horizontal stratification.” For example, British workers had united around their common class interests, rather than their English, Scottish or Welsh identities. “An industrialised society is really a class society,” Museveni continued. “A multiparty system in an industrialised society is likely to be national, while the propensity of a similar arrangement in a preindustrial society is likely to be sectarian.”

That rather self-serving logic underpinned Museveni’s view that the wrong sort of democracy, too soon, threatens cohesion and thus hinders modernisation.  Even after a multiparty system was restored in 2005 – partly as a quid pro quo for the lifting of presidential term limits – the NRM remained the substrate of local politics. The leading opposition force, the Forum for Democratic Change, had itself splintered off from the ruling party. Politicians such as Kizza Besigye, the FDC’s tireless leader, were hounded by the police. They were treated less as rivals than as enemies of the state.

How do Museveni’s disciples think today? Last August, I spoke with David Mafabi, a presidential advisor and NRM ideologue. In 2017 he had convened a meeting to plot the removal of an age limit from the constitution – the last legal obstacle to Museveni ruling for life.

“We are a nation in the process of becoming, an unstable multinational entity,” Mafabi told me, in the same restaurant where that notorious meeting was held. “Democracy, constitutionalism, are not acts of creation. It’s not like in Genesis chapter one: let there be prosperity, stability and everything. No, it cannot be like that.”

NRM activists buzzed around us in canary-yellow shirts. “With the advent of industrialisation, the advent of capitalism, you’ve had individuals who have acted as midwives so to speak of new societies,” Mafabi continued. “And sub-Saharan African countries are generally overall at that point… Leadership in such societies gravitates around the charismatic, visionary leaders, who in themselves express the objective needs of societies at those critical times.” He listed examples. Cromwell. Washington. Napoleon.

A technocrat’s dream

In 1984 the British journalist William Pike went to meet Museveni in the bush. He found a self-confident guerrilla in faded fatigues with a “faraway look in his eyes… the look of a dreamer, a revolutionary”. But Museveni was also the kind of man who would spend an evening debating exchange rate policy. Minutiae obsessed him.

What kind of economic policy could Ugandans expect when, eighteen months later, a victorious Museveni was sworn in as president? Nobody really knew. Many NRM leaders assumed that their Marxist commander would not allow them to own land or businesses, writes Matthew Rukikaire, who had chaired the movement’s external committee during the war. It was only when Museveni himself started buying up cattle ranches that his comrades “breathed a sigh of relief and followed suit”.

Like many post-colonial intellectuals, Museveni had always been a nationalist first, and a Marxist second. “Socialism is not the main issue for Africa,” he told Pike in the bush, “the crucial issue is disengagement from strangulation by foreign interests.” Perceptive rivals poured scorn on Museveni’s radical credentials. As early as 1980, the socialist thinker Dani Wadada Nabudere dismissed Museveni and his comrades as “petty bourgeois anti-Marxist reactionaries”.

In power, Museveni initially resisted IMF-inspired structural adjustment, and even bartered with Cuba. But with inflation running at 191%, and foreign aid funding half of government expenditure, he soon changed course. “In his search for the new Jerusalem, President Museveni went to the precipice, peered over the edge and did not like what he saw,” writes Emmanuel Tumusiime-Mutebile, a liberal economist and the most influential technocrat of the Museveni era. “It was scary. That is why he will never go back.”

How do Museveni’s disciples think today? Last August, I spoke with David Mafabi, a presidential advisor and NRM ideologue. In 2017 he had convened a meeting to plot the removal of an age limit from the constitution – the last legal obstacle to Museveni ruling for life.

The Cold War was over. Free market ideology was at its zenith, pushed aggressively by the West. A new constitution and elections were still several years away. “Uganda was effectively a ‘benign dictatorship’,” write two foreign economists who worked as advisors to the Ugandan government in the 1990s. “The next few years were a technocrat’s dream.”

The government cut spending, crushed inflation and halved the number of public servants in just four years. The shilling was allowed to float freely. Foreign investors were welcomed with generous tax breaks. Between 1992 and 2007 the state sold its stake in 90 public enterprises, in sectors such as telecoms, banking, hotels, power, agro-industry and railways. Museveni still quoted “our friend Mao Tse-Tung” at startled World Bank officials, but his policies had made him a poster child for the Washington Consensus. When debt relief was granted to the Global South in the 1990s, Uganda was the first country to benefit.

And some things did get better. The proportion of Uganda’s population living below the World Bank’s extreme poverty line fell from 58% in 1989 to 36% in 2012. Over the same period, GDP growth averaged 6.9% a year, faster than in Singapore. Museveni lapped up praise – and money – from the Western governments that bankrolled him. The Washington Post columnist Sebastian Mallaby described Tumusiime-Mutebile, the top civil servant in a new economic super-ministry and later central bank governor, as “the greatest contributor to Africa’s struggle against poverty in his generation”.

But reforms premised on the power of the market were simultaneously blind to its failures. The withdrawal of the state from coffee marketing gave farmers a greater share of the export price, but meant they got little support to improve quality or withstand disease. Reduced tariffs on garments led to a flood of cheap imports, swamping domestic industry. The sale of parastatals was opaque and allegedly corrupt. Museveni’s brother Salim Saleh was tangled up in several notorious deals, from the sell-off of a state bank to the privatisation of cargo handling at Entebbe airport (the latter with Sam Kutesa, the president’s in-law, who was investment minister at the time).

There was a deeper problem too. Arthur Lewis, the St Lucian economist, famously observed that poor countries become rich ones through a process of structural transformation, as workers move from subsistence activities into more productive sectors. In east Asia, this kind of industrial revolution was steered by an activist state. But Museveni’s Uganda instead became a test case for neoliberal reform in Africa, with all of its achievements and failures: low inflation, industrial torpor, precarious employment, and the expansion of the informal services sector. There was some initial export diversification and manufacturing growth, especially in areas such as food processing, but by the mid-2000s progress had stalled (some recent experiments with industrial parks notwithstanding). As a share of employment, industry has shrunk. Poverty is rising again.

“The historical mission of the NRM,” Museveni said last year, “is to make the Ugandan jump on the historical bus of machine power and gunpowder power… and, as a consequence, cause the metamorphosis of our society into a middle class, skilled working [class] society and away from the society of peasants, low skill artisans and a miniscule and powerless feudal class.” By that standard, although he did not say it, his government has failed. The people hustle, as best they can: flogging second-hand clothes, baking bricks, hawking herbal supplements, burning charcoal, cultivating wetlands, or toiling in Arab countries as maids and guards. If Ugandans have jumped on any machine in the Museveni era it is the boda-boda, the motorbike taxi, spluttering over hills and round potholes, choking out fumes and frustration.  Museveni had once argued that economic transformation would create European-style class politics, which would make true multipartyism possible. But an industrial revolution has not come to pass. And so, by Museveni’s logic, democracy must wait.

The rich eat chicken but it is tasteless

But society is not static. Urban growth, a youth bulge and the informalisation of labour are producing new economic relations and identities. And perhaps the most important of these is the hustler, scraping by in the interstices of the city. In elite eyes, the hustler is an irritant and a threat. Intellectuals sneer about the “lumpen proletariat”. In Luganda, the lingua franca of the Bantu south, the hustler is often caricatured as a muyaaye (plural: bayaaye, adjective: -yaaye): a marijuana-smoker, a trickster, a thug.

Hustles, in many guises, have been around since the era of magendo, the black-market that flourished under Idi Amin. In those days Museveni was in Tanzania, trying to recruit Ugandan exiles into his guerrilla army. “These boys,” he wrote of one batch of idle recruits, “had mostly been working in towns like Nairobi and had a kiyaaye (lumpen proletariat) culture… They would start drinking and moving out of the camps.” He concluded that true peasants, uncorrupted by city life, were a more pliable material to work with.

But under Museveni’s rule the hustling class grew like never before. It was the hustlers – and not an industrial proletariat – that became the lifeblood of urban culture. By the late 1990s, when cheap recording equipment became available in makeshift studios, they were ready to take over the music scene, displacing the rustic kadongo kamu troubadours and imported Congolese soukous. “Eh, I remember in ’96 they called us bayaaye from Kamwokya,” sang one dreadlocked bad boy, mixing English, Luganda and street slang. “They said we stayed in the ghetto, in ramshackle houses, that we are failures / They say me come from a poor family / They don’t know ghetto life is the best.”

That singer was Bobi Wine, the man who now poses the greatest threat to Museveni’s regime. His People Power movement has been characterised, with varying degrees of accuracy, as a youth rebellion, a freedom struggle, or a rejection of Bahima dominance. But it is also, significantly, a class revolt. Bobi Wine – whose family had fallen into the ghetto, and who has long since clambered out – is the great rhapsodist of ghetto life, of its indignities, its promise. “Born hustling,” as he himself has said.

But under Museveni’s rule the hustling class grew like never before. It was the hustlers – and not an industrial proletariat – that became the lifeblood of urban culture.

The message is in the music. In “Ghetto”, released before a summit of Commonwealth leaders in Kampala: “Now see in Katwe that on the day the Queen comes, the poor man is cleared away.” In “Kikomando”, named after a cheap snack of beans and chapatti: “Sometimes you sleep hungry, sometimes you eat kikomando / and you think that God forgot about you / the rich are many and drive cars / they eat chicken but it is tasteless.” In “Situka”, the 2016 overture to his political career: “When leaders become misleaders and mentors become tormentors / when freedom of expression becomes a target of suppression / opposition becomes our position.”

These songs were an affirmation of all those who had been kicked down, boxed in, shut out. Young men like Rajabu Bukenya, from the flood-prone ghetto of Bwaise, in northern Kampala. Slight and neatly-bearded, he introduced himself to me by his street name: “Rasta Man e Bwaise Mulya Kimu” (Rasta Man in Bwaise who eats once a day). He dropped out in the third grade of secondary school, unable to afford the fees, and found work as a porter, lugging sand and bricks. These days he runs a small laundry business, and spends his spare time calling radio stations with the ten phones that he carries in his pocket.

“Bobi Wine also came from the ghetto – that’s why the people in the ghetto love him so much,” said Bukenya. “The pain they have, even Bobi Wine passed through that pain… Eating once a day, eating kikomando: in Uganda people don’t have money for food, they just eat chapatti and beans… We have nowhere to go. We have no money to buy land, to build a house. And the land we had in the village? The government took our land in the village.”

Another example: dawn, December last year, in Bobi Wine’s expansive garden, and a cluster of young women who had come to campaign with him. “I’m among those who are the oppressed Ugandans,” said Gloria Mugerwa, draped in a red gown. “The poor can’t access the medical facilities, the poor cannot access the education facilities.” She and her friends had worked as maids in Arab countries where, said Mugerwa, “you are treated as a slave”. In Bobi Wine she saw hope. “He has been through it, and he can help us through this.”

There can be a millenarian tinge to this sentiment: a naïve sense that if only Museveni were gone then Ugandans would “walk with swag”, as the People Power movement’s unofficial anthem goes. Despite his mural of Thomas Sankara and fondness for pan-African iconography, Bobi Wine and his closest associates do not seem especially curious about the dynamics of global capitalism. Yet the radical potential of the movement lies less in the singer himself than in the forces he represents.

Class dynamics have long rumbled beneath opposition politics, from the career of Nasser Sebaggala, a populist mayor of Kampala between 2006 and 2011, to the crowds that thronged behind Besigye. But it has burst to the surface in Bobi Wine’s party, the National Unity Platform, which is an uneasy alliance of young intellectuals, opposition stalwarts, the petit bourgeoisie and the hustling class. In the constituency of Kawempe North the party selected as its candidate Muhammad Ssegirinya, a former restaurant cleaner known as “Mr Updates” for his voluble social media presence. He beat off more established rivals for the party ticket, including a former deputy mayor, who has since accused Ssegirinya of forging his exam certificates – a telling line of attack. Bobi Wine, whose own academic credentials have also been questioned, once told me that Ssegirinya’s selection was evidence of “a system that drops the powerful and elevates the unknown”.

Even the NRM elite can feel the ground shifting beneath their feet. A year ago, I met Mike Mukula, a former health minister who fell from grace after he was accused of stealing money intended for medicines. These days he flies helicopters, drives fast cars and serves as one of Museveni’s vice-chairmen in the NRM.

Mukula laid out the classic Musevenist argument. “You know the British have a class setting, the haves and the have-nots – this is what was lacking in the African continent,” he explained in his Kampala villa, as servants laid out lunch. But something was changing. “Now there is this cluster of a new group, which was not there. I call them the urban lumpen proletariat. If you see most of those people who are on drugs, who are musicians, and so on and so forth – that group… Now they see the Museveni group like us having these houses, the vehicles, being in power for some time.” He sank back in his white leather armchair. These rabble-rousers were a “formation in its infancy”, he sniffed, without structure, organisation or ideology.

And that would also seem to be the view of Museveni himself, who has admonished Bobi Wine for focusing too much on the “lumpen proletariat” and “the bayaaye in Kampala”. Perhaps, in his mind’s eye, the old general thinks back to that cohort of recruits on a Tanzanian training ground. When he looks at Bobi Wine he sees a distracted cadet, with no place in his never-ending revolution.

More dangerous than AIDS and Ebola combined

Museveni should re-read Fanon, who wrote of the “lumpen proletariat” with a mixture of horror and awe. In The Wretched of the Earth, the Martinican intellectual argued that the anti-colonial struggle will find a foothold in cities among those who have “not yet succeeded in finding a bone to gnaw in the colonial system… It is within this mass of humanity, this people of the shanty towns, at the core of the lumpen proletariat, that the rebellion will find its urban spearhead. For the lumpen proletariat, that horde of starving men, uprooted from their tribe and their clan, constitutes one of the most spontaneous and the most radically revolutionary forces of a colonised people.”

If this was true of the late colonial metropolis, is it not more so of the twenty-first century city, sculpted by corruption, militarism and neoliberalism? On 18 and 19th November last year, after Bobi Wine was arrested on the campaign trail, Kampala exploded in uproar. Young men lit fires, threw rocks, shook down motorists: this was, in the words of veteran journalist Charles Onyango-Obbo, “an anger bubbling among the ‘lowerdeck’ people, against the ‘upperdeck’ folks in general”. Security forces shot people dead as they protested, sought shelter, sold food, went shopping, walked home. Stray bullets said the police. Collective punishment, more like.

The ghetto had always been caricatured as a place of tough-guy masculinity, from the cartoon violence of the low-budget “Wakaliwood” flicks to Bobi Wine’s self-depiction as a mubanda (gangster), “more dangerous than AIDS and Ebola combined”. But here were men in t-shirts with automatic rifles, playing out the Rambo fantasy for real. The state had become more “ghetto” than the ghetto of the darkest imagination. “When you want to catch a thief, sometimes you behave like a thief,” said Elly Tumwine, the security minister, defending the use of plainclothes gunmen to shoot unarmed civilians last year.

And then the state started stealing people. Hundreds of opposition activists were bundled into unmarked vans, then disappeared. Many of them later showed up in military detention. One man told me that soldiers had electrocuted the soles of his feet and interrogated him about his links to Bobi Wine. “You, the bayaaye, cannot lead this country,” his torturer said to him. When Museveni spoke about the abductions, he said that the army were detaining “terrorists” and “lawbreakers” who were plotting that gravest of crimes – to “scare away investments”.

The blurring of law enforcement and criminality is not new. Under General Kale Kayihura, police chief from 2005 to 2018, stick-wielding thugs would routinely bludgeon protesters while uniformed officers looked on. One of the most notorious outfits was Boda-Boda 2010, a motorbike taxi gang, which terrorised drivers, attacked registration officials, and once set upon a group of schoolchildren who were wearing red, a colour associated with political opposition. In 2019 the association’s leader, said to be close to Kayihura, was sentenced to ten years in jail for illegal possession of firearms (he has since been freed).

But society is not static. Urban growth, a youth bulge and the informalisation of labour are producing new economic relations and identities. And perhaps the most important of these is the hustler, scraping by in the interstices of the city. In elite eyes, the hustler is an irritant and a threat

But Museveni’s dance with the ghetto is about more than just violence. A few weeks before the November protests I met Andrew Mwenda, an astute and controversial journalist with powerful connections: his older brother, a major general, is in charge of joint security operations in Kampala, and the president’s son describes him as a close friend.

“Museveni has the largest patronage machine of any government I know in Africa,” Mwenda told me. “When there is an uprising here, or demonstrations, the deployment of the police and army is a short-term tactical measure to secure stability, but the medium- to long-term strategy is always to penetrate the groups that are protesting politically and begin demobilising them using bribery. Co-optation. You should see how the system here works! In a very short time, within a month, they will give [their ringleaders] money, put them in party structures. They will find communities where the hotspots are, form co-operatives, put money on the account. They will get hair salon owners, bus drivers, taxi touts, vendors and hawkers, and begin organising them and counter-mobilising politically.”

Perhaps the most striking example of this process is Museveni’s recruitment of musicians. Ragga Dee, a washed-up singer, was the NRM’s candidate for Lord Mayor of Kampala. Buchaman, former “vice-president” of Wine’s Firebase Crew, is now Museveni’s unofficial adviser on “ghetto affairs”. So too is Full Figure, a dancehall star, who once backed Bobi Wine but is now so enamoured with the president that she has named her new-born son after him. Last year I met her in her office, overlooking the welders and mechanics of Katwe. Twice a week, she said, she would visit State House or meet Saleh, the president’s brother. It was the job of musicians to bridge the gap between the government and the ghetto.

That transactional logic is evident even in its repudiation. Before elections, the NRM-state began recruiting boxers in Kampala. Most of them were naturally sympathetic to Wine, an amateur boxer himself, who had his own networks in the sweat-soaked gyms. “We met a certain general during these NRM things,” one boxer told me. “He told us: ‘Bobi Wine is going to make you killed [sic] and he’s not going to support your family and he’s not giving you money. Why don’t you come work for us, and we give you money?’”

The pay on offer was not enough to make the boxers do the NRM’s dirty work. They refused. One former national champion, Isaac “Zebra” Ssenyange, had been mobilising for the party but then fell out with his patrons. Security forces shot him dead in the street.

This is the ultimate rejection of Museveni: to spurn his money. On election day, as Bobi Wine arrived at his polling station to vote, his supporters burst into their favourite chant, which likens the president to “Bosco”, a bumbling character from a mobile phone advert.

Eh Mama! Twagala Bobi si ssente

Eh Mama! Twagala Bobi si Bosiko.

(Eh Mama! We want Bobi not money

Eh Mama! We want Bobi not Bosco.)

Even Museveni is a muyaaye

In 1852 a tousle-haired German journalist called Karl Marx sat down to analyse the politics of contemporary France. Napoleon III, elected president after the uprising of 1848, had recently assumed dictatorial authority. Revolution was sliding towards despotism, just as it had half a century earlier, when Napoleon III’s more famous uncle – the Napoleon everyone knows – had seized power in a coup. The new dictator, scheming and vaguely comical, was a caricature of the old one. History was repeating itself, wrote Marx: “the first time as tragedy, the second time as farce”.

Marx called his essay The Eighteenth Brumaire of Louis Bonaparte, after the date in the French revolutionary calendar when the first Napoleon had staged his coup. It is an intricate study of class antagonisms in a society in flux. And reading it in Kampala, it feels strangely recognisable, despite the gulf that separates modern Uganda from nineteenth-century France. Consider Marx’s discussion of how money greases the wheels of dictatorship:

Money as a gift and money as a loan, it was with prospects such as these that [Napoleon III] hoped to lure the masses. Donations and loans — the financial science of the lumpen proletariat, whether of high degree or low, is restricted to this. Such were the only springs Bonaparte knew how to set in action.

Or read Marx’s description of urban politics, and think of Museveni’s street enforcers like Boda Boda 2010 and its fallen patron, General Kayihura:

On the pretext of founding a benevolent society, the lumpen proletariat of Paris had been organized into secret sections, each section led by Bonapartist agents, with a Bonapartist general at the head of the whole. Alongside decayed roués with dubious means of subsistence and of dubious origin, alongside ruined and adventurous offshoots of the bourgeoisie, were vagabonds, discharged soldiers, discharged jailbirds, escaped galley slaves, swindlers, mountebanks, lazzaroni, pickpockets, tricksters [the list goes on] — in short, the whole indefinite, disintegrated mass, thrown hither and thither, which the French call la bohème.

David Mafabi, Museveni’s adviser, had told me that the president could play the role of Napoleon. The Napoleon he had in mind was the famous one: the military genius, the moderniser, silencing his enemies with a whiff of grapeshot. It is a (historically inaccurate) vision of the great man bestriding history, wrestling with immense forces, even his violence justified by some larger purpose. This is Museveni the ssabalwanyi, the greatest of fighters.

But strip away these delusions and the Museveni project becomes nothing but an endless game of tactical manoeuvre, whispered deals, grubby handshakes. At times, when he is posing with Buchaman or attempting ghetto slang, there is even dark comedy about it. In this regard, Museveni most resembles that other, lesser, Napoleon, the one that Marx christened “the chief of the lumpen proletariat”. Museveni created the ghetto: now he must cajole, co-opt and crush it. “Even Museveni is a muyaaye,” I was once told by a small-time singer in a cramped recording studio in Kampala. “He’s ruling us in a muyaaye style, like fooling us.”

Museveni dreamt of ushering Uganda through the doorways of history, but his politics was premised on an economic transformation which never came. The blame lay partly in his own policies and partly in the international economic order which moulded them. He continues in power through inertia and intrigue, still chasing a vanished future. In his self-righteous violence and petty machinations, he evokes both Napoleons at once: the blood-soaked general and the wily schemer. This time as tragedy. This time as farce.

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Reflections on the Kenyan Court of Appeal Proceedings in the BBI Case

By all accounts, this is amongst the most – if not the most – important constitutional case under Kenya’s new Constitution, and the High Court’s judgment was a massive setback for both President Uhuru Kenyatta, and the Hon. Raila Odinga.

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Reflections on the Kenyan Court of Appeal Proceedings in the BBI Case
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On 13 May 2021, the High Court of Kenya handed down a landmark judgment striking down the “Building Bridges Initiative”, a set of proposed amendments to the Kenyan Constitution, on grounds – inter alia – of violating the Constitution’s basic structure [“the BBI Judgment”]. At the time, I had analysed the judgment in this blog post. The High Court’s judgment was appealed to the Court of Appeal, and argued before a seven-judge bench, over four days, between June 29 and July 2. Judgment has been scheduled for August 20.

The Kenyan constitutional courts are unique in that oral arguments are live-streamed, broadcast live by major television networks, and available on YouTube (with an open comments section!). I was thus able to watch the arguments, which raised a range of fascinating issues, from the distinction between direct and indirect democracy (drawn from the Kenyan Constitution’s very particular amendment provisions), the identity of “the People”, the distinction between top-down and bottom-up constitutionalism, the meaning and purpose of public participation, and so on. Perhaps what made the arguments even more interesting was that, having been enacted in 2010, the Kenyan Constitution is a relatively young document, and not yet bowed down by layers of encrusted precedential sediment. For this reason, counsel on both sides were able to make arguments on first principle, presenting the overlaps between concrete constitutional practice and the philosophy of democratic constitutionalism, in a distilled form that we don’t often get to see.

Here, I will examine some of the major arguments made over the course of the four-day appeal hearing. The first two days of the hearing were occupied by the appellants who were challenging the High Court’s decisions. These included the Attorney-General’s Office, the BBI Secretariat, the Independent Electoral and Boundaries Commission (whose powers – and their alteration – were central to the High Court’s judgment), the Hon. Raila Odinga (the opposition leader), and HE Uhuru Kenyatta, President of Kenya. I will not here examine all the arguments raised; that would be an impossible task, apart from the fact that some of the issues are beyond the scope of a comparativist’s ability to engage with. I will, however, discuss three issues that, in my view, are at the heart of the appeal.

Perhaps what made the arguments even more interesting was that, having been enacted in 2010, the Kenyan Constitution is a relatively young document, and not yet bowed down by layers of encrusted precedential sediment.

My usual caveat: I am an outsider, and I approach this post with an awareness of my limited knowledge. While I will write as honestly as I can, there is undoubtedly much context that I do not know, and much that I may get wrong; for those trespasses, an apology, in advance.

Who Are The People?

First, Appellants challenged the High Court’s finding that the Kenyan Constitution had a basic structure, which could only be amended through the exercise of a primary Constituent power that – in effect – lay outside the Constitution. Recall that in its judgment, the High Court had not held that the Kenyan Constitution’s basic structure was beyond the power of amendment altogether (thus making the Kenyan basic structure doctrine entirely different from its Indian variant, and indeed, unique in the annals of comparative constitutionalism). Rather – on an analysis of Kenyan constitutional history – the High Court held that in order to amend the basic structure, the conditions around the founding of the 2010 Constitution had to be recreated (primary constituent power). This meant, in concrete terms, a four-step procedure involving civic education, public participation, the convening of a Constituent Assembly, and a referendum.

It was therefore a little surprising to note the amount of time that Appellants spent distinguishing Kesavananda Bharati v State of Kerala, or arguing for its inapplicability to Kenya. As I have mentioned above, the basic structure doctrine of Kesavananda, and the basic structure doctrine of the BBI judgment, are chalk and cheese. In particular, Appellants spent considerable time arguing that Kesavananda was a response to Parliamentary abuse of amending power, while the Kenyan Constitution explicitly envisages a role for the people (via the Popular Initiative method under Article 257) in the amending process. This is correct. But it is also, with respect, irrelevant. The distinction would have made sense if the Kenyan High Court had placed the basic structure out of bounds altogether; however, as we have seen, it did not – arguing only for deeper public participation than is provided in the Kenyan Constitution via the popular initiative method. That argument, however, needs to be tackled on its own terms, and not with reference to Kesavananda and parliamentary supremacy.

That brings us to how Appellants did attempt to tackle it on its own terms. Now here is where things get interesting. Let us go back for a moment to the amendment provisions in Kenya’s Constitution (Articles 255 – 257). Recall that Article 256 prescribes the familiar parliamentary route for certain constitutional amendments. Article 257, however, provides an alternative route known as the “popular initiative”, which requires (a) signatures of one million registered voters to initiate; (b) approval by a majority of county assemblies; (c) passage by simple majority in both Houses of Parliament, and (d) if pertaining to one of ten critical categories spelt out in Article 255, a referendum. Interestingly, therefore, the method under Article 257 is a combination of direct and representative democracy: it has elements of direct democracy in its initiation and completion (in cases of a referendum), and also elements of representative democracy through the process (ratification by county assemblies and Parliament).

It was therefore a little surprising to note the amount of time that Appellants spent distinguishing Kesavananda Bharati v State of Kerala, or arguing for its inapplicability to Kenya

In this context, Appellants argued that the participation of the people is already provided for under the Constitution, when it comes to the question of amendments. Consequently, there was no need for a separate basic structure doctrine that was itself based on public participation, as that issue had already been resolved within the Constitution. To supplement this argument, counsel referred to Article 1(1) of the Kenyan Constitution, which states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Stressing upon the phrase “this Constitution”, Appellants argued, therefore, that popular sovereignty did not – and could not – exist outside the Constitution. It was the Constitution that – through Article 257 – facilitated the exercise of popular sovereignty through the popular initiative amendment process.

But underlying this textual point is a deeper normative claim, which goes to the heart of constitutionalism: who are the People? Effectively, Appellants argued that “the People” had no existence – or identity – outside of the Constitution; quite literally, the People are “constituted” by the Constitution. Consequently, in holding that the basic structure could only be amended by an – effectively – extra-Constitutional process initiated – and led – by the People, the High Court had misconstrued not only the text of the Constitution, but the basic premises of constitutionalism itself.

At first blush, the argument sounds powerful. I believe, however, that in the final analysis, it fails to persuade. I would submit, with respect, that in focusing on Article 1(1), Appellants inadvertently hoisted themselves on their own petards. This is because the phrase “this Constitution” begs the anterior question, which is at the heart of the basic structure doctrine: at what point does “this Constitution” cease to be “this Constitution”, and becomes something else? It is here that Kesavananda Bharati actually becomes relevant – because what many people (especially in its home country) tend to forget is that before it was anything else, Kesavananda Bharati was a textual judgment. The majority judges took great pains to parse the meaning of the word “amend”, and took equal pains to explain how it differed from “repeal” or “abrogate” or “destroy”. To put the point at its simplest: this Constitution – whose entire structure is based on the principle of (say) representative democracy, is no longer this Constitution if all those provisions are replaced with a clause turning the State into a monarchy. Indeed, the bench repeatedly put these hypotheticals to the Appellants’ counsel – without (in my view) a satisfactory answer.

Indeed, Respondents’ counsel made this point on multiple occasions. The clearest exposition of it is to be found from around 55 minutes to 1 hour during the first session of Day 3: counsel distinguished between the concepts of “amendment” and “repeal”, and then further distinguished between two kinds of repeal: express repeal (such as when Kenya’s Independence Constitution was “retired”, in advance of the 2010 Constitution coming into force); but also, repeal by irreconcilable differences, where although a Constitution is not formally repealed, it is nonetheless repealed in effect, by introducing into it principles or provisions that are fundamentally irreconcilable with its core identity.

To this, I would add two brief points. The first is that taking the argument to its logical conclusion, Article 1(1) of the Kenyan Constitution, far from supporting Appellants’ case, is fatal to it. Because if it is true that (a) Article 1(1) only authorises the exercise of popular sovereignty within this Constitution, and (b) that this Constitution is no longer this Constitution if its basic structure is altered, it must necessarily follow that (c) if the People wish to alter the basic structure, they must act outside the Constitution. Indeed, it cannot be otherwise. And if this is conceded, then the High Court’s judgment is not only arguably but correct, but indeed, the only correct outcome. Because not only did the High Court correctly rule that alteration of the basic structure must take place outside of the Constitution, it also set out the logical corollary: that the manner of doing so must resemble, as closely as possible, the manner of the writing of the Constitution. This is so because an alteration of the basic structure amounts, in effect, to re-writing the founding document, and for that, such an activity needs to be conducted within the procedural confines of the manner in which its writing took place.

Counsel on both sides were able to make arguments on first principle, presenting the overlaps between concrete constitutional practice and the philosophy of democratic constitutionalism, in a distilled form that we don’t often get to see.

The second point is that on multiple occasions, Appellants’ counsel expressly conceded that the Constitution does have basic structure. Counsel attempted to make light of the point by arguing that every form of government – including theocracies and one-party totalitarian States – have basic structures. Counsel then argued that the existence of basic structure doesn’t necessarily imply the existence of the basic structure doctrine. However, it is in precisely that disjunction where the problem lies: if you accept that the Constitution has basic structure – i.e., a core set of principles that constitute its identity – then the burden falls upon you to show how an alteration of the basic structure, and thus an alteration of constitutional identity nevertheless implies that “this Constitution” at the beginning of the process is still “this Constitution” at the end of it. I believe that this was a burden Appellants did not discharge.

The Njoya Debate

I would suggest that the above argument is also relevant to answering a question that was hotly debated on both sides of the bar during the hearings: that is, the interpretation of the Kenyan High Court’s 2004 judgment in Njoya v Attorney-General. In Njoya – which involved a challenge to the then-ongoing constitutional review process – the High Court had accepted Kesavananda Bharati, and held that under the (now-retired) Constitution, the Kenyan Parliament had no power to abrogate or repeal the Constitution. Now naturally, the Respondents strongly argued that Njoya went in their favour. However, Appellants argued equally strongly that read closely, Njoya actually supported their case. The reason for this was that in Njoya, Ringera J categorically stated that (a) Parliament had no power to abrogate the Constitution, (b) that this power belonged to the People of Kenya, acting in their sovereign capacity, and (c) that the People of Kenya were entitled to a referendum on any new Constitution (paragraphs 32 & 33, Njoya). Now if you look at Articles 255 read with 257, an amendment by popular initiative – that seeks to alter one of the ten categories set out in Article 255 (such as the territory of Kenya or the functions of Parliament) must be put to a referendum. Appellants therefore argued that the dictum of Njoya had already been incorporated into the 2010 Constitution. Indeed, the bench’s question to Mr. Nelson Havi, Respondents’ lead counsel, at around 48 mins of the first session of Day 3, went to the heart to the issue: did not the 2010 Constitution enact the very requirements outlined in Njoya?

I believe that the answer is in Njoya itself, and it is the same answer as that set out above. In paragraph 29, Ringera J wrote that popular sovereignty is “the basis of the creation of the Constitution and it cannot therefore be conferred or granted by the Constitution” – although, of course, it could be juridically recognised by it. These lines, I submit, answer the bench’s question about the referendum provisions under Article 257: regardless of what Article 257 says about a referendum, ex hypothesi, the power to create a Constitution cannot lie within it. Now when you combine this with Njoya’s holding in paragraph 61 accepting the correctness of Kesavananda and holding that “amendment” does not mean “abrogation” or “repeal”, you reach the inescapable conclusion that a Constitution’s amendment provisions – whether or not they contemplate referenda – do not extend to the repeal of this or the creation of a new Constitution, something that can only be done through an external exercise of popular sovereignty. And that was what the High Court recognised.

The Discontents of the Presidential System

The second major issue was with respect to the identity of the initiator of the BBI Amendment(s). Articles 257(3) and (4) of the Kenyan Constitution contemplate the existence of the “promoters” of an amendment by popular initiative. Formally, the promoters of the BBI Amendment(s) were two parliamentarians named Dennis Waveru and Junet Mahomed. However, it was strongly urged before – and accepted by – the High Court that the actual moving force behind the Amendment(s) was the President of Kenya, Uhuru Kenyatta. The factual dispute continued before the Court of Appeal, and I do not intent to address it here.

However, it was also argued by Appellants that even if it was the President who was behind the BBI Amendment(s), there was nothing wrong with it; in other words, just like any other registered voter, high State officials could also initiate amendments by popular initiative. In particular, Appellants argued that (a) there was no express bar under Article 257 that forbade the President from engaging in amendment(s) by popular initiative; (b) that explicitly, the President continued to retain political rights under the Constitution even on formal investiture, including, for example, the right to vote; (c) that as a matter of fact, even if the President had been acting in this case, he had been acting in his private capacity; and (d) that the entire purpose of Article 257 was to prevent legislative bottlenecks in a Presidential system. It was meant to deal with a situation where the political party with a majority in Parliament was opposed to the elected President’s agenda, and was stymying him. In such a situation of gridlock, Article 257 gave the President an avenue to to bypass Parliament and go directly to the People.

In this context, Appellants argued that the participation of the people is already provided for under the Constitution, when it comes to the question of amendments. Consequently, there was no need for a separate basic structure doctrine that was itself based on public participation, as that issue had already been resolved within the Constitution.

At its deepest level, then, the argument was one about constitutional design. Appellants argued that the Kenyan Constitution did two things: it opted for the Presidential system, with its known problem of veto points and bottlenecks – and then also solved that problem through Article 257, by essentially saying “President + People > Parliament“.

Now there are a few points here. The first is that – as the bench acutely pointed out – Article 255(3)(b) of the Constitution states that the amendment procedure under Article 257 is by “the people and Parliament”. It therefore follows that the Constitution itself draws a distinction between “the People”, and constitutional bodies (such as the Parliament), even though – of course – those constitutional bodies are helmed by members of “the People”. It follows ipso facto, therefore, that much like “the people” and “Parliament” are distinct entities for the purposes of a constitutional amendment, “the people” and “the Presidency” must likewise be so.

Is this dispositive? No. However, what it does show is that textually, Articles 255 – 257 sustain the High Court’s interpretation. Whether it is the correct interpretation – given that the text is ambiguous – is of course a normative question, internal to the Kenyan Constitution. And it is here that the principles of representative and direct democracy come into tension with each other. As I have pointed out above, Article 256 provides the familiar amendment path via representative organs (Parliament), while 257 consciously combines elements of representative and direct democracy, and – specifically – envisages direct democracy at both the beginning and the end of the process.

I would submit, with respect, that this carefully balanced scheme of Article 257 would be nullified were representative organs allowed to initiate the process. Such an interpretation of Article 257 would undermine the fact the bottom-up character of direct democracy that the provision seeks to preserve. During the opening session of Day 3, at around 1 hour 6 minutes, Respondents’ counsel put the point perfectly when they argued that by definition, when the people delegate authority (as in representative democracy), the delegate no longer counts as part of ‘the people’ for the purposes of the exercise of popular sovereignty (as in direct democracy, envisioned by Article 257).

The bench then asked – correctly – whether it would not be possible for the President to “wear two hats” – i.e., remain the President, while initiating a popular initiative process as a private citizen. The answer – which was provided a little later in the day – was that ‘yes, she can, but she needs to formally give up the trappings of office while doing so.’ This, to me, makes eminent sense: the entire point of Article 257 – and the carefully wrought distinction between direct and representative democracy – would be defeated if the President could say “I am President, but I ask for your signature on this popular initiative as a private citizen.” With respect, that distinction could be sustained only by denying reality.

As I have mentioned above, Appellants repeatedly argued that there was no express bar on the President’s powers under Article 257. That is true; but again, going back to Kesavananda – and much more recently, to the UK Supreme Court’s prorogation judgment in Miller v The Primer Minister, limitations upon powers exercised by constitutional authorities are not only express, but – in many cases – implied. In Miller, it was held that when you have two constitutional principles, the exercise of power under one is (impliedly) limited at the point at which the said exercise would frustrate or impede the operation of the other. That is exactly what is happening here: the President’s powers under the Constitution are limited by the operation of other constitutional principles; in the case of Article 257, that principle is the balance between direct and representative democracy in the popular initiative process.

The Nature of Referenda

The third issue also concerned the interpretation of Article 257. The BBI Amendment(s) had been pushed as a package deal, containing as many as seventy-four proposed amendments to the Kenyan Constitution. The High Court had nixed this in no uncertain terms, holding that in an amendment by way of popular initiative, every amendment had to be presented distinctly, and put through the process required by Article 257, separately. Appellants’ response to this holding was primarily textual, noting that Article 257 used the word “amendment”, and not “amendments.” Thus, an “amendment” could take the form of a proposed bill – that amended multiple provisions of the Constitution – but for the purposes of Article 257, the was to be treated as an amendment, in the singular.

Now it should be clear that once again, the text does not determine the issue. It could easily well be argued – and indeed, was argued – that the very use of the singular “amendment” actually means that you can only present one amendment at a time via the popular initiative. For interpretive support, Respondents’ counsel also pointed to Kenya’s Elections Act, Section 51(2) of which provides that “where there is more than one referendum question, persons intending to campaign for or against each referendum question shall, on application to the Commission, form one national referendum committee each and one committee each in every constituency for each referendum question.

At first blush, the argument sounds powerful. I believe, however, that in the final analysis, it fails to persuade. I would submit, with respect, that in focusing on Article 1(1), Appellants inadvertently hoisted themselves on their own petards. This is because the phrase “this Constitution” begs the anterior question, which is at the heart of the basic structure doctrine: at what point does “this Constitution” cease to be “this Constitution”, and becomes something else

Textual ambiguity, once again, brings us into the domain of the normative – and the normative issue here goes once again to the purpose of referenda, and the provision of direct democracy in a Constitution. The core argument against referenda – as we well know – is that they boil down extremely complex and nuanced questions into a simple yes/no binary. In effect, therefore, they distort the expression of public opinion by simplifying an issue to a point where a yes/no vote doesn’t accurately reflect the range of views that people hold. Now, I would submit, with respect, that given that referenda already have this problem with respect to being accurate vessels for the expression of direct democracy, a package deal referendum exacerbates that precise problem even more (the reasons are easy to see). It therefore follows that if the Court is faced with two equally legitimate textual interpretations of the same provision, one of which advances the cause of direct democracy, and the other potentially impedes it, given that the purpose of the section is to facilitate direct democracy, it should choose the former interpretation. In this case, that would be to uphold the High Court’s ruling that a popular initiative can only be for one amendment at a time.

The above analysis has only scratched the surface of the immensely complex and nuanced arguments that I heard. Some of the fascinating arguments I have not dealt with here include, for example, the question of which side bears the burden in a dispute over whether the popular initiative involved adequate public participation or not (I would suggest that if public participation is a fundamental premise of the Kenyan Constitution, the presumption must be that official acts do not acquire a constitutional seal of approval until it is affirmatively demonstrated that public participation has taken place; think of it as a precondition); the role of constituencies in distributing resources, power, and political patronage, and why, therefore, boundary alteration affects the basic structure; whether the popular initiative starts from the moment signatures are collected, or does the public participation requirement kick in before; and so on. Ultimately, what I found most striking is that for a lot of these questions, the Constitution does not provide a textual answer. For a lot of these questions, both sides presented an interpretation that, textually, was plausible; ultimately, therefore, this ruling will turn upon what principles the Court identifies as underlying these provisions, and which interpretation it believes better furthers those principles.

A few parting remarks on the oral arguments themselves. I loved watching them: there was wit, humour, seriousness, and a whole range of styles of advocacy, with consistently high quality throughout. The timekeeping was impressively strict: a big timer showed counsel their countdown, the bench cut them short when their time was up, and barring a few occasions where I thought that counsel genuinely needed more time to develop their argument, I felt that the quality of advocacy was raised by the fact that counsel had to put their point across in limited time. The questions from the bench were sharp, focused, and at times, almost frightening in how accurately they identified weak spots in the argument. And then, away from all this, I was struck by the freedom with which people were commenting and arguing with each other in the YouTube comments section, and openly poking fun at the lawyers, the President, and even the court. As far as I could tell, none of this had any perceivable impact on “justice”. Perhaps judges in other jurisdictions may take a leaf out of this YouTube book, and treat irreverence and critique with a smile.

Finally, as an outsider, I was struck by the civility with which the arguments were conducted. By all accounts, this is amongst the most – if not the most – important constitutional case under Kenya’s new Constitution, and the High Court’s judgment was a massive setback for both President Uhuru Kenyatta, and the Hon. Raila Odinga. However – barring a few good-natured jabs back and forth, I did not see personal invective. Imagine watching the State’s lawyers argue over two days, and not once insinuate that the other side is a hotbed of anti-nationals, publicity-seekers, “lobbyists”, and a threat to sovereignty and national security?

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The President Who Burned Kenya’s Heritage, Humiliated Little Girls and Elderly Women

We should make the 25th of February Kenya’s National Day of Shame, the day in 1992 when Kenyan mothers were forced to undress in front of armed young men of the age of their detained sons.

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The President Who Burned Kenya’s Heritage, Humiliated Little Girls and Elderly Women
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I will remember Moi as the president who burned material culture, and humiliated little girls and elderly women. He carried the dreaded club considered a weapon among many cultural groups, and had a red rose bud of Love, Peace and Unity, pinned to his lapel. That’s the image of him I have. He who did not age in the photograph that was everywhere — in schools, bars, government offices, shops, you name it. The fatherly look in those light brown eyes — patronizing, caring, saintly.

But the image of his sculpted hand wielding his favourite weapon over Mt. Kenya showed otherwise. I looked at his sculpted hand bursting out of Mt. Kenya like a volcano as I drove by Uhuru Park and tried to think about the meaning behind it. The mountain is a sacred shrine to many. Elders still face Mt. Kenya for blessings as the freedom fighters did at dawn. Mt. Kenya is Kenya’s national symbol that has appeared on stamps, bank notes and wall paintings in rural eateries. Armed resistance against the colonial power was centred around the mountain and was protected by it for many years. What was the reason behind the design that obviously showed one man’s power over a mountain that is the country’s highest point and a symbol of Kenya? Was it a show of conquest over the uthamaki? I could not find an explanation in any text or from any person. We ought to look again at the statues of tyrants in this year of toppling monuments and take a moment to reflect on what and for whom they are there.

I hold other images. My first encounter with President Moi humiliating the pastoralists was in late 1970s. I was in the field in the vicinity of Kapedo (Turkana County) among the Turkana when his motorcade appeared on the hot desert road like a dust storm. There was a lot of excitement to see the spectacle and welcome the new president who was from one of Kenya’s smaller tribes. Moi was one of them unlike the previous president, an avaricious agriculturalist, whose kinsfolk were encroaching on their land and mineral resources albeit in cahoots with the local politicians. But the local politicians were brothers and sons and that did not matter. Only the agriculturists were the madoadoa demon settlers.

President Moi held a huge baraza at Kapedo where the steaming hot waters of the river fall over a rock. Truly a sight to behold. After some welcoming speeches, it was time for the much-awaited presidential address. I was aghast to see what followed. The president called a shy teenage Turkana girl to the stage where he was seated in his usual austere manner, clutching his club. The people must have at once understood that the club was a weapon. The president elicited fear rather than peace, love and unity in the audience. In most Kenyan cultural groups, a club is a symbol of violence to knock an enemy on the skull. The symbol of authority and respect is a flywhisk or a peace staff that is also often used as a walking stick by community elders. There was an obvious contradiction between the new president’s words and the symbol that he lifted over his head as if to strike.

We ought to look again at the statues of tyrants in this year of toppling statues and take a moment to reflect on what and for whom they are there.

The teenage girl was wearing traditional Turkana dress and ethnic beads that proudly spoke of her identity and of who she was. She was dressed exquisitely for she was meeting the president. Then, the president called another girl. She was wearing a neat school uniform; you would think she came from an English public school. She was also Turkana. Pointing to the girl in the beautiful calfskin clothes with his club, the president put on a noticeable frown on his fatherly face that was gleaming in the strong Kapedo sunshine. The Father of the Nation, Baba wa Taifa as we called him, said he did not want to see “this” meaning the Turkana dress. His following words were spiked with references to backwardness and the civilization that his presidency was bringing to them.  He said it was time for the Turkana to join the maendeleo path like other Kenyans.

From 1963 onwards, the word maendeleo had evolved to mean not just development in Kenya but also becoming “civilized”; it connoted becoming westernized and perhaps Christianized as well. Then he pointed to the other girl who was in a neat school uniform, a white shirt and blue skirt. The president’s face brightened into a smile; this is what he wanted to see. That was the path to maendeleo, leaving primitiveness behind. These may not have been his exact words but that’s what they meant. I write from the images, emotions and memories from over forty years ago that have lived on in my mind.

My heart sank. I wondered what the teenage girl must have felt being humiliated in public by the president of her country. What her parents must have felt. What the Turkana elders, the custodians of their culture, must have thought. What the community was thinking as they listened to the president in utter silence. The Turkana people, like everyone else, take pride in their dress and their culture. Now they were being insulted on their own territory by the new president of Kenya. Their culture is what has sustained them in the harsh semi-desert scrubland and given them a sense of identity and community.

I had been working on Turkana material culture, especially on their animal skin clothing which interested me because of the unique cut and the stitched lines that patterned their long skirts which were suited to the semi-desert scrubland. How they quilted different colours of cowhide to create amazing patterned clothes. It is an ingeniously designed garment weighted with flattened hoofs so that it does not flare out in the desert wind or get ripped at the bottom. The skirt is worn long because of the Turkanas’ respect for the female body and local cultural etiquette. It is carefully cut down the side of the leg for the air to circulate in the hot desert climate and to accommodate movement while running after animals when herding or walking long distances to fetch water and firewood. I wanted to include the Turkana dress in the material culture curriculum for schools that I was writing at the time and as an example of Kenya’s indigenous dress that is suited to the environment and vernacular design in the book that I was working on. The president was ignorant of Kenya’s culture.

Back in Nairobi, I was shocked to see the picture of the president and the two girls on the front page of the newspaper. I don’t remember which one, probably the Daily Nation. It was as if in Nyayo’s onward march to maendeleo, the humiliation of a proud culture was being celebrated. I tried to talk about this incident in the staffroom at the University of Nairobi where I worked, but I met blank, if not surprised, looks. “The Asian is talking about primitive tribes again”, I read on their faces. I worked, put up exhibitions and often talked about the material culture of Kenya as a heritage to be cherished like the mother tongue; both were looked down upon as obstacles to development by a segment of the intellectual class. An academic at the University of Nairobi once told me to my face that I was taking Africans backwards. In the tone of his comment was an allusion to the racist Asian stereotype that I had become used to on campus. Then as now, the president had his followers within the intellectual community.

The teenage girl was wearing traditional Turkana dress and ethnic beads that proudly spoke of her identity and of who she was.

My second encounter with President Moi was in Orwa in the Pokot region. I came to the area soon after the president had been there on his “civilizing the natives” mission that reminded me of the infamous colonial Pacification Expeditions. I was stunned to see a pile of ashes and burned items of material culture at the Orwa airfield, a makeshift strip of cleared bush for small aircraft. The elders told me while spitting bitterness how Jeshi la Nyayo had forcefully stripped them of their valued skin garments and beads. I gathered Jeshi la Nyayo were the dreaded General Service Unit. I had seen them at work at the University of Nairobi and had fled from their batons. The Pokot material culture was thrown in a heap on the airstrip and made into a bonfire. My heart wept for I was collecting the precious material culture of the Pokot at the time, especially what they wore; how they celebrated their identity with their clothing and beads; their embodiment of utu, their humanity and, most important, how they made reconciliation through their art, how important material culture was in their lives. I was collecting material culture for preservation for posterity and here I find my president burning the nation’s cultural archive, the resources for the school curriculum on indigenous art and knowledge that would one day be taught if ever the authorities decolonized their minds sufficiently to look in the mirror and see who they are.

Among the items stripped from the bodies of the Pokot was the leketyo. The leketyo is a sacred symbol of peace for the community. In fact, the metaphor used for peace is leketyo, and for some like the Marakwet, Keiyo and Pokot, the word for greeting is “Leketyo!” — very much like Shalom and Salaam. What is leketyo? A leketyo is a leather belt decorated with lines of coloured beads and cowry shells. Expectant mothers wear it around the waist to avoid miscarrying the foetus. Women walk long distances for water and firewood; they herd goats and build houses. Their strenuous work in the harsh climate easily leads to miscarriages. The leketyo has become a sacred and a respected object for it saves life. I have seen how fighting, that is physical fighting, using weapons, comes to an abrupt halt when a mother removes her leketyo and throws it down between the belligerent warriors.

The leketyo may be laid down by any mother passing by and all the warriors will respect it for in communal societies, one mother represents everyone’s mother in her son’s age group and she calls them “my sons”. As any Kalenjin would know, the leketyo is revered in the community for it represents protection of the womb. Like the mutilina of the Akamba and the enkitati of the Maasai, it is a symbol of motherhood, love and nourishment that prevents violence and maintains peace in the community. It is also a symbol of the feminine God-given gift of procreation, and of family and community well-being. In other words, women’s waist belts are symbols of peace used as metaphors in speech and song.

When I heard the songs of Pokot mothers, concealed from the ears of the local special branch, bemoaning the loss of their leketyo, I felt their pain. The humiliated mothers sang about the beauty of their lost leketyo while cursing the president in the same verse. Yes, during the oppressive regimes of Jomo Kenyatta and Daniel Toroitich arap Moi, they had developed clandestine oral literature expressing outrage at those who stole their land and visited brutality and humiliation on them.

There was a parallel between the clandestine oral literature of rural Kenya and the underground papers like Pambana that I read in the city. The difference was that the pastoralists’ secret literature was oral, in poetry and songs, using idioms, metaphors and double meanings that those who did not know the culture and did not understand the language — like most of the local administration, the police and the GSU — could not understand. They were masked like the Mau revolutionary songs that sounded like hymns to the outsider. The underground literature in the city did not mask the message; it openly condemned the despotic presidents and called for change. Unfortunately, the two did not connect.

The Pokot also erected secret memorials invisible to the outside eye in memory of those who were killed by Nyayo. One such memorial that I visited near the Kenya-Uganda border in the West Pokot region was made of gigantic white marble-like slabs. One would need to persuade the local oral artist to hear the full narrative of the cultural oppression, the humiliation and the brutality of the punitive military expeditions of the Nyayo era. These are the monuments erected by the people that we need to celebrate and care for. They speak of a people’s resilience in the face of oppression.

An academic at the University of Nairobi once told me to my face that I was taking Africans backwards.

It baffled me why the president humiliated the Pokot women and Turkana girls who were closer to his cultural roots than, say, Wangari Maathai whom he also insulted and humiliated. The professor and environmentalist was protecting our trees, our natural heritage that the president was decimating for profit.

But then, in 1992, what happened at Uhuru Park was shocking. In my novel Home Between Crossings, I put together what I saw, read and heard to write about the assault on the mothers of the detainees. Putting it in print a way of releasing the emotions locked in my memory and telling the story so that it is not forgotten. Though based on real events, the writing came from my creativity and imagination.

The next day women gather in groups to talk about the incident at Uhuru Park. There is horror in their eyes. Anxiety in the air. We had all seen the Daily Nation photographs of the riot police hounding old women. Some had watched the news on the TV.  I tell them I was there and what I saw. They come closer me. Even those I don’t usually talk to come to listen to me. They listen in silence and shock. But what horrified them was how President Moi treated the mothers protesting in the park.

“Does he not have a mother?” asked one.

“Would he have treated his mother like that?” asked another.

“What if he were detained without trial, would his mother not have come to Uhuru Park to ask for his release?” asked the third…

Later in the evening, I look at the photographs on the front page of the Daily Nation. “MOTHERS OF DETAINED PRISONERS WITHOUT TRIAL FLEE.” Yesterday comes back in my eyes. I see them. They flee before the brutal charge of the riot squad and the paramilitary. Helmeted, armed and shielded in metal, the machine-like army of young men assail the old mothers in cotton dresses and head scarfs. Putting the newspaper pictures together with what I saw yesterday was like bringing two pieces of a torn photograph together. First, the women herded together like trapped animals, hugging each other in one tight embrace. A combined hug in unison out of fear. Of comfort. Of courage. Of unity. Of solidarity of mothers. I felt I was in that circle of human embrace. Some whimper for mercy, others sing hymns. Aged mothers thought the President would listen to them, for he had a mother too. Then one of them stepped forward before the contingent of young armed men and she began tearing clothes off her body.  In Africa, it is a taboo to see a woman, who is the age of your mother, so distressed that she unclothes herself surrendering her dignity to a young man the age of her son who, by custom, is her son, too. It’s a gesture of wounded motherhood that many do not understand. A gesture showing there is no more utu or humanity left in society. Of showing self-inflicted humiliation that says it’s not worth being your mother. It’s the humiliation of sacredhood of the womb, meaning the giver of life. Shame and sin would fill the eyes of the onlookers. In Africa, I repeat, to see your mother’s nudity is shame and a curse. Everyone knows that it pains the land when the mother forfeits her honour to her sons’ gaze. More mothers come forward, ripping clothes off their shrivelled frames, spitting curses and disgust, tearing away headscarves, casting away mother-love for rage and forfeiting the dignity bequeathed to them by nature when they gave birth. They were surrendering in defiance to the rape by their sons. They sing hymns in unison daring the armed men to come, touch them and dishonour their mothers until they feel satisfied. What more had they to lose when they have lost all, meaning their self-respect? Some policemen cover their eyes, others turn back and yet there are some who advance without shame. They would say they had orders. Or they are not of the same tribe so the curse would not harm them or that they are Christians now. That these are not their mothers. They don’t believe in superstitions and primitive customs. Never before, not even under the English, not even during the girls’ circumcision unrest at Mt Kenya, were the mothers of Africa reduced to such humiliation as under the black government of Nyayo.

Chapter: Humiliation of disowning motherhood in Home Between Crossings (2014)

I write about my encounters with Nyayoism in the hope that we can retain the memories of how one in whom the nation had placed its trust, shamed its girls and mothers. It is as though this has become an accepted part of the Kenyan culture as is graphically described by April Zhu writing in The Elephant about the defiance of Mama Victor and the Mathare Social Justice Centre co-founder Juliet Wanjiru Wanjira.

Misogyny is like a cancer that flows from the highest office in the land to the lower cadres of state institutions. Insulting women has become a global phenomenon as explained by Joane Nagel in Masculinity and Nationalism: Gender and sexuality in the making of nations. Daniel arap Moi had just come to power and he had to show he was a man. All the incidents I speak about were reported in the media albeit from angles different from how I viewed them as an ethnographer. The accounts and photographs can be found in newspapers archives.

What I came to know during my work on the cultural aspects of Peace and Conflict Resolution was that humiliation played a significant role in conflicts. Humiliation breeds chuki, the hard hate that festers in the community. And chuki breeds revenge. Cultural humiliation has more often than not been the undertone of political campaigning. It becomes a widespread epidemic during elections, making somebody unlike me, making them the Other of the nation and hence not quite worthy of the highest office in the land. Sometimes it turns into jeering and nasty behaviour; I once watched a shirtless young man running through the streets of Nairobi holding up his pants because his belt had been pulled out, looking helpless and terrified as  a jubilant mob shouted, “Circumcise him!” This was in late 2002 when campaigning between the circumcised and uncircumcised contenders was at its peak. It was a direct result of cultural humiliation instigated from the top to diminish the Other as not worthy to rule.

Humiliation breeds chuki, the hard hate that festers within the community.

More often than not, epidemics of cultural hate and humiliation are started by politicians and even by the president as I have seen during my forty years working in the field in Kenya. We know how cultural chuki was spread through the radio in Rwanda to galvanize the population to commit a genocide. I have sometimes wondered in frustration whether Moi’s humiliation of Wangarĩ Maathai and the market women of Nairobi was patriarchy embedded in nationalism or whether it was a personality trait that sought pleasure in humiliating whomever while singing “mindfulness” in public broadcasts.

To understand humiliation, it is best to think in an African language. Nelson Mandela once said, “If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart.” 

In Swahili, for example, humiliation has several shades. We say tia aibu meaning put shame. Or tia uchungu, put pain and vunja heshima meaning break self-respect, and also break the heart, vunja moyo. Humiliation is to make the other feel she/he is not human, si binadamu. Then the humiliated is filled with chuki (hatred) and looks for revenge to reclaim his/her or the community’s honour, kisasi cha aibu ya staha. This can lead to killings.

Humiliation is one face of governance by repression. In societies where identities are collective, one killing or one rape is considered humiliation of the entire community. Consequently, it calls the people to rise and avenge the spilled blood of a kinsman or the dishonour of a mother, wife or daughter of a fellow kinsman. Humiliation is communal, and like trauma, it is generational in that the responsibility of the unavenged wrong falls to the youth. Hence, ethnic conflicts become cyclic. Whenever the suppressed rage of humiliation comes to the fore, the outcome is horrendous. Evelin Lindner, who is among the foremost thinkers and writers on humiliation and violence, says:

Rage turned outward can express itself in violence, even in mass violence when leaders are available to forge narratives of group humiliation.

We know that power and wealth breed arrogance. This is neither new nor particular to Africa’s presidents and politicians. But how can we create awareness of what we do to each other and thus stop or at least lessen this especially with the looming elections?

One way could be to make the 25th of February Kenya’s National Day of Shame, the day in 1992 when Kenyan mothers, our mothers, were forced to undress in front of armed young men of the age of their detained sons. It will be a day to reflect on what shame our leaders have placed upon us, and the consequences that the ordinary person has had to bear, as we so often see during elections. Keeping and refreshing our memories would remind us to be watchful of politicians who divide Kenya along gender and cultural lines. Students will ask, “Why are we remembering this day?” The media will report and commentaries will expand on the history of humiliation from the colonial days to the present-day dictatorships led by brutal capitalism, nationalism and cronyism. One bright Kenyan may choose to write her PhD on the History of Humiliation in Kenya from Colonialism to the Present.

When we choose to be silent, we are erasing the lessons of history from our memory. We become complicit in the propagation of the propaganda of the state and politicians. As a result, violence is passed on from one generation to the next among cultural groups and becomes systemic in governmental and institutional hierarchies.

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