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Kenya Needs Raila Odinga’s Constitutional Reform Initiative

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Inequality and tribal politics have been Kenya’s bain for generations and Raila Odinga’s proposals for constitutional reform – introducing a proportional representation system in Kenya would go a long way in assuaging these. The ‘handshake’ between Odinga and Kenyatta could be the start in making the important changes Kenya needs to correct some of its most persistent governance challenges, PROF. YASH PAL GHAI argues while urging caution.

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Last week, I was in a taxi trying to rush home in the afternoon to avoid the infamous Nairobi traffic.  Unfortunately, my hurry didn’t bore fruit because eventually I was caught up in the snarl-up. It was so heavy I considered walking home, but it was raining heavily. Looking outside, I could see thousands of soaked pedestrians, running as fast as they could in the rain. Noticeably, almost all cars had one occupant, or possibly two including the driver. It struck me, could we not solve the problem of our traffic congestion if we prohibited vehicles with less than four passengers from using the highways during specified hours, and instead use taxis and, better still, buses, to move people around – saving both time and money? This approach worked in Singapore and elsewhere. Would our aristocracy prohibit it?

The second thought made me most angry: the rich people were doing alright in their limousines, but the infinitely harder workers were left to walk in the heavy rain, seeing home only in the dark, with the limousines heedlessly splashing more muddy water on them as they sped past. For the ordinary mwananchi, many would arrive home from work completely wet for a miserable salary. Surely, I thought, we did not adopt the People’s Constitution to increase the disparities between them and the tycoons. Why are our politicians and the government doing nothing about these disparities? Have they no sense of the injustice the poor face daily?

We did not adopt the People’s Constitution to increase the disparities between wananchi and the tycoons. Why are our politicians and the government doing nothing about these disparities? Have they no sense of the injustice the poor face daily?

My cabbie was moved by my anger. And after realising the role I had played in Kenya’s constitution making process he changed the subject. Like other young people who I spend some time with, he was full of anger at the way the politicians, forming ethnic oriented parties, exploit the voters of their own tribe. “If only”, he said, “the Constitution had prohibited ethnic parties, we would not have got this manipulation. Parties would have been formed along policy issues, we would have been the better”. Somewhat cruelly I read to him Article 91 of the Constitution which explicitly prohibits parties based on ethnicity. Of course, parties are not explicitly ethnic, but we – including the IEBC and the Registrar of Political Parties seem unable to work out how to prevent essentially ethnic parties from operating in Kenya.

It is now crystal clear that, by and large, politicians care only for themselves. They steal from the coffers of the state or seek bribes from the rich and poor alike. Look at their approval of obscene compensation to former MPs who lost elections, and who doubtless made a great deal of money while they were MPs in the first place.

They have, for the most part, ignored constitutional values and objectives. This is the basis of the unity among them, regardless of party. And despite manifestoes that few read, including politicians themselves, there are in fact no real differences in policy between politicians. This too is obvious from the camaraderie between members of the two major parties following the March 9th ‘handshake’ between Uhuru Kenyatta and Raila Odinga. Does the handshake represent nothing more than a settlement of minor differences within the same class regarding the sharing of the loot?

The Odinga Initiative

In the current Kenyan political landscape, Raila Odinga is the most distinguished and thoughtful of politicians. He is completely committed to constitutional values and objectives and indeed had a hand in their formulation. His proposals are wide-ranging, though politicians, particularly Deputy President William Ruto and his friends, have unthinkingly interpreted his agenda in terms of their own careers. In particular, the future presidential prospects of their newly acknowledged hero, William Ruto. Contrary to his position during the Bomas process, Ruto now doubtlessly opposes the parliamentary system because he perceives it as Uhuru Kenyatta’s way of getting out of his promise to sponsor Ruto’s presidential candidacy in 2022. Thus the persistent reminders by his proxies about how he secured the Kalenjin vote for Uhuru in 2013 and 2017. A number of eminent politicians are supporting the handshake in the expectation of high office. No surprise that our politics are barren of ideas and progressive policies.

It is now clear that, by and large, politicians care only for themselves. They steal from the coffers of the state or seek bribes from the rich and poor alike… Does the handshake represent nothing more than a settlement of minor differences within the same class regarding the sharing of the loot?

It is true that Raila has proposed important constitutional changes: a shift from the presidential to a prime ministerial system, and the re-organisation of devolution to give people greater power to organise their lives. Both national and county level politicians are upset purely because the changes would affect them adversely. This again shows the pre-occupation of Kenyan politicians with their own benefits – and the barrenness of their politics.

I regard his constitutional proposals as of great significance – and to his list, I would add the electoral system so that we shift from first-past-the-post to the proportional representation system proposed by the Constitution of Kenya Review Commission (CKRC) – much fairer for a multi-ethnic state.

But now I turn to his other objectives: achieving the values of the Constitution – an approach shown by few other politicians.  For all too long, as he and Uhuru reminded us in their handshake press release, “Ethnic antagonism and divisive political competition have become a way of life… Our people are crying out for leadership that shows the [constitutional] path to dignity, prosperity and security”. They note also that “Our political system has been unable to respond to feelings of alienation in sections of our people”.

Despite manifestoes that few read, including politicians themselves, there are in fact no real differences of policy between politicians. This too is obvious from the camaraderie between members of the two major parties following the ‘handshake’

The Kenyan people have longed for the priorities that Raila and Uhuru have set for the state. Among them is social and economic security. UhuRaila favour leadership that makes “a practical effort to ensure that those who are hungry or in distress are aided” – something that politicians never think of.

They also commit themselves to eradicating corruption, recognising that “it destroys lives, public trust and prosperity… It is undermining our public and private institutions, and will destroy them and our aspirations as a nation”.

They also recognise the importance of human rights – our Constitution has perhaps the most extensive and balanced Bill of Rights in the world. To quote them, “There is no Kenyan whose rights should be compromised no matter the interests against them. Kenyans have struggled hard for these rights and they are not for anybody to take for granted. At the same time, to attain and protect our rights, we must embrace our responsibilities.  The two can never be separated if we are to have either”.

Raila has proposed important constitutional changes: a shift from the presidential to a prime ministerial system, and the re-organisation of devolution to give people greater power to organise their lives

So where are we?

Much of the current public debate touches on Raila’s proposals for constitutional amendments. In principle I support them, but my studies have shown that no government in Kenya has shown much regard for the Constitution. There is so much that is good in the Constitution as it is, that if it were to be honoured and implemented, Kenyans would enjoy a life of freedom, dignity, harmony, social justice, equality, and participation, as citizens of a united country.  Maybe we should give Uhuru and Raila the chance to implement the Constitution, and show us theirs are not mere empty words.

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Prof. Yash Pal Ghai is Kenya’s preeminent constitutional lawyer and former chair of the Constitutional of Kenya Reform Commission (CKRC).

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Miguna Miguna Must Return Home and Court Orders Must Be Obeyed

Statement by Dr Willy Mutunga, former Chief Justice and President of the Supreme Court of the Republic of Kenya.

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Miguna Miguna Must Return Home and Court Orders Must Be Obeyed
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My Decision

After careful reflection and following broad consultations with lawyers, human rights and justice defenders, progressive politicians, and Mr Miguna himself, I have decided to travel to Toronto, Canada, to accompany Mr Miguna on his flight back to his motherland on 16 November 2021. I am also seeking out Kenyan journalists who will accompany me on this historic journey.

I have taken this extraordinary step for two fundamental reasons. The first is because of the continued, flagrant and reprehensible defiance of the Government of Kenya, its agencies and senior officials, against the numerous valid court orders in favour of Mr Miguna, The second reason why I have decided to undertake this journey is to support and defend the independence of our judiciary, its authority, and the people’s confidence in it.

Roll call of gross injustices, impunity, and subversion of the constitution and the rule of law

As you may recall, Mr Miguna was illegally abducted from his house in Nairobi on 2 February 2018, detained incommunicado and tortured for six days.

Mr Miguna’s house was unlawfully destroyed with detonators. In defiance of habeas corpus orders issued by the Honourable Justice Wakiaga and the Honourable Justice Luka Kimaru directing that Mr Miguna be released immediately and taken to court, the Government of Kenya illegally seized his valid Kenyan passport and forced him into exile in Canada.

On 15 February 2018, Justice Kimaru ordered that Mr Miguna’s Kenyan passport be deposited with the High Court in the state in which it was seized. However, rather than comply, the Government of Kenya defaced and destroyed the passport before delivering it to the court. That was an egregious affront to the rule of law.

The Honourable Justice Chacha Mwita then issued an order on 26 February 2018 directing, among other things, that the Government of Kenya and its senior officials named in the Constitutional Petition Number 51 of 2018 facilitate Mr Miguna’s return to Kenya and grant him unconditional entry at the time of his choosing. The Court also suspended the declarations and decisions of Interior and National Coordination Cabinet Secretary Dr Fred Matiang’i, and Director of Immigration, Major (Rtd.) Gordon Kihalangwa, that had purported to invalidate Mr Miguna’s citizenship and justify his forced exile.

However, when Mr Miguna flew back to the country on 26 March 2018, not only did the Government of Kenya block his entry, but senior government officials also imposed unlawful conditions on him in contempt of Justice Mwita’s orders, physically assaulting him, detaining him for three days in a filthy toilet at the Jomo Kenyatta International Airport, before sedating him and illegally removing him from the jurisdiction of the Kenyan courts to Dubai in the United Arab Emirates (UAE), on 28 March, 2018. Once again, the Government of Kenya did this in open defiance of multiple court orders by the Honourable Justice Roselyne Aburili and the Honourable Justice George Odunga. In a further display of disregard for the rule of law, the illegal removal to the UAE took place on the same day that Justice Odunga issued the order that the Government of Kenya and all its departments and officials release Mr Miguna unconditionally desist from removing him from Kenya.

These illegal actions by the government prompted Justice Odunga to take the unprecedented step of convicting several senior government officials, among them Dr Matiang’i, Major Kihalangwa, Director General of Police, Joseph Boinett, Director of Criminal Investigations, George Kinoti, Officer-in-Charge of the Flying Squad, Said Kiprotich, Officer Commanding Police Station at the Jomo Kenyatta International Airport, and the Attorney General for contempt of court on 29 March. Each of the contemnors was fined KSh200,000, which was to be deducted directly from their April 2018 salaries. To date, none of the contemnors has purged their contempt. They, therefore, continue to undermine the rule of law and to violate the oath of office they took as state officers.

On 14 December 2018, Justice Mwita issued his judgment in favour of Mr Miguna and indicted the Government of Kenya and its senior officials for violating his constitutional and human rights. This was following a hearing of the Constitutional Petition number 51 of 2018. Significantly, Justice Mwita held that Mr Miguna is a Kenyan-born citizen who has never lost his Kenyan citizenship. The court nullified the cancellation of Mr Miguna’s citizenship and passport, and declared that his arrest, detention, torture and removal from Kenya were illegal, unconstitutional and a gross violation of his rights.

Justice Mwita awarded Mr Miguna KSh7 Million in damages and KSh270,000 for the destruction of his house. He also held that Dr Matiang’i, Major Kihalangwa, Mr Boinett, Mr Kinoti, the Officer Commanding Police Station at the Jomo Kenyatta International Airport, Said Kiprotich, and Githu Muigai were not fit to hold public office. Justice Mwita’s orders were against the Government of Kenya and each one of the named government officials.

The Court quashed all the decisions and actions the Government of Kenya had taken against Mr Miguna and directed that the state return Mr Miguna’s valid Kenyan passport and any other identification documents taken from him, and facilitate his unconditional return to Kenya.

Not only has the Government of Kenya and its senior officials defied Justice Mwita’s orders and refused to facilitate Mr Miguna’s return to Kenya, but when Mr Miguna attempted to return to his motherland on 6 January 2020 at his own expense, the Government of Kenya issued “red alerts” to all commercial airlines, effectively barring him from flying into Kenya.

The Government of Kenya’s “red alerts” against Mr Miguna were issued illegally and in violation of not just his rights but also of international humanitarian and aviation laws. The issuance of “red alerts” in order to frustrate valid court orders is not only a blatant disregard for the rule of law, but a descent into autocracy.

On 6 January 2020, the Honourable Justice Weldon Korir issued orders directing that Mr Miguna be free to enter and leave Kenya at any time of his choosing using either his national identity card or his Kenyan Passport in the state in which it was submitted to the High Court by the Government of Kenya.

Miguna Miguna’s Cry for Justice

It is now 1,355 days – 3 years, 8 months and 17 days – since Mr Miguna was illegally and brutally forced into exile by the Government of Kenya. None of the court orders referred to above have been obeyed or complied with by the state or its agents and officials.

I urge all Kenyans to demand that the government comply fully with the orders, including the prompt payment of all awards, costs and accruing interest. Justice demands no less.

The repugnant subversion of the rule of law by the Government of Kenya in this case is tantamount to the overthrow of the 2010 Constitution and an egregious act of impunity by a government that has a duty to uphold, comply with and enforce laws and court orders. To blatantly defy them, not once, not twice, but multiple times, sets a dangerous precedent that we all must stand up against.

Court orders are not suggestions. They are not requests. They cannot be disregarded without consequence.

As eminent jurists have noted elsewhere, democracy, the rule of law, and the foundational values of our constitution require that the dignity and authority of the courts be upheld by everyone at all times.

Court decisions and orders are binding for everyone, including the Government of Kenya, all organs of state and all officials. From the homeless, to the military generals to the President of the Republic, no one is above the law.

Writing for the majority in the Constitutional Court of South Africa’s decision of 29 June 2021 on the contempt of court case against former President Jacob Zuma, Acting Deputy Chief Justice Sisi Khampepe observes,

It is indeed the lofty and lonely work of the Judiciary, impervious to public commentary and political rhetoric, to uphold, protect and apply the Constitution and the law at any and all costs. The corollary duty borne by all members of South African society – lawyers, laypeople and politicians alike – is to respect and abide by the law, and court orders issued in terms of it, because unlike other arms of State, courts rely solely on the trust and confidence of the people to carry out their constitutionally-mandated function. The matter before us has arisen because these important duties have been called into question, and the strength of the Judiciary is being tested. . . . It is disappointing, to say the least, that this Court must expend limited time and resources on defending itself against iniquitous attacks. However, we owe our allegiance to the Constitution alone, and accordingly have no choice but to respond as firmly as circumstances warrant when we find our ability to uphold it besieged.

Justice Khampepe goes on to affirm the principles enunciated in section 165 of the Constitution of South Africa as expounded by Nkabinde J in Pheko II, namely,

[t]he rule of law, a foundational value of the Constitution, requires that the dignity and authority of the courts be upheld. This is crucial, as the capacity of the courts to carry out their functions depends upon it. As the Constitution commands, orders and decisions issued by a court bind all persons to whom and organs of State to which they apply, and no person or organ of State may interfere, in any manner, with the functioning of the courts. It follows from this that disobedience towards court orders or decisions risks rendering our courts impotent and judicial authority a mere mockery.

As the South African Constitutional Court did in the case of Jacob Zuma’s contempt of court orders, it is imperative that we all stand up and fearlessly defend the constitution, the rule of law, and the authority of the judiciary. If we do not demand, and ensure, everyone’s compliance with court orders, regardless of their station in life, their power or their wealth, we shall allow the institutionalization of chaos and lawlessness.

I call upon all judges, advocates, human rights and social justice defenders, and, indeed, all citizens of Kenya, to join us as we take a stand against the culture of impunity, lawlessness and barbarism that is slowly creeping upon us.

As I prepare to embark on this journey, I demand that the Government of Kenya:

  • Immediately and unconditionally withdraws the red alerts that it has issued against Miguna Miguna and allows all airlines to fly Miguna Miguna to Kenya;
  •  Publicly apologizes to Miguna Miguna and to all Kenyans for the violations of the constitution and for the contempt of court, and complies fully with all court orders including, but not limited to, those regarding reparations and costs;
  • Ensures that Miguna Miguna is not removed from the plane before or after it lands at the Jomo Kenyatta International Airport;
  • Ensures that no security and immigration officers block Miguna Miguna’s entry at Jomo Kenyatta International Airport, or at any other port of entry;
  • Complies with the notice that will be given to the Inspector General of Police not to interfere with, disrupt or threaten Kenyans who travel to Jomo Kenyatta International Airport to receive Miguna Miguna, and ensures that everyone is accorded their full rights of assembly under Article 37 of the Constitution;
  • Ensures that Miguna Miguna’s rights are safeguarded, including his right to be issued with a valid Kenyan Passport, his right to free speech, association, assembly and travel, and to be safe from arbitrary arrest, detention, harassment, threats, intimidation and abuse; and
  • Ensures that the rights of all Kenyans who receive Miguna Miguna at the gates of the Supreme Court Building, where he will present a petition to the Chief Justice and President of the Supreme Court upon arrival in Kenya, are respected.

The immediate purging of contempt of court orders and full compliance with all the foregoing decisions will enable Kenya and its government to be readmitted into the community of civilized nations.

Finally, I appeal to all Kenyans of goodwill and to our friends in other countries to support this cause because it is just. I will communicate the day of my departure and my itinerary in order to enable those who cannot accompany us physically to do so virtually.

I thank you.

Willy Mutunga
Chief Justice & President of the Supreme Court, 2011-2016

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The Lies They Tell Us About Education, Work, and the Arts

Society pays a heavy price when the arts are not about human beings but about institutions. We become an autocratic society, and a society without soul.

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In my open letter to Kenyans, I talked about how the arts are a divine calling. The arts make us human, because the arts provide a space for us to be social and individual at the same time. With the arts, we accept what we can’t change and change what we can, while producing something creative and sometimes new.

Let me give an example of what I mean. The rituals we perform when someone we love dies help us accept death as something we all must face. However, we cannot raise our hands and say death is inevitable, because if we do, we would not have reason to live our lives to the fullest. So the arts is where we deal with that contradiction. When Amos and Josh sing “Tutaonana baadaye”, they are singing, “We accept your going is inevitable, but until we join you, we must still live our best lives, love with all our hearts.” And from this deep truth, Amos and Josh and King Kaka produced a beautiful song.

​That’s what the arts are – beauty that carries deep truth.

This beauty that carries deep truth is not liked by the people who want power. For them to be powerful, they must block us from the truth, and so they block us from the arts. The people in power combine the force of education, religion, business and media to make sure that either they block us from the arts, or they distort the arts so much that the arts don’t lead us to the truth but to a false impression of the truth.

So I’m going to talk about how education boosts this system.

The thing to remember is that the school system hates the arts for the same reason that the government hates them. Schools have structures of power, like principals, who in turn have their deputies and middle-level managers. The power they exercise is no different from that of the state, and in fact, in many instances their appointments are made by the state.

So the education system hates the arts for the same reason as politicians, the clergy and business people: arts will make teachers and students start asking questions about the education system, including questions about content and whether we must use violence to educate. For this reason alone, schools do not want arts education because it would make teachers and students less easy to control.

And how does the education system fight against the arts? By capturing and telling lies about three things: education, work, the arts.

Lies about education

The biggest lie that has been told to us is that schooling = education. I’m sure you know this, because I hear artists saying it, except that it doesn’t mean what they think it means.

Let’s start by defining education. Education is the formal way in which people expand their knowledge and refine their skills. In other words, education is done deliberately. This means two other truths that Kenyans, including artists, seem not to fully understand.

One, that people can expand their knowledge and refine their skills unconsciously, through life, habit and experience.  In this letter, I will call that process “culture”. In other words, you may learn to dance not because you deliberately decided to learn, but because dancing was happening around you and you also learned to dance. The fact that you did not learn your knowledge or skill consciously with the purpose of becoming a dancer does not mean that your knowledge and skill are less important than what others learn in the formal school. Culture was just another way of learning for you.

Two, formal learning is not restricted to going to school alone. Formal learning includes apprenticeship and mentorship. When we are mentored by or apprenticed to someone else, we are going to school, even though we are not sitting in a classroom to be taught by someone called a teacher, and then getting a certificate for it. One of the reasons why I used to invite artists to meet my students is because I wanted my students to hear that even other artists put time into learning their craft from others. So we heard from Juliani that he learned his craft from Ukoo Flani, or from Suzanna Owiyo that she learned to play the nyatiti from her grandfather.

So it is extremely important, and I cannot emphasize this enough, that artists must learn from others. When our artists are not being mentored artistically by anybody, we have reason to worry.

I have heard some artists say on TV that they didn’t learn their craft from anyone. I find that upsetting, because even if they didn’t go out deliberately to learn from elders the way Juliani and Suzanna Owiyo did, they were learning from what was being played in the house or what they heard or did as children. By saying they did not go to school, they are basically dissing their cultures and backgrounds. Or they don’t know them at all.

When we are mentored by or apprenticed to someone else, we are going to school, even though we are not sitting in a classroom to be taught by someone called a teacher.

But the second reason why that statement is upsetting is because it means that such artists see no value in creating arts traditions or archives. It means that if you didn’t learn from anyone, no one needs to learn from you. That means that we will always start our arts from scratch, over and over again. It means that with the arts, we are always reinventing the wheel. And the people in power like that, because the larger society never builds an archive of knowledge.

And without an archive of knowledge about the arts, society has no obligation to respect the arts as work that people spend their time doing, or that it is a skill they learn. And I’m sure you can know the rest of the story. But I’m going to go over it.

Lies about work

The second lie that the education system tells us is that going to school is for employment, and employment is for national development. And we artists know the second part of that lie: to develop, we don’t need the arts; we need STEM (Science, Technology, Engineering and Mathematics).

And to support these lies, the educators and the media tell us junk like 80 per cent of students are in arts subjects. It’s not true. Let me just give the worst example of arts education in Kenya: out of 70 universities in Kenya, only six universities teach music. Only one university teaches fine arts. There is no Master of Fine Arts degree in Kenya.

But the other problem with the lie about employment is that without arts education, we are not able to teach generations of Kenyans to appreciate the importance of arts in society, whether they become artists or not. We need to teach arts education to create a society that will support artists. In other words, if we want the Kenyans to buy your albums, your books and your paintings, to go to the cinema to watch your films and to the theatres to watch your plays, they need to have grown up learning the importance of the arts for their own lives and for society as a whole. They need to understand the importance of protecting public parks and social halls where musicians can perform. They also need to understand the work that goes into art, so that they stop negotiating with you to pay almost nothing, if they pay you at all.

When you go on TV and talk badly about schools and not needing to go to school to be an artist, you are encouraging schools not to provide arts education, so that the next generation of farmers, engineers, lawyers, doctors, teachers will not spend their resources paying for your work. In other words, you are encouraging people not to see your work as work that needs to be paid for. So please think again before talking badly about schools.

When you go on TV and talk badly about schools and not needing to go to school to be an artist, you are encouraging schools not to provide arts education.

Also, when the school system says that the only work worth respect is the work you went to school for, we are encouraging schooling-based discrimination. There is a lot, a lot of work done in Kenya, not only by artists, but also by people who did not get certificates in order to do it. The rich still profit from that work, but they pay even less for it because the workers did not learn it in school. That is why the government is actively discouraging people from pursuing university education. They want Kenyans to learn university level work but not pay them for the value of their work. This problem is no longer about artists alone. It’s affecting all young people.

So the lesson here is 1) value your education, even if you did not get it in the school system, and 2) do not diss the school system as irrelevant to the arts.

Lies about the arts

This third lie about the arts is repeated by artists so much, it’s embarrassing. The lie that the arts are about “talent”. The problem with “talent” is that it suggests that arts is not work that takes skill and time. In fact, businesspeople exploit artists precisely because of the attitude that “Why do you want me to pay for just shaking your body around or splashing colour on a canvas? Si it’s just talent? Even I can do the same work if I wanted to.” For them, performance has no rehearsals, painting has no sketches, and writing has no drafts. You’re just talented. Your art required no work or skill.

This lie was picked up by the Kenya Institute for Curriculum Development, so that you believed the government when it said that Competency-Based Curriculum is different because it will have a pathway for the “talented” students who do not do well in the sciences. How on earth could you accept such madharau as “arts education”? And yet, as I explained on Citizen TV, the “talent” pathway is where they are going to throw the kids who are poor or needed extra help from teachers. In other words, the arts are the place to dump the students let down by the education system.

With that kind of attitude expressed about the arts, we should not be surprised that professionals coming out of the school system don’t see the arts as worth paying for.

But there is another insidious thing happening within the education system that should make us very worried. We are producing periphery professionals without the core artistic skills. Universities, for example, are producing film-makers who don’t learn to tell stories, journalists who don’t learn language or how to write, conflict experts who have no knowledge of history, politics and anthropology, or musicians who cannot play instruments. How is this acceptable?

It is acceptable because the universities have bought the lie that the arts are not “marketable” and are not investing in teaching these subjects. So universities are cheating students that they will produce good films and produce good music without learning story-telling and composition work.

And as a country, we pay the price for this mess with our inability to produce art that we Kenyans can be proud of and that can put us on the international map. For instance, Hollywood makes its biggest and most award-winning films from stories of real people, or from their own novels and plays. Lupita Nyong’o won her Oscar for a film based on a real-life story.

But year after year, Kenyan film-makers guilt-trip us into watching local films but are yet to produce the story of Wangari Maathai or Syokimau or Elijah Masinde on screen. We have few of our oral stories in cartoons, and instead we watch Lion King. By now the column “Surgeon’s Diary” should be an ER-type series, “Mwalimu Andrew” should be a sitcom. But why can’t Kenyan filmmakers think like this? Because they don’t study stories. They study cameras and scripting and Western film festivals. Remember what I said about “reinventing the wheel?” That is what we do.

The last concern I have about education is the most serious of all. This one pains me.

Arts in Kenyan education is taught like science. Literature, the most prominent example, is taught so badly, that students leave school hating it. They are not taught to enjoy stories for what they are.

There are three main ways in which literature is taught. One is to cut up literature scientifically into themes, characters, style and other details and make students repeat those analyses without ever enjoying or understanding the story. The other is to insist on morals, a development agenda or a specific anti-colonial story. The last is to shame students into saying they have no identity because they don’t know the songs their great-grandparents used to sing.

The purpose of all these methods is to prevent the type of arts I talked about in the previous letter. It’s to prevent individual enjoyment and expression through the arts. It’s also to reinforce the idea that the arts are not for us, human beings, but for grades (the school), the church (morals), the state (development) or politics (limited to anti-colonialism).

We pay the price for this mess with our inability to produce art that we Kenyans can be proud of and that can put us on the international map.

This view of the arts explains some disturbing things I notice in my classroom. Our students can’t enjoy art or talk about real life. For instance, when I recently gave some love poems for students to analyze, they said that the praise of a loved one was a lie or an exaggeration. These days, when we are in class, students will tell me about fascinating things in society, but when they hand in the write-up, I find they have not written what they said in class, but have written notes like a schoolteacher. One class finally got what I was complaining about when I said that in Kenya, if I wear a nice dress, people will not say, “That dress is beautiful” or “You look nice.” They will give an analysis: “I always find kitenge dresses very smart.” That’s how disconnected the Kenyan psyche has become. We’ve lost our human warmth.

When the arts are not about us, human beings, but about institutions, then we become an autocratic society. When the arts are treated in this way, it gives permission to the government to censor us, to businesses to exploit us, to churches to condemn us, and to society to not value us. And the price the whole society pays is the loss of our soul.

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Kenyan Media and the War in Somalia: In Bed With the Troops

Ten years ago this month Kenyan troops invaded Somalia. Coverage of the incursion by the Kenyan media has consistently and uncritically favoured the Kenya Defence Forces.

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Kenyan Media and the War in Somalia: In Bed With the Troops
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Precisely ten years ago, Kenyans woke up to the news that about 2,000 troops of the Kenya Defence Forces (KDF) had been deployed to fight al-Shabaab, the Somalia-based terror group.

In an invasion dubbed Operation Linda Nchi, the troops made their way into southern Somalia through the semi-arid porous border that divides the two neighbouring nations. The deployment followed news reports that al-Shabaab was behind abductions targeting aid workers in northern Kenya and tourists along Kenya’s coast.

But while there is no shortage of reports on the hidden reasons behind this decision, analysis of how the Kenyan press has constructed the narratives about the conflict for its audiences is limited. Scholars and analysts have scrambled to put forth solid analyses of the dynamics of the Kenyan elites, al-Shabaab, and other actors involved in Somalia yet few have attempted to address the question of how the Kenyan mass media mediates this war.

Further, researchers have undertaken the essential task of informing us how media outlets in the global north cover wars involving troops from their countries’ perspectives. However, analysis on how invasions in countries like Somalia are mediated by news media organizations from invading countries like Kenya remains minimal.

Wars and the news media 

The intersection of news media and conflict is complex. There is consensus in the existing academic research that journalists throw away their professional hats when covering wars involving their home countries. This is explained by the fact that they are guided by military elites who control the information coming in from the frontline. The shared cultures and ideologies with soldiers on the battlefield render journalists sympathetic to their governments’ interests. In short, they remain patriotic and loyal.

As primary agenda setters, the news media remains a powerful force. In Kenya, the existing digital divide reminds us that the traditional press still dominates the dissemination of information across the country. This requires that we explore what shapes the decisions of Nairobi-based editors when bringing the war in Somalia to Kenyan living rooms.

The KDF has participated in numerous peacekeeping missions across the world since its inception. From the Bosnian war in the 90s to the Sierra Leone civil war that ended in the early 2000s and Sudan’s Darfur conflict, the Kenyan government has generously contributed its military troops to UN-led peacekeeping missions. These missions largely go uncovered by the Kenyan press since the country is effectively not at war, and also because distance discourages editors from spending resources on these countries.

However, the October 2011 decision to invade Somalia, a country that shares a border with Kenya, was unprecedented. The unilateral decision by former President Mwai Kibaki’s government opened a decade of countless terror attacks across the country. And for the first time, Kenyan journalists were covering a war in which their own country was prominently involved.

Undoubtedly, Kenya’s hasty decision to invade Somalia cemented al-Shabaab’s prominence as one of the deadliest terror groups in the continent. Helped by Kenya’s weak security system which was a result of rampant corruption and limited resources, al-Shabaab executed some of its worst attacks in the country.

The unilateral decision by former President Mwai Kibaki’s government opened a decade of countless terror attacks across the country.

The group was behind the killing of over 4,000 people across East Africa in 2016 alone. The Garissa University terror incident in early 2015 that led to the deaths of 147 students and staff remains the deadliest attack by the group in Kenya. Inside Somalia, the group was behind the January 2016 massacre in El Adde and the 2017 attacks in Kulbiyow that resulted in the deaths of hundreds of KDF personnel. Thus, the Kenyan mass media found itself covering a war that was killing military personnel in Somalia and Kenyan citizens across the country.

KDF and the media

It is almost impossible not to think about patriotism when discussing the intersection of the Kenyan mass media and the country’s military institutions. Even before its invasion of Somalia, the KDF consistently enjoyed favourable media coverage and, with the exception of the people of northern Kenya who carry the scars of attacks such as the Wagalla massacre perpetrated in Wajir in 1984, Kenyans’ perception of the KDF was positive.

The Kenyan media’s uncritical treatment of the KDF when the invasion commenced was therefore not surprising. Kenyan journalists share cultures and ideologies with the troops and this creates a bias in how they view this war.

We have often seen how citizens of African countries—with Kenyans leading by example—react to Western media misrepresentations of their stories. From #SomeoneTellCNN to #SomeoneTellNewYorkTimes, Kenyans have taken to social media platforms like Twitter to vociferously criticise how the Western press covers terror in their country. And while pushback against misrepresentations and negative portrayals by foreign media is necessary, it is equally important to question how our own news media portrays war and terror in Somalia.

It is common knowledge that US reporters tend to interpret foreign news with American audiences in mind. But this is not only true of Western reporters; journalists across the globe tend to behave this way when they cross their borders to report on a war led by or involving their own country.

Kenyan news media gatekeepers <> through the lens of nationalism when reporting conflict across the border and within the country. Moreover, whether it be the shifta war, the atrocities in Somalia, the Somali refugees in the Dadaab camp, the Kenyan mass media places Somalia and northern Kenya within the same frame, and the published stories are perceived as synonymous with Kenya’s policy in Somalia. Kenyan reporters write these stories with Kenya in mind, creating the ideal environment that enables Kenyan citizens to accept and approve of the conflict.

After conducting a content analysis of how the Daily Nation and Standard newspapers have covered the war, Cliff Ooga and Samuel Siringi conclude that the Kenyan press has “relied a lot on the news from government agencies instead of residents and eyewitnesses accounts of the combat in Somalia.” This cements the argument that the sources used in covering the conflict frame the KDF as the winning side and shape a favourable public opinion that approves the mission.

My findings of an analysis of over 200 articles in Kenyan and US newspapers about the 2013 Westgate Mall attack were consistent with those of scholars who had examined other attacks such as the Garissa University and Dusit Hotel terror attacks. More than 70 per cent of the sampled articles received episodic framing, meaning they were covered as a single event.

This type of framing doesn’t inform the audience about why these attacks are occurring. It lacks in-depth analysis, nuance, and thematic demonstrations of how Kenya found itself in the conflict. Tellingly, these findings were synonymous with how American newspapers covered the same attacks.

Embedded journalism 

The primary reason behind the Kenyan news media’s uncritical reportage of the war in Somalia is embedded journalism. This type of journalism occurs when reporters are invited and attached to military personnel in the battleground to cover conflicts. This approach defeats critical journalistic values—fairness, neutrality, and impartiality are replaced by patriotism, loyalty and empathy. The value of ethical journalism and independence on the battlefields is lost since military personal provide security to these reporters.

Moreover, the military covers the journalists’ costs and sets the ideal timing for combat. The location of the coverage, how and who is interviewed,  these are strategically structured so as to portray Kenya as winning the war, a classic example of public relations through the mass media. Kenyans are presented with news coming in from the battlefield wrapped in such headlines as KDF, No Retreat, No Surrender in Somalia Operation, and The Frontline: KDF Continues to Combat al-Shabaab in Somalia.

The concept of embedded journalism flourished in the 2003 Iraq war. The US military was eager to control information coming out of the oil-rich country. The use of this tactic by American military elites was motivated by the embarrassment it experienced in the Vietnam War, often referred to as the “first television war”. The advent of television technology took journalists to the frontline, a perilous yet enticing undertaking that brought with it recognition among their peers and prestigious prizes that acknowledged their prominence in the realm of journalism.

The primary reason behind the Kenyan news media’s uncritical reportage of the war in Somalia is embedded journalism.

With unrestricted coverage, positive reportage of the Vietnam War soon turned to critical reporting that portrayed the government in a bad light. With journalists having free access to the affected communities, bloody images of innocent victims of the war found their way onto television screens in American living rooms. The footage contradicted “the official war narrative and undermined public support for the war effort” and calls by anti-war activists for the American government to end the war in Vietnam escalated. This is why military elites in Washington DC view the unfettered access of news media to the frontline as a threat that needs to be contained.

In 2003, embedded journalism played a significant role in advancing the interests of the US in the Middle East and beyond. Reporters were given protection by the military in cities across Iraq. This is little more than tourism on the battlefield, where the troops are the tour guides who control journalists during the adventure that is war coverage.

Imitating the West, the KDF employed this tool to deal with the news media. Coverage of Kenya’s invasion of Somalia is Kenyan-centric, with sources comprising of military personal and the personal views of the journalists. Somalis are completely disregarded and the few who are interviewed are beneficiaries of KDF-driven humanitarian efforts such as free medical camps and distribution of foodstuff.

A culture change is needed

How can the Kenyan news media change this culture of violating journalistic values? Can Kenyan journalists redeem themselves by giving us a clear picture of the KDF’s engagement in Somalia?

These questions need immediate attention as we enter the second decade of Kenyan military activity in Somalia. We have witnessed how the lack of critical coverage of war and terror in countries like Somalia, Afghanistan, Iraq, and elsewhere has derailed efforts towards finding durable solutions to end these wars.

Kenyan journalists need to acknowledge that their coverage of Kenya’s incursion into Somalia has uncritically embraced the government’s position and that Kenyans have not been given an accurate picture of the ongoing conflict. Their editors, the decision-makers in the newsroom, should strive to allocate resources for journalists to be deployed independently to cover this conflict. This essential element in the news production process is key to a fair, impartial, and critical coverage of Kenya’s engagement in Somalia.

This is tourism on the battlefield and the troops are the tour guides who control journalists during the adventure that is war coverage.

Journalists covering these stories should strive to reach out to different sources. Including the voices of those in the local communities who face the wrath of both the KDF and al-Shabaab would be a bold step towards constructing clear narratives for citizens in Kenya and elsewhere.

Newsrooms should also hire full-time, Somali-based journalists to cover the conflict; deploying journalists from Nairobi who lack contextual knowledge will make it difficult to produce fair and impartial reporting. Perhaps engaging properly remunerated local correspondents would address some of the challenges of the last ten years.

When news of the invasion was announced a decade ago, elites in Nairobi were quick to promise that it would be a short war. However, our troops are still “fighting terror” that has killed thousands of Kenyans inside and outside Somalia. It is conceivable that critical news coverage of this war by the Kenyan mass media would lead to the long-overdue exodus of KDF from Somalia.

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