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Jubilee’s Broken Windows: A Chronology of Kenya’s Moral Collapse

9 min read.

The rot set in when institutional gate-keepers failed to act ethically and courageously to prevent Uhuru Kenyatta and William Ruto, two ICC indictees, from running for office in 2013. Propped up by ethnically chauvinistic voters, the gates were then opened wide for the looting observed today. By RASNA WARAH.

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Jubilee’s Broken Windows: A Chronology of Kenya’s Moral Collapse
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The National Youth Service “Season Two” scandal, in which Ksh 9 billion might have been lost or stolen, has left many wondering whether President Uhuru Kenyatta’s rather belated attempts to stamp out corruption in the country are akin to fixing a leaking ship with Elastoplast. Kenyans, including the president himself, are now admitting that corruption in the country has reached unprecedented levels, with procurement departments in government ministries attracting the largest number of thieves. Estimates of the total amount of money lost, unaccounted for or stolen since the Jubilee government assumed power in 2013 range from between $6 billion and $20 billion – more than the combined cost of the newly-built Standard Gauge Railway and the upcoming Nairobi-Mombasa expressway. With a new scandal emerging almost every day, it is likely that these figures are grossly underestimated.

While it is generally acknowledged that no Kenyan government since independence has had a clean record, there is something about graft under the current administration that makes the crooks in previous governments’ appear tame and modest when it comes to looting. As someone commented to me recently, “At least past governments did not steal the entire country – they left some of it for the rest of us.”

Things are so bad that even officials at the Kenya Bureau of Standards – the entity that is tasked with ensuring food and beverage safety standards – have been implicated in allowing and facilitating the distribution of contaminated and highly toxic imported sugar into the Kenyan market.

Corruption is quite literally, killing Kenyans.

President Uhuru Kenyatta blames rogue elements within various ministries for these daylight robberies but fails to see the role that he, his deputy William Ruto, Kenya’s electoral body and voters played in opening wide the doors to corruption, dishonesty and theft. I believe the rain truly started beating Kenyans when the Independent Electoral and Boundaries Commission (IEBC) – the body mandated to vet candidates in elections and determine their suitability – ignored Chapter Six of the Constitution on Leadership and Integrity.

The IEBC gave a clean bill of health to both Kenyatta and Ruto prior to the 2013 election, even though the duo were facing charges of crimes against humanity at the International Criminal Court at the time. Rather than disqualifying them from running for the highest office in the land, the IEBC and Kenya’s chauvinistic voters viewed their candidacy as a “referendum against the ICC” – the very ICC that not too long before that been perceived by a majority of Kenyans as the only court that could deliver justice to the people who were killed, maimed, raped and displaced following the disputed the 2007 election.

President Uhuru Kenyatta blames rogue elements within various ministries for these daylight robberies but fails to see the role that he, his deputy William Ruto, Kenya’s electoral body and voters played in opening wide the doors to corruption, dishonesty and theft. I believe the rain truly started beating Kenyans when the IEBC ignored Chapter Six of the Constitution on Leadership and Integrity.

I am not a big fan of the ICC, which I believe tends to deliver selective justice based on political considerations. I am also convinced that Mwai Kibaki and Raila Odinga should have borne the greatest responsibility for the post-election violence of 2007-2008, given that Kibaki controlled the government security apparatus that unleashed much of the violence and considering that his opponent Odinga did little to quell the killings and torture, and did not even visit or mourn with the bereaved whose kith and kin had died in his name. Naming Kenyatta and Ruto (who was then a leading member of the ODM party and a staunch ally of Odinga) and four others as bearing the most responsibility for the violence smacked of disingenuousness and mischief on the part of the ICC.

Nonetheless, by ignoring Chapter 6 of the Constitution, specifically Article 73, which says that state officers should promote public confidence in the integrity of the office, and Article 75 that states that state officers should avoid any conflict between personal interests (the “personal challenge” that Kenyatta talked about when he referred to his case at the ICC during the 2013 campaigns) and public or official duties, the IEBC essentially trashed the very constitution that established it.

Rather than disqualifying them from running for the highest office in the land, the IEBC and Kenya’s chauvinistic voters viewed their candidacy as a “referendum against the ICC” – the very ICC that not too long before that been perceived by a majority of Kenyans as the only court that could deliver justice to the people who were killed, maimed, raped and displaced following the disputed the 2007 election.

The High Court further muddied the waters when the candidacy of Kenyatta and Ruto was challenged by civil society groups. The Court argued that if criminal investigations against an individual are still open or a criminal case has not been concluded, then that individual should be presumed innocent until proven guilty, and therefore, should be free to vie for political or public office. This allowed all manner of criminals and shady characters to pursue political office either because a court had not found them guilty or because their cases were still pending in Kenya’s sluggish legal system. In short, people tainted with corruption and other scandals were whitewashed by the IEBC.

In addition, when the results of the election were challenged, the Supreme Court, to the surprise and dismay of at least half the country which believed that the 2013 election was rigged, determined that the election was free and fair. This judgement was a significant turning point for Kenya – the line between legality and illegality, integrity and dishonesty became irreversibly blurred. “It was like something had died, like something had been killed,” commented literary critic Keguro Macharia a few weeks after the Supreme Court ruling.

Civil society activists felt betrayed by the Supreme Court’s decision; some described Kenya’s new political dispensation as the return of dictatorship, as both Kenyatta and Ruto were associated with the repressive Daniel arap Moi regime. Ruto was plucked out of obscurity to work for the notorious Youth for Kanu team that Moi had established to garner support for his party among young voters prior to the 1992 election. Kenyatta, while less tainted, came with the baggage of being the son of the first president of Kenya, who had been linked to various historical injustices, including land grabs and political assassinations. The younger Kenyatta was also a protégé of Moi and was the flag bearer and presidential candidate of Kanu in the 2002 elections, which he lost to Kibaki.

Meanwhile, supporters of the “UhuRuto” presidency deluded themselves that the economy was safe in the hands of the same ethnic Kikuyu and Kalenjin elite that had dominated the economy since the days of Jomo Kenyatta and his successor Moi – and that Kenyatta and Ruto, unlike people who belonged to politically or economically marginalised ethnic groups, would be less tempted to steal because they had already benefited from stolen wealth.

“Although the problem is in fact of elites writ large, Kenyan corruption is traditionally viewed in terms of economic rivalry among the country’s main ethnic groups. A presidency under ethnic Luo leader contender Raila Odinga, the argument went, back in 2013, carried the risk of unprecedented ‘eating’ by a long-sidelined group, hungry for the perks of office,” commented British journalist Michela Wrong, whose book Our Turn to Eat exposed corruption during the Kibaki era. Kenyans assumed that since the Kikuyu and Kalenjin had already “eaten” when their tribesmen were in power, Kenyatta and Ruto would be less greedy while in office, an assumption, Wrong noted, that mistook the nature of human greed.

Broken windows theory

Some argue that corruption is in the DNA of Kenyans and that the entry of the Jubilee government into power has little to do with Jubilee and more to do with how Kenyans are wired. This may be so but I believe that the 2013 and 2017 elections confirmed what is known as the “Broken Windows Theory”. First proposed by social scientists George L. Kelling and James Q. Wilson in 1982, this theory has been used to successfully fight crime in cities such as New York. Kelling and Wilson argued that when crime, anti-social behaviour and civil disorder are allowed to fester, it encourages further crime and disorder. The “broken windows” theory came from their observations that when a broken window in a building is not repaired, there is a tendency for vandals to break a few more of the building’s windows. And if those windows are not repaired either, eventually the vandals may break into the building itself and become squatters. But if the windows are repaired immediately after they are broken, it serves as a deterrent to vandals and other criminal elements.

Similarly, as has been observed in many cities around the world, when people are allowed to litter streets, the streets soon start looking like huge rubbish dumps. People carelessly begin throwing plastic bottles, chewing gum, cigarette butts and even food without considering the health and welfare or fellow street users. But if litter is collected regularly by the authorities and litter-gathering devices, such as rubbish bins, are placed at convenient locations along streets, the level of littering reduces significantly. In some countries, such as Singapore, littering carries heavy fines, which further serves as a powerful deterrent.

First proposed by social scientists George L. Kelling and James Q. Wilson in 1982, the theory has been used successfully to fight crime in cities such as New York. Kelling and Wilson argued that when crime, anti-social behaviour and civil disorder are allowed to fester, it encourages further crime and disorder. The “broken windows” theory came from their observations that when a broken window in a building is not repaired, there is a tendency for vandals to break a few more of the building’s windows.

The IEBC, and dare I say, the Supreme Court, did not repair the window that broke when Kenyatta and Ruto vied for the presidency in 2013. This allowed other windows to be broken, and unleashed the corruption that we are now witnessing in almost every government ministry and department. The IEBC gave Kenyans the licence to loot. By allowing suspected war criminals to vie for public office (regardless of whether or not they were innocent), it opened the flood gates of criminality. Some might even argue that by allowing the 2013 elections to be stolen, the IEBC set a precedent for thieves in other government and so-called independent institutions. And since no one suffered for alleged past criminal behaviour (even the ICC withdrew the cases against Kenyatta and Ruto due to lack of evidence – evidence that the ICC’s chief prosecutor Fatou Bensouda believes was deliberately tampered with), the looting spree continued unabated.

Upon assuming office, Uhuru Kenyatta immediately went on a massive spending spree. His first official visit was to China where a $5 billion “aid and investment” deal (which in reality favoured mostly China) was signed. On the domestic front, he issued a directive instructing ministries to award 30 per cent of all government tenders to youth, women and the disabled (regardless of whether or not they were qualified for the job or whether they had a track record in delivering supplies or services to the government). This directive was construed by many as a licence to steal; shady youth and women registered fake companies for the sole purpose of looting. One relative of the president even had the audacity to say that she deserved a tender she had been awarded because she is a woman. This is also probably why so many of the faces of corruption you see in the NYS and other scandals are young females – though it has yet to be determined if their godfathers and the main beneficiaries of the loot are male and within government.

And despite their “choices have consequences” rhetoric prior to the 2013 election, Western governments, notably Britain, recanted their earlier positions. Soon after the 2013 election, British Prime Minister David Cameron invited Uhuru Kenyatta to the London Conference on Somalia. The United States took a more cautious approach; President Barack Obama skipped Kenya on his 2013 Africa tour, preferring to go to neighbouring Tanzania instead. However, he too ended up sanitising the UhuRuto presidency by making a splashy official visit to Nairobi in 2015.

Having gained the legitimacy it required, the Jubilee government felt emboldened enough to throw caution to the wind. Soon more windows began breaking. Sports officials charged with looking after our star athletes at the Rio Olympics absconded with funds meant for the athletes – and suffered no consequences. A cabinet secretary in charge of NYS funds that were stolen during her tenure (the so-called “Season One”) even got herself elected as a county governor.

Uhuru Kenyatta claims that this time he is serious about corruption – that ending corruption within government will be the legacy of his last term in office. However, as lawyer Wachira Maina commented in a recent article in the Sunday Nation, the president has allowed graft to seep so deep into his administration that he is now unable to undo this “institutionalised perfidy”.

Raila Odinga’s rapprochement with Uhuru Kenyatta has further legitimised the Jubilee government and has had the net effect of diluting, if not neutering, the opposition, which will make the fight against corruption even harder because by allying themselves to the government, Odinga and his party have in effect abdicated their watchdog role. That’s another window broken.

The president’s anti-corruption stance also appears hollow, and could go the way of other pledges and promises he made when he took office. Many of the changes he promised in his first term have never materialised. For instance, after promising far-reaching reforms in parastatals, Kenyatta ignored the recommendations of a task force he himself had commissioned, which recommended trimming the number of parastatals and bringing in people with integrity to head them. In typical African Big Man fashion, he then went on to appoint his relatives and loyal cronies in key parastatals (a trend that seems to have continued in the Raila-Uhuru ‘Handshake’ era, with some of Raila’s loyal supporters securing key positions in various parastatals – an ominous sign that suggests that even if he would have been declared the winner in the 2013 elections, Raila might not have fixed any windows, unless public pressure forced him to do so).

Moreover, Raila Odinga’s rapprochement with Uhuru Kenyatta has further legitimised the Jubilee government and has had the net effect of diluting, if not neutering, the opposition, which will make the fight against corruption even harder because by allying themselves to the government, Odinga and his party have in effect abdicated their watchdog role. That’s another window broken.

In short, since 2013, Kenya’s political establishment has not just been breaking more windows, it has been occupying the entire building, which it will no doubt cannibalise until there is nothing left to break or loot – unless, of course, a window-fixer comes along and reverses the situation.

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Rasna Warah is a Kenyan writer and journalist. In a previous incarnation, she was an editor at the United Nations Human Settlements Programme (UN-Habitat). She has published two books on Somalia – War Crimes (2014) and Mogadishu Then and Now (2012) – and is the author UNsilenced (2016), and Triple Heritage (1998).

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Land Title and Evictions in the Supreme Court of Kenya

Violent evictions of families from their homes are not exceptional events. They go to the heart of Kenya’s political economy and its long history of valorising the rights of those who hold private title.

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The Supreme Court of Kenya published its judgment in William Musembi v The Moi Educational Centre Co. Ltd. on the 16th July 2021. The case arose after fourteen families — the residents of two informal settlements, City Cotton and Upendo village in Nairobi — petitioned the High court following their evictions in 2013. They had lived on the land since 1968 when it was public land. The first respondent claimed that they had legitimately acquired title to the land by letters of allotment and that the land was therefore private land. According to Amnesty Kenya, the evictions began in the early morning, without warning. Groups of young men burst into homes. Four hundred homes were demolished and personal possessions were destroyed. Crowbars and sledgehammers were used. The police were present. They fired live ammunition and used teargas canisters during the operation.

In the High Court, Judge Mumbi Ngugi held that the petitioners’ rights to dignity, security, and adequate housing had been infringed. There had been a violation of the rights of children and elderly persons under the constitution. She awarded damages. At the Court of Appeal this judgment was partially set aside. While accepting that there had indeed been violations of the rights to dignity and security, the Court of Appeal nonetheless set aside the order of damages arguing that “there was no material before the court on the basis of which the orders for compensation were made” and that, because it was unable to work out how the damages had been quantified, “the only relief that should have commended itself to the trial Court was a declaration that the forced eviction and demolition of their houses without a Court order is a violation of their right to human dignity and security.” Following this, the petitioners appealed to the Supreme Court.

Importance of the Supreme Court judgment

The importance of this case is, as Gautum Bhatia has written, that it raised the question whether “the right to accessible and adequate housing could be applied inter se between private parties”. It can thus be distinguished from the same Supreme Court’s Mitu-Bell Welfare Society v The Kenya Airports Authority, which ruled on evictions from public land.

Amongst several issues for determination, the petitioners in the present case asked the court to reach a determination of the question whether the letter of allotment held by the first respondent, the Moi Educational Centre, was issued lawfully or legally. Because that question had not been conclusively determined at the High Court or at the Court of Appeal, the petitioners sought “a declaration that the acquisition of the suit property was illegal and unlawful.”

The Supreme Court declined to do this. Arguing that in the High Court Judge Mumbi Ngugi had been right in holding that the question of the propriety of the first respondent’s title was a matter for the National Land Commission and that it is the Land and Environment Court that properly has jurisdiction over this question, the Supreme Court held in William Musembi that “the title of the first respondent remains unimpeached”. Instead, it held, the only question it ought to determine was whether, in evicting the petitioners, the respondents violated the petitioners’ rights to human dignity and security, as well as the rights to housing and health.

It is on the basis of the “unimpeached” title of the first respondent that the court goes on to make its landmark finding. For determination by the court was the question whether the first respondent, being a private party, could nonetheless be responsible for the violation of constitutional rights. Recognising that “the mandate to ensure the realization and protection of social and economic rights does not extend to the first respondent” because it is a private entity which is not under any obligation to ensure the progressive or immediate realisation of those rights, the court found that private parties do nonetheless have a “negative obligation to ensure that it does not violate the rights of the petitioners.”

For Bhatia, the judgment’s significance lies partly in its finding that “a negative obligation not to interfere with socio-economic rights (such as the right to housing), …applies to both public and private parties” although he argues persuasively that “the distinction between negative and positive obligations is doing a lot of work” and that the concrete practice of evictions significantly blurs the boundary between public and private actors. He rightly notes that “evictions invariably involve concert of action between State forces and private landowners, with the latter relying upon the former (either directly, or through forbearance) to accomplish physically removing people from land.”

Public and private

If the distinction between negative and positive obligations is somewhat artificial, I also want to suggest that Kenya’s history of land grabbing shows that so too is the distinction between the state and private landowners. More than just state forces doing the bidding of private landowners, wielding batons and using bullets to break into homes in the early morning, in Kenya the state/private distinction is a mirage. In William Musembi, the court does not elaborate on the important history of letters of allotment in Kenya and the process by which they enabled public land to morph into private land. Instead, it affirms the first respondent’s title – and proceeds to make an important ruling on the obligations of private actors. However, the history of land grabbing and the murky past of letters of allotment is a critical one to keep at the front of our minds.

For determination by the court was the question whether the first respondent, being a private party, could nonetheless be responsible for the violation of constitutional rights.

The report of the Commission of Inquiry into the Illegal/ Irregular Allocation of Public Land established in 2003 set out in forensic detail the illegal and irregular land awards made over the years using the mechanism of the letter of allotment. Awards of land were made to the families of Presidents Kenyatta and Moi, numerous former ministers, members of parliament and civil servants, as well as to individuals in the military and the judiciary. The report sets out how out of proximity to the state, private property owners were created. Public land – land set aside for the building of public health clinics or schools for example – mysteriously turned into private land on which malls, private residences, and diplomatic headquarters appeared. No doubt some individuals acquired perfectly legitimate letters of allotment. But from the 1970s onwards, a thriving market in improper letters of allotment developed. They came to be treated as tradable land documents. Widely but mistakenly used as land titles (with the collusion of lawyers), they changed hands quickly in sales of grabbed land. This was done in order to get the benefit of the principle that an innocent third party for value without notice takes good title. The full extent of this practice is unknown: the Ndung’u Commission warned that its report provided only a snapshot of the illegal/irregular land allocations that had taken place over the years.

I have written elsewhere that land grabbing is sedimented in Kenya’s political economy such that we can describe it as a “grabbed state”. The “normal” economy is founded on accumulation by dispossession. It is not possible to understand Kenya’s political economy without an understanding of how the normal and the supposedly abnormal are pervasively linked. Far from land grabbing being an aberrant phenomenon that can be sharply distinguished from normal business practice, the illegal and irregular appropriation of land structures Kenya’s economy.

Widely but mistakenly used as land titles (with the collusion of lawyers), they changed hands quickly in sales of grabbed land.

There is no operative distinction between the public and the private in Kenya. This makes the judgment in the present case even more consequential: given the history of these murky conversions in title, the judgment’s finding that negative constitutional obligations can attach to private actors is likely to cover a great many potential eviction scenarios. Indeed, I would argue that given the history of land described above, the court should have gone further. Grounding its reasoning in Kenya’s history of land grabbing and the dispossession and discrimination that resulted, it could have held that positive socio-economic obligations (such as providing alternative accommodation) should extend to private parties. Or it might have held that given the extent of land grabbing — which is a matter of public record — the state should not agree to enforce a court order for eviction until it is satisfied that alternative accommodation has been provided.

Entrenching private property

Welcoming the Supreme Court’s judgment, Bhatia has noted that it “continues the welcome trend of judicial scepticism towards entrenched property rights.” The court demonstrated this scepticism by extending negative constitutional obligations to private actors. However, to do so, the Supreme Court moved to confirm the respondent’s title. That title it described as “unimpeached”. The court used this as the basis for setting out the first respondent’s obligations as a private owner. The extension of constitutional obligations to private actors is to be welcomed. But it is important to recognise also that by refusing jurisdiction to question the first respondent’s title – and ruling that this is a matter for another forum – the Supreme Court effectively sanctioned the enclosure of what the appellants claimed was unalienated public land and potentially legitimated the grabbing of public land.

The court does not elaborate on the important history of letters of allotment in Kenya and the process by which they enabled public land to morph into private land.

Instead, the Supreme Court might have used Art. 23 which provides for the authority of courts to uphold and enforce the Bill of Rights, to try to fashion a remedy. It could have expressly referred the question of the integrity of the first respondent’s title to the National Land Commission rather than state as unequivocally as it did that it is unimpeached. At the very least, given the importance of a letter of allotment and the question of title in the case, the court should have rehearsed Kenya’s history of land grabbing and corruption as revealed by the Ndung’u report so as to give it judicial notice and provide a starting point for the wider task of challenging ill-gotten titles by those who might seek to do so.

Reinstating Judge Mumbi Ngugi judgment in the High Court and in particular her finding that damages should be paid to those evicted, the Supreme Court ordered the first respondents, the Moi Educational Centre, to pay fourteen families KSh150,000 (just over 1000 euros) each in damages. The government will also pay each family KSh100,000. In return, unless the National Land Commission or the Land and Environment Court are asked to rule on the propriety of the first respondent’s title and find against them, the Moi Educational Centre now hold unimpeached title to very valuable land in Nairobi. That is quite a windfall.

Violent evictions of families from their homes are not episodic and exceptional events. They go to the heart of Kenya’s political economy and its long history of valorising the rights of those who hold private title, however acquired. How far can the courts be relied upon to undo accumulation by dispossession?

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South Africa Has to Heal Its Troubled Past – and the Time Is Now

If there is no material justice and investment in healing the generations of harm enacted onto South Africans, the rot in the country’s wounds will overcome them.

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South Africa Has to Heal Its Troubled Past – and the Time Is Now
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Social unrest”—though others may prefer “riots and looting,” “food riots,” or “insurrection”—have swept South Africa since Monday. It’s unsettled an already unsettled nation. And as with all South Africa’s heightened moments, our historic fault lines have been re-exposed. Racial and ethnic divisions, class antagonisms, xenophobia, questions of violence and its use. These are some of our wounds that have never been treated. Over the last decades we’ve covered them with patriotic bandages, unity slogans and surface-level performances of a shared national consciousness. But the wounds have opened again now, and as the country bleeds, the rot is open for all to see. Flashing moments tell an incomplete but tragic story of the reality unfolding in our country.

Impoverished communities with limited prospects, rejoice as they leave megastores with stolen food and essential resources. Elderly women are seen taking medication that they otherwise could not afford. A father exits a store with nappies (diapers) for his child. Families that have struggled with eating daily meals suddenly have food for a month.

Elsewhere, in the historically Indian community of Phoenix, an elderly man is surrounded by people from a nearby  informal settlement. He is commanded that he needs to hand over his home, or otherwise will face attacks on his family in the dead of night. In the night, drive-by shootings claim lives as stray bullets shatter family homes.

Armed Indian and white “vigilantes” drive around shooting African people they assume are looters. Hunting them down while recording vicious videos, beating them with sjamboks as the person begs for their lives.

These videos are shared and watched repeatedly across social media, racially charged viewers salivate with a carnal sense of pleasure as one racial group watches the other suffer and bleed.

At least 15 people are killed by armed community members of Phoenix. They blockade roads entering the community, racially profiling people, preventing them from access to functioning supermarkets. Bodies are found in the night. #PhoenixMassacre trends on twitter echoing disgust and outrage at the anti-black sentiment within the South African Indian community.

The home of Thapelo Mohapi, the spokesperson of Abahlali BaseMjondolo, the shack dwellers movement in KwaZulu-Natal that safeguards working-class interests, has his home burnt down on Wednesday morning. Mohapi, like most in Abahlali, is outspoken against ANC corruption and political violence in the country, with Abahlali members often the targets for political killings.

Shacks burnt down in response to the looting. Reports of xenophobic attacks by the rioters. Families terrified as gunshots break their windows. Small community stores torched. Blood banks and clinics ransacked. Essential foods become scarce, gas stations close.

The excitement of people getting access to expensive TVs, furniture, alcohol, and commodities they would not be able to access otherwise. Because in South Africa we know that nice things are reserved for a minority—and you either have to be crazy lucky and gifted, or crazy devious and connected, to escape the poverty cycle.

This is the status quo of our neocolonial, violent and divided country. Every snapshot from the riots reveals a new layer of a tragedy we’re all too familiar with but have made no substantial material effort to address to this point. And now the rot in our open wound has become septic.

In the midst of all this mess and complexity, many are now left trying to make sense of where they stand regarding these riots—with the mask of a shared national consciousness being ruthlessly peeled back — some who thought they understood their political standings are having to rethink their position after being thrust into a violent situation where racial and class perceptions pre-determine their position for them.

Orchestrated or Inevitable?

Acentral question on people’s minds is who is responsible for the unfolding events. How much of it is orchestrated as part of the #FreeZuma campaign that sparked this moment with former President Zuma’s arrest, and how much is simply an overflow from the desperate situation a majority of South Africans find themselves in. The reality is, of course, complex. Reports from activists on the ground and observers indicate the riots are likely made up of multiple forces.

Some are believed to be political agents of the pro-Zuma faction of the African National Congress ANC, using chaos to fight their battle against President Cyril Ramaphosa. These agents are known to have organized the initial demonstrations and are believed by some commentators to continue funding transport for rioters and operating in the background to hamstring the local economy. Some now attribute this orchestrated terror with the targeted burning of key distribution centers, factories, network towers, and trucks.

Others involved are not politically linked to a factional ANC agenda or desire to destabilize the country. They are there because the moment has presented families with access to food under dire circumstances and the opportunity for temporary relief from the dredges of poverty. One may say that their situation is being purposefully manipulated by political agendas, but the material reality of their situation is no less real. Individuals from well-known working class organizations that are strongly anti-ANC in all forms have reported taking part in looting as the moment allowed for sorely needed aid to struggling communities.

And of course, with any mass gathering, there are simply those criminal elements who use the moment with malicious intent, stirred by past and present grudges, looking to impose power and fear on those they see as “other.” Yet, these malicious sentiments exist on both the “sides” of the rioters and those responding to them. It is every person’s right and entitlement to defend themselves, their family, and personal property from harm against malicious forces. But much of this defence and protection of what is dear  has morphed into older desires to harm, dehumanize, and kill those considered “other.” How much of our violence in the name of defence is rooted in the historic rot we’ve left untreated from colonialism, apartheid, and a world that hates poor people?

Military intervention

Many are in support of the President Cyril Ramaphosa’s position that the army be deployed to quell the riots, looting, and violence. They argue for an armed, militant, and potentially lethal response.

Part of this rationale is in response to the signs of orchestration and mobilization by pro-Zuma political forces. As some of the actions show signs of being organized and targeted strikes, they will not subside organically and so the use of intelligence and organized force would be necessary to intervene. This tactical move acts in support of the President Cyril Ramaphosa and preserving the current status quo of South Africa.

The other reason is that the racial conflict between communities has reached such a heightened state that many fear an echo of the Durban Riots of 1949. With armed vigilantes enacting destruction, racial profiling, and vicious killing onto those they brand “looters”—  and the responsive revenge cycles this opens up—there can be no road that does not lead to further death. And right now there is no Steve Bantu Biko and his dear friend Strini Moodley to lead us back on the path towards a more human face.

However, even in the face of this leadership vacuum, military intervention is short sighted, ahistoric, and temporary at best. The wounds are all open now, the military cannot heal, only repress.

Ultimately the scale and intensity of these riots have very little to do with political infighting within the ANC and the tensions between communities could not be set alight if there was not already kindling of unresolved tensions. The material conditions of South Africa indicate that it’s been ripe for mass political uprising for years now. With grants cut under lockdown, youth unemployment over 70%, service delivery a mess or none existent, trust in government, media and political parties at record lows—there seems to be meagre hope for South Africans on the wrong side of the poverty line—and very little to lose.

Whether it’s an orchestrated plot by devious political agendas, a student throwing poop on a colonial statue or an increase in bread prices as was seen in South America—a spark is all that’s needed to set alight a desperate people.

The best case scenario with military intervention this time is further repression of people’s material frustrations. If people die, the situation becomes further inflamed. When the next spark goes off the riots will be more organized, with living memory of the injustices of this moment. And if not organized by our dysfunctional Left, it will be led by reactionary forces. Most dangerous of all is, as with other examples from history, as military forces play a greater role in a country’s internal policing, they become more used to enacting power over its populace, and ambitious autocrats rise up their ranks in military command.

With military intervention, we admit that the violence and death that will be enacted on the working class populace is worth a return to South Africa’s abnormal normal. The violence of this moment simply transferred back to those who held it silently a week ago.

Repression and military enforcement of a violent status quo is not the answer. Material conditions need to change, people need to be fed, grants need to be returned and our septic wounds that have laid open for centuries need urgent attention.

If there is no material justice and investment in healing the generations of harm enacted onto us—and by us—the rot in our wounds will overcome us. And we will become the rot.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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They Are Watching You: Israeli-Made Spyware Used to Monitor Journalists and Activists Worldwide

The use of spyware to surveil, harass, and intimidate journalists and activists — and those close to them has become a key activity for many governments worldwide.

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They Are Watching You: Israeli-Made Spyware Used to Monitor Journalists and Activists Worldwide
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In Hungary, Szabolcs Panyi exposed spy intrigue and murky arms deals. In India, Paranjoy Guha Thakurta probed the ties between business and political interests. In Azerbaijan, Sevinj Vaqifqizi caught vote-rigging on tape.

Separated by thousands of miles, these journalists have one thing in common: their governments considered them a threat.

All three were among dozens of journalists and activists around the world whose smartphones were infected by Pegasus: spyware made by Israeli firm NSO Group that is able to secretly steal personal data, read conversations, and switch on microphones and cameras at will.

The attacks were revealed by The Pegasus Project, an international collaboration of more than 80 journalists from 17 media organizations, including OCCRP, and coordinated by Forbidden Stories.

What Does ‘Selected for Targeting’ Mean?

The phones of Panyi, Thakurta, and Vaqifqizi were analyzed by Amnesty International’s Security Lab and found to be infected after their numbers appeared on a list of over 50,000 numbers that were allegedly selected for targeting by governments using NSO software. Reporters were able to identify the owners of hundreds of those numbers, and Amnesty conducted forensic analysis on as many of their phones as possible, confirming infection in dozens of cases. The reporting was backed up with interviews, documents, and other materials.

The strongest evidence that the list really does represent Pegasus targets came through forensic analysis.

Amnesty International’s Security Lab examined data from 67 phones whose numbers were in the list. Thirty-seven phones showed traces of Pegasus activity: 23 phones were successfully infected, and 14 showed signs of attempted targeting. For the remaining 30 phones, the tests were inconclusive, in several cases because the phones had been replaced.

Fifteen of the phones in the data were Android devices. Unlike iPhones, Androids do not log the kinds of information required for Amnesty’s detective work. However, three Android phones showed signs of targeting, such as Pegasus-linked SMS messages.

In a subset of 27 analyzed phones, Amnesty International researchers found 84 separate traces of Pegasus activity that closely corresponded to the numbers’ appearance on the leaked list. In 59 of these cases, the Pegasus traces appeared within 20 minutes of selection. In 15 cases, the trace appeared within one minute of selection.

The strongest evidence that the list really does represent Pegasus targets came through forensic analysis.

Amnesty International’s Security Lab examined data from 67 phones whose numbers were in the list. Thirty-seven phones showed traces of Pegasus activity: 23 phones were successfully infected, and 14 showed signs of attempted targeting. For the remaining 30 phones, the tests were inconclusive, in several cases because the phones had been replaced.

Fifteen of the phones in the data were Android devices. Unlike iPhones, Androids do not log the kinds of information required for Amnesty’s detective work. However, three Android phones showed signs of targeting, such as Pegasus-linked SMS messages.

In a subset of 27 analyzed phones, Amnesty International researchers found 84 separate traces of Pegasus activity that closely corresponded to the numbers’ appearance on the leaked list. In 59 of these cases, the Pegasus traces appeared within 20 minutes of selection. In 15 cases, the trace appeared within one minute of selection.

In a series of responses, NSO Group denied that its spyware was systematically misused and challenged the validity of data obtained by reporters. It argued that Pegasus is sold to governments to go after criminals and terrorists, and has saved many lives. The company, which enjoys close ties to Israel’s security services, says it implements stringent controls to prevent misuse. NSO Group also specifically denies that it created or could create this type of list.

But instead of targeting only criminals, governments in more than 10 countries appear to have also selected political opponents, academics, reporters, human rights defenders, doctors, and religious leaders. NSO clients may have also used the company’s software to conduct espionage by targeting foreign officials, diplomats, and even heads of state.

Based on the geographical clustering of the numbers on the leaked list, reporters identified potential NSO Group clients from more than 10 countries, including: Azerbaijan, Bahrain, Hungary, India, Kazakhstan, Mexico, Morocco, Rwanda, Saudi Arabia, Togo, and the United Arab Emirates.

Journalists and Activists in the Crosshairs

In the coming days, OCCRP and other Pegasus Project partners will release stories highlighting the threat of surveillance through misuse of NSO Group software around the world. But to start with, we will focus on some of the most egregious cases: the use of spyware to surveil, harass, and intimidate journalists and activists — and those close to them.

Among those on the list were multiple close relations of Jamal Khashoggi, the Washington Post columnist who was murdered and dismembered by Saudi operatives in the country’s Istanbul consulate. Forensic analyses show that Khashoggi’s Turkish fiancée, Hatice Cengiz, and other loved ones and colleagues were successfully compromised with NSO Group software both before and after Khashoggi’s 2018 killing. (NSO Group said that it has investigated this claim and has denied its software was used in connection with the Khashoggi case.)

Sandra Nogales, the assistant of star Mexican journalist Carmen Aristegui, was also targeted with Pegasus through a malicious text message, according to a forensic analysis of her phone.

Aristegui had already known that she was a Pegasus target. Her case was featured in a 2017 report by Citizen Lab, an interdisciplinary laboratory at the University of Toronto. Still, “it was a huge shock to see others close to me on the list,” Aristegui told The Pegasus Project.

“My assistant, Sandra Nogales, who knew everything about me — who had access to my schedule, all of my contacts, my day-to-day, my hour-to-hour — was also entered into the system.”

Several reporters in OCCRP’s network were among the at least 188 journalists on the list of potential targets. They include Khadija Ismayilova, an OCCRP investigative journalist whose uncompromising reporting has made her a target of the kleptocratic regime of the country’s president, Ilham Aliyev. Independent forensic analysis of Ismayilova’s Apple iPhone shows that Pegasus was used consistently from 2019 to 2021 to penetrate her device, primarily by using an exploit in the iMessage app.

Ismayilova is no stranger to government surveillance. Roughly a decade ago, her reporting led her to be threatened with compromising videos that she learned to her horror had been shot with hidden cameras installed in her home. She refused to back down, and as a result had the footage broadcast across the internet.

But even after this, Ismayilova was shocked by the all-consuming nature of her surveillance by Pegasus.

“It’s horrifying, because you think that this tool is encrypted, you can use it… but then you realize that no, the moment you are on the internet they [can] watch you,” Ismayilova said. “I’m angry with the governments who produce all of these tools and sell it to the bad guys like [the] Aliyev regime.”

Panyi and his colleague András Szabó, both OCCRP partner journalists in Hungary, also had their phones successfully hijacked by Pegasus, potentially granting their attackers access to sensitive data like encrypted chats and story drafts. As investigative journalists at one of the country’s few remaining independent outlets, Direkt36, they had spent years investigating corruption and intrigue as their country became increasingly authoritarian under the rule of Prime Minister Viktor Orban.

Now they found out that they were the story.

For Panyi, the descendant of Jewish Holocaust survivors, something stung in particular: that the software had been developed in Israel, and exported to a country whose leadership regularly flirts with antisemitism.

“According to my family memory, after surviving Auschwitz, my grandmother’s brother left to Israel, where he became a soldier and soon died during the Arab-Israeli war of 1948,” Panyi wrote in a first-person account of learning he had been hacked. “I know it is silly and makes no difference at all, but probably I would feel slightly different if it turned out that my surveillance was assisted by any other state, like Russia or China.”

The alleged surveillance list includes more than 15,000 potential targets in Mexico during the previous government of President Enrique Peña Nieto. Many were journalists, like Alejandro Sicairos, a reporter from Sinaloa state who co-founded the journalism site RíoDoce. Data seen by The Pegasus Project show Sicairos’ phone was selected as a target for NSO Group’s software in 2017 shortly after his colleague, prominent journalist Javier Valdéz, was shot dead near RíoDoce’s office.

Others on the list were regular people thrust into activism by Mexico’s chaos and violence. Cristina Bautista is a poor farmer whose son, Benjamin Ascencio Bautista, was one of 43 students abducted in Iguala, in the Mexican state of Guerrero, in 2014 and remains missing until this day. The case shook Mexican society to its core and prompted Bautista and other parents to take to the streets in protest, and to assist independent experts in their own investigations.

The vocal stance taken by Bautista and other parents put them directly in the sights of Mexican authorities and Peña Nieto, who denounced the protests as destabilizing the country.

“Oh yeah, they were watching us! Whenever we went, a patrol followed us,” she said.

“They were chasing us.”

A “Natural Tool” for Autocrats

While The Pegasus Project exposes clear cases of misuse of NSO Group’s software, the company is just one player in a global, multi-billion-dollar spyware industry.

Estimated by NSO managers to be worth approximately $12 billion, the mobile spyware market has democratized access to cutting-edge technology for intelligence agencies and police forces that, in years past, could only dream of having it.

“You’re giving lots more regimes an intelligence service,” said John Scott-Railton, a senior researcher at Citizen Lab. “Like a foreign intelligence service in a box.”

Like many private spyware companies, NSO Group’s stock in trade is so-called “zero-day exploits” — previously undiscovered flaws in commercial software that can allow third parties to gain access to devices, such as mobile phones. Pegasus and other top tools enjoy a particular strength: They are often able to infect devices silently, without the user even having to click a link.

Such tools have given governments the edge amid the widespread adoption of encrypted messaging applications, such as WhatsApp and Signal, which otherwise supposedly allow for users to communicate beyond the reach of state surveillance. Once devices are successfully compromised, however, the contents of such apps become readily available, along with other sensitive data like messages, photographs, and calls. Meanwhile, the ubiquity of mobile phone cameras and microphones means they can be easily accessed by spyware clients as remote recording devices.

While The Pegasus Project exposes clear cases of misuse of NSO Group’s software, the company is just one player in a global, multi-billion-dollar spyware industry.

“In order to bypass [encrypted messaging] you just need to get to the device at one or the other end of that communication,” said Claudio Guarnieri, head of Amnesty International’s Security Lab. Pegasus does just that. “Pegasus can do more [with the device] than the owner can. If Signal, for example, encrypts the message… [an attacker] can just record using the microphone, or take screenshots of the phone so you can read [the conversation]. There is virtually nothing from an encryption standpoint to protect against this.”

In fact, there isn’t much anyone can do to protect themselves from a Pegasus attack. Guarnieri is skeptical of applications that claim they are completely secure, and instead recommends mitigating the risks of spyware by practicing good cybersecurity hygiene. “Make sure to compartmentalize things and divide your information in such a way that even if an attack is successful, the damage can be minimized.”

At its heart, The Pegasus Project reveals a disturbing truth: In a world where smartphones are ubiquitous, governments have a simple, commercial solution that allows them to spy on virtually whoever they want, wherever they want.

“I think it’s very clear: Autocrats fear the truth and autocrats fear criticism,” said Scott-Railton of Citizen Lab.

“They see journalists as a threat, and Pegasus is a natural tool for them to target their threats.”

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