“I never thought I would witness this in my lifetime”, remarked an Ethiopian friend. He was referring to the warm embrace between Prime Minister Abiy Ahmed of Ethiopia and Eritrea’s President Isaias Afwerki in Addis Ababa a few days ago. In the past few weeks, I have heard these words from many colleagues who, like me, shuttled for many years between Asmara and Addis Ababa in our elusive efforts to normalize relations between the two “cousins” The sight of an Ethiopian Airlines flight landing in Asmara reminded us of how during the shuttle diplomacy days, we could not fly directly between the two capitals, even with chartered flights, lest we violated the airspace of sworn enemies.
Since his appointment in April, Prime Minister Abiy Ahmed has been shaking things up in a way that no leader in East Africa has done in decades. It has been exciting to witness the courage of this youthful leader who has formally ended the 1998-2000 border war with Eritrea which killed at least 80,000; rescinded an unpopular state of emergency; announced plans to partially open up the economy; released thousands of political prisoners and taken nascent steps to deal with human rights violations in prisons; and de-listed the Oromo Liberation Front, the Ogaden National Liberation Front, and the ‘Ginbot 7’ from the infamous “terrorist” groups list, among others.
Early this week, a group of us who pride ourselves on our self-proclaimed Pan-Africanism, were recounting the new optimism that Prime Minister Aby has brought to our region especially when one considers the gloomy picture elsewhere. In Kenya, the sham fight against corruption has dominated headlines, only competing with Uganda’s absurd implementation of a social media tax. South Sudan just marked its seventh Independence Day with little reason to celebrate as, among other things, the United Nations Security Council imposed sanctions on the country. In Tanzania, President John Pombe Magufuli has joined his neighbours Rwanda and Burundi, in choosing to rule with an iron fist, curtailing basic freedoms and declaring that the ruling party will reign forever.
While it is too early to uncork the champagne, the men and women of Ethiopia and Eritrea deserve credit for the changes taking place. The grenade attack at the first major rally organized by Prime Minister Abiy in Addis Ababa on the 23rd of June confirms that spoilers will attempt to destabilize the situation. There are still many unanswered questions on the political machinations within the EPRDF, especially with regard to the TPLF. Prime Minister Abiy is moving with lightning speed and we hope that there is a reasonable buy-in from the EPRDF regarding the decisions he is making. On the regional front, while there is much to celebrate at the warming of relations between Ethiopia and Eritrea, access of the Assab port by Ethiopia potentially bears an economic backlash to some of the neighbours.
Early this week, a group of us who pride ourselves on our self-proclaimed Pan-Africanism, were recounting the new optimism that Prime Minister Aby has brought to our region especially when one considers the gloomy picture elsewhere. In Kenya, the sham fight against corruption has dominated headlines, only competing with Uganda’s absurd implementation of a social media tax. South Sudan just marked its seventh Independence Day with little reason to celebrate… In Tanzania, President John Pombe Magufuli has joined his neighbours Rwanda and Burundi, in choosing to rule with an iron fist, curtailing basic freedoms and declaring that the ruling party will reign forever.
Let me be clear. The changes underway could not have been possible without the sacrifices of many Ethiopians and Eritreans who fought for many years for inclusivity, equality, democracy and justice. In Ethiopia, despite threats to their lives, they fought Mengistu Haile Mariam’s Derg regime as well as the Ethiopian People’s Revolutionary Democratic Front (EPRDF)’s system of ethnic-based federalism in place since 1995. According to Human Rights Watch, more than 1,000 people have been killed and tens of thousands arrested for participating in political protests that began in November 2015.
The wind of change in Ethiopia and Eritrea ought to leave many of the current leaders in East Africa anxious, for many reasons.
First, it is a reminder that efforts to clamp down on democracy, stifle fundamental freedoms and rights, promote divisive policies and participate in electoral thuggery inevitably have an end. Elections held since 1994 in Ethiopia have been referred to by observers as “multi-party theatre staged by a single party state”. Despite hundreds of people killed and tens of thousands detained, the people of Ethiopia did not stop organising anti-government protests. Mostly led by the youth, their leaders were detained or killed but they continued to protest against what they perceived as domination of the political and economic levers of power by the minority Tigray community who make up 6.1 percent of the population.
They were not deterred by the fact that they are a country of more than 80 ethnic groups, with the constitution formally providing for ethnic-based political organisations. They organised across the different ethnicities with this unity sending a strong message to the EPRDF that the security crackdown against the Oromia (making up 34.4 percent of the population) was not sustainable as the Amhara (making up 27 percent of the population) and other ethnic groups joined the protests. They mobilised around their grievances, defying ethnic labels and further jolting the EPRDF into making a weak attempt at political reform as a way to placate the protesters. However, the minimalistic changes and violent crackdown did not assuage those pushing for change including within the ruling EPRDF itself, leading to Prime Minister Hailemariam Desalegn’s resignation in February.
Elections held since 1994 in Ethiopia have been referred to by observers as “multi-party theatre staged by a single party state”. Despite hundreds of people killed and tens of thousands detained, the people of Ethiopia did not stop organizing anti-government protests. Mostly led by the youth, their leaders were detained or killed but they continued to protest against what they perceived as domination of the political and economic levers of power by the minority Tigray community who make up 6.1 percent of the population.
Those in power in East Africa should draw an important lesson from this – when a country is ready for change, there is nothing that any one leader can do to stop it. The aspirations of the people can be suppressed for a period, but not forever. It is also a confirmation that fomenting political divisions along ethnic lines is ultimately counterproductive. Attempts by one ethnic group, the Tigray, to dominate the political and economic levers of power may have appeared successful in the past 25 years but this is no longer tenable. Those leaders in East Africa who are relying on ethnic loyalties or domination to sustain themselves in power should learn from the Ethiopians that populations can organize beyond those ethnic groups when the wind of change blows. And to those struggling to organize for change in the rest of the region, it is important to build a broader coalition beyond ethnic or socio-political groups. Organizing in this generation requires an approach of direct engagement with communities, distributive leadership beyond a core group of leaders and dialogue that allows people to build an ecosystem for change.
When a country is ready for change, there is nothing that any one leader can do to stop it. The aspirations of the people can be suppressed for a period, but not forever. Fomenting political divisions along ethnic lines is ultimately counterproductive. Attempts by one ethnic group to dominate the political and economic levers of power may have appeared successful in the past 25 years but this is no longer tenable. Those leaders in East Africa who are relying on ethnic loyalties or domination to sustain themselves in power should learn from the Ethiopians that populations can organize beyond those ethnic groups when the wind of change blows.
Second, high economic growth does not a cushion against a people’s desire for change. The trajectory of Ethiopia’s economy debunks arguments posited by some political economists that rising per capita income leads to poverty reduction, helping to create stable and peaceful societies. Ethiopia’s economic growth has been one of the highest in the East African region with projections of 10 percent growth in 2017. Yet, as David Ndii argues in his article, the country faces an economic crisis, which partly explains the recent political changes in the country. The economic policies adopted by the regime that have focused on infrastructure-led growth have left the country in a dire political and economic situation.
And yet several countries in East Africa are increasing their economic vulnerabilities by increasing their debt to GDP ratio, investing in moribund infrastructure projects and increasing taxes without incentives for entrepreneurship. There is no doubt that the political changes in Ethiopia have been triggered by the economic conditions in the country. Prime Minister Abiy’s long-term political survival depends on how he manages the economy in the next few months. As an Ethiopian friend of mine recently told me, it was short-sighted of the EPRDF not to have known that increasing opportunities for education, rising levels of corruption without expanding opportunities for employment would accelerate the pressure for change especially in a context where the youth perceived the ruling party as the main beneficiary of economic opportunities. This is a scenario that could repeat itself in any East African country today.
Third, relying on being propped in power by the international community is unsustainable. Legitimacy is not granted by outsiders, it is earned by delivering on the people’s expectations and aspirations. Despite the horrendous human rights violations by the EPRDF over the past twenty-five years, the international community maintained an eerie silence. The geopolitics of the region meant that the United States and other powers propped up the regime rather than calling it to account for its excesses. It was perceived as an ally in the fight against terrorism especially in neighbouring Somalia; playing a balancing act in Sudan and South Sudan; and managing the sensitive Nile water politics with Egypt as well as the broader Gulf politics. The African Union, with its headquarters in Addis Ababa, issued no condemnation of even the gagging of internet that imperilled its own day-to-day operations. All these actions by the international community were not enough to keep Prime Minister Hailemariam in power.
The same could be said of those that hope that external actors will usher change in their respective countries in alone. The demanding work of mobilizing, organizing and building internal coalitions can only be successful if they are homegrown. For many years, Eritrea was reported to have supported the Oromo Liberation Front and other groups from the Somali region of Ethiopia with the goal of changing the regime. Ethiopia is reported to have been supporting opposition groups against Asmara. Many of these groups also had support from other countries involved in proxy wars for several reasons including the Nile Basin politics. Somalia became a proxy theatre for the Eritrea-Ethiopia rivalry. The rapprochement between Eritrea and Ethiopia should potentially improve the situation in the region. The key lesson here is that external interventions either in support of a regime or against it, have their limits.
Those relying on the global North to speak out against human rights violations in Africa need to recognize that these countries have entrenched strategic political and economic interests that override all other considerations. Moreover, the global North is being reconfigured every day by the actions of the current occupant of the White House in Washington DC whose words and actions are not any different from those of Africa’s strongmen. Norm setting institutions such as the African Union and the United Nations have vacated the moral pulpit leaving behind a leadership vacuum.
Those relying on the global North to speak out against human rights violations in Africa need to recognize that these countries have entrenched strategic political and economic interests that override all other considerations. Moreover, the global North is being reconfigured every day by the actions of the current occupant of the White House in Washington DC whose words and actions are not any different from those of Africa’s strongmen.
Yet, despite all the gloom around, I am still cautiously optimistic about the nascent changes in Ethiopia and Eritrea. The ethnic-based federalist system in Ethiopia is being challenged reminding us all that those that seek leadership based on ethnic lines have a short lease in their governance. The future lies in disrupting the current systems of political and economic governance and seeking to build direct and distributive forms of leadership. We will keep holding our breath for the rest of East Africa, including Kenya.
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Elections? What elections? Abiy is Counting on a Military Victory
Abiy Ahmed’s legitimacy hangs on conjuring up an improbable military victory in the total war he has declared on the people of Tigray.
Selected by the ruling party and later appointed by the Ethiopian parliament in 2018, Prime Minister Abiy Ahmed was expected to deliver the long hoped for post-EPRDF (Ethiopian People’s Revolutionary Democratic Front) era. For some of his domestic and international backers, the post-EPRDF era meant the ushering in of political democratization, further economic liberalization, and “post-ethnic” Ethiopian politics. He has failed to deliver on all three counts.
More than ever, Ethiopian politics is bitterly polarized along ethnic lines. Ethnic divisions have split the Ethiopian National Defence Forces (ENDF). Now, Ethiopia has two armies: the Tigrayan Defence Force (TDF) and the Ethiopian National Defence Force (ENDF). Nor is economic liberalization faring any better. In 2020, foreign direct investment (FDI) dropped significantly to US$2.4 billion from US$ 7.1 billion in 2016. Creditors are not more optimistic. The birr has become the worst performer among 20 African currencies following a slump of 11 per cent against the dollar.
After a decade of double-digit GDP growth, Ethiopia is now growing at only two per cent, an economic slowdown Kevin Daly describes as “the shine [having] come off the star in a big way”. Ethiopia’s democratization, which is the focus of this piece, has also stalled, as illustrated by the uncompetitive and non-participatory elections of 21 June 2021.
Ethiopia’s new leadership was widely expected to spearhead a democratic dispensation in which elections would be freely and fairly contested by all the major political forces in the country. The June 21 election was expected to be both participatory and competitive. It was neither and its outcome was predictable, if not preordained. As everyone expected, the ruling party won overwhelmingly, with some leftover seats going to other parties.
Against the hopes of many, Abiy Ahmed found ways to effectively exclude the real contenders with any chance of defeating the incumbent.
Liquidating the former ruling party and extending the term of office
The first step was to liquidate the former ruling party, the EPRDF, and place the new Prosperity Party in power. The Tigray People’s Liberation Front, one of the core parties forming the EPRDF and currently ruling Tigray, vehemently opposed the formation of the new party, and decided not to join it.
The second step was to postpone the much-anticipated 2020 elections on the pretext of the Covid-19 pandemic. The legality and legitimacy of this decision was fiercely contested, especially by opposition leaders from Oromia and Tigray. Inevitably, those opposition leaders from Oromia with a large following and constituency were jailed or placed under house arrest. By opting to postpone the election and arresting opposition leaders, Abiy extended his own tenure by using a controversial constitutional interpretation.
The third step was waging war on Tigray. The postponement of the election qualifies as one of the triggers of this war. The ruling party in Tigray rejected the postponement, asserting that regular elections are a necessary tool for the exercise of a people’s right to self-determination. Accordingly, Tigray conducted its regional election on 4 September 2020. The election was considered illegal by the incumbent and the federal government cut ties with the Tigray government and suspended the transfer of the regional budget, a move viewed by Tigray as a declaration of war. On 4 November 2020, Tigray was invaded by the combined Ethiopian, Eritrean and Amhara forces.
Subverting the will of the people
These early steps to subvert the will of the people call into question the incumbent’s commitment to a fair and democratic process. Providing a detailed contextual analysis on the state of Ethiopia before the polls, US Senator Bob Menendez and Representative Gregory Meeks said:
Against this grim backdrop, few believe Ethiopia’s upcoming national elections stand a real chance of being free or fair. . . . Prime Minister Abiy and his ruling Prosperity Party have made it clear they intend to continue working from the same authoritarian playbook as their predecessors, squandering Ethiopians’ hopes for the country’s first-ever genuinely democratic elections.
The EU withdrew its earlier decision to send election observers. Though it fell short of denouncing the election, the US government in its statement provided precise reasons why the election would not meet the requisite democratic standards:
The United States is gravely concerned about the environment under which these upcoming elections are to be held. The detention of opposition politicians, harassment of independent media, partisan activities by local and regional governments, and the many inter-ethnic and inter-communal conflicts across Ethiopia are obstacles to a free and fair electoral process and whether Ethiopians would perceive them as credible. In addition, the exclusion of large segments of the electorate from this contest due to security issues and internal displacement is particularly troubling.
The US statement added, “these elections [are conducted] at a time when so many Ethiopians are suffering and dying from violence and acute food insecurity caused by conflict”.
Elections without credibility
The credibility of elections is assessed based on international standards such as those set by the United Nations. Unfortunately, Ethiopia’s recent election does not meet the minimum international threshold of being free, fair, participatory and competitive.
First, this election was conducted during a period of violent conflict that effectively denied the citizens their fundamental democratic rights and the opportunity to participate on an equal basis. Over 100 constituencies in Tigray, Somali, Harari, Afar, and Benishangul-Gumuz, representing well over 18 per cent of parliamentary seats, did not vote. For close to 4 million internally displaced persons (IDPs), this election was a luxury. In Tigray, constituencies in Oromia, Amhara (Oromo special zone and parts of north Shewa), and the border areas of the Amhara, Oromia, Somali and Afar regions face violent conflict. With 7 per cent and 1.7 per cent of the total constituency in Tigray and Benishangul-Gumuz respectively, wars for survival still rage. In parts of Oromia, the region with the largest population and 33 per cent of the total constituency, armed conflict continues. Furthermore, the election was conducted under conditions of pervasive discrimination and profiling based on ethnicity that targeted Tigrayans, Oromos and Gumuz.
The postponement of the election qualifies as one of the triggers of this war.
Second, at the subnational levels and in some urban areas such as Amhara regional state, a few “opposition” parties did manage to win seats. However, in terms of presenting alternative policy options for Ethiopia, these parties failed, as their electoral manifestos were just versions of that of the ruling party. In addition, such results at the subnational level are anomalies, not trends. The trend is the incumbent attempting to re-establish a durable authoritarian regime, this time with a centralizing vision at its core that is diametrically opposed to the federalist vision set out in the current constitution.
Third, this election – like the previous one – was marred by claims of killings, assault, detention, intimidation and harassment of opposition candidates and supporters. In addition, the cancellation of political parties’ registration, litigation, anomalies in voter and candidate registrations, and ballot printing problems have damaged the credibility of the electoral bodies. Moreover, the deferral in holding referenda on requests for state formation in the Southern Nations, Nationalities and Peoples’ Region has stoked discontent. And nor did the media environment allow competitive elections; local media was rigorously censured, and journalists were killed, arrested, and intimidated. International media outlets were not spared either, with the permits of many foreign correspondents cancelled.
It thus came as no surprise when five parties criticised the ruling Prosperity Party for allegedly influencing the electoral process to favour its candidates. The National Movement of Amhara, Ethiopian Social Democratic Party, Afar People’s Party, Balderas for Genuine Democracy and Ethiopian Citizens for Social Justice complained of heavy security and cited a failure to meet minimum standards.
Legitimacy hanging on military victory
Abiy has clipped the wings of democracy. A day after the country went to the polls, and as Addis Ababa enjoyed the fanfare surrounding its “first democratic election”, the Ethiopian army continued its indiscriminate aerial bombardment of Tigray.
Abiy has plunged the country into a civil war that is now spreading from Tigray to other parts of Ethiopia. The war has been manipulated with a view to bolstering Abiy’s popularity and serves as the glue holding his internally fractured support base together. Military victory in Tigray has replaced an electoral win as the litmus test for the legitimacy of his rule.
Yet following the defeat and withdrawal of the Ethiopian army from Tigray, Abiy’s popular base is fast eroding. Now his legitimacy hangs on conjuring up an improbable military victory in the total war he has declared on the people of Tigray. The recent military advances made by the Tigray Defence Forces show that it is not just Abiy who is losing the unwinnable war in Tigray. Ethiopia is also losing its army.
The Second Sex: Women’s Liberation and Media in Post-Independence Tanzania
Fatma Alloo (of the Tanzania Media Women’s Association) on how women used the media and cultural spaces to organize and challenge gender norms.
Fatma Alloo’s activism grew in the decades following Tanzania’s independence in 1961, when she worked as a journalist under Julius Nyerere, or Mwalimu, the first president of Tanzania; co-founded the feminist advocacy group Tanzania Media Women’s Association (TAMWA) in 1987; and co-founded the vibrant Zanzibar International Film Festival (ZIFF) in 1997. Here, she unpacks how women used the media and cultural spaces for social mobilization and shifting patriarchal norms, particularly in periods where they were marginalized from state power. In the “Reclaiming Africa’s Early Post-Independence History” series, and the Post-Colonialisms Today project more broadly, we’re learning from African activists and policy makers from the early post-independence era, to understand how their experience of a unique period of economic, societal, cultural, and regional transformation can aid us in the present day, when questions of decolonization and liberation are more pressing than ever.
Heba M. Khalil: You have lived through so many changes in so many different political systems, from the Sultanate, colonialism, the Nyerere years; you’ve seen the dawning of liberalism and neoliberalism.
Fatma Alloo: As you say, I’ve been through a lot of “-isms” in Tanzania. The other day I was reflecting that although I grew up under colonialism in Zanzibar, as a child I was not aware that it was colonialism, I was not aware there was a Sultanate. We used to run and wave to the Sultan because he was the only one with a shiny, red car and we used to love that car, a red Rolls Royce. But as I reflect now, I realized that these were the years Mwalimu was struggling for independence in Tanganyika.
Then, of course, as you grow, life takes you on a journey, and I ended up at the University of Dar es Salaam in the 1970s, where the Dar es Salaam debates were taking place. Tanzania hosted liberation movements, and that is where socialism, communism, Marxism, Leninism, Trotskyism, Maoism, and feminism were being debated, and that’s where my consciousness grew, because I was in the midst of it. As the progressive, international community at the university was ideologically fired up by Mwalimu’s socialism, I began to understand that even my feminism had come from the West. Nobody had taught me that women lived feminism on the continent. This realization came when, as a student, I participated in an adult literacy program launched by Mwalimu. As students, we were sent to a rural and urban factory to teach literacy, but I emerged from those communities having been taught instead!
Heba M. Khalil: What do you think the role of women was in Tanzania in particular, but also on the continent, in defining the parameters, the choices and the imagination of post-independence Africa?
Fatma Alloo: Women had always been part and parcel of the independence movement in Africa. In Southern Africa and Tanzania they stood side-by-side with the men to fight, so they were very much part of it. The unique thing about Tanzania was that Mwalimu established a party called the Tanganyika African National Union (TANU), which had five wings with women being one of them. The others were youth, peasants, and workers, so as to mobilize society as a whole.
Post-independence is another story, one that very often has been narrated by men in power. There was a struggle for the visibility of women. I remember the debates in South Africa, where the African National Congress was arguing about the women’s wing wanting to discuss power relations. And there was resistance to this, the party leaders would argue first let’s just get independence, let’s not waste our time, women’s liberation will come later. It was a very bitter struggle, and of course after independence, women lost out quite a bit.
Heba M. Khalil: Why were post-independence power structures and ideologies defeated and replaced at some point by new ideologies of liberalism and, eventually, neoliberalism?
Fatma Alloo: The western media portrays Mwalimu as a failure. He has not failed, from my point of view. The whole issue of national unity is important. Tanzania has been a relatively peaceful country. Why? It did not happen by accident, it had to do with Mwalimu’s policies—he realized he had to deal with profound divisions, and he understood the role of education. Administratively, the nation had been inherited after decades of divide and rule policies. It was divided on racial and religious bases, as Tanzania is half Christian and half Muslim. We could have had a civil war, like in Lebanon, or a tribal-oriented conflict, like in Kenya or Libya. Mwalimu really understood this from the very beginning. I remember when we started TAMWA, when the women came together, we had no idea who belonged to what tribe. He was that successful.
We had free medicine, free education, but of course, all that went away with neoliberalism. My generation remembers this, and I think we have to make sure that the younger generation knows the history of the country, knows the literature that emerged from the continent. In my opinion, of all the contributions of Mwalimu, the most important was the peace and unity—amani, in Kiswahili.
Because Mwalimu was so successful, the West, especially Scandinavian countries, made him their darling. As you know, Scandinavian countries had not colonized Africa much, so people also trusted them and accepted their development aid. Very sadly, it did eat away at the success of Mwalimu with his people, and eventually made us dependent on that development aid, which continues to date. Without development aid we don’t seem to be able to move on anything. We have stopped relying on ourselves.
Heba M. Khalil: What was your experience of organizing during the rapid growth of the mass media sector in Tanzania?
Fatma Alloo: I was very active, first as a journalist in the 1980s and early 1990s, and it was extremely different. We were very influenced by Mwalimu’s ideology and ready to play our role to change the world. Mwalimu had refused to introduce television because, he argued at that time, we did not have our own images to portray, to empower our younger generations. He said if we introduce television the images shown will be of the West and the imperialist ideology will continue. In Zanzibar, however, we already had the oldest television on the continent, and it was in color. When Abeid Karume attained power in Zanzibar in 1964, after a bloody overthrow of the sultanate in power, the first thing he did was to introduce not only television, but community media, so every village in Zanzibar already had these images. But television didn’t come to Tanganyika until 1992 (Mwalimu stepped down in 1986), when it was introduced by a local businessman who established his own station. Until then the state had controlled the media, so history began to change as businesses were allowed to establish media.
I remember I was then in TAMWA and we had to encourage a lot of production of plays and other visuals, for which there was no market before. The radio had been powerful; when the peasants went to the countryside, they would take the radio and listen as they ploughed the land. So, the radio was the main tool that was used to mobilize society during Mwalimu’s era.
The press gave women journalists little chance to cover issues of importance to women. We were given health or children to cover as our issues. Before, Tanzania had one English paper, one Kiswahili, Uhuru, and one party paper. By 1986, there were 21 newspapers, and it became easier for us to really influence the press, and TAMWA began talking about issues like sexual harassment at work. But it was a double-edged sword, because the television stations recruited pretty girls to do the news reading, and the girls also wanted to be seen on television as it was a novelty. So, while we were expanding the conversation on the portrayal of women, here was television, where women were used as sex objects. The struggle continues, a luta continua.
Heba M. Khalil: How are movements trying to achieve change on the continent, particularly youth movements or younger generations, by utilizing media and cultural spaces?
Fatma Alloo: The youth need to develop tools of empowerment at an educational level and at an organizational level. Africa is a young continent, and our hope is the youth. Many youth are very active at a cultural level, they may not be in universities but at a cultural level they are extremely visible, in music, dance, and street theater.
At the moment, you see the pan-African dream has sort of lost the luster it had during independence. Even if you look at the literature of that time, it was a collective dream for Africa to unite—Bob Marley had a song “Africa Unite,” we used to dance to it and we used to really identify with it, and the literature—Franz Fanon, Ngũgĩ wa Thiong’o, Sembène Ousmane, Miriam Ba, Nawal al Saadawi—and also the films that came out. In fact, Egypt was the first country to produce amazing films; when we established the Zanzibar International Film Festival (ZIFF), in our first year we showed a film from Egypt, The Destiny by Youssef Chahine.
Zanzibar International Film Festival was born because we asked the question, “If we in Africa do not tell our stories, who will?” We ask that question particularly to train and stimulate the production of films on the continent, including in Kiswahili, because while West Africa has many films, East Africa lags behind. The festival has been in existence for 21 years. This part of the world has more than 120 million people who speak Kiswahili, so the market is there. We also encourage a lot of young producers and we encourage putting a camera in children’s hands, because from my own experience, children get so excited when they can create their own images. Twenty-one years later, these children are now adults, and they are the directors and the producers in this region. So, one has to play a role in impacting change and liberating consciousness on our vibrant and rich continent.
This article is part of the series “Reclaiming Africa’s Early Post-Independence History” from Post-Colonialisms Today (PCT), a research and advocacy project of activist-intellectuals on the continent working to recapture progressive thought and policies from post-independence Africa to address contemporary development challenges. Sign up for updates here.
The State of Judicial Independence in Kenya: A Persistent Concern
Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such. So long as we may have an independent Judiciary, the great interests of the people will be safe.
On Thursday 22 July 2021, Justice Aggrey Muchelule and Justice Said Juma Chitembwe were subjects of arbitrary search, intimidation, and interrogation by the Directorate of Criminal Investigations (DCI) on the basis of unfounded allegations of corruption.
The arrest, coming in the wake of constant and relentless attacks on the judiciary by the Executive and politicians, left a very sour taste in the mouths of many, bearing in mind that nothing was found to implicate the judges upon searching their respective chambers. Let it be clear that NOBODY is above the law (nemo est supra legis)! Not even the President of the Republic, let alone the judges.
However, there are reasons why there are arguments for special procedures when arresting or dealing with criminal allegations against a sitting judge: the need to preserve the sanctity of the office and the need to manage perceptions with regard to the judicial office. The Supreme Court of India in the case of Delhi Judicial Service Association v. State of Gujarat AIR 1991 SC 2176, (1991) 4 SCC 406 recognized the fact that whereas judges were not above the law, certain guidelines had to be in place to guide the conduct of arrest “in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated”. The concept of judicial independence, it must be recalled, recognizes not only realities but also perceptions that attach to the judicial office.
Chief Justice Howland in the Canadian Supreme Court case of R v. Valente  2 SCR 673 stated as follows with regards to perception as an ingredient of judicial independence: “it is most important that the judiciary be independent and be so perceived by the public. The judges must not have cause to fear that they will be prejudiced by their decisions or that the public would reasonably apprehend this to be the case.’ There is therefore the need to guard and jealously so, the image of the judiciary such as to manage how the judiciary is perceived by the public.
The unsubstantiated claims of corruption, and knee jerk searches without an iota of evidence does not bode well for the perception of the judiciary as a whole, and specifically, for the individual judges involved whose reputations are dragged through the mud, and needlessly so. There are germane reasons why the arrest of a judge should not be a trivial matter. The deference and respect to a judicial office informs the caution exercised in the conduct of arresting a judge. The judicial office fuses with the person of the holder and therefore it becomes necessary to err on the side of caution.
Indeed, Courts elsewhere have endeavoured to engage cautiously in this exercise of delicate funambulism. The Supreme Court of India in the case of K. Veeraswami v Union of India and others, 1991 SCR (3) 189 found that a sitting judge can only be undertaken with permission from the Chief Justice or if it is the Chief Justice who is sought to be prosecuted, from the President.
Equally, the Court of Appeal of the Federal Republic of Nigeria in the case of Hon. Justice Hyeladzira Ajiya Nganjiwa V. Federal Republic of Nigeria (2017) LPELR-43391(CA) held that a sitting judge cannot be prosecuted for offences that would have otherwise been a ground for removal from office.
It is important to note that the grounds for the removal of any judge from office are captured in article 168 of the Constitution of Kenya and they include a breach of the code of conduct and gross misconduct or misbehaviour.
Noteworthy it is to remark that the High Court of Kenya, in laying a principle of constitutional law in the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae)  eKLR ably stated that, “While the DCI is not precluded from investigating criminal misconduct of judges, there is a specific constitutional and legal framework for dealing with misconduct and/or removal of judges.
Consequently, cases of misconduct with a criminal element committed in the course of official judicial functions, or which are so inextricably connected with the office or status of a judge, shall be referred to the JSC in the first instance.” The cumulative conclusion was that the gang-ho recklessness meted on Justices Muchelule and Chitembwe by an increasingly overzealous Department of Criminal Investigations (DCI) was an affront to judicial independence in its functional sense and also in terms of perception. It was a careless move.
If there is any evidence linking any of the judges to any conduct unbecoming, then out of constitutional edict and commonsensical pragmatism, the first point of call should be the Judicial Service Commission (JSC). The Office of the Chief Justice must also be subject of focus during this unfortunate debacle.
The statement emanating from that office in the aftermath of the unfortunate events of 22nd July 2021, was at best timid and disjointed. The statement did not appear to reinforce the constitutional principle that judges cannot be arrested over matters that really ought to be addressed by the Judicial Service Commission. The office of the Chief Justice should have done better.
In summary, let it be proclaimed boldly that judicial independence is too precious a public good that it will be protected at all costs. Let it be lucid that incessant interference with judicial independence will not be tolerated from any quarters.
Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such! And in the words of John Rutledge, a scholar, jurist and the second Chief Justice of the United States of America; “So long as we may have an independent Judiciary, the great interests of the people will be safe.”
This article was initially published at THE PLATFORM For Law, Justice and Society Magazine
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