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Corruption and the Two Publics: An Address That Will Not Be Given at the Anti-Corruption Convention

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For the African bourgeoisie, the problem has always been subverting the civic sphere to feed the primordial sphere – the realm of the tribe, the cosa nostra that fuels the stealing in the first place. It made sense, was maybe even transgressive, as long as taxpayers money remained a colonial resource to which you were shut out. But the mbeberu is long gone. The taxes are ours. How can we continue to argue that theft is a revolutionary act, not a zero-sum game? By DAVID NDII.

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Corruption and the Two Publics: An Address That Will Not Be Given at the Anti-Corruption Convention
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All protocols observed. Distinguished ladies and gentlemen, you are gathered here today to discuss corruption. I can say without fear of contradiction that this a subject that this gathering is imminently qualified to discuss. In fact, it is conceivable that a gathering of people as knowledgeable as you are in matters of corruption is unprecedented in world history. The scions of crony capitalism are here. The lords of the land grabbing establishment are here. The dons of the tenderpreneur mafia are here. The money laundering fraternity— the lawyers, the accountants, the bankers, property moguls—you are all here.

My good friend and anti-corruption guru John Githongo has opined that we have, over the last two decades, assembled one of the most elaborate legal and institutional anti-corruption infrastructures in the world. It has made no difference at all. Corruption has continued to flourish. Nations renowned for honest government, such as the Scandinavian countries, are not distinguished by anti-corruption infrastructure. The normal accountability institutions —auditors, parliament, police and the courts—are sufficient. To borrow from computing, corruption is quite evidently not a hardware problem. It is the software that is corrupted.

The Oxford dictionary has four definitions of corruption, namely dishonest or fraudulent conduct by those in power; the process or effect of making someone or something morally depraved; the process by which a word or expression is changed from its original state to one regarded as erroneous or debased, and; the process by which a computer database becomes debased by alteration or the introduction of errors.

I suspect that in this convention your deliberations will be largely if not exclusively concerned with the first of these, namely, dishonest and fraudulent conduct, steering clear of election fraud, nepotism, debasement of the national honours system, corruption of harambee and much more. I need not dwell on   the same since, as I have already observed, you are knowledgeable and experienced in those matters.

In this address, I will speak to the broader conception, namely to the process of alteration or debasement, or to borrow from the computer analogy, the corruption of software. I will do so by expounding on a theory of African politics due to Nigerian scholar Peter Ekeh known as the theory of the “two publics”. I will be quoting extensively from his paper Colonialism and the Two Publics in Africa: A theoretical statement published in the 1975 issue of the journal Comparative Studies in Society and History.

Ekeh begins with the proposition that in western societies, the public and private spheres are governed by the same moral values and ethical norms: “what is considered morally wrong in the private realm is also considered morally wrong in the public realm [and] what is considered morally right in the private realm is also considered morally right in the public realm.”

He proceeds to postulate that in post-colonial Africa there are two public spheres. There is the conventional public sphere which he calls the “civic or state” sphere, and another which he calls the “primordial” sphere. He then postulates that the private and the primordial public spheres share a morality that does not extend to the state public sphere:

“When one moves across Western society to Africa, at least, one sees that the total extension of the Western conception of politics in terms of a monolithic public realm morally bound to the private realm can only be made at conceptual and theoretical peril. There is a private realm in Africa. But this private realm is differentially associated with the public realm in terms of morality. In fact there are two public realms in post-colonial Africa, with different types of moral linkages to the private realm. At one level is the public realm in which primordial groupings, ties, and sentiments influence and determine the individual’s public behavior. I shall call this the primordial public because it is closely identified with primordial groupings, sentiments, and activities, which nevertheless impinge on the public interest. The primordial public is moral and operates on the same moral imperatives as the private realm. On the other hand, there is a public realm which is historically associated with the colonial administration and which has become identified with popular politics in post-colonial Africa. It is based on civil structures: the military, the civil service, the police, etc. Its chief characteristic is that it has no moral linkages with the private realm. I shall call this the civic public. The civic public in Africa is amoral and lacks the generalized moral imperatives operative in the private realm and in the primordial public.”

In western societies, the public and private spheres are governed by the same moral values and ethical norms: “what is considered morally wrong in the private realm is also considered morally wrong in the public realm [and] what is considered morally right in the private realm is also considered morally right in the public realm.”

Allow me to illustrate. Every day Kenyans gather to organize weddings and funerals. They contribute money. They form committees, and appoint treasurers to keep the money. This money is seldom if ever stolen. We do not hear that a funeral or wedding did not take place because the treasurer took off with the money. Once the mission is accomplished a final meeting is convened to “break the committee.” The treasurer presents his or her report. If there is a surplus, it is donated to the bereaved or the couple as the case may be. If there are debts, the committee deliberates on how to settle them. There are no laws governing these undertakings. Increasingly, in urban settings, the activities are multiethnic thus we cannot say they are governed by tribal law. This is the primordial public—scrupulously honest and conscientious. This in the country with arguably the most corrupt states in the world. Same people.

You see, the state realm was a colonial imposition. It divided Africans broadly into those who resisted, and those who embraced it. Moral values do not apply in the sphere of oppression. The same applies to those who embraced it. Theirs was opportunism. They were motivated primarily by material gain. Both united in subverting it but for different reasons, as Ekeh explains:

“The African who evaded his tax was a hero; the African labourer who beat up his whjte employer was given extensive coverage in newspapers. In general, the African bourgeois class, in and out of politics, encouraged the common man to shirk his duties to the government or else to define them as burdens; in the same breath he was encouraged to demand his rights. Such strategy, one must repeat, was a necessary sabotage against alien personnel whom the African bourgeois class wanted to replace.”

The state realm was a colonial imposition. It divided Africans broadly into those who resisted, and those who embraced it. Moral values do not apply in the sphere of oppression. The same applies to those who embraced it. Theirs was opportunism. They were motivated primarily by material gain. Both united in subverting it but for different reasons…

Now that the African bourgeoisie has made an appearance, it is opportune to elaborate on it. A bourgeoisie is a capitalist class. In Europe, the bourgeoisie is the social class which emerged both as cause and consequence of the industrial revolution and capitalist development.

“In the course of colonization a new bourgeois class emerged in Africa composed of Africans who acquired Western education in the hands of the colonizers, and their missionary collaborators, and who accordingly were the most exposed to European colonial ideologies of all groups of Africans. Although native to Africa, the African bourgeois class depends on colonialism for its legitimacy. It accepts the principles implicit in colonialism but it rejects the foreign personnel that ruled Africa. It claims to be competent enough to rule, but it has no traditional legitimacy. In order to replace the colonizers and rule its own people it has invented a number of interest-begotten theories to justify that rule. I shall call the ideologies advanced by this new emergent bourgeois class in Africa the African bourgeois ideologies of legitimation.”

The bourgeoisie is associated with wealth creation and materialism.

The African bourgeoisie’s legitimising ideology is, I think, encapsulated by that ubiquitous political mantra “maendeleo.” Maendeleo is not development. Literary, maendeleo is to get rid of backwardness, to become modern. To drink busaa and chang’aa is not maendeleo. Beer and whisky is maendeleo. The maendeleo ideology is what Chinua Achebe characterizes as a “cargo cult mentality,” a “tendency among the ruling elite to live in a world of make-believe and unrealistic expectations”.

Ekeh has introduced another important concept that needs a remark or two, and this is the idea of legitimation. Legitimation is the process of making something morally acceptable to society. Legitimation is also about assuaging one’s conscience that there is a just cause behind unjust things. The legitimation of colonialism entailed presenting it as a civilizing mission, casting African ways as barbaric and backward, and Christianity and westernization as progress, bringing light to the heart of darkness. The African bourgeoisie’s predicament can be put as follows. It lacked the leadership credentials in the primordial public sphere—that belonged to the traditional rulers who colonialism had emasculated. Its power and comfort zone was in the state public—the amoral domain of oppression. How to square this circle?:

“Anti-colonialism did not in fact mean opposition to the perceived ideals and principles of Western institutions. On the contrary, a great deal of anti-colonialism was predicated on the manifest acceptance of these ideals and principles, accompanied by the insistence that conformity with them indicated a level of achievement that ought to earn the new educated Africans the right to the leadership of their country. Ultimately, the source of legitimacy for the new African leadership has become alien. Anti-colonialism was against alien colonial personnel but glaringly pro foreign ideals and principles.”

The African bourgeoisie’s legitimising ideology is, I think, encapsulated by that ubiquitous political mantra “maendeleo.” Maendeleo is not development. Literary, maendeleo is to get rid of backwardness, to become modern. To drink busaa and chang’aa is not maendeleo. Beer and whisky is maendeleo. The maendeleo ideology is what Chinua Achebe characterizes as a “cargo cult mentality,” a “tendency among the ruling elite to live in a world of make-believe and unrealistic expectations.”

Maendeleo ideology was and in many ways remains a fig leaf to cover the political nakedness of the African bourgeoisie, its inability to provide leadership on foundational questions of nation-building, among them how to transform the amoral state public sphere into an authentic values-based governance realm. To ask these questions was, still is, to become an enemy of maendeleo. To persist was, still is, to invite repercussions. There is perhaps no better specimen of the moral and intellectual crisis of the post-colonial African bourgeoisie than the ideological, political and economic incoherence of the (in)famous Sessional Paper No.10 of 1965 (African Socialism and its Application to Planning in Kenya).

Let us now consider the dialectics of the two publics. Dialectics simply means logic, or the process of reasoned inquiry. This will lead us directly into the subject of corruption.

On Friday you are hobnobbing with diplomats showing off your western sophistication, next day, you are being installed as a tribal elder adorned in monkey skins and porcupine quills Come Sunday, you are a suited picture of Christian piety buying indulgencies with money stolen from poor people. You are restless, troubled souls. This is what Ekeh means by psychic turbulence.

“Most educated Africans are citizens of two publics in the same society. The dialectical tensions and confrontations between these two publics constitute the uniqueness of modern African politics. A good citizen of the primordial public gives out and asks for nothing in return; a lucky citizen of the civic public gains from the civic public but enjoys escaping giving anything in return whenever he can. But such a lucky man would not be a good man were he to channel all his lucky gains to his private purse. He will only continue to be a good man if he channels part of the largesse from the civic public to the primordial public. That is the logic of the dialectics. The unwritten law of the dialectics is that it is legitimate to rob the civic public in order to strengthen the primordial public. (my emphasis)

Ekeh again:

“The native sector has become a primordial reservoir of moral obligations, a public entity which one works to preserve and benefit. The Westernized sector has become an amoral civic public from which one seeks to gain, if possible, in order to benefit the moral primordial public. Although the African gives materially as part of his duties to the primordial public, what he gains back is not material. He gains back intangible, immaterial benefits in the form of identity or psychological security. The pressure of modern life takes its toll in intangible ways. Behind the serenity and elegance of deportment that come with education and high office lie waves of psychic turbulence—not least of which are widespread and growing beliefs in supernatural magical powers. The primordial public is fed from this turbulence.”

I would like to believe that you recognize this description. Let me illustrate. On Friday you are hobnobbing with diplomats showing off your western sophistication, next day, you are being installed as a tribal elder adorned in monkey skins and porcupine quills Come Sunday, you are a suited picture of Christian piety buying indulgencies with money stolen from poor people. You are restless, troubled souls. This is what Ekeh means by psychic turbulence.

Corruption is a sine qua non of the post-colonial African State. You, ladies and gentlemen, are its handmaidens. Its unwritten law is that it is legitimate to rob the civic public in order to strengthen the primordial public. Until this law is repealed, so it will remain.

This then is the pathology of corruption. Corruption is a sine qua non of the post-colonial African State. You, ladies and gentlemen, are its handmaidens. Its unwritten law is that it is legitimate to rob the civic public in order to strengthen the primordial public. Until this law is repealed, so it will remain.

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David Ndii is a leading Kenyan economist and public intellectual.

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Conflict in Marsabit: Voter and Politician Locked in a Danse Macabre

The nature of the conflict in Marsabit has changed. Deaths are tallied, and ledgers of the unmourned dead are meticulously kept.

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Counting the dead

Ninety-three deaths in the past year, the count has dominated national TV coverage of conflict in Marsabit, contributing to the trend of turning the effect of the conflict and the loss into a body-counting exercise.

A year ago, Saku Member of Parliament (MP) Ali Raso Dido spoke of the number of people killed in his constituency. On his list there were only the Borana dead; he did not include the dead from other communities. To him, as an MP, only Borana lives mattered and were worthy of raising on the floor of parliament.

In a lengthy response, his counterpart, North Horr MP Francis Chachu gave the number of dead in his constituency. He listed only the Gabra dead.

In the last cycle of conflict in Marsabit County, 75 houses were burnt down, and about 850 families were displaced. Governor Mohamud Ali called a press conference at which the list of the dead was the central theme of his statement.

Since the state has no official data on number of people who have died as a result of conflict in Marsabit, all these accounts are true, but they are also subjective and incomplete. Just why the counting is done, where to begin counting, who is to be counted and who does the counting are the concerns of these times.

In between the statistics informing politicians’ petitions to parliament, or forming the subject of a governor’s hasty press statement or the prop of a news story, there is a whole social milieu within which the conflict exists and how it is processed at the political and economic levels of grief.

A macabre dance between voters and politicians

Proximity to countries in conflict—Ethiopia, Somalia, and South Sudan—and the easy availability of Small Arms and Light Weapons have been the central explanation for the conflict in Marsabit County. While valid and, in some instances, correct, this explanation misses the fact of the banality of conflict in the county—a more insidious new lexicon that normalizes killing beyond the traditional boundaries of ethnic conflict is developing.

In the last cycle of conflict in Marsabit County, 75 houses were burnt down, and about 850 families were displaced.

This change in the ethnic conflict dynamic is a function of a perverse, mutually reinforcing loop involving politicians and voters, each egging on the other to visit more death and destruction on the opposite community. The hypercompetitive nature of local elections post-devolution significantly exacerbates this loop.

Thus, taking the “war” to the other community becomes a politician’s campaign pledge rather than the promise of building hospitals and schools or bringing about the desperately needed development. The more vociferous a politician becomes, the more likely he is to be elected.

This perverse incentive makes politicians more incendiary, making both the threat of violence and the violence itself politically rewarding.

Ancestral hatred theory

While it is often cast as anchored in ancestral hatred, there is something new about conflict in Marsabit. And because it is mutating even as we all watch, we sometimes miss it. What makes it unique is its banalisation.

Three aspects make recent conflicts in Marsabit distinct from the old ones.

One, the slow-burning, episodic nature of the conflict and the attendant “peace” meetings have come to be accepted as an immutable fact of life. But the peace-industrial complex has done little to end the conflict; instead, the conflict has mutated into something new, complete with a new lexicon and signals far more incendiary than the old conflict. This rinse-and-repeat cycle has spawned a coterie of peace entrepreneurs activated at a moment’s notice whenever violence breaks out.

This perverse incentive makes politicians more incendiary, making both the threat of violence and the violence itself politically rewarding.

Two, with increased competition over land and resources under devolution, this “new” conflict is increasingly framed in apocalyptic, existential language. As a result, voters prefer politicians who cast themselves as the “defenders” of the community from outsiders’ keen on taking their land and resources. Thus, voters lean towards politicians with a “warlord” mentality rather than those with a good development record.

Three, in this “new” conflict controlling the narrative is central, making the national media and the local-language radio stations the battleground. Where the national media frames the region as a godforsaken Badlands, local-language radio stations offer politicians a safe space from where to speak directly to their people unfiltered. WhatsApp and the ever-mushrooming Facebook groups act as a functional auxiliary for sharing media content. This interface has made the Marsabit conflict far deadlier on and offline.

Conflict as theatre 

Every death in Marsabit is increasingly seen through the prism of cold arithmetic—losing and winning. This strips death of its meaning. Every death is accounted for on a ledger; it is a debt to be repaid with the death of another. Death is performance theatre, acted rather than mourned.

This theatre extends to the burial, measured by the length of the cavalcade of vehicles that accompany the body to the grave, and the promises made by politicians at his funeral or in their interviews in the local and national media. During a recent funeral, the number of vehicles contributed to the drama as cars stretched a kilometre from the centre of town to the cemetery.

Every death is accounted for on a ledger; it is a debt to be repaid with the death of another.

There was such silence in the picture that the silence was in our minds, but we know that the slow pace of the vehicles inching towards the cemetery had no connection to the past murders. In the prevailing mind-set, this image will replace that of the mad man whose throat had been slit at 8 p.m. near the market and who had tried to walk from the back of the police van into the hospital and failed—rising and falling, rising and falling.

Later, as the region’s leaders foam at the mouth on TV, everyone goes home with smaller versions of the same talk. Emotions are gauged through the metrics of tribe, place of murder, murder weapon, the known backstories of the casualties; many went unmoored as collaterals of the drama that people made of the conflict.

Part of the post-death package is “what have our leaders said?” This reaction is baked into the system of conflict, whether the said leaders are maintaining the honour of the tribe. Whether they have promised to even the score or repay the death debts. Their words are shared on and off line as a whispered social contract.

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Kenyans Need an Education That Is Human: A Call to Conscience

Colonial and post-colonial governments have worked to separate education from access to culture and information, and to isolate the school as the only source of learning.

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This is a call to Kenyans of conscience to step back and reflect on the lies about education that are circulating in the media, the schooling system and government. Foreign sharks have camped in Kenya to distort our education. Using buzzwords such as “quality” and “global standards”, these sharks seek to destroy the hopes, dreams and creativity of young Africans, not just in Kenya, but in the whole region, and to make a profit while at it. With the help of local professors, bureaucrats and journalists, they spread hatred for education among the population. At the same time, they ironically create a thirst for schooling that makes parents resort to desperate measures to get their children into school, going as far as accepting violence and abuse in schools that causes children to take their own lives.

This insanity must end.

We must accept that education is a life endeavour through which people constantly adapt to their social and natural environment. Education is more than going to school and getting the right paper credentials. Education occurs anywhere where human beings process what they perceive, make decisions about it and act together in solidarity. That is why education, culture and access to information are inseparable.

However, since colonial times, both the colonial and “independence” versions of the Kenya government have worked hard to separate education from culture and access to information. They have done so through crushing all other avenues where Kenyans can create knowledge. We have insufficient public libraries and our museums are underfunded. Arts festivals, where people come together and learn from unique cultural expressions, have been underfunded, and by some accounts, donors have been explicitly told not to fund creativity and culture. In the meantime, artists are insulted, exploited and sometimes silenced through censorship, public ridicule and moralistic condemnations in the name of faith.

All these measures are designed to isolate the school as the only source of learning and creativity, and this is what makes the entry into schools so cutthroat and abusive.

But entering school does not mean the end of the abuse. Once inside the schools, Kenyans find that there is no arts education where children can explore ideas and express themselves. In school, they find teachers who themselves are subject to constant insults and disruptions from the Ministry of Education and the Teachers Service Commission. Under a barrage of threats and transfers, teachers are forced to implement the Competency Based training which is incoherent and has been rejected in other countries. Many of the teachers eventually absorb the rationality of abuse and mete it out on poor children whose crime is to want to learn. This desperation for education has also been weaponized by the corporate world that is offering expensive private education and blackmailing parents to line the pockets of book publishers.

Education is more than going to school and getting the right paper credentials. Education occurs anywhere where human beings process what they perceive, make decisions about it and act together in solidarity.

By the end of primary and secondary school, only a mere 3 per cent of total candidates are able to continue with their education. This situation only worsens inequality in Kenya, where only 2 per cent of the population have a university degree, and where only 8,300 people own as much as the rest of Kenya.

But listening to the government and the corporate sector, you would think that 98 per cent of Kenyans have been to university. The corporate sector reduces education to job training and condemns the school system as inadequate for meeting the needs of the corporations. Yet going by statements from the Kenya Private Sector Alliance (KEPSA) and the government, there is no intention to employ Kenyans who get training. The government hires doctors from Cuba and engineers from China, and then promises the United Kingdom to export our medical workers. KEPSA is on record saying that we need to train workers in TVET so that they can work in other African countries.

It is clear that the Kenya government and the corporate sector do not want Kenyans to go to school and become active citizens in their homeland. Rather, these entities are treating schooling as a conveyor belt to manufacture Kenyans for export abroad as labour and to cushion the theft of public resources through remittances.

The media and the church also join in the war against education by brainwashing Kenyans to accept this dire state of affairs. The media constantly bombards Kenyans with lies about the composition of university students, and with propaganda against “useless degrees”. The church has abandoned prophecy and baptizes every flawed educational policy in exchange for maintaining its colonial dreams of keeping religion in the curriculum to pacify Kenyans in the name of “morality”.

The government is now intending to restrict education further through the Competency-Based Curriculum (CBC) which seeks to limit education through pathways that prevent children from pursuing subjects of their interests, and by imposing quotas on who can pursue education beyond secondary school. At tertiary level, the government is devising an algorithm that will starve the humanities and social sciences of funding. It claims that funds will instead go to medical and engineering sciences, which are in line with Kenya’s development needs.

But recall that foreigners are doing the work of medical professionals and engineers anyway, so “development” here does not mean that Kenyan professionals will work in their home country. They will work abroad where they cannot be active citizens and raise questions about our healthcare and infrastructure.

The proposed defunding of the arts, humanities and social sciences aims to achieve one goal: to reserve thinking and creativity for the 3 per cent of Kenyans who can afford it. This discrimination in funding of university education is about locking the majority and the poor out of spaces where they can be creative and develop ideas. It also seeks to prevent Kenyans from humble backgrounds from questioning policies and priorities that are passed under dubious concepts such as “development needs” that are largely studied in the humanities and social sciences.

It is clear that the Kenya government and the corporate sector do not want Kenyans to go to school and become active citizens in their homeland.

Clearly, there is a war against education and against Kenyans being creative and active citizens in their own country. For the 8,300 Kenyans to maintain their monopoly of resources, they need to distract Kenyans with propaganda against education, they need to limit Kenyans’ access to schooling, and they need to shut down alternative sources of training, information and knowledge. By limiting access to schooling and certificates, the 8,300 can exploit the work of Kenyans who have not been to school, or who have not gone far in school, by arguing that those Kenyans lack the “qualifications” necessary for better pay.

We must also name those who enable this exploitation. The greedy ambitions of the political class are entrenched by people who, themselves, have been through the school system. To adapt Michelle Obama’s famous words, these people walked through the door of opportunity, and are trying to close it behind them, instead of reaching out and giving more Kenyans the same opportunities that helped them to succeed. This tyranny is maintained by a section of teachers in schools, of professors in universities and of bureaucrats in government, who all fear students and citizens who know more than they do, instead of taking joy in the range of Kenyan creativity and knowledge. The professors and bureaucrats, especially, are seduced into this myopia with benchmarking trips abroad, are spoon-fed foreign policies to implement in Kenya. They harvest the legitimate aspirations of Kenya and repackage them in misleading slogans. For instance, they refer to limited opportunities as “nurturing talent”, and baptize the government’s abandonment of its role in providing social services “parental involvement”.

These bureaucrats and academics are helped to pull the wool over our eyes by the media who allow them to give Kenyans obscure soundbites that say nothing about what is happening on the ground. They also make empty calls for a return to a pre-colonial Africa which they will not even let us learn about, because they have blocked the learning of history and are writing policies to de-fund the arts and humanities. We must put these people with huge titles and positions to task about their loyalty to the African people in Kenya. We call on them to repent this betrayal of their own people in the name of “global standards”.

We Kenyans also need an expanded idea of education. We need arts centres where Kenyans can meet and generate new ideas. We need libraries where Kenyans can get information. We need guilds and unions to help professionals and workers take charge of regulation, training and knowledge in their specializations. We need for all work to be recognized independent of certification, so that people can be paid for their work regardless of whether one has been to school or not.

We need recognition of our traditional skills in areas like healing, midwifery, pastoralism, crafts and construction. We need a better social recognition of achievement outside business and politics. It is a pity that our runners who do Kenyans proud, our scientists, thinkers, artists and activists who gain international fame, are hardly recognized in Kenya because they were busy working, rather than stealing public funds to campaign in the next election. Our ideas are harvested by foreign companies while our government bombards us with useless bureaucracy and taxes which ensure that we have no impact here.

We need for all work to be recognized independent of certification, so that people can be paid for their work regardless of whether one has been to school or not.

Most of all, we need an end to the obsession with foreign money as the source of “development”. We are tired of being viewed as merely labour for export, we are tired of foreigners being treated as more important than the Kenyan people. We are tired of tourism which is based on the tropes of the colonial explorer and which treats Africans as a threat to the environment. And the names of those colonial settlers who dominate our national consciousness must be removed from our landmarks.

Development, whatever that means, comes from the brains and muscles of the Kenyan people. And the key to us becoming human beings who proudly contribute to society and humanity is education. Not education in the limited sense of jobs and certificates, but education in the broader sense of dignity, creativity, knowledge and solidarity.

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UN Panel of Experts: Kenya Urged to Back Former CJ Willy Mutunga Candidacy

Willy Mutunga, the former Chief Justice and President of the Supreme Court of Kenya has been nominated by a number of international organisations to be one of the three experts. International human rights activists are calling on the government of Kenya to join with others in Global Africa to support the nomination of Willy Mutunga.

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On 28 June 2021, the Human Rights Council of the United Nations called on the UN to set up a panel of experts to investigate systemic racism in policing against people of African descent. This call came one year after the police murder of George Floyd in the United States. The UN panel of three experts in law enforcement and human rights will investigate the root causes and effects of systemic racism in policing, including the legacies of slavery and colonialism, and make recommendations for change. Willy Mutunga, the former Chief Justice and President of the Supreme Court of Kenya has been nominated by a number of international organisations to be one of the three experts. International human rights activists are calling on the government of Kenya to join with others in Global Africa to support the nomination of Willy Mutunga.

The government of Kenya is strongly placed to support the nomination of its native son, an internationally respected jurist. Kenya is currently a member of the UN Security Council and an influential member of “A3 plus 1”, the partnership between the three African members of the Security Council and the Caribbean member of the UNSC, St Vincent and the Grenadines. Last week on 7 September, President Uhuru Kenyatta co-chaired the African Union, Caribbean Community summit. This meeting between the AU and the Caribbean states agreed to establish the Africa, Brazil, CARICOM, and Diaspora Commission. This Commission will mature into a politico/economic bloc embracing over 2 billion people of African descent. Kenya, with its experience of reparative justice from the era of the Land and Freedom Army, has joined with the Caribbean to advance the international campaign to end the dehumanization of Africans. African descendants around the world have lauded the 2021 Human Rights Council Report for calling on the international community to “dismantle structures and systems designed and shaped by enslavement, colonialism and successive racially discriminatory policies and systems.”

Background to the nomination of Hon Willy Mutunga

The murder of George Floyd on 25 May 2020 led to worldwide condemnation of police killings and systemic racism in the United States. The African Members of the UN Human Rights Council pushed hard to garner international support to investigate systemic racism in policing in the United States. In the wake of the global outcry, there were a number of high-level investigations into police killings of innocent Blacks. Three distinguished organizations, the National Conference of Black Lawyers, the International Association of Democratic Lawyers and the National Lawyers Guild convened a panel of commissioners from Africa, Asia, Europe, Latin America and the Caribbean to investigate police violence and structural racism in the United States. Virtual public hearings were held in February and March 2021, with testimonies from the families of the victims of some of the most notorious police killings in recent times.

In its report, a panel of leading human rights lawyers from 11 countries found the US in frequent violation of international laws, of committing crimes against humanity by allowing law enforcement officers to kill and torture African Americans with impunity and of “severe deprivation of physical liberty, torture, persecution and other inhumane acts”.

Among its principal findings, the Commission found the US guilty of violating its international human rights treaty obligations, both in terms of laws governing policing and in the practices of law enforcement officers, including traffic stops targeting Black people and race-based stop-and-frisk; tolerating an “alarming national pattern of disproportionate use of deadly force not only by firearms but also by Tasers” against Black people; and operating a “culture of impunity” in which police officers are rarely held accountable while their homicidal actions are dismissed as those of just “a few bad apples”.

After the Commission’s report was published, the convening organizations’ Steering Committee mobilized international public opinion to publicize its findings. Former CJ Willy Mutunga was one of the jurists in Africa who worked hard to publicize the report’s findings and recommendations.

It was in large part on the basis of these findings that the Human Rights Council issued its own report at the end of June. The United Nations decided to set up a panel of experts to investigate systemic racism in policing against people of African descent, adding international weight to demands in the United States for accountability for police killings of African Americans, and reparations for victims. The panel of three experts will have a three-year mandate to investigate the root causes and effects of systemic racism in policing. Many organizations have submitted names for suggested panel members. Legal experts from Global Africa and international jurists have recommended Willy Mutunga to be one of the three panellists. Thus far, the following organizations have endorsed the candidacy of Willy Mutunga:

  1. The African Bar Association, with membership in 37 African Countries.
  2. The United States Human Rights network (USHRN), a National network of U.S. organizations working to strengthen the Human Rights movement in the US.
  3. International Commission of Inquiry on Systemic Racist Police Violence Against People of African Decent in the United States.
  4. Society of Black Lawyers of the United Kingdom
  5. Bandung Conference, a Diaspora Human Rights network based in Nairobi, Kenya.

There are now calls for the government of Kenya to step forward to be more proactive to lobby the Human Rights Council and to write letters to its President, H.E. Nazhat Shameen Khan (hrcpresidency@un.org), endorsing the candidature of Dr Mutunga. His CV is included for those who want to write to the Minister of Foreign Affairs for Kenya to lead the endorsement of Willy Mutunga.

The Steering Committee of the International Commission of Inquiry on Systemic Racist Police Violence in the United States is coordinating the campaign for Dr Willy Mutunga to be appointed by the UNHRC as a member of the International Expert Mechanism to monitor compliance of the UNHRC findings and recommendations.

The Government of Kenya and Human Rights groups are kindly asked to send copies of their endorsements to the Coordinator, International Commission of Inquiry on Systemic Racist Police Violence in the United States, lennoxhinds@aol.com.

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