Connect with us

Op-Eds

The Kibera Demolitions: A Response From the Constitution

6 min read.

The constitution does not value roads more than footpaths, cars more than people, grand railways and glass office towers more than those who are forced to live and do business in mabati shacks and kiosks. The constitution shows preference for rights over law. It means it is not an adequate answer to say only “they were there illegally”. By JILL COTTRELL GHAI AND YASH PAL GHAI.

Published

on

The Kibera Demolitions: A Response From the Constitution
Download PDFPrint Article

“Homes of 30,000 people in Kibera demolished to make way for a road”
– BBC World Service July 23rd

On the day when this became news, one of us had given a presentation on human rights at a workshop. Another presenter suggested governments might be embarrassed to be shown up internationally as seriously violating human rights. Your author responded, “I am not convinced this has any impact. The government shows no shame.”

The response of our government over the Kibera evictions was reported as being: “They were there illegally”.

Despite being lawyers, we want to suggest that such a legalistic approach is a complete violation of the constitution.

The constitution is the product of a vision. It was the vision of the people of Kenya: they were fed up. Fed up with tyranny, with lack of accountability, with lack of respect, with the accumulation of national resources and power in a few hands, with the capture of the state for personal gain. The Constitution of Kenya Review Commission in its Short Report, which accompanied the first draft constitution, said this:

The Review Act speaks of the needs of marginalized communities. You might almost say the Commission found a marginalized nation. … The whole nation feels alienated from the government and structures of authority. People feel neglected, and victimised. They consider they have no control over their life or destiny.

The constitution is the product of a vision. It was the vision of the people of Kenya: they were fed up. Fed up with tyranny, with lack of accountability, with lack of respect, with the accumulation of national resources and power in a few hands, with the capture of the state for personal gain.

It did not, though it might have, say Kenyans wanted to be free of what Shakespeare called the “arrogance of power”.

The response of the constitution drafters

Let’s begin at the beginning: the Preamble. It speaks of the people being committed to “nurturing and protecting the well-being of the individual, the family, communities and the nation”. And recognises that all Kenyans long for “a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”.

The Constitution goes on to say that the people of Kenya are sovereign. What does this mean? If they are not empty words it means that the country belongs to the people. All the people. It does not belong just to the wealthy, the politically connected, the obsessed-with-their-own-power. It must mean, and it thus follows, that it is a total negation of the constitution to ride rough-shod over the lives, livelihoods, homes, happiness and prospects of thousands of fellow citizens.

Early in the Constitution is the Bill of Rights. Its purpose is made clear: it is “to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings”. It later says: “Every person has inherent dignity and the right to have that dignity respected and protected”.

How do you respect the dignity of people, achieve social justice and enable people to realise their potential by grinding into the dust their birth certificates, their school certificates, their mementos and their hopes?

The constitution says: “Every person has the right … not to be subjected to any form of violence from either public or private sources, … or treated or punished in a cruel, inhuman or degrading manner”. Violence is not just a matter of physical force. Treatment is not just about medical treatment.

The constitution shows particular care for older members of society, and minorities and marginalised groups and children. “A child’s best interests are of paramount importance in every matter concerning the child”. Everyone (and minorities and marginalized are particularly mentioned) has a right to have reasonable access to water and health services. The elderly have the right to live in dignity and respect and be free from abuse; to receive reasonable care and assistance from the family and the state (not to be hounded out of their homes by that state).

Eviction standards

Everyone, the constitution tells us, has the right to housing. No one would deny that sometimes people will have to lose their homes in order for important development to take place. The Land Act as amended provides for evictions to be as decent as possible, and in its provisions at least, was intended to implement the constitution. It says that evictions must be carried out in a manner that respects people’s dignity, right to life and security. There must be special measures to ensure protection of women, children, the elderly, and persons with disabilities. There must be special measures to ensure that there is no arbitrary loss of people’s possessions. And force used only when necessary.

The Land Act as amended provides for evictions to be as decent as possible, and in its provisions at least, was intended to implement the constitution. It says that evictions must be carried out in a manner that respects people’s dignity, right to life and security. How can the indiscriminate use of bulldozers possibly respect these rules?

How can the indiscriminate use of bulldozers possibly respect these rules?

Kenyan courts have also said that evictions must be planned to avoid disrupting schools, work, and take account weather conditions. Instead people are evicted in a particularly cold July and in the closing weeks of the school term.

Courts have also indicated the need for engagement with communities before evictions take place.

Distorted priorities

The dismal truth is that our so-called leaders, and the people who do their will, are blind to the vision of the constitution. The notion that a person who lives in Kibera or Korogocho or Mathare (and indeed the 60 percent of the people of Nairobi who live in informal settlements) is just as worthy of respect and dignity as the well-heeled, well-fed and comfortably housed is beyond their comprehension. In truth the constitution is beyond their blinkered ability to comprehend.

The constitution does not value roads more than footpaths, cars more than people, grand railways and glass office towers more than those who are forced to live and do business in mabati shacks and kiosks.

The constitution shows preference for rights over law. It means it is not an adequate answer to say only “they were there illegally”.

Large scale evictions are not easy anywhere. That must be admitted. Indeed it is precisely because of this that the United Nations adopted Guidelines on Development Related Evictions, which were relied upon by our courts when they laid down guidance on evictions, and are imperfectly reflected in the Land Act.

But the truth is that the Kenyan authorities are not just uncaring, lacking empathy with the people who elect them and whom the constitution says they are supposed to serve rather than rule. They are also incompetent.

It cannot be beyond the wit of public servants to think things through from the beginning. What is the best route for a road (preferably to avoid human suffering as far as possible)? Can the land be gradually cleared, ensuring that people have places to go, and that is not just structure owners (themselves squatters) who get compensated?

Doesn’t all this make the President’s Big Four promises sound a bit empty? Most of the people evicted would never be able to afford even his “affordable” housing.

When will the government, national and county, develop a real plan for Nairobi, including a strategy for informal settlements that is more caring and sophisticated than a bulldozer? When will they learn that it needs an integrated, evidence based, publicly debated and approved, approach that will ensure decent, affordable public transport, not just off the cuff ideas that go nowhere, like lipstick lines?

Doesn’t all this make the President’s Big Four promises sound a bit empty? Most of the people evicted would never be able to afford even his “affordable” housing.

How long can Kenya’s elite get away with treating so many citizens with such scorn and lack of respect?

Related links

Report of the Constitution of Kenya Review Commission Volume Five Technical Appendices
The Constitution of Kenya Review Act, 1997
Physical Planning Act No.6 of 1996
Petition 239 of 2014
Anguish as houses demolished to pave way for Kibera link road
Over 20,000 people left homeless in Kibera demolition
Residents of Kibera decry short notice as demolitions continue
Prof. Yash Pal Ghai condemns the government for demolishing Kibera houses
Structures on road reserve in Kibera set to be demolished
Stop inhumane Kibera demolitions, KNCHR tells KURA
Evictions in Nairobi: Why the city has a problem and what can be done
Mass eviction looms in Kibera to pave way for road works
Raila’s party protests government eviction of Kibera residents to construct road
Kibera residents facing eviction to meet roads officials
Kura, Amnesty in Twitter spat over Kibera demolitions
Kibera Slum Kenya Demolition of Homes – 30,000 Displaced
Agencies agree to compensate Kibera residents facing eviction

(Additional research by Juliet Attelah)

Support The Elephant.

The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.

Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.

Avatar
By

Jill Cottrell Ghai has been a Professor of Law at numerous universities, including Ife and Ahmadu Bello Universities in Nigeria, Warwick University and the University of Hong Kong. She also has extensive experience in advising on constitutions, including in Kenya, Nepal and Iraq. Prof. Yash Pal Ghai is Kenya’s preeminent constitutional lawyer and former chair of the Constitutional of Kenya Reform Commission (CKRC).

Op-Eds

SAPs – Season Two: Why Kenyans Fear Another IMF Loan

The Jubilee government would have us believe that the country is economically healthy but the reality is that the IMF has come in precisely because Kenya is in a financial crisis.

Published

on

SAPs – Season Two: Why Kenyans Fear Another IMF Loan
Download PDFPrint Article

Never did I imagine that opposing an International Monetary Fund (IMF) loan to Kenya would be viewed by the Kenyan authorities as a criminal act. But that is exactly what transpired last week when activist Mutemi Kiama was arrested and charged with “abuse of digital gadgets”, “hurting the presidency”, “creating public disorder” and other vaguely-worded offences. Mutemi’s arrest was prompted by his Twitter post of an image of President Uhuru Kenyatta with the following caption: “This is to notify the world . . . that the person whose photograph and names appear above is not authorised to act or transact on behalf of the citizens of the Republic of Kenya and that the nation and future generations shall not be held liable for any penalties of bad loans negotiated and/or borrowed by him.” He was released on a cash bail of KSh.500,000 with an order prohibiting him from using his social media accounts or speaking about COVID-19-related loans.

Mutemi is one among more than 200,000 Kenyans who have signed a petition to the IMF to halt a KSh257 billion (US$2.3 billion) loan to Kenya, which was ostensibly obtained to cushion the country against the negative economic impact of COVID-19.  Kenya is not the only country whose citizens have opposed an IMF loan. Protests against IMF loans have been taking place in many countries, including Argentina, where people took to the streets in 2018 when the country took a US$50 billion loan from the IMF. In 2016, Eqyptian authorities were forced to lower fuel prices following demonstrations against an IMF-backed decision to eliminate fuel subsidies. Similar protests have also taken place in Jordan, Lebanon and Ecuador in recent years.

Why would a country’s citizens be against a loan given by an international financial institution such as the IMF? Well, for those Kenyans who survived (or barely survived) the IMF-World Bank Structural Adjustment Programmes (SAPs) of the 1980s and 90s, the answer is obvious. SAPs came with stringent conditions attached, which led to many layoffs in the civil service and removal of subsidies for essential services, such as health and education, which led to increasing levels of hardship and precarity, especially among middle- and low-income groups. African countries undergoing SAPs experienced what is often referred to as “a lost development decade” as belt-tightening measures stalled development programmes and stunted economic opportunities.

In addition, borrowing African countries lost their independence in matters related to economic policy. Since lenders, such as the World Bank and the IMF, decide national economic policy – for instance, by determining things like budget management, exchange rates and public sector involvement in the economy – they became the de facto policy and decision-making authorities in the countries that took their loans. This is why, in much of the 1980s and 1990s, the arrival of a World Bank or IMF delegation to Nairobi often got Kenyans very worried.

In those days (in the aftermath of a hike in oil prices in 1979 that saw most African countries experience a rise in import bills and a decline in export earnings), leaders of these international financial institutions were feared as much as the authoritarian Kenyan president, Daniel arap Moi, because with the stroke of a pen they could devalue the Kenyan currency overnight and get large chunks of the civil service fired. As Kenyan economist David Ndii pointed out recently at a press conference organised by the Linda Katiba campaign, when the IMF comes knocking, it essentially means the country is “under receivership”. It can no longer claim to determine its own economic policies. Countries essentially lose their sovereignty, a fact that seems to have eluded the technocrats who rushed to get this particular loan.

When he took office in 2002, President Mwai Kibaki kept the World Bank and the IMF at arm’s length, preferring to take no-strings-attached infrastructure loans from China. Kibaki’s “Look East” economic policy alarmed the Bretton Woods institutions and Western donors who had until then had a huge say in the country’s development trajectory, but it instilled a sense of pride and autonomy in Kenyans, which sadly, has been eroded by Uhuru and his inept cronies who have gone on loan fishing expeditions, including massive Eurobonds worth Sh692 billion (nearly $7 billion), which means that every Kenyan today has a debt of Sh137,000, more than three times what it was eight years ago when the Jubilee government came to power. By the end of last year, Kenya’s debt stood at nearly 70 per cent of GDP, up from 50 per cent at the end of 2015. This high level of debt can prove deadly for a country like Kenya that borrows in foreign currencies.

When the IMF comes knocking, it essentially means the country is “under receivership”.

The Jubilee government would have us believe that the fact that the IMF agreed to this loan is a sign that the country is economically healthy, but as Ndii noted, quite often the opposite is true: the IMF comes in precisely because a country is in a financial crisis. In Kenya’s case, this crisis has been precipitated by reckless borrowing by the Jubilee administration that has seen Kenya’s debt rise from KSh630 billion (about $6 billion at today’s exchange rate) when Kibaki took office in 2002, to a staggering KSh7.2 trillion (about US$70 billion) today, with not much to show for it, except a standard gauge railway (SGR) funded by Chinese loans that appears unable to pay for itself. As an article in a local daily pointed out, this is enough money to build 17 SGRs from Mombasa to Nairobi or 154 superhighways like the one from Nairobi to Thika. The tragedy is that many of these loans are unaccounted for; in fact, many Kenyans believe they are taken to line individual pockets. Uhuru Kenyatta has himself admitted that Kenya loses KSh2 billion a day to corruption in government. Some of these lost billions could actually be loans.

IMF loans with stringent conditions attached have often been presented as being the solution to a country’s economic woes – a belt-tightening measure that will instil fiscal discipline in a country’s economy by increasing revenue and decreasing expenditure. However, the real purpose of these loans, some argue, is to bring about major and fundamental policy changes at the national level – changes that reflect the neoliberal ethos of our time, complete with privatisation, free markets and deregulation.

The first ominous sign that the Kenyan government was about to embark on a perilous economic path was when the head of the IMF, Christine Lagarde, made an official visit to Kenya shortly after President Uhuru was elected in 2013. At that time, I remember tweeting that this was not a good omen; it indicated that the IMF was preparing to bring Kenya back into the IMF fold.

Naomi Klein’s book, The Shock Doctrine, shows how what she calls “disaster capitalism” has allowed the IMF, in particular, to administer “shock therapy” on nations reeling from natural or man-made disasters or high levels of external debt. This has led to unnecessary privatisation of state assets, government deregulation, massive layoffs of civil servants and reduction or elimination of subsidies, all of which can and do lead to increasing poverty and inequality. Klein is particularly critical of what is known as the Chicago School of Economics that she claims justifies greed, corruption, theft of public resources and personal enrichment as long as they advance the cause of free markets and neoliberalism. She shows how in nearly every country where the IMF “medicine” has been administered, inequality levels have escalated and poverty has become systemic.

Sometimes the IMF will create a pseudo-crisis in a country to force it to obtain an IMF bailout loan. Or, through carefully manipulated data, it will make the country look economically healthy so that it feels secure about applying for more loans. When that country can’t pay back the loans, which often happens, the IMF inflicts even more austerity measures (also known as “conditionalities”) on it, which lead to even more poverty and inequality.

IMF and World Bank loans for infrastructure projects also benefit Western corporations. Private companies hire experts to ensure that these companies secure government contracts for big infrastructure projects funded by these international financial institutions. Companies in rich countries like the United States often hire people who will do the bidding on their behalf. In his international “word-of-mouth bestseller”, Confessions of an Economic Hit Man, John Perkins explains how in the 1970s when he worked for an international consulting firm, he was told that his job was to “funnel money from the World Bank, the US Agency for International Development and other foreign aid organisations into the coffers of huge corporations and the pockets of a few wealthy families who control the planet’s resources”.

Sometimes the IMF will create a pseudo-crisis in a country to force it to obtain an IMF bailout loan.

The tools to carry out this goal, his employer admitted unashamedly, could include “fraudulent financial reports, rigged elections, payoffs, extortion, sex and murder”. Perkins showed how in the 1970s, he became instrumental in brokering deals with countries ranging from Panama to Saudi Arabia where he convinced leaders to accept projects that were detrimental to their own people but which enormously benefitted US corporate interests.

“In the end, those leaders become ensnared in a web of debt that ensures their loyalty. We can draw on them whenever we desire – to satisfy our political, economic or military needs. In turn, they bolster their political positions by bringing industrial parks, power plants, and airports to their people. The owners of US engineering/construction companies become fabulously wealthy,” a colleague told him when he asked why his job was so important.

Kenyans, who are already suffering financially due to the COVID-19 pandemic which saw nearly 2 million jobs in the formal sector disappear last year, will now be confronted with austerity measures at precisely the time when they need government subsidies and social safety nets. Season Two of SAPs is likely to make life for Kenyans even more miserable in the short and medium term.

We will have to wait and see whether overall dissatisfaction with the government will influence the outcome of the 2022 elections. However, whoever wins that election will still have to contend with rising debt and unsustainable repayments that have become President Uhuru Kenyatta’s most enduring legacy.

Continue Reading

Op-Eds

Haiti: The Struggle for Democracy, Justice, Reparations and the Black Soul

Only the Haitian people can decide their own future. The dictatorship imposed by former president Jovenel Moïse and its imperialist enablers need to go – and make space for a people’s transition government.

Published

on

Haiti: The Struggle for Democracy, Justice, Reparations and the Black Soul
Download PDFPrint Article

Haiti is once again going through a profound crisis. Central to this is the struggle against the dictatorship imposed by former president Jovenel Moïse. Since last year Mr. Moise, after decreeing the dismissal of Parliament, has been ruling through decrees, permanently violating Haiti’s constitution. He has refused to leave power after his mandate ended on February 7, 2021, claiming that it ends on February 7 of next year, without any legal basis.

This disregard of the constitution is taking place despite multiple statements by the country’s main judicial bodies, such as the CSPJ (Superior Council of Judicial Power) and the Association of Haitian Lawyers. Numerous religious groups and numerous institutions that are representative of society have also spoken. At this time, there is a strike by the judiciary, which leaves the country without any public body of political power.

At the same time, this institutional crisis is framed in the insecurity that affects practically all sectors of Haitian society. An insecurity expressed through savage repressions of popular mobilizations by the PNH (Haitian National Police), which at the service of the executive power. They have attacked journalists and committed various massacres in poor neighborhoods. Throughout the country, there have been assassinations and arbitrary arrests of opponents.

Most recently, a judge of the High Court was detained under the pretext of promoting an alleged plot against the security of the State and to assassinate the president leading to the illegal and arbitrary revocation of three judges of this Court. This last period has also seen the creation of hundreds of armed groups that spread terror over the entire country and that respond to power, transforming kidnapping into a fairly prosperous industry for these criminals.

The 13 years of military occupation by United Nations troops through MINUSTAH and the operations of prolongation of guardianship through MINUJUSTH and BINUH have aggravated the Haitian crisis. They supported retrograde and undemocratic sectors who, along with gangsters, committed serious crimes against the Haitian people and their fundamental rights.

For this, the people of Haiti deserve a process of justice and reparations. They have paid dearly for the intervention of MINUSTAH: 30 THOUSAND DEAD from cholera transmitted by the soldiers, thousands of women raped, who now raise orphaned children. Nothing has changed in 13 years, more social inequality, poverty, more difficulties for the people. The absence of democracy stays the same.

The poor’s living conditions have worsened dramatically as a result of more than 30 years of neoliberal policies imposed by the International Financial Institutions (IFIs), a severe exchange rate crisis, the freezing of the minimum wage, and inflation above 20% during the last three years.

It should be emphasized that, despite this dramatic situation, the Haitian people remain firm and are constantly mobilizing to prevent the consolidation of a dictatorship by demanding the immediate leave of office by former President Jovenel Moïse.

Taking into account the importance of this struggle and that this dictatorial regime still has the support of imperialist governments such as the United States of America, Canada, France, and international organizations such as the UN, the OAS, and the EU, the IPA calls its members to contribute their full and active solidarity to the struggle of the Haitian people, and to sign this Petition that demands the end of the dictatorship as well as respect for the sovereignty and self-determination of the Haitian people, the establishment of a transition government led by Haitians to launch a process of authentic national reconstruction.

In addition to expressing our solidarity with the Haitian people’s resistance, we call for our organisations to demonstrate in front of the embassies of the imperialist countries and before the United Nations. Only the Haitian people can decide their future. Down with Moise and yes to a people’s transition government, until a constituent is democratically elected.

Continue Reading

Op-Eds

Deconstructing the Whiteness of Christ

While many African Christians can only imagine a white Jesus, others have actively promoted a vision of a brown or black Jesus, both in art and in ideology.

Published

on

Deconstructing the Whiteness of Christ
Download PDFPrint Article

When images of a white preacher and actor going around Kenya playing Jesus turned up on social media in July 2019, people were rightly stunned by the white supremacist undertone of the images. They suggested that Africans were prone to seeing Jesus as white, promoting the white saviour narrative in the process. While it is true that the idea of a white Jesus has been prevalent in African Christianity even without a white actor, and many African Christians and churches still entertain images of Jesus as white because of the missionary legacy, many others have actively promoted a vision of Jesus as brown or black both in art an in ideology.

Images of a brown or black Jesus is as old as Christianity in Africa, especially finding a prominent place in Ethiopian Orthodox Church, which has been in existence for over sixteen hundred years. Eyob Derillo, a librarian at the British Library, recently brought up a steady diet of these images on Twitter. The image of Jesus as black has also been popularised through the artistic project known as Vie de Jesus Mafa (Life of Jesus Mafa) that was conducted in Cameroon.

The most radical expression of Jesus as a black person was however put forth by a young Kongolese woman called Kimpa Vita, who lived in the late seventeenth and early eighteenth century. Through the missionary work of the Portuguese, Kimpa Vita, who was a nganga or medicine woman, became a Christian. She taught that Jesus and his apostles were black and were in fact born in São Salvador, which was the capital of the Kongo at the time. Not only was Jesus transposed from Palestine to São Salvador, Jerusalem, which is a holy site for Christians, was also transposed to São Salvador, so that São Salvador became a holy site. Kimpa Vita was accused of preaching heresy by Portuguese missionaries and burnt at the stake in 1706.

It was not until the 20th century that another movement similar to Vita’s emerged in the Kongo. This younger movement was led by Simon Kimbangu, a preacher who went about healing and raising the dead, portraying himself as an emissary of Jesus. His followers sometimes see him as the Holy Spirit who was to come after Jesus, as prophesied in John 14:16. Just as Kimpa Vita saw São Salvador as the new Jerusalem, Kimbangu’s village of Nkamba became, and still is known as, the new Jerusalem. His followers still flock there for pilgrimage. Kimbangu was accused of threatening Belgian colonial rule and thrown in jail, where he died. Some have complained that Kimbangu seems to have eclipsed Jesus in the imagination of his followers for he is said to have been resurrected from the dead, like Jesus.

Kimbangu’s status among his followers is however similar to that of some of the leaders of what has been described as African Independent Churches or African Initiated Churches (AICs). These churches include the Zionist churches of Southern Africa, among which is the amaNazaretha of Isaiah Shembe. Shembe’s followers see him as a divine figure, similar to Jesus, and rather than going to Jerusalem for pilgrimage, his followers go to the holy city of Ekuphakameni in South Africa. The Cameroonian theologian, Fabien Eboussi Boulaga, in his Christianity Without Fetish, see leaders like Kimbangu and Shembe as doing for their people in our own time what Jesus did for his people in their own time—providing means of healing and deliverance in contexts of grinding oppression. Thus, rather than replacing Jesus, as they are often accused of doing, they are making Jesus relevant to their people. For many Christians in Africa, therefore, Jesus is already brown or black. Other Christians still need to catch up with this development if we are to avoid painful spectacles like the one that took place Kenya.

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.

Continue Reading

Trending