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Transitional Justice: Impunity, Project Kenya and Burying the TJRC Report

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More than five years after it was handed over to President Uhuru Kenyatta, the Truth, Justice and Reconciliation Commission’s final report remains buried in the engineered politics of silence and prevarication – mostly to protect key political figures who were listed as Adversely Mentioned Persons. In its absence, however, the Jubilee government’s attempts to build bridges and engineer a cohesive nation will remain a mirage. By GABRIELLE LYNCH

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Transitional Justice: Impunity, Project Kenya and Burying the TJRC Report
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On 21 May 2013, Kenya’s Truth, Justice and Reconciliation Commission (TJRC) handed over a final report to President Uhuru Kenyatta. According to the TJRC Act of 2008, the Commission’s report – or summaries of it – were to be widely disseminated. The report was also to be tabled in parliament within twenty-one days with implementation to start within six months. All recommendations were to be implemented with the Minister of Justice tasked with giving reasons for any instances “where the implementation of any recommendation has not been complied with”.

Five and half years later, few know the details of the Commission’s findings or recommendations. Neither the report nor summaries have been widely disseminated. The report is no longer available through a government website and can instead only be accessed through a University of Seattle site – where one of the former TJRC commissioners, Ron Slye, is a law professor.

The report has neither been discussed in parliament nor its recommendations implemented. Instead, the only substantial discussion that the country’s MPs have deemed to hold was back in December 2013 when they took advantage of the Act’s reference to the Minister of Justice (an office which, with the 2010 constitution, no longer exists) to amend the TJRC Act. However, MPs opted to not only replace all references in the TJRC Act to the Minister of Justice with the Attorney General, but also removed the requirement that implementation commence within six months and added a clause that required the TJRC report to be considered by the National Assembly.

Five and half years later, few know the details of the Commission’s findings or recommendations. Neither the report nor summaries have been widely disseminated. The report is no longer available through a government website and can instead only be accessed through a University of Seattle site – where one of the former TJRC commissioners, Ron Slye, is a law professor.

This record of non-implementation is hardly surprising. Kenya has a long history of commissions of inquiry that have looked into everything from “ethnic clashes” to irregular land allocations and grand corruption scandals to devil worship. However, all share one common theme: the reports are generally only read by academics and activists and their recommendations have been ignored by successive governments.

The fate of the TJRC report is rendered even less surprising when one considers the credibility crisis that surrounded the chairman, the late Bethuel Kiplagat; the limited coverage given to its public hearings by the country’s media; and controversy that surrounded the report’s submission. The latter due to a dissenting opinion issued by the TJRC’s three international commissioners who claimed that the Office of the President had pressurised the Commission to delete sections of the land chapter, which had adversely mentioned President Uhuru Kenyatta’s father and Kenya’s first president, Jomo Kenyatta.

That the TJRC’s report would gather dust in a government archive was thus perhaps predictable, but does it matter? Is it ok to forget the report and its recommendations? Is it perhaps even a good thing to forget and “move on” in the interests of peace and unity?

I believe that the TJRC report should be discussed. This is a belief drawn from close research of the Commission’s work, which – together with an analysis of the International Criminal Court’s intervention – provides the focus for a new book on Performances of Injustice: The Politics of Truth, Justice and Reconciliation in Kenya.

While many Kenyans were sceptical of the TJRC from the outset, many others opted to engage with the process. In fact, the Commission collected more statements than any other truth commission to date – over 40,000 in total – alongside 1,500 memoranda. It also held public, women’s and closed-door hearings in 35 locations around the country, adversely mentioned person (AMP) hearings in Nairobi and in western Kenya, and a series of thematic hearings.

Moreover, while many who spoke before the Commission valued the opportunity to speak and be heard, most engaged in the hope that further action would be taken. As one woman explained after a women’s hearing in Nakuru, she was glad that she had spoken as now the Commission would “come in and help”. This call for help and for justice was repeated everywhere that the Commission travelled as victims called for truth and acknowledgement, but also for reparations and prosecutions.

The Commission collected more statements than any other Truth Commission to date – over 40,000 in total – alongside 1,500 memoranda. It also held public, women’s and closed-door hearings in 35 locations around the country, adversely mentioned person-hearings in Nairobi and in western Kenya, and a series of thematic hearings.

Those who gave testimony spoke of the past, but also of how the past continues to impact upon the present and likely futures. As victims of state torture recalled, for example, how they lost their jobs and were unable to send their children to good schools; while those displaced during election-related violence spoke of the loss of breadwinners and livelihoods and of the daily challenges of trying to feed, house, and educate their families. The past clearly also lived on in victims’ testimonies through fears of repetition and, for far too many, the ongoing injustice of a lack of redress, the ongoing nature of many issues discussed, and new injustices suffered.

Given this reality, to ignore the engagement and pleas of so many would be a further injustice to those who participated. It is also to ignore the reasons why a TJRC was established in the first place, namely, to address a history of past injustice, improve state-society and inter-ethnic relations, and guard against future violence.

This links to another reason why it is important to return to the Commission’s report and to its recommendations and findings: namely, to try and counter Kenya’s embedded culture of impunity.

This was certainly one of the TJRC’s aims. However, if the Commission’s findings and recommendations are neglected then the process will actually have served to advance, rather than counter, a culture of impunity.

This reality was evident during my attendance at the TJRC’s Adversely Mentioned Persons hearings when I heard little that was new; I heard not a single admission of personal responsibility or guilt. Instead, testimonies were characterised by five discursive strands of responsibility denied: denial through a transfer of responsibility, denial through a questioning of sources, denial through amnesia, denial through a reinterpretation of events and an assertion of victimhood, and denial that events constituted a wrongdoing.

However, while AMPs denied responsibility, none denied that injustices had occurred. As a result, while the hearings provided little clarity on how and why a series of reported events may have occurred, they did recognise past injustice. In this way, they provided a public enactment of impunity: Kenya’s history was replete with injustice, but AMPs were unwilling to shoulder any responsibility for it.

During my attendance at the TJRC’s Adversely Mentioned Persons hearings…I heard little that was new; I heard not a single admission of personal responsibility or guilt. Instead, testimonies were characterised by…denial…

These realities are connected to the substance of the final report, which offers a wide range of recommendations. These include a list of individuals who should be further investigated, prosecuted, or face lustration (or a ban on holding public office); recommendations on institutional and constitutional reforms; and a detailed reparations framework. However, while these recommendations take up much of Volume 4, the bulk of the over 2,000-page report focuses on a thematic discussion of Kenya’s past. Admittedly, this account is of varied quality, but it still provides an important overview of Kenya’s history that is worth discussing and engaging with. In turn, the TJRC’s recommendations should – as required by the initial Act – either be implemented or clear reasons be given for any areas of non-implementation.

To say that we should return to the TJRC is thus not to suggest that the process or report are perfect. Far from it. The idea of holding hearings in public was largely lost for a variety of reasons: limited media and public engagement; the Commission suffered from an ongoing controversy around the chairman; the report is largely silent on key injustices, such as extra-judicial killings; the chapters vary massively in their quality; and the recommendations made, even if fully implemented, will not achieve the Commission’s lofty goals of truth, justice and reconciliation. Goals that require an ongoing political struggle, and substantive socio-economic and political change, which a body like the Truth Commission can recommend, and sometimes contribute to, but should never be expected to achieve.

To say that we should return to the TJRC is thus not to suggest that the process or report are perfect. Far from it. The idea of holding hearings in public was largely lost for a variety of reasons…the report is largely silent on key injustices, such as extra-judicial killings…even if fully implemented, [the Report] will not achieve the Commission’s lofty goals of truth, justice and reconciliation. Goals that require an ongoing political struggle, and substantive socio-economic and political change…

Yet, this reality of truth, justice and reconciliation as an ongoing struggle does not take away from the further injustice that results from ignoring the Commission’s report. This includes the failure to really listen to those who spoke; to ensure that the impunity performed is undermined by action; to learn about, and acknowledge, Kenya’s troubled past; and the need to discuss and implement the report’s recommendations.

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Gabrielle Lynch
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Associate Professor of Comparative Politics, University of Warwick. Research focus on Kenyan politics.

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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.

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SAPs – Season Two: Why Kenyans Fear Another IMF Loan
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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.

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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.

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

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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.

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Deconstructing the Whiteness of Christ
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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.

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