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Crony Capitalism and State Capture 3: Uhuru Kenyatta’s Manufacturing Agenda

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Uhuru Kenyatta’s manufacturing agenda argues DAVID NDII is a protectionism policy regime that puts tariff and other barriers on imports that compete with domestically produced goods. But as he illustrates, a protected competitive industry is a contradiction.

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Crony Capitalism and State Capture 3: Uhuru Kenyatta’s Manufacturing Agenda
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Ever since it was pronounced as one of his “Big Four” legacy initiatives, Uhuru Kenyatta’s manufacturing agenda has been blurry but an extensive television interview given two weeks ago was very revealing; in a nutshell, it is protectionism. “We want to ensure that we protect our industries, work with our industries to ensure that they are competitive but we also encourage them not to take advantage and extort Kenyans by overpricing their products.”

Protectionism is a policy regime that puts tariff and other barriers on imports that compete with domestically produced goods. A simple definition of competitiveness is a company, industry or country that is able to produce goods and services that are comparable in price and quality with those traded internationally. Competitiveness is benchmarked against internationally traded goods and services. But the purpose of protecting domestic industries is to shield them from competition. Once they are shielded from competition, they do not need to be competitive.

Ever since it was pronounced as one of his “Big Four” legacy initiatives, Uhuru Kenyatta’s manufacturing agenda has been blurry but an extensive television interview given two weeks ago was very revealing; in a nutshell, it is protectionism.

We have a problem. A protected competitive industry is a contradiction in terms. Tea and sugar, two industries that have featured in this column on a number of occasions, provide a perfect case study.

As an export-oriented industry, the tea industry has to be globally competitive to survive. There is little the Kenyan government could do to help the industry if it was not able to produce quality tea at a price that its international customers are willing to pay. Consequently, there is no need to protect the local market from imported tea. Even though imported tea brands are available in supermarkets, they do not cause owners of domestic brands sleepless nights.

Sugar is a different kettle of fish altogether. It is the country’s most protected industry. Kenyan sugar costs $800 per tonne ex-factory, against a global price of $280. The only way Kenya’s sugar industry can stay in business is by being heavily protected. For the last twenty years or so, the country has sought and secured safeguards from the Common Market of Eastern and Southern Africa (COMESA) so that the country can restructure the industry, to no avail.

Why is Kenya’s tea globally competitive and sugar the complete opposite? Competitiveness is closely related to, and in fact, derives from productivity. Kenya has the highest tea farm productivity in the world, at about 4,507 kilograms of green leaf per acre, closely followed by Sri Lanka at 4,440. Unsurprisingly, Kenya and Sri Lanka are the leading tea exporters, each accounting for between 20 and 23 per cent of the world market. By contrast, of the COMESA trading partners, Kenya has the lowest sugar cane yields (see chart).

The only way Kenya’s sugar industry can stay in business is by being heavily protected. For the last twenty years or so, the country has sought and secured safeguards from the Common Market of Eastern and Southern Africa (COMESA) so that the country can restructure the industry, to no avail.

But the sugar cane yields are only part of the low productivity story. Kenya’s sugar cane also has less sugar content, and the state-owned factories are less efficient, i.e. they achieve lower extraction rates than those of the trading partners—low cane yields, poor quality cane, inefficient factories. To keep this industry alive, it is protected by a 100 per cent import tariff, or $460 per tonne, whichever is higher. At the price of $280 a tonne, the applicable tariff is $460, which is an import duty of 164 per cent.

Why are the sugar cane yields so low? We have the wrong model of sugar industry. Sugar cane is a capital intensive crop, that is suited to large-scale integrated farm and factory operations. Kwale International Sugar, which revived the failed Ramisi Sugar, reports obtaining 60 tonnes a hectare using a “state of the art subsurface irrigation system”. Smallholder farmers do not have the capital or knowhow to do this, and it probably would not make sense to invest in such systems on a small scale. Moreover, once the cane is planted, it requires very little labour until harvest time.

Tea, on the other hand, is a labour-intensive crop. It needs to be picked and tended meticulously by hand throughout the year. Smallholder tea farmers work in their fields every day. The economic law of comparative advantage predicts that a country’s competitiveness will reflect its factor endowments, that is, capital-rich countries will be competitive in capital intensive goods, and labour-rich countries in labour-intensive goods. Because we have relatively more labour than capital, the global competitiveness of our tea vis-à-vis the uncompetitiveness of our sugar reflects our comparative advantage.

Why are the sugar cane yields so low? We have the wrong model of sugar industry. Sugar cane is a capital intensive crop, that is suited to large-scale integrated farm and factory operations. Kwale International Sugar, which revived the failed Ramisi Sugar, reports obtaining 60 tonnes a hectare using a “state of the art subsurface irrigation system”.

It is instructive to compare sugar with coffee. Since the early 90s, Kenya has failed to reform the coffee industry to keep up with changes in the global market. Production and exports have plummeted from a peak 140,000 tonnes in the late 80s to just over 40,000 tonnes today. There is nothing that the Government can do to protect the coffee industry. It simply has to shape up or ship out. But the most important thing is that the resources that were producing coffee—land, capital and labour—have been redeployed to other products including macadamia nuts, avocado, dairy, bananas, real estate and so on.

The same would have happened in western Kenya if the sugar industry was not so heavily protected. The long-suffering smallholder sugar cane farmers would have long since switched to other products of which they would be competitive producers such as cereals, livestock, horticulture, oil crops and so on. Instead, protectionism misallocates 440,000 acres of some of Kenya’s best rain-fed agricultural land—a very scarce resource—to a crop that generates a mere $400 per acre, compared with tea, which generates $2,200 an acre.

Protectionists often bolster their case by observing, correctly, that the East Asian Tigers also protected their infant industries during the early stages. The best documented, and arguably also the most insightful case, is that of South Korea. South Korea’s industrialisation took place in two phases spanning two decades, 1955-65 and 1965-75. During the first phase, it pursued both import substitution and export promotion simultaneously, but with a heavy bias towards import substitution. By the early 60s it had run into the chronic balance of payments crises that have plagued all countries pursuing import substitution industrialisation through protectionism— including Ethiopia currently. The government realised that import substitution had hit a dead end, and changed course, as Larry Westphal and Kwan Suk Kim, of the World Bank and Korea Development Institute respectively, explain in their 1977 study, Industrial Policy and Development in Korea:

Policymakers came firmly to accept that rapid economic development depended upon an export-oriented industrialisation strategy. This view was predicated on the understanding that Korea’s natural resource base was very poor and on the realisation that further opportunities for import substitution were only to be found in intermediate and durable goods, where the limited domestic market could not justify establishing plants large enough to realize technological economies of scale.

The Koreans then embarked on trade liberalisation, devaluation and other policy reforms that the rest of the developing world was to adopt two decades later, and that we now call structural adjustment. These reforms were implemented between 1961 and 1964. Export-led manufacturing took off. By 1975, manufactured goods contributed a third of the GDP, and 75 per cent of exports.

As noted, Korea’s industrial policy pursued both import substitution and export promotion simultaneously from the outset. The policy regime, referred to as the “export-import link,” pegged incentives directly to export earnings. Like most other countries at the time, Korea had a controlled fixed exchange rate that maintained an overvalued currency, as well as a rigid import control regime. Exporting firms were allowed to retain a portion of their foreign exchange earnings, which they could sell at a premium, or to import restricted consumer goods for sale in the domestic market. Another element was generous ‘wastage allowances” on imported raw materials. To illustrate, if garment exporters were allowed 15 per cent wastage on fabrics imported to make clothes for export, and the actual wastage was 5 per cent, this was the same as allowing them to sell 10 per cent of their products in the domestic market.

The effect of these incentives was to substantially offset the protection of the domestic market and to keep domestic-oriented producers on their toes. Other incentives included subsidised credit and discounted tariffs on utilities and railway transport, also pegged to export performance. As export manufacturing grew, the case for protecting the domestic market diminished, since Korean goods could compete both abroad and at home. The protection regime was progressively rolled back such that by the late 70s, South Korea was, by and large, an open economy.

Embarking on a protectionist industrial policy today raises a number of vexing issues. I will highlight three.

First, what is it in aid of? The stated objective is to increase the manufacturing share of GDP. I have heard a figure of 15 per cent of GDP by 2022 mentioned. The manufacturing share of GDP has actually been trending downwards lately—7.7 per cent in 2018, down from 10 per cent five years ago. How much can protecting domestic industry contribute? In 2018 we imported Sh.218 billion worth of finished consumer goods—excluding motor vehicles—accounting for 12 per cent of total imports, and 9 per cent of the value of domestic manufactured goods. If all these goods were to be manufactured locally, it would increase the manufacturing share of GDP from 7.7 to 8.5 per cent. But of course, whatever protectionist policies are envisaged will not constitute anywhere near total substitution and will at best have a negligible impact.

Tea, on the other hand, is a labour intensive crop. It needs to be picked and tended meticulously by hand throughout the year. Smallholder tea farmers work in their fields every day. The economic law of comparative advantage predicts that a country’s competitiveness will reflect its factor endowments, that is, capital-rich countries will be competitive in capital intensive goods, and labour-rich countries in labour intensive goods.

The most critical imperative that any industrial policy ought to address is jobs. We need millions of jobs. Kenya’s industry is capital intensive and not job-creating. A World Bank study from a decade ago showed that Kenya’s manufacturing sector was 50 per cent more capital intensive than China’s, and almost five times as capital intensive as India’s (see chart below). Although the data is old, the structure of the industry has not changed that much. This is of itself a legacy of an import substitution industrial policy which promoted the capital intensive goods that the country imported, as opposed to an export-oriented policy which would promote the industries that could utilise developing countries’ abundant labour.

Second, Kenya is a member of the East African Community (EAC), COMESA, and the new African Free Trade Area (AFTA) trading blocs, which agreements we have signed and ratified. Under the EAC in particular, Kenya is bound by a common external tariff (CET). Kenyan manufacturers are the biggest beneficiaries of these trading blocs. In 2018 Kenya exported goods worth Sh.90 billion ($1.9 billion) to EAC and COMESA, accounting for 30 per cent of total exports. We made imports of Sh.123 billion ($1.23 billion), thus running a surplus of Sh.67 billion ($670 million). Virtually all of Kenya’s exports to the region are manufactured goods. The country can ill afford to begin a trade war with the regional partners, who would only be too delighted to find reasons to lock Kenyan goods out of their markets. How is the government going to protect local industries without jeopardising regional integration?

Third, the case for protectionist import substitution regimes was predicated on the infant industry argument—protecting nascent industries until they were strong enough to compete. The problem arose because, like our sugar industry, and Pan Paper for that matter, there was no incentive to grow up, and the state lacked the political will to roll back the protection until economic crises compelled them. The industries that are now to be protected are not babies. What is the case for protecting grown-up industries, some of which are already dominant oligopolies in their sector? Until when will they be protected, and what new policy instruments are there to ensure that this protection regime will not go the route of the old one? Protecting mature incumbents translates to not just protection from competing imports, but also giving them more muscle to fight potential entrants into their markets. Essentially, it amounts to entrenching cartels, and Kenyatta’s statement—which makes reference to taking advantage, extortion and overpricing—demonstrates that Kenyatta is actually alive to this fact. Why is he contradicting himself? State capture.

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David Ndii is a leading Kenyan economist and public intellectual.

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Elections? What elections? Abiy is Counting on a Military Victory

Abiy Ahmed’s legitimacy hangs on conjuring up an improbable military victory in the total war he has declared on the people of Tigray.

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Elections? What elections? Abiy is Counting on a Military Victory
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Selected by the ruling party and later appointed by the Ethiopian parliament in 2018, Prime Minister Abiy Ahmed was expected to deliver the long hoped for post-EPRDF (Ethiopian People’s Revolutionary Democratic Front) era. For some of his domestic and international backers, the post-EPRDF era meant the ushering in of political democratization, further economic liberalization, and “post-ethnic” Ethiopian politics. He has failed to deliver on all three counts.

More than ever, Ethiopian politics is bitterly polarized along ethnic lines. Ethnic divisions have split the Ethiopian National Defence Forces (ENDF). Now, Ethiopia has two armies: the Tigrayan Defence Force (TDF) and the Ethiopian National Defence Force (ENDF). Nor is economic liberalization faring any better. In 2020, foreign direct investment (FDI) dropped significantly to US$2.4 billion from US$ 7.1 billion in 2016. Creditors are not more optimistic. The birr has become the worst performer among 20 African currencies following a slump of 11 per cent against the dollar.

After a decade of double-digit GDP growth, Ethiopia is now growing at only two per cent, an economic slowdown Kevin Daly describes as “the shine [having] come off the star in a big way”. Ethiopia’s democratization, which is the focus of this piece, has also stalled, as illustrated by the uncompetitive and non-participatory elections of 21 June 2021.

False start 

Ethiopia’s new leadership was widely expected to spearhead a democratic dispensation in which elections would be freely and fairly contested by all the major political forces in the country. The June 21 election was expected to be both participatory and competitive. It was neither and its outcome was predictable, if not preordained. As everyone expected, the ruling party won overwhelmingly, with some leftover seats going to other parties.

Against the hopes of many, Abiy Ahmed found ways to effectively exclude the real contenders with any chance of defeating the incumbent.

Liquidating the former ruling party and extending the term of office

The first step was to liquidate the former ruling party, the EPRDF, and place the new Prosperity Party in power. The Tigray People’s Liberation Front, one of the core parties forming the EPRDF and currently ruling Tigray, vehemently opposed the formation of the new party, and decided not to join it.

The second step was to postpone the much-anticipated 2020 elections on the pretext of the Covid-19 pandemic. The legality and legitimacy of this decision was fiercely contested, especially by opposition leaders from Oromia and Tigray. Inevitably, those opposition leaders from Oromia with a large following and constituency were jailed or placed under house arrest.  By opting to postpone the election and arresting opposition leaders, Abiy extended his own tenure by using a controversial constitutional interpretation.

Waging war

The third step was waging war on Tigray. The postponement of the election qualifies as one of the triggers of this war. The ruling party in Tigray rejected the postponement, asserting that regular elections are a necessary tool for the exercise of a people’s right to self-determination. Accordingly, Tigray conducted its regional election on 4 September 2020. The election was considered illegal by the incumbent and the federal government cut ties with the Tigray government and suspended the transfer of the regional budget, a move viewed by Tigray as a declaration of war. On 4 November 2020, Tigray was invaded by the combined Ethiopian, Eritrean and Amhara forces.

Subverting the will of the people

These early steps to subvert the will of the people call into question the incumbent’s commitment to a fair and democratic process. Providing a detailed contextual analysis on the state of Ethiopia before the polls, US Senator Bob Menendez and Representative Gregory Meeks said:

Against this grim backdrop, few believe Ethiopia’s upcoming national elections stand a real chance of being free or fair. . . . Prime Minister Abiy and his ruling Prosperity Party have made it clear they intend to continue working from the same authoritarian playbook as their predecessors, squandering Ethiopians’ hopes for the country’s first-ever genuinely democratic elections.

The EU withdrew its earlier decision to send election observers. Though it fell short of denouncing the election, the US government in its statement provided precise reasons why the election would not meet the requisite democratic standards:

The United States is gravely concerned about the environment under which these upcoming elections are to be held. The detention of opposition politicians, harassment of independent media, partisan activities by local and regional governments, and the many inter-ethnic and inter-communal conflicts across Ethiopia are obstacles to a free and fair electoral process and whether Ethiopians would perceive them as credible. In addition, the exclusion of large segments of the electorate from this contest due to security issues and internal displacement is particularly troubling.

The US statement added, “these elections [are conducted] at a time when so many Ethiopians are suffering and dying from violence and acute food insecurity caused by conflict”.

Elections without credibility

The credibility of elections is assessed based on international standards such as those set by the United Nations. Unfortunately, Ethiopia’s recent election does not meet the minimum international threshold of being free, fair, participatory and competitive.

First, this election was conducted during a period of violent conflict that effectively denied the citizens their fundamental democratic rights and the opportunity to participate on an equal basis. Over 100 constituencies in Tigray, Somali, Harari, Afar, and Benishangul-Gumuz, representing well over 18 per cent of parliamentary seats, did not vote. For close to 4 million internally displaced persons (IDPs), this election was a luxury. In Tigray, constituencies in Oromia, Amhara (Oromo special zone and parts of north Shewa), and the border areas of the Amhara, Oromia, Somali and Afar regions face violent conflict. With 7 per cent and 1.7 per cent of the total constituency in Tigray and Benishangul-Gumuz respectively, wars for survival still rage. In parts of Oromia, the region with the largest population and 33 per cent of the total constituency, armed conflict continues. Furthermore, the election was conducted under conditions of pervasive discrimination and profiling based on ethnicity that targeted Tigrayans, Oromos and Gumuz.

The postponement of the election qualifies as one of the triggers of this war.

Second, at the subnational levels and in some urban areas such as Amhara regional state, a few “opposition” parties did manage to win seats. However, in terms of presenting alternative policy options for Ethiopia, these parties failed, as their electoral manifestos were just versions of that of the ruling party. In addition, such results at the subnational level are anomalies, not trends. The trend is the incumbent attempting to re-establish a durable authoritarian regime, this time with a centralizing vision at its core that is diametrically opposed to the federalist vision set out in the current constitution.

Third, this election – like the previous one – was marred by claims of killings, assault, detention, intimidation and harassment of opposition candidates and supporters. In addition, the cancellation of political parties’ registration, litigation, anomalies in voter and candidate registrations, and ballot printing problems have damaged the credibility of the electoral bodies. Moreover, the deferral in holding referenda on requests for state formation in the Southern Nations, Nationalities and Peoples’ Region has stoked discontent. And nor did the media environment allow competitive elections; local media was rigorously censured, and journalists were killed, arrested, and intimidated. International media outlets were not spared either, with the permits of many foreign correspondents cancelled.

It thus came as no surprise when five parties criticised the ruling Prosperity Party for allegedly influencing the electoral process to favour its candidates. The National Movement of Amhara, Ethiopian Social Democratic Party, Afar People’s Party, Balderas for Genuine Democracy and Ethiopian Citizens for Social Justice complained of heavy security and cited a failure to meet minimum standards.

Legitimacy hanging on military victory

Abiy has clipped the wings of democracy. A day after the country went to the polls, and as Addis Ababa enjoyed the fanfare surrounding its “first democratic election”, the Ethiopian army continued its indiscriminate aerial bombardment of Tigray.

Abiy has plunged the country into a civil war that is now spreading from Tigray to other parts of Ethiopia. The war has been manipulated with a view to bolstering Abiy’s popularity and serves as the glue holding his internally fractured support base together. Military victory in Tigray has replaced an electoral win as the litmus test for the legitimacy of his rule.

Yet following the defeat and withdrawal of the Ethiopian army from Tigray, Abiy’s popular base is fast eroding. Now his legitimacy hangs on conjuring up an improbable military victory in the total war he has declared on the people of Tigray. The recent military advances made by the Tigray Defence Forces show that it is not just Abiy who is losing the unwinnable war in Tigray. Ethiopia is also losing its army.

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The Second Sex: Women’s Liberation and Media in Post-Independence Tanzania

Fatma Alloo (of the Tanzania Media Women’s Association) on how women used the media and cultural spaces to organize and challenge gender norms.

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The Second Sex: Women’s Liberation and Media in Post-Independence Tanzania
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Fatma Alloo’s activism grew in the decades following Tanzania’s independence in 1961, when she worked as a journalist under Julius Nyerere, or Mwalimu, the first president of Tanzania; co-founded the feminist advocacy group Tanzania Media Women’s Association (TAMWA) in 1987; and co-founded the vibrant Zanzibar International Film Festival (ZIFF) in 1997. Here, she unpacks how women used the media and cultural spaces for social mobilization and shifting patriarchal norms, particularly in periods where they were marginalized from state power. In the “Reclaiming Africa’s Early Post-Independence History” series, and the Post-Colonialisms Today project more broadly, we’re learning from African activists and policy makers from the early post-independence era, to understand how their experience of a unique period of economic, societal, cultural, and regional transformation can aid us in the present day, when questions of decolonization and liberation are more pressing than ever.

Heba M. Khalil: You have lived through so many changes in so many different political systems, from the Sultanate, colonialism, the Nyerere years; you’ve seen the dawning of liberalism and neoliberalism.

Fatma Alloo: As you say, I’ve been through a lot of “-isms” in Tanzania. The other day I was reflecting that although I grew up under colonialism in Zanzibar, as a child I was not aware that it was colonialism, I was not aware there was a Sultanate. We used to run and wave to the Sultan because he was the only one with a shiny, red car and we used to love that car, a red Rolls Royce. But as I reflect now, I realized that these were the years Mwalimu was struggling for independence in Tanganyika.

Then, of course, as you grow, life takes you on a journey, and I ended up at the University of Dar es Salaam in the 1970s, where the Dar es Salaam debates were taking place. Tanzania hosted liberation movements, and that is where socialism, communism, Marxism, Leninism, Trotskyism, Maoism, and feminism were being debated, and that’s where my consciousness grew, because I was in the midst of it. As the progressive, international community at the university was ideologically fired up by Mwalimu’s socialism, I began to understand that even my feminism had come from the West. Nobody had taught me that women lived feminism on the continent. This realization came when, as a student, I participated in an adult literacy program launched by Mwalimu. As students, we were sent to a rural and urban factory to teach literacy, but I emerged from those communities having been taught instead!

Heba M. Khalil: What do you think the role of women was in Tanzania in particular, but also on the continent, in defining the parameters, the choices and the imagination of post-independence Africa?

Fatma Alloo: Women had always been part and parcel of the independence movement in Africa. In Southern Africa and Tanzania they stood side-by-side with the men to fight, so they were very much part of it. The unique thing about Tanzania was that Mwalimu established a party called the Tanganyika African National Union (TANU), which had five wings with women being one of them. The others were youth, peasants, and workers, so as to mobilize society as a whole.

Post-independence is another story, one that very often has been narrated by men in power. There was a struggle for the visibility of women. I remember the debates in South Africa, where the African National Congress was arguing about the women’s wing wanting to discuss power relations. And there was resistance to this, the party leaders would argue first let’s just get independence, let’s not waste our time, women’s liberation will come later. It was a very bitter struggle, and of course after independence, women lost out quite a bit.

Heba M. Khalil: Why were post-independence power structures and ideologies defeated and replaced at some point by new ideologies of liberalism and, eventually, neoliberalism?

Fatma Alloo: The western media portrays Mwalimu as a failure. He has not failed, from my point of view. The whole issue of national unity is important. Tanzania has been a relatively peaceful country. Why? It did not happen by accident, it had to do with Mwalimu’s policies—he realized he had to deal with profound divisions, and he understood the role of education. Administratively, the nation had been inherited after decades of divide and rule policies. It was divided on racial and religious bases, as Tanzania is half Christian and half Muslim. We could have had a civil war, like in Lebanon, or a tribal-oriented conflict, like in Kenya or Libya. Mwalimu really understood this from the very beginning. I remember when we started TAMWA, when the women came together, we had no idea who belonged to what tribe. He was that successful.

We had free medicine, free education, but of course, all that went away with neoliberalism. My generation remembers this, and I think we have to make sure that the younger generation knows the history of the country, knows the literature that emerged from the continent. In my opinion, of all the contributions of Mwalimu, the most important was the peace and unity—amani, in Kiswahili.

Because Mwalimu was so successful, the West, especially Scandinavian countries, made him their darling. As you know, Scandinavian countries had not colonized Africa much, so people also trusted them and accepted their development aid. Very sadly, it did eat away at the success of Mwalimu with his people, and eventually made us dependent on that development aid, which continues to date. Without development aid we don’t seem to be able to move on anything. We have stopped relying on ourselves.

Heba M. Khalil: What was your experience of organizing during the rapid growth of the mass media sector in Tanzania?

Fatma Alloo: I was very active, first as a journalist in the 1980s and early 1990s, and it was extremely different. We were very influenced by Mwalimu’s ideology and ready to play our role to change the world. Mwalimu had refused to introduce television because, he argued at that time, we did not have our own images to portray, to empower our younger generations. He said if we introduce television the images shown will be of the West and the imperialist ideology will continue. In Zanzibar, however, we already had the oldest television on the continent, and it was in color. When Abeid Karume attained power in Zanzibar in 1964, after a bloody overthrow of the sultanate in power, the first thing he did was to introduce not only television, but community media, so every village in Zanzibar already had these images. But television didn’t come to Tanganyika until 1992 (Mwalimu stepped down in 1986), when it was introduced by a local businessman who established his own station. Until then the state had controlled the media, so history began to change as businesses were allowed to establish media.

I remember I was then in TAMWA and we had to encourage a lot of production of plays and other visuals, for which there was no market before. The radio had been powerful; when the peasants went to the countryside, they would take the radio and listen as they ploughed the land. So, the radio was the main tool that was used to mobilize society during Mwalimu’s era.

The press gave women journalists little chance to cover issues of importance to women. We were given health or children to cover as our issues. Before, Tanzania had one English paper, one Kiswahili, Uhuru, and one party paper. By 1986, there were 21 newspapers, and it became easier for us to really influence the press, and TAMWA began talking about issues like sexual harassment at work. But it was a double-edged sword, because the television stations recruited pretty girls to do the news reading, and the girls also wanted to be seen on television as it was a novelty. So, while we were expanding the conversation on the portrayal of women, here was television, where women were used as sex objects. The struggle continues, a luta continua.

Heba M. Khalil: How are movements trying to achieve change on the continent, particularly youth movements or younger generations, by utilizing media and cultural spaces?

Fatma Alloo: The youth need to develop tools of empowerment at an educational level and at an organizational level. Africa is a young continent, and our hope is the youth. Many youth are very active at a cultural level, they may not be in universities but at a cultural level they are extremely visible, in music, dance, and street theater.

At the moment, you see the pan-African dream has sort of lost the luster it had during independence. Even if you look at the literature of that time, it was a collective dream for Africa to unite—Bob Marley had a song “Africa Unite,” we used to dance to it and we used to really identify with it, and the literature—Franz Fanon, Ngũgĩ wa Thiong’o, Sembène Ousmane, Miriam Ba, Nawal al Saadawi—and also the films that came out. In fact, Egypt was the first country to produce amazing films; when we established the Zanzibar International Film Festival (ZIFF), in our first year we showed a film from Egypt, The Destiny by Youssef Chahine.

Zanzibar International Film Festival was born because we asked the question, “If we in Africa do not tell our stories, who will?” We ask that question particularly to train and stimulate the production of films on the continent, including in Kiswahili, because while West Africa has many films, East Africa lags behind. The festival has been in existence for 21 years. This part of the world has more than 120 million people who speak Kiswahili, so the market is there. We also encourage a lot of young producers and we encourage putting a camera in children’s hands, because from my own experience, children get so excited when they can create their own images. Twenty-one years later, these children are now adults, and they are the directors and the producers in this region. So, one has to play a role in impacting change and liberating consciousness on our vibrant and rich continent.

This article is part of the series “Reclaiming Africa’s Early Post-Independence History” from Post-Colonialisms Today (PCT), a research and advocacy project of activist-intellectuals on the continent working to recapture progressive thought and policies from post-independence Africa to address contemporary development challenges. Sign up for updates here.

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The State of Judicial Independence in Kenya: A Persistent Concern

Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such. So long as we may have an independent Judiciary, the great interests of the people will be safe.

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The State of Judicial Independence in Kenya: A Persistent Concern
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On Thursday 22 July 2021, Justice Aggrey Muchelule and Justice Said Juma Chitembwe were subjects of arbitrary search, intimidation, and interrogation by the Directorate of Criminal Investigations (DCI) on the basis of unfounded allegations of corruption.

The arrest, coming in the wake of constant and relentless attacks on the judiciary by the Executive and politicians, left a very sour taste in the mouths of many, bearing in mind that nothing was found to implicate the judges upon searching their respective chambers. Let it be clear that NOBODY is above the law  (nemo est supra legis)! Not even the President of the Republic, let alone the judges.

However, there are reasons why there are arguments for special procedures when arresting or dealing with criminal allegations against a sitting judge: the need to preserve the sanctity of the office and the need to manage perceptions with regard to the judicial office. The Supreme Court of India in the case of  Delhi Judicial Service Association v. State of Gujarat  AIR 1991 SC 2176, (1991) 4 SCC 406 recognized the fact that whereas judges were not above the law, certain guidelines had to be in place to guide the conduct of arrest  “in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated”. The concept of judicial independence, it must be recalled, recognizes not only realities but also perceptions that attach to the judicial office.

Chief Justice Howland in the Canadian Supreme Court case of  R v. Valente  [1985] 2 SCR 673 stated as follows with regards to perception as an ingredient of judicial independence: “it is most important that the judiciary be independent and be so perceived by the public. The judges must not have cause to fear that they will be prejudiced by their decisions or that the public would reasonably apprehend this to be the case.’ There is therefore the need to guard and jealously so, the image of the judiciary such as to manage how the judiciary is perceived by the public.

The unsubstantiated claims of corruption, and knee jerk searches without an iota of evidence does not bode well for the perception of the judiciary as a whole, and specifically, for the individual judges involved whose reputations are dragged through the mud, and needlessly so. There are germane reasons why the arrest of a judge should not be a trivial matter. The deference and respect to a judicial office informs the caution exercised in the conduct of arresting a judge. The judicial office fuses with the person of the holder and therefore it becomes necessary to err on the side of caution.

Indeed, Courts elsewhere have endeavoured to engage cautiously in this exercise of delicate funambulism. The Supreme Court of India in the case of  K. Veeraswami v Union of India and others,  1991 SCR (3) 189  found that a sitting judge can only be undertaken with permission from the Chief Justice or if it is the Chief Justice who is sought to be prosecuted, from the President.

Equally, the Court of Appeal of the Federal Republic of Nigeria in the case of Hon. Justice Hyeladzira Ajiya Nganjiwa V. Federal Republic of Nigeria  (2017) LPELR-43391(CA) held that a sitting judge cannot be prosecuted for offences that would have otherwise been a ground for removal from office.

It is important to note that the grounds for the removal of any judge from office are captured in article 168 of the Constitution of Kenya and they include a breach of the code of conduct and gross misconduct or misbehaviour.

Noteworthy it is to remark that the High Court of Kenya, in laying a principle of constitutional law in the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae)  [2019] eKLR ably stated that, “While the DCI is not precluded from investigating criminal misconduct of judges, there is a specific constitutional and legal framework for dealing with misconduct and/or removal of judges.

Consequently, cases of misconduct with a criminal element committed in the course of official judicial functions, or which are so inextricably connected with the office or status of a judge, shall be referred to the JSC in the first  instance.” The cumulative conclusion was that the gang-ho recklessness meted on Justices Muchelule and Chitembwe by an increasingly overzealous Department of Criminal Investigations (DCI) was an affront to judicial independence in its functional sense and also in terms of perception. It was a careless move.

If there is any evidence linking any of the judges to any conduct unbecoming, then out of constitutional edict and commonsensical pragmatism, the first point of call should be the Judicial Service Commission (JSC). The Office of the Chief Justice must also be subject of focus during this unfortunate debacle.

The statement emanating from that office in the aftermath of the unfortunate events of 22nd  July 2021, was at best timid and disjointed. The statement did not appear to reinforce the constitutional principle that judges cannot be arrested over matters that really ought to be addressed by the Judicial Service Commission. The office of the Chief Justice should have done better.

In summary, let it be proclaimed boldly that judicial independence is too precious a public good that it will be protected at all costs. Let it be lucid that incessant interference with judicial independence will not be tolerated from any quarters.

Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such! And in the words of John Rutledge, a scholar, jurist and the second Chief Justice of the United States of America; “So long as we may have an independent Judiciary, the great interests of the people will be safe.”

This article was initially published at THE PLATFORM For Law, Justice and Society Magazine

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