A recent study by the University of Nairobi’s School of Business says that Mombasa County has suffered economically due to the government’s decision to force importers to use the standard gauge railway (SGR) instead of road transport from the port of Mombasa. The study says that since the implementation of the government directive the county has lost Sh17.4 billion – equivalent to 8.4 per cent of its annual earnings – and 2,987 jobs.
The study further notes that towns along the Mombasa-Nairobi highway have also been adversely affected, as businesses that depended on trucking – such as small restaurants, lodgings and other services that depend on long-distance drivers – are having to shut down. (I will not go into the viability or non-viability of the SGR itself, as this topic has been ably tackled by others, including the economist David Ndii.)
What does this mean for the country’s future prospects? Well, for one, small towns along the Mombasa-Nairobi highway, such as Voi and Kibwezi, might experience depopulation, which will have negative economic and social consequences for them. (On the other hand, stops along the SGR route may also experience a boom, but that is something we can only speculate about at this stage.) It may also mean that inland dry ports and cargo terminals that are near Nairobi will further reinforce the position of the capital city and its environs as the nerve centre of economic activity – a phenomenon known as “urban primacy” – which does not augur well for devolution and balanced economic development.
The six-lane Nairobi-Mombasa highway envisioned by the government may also not solve these problems because if importers are still forced to use the SGR, the towns along its route will not benefit substantially because it is trucks, and not private motor vehicles, that usually drive small-scale trade in these towns. (It also seems counterproductive to build a superhighway along the same route as the SGR; if the government’s intention was to promote railway use, why build a bigger road alongside it?)
Urban primacy – the concentration of people, capital, revenue and industrial production in one city – is common in countries that are in the early stages of urban development. In most so-called developing countries, the capital city is typically where people and economic activities are concentrated. Some countries, like India, have commercial hubs like the port city of Mumbai that are not capital cities but that do generate a disproportionately large amount of the country’s GDP, but these are usually the exception rather than the rule.
However, “primate cities” can be bad for the national economy as a whole because they create imbalances in the distribution of resources and populations that can lead to uneven development and political tensions. Kenyans’ clamour for devolution was a response to the fact that the capital Nairobi and selected agriculturally productive regions benefitted the most from the country’s public resources while cities, towns and other regions in the rest of the country did not.
Even Mombasa, a city with a long history going back centuries, and a natural deep-water harbour, has been unable to compete with Nairobi when it comes to public investments. This explains why, despite the city being at least a thousand years old, Mombasa’s population has only grown to about one million, about a fifth of Nairobi’s population. Yet until about a century ago, Nairobi did not even exist; it is an “accidental city” that grew rapidly due to a variety of factors, including being designated the capital of Kenya.
Devolution was expected to change all that, but as the government’s policy on SGR cargo has shown, national governments can still undermine the economy of a region by placing or diverting resources elsewhere.
Little town blues
Unlike many Kenyans who have a rosy image of an idyllic rural or small-town life, with birds chirping, cows mooing and fresh air wafting in through the windows, and who believe that big cities are bad and full of vices, I am a die-hard urbanist who believes that the future lies in cities. Living in small-town Malindi has intensified my belief, not only because I do not get to enjoy the pleasures of urban living, like cinemas, street lighting and good restaurants, but also because I see a clear correlation between economic stagnation and an undiversified economy.
Malindi has depended largely on tourism, which is sporadic and dwindling. Lack of investment in this town has ensured that it does not attract people with a variety of skills. There is no university or large industry here that brings in a wide range of professionals and skilled labour. So the town has remained a backwater with nothing much happening and which mainly attracts sex tourists.
Devolution was expected to change all that, but as the government’s policy on SGR cargo has shown, national governments can still undermine the economy of a region by placing or diverting resources elsewhere.
Downtown Malindi has resembled a cattle market for decades – the chaos of boda bodas, the lack of pavements and street lighting and zero urban planning have made the experience of going to the central business district extremely nerve-wracking. Malindi is what happens to urban areas when they are not planned, when there is little respect for the citizens inhabiting them, and when there is little incentive to make them more attractive and environmentally sustainable.
Malindi dulls the senses of the locals, and makes them cynical. They have come to believe that Malindi is – and will remain – a town with poor infrastructure, a crumbling paradise for them and their grandchildren. Those who manage to escape the town never come back. Promises of infrastructure development usually do not materialise, even with devolution. The lack of opportunities and amenities in this seaside town has also ensured that Malindi remains an economically and socially divided city with a small group of wealthy foreigners, a very large majority of poor people, and a tiny middle class.
There are many who believe that this is the nature of urbanisation – that cities and towns cannot be planned and that they grow spontaneously and haphazardly and quite often accidentally, and so urbanisation is a process that should be allowed to evolve naturally. While this may be true – most cities start out as small, disorganised villages – urban planning and management are what makes cities liveable. Imagine a city with no sewerage system, no public park, no bus stop, no paved roads, no street lighting and no public services. Would it even be worth living in such a city? What would be the point?
In the early 1990s especially, when a wave of liberalisation and privatisation was sweeping the world, United Nations- and World Bank-types advocated for market forces to determine the provision of basic services such as water. It was assumed that the private sector would step in when governments didn’t – or couldn’t – provide basic services and that this would lead to greater efficiency. The withdrawal of the state from service provision – a conditionality of the IMF-World Bank structural adjustment programmes (SAPs) – led to immense hardship in poor countries, especially in the areas of health and education. Urban decay became the norm as services collapsed or became unaffordable.
However, these believers in the free market forgot that there are some things that even the private sector cannot be trusted to handle well, such as deciding which sections of a city should be allocated to public parks and whether the city should have a sewerage system. On the contrary, given the profit motive of the private sector, it is more likely than not to view a piece of idle land as real estate that can make a profit rather than a space that should be reserved and preserved for the public good. Which explains why nearly all public parks in Nairobi have been grabbed by private developers and why the art deco-style bungalows in Nairobi’s Parklands area have almost all been demolished to pave way for ugly apartment blocks. No one tried to save these parks and houses by declaring them as part of Nairobi’s heritage. On the contrary, the authorities and powerful individuals colluded in their destruction.
The difference between a liveable city and one which is unliveable lies in how it views its citizens, its heritage and its environment. Planning is an essential part of this process. Urbanisation without good urban planning is simply urban growth.
Cities and socio-economic development
Cities are the key to economic and social development. All over the developing world, indicators for health and education are better in urban than in rural areas, and Kenya is no exception. Kenyan urban populations tend to be healthier, more literate and wealthier than their rural counterparts. Agglomeration benefits and economies of scale brought about by populations concentrated in one area also make cities economically efficient.
The 2009 Kenya census shows that nearly one-third of the country’s population is now urban, but urbanisation levels are still way below those of other African countries. In fact, along with Burundi, Rwanda and Uganda, Kenya has among the lowest urbanisation levels in the world. This has implications for the country’s economic prospects.
Even though urbanisation is shifting the locus of poverty to cities and to the informal settlements (slums) within them, rural poverty still remains a problem. While it is easier to ascertain the role of the formal economy in national development, the role of the informal urban economy is not so clear, but is nonetheless significant. Studies show that African cities are characterised by informality, both in housing and in economic activity. The informal economy accounts for as much as 40 per cent of GDP in African countries, and accounts for more than 60 per cent of urban employment in Africa. This “underground” or “invisible” economy is what keeps cities functioning, and should not be underestimated. It is what pushes rural folk to cities and quite often keeps them there for generations.
The difference between a liveable city and one which is unliveable is how it views its citizens, its heritage and its environment. Planning is an essential part of this process. Urbanisation without good urban planning is simply urban growth.
This does not mean that rural development and agriculture should be neglected. The World Bank’s Commission on Growth and Development makes a clear link between agricultural productivity and urbanisation; it emphasises that improved agricultural productivity complements, rather than hinders, urban growth. In fact, many towns in Kenya, such as Nakuru and Eldoret, grew because of agriculture. These farming towns have an agricultural base that sustains them and that creates other economic opportunities for people living in them.
I would, therefore, argue that Kenya remains poor because present and past governments have neglected the country’s urban areas, and failed to see the link between sustainable urbanisation, sound urban planning and economic development. The directive on SGR cargo is a clear example of this blindness.
Cities and devolution
The 1963 Local Government Act created 175 local authorities in Kenya that were financed partly by their own revenues. These local authorities were abolished under the new constitution. As required by Article 184 of the constitution, national legislation should provide for the governance and management of urban areas. The Urban Areas and Cities Act (Revised 2015 edition) does provide for a system of city and municipal boards and town committees that are charged with the task of adopting urban policies and strategies, including on service delivery and land use.
However, the population threshold set out by the Act is too high. The Act defines a city as one that has a population of more than 500,000, and currently only two cities (Nairobi and Mombasa) have attained this population level. It defines a town as one that has a population of between 70,000 and 249,000, which places only Kisumu, Nakuru, Eldoret and Kehancha (Migori County) in this category.
When it comes to declaring a territory a city, size should not matter. Geneva, for example, has a population of just 200,000 yet it is still considered a city and Switzerland’s capital Bern has a population of just 130,000. Yet these cities enjoy all the amenities of urban life.
The 2017 Amendment Bill seeks to reclassify urban areas as those that have populations of at least 50,000, which could see the creation of a lot more municipal boards across the country. However, the criteria for the creation of these boards are rather restrictive, and could serve as a deterrent, especially in poor and largely rural counties.
I would, therefore, argue that Kenya remains poor because the present and past governments have neglected the country’s urban areas, and failed to see the link between sustainable urbanisation, sound urban planning and economic development. The directive on SGR cargo is a clear example of this blindness.
One of the conditions for the creation of a city or municipal board is that the city or town must have the capacity to generate sufficient revenue to sustain its operations. This is difficult for many of the poorer counties that rely on the national government to carry out operations, including the building of roads that are not part of the national highway network. Another condition is to have the capacity to effectively and efficiently deliver services, which was a tall order even back when cities and towns in Kenya were managed by city councils and municipalities. Public-private partnerships in service delivery could be an option, but these options are likely to remain unaffordable for the majority.
One of the pitfalls of devolution is that urban areas may suffer under a system where devolved funds are used to cater mostly for rural populations in the counties, rather than to the needs of urban dwellers. While this is understandable given the marginalisation of several regions under the previous centralised system, neglecting urban areas may come to haunt counties in the future.
But what happened to Mombasa was completely avoidable. To deliberately undermine an economic activity that employed thousands of people is nothing but economic sabotage on the part of the central government. This decision is likely to impact Mombasa’s fortunes in profound ways.
I hope the city of Mombasa will not become the unfortunate casualty of a misguided government policy – based largely, I believe, on the realisation that SGR was a costly project that will most likely not pay for itself – that could have long-term and far-reaching effects not just on Mombasa but on the coastal region as a whole.
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Elections? What elections? Abiy is Counting on a Military Victory
Abiy Ahmed’s legitimacy hangs on conjuring up an improbable military victory in the total war he has declared on the people of Tigray.
Selected by the ruling party and later appointed by the Ethiopian parliament in 2018, Prime Minister Abiy Ahmed was expected to deliver the long hoped for post-EPRDF (Ethiopian People’s Revolutionary Democratic Front) era. For some of his domestic and international backers, the post-EPRDF era meant the ushering in of political democratization, further economic liberalization, and “post-ethnic” Ethiopian politics. He has failed to deliver on all three counts.
More than ever, Ethiopian politics is bitterly polarized along ethnic lines. Ethnic divisions have split the Ethiopian National Defence Forces (ENDF). Now, Ethiopia has two armies: the Tigrayan Defence Force (TDF) and the Ethiopian National Defence Force (ENDF). Nor is economic liberalization faring any better. In 2020, foreign direct investment (FDI) dropped significantly to US$2.4 billion from US$ 7.1 billion in 2016. Creditors are not more optimistic. The birr has become the worst performer among 20 African currencies following a slump of 11 per cent against the dollar.
After a decade of double-digit GDP growth, Ethiopia is now growing at only two per cent, an economic slowdown Kevin Daly describes as “the shine [having] come off the star in a big way”. Ethiopia’s democratization, which is the focus of this piece, has also stalled, as illustrated by the uncompetitive and non-participatory elections of 21 June 2021.
Ethiopia’s new leadership was widely expected to spearhead a democratic dispensation in which elections would be freely and fairly contested by all the major political forces in the country. The June 21 election was expected to be both participatory and competitive. It was neither and its outcome was predictable, if not preordained. As everyone expected, the ruling party won overwhelmingly, with some leftover seats going to other parties.
Against the hopes of many, Abiy Ahmed found ways to effectively exclude the real contenders with any chance of defeating the incumbent.
Liquidating the former ruling party and extending the term of office
The first step was to liquidate the former ruling party, the EPRDF, and place the new Prosperity Party in power. The Tigray People’s Liberation Front, one of the core parties forming the EPRDF and currently ruling Tigray, vehemently opposed the formation of the new party, and decided not to join it.
The second step was to postpone the much-anticipated 2020 elections on the pretext of the Covid-19 pandemic. The legality and legitimacy of this decision was fiercely contested, especially by opposition leaders from Oromia and Tigray. Inevitably, those opposition leaders from Oromia with a large following and constituency were jailed or placed under house arrest. By opting to postpone the election and arresting opposition leaders, Abiy extended his own tenure by using a controversial constitutional interpretation.
The third step was waging war on Tigray. The postponement of the election qualifies as one of the triggers of this war. The ruling party in Tigray rejected the postponement, asserting that regular elections are a necessary tool for the exercise of a people’s right to self-determination. Accordingly, Tigray conducted its regional election on 4 September 2020. The election was considered illegal by the incumbent and the federal government cut ties with the Tigray government and suspended the transfer of the regional budget, a move viewed by Tigray as a declaration of war. On 4 November 2020, Tigray was invaded by the combined Ethiopian, Eritrean and Amhara forces.
Subverting the will of the people
These early steps to subvert the will of the people call into question the incumbent’s commitment to a fair and democratic process. Providing a detailed contextual analysis on the state of Ethiopia before the polls, US Senator Bob Menendez and Representative Gregory Meeks said:
Against this grim backdrop, few believe Ethiopia’s upcoming national elections stand a real chance of being free or fair. . . . Prime Minister Abiy and his ruling Prosperity Party have made it clear they intend to continue working from the same authoritarian playbook as their predecessors, squandering Ethiopians’ hopes for the country’s first-ever genuinely democratic elections.
The EU withdrew its earlier decision to send election observers. Though it fell short of denouncing the election, the US government in its statement provided precise reasons why the election would not meet the requisite democratic standards:
The United States is gravely concerned about the environment under which these upcoming elections are to be held. The detention of opposition politicians, harassment of independent media, partisan activities by local and regional governments, and the many inter-ethnic and inter-communal conflicts across Ethiopia are obstacles to a free and fair electoral process and whether Ethiopians would perceive them as credible. In addition, the exclusion of large segments of the electorate from this contest due to security issues and internal displacement is particularly troubling.
The US statement added, “these elections [are conducted] at a time when so many Ethiopians are suffering and dying from violence and acute food insecurity caused by conflict”.
Elections without credibility
The credibility of elections is assessed based on international standards such as those set by the United Nations. Unfortunately, Ethiopia’s recent election does not meet the minimum international threshold of being free, fair, participatory and competitive.
First, this election was conducted during a period of violent conflict that effectively denied the citizens their fundamental democratic rights and the opportunity to participate on an equal basis. Over 100 constituencies in Tigray, Somali, Harari, Afar, and Benishangul-Gumuz, representing well over 18 per cent of parliamentary seats, did not vote. For close to 4 million internally displaced persons (IDPs), this election was a luxury. In Tigray, constituencies in Oromia, Amhara (Oromo special zone and parts of north Shewa), and the border areas of the Amhara, Oromia, Somali and Afar regions face violent conflict. With 7 per cent and 1.7 per cent of the total constituency in Tigray and Benishangul-Gumuz respectively, wars for survival still rage. In parts of Oromia, the region with the largest population and 33 per cent of the total constituency, armed conflict continues. Furthermore, the election was conducted under conditions of pervasive discrimination and profiling based on ethnicity that targeted Tigrayans, Oromos and Gumuz.
The postponement of the election qualifies as one of the triggers of this war.
Second, at the subnational levels and in some urban areas such as Amhara regional state, a few “opposition” parties did manage to win seats. However, in terms of presenting alternative policy options for Ethiopia, these parties failed, as their electoral manifestos were just versions of that of the ruling party. In addition, such results at the subnational level are anomalies, not trends. The trend is the incumbent attempting to re-establish a durable authoritarian regime, this time with a centralizing vision at its core that is diametrically opposed to the federalist vision set out in the current constitution.
Third, this election – like the previous one – was marred by claims of killings, assault, detention, intimidation and harassment of opposition candidates and supporters. In addition, the cancellation of political parties’ registration, litigation, anomalies in voter and candidate registrations, and ballot printing problems have damaged the credibility of the electoral bodies. Moreover, the deferral in holding referenda on requests for state formation in the Southern Nations, Nationalities and Peoples’ Region has stoked discontent. And nor did the media environment allow competitive elections; local media was rigorously censured, and journalists were killed, arrested, and intimidated. International media outlets were not spared either, with the permits of many foreign correspondents cancelled.
It thus came as no surprise when five parties criticised the ruling Prosperity Party for allegedly influencing the electoral process to favour its candidates. The National Movement of Amhara, Ethiopian Social Democratic Party, Afar People’s Party, Balderas for Genuine Democracy and Ethiopian Citizens for Social Justice complained of heavy security and cited a failure to meet minimum standards.
Legitimacy hanging on military victory
Abiy has clipped the wings of democracy. A day after the country went to the polls, and as Addis Ababa enjoyed the fanfare surrounding its “first democratic election”, the Ethiopian army continued its indiscriminate aerial bombardment of Tigray.
Abiy has plunged the country into a civil war that is now spreading from Tigray to other parts of Ethiopia. The war has been manipulated with a view to bolstering Abiy’s popularity and serves as the glue holding his internally fractured support base together. Military victory in Tigray has replaced an electoral win as the litmus test for the legitimacy of his rule.
Yet following the defeat and withdrawal of the Ethiopian army from Tigray, Abiy’s popular base is fast eroding. Now his legitimacy hangs on conjuring up an improbable military victory in the total war he has declared on the people of Tigray. The recent military advances made by the Tigray Defence Forces show that it is not just Abiy who is losing the unwinnable war in Tigray. Ethiopia is also losing its army.
The Second Sex: Women’s Liberation and Media in Post-Independence Tanzania
Fatma Alloo (of the Tanzania Media Women’s Association) on how women used the media and cultural spaces to organize and challenge gender norms.
Fatma Alloo’s activism grew in the decades following Tanzania’s independence in 1961, when she worked as a journalist under Julius Nyerere, or Mwalimu, the first president of Tanzania; co-founded the feminist advocacy group Tanzania Media Women’s Association (TAMWA) in 1987; and co-founded the vibrant Zanzibar International Film Festival (ZIFF) in 1997. Here, she unpacks how women used the media and cultural spaces for social mobilization and shifting patriarchal norms, particularly in periods where they were marginalized from state power. In the “Reclaiming Africa’s Early Post-Independence History” series, and the Post-Colonialisms Today project more broadly, we’re learning from African activists and policy makers from the early post-independence era, to understand how their experience of a unique period of economic, societal, cultural, and regional transformation can aid us in the present day, when questions of decolonization and liberation are more pressing than ever.
Heba M. Khalil: You have lived through so many changes in so many different political systems, from the Sultanate, colonialism, the Nyerere years; you’ve seen the dawning of liberalism and neoliberalism.
Fatma Alloo: As you say, I’ve been through a lot of “-isms” in Tanzania. The other day I was reflecting that although I grew up under colonialism in Zanzibar, as a child I was not aware that it was colonialism, I was not aware there was a Sultanate. We used to run and wave to the Sultan because he was the only one with a shiny, red car and we used to love that car, a red Rolls Royce. But as I reflect now, I realized that these were the years Mwalimu was struggling for independence in Tanganyika.
Then, of course, as you grow, life takes you on a journey, and I ended up at the University of Dar es Salaam in the 1970s, where the Dar es Salaam debates were taking place. Tanzania hosted liberation movements, and that is where socialism, communism, Marxism, Leninism, Trotskyism, Maoism, and feminism were being debated, and that’s where my consciousness grew, because I was in the midst of it. As the progressive, international community at the university was ideologically fired up by Mwalimu’s socialism, I began to understand that even my feminism had come from the West. Nobody had taught me that women lived feminism on the continent. This realization came when, as a student, I participated in an adult literacy program launched by Mwalimu. As students, we were sent to a rural and urban factory to teach literacy, but I emerged from those communities having been taught instead!
Heba M. Khalil: What do you think the role of women was in Tanzania in particular, but also on the continent, in defining the parameters, the choices and the imagination of post-independence Africa?
Fatma Alloo: Women had always been part and parcel of the independence movement in Africa. In Southern Africa and Tanzania they stood side-by-side with the men to fight, so they were very much part of it. The unique thing about Tanzania was that Mwalimu established a party called the Tanganyika African National Union (TANU), which had five wings with women being one of them. The others were youth, peasants, and workers, so as to mobilize society as a whole.
Post-independence is another story, one that very often has been narrated by men in power. There was a struggle for the visibility of women. I remember the debates in South Africa, where the African National Congress was arguing about the women’s wing wanting to discuss power relations. And there was resistance to this, the party leaders would argue first let’s just get independence, let’s not waste our time, women’s liberation will come later. It was a very bitter struggle, and of course after independence, women lost out quite a bit.
Heba M. Khalil: Why were post-independence power structures and ideologies defeated and replaced at some point by new ideologies of liberalism and, eventually, neoliberalism?
Fatma Alloo: The western media portrays Mwalimu as a failure. He has not failed, from my point of view. The whole issue of national unity is important. Tanzania has been a relatively peaceful country. Why? It did not happen by accident, it had to do with Mwalimu’s policies—he realized he had to deal with profound divisions, and he understood the role of education. Administratively, the nation had been inherited after decades of divide and rule policies. It was divided on racial and religious bases, as Tanzania is half Christian and half Muslim. We could have had a civil war, like in Lebanon, or a tribal-oriented conflict, like in Kenya or Libya. Mwalimu really understood this from the very beginning. I remember when we started TAMWA, when the women came together, we had no idea who belonged to what tribe. He was that successful.
We had free medicine, free education, but of course, all that went away with neoliberalism. My generation remembers this, and I think we have to make sure that the younger generation knows the history of the country, knows the literature that emerged from the continent. In my opinion, of all the contributions of Mwalimu, the most important was the peace and unity—amani, in Kiswahili.
Because Mwalimu was so successful, the West, especially Scandinavian countries, made him their darling. As you know, Scandinavian countries had not colonized Africa much, so people also trusted them and accepted their development aid. Very sadly, it did eat away at the success of Mwalimu with his people, and eventually made us dependent on that development aid, which continues to date. Without development aid we don’t seem to be able to move on anything. We have stopped relying on ourselves.
Heba M. Khalil: What was your experience of organizing during the rapid growth of the mass media sector in Tanzania?
Fatma Alloo: I was very active, first as a journalist in the 1980s and early 1990s, and it was extremely different. We were very influenced by Mwalimu’s ideology and ready to play our role to change the world. Mwalimu had refused to introduce television because, he argued at that time, we did not have our own images to portray, to empower our younger generations. He said if we introduce television the images shown will be of the West and the imperialist ideology will continue. In Zanzibar, however, we already had the oldest television on the continent, and it was in color. When Abeid Karume attained power in Zanzibar in 1964, after a bloody overthrow of the sultanate in power, the first thing he did was to introduce not only television, but community media, so every village in Zanzibar already had these images. But television didn’t come to Tanganyika until 1992 (Mwalimu stepped down in 1986), when it was introduced by a local businessman who established his own station. Until then the state had controlled the media, so history began to change as businesses were allowed to establish media.
I remember I was then in TAMWA and we had to encourage a lot of production of plays and other visuals, for which there was no market before. The radio had been powerful; when the peasants went to the countryside, they would take the radio and listen as they ploughed the land. So, the radio was the main tool that was used to mobilize society during Mwalimu’s era.
The press gave women journalists little chance to cover issues of importance to women. We were given health or children to cover as our issues. Before, Tanzania had one English paper, one Kiswahili, Uhuru, and one party paper. By 1986, there were 21 newspapers, and it became easier for us to really influence the press, and TAMWA began talking about issues like sexual harassment at work. But it was a double-edged sword, because the television stations recruited pretty girls to do the news reading, and the girls also wanted to be seen on television as it was a novelty. So, while we were expanding the conversation on the portrayal of women, here was television, where women were used as sex objects. The struggle continues, a luta continua.
Heba M. Khalil: How are movements trying to achieve change on the continent, particularly youth movements or younger generations, by utilizing media and cultural spaces?
Fatma Alloo: The youth need to develop tools of empowerment at an educational level and at an organizational level. Africa is a young continent, and our hope is the youth. Many youth are very active at a cultural level, they may not be in universities but at a cultural level they are extremely visible, in music, dance, and street theater.
At the moment, you see the pan-African dream has sort of lost the luster it had during independence. Even if you look at the literature of that time, it was a collective dream for Africa to unite—Bob Marley had a song “Africa Unite,” we used to dance to it and we used to really identify with it, and the literature—Franz Fanon, Ngũgĩ wa Thiong’o, Sembène Ousmane, Miriam Ba, Nawal al Saadawi—and also the films that came out. In fact, Egypt was the first country to produce amazing films; when we established the Zanzibar International Film Festival (ZIFF), in our first year we showed a film from Egypt, The Destiny by Youssef Chahine.
Zanzibar International Film Festival was born because we asked the question, “If we in Africa do not tell our stories, who will?” We ask that question particularly to train and stimulate the production of films on the continent, including in Kiswahili, because while West Africa has many films, East Africa lags behind. The festival has been in existence for 21 years. This part of the world has more than 120 million people who speak Kiswahili, so the market is there. We also encourage a lot of young producers and we encourage putting a camera in children’s hands, because from my own experience, children get so excited when they can create their own images. Twenty-one years later, these children are now adults, and they are the directors and the producers in this region. So, one has to play a role in impacting change and liberating consciousness on our vibrant and rich continent.
This article is part of the series “Reclaiming Africa’s Early Post-Independence History” from Post-Colonialisms Today (PCT), a research and advocacy project of activist-intellectuals on the continent working to recapture progressive thought and policies from post-independence Africa to address contemporary development challenges. Sign up for updates here.
The State of Judicial Independence in Kenya: A Persistent Concern
Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such. So long as we may have an independent Judiciary, the great interests of the people will be safe.
On Thursday 22 July 2021, Justice Aggrey Muchelule and Justice Said Juma Chitembwe were subjects of arbitrary search, intimidation, and interrogation by the Directorate of Criminal Investigations (DCI) on the basis of unfounded allegations of corruption.
The arrest, coming in the wake of constant and relentless attacks on the judiciary by the Executive and politicians, left a very sour taste in the mouths of many, bearing in mind that nothing was found to implicate the judges upon searching their respective chambers. Let it be clear that NOBODY is above the law (nemo est supra legis)! Not even the President of the Republic, let alone the judges.
However, there are reasons why there are arguments for special procedures when arresting or dealing with criminal allegations against a sitting judge: the need to preserve the sanctity of the office and the need to manage perceptions with regard to the judicial office. The Supreme Court of India in the case of Delhi Judicial Service Association v. State of Gujarat AIR 1991 SC 2176, (1991) 4 SCC 406 recognized the fact that whereas judges were not above the law, certain guidelines had to be in place to guide the conduct of arrest “in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated”. The concept of judicial independence, it must be recalled, recognizes not only realities but also perceptions that attach to the judicial office.
Chief Justice Howland in the Canadian Supreme Court case of R v. Valente  2 SCR 673 stated as follows with regards to perception as an ingredient of judicial independence: “it is most important that the judiciary be independent and be so perceived by the public. The judges must not have cause to fear that they will be prejudiced by their decisions or that the public would reasonably apprehend this to be the case.’ There is therefore the need to guard and jealously so, the image of the judiciary such as to manage how the judiciary is perceived by the public.
The unsubstantiated claims of corruption, and knee jerk searches without an iota of evidence does not bode well for the perception of the judiciary as a whole, and specifically, for the individual judges involved whose reputations are dragged through the mud, and needlessly so. There are germane reasons why the arrest of a judge should not be a trivial matter. The deference and respect to a judicial office informs the caution exercised in the conduct of arresting a judge. The judicial office fuses with the person of the holder and therefore it becomes necessary to err on the side of caution.
Indeed, Courts elsewhere have endeavoured to engage cautiously in this exercise of delicate funambulism. The Supreme Court of India in the case of K. Veeraswami v Union of India and others, 1991 SCR (3) 189 found that a sitting judge can only be undertaken with permission from the Chief Justice or if it is the Chief Justice who is sought to be prosecuted, from the President.
Equally, the Court of Appeal of the Federal Republic of Nigeria in the case of Hon. Justice Hyeladzira Ajiya Nganjiwa V. Federal Republic of Nigeria (2017) LPELR-43391(CA) held that a sitting judge cannot be prosecuted for offences that would have otherwise been a ground for removal from office.
It is important to note that the grounds for the removal of any judge from office are captured in article 168 of the Constitution of Kenya and they include a breach of the code of conduct and gross misconduct or misbehaviour.
Noteworthy it is to remark that the High Court of Kenya, in laying a principle of constitutional law in the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae)  eKLR ably stated that, “While the DCI is not precluded from investigating criminal misconduct of judges, there is a specific constitutional and legal framework for dealing with misconduct and/or removal of judges.
Consequently, cases of misconduct with a criminal element committed in the course of official judicial functions, or which are so inextricably connected with the office or status of a judge, shall be referred to the JSC in the first instance.” The cumulative conclusion was that the gang-ho recklessness meted on Justices Muchelule and Chitembwe by an increasingly overzealous Department of Criminal Investigations (DCI) was an affront to judicial independence in its functional sense and also in terms of perception. It was a careless move.
If there is any evidence linking any of the judges to any conduct unbecoming, then out of constitutional edict and commonsensical pragmatism, the first point of call should be the Judicial Service Commission (JSC). The Office of the Chief Justice must also be subject of focus during this unfortunate debacle.
The statement emanating from that office in the aftermath of the unfortunate events of 22nd July 2021, was at best timid and disjointed. The statement did not appear to reinforce the constitutional principle that judges cannot be arrested over matters that really ought to be addressed by the Judicial Service Commission. The office of the Chief Justice should have done better.
In summary, let it be proclaimed boldly that judicial independence is too precious a public good that it will be protected at all costs. Let it be lucid that incessant interference with judicial independence will not be tolerated from any quarters.
Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such! And in the words of John Rutledge, a scholar, jurist and the second Chief Justice of the United States of America; “So long as we may have an independent Judiciary, the great interests of the people will be safe.”
This article was initially published at THE PLATFORM For Law, Justice and Society Magazine
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