Data Protection in the Age of Huduma Namba: Who Will Benefit?8 min read.
In a country where digital technology and personal data are routinely abused by unscrupulous officials and politicians, what kind of confidentiality can Kenyans expect from the new law on data protection? Is the law a genuine attempt at protecting Kenyans’ privacy, or is it for the benefit of credit card companies and banks associated with the Huduma Namba?
A few years ago, in my Monday column in the Daily Nation, I explained why I was not among the millions of Kenyans who are on Facebook. I told my readers that the main reason I had not joined Facebook was because I wanted to keep my private life private.
I said that Facebook allows users to connect and “make friends” with dozens, if not hundreds, of people they would not normally interact with in daily life, which would not be such a frightening prospect if those you interacted with were people you trusted with all your heart. But because Facebook is an equal opportunity friendship-maker, the “friends” you make on the social networking platform could range from your boss to your plumber. This could affect your career development and your home life in significant ways.
Mark Zuckerberg, the founder of Facebook, believes that by allowing many people to share more of their personal lives with each other, he is helping to create a virtual global community where “people stay in touch and maintain empathy for each other.” In other words, he believes he is creating a more caring world, where transparency and openness are the modus operandi and where there are no secrets.
However, critics have argued that instead of connecting people in meaningful ways, Facebook actually isolates people, who spend more time online rather than doing things that strengthen relationships, such as talking to each other or sharing a meal. With an estimated 2.7 billion Facebook users around the world and an estimated 10 million users in Kenya alone, that is a scary scenario that has severe consequences on how people socialise and interact.
But what is even scarier is that Facebook – the company – has been sharing users’ private data with third parties without their knowledge, as has been confirmed by the Cambridge Analytica scandal, which revealed that Facebook users had been manipulated to impact elections in the United States and in Kenya, as well as in the Brexit referendum in the UK. The Cambridge Analytica scandal has shown that no data is safe and that those with ill intentions can use people’s personal information for nefarious objectives or for political gain.
It is not just companies like Cambridge Analytica (which closed shop as a result of the scandal) that are using Facebook data without users’ knowledge or consent. Recently, a local newspaper revealed that in the first half of 2019 the Kenyan government had on five different occasions demanded that Facebook reveal private information about Kenyan users of the social networking site. According to an article published in the Standard (which somehow did not raise any furore in Kenya perhaps because, as one Twitter user commented, we are so used to being abused that we no longer have the energy or motivation to fight back), “the [Kenyan] State refused to use proper legal channels while demanding the information, insisting on the urgency of the demand”.
The Cambridge Analytica scandal has shown that no data is safe and that those with ill intentions can use people’s personal information for nefarious objectives or for political gain.
The article, based on Facebook’s transparency report, further says that Facebook complied with at least one of these demands, but the company did not give details on the nature of the information the Kenyan government had demanded. The government also asked Facebook to preserve the account information of seven users. Apparently, such requests/demands are not unusual; reports indicate that the United States government requested Facebook to provide data on 82,461 users in the first six months of this year, while India made such requests on 33,324 users.
Data privacy and protection: An illusion?
At a time when data privacy and protection are becoming increasingly important, especially in light of revelations that governments and private companies are using social media platforms to manipulate voters, as happened in the Cambridge Analytica case, and in an environment of increasing xenophobia and fear-mongering, this revelation should have been a cause for alarm. But as is with most things in Kenya, news that the government was spying on its citizens and collecting data on them without their knowledge or consent barely elicited a yawn.
The story becomes even more intriguing given that Facebook is facing heavy criticism for violating users’ privacy. In July this year, Facebook was fined $5 billion by the US Federal Trade Commission for violating users’ privacy. The settlement includes several provisions that limit Facebook owner Mark Zuckerberg’s decision-making powers, including the creation of a privacy committee on Facebook’s board of directors.
We must also remember that the Jubilee government of Uhuru Kenyatta and William Ruto has not been averse to manipulating social media users to win elections. Not only has this government been implicated as a beneficiary of Cambridge Analytica’s social engineering and “psychological warfare” tactics in the 2013 and 2017 elections, but it also employed a gang of bloggers known as “The State House Boys” to bombard Kenyans with propaganda prior to and during the election period.
But as is with most things in Kenya, news that the government was spying on its citizens and collecting data on them without their knowledge or consent barely elicited a yawn.
Ironically, this is the same government that is now going after bloggers through the controversial Kenya Information and Communications (Amendment) Bill that some view as a gagging order on bloggers and social media users – a form of censorship that will severely curtail what and how Kenyans communicate via the Internet.
The Bill says that bloggers will need a licence to operate. Failure to comply with this requirement and to adhere to the standards set by the Communications Authority of Kenya could lead to fines of up to Sh10 million or two years in prison. Offences include “degrading” and “intimidating” recipients/readers. This leaves the door wide open for politicians and others to charge bloggers with all manner of offences just because they do not like what they have to say about them. Columnists, cartoonists, writers and even photographers could be “criminalised” on spurious grounds.
Huduma Namba and commercial interests
Ironically, while this Bill is being debated, Parliament has finally woken up to the fact that privacy is a right guaranteed by the Kenyan Constitution. A few days before Kenyans learnt that the government was spying on its citizens through Facebook, President Uhuru Kenyatta approved legislation that complies with the European Union’s General Data Protection Regulation. The Data Protection Bill, 2019, which came into force in mid-November this year, prevents governments and corporations from sharing an individual’s personal data without the consent of the owner of the data. Personal data is defined as information relating to a person’s race, ethnicity, gender, marital status, educational background, medical condition, criminal history and financial transactions, among others. (Note: Some data, such as a person’s credit rating, though protected by privacy laws in Kenya and in other countries, are still easily accessible to interested parties.)
A Data Protection Commissioner will also be appointed to ensure that the law is enforced. The Commissioner will not only receive complaints about data privacy violations but will also have the power to investigate breaches of privacy and to impose fines. However, the Data Protection Bill also says that this law will not apply to personal data collected for the purposes of national security or in the public interest.
This law is viewed as critical to ensuring that data is not abused by third parties and is seen as a necessary and important step to increase investor confidence in Kenya and to regulate the use of mobile phone technology and digital apps, which are increasingly becoming the targets of predatory business and corporate interests.
The timing of the law is, however, interesting. It comes into force at precisely the time when the government is being criticised by some for implementing the National Integrated Identity Management System – better known as Huduma Namba – which many view as a surveillance tool modelled on the Chinese “social credit” system, where citizens gain points for “good conduct” and lose points for “bad behaviour. As I have said before, the idea that you can be denied a service because you cannot identify yourself through a number negates basic constitutional freedoms and rights. Various government mandarins have said that those without a Huduma Namba will be denied government services, including obtaining a Kenya Revenue Authority Personal Identification Number (PIN).
Critics have also raised privacy concerns with regard to Huduma Namba, which is perhaps why the Data Protection Bill was passed in a hurry – to reassure Kenyans that their personal biometric data is safe and that government institutions have perfected the art of making digital technology secure. However, as has been witnessed in the recent past, laws in Kenya are not sufficient to protect Kenyans from electoral or other types of fraud and invasions of privacy.
For instance, Kenya’s electoral body, the Independent Electoral and Boundaries and Commission, has proved to be completely inept (or deliberately malicious) in using technology, as demonstrated during the 2013 and 2017 elections when the biometric digital systems for voting either failed or malfunctioned. Apart from questions regarding the procurement of the technology, and whether kickbacks were involved, Kenyans watched in horror as the electoral body fumbled through the election results, even claiming that several voting stations could not electronically transmit the election results. Almost all attempts by this so-called “digital” government to introduce computerised systems in government, ostensibly to reduce corruption and to streamline service delivery, have also failed miserably; in fact, corruption has reached unprecedented levels. It is now an accepted fact that the introduction of the Integrated Financial Management Information System (IFMIS) in government procurement led to the disappearance and theft of billions of shillings from state coffers. If IFMIS can be so easily manipulated by government officials, then how easy will it be to hack or manipulate the Huduma Namba and other data collection systems?
There are also strong rumours that the National Hospital Insurance Fund (NHIF) is being routinely robbed by unscrupulous medical officers and NHIF employees. Kenya Power, the country’s only electricity company, has also been accused of stealing from customers by sending them fictitious and inflated bills. All this is possible because employees have access to subscriber/customer data that they can easily manipulate. In other words, no Kenyan is safe from government bodies that provide a service at taxpayers’ expense – you will either be denied the service or will be robbed. –.
Citizens or borrowers? The debt trap
But protecting people’s privacy in order to comply with the Constitution may not be the primary motive of the data protection bill. As David Ndii has suggested in a recent article, the Huduma Namba is not so much a personal identity tool for Kenyan citizens as it is a credit facility that ensures that every Kenyan is a potential “customer” for micro-credit services, and which has the potential to place every adult Kenyan on a borrowing treadmill that will benefit banks and businesses associated with the Kenyatta family.
The scheme could have severe adverse effects on citizens/customers/borrowers who risk getting a negative credit rating, and thus becoming criminalised, not for “bad behaviour” as the Chinese would define it, but for not paying back a loan on time. Remember, unlike a normal credit card, the customers –Kenyan citizens – have not been given a choice whether or not to apply for the card – the government has deemed it mandatory for everyone.
Given the high standards set by international credit card companies on issues such as customer privacy and data protection, it is possible that the Data Protection Bill was a means to make the Huduma Namba (and its local and international commercial partners) compliant with international norms and standards, thus giving the illusion that, unlike rogue betting companies or greedy loan sharks, the Huduma Namba is a respectable and legitimate way of borrowing money.
If IFMIS can be so easily manipulated by government officials, then how easy will it be to hack or manipulate the Huduma Namba and other data collection systems?
The question one must ask is: if the Huduma Namba is essentially a credit card, what business is it of the government to impose credit cards on people who can barely make ends meet, thanks to the same government’s economic policy failures? For the government and its commercial partners to make money from hapless Kenyan borrowers is not only unethical, but raises questions about whether – like the subprime mortgage crisis in America where the US government’s housing agencies encouraged low-income people to buy houses even though they did not have the means to pay the mortgage – this scheme could lead to the collapse of an economy that is already in the doldrums.
Coupled with the “Affordable Housing” pillar of the Jubilee government – which is based on the erroneous premise that a majority of low-income people in the country are eager to own apartments (a notion I refute in this article), I see many Kenyans losing their money and their property because the government has encouraged them to take loans they cannot afford. This government has already set the country on a path to unprecedented and unsustainable debt. Now it wants every Kenyan to become a reckless borrower.
The problem is that, unlike the government, individuals cannot rely on taxpayers or a second credit facility to get them out of a debt trap. Families in the United States who lost their homes during the subprime mortgage crisis have still not recovered, despite President Barack Obama’s efforts to avert a financial crisis in 2008 – a lesson this government is unwilling or unable to process but which signals doom for the many Kenyans who are being made to believe that taking a loan, no matter how risky, is the easiest way out of poverty.
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The Blind Spot: A Graphic Novel on Food Security and Farmers’ Rights
Chief Nyamweya shines a light on the central issues of food security and the welfare of smallholder farmers in Kenya.
Some time back in May 2020, an incident occurred in Mombasa that stunned the nation. The Daily Nation reported a story of a Kisauni widow who was forced to boil stones to give her children false hope that she had some food for them. The story sent shockwaves across the country and ignited a conversation about the magnitude of the hunger plaguing Kenyan households.
The story of Peninah Kitsao is not an isolated incident. All over the country, ordinary Kenyans are struggling to put food on the table due to biting inflation that has seen commodity prices soar to nearly unaffordable levels. Failed rains and a drought of a severity never witnessed before in the history of the country, especially in northern Kenya, have worsened a dire situation.
Interventions by state and non-state actors have arguably not been enough as there have been reports from certain parts, such as Samburu, of people drinking dirty water and eating dog meat to survive. The country is essentially in a deep hole. Coupled with the drying up of the rivers and lakes that used to serve vulnerable communities, it is safe to say that the government and other agencies have had blind spots in dealing with the situation.
Route to Food Initiative’s graphic novel The Blind Spot, which is written and illustrated by Chief Nyamweya, should be read against the backdrop of some of these startling developments. The work of committed art is to expose the ills in society, not just by dropping popular catchphrases and revolutionary slogans, but by disturbing the conscience of the nation. Such works of art are expected to put us on track for what needs to be done to set things right.
That’s exactly what Nyamweya’s comic offering is all about.
Worrying policy gaps
The central issues of food security and the welfare of smallholder farmers shine throughout the slim graphic novel, bringing into sharp focus policy gaps and a lack of commitment from leaders to correct the mistakes of the past.
The visual narrative opens with a protest by Kajibora residents and farmers at the Kajibora County Hall. Chanting outside the county governor’s residence, the agitated crowd demands justice for one of their own, Karisa, who has committed suicide after auctioneers sell his land to recover an unpaid debt.
The protest also provides the space and opportunity for the residents and farmers to demand “lower prices on food, better quality food and enhanced protection of Kenya’s ecosystems [and] land reforms.” Demonstrations are not new in the country; with livelihoods threatened by forces beyond their control even as the national and county governments drag their feet to alleviate the suffering, it is inevitable that ordinary people would take such drastic measures.
The Mzee Maona-led Jembe Revolution calls on Governor Nyoni to deal with food insecurity as a human rights issue and to protect smallholder farmers from predatory multinationals. The corporations are often accused of exploitation through the introduction of harmful production methods and industrial processes that threaten biodiversity.
The fictionalised revolution echoes the vigorous pushback by various stakeholders, including farmers, politicians and ordinary Kenyans, who have questioned the government’s proposal to introduce genetically modified foods.
While those in support of the introduction of genetically modified organisms (GMOs) into the country have a valid argument that Kenya and the continent at large are dealing with a serious food crisis that needs never-before-tested solutions, those against them argue that farmers and consumers are likely to suffer. This is because there are growing fears that the multinationals that distribute GM seeds will have the monopoly to dictate to farmers which seeds to use, and the scenario is likely to deny them the agency to produce food on their own terms and according to their preferences.
Putting Western interests first
In other words, the prioritisation of Western interests, as it often emerges in Nyamweya’s narrative, where the governor is accused of focusing on “the large scale production of a few food crops and protecting the interests of big agribusiness”, is a reality that policymakers will have to contend with to effectively address the issue of food security in the country.
A DW documentary titled Africa, GMOs and Western Interests, which aired two months ago, revealed the hidden hand of philanthropists such as Bill Gates, through the Bill & Melinda Gates Foundation, in pushing for the introduction of GMOs in select African countries to benefit private businesses in the West. Therefore, when Kajibora farmers and residents, through their Chama cha Wakulima (CCW) party, wave a placard reading SAVE OUR SEEDS, they are not expressing a grievance coming from without but a genuine fear born out of the reality that, on the one hand, the forces of globalisation are unavoidable (food production systems and the overall supply chain can never only be local) and on the other, the reality of the weak political system that hardly prioritises the interests of its citizens, least of all smallholder farmers.
To give credit where it is due, President William Ruto’s introduction of the fertiliser subsidy is likely to be a game changer for a majority of farmers who are unable to afford the essential commodity. The subsidised fertiliser is retailing at KSh3,500 for a 50kg bag, down from KSh6,000. The use of technology for registration (farmers use their phones) will also help eliminate red tape and corruption and thus improve efficiency in distribution, which is key to the timely use of the fertiliser to boost yields.
The cries and anxieties of the Kajibora farmers take a dramatic twist following the death of Mzee Maona when CCW is wracked by fissures as various members pull in different directions. As is characteristic of Kenyan political parties not founded on a solid vision and ideology, the core issues—such as sustainable agriculture for the farmers—that define the party’s agenda become a footnote. Instead, the so-called ideological differences (a euphemism for selfish interests) erupt during the requiem mass for Maona when party members engage in a vicious fistfight before the bereaved mourners.
Enter the scions of Mzee Maona, Sifa and Yona—highly educated, exposed and polished but with contrastingly opposing views on how to reimagine the patriarch’s vision of putting the farmers’ agenda first—and the narrative is set for a fascinating climax.
What emerges from the troubled relationship between Sifa, a professor, and Yona, now an aspiring Kajibora governor, are the intra-generational tensions of how to approach the pressures and complicated issues that have become synonymous with modern living. This is especially true when it comes to championing the rights of ordinary people such as farmers.
As is characteristic of Kenyan political parties not founded on a solid vision and ideology, the core issues that defined the party’s agenda become a footnote.
Sifa is distrustful of the political process for fixing societal issues. She is an advocate of fighting for human rights from outside the political process since, in politics, you “promise the people paradise while only delivering paperwork”. While her worldview is sometimes abstract and detached and elitist, she deserves credit for not losing focus on the immediate priorities that should be urgently addressed to make life better for small-scale farmers.
Yona, on the other hand, styles himself as a pragmatist and realist who is in touch with what is happening on the ground but comes across as vain, selfish and arrogant. He is a perfect representative of Kenya’s political class for whom governance is about foreign investment, rather than the people. He says that “a key part [of his] job as governor will be to attract investment to Kajibora”. This includes doing the bidding of multinationals like Green Shots Corporation, which is accused of controlling the food prices and the supply chains that are vital to farmers and consumers.
The role of the youth
However, what is poignant in the clash between Mzee Maona’s two grandchildren is the involvement of the youth—whether for good or bad—in debating the issues of food security and fair agricultural policies. While their approaches are often different, there is a genuine concern and passion that, in real life, should be encouraged and even rewarded.
Statistics indicate that the average age of the Kenyan farmer is 61 years. A revival of the 4K Clubs that were the craze in the 1990s under the 8-4-4 education system has been mooted as a way to entice young people to return to the soil. These are noble interventions that are likely to boost agricultural output since the youthful population is not just energetic enough to take up the challenge but also because modern farming involves access to the right information which a tech-savvy generation can exploit in this digital age.
When Dalili, a member of the CCW and a former close ally of Mzee Maona, encourages Sifa to join them on the anniversary of Jembe Day commemorating the revolt of Kajibora farmers and residents, she is essentially signalling a new way of addressing food insecurity. She tells Sifa that “our youth need to see where it all started”. The statement is profound because it acknowledges both the complexity and enormity of the task of streamlining food systems and the urgent need to bring diverse groups of people on board.
More importantly, sustainable agriculture has the potential to create jobs for thousands of jobless youth unable to secure the increasingly elusive white-collar jobs. According to the November 2022 Agriculture Sector Survey, the industry “employs over 40 percent of the total population and more than 70 percent of the rural populace”. This is a significant figure that is likely to increase even more if the youth are given the incentive to join forces in the overall agricultural production process.
Nyamweya’s only shortcoming is the exclusion of the voices of ordinary farmers from the entire narrative. As is characteristic of top-down policies, and unlike the bottom-up approach, there is a tendency to speak on behalf of the masses, to pretend to know what is best for them. A majority of the characters in the text speak of the “right” agricultural policies and approaches that need to be adopted to boost yields and food security. However, ironically, they behave like the multinationals that often impose their decisions on farmers without taking their views.
The approach is fraught with its own blind spots, not just because it is condescending to the farmers—those who are directly affected—but also because it poses the risk of aggravating an already bad situation. Talking about revolutions and uprisings is not enough to effectively transform the agricultural sector, even if the calls are to rid it of the cartels and the brokers present along the production chain.
Also, an erudite knowledge of the politics of food and the manipulation by multinationals cannot replace the basic principle that the farmer has to, first and foremost, speak for himself or herself. Does the farmer want to experiment with other seeds? Is the farmer only interested in the large-scale cultivation of staple foods? Is the farmer comfortable with the multinationals? What exactly is in the farmer’s mind? It is not always necessary that all foreign players that intervene in formulating agricultural policies have ulterior motives. One Acre Fund, an organisation founded by a non-Kenyan, has significantly helped smallholder farmers in western Kenya boost their farm output through the use of the right seeds and agricultural techniques and methods. I have seen this first-hand.
The statement is profound because it acknowledges both the complexity and enormity of the task of streamlining food systems and the urgent need to bring diverse groups of people on board.
However, despite the aforementioned shortcomings, Nyamweya’s artistic intervention cannot be downplayed. The issue of food security cannot be left to politicians and policymakers alone. This is not just because food is a basic need, but because a healthy and productive nation has the potential to improve the life expectancy and of children afflicted by malnutrition.
More importantly, a visual narrative approach is a welcome addition to a radical way of acknowledging the enormous capacity of art to surprise and reimagine how to deal with the existential anxieties of our time, such as food insecurity, climate change-induced drought and destruction of biodiversity. It is also a wake-up call to leaders, policymakers and other stakeholders that the conventional way of dealing with the challenges affecting farmers might have to change. Nyamweya’s book is a must-read for everyone who cares deeply about the future of our country and the coming generations.
Queer Lawfare in Africa – Legal Strategies in Contexts of LGBTIQ+ Criminalisation and Politicisation
The concept of lawfare, describes long-term battles over heated social and political issues, where actors on different sides employ strategies using rights, law and courts as tools and arenas.
The Supreme Court of India is anticipated to conduct hearings and deliver judgments in some important issues concerning the LGBTQIA+ community- ranging from the constitutionality of the blood donation guidelines that discriminate persons based on sexual orientation and gender identity to petitions on marriage equality (under both the Special Marriage Act and the Hindu Marriage Act). In this context, the book Queer Lawfare in Africa, edited by Adrian Jjuuko, Siri Gloppen, Alan Msosa and Frans Viljoen makes for a relevant and compelling read.
Queer Lawfare, according to the authors, is a strategy where rights and/ or laws are tactically employed to advance politically contested goals with regards to the rights of the LGBTQIA+ community. In the words of Siri Gloppen, Adrian Jjuuko, Frans Viljoen, Alan Msosa, the term “lawfare” used in the book describes the following:
The concept of lawfare, as used in this book, describes long-term battles over heated social and political issues, where actors on different sides employ strategies using rights, law and courts as tools and arenas. While sometimes associated with the misuse of law for political ends, ‘lawfare’ is here used as a descriptive, analytical term, de-linked from (the perceived) worthy-ness of the goal. The association with warfare is intentional and important: these are ongoing ‘wars’, with hard ideological cleavages and iterative battles. They are typically fought on several fronts and the contestants on each side have long term goals that they seek to advance by way of incremental tactics, often responding to, or anticipating their opponents’ moves, as well as other aspects of their (always potentially shifting) opportunity structure.
The book looks into queer lawfare in thirteen African nations- South Africa, Mozambique, Kenya, Botswana, Uganda, Malawi, Nigeria, Zambia, Ghana, Senegal, Gambia, Ethiopia and Sudan. Much like India, a lot of the nations discussed in the book had a criminal provision very similar to section 377 of the Indian Penal Code (before it was read down by the Supreme Court in Navtej Johar v. Union of India). Thereby, in many of these nations decriminalisation of sexual intercourse between consenting adults- irrespective of their sexual orientation or gender identity became (and in some countries still is) one of the first major goals of queer lawfare.
In some of the countries discussed in the book (particularly in those where queer lawfare has led to realisation of substantial legal gains for the LGBTQIA+ community), the movement started with seemingly neutral rights battles which intersected with discrimination law for instance, the right to association. The right to association cases in queer lawfare majorly consist of organisations or coalitions- established with the aim of further LGBTQIA+ rights- challenging the decision of the government to disallow their registration (set in a legal context where homosexuality is criminalised). In Botswana, such a challenge was decided in favour of the LGBT organisation, Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) by the Court of Appeal (see also, the recent judgment of the Supreme Court of Kenya). In Mozambique on the other hand, the Mozambican Association for the Defence of Sexual Minorities (LAMBDA) operates under a feminist umbrella organisation since it is not legally registered and as a natural corollary, the queer lawfare is influenced much by the strategies used by the feminist movement.
The book also refreshingly looks into the social contexts of each nation and discusses how despite LGBTQ+ movements sharing the same vision of emancipation, the means employed to achieve the end varies depending on social and political contexts in different countries. It also subtly gets across the point that there is ‘no one size fits all’ solution when it comes to queer lawfare. It discusses the different stages at which queer lawfare is in and how it varies from country to country- from South Africa where giant strides have been made in the judicial sphere to Ethiopia where ‘online lawfare’ is more prevalent due to which there is an absence of a significant progressive legal change.
As the marriage equality petition is listed for hearing before the Supreme Court of India is being heard by the Supreme Court of India, the chapter on queer lawfare in South Africa becomes particularly relevant. The landmark judgment of the Constitutional Court of South Africa in Minister of Home Affairs v. Fourie that recognised marriage equality notably held that the constitutional rights of persons cannot be undermined or be determined by the religious beliefs of some persons. In this judgment, Justice Albie Sachs read the words “or spouse” after the words “husband” and “wife”, into certain provisions of the Marriage Equality Act, 1961. As has been articulated by Jayna Kothari in this piece, the adoption of a similar strategy in the marriage equality proceedings before the Supreme Court of India is central to making the provisions of the Special Marriage Act (“SMA”) more inclusive. Reading in the words “of spouse” after the words “wife” and “husband” used in various provisions of the Special Marriage Act in India would allow persons irrespective of their sexual orientation or gender identity to get the reliefs conferred by the SMA ranging from solemnization of marriage to provision of alimony.
The chapter also confronts the challenge of limited judicial imagination while dealing with marriage equality and states that the judgment delivered by the Constitutional Court of South Africa (which was hailed as progressive) still caters to the gender binary vision- one where the institution of marriage is valourised and idea of a ‘permanent same-sex life partnership’ essentially contains the characteristics of a typical heterosexual marriage. The chapter also highlights how the ‘good homosexual’ visualised by the Constitutional Court is generally ‘a partnered middle class, if not upper middle class, man or woman who, in a country like South Africa where class continues to follow race, is almost invariably white’ thereby bringing to light the class and racial undertones underlying the legal recognition of such unions. In India, given that the institution of marriage is intrinsically tied into caste, property and patriarchy, it will remain to be seen how the Supreme Court will navigate through complex questions of intersectionality while adjudicating this case.
The book also makes a passing reference to the transnational impact of judgments on queer rights delivered by the Indian Supreme Court. For example, where submissions made before the Kenyan High Court in EG v. Attorney General and the high court decision in Botswana in Letsweletse Motshidiemang v Attorney General were influenced by the judgment of the Supreme Court of India in Navtej Johar v. Union of India. This also points out to the butterfly effect in progressive queer jurisprudence and the important role the constitutional courts in India have to fulfill in the days ahead.
Another important feature is that none of the chapters miss an opportunity to inform the readers about the perseverance and resilience of LGBTQIA+ organizations, coalitions and activists. It does the important work of documenting their role in shaping the legal destiny despite facing legal setbacks and risks of coercive action by the state. It is a fitting tribute to the indomitable spirit of the queer rights movement across the said nations in Africa to challenge the legal and political system, despite it being designed to fail them.
Oromo Orthodox Split: A Collision Between Politics and Faith
The formation of the Oromo Orthodox Synod signals greater shifts that have been on the political horizon in Ethiopia for the last four years.
Ethiopia has taken centre stage over the last four years, with a Nobel Peace Prize winning Prime Minister propelled to power by a four-year civil protest movement quickly leading the country into multiple internal war fronts. The last two years, in particular, have seen many begin to wonder if the Ethiopian state itself will survive the compounding conflicts, given that they are rooted in a tumultuous, contested, and violent past. The most recent and significant development in the tectonic shifts that have been breaking social and political ground in the country occurred on the 22nd of January 2023.
Three Oromo archbishops of the Ethiopian Orthodox Church announced the formation of an Oromo Orthodox Church Synod, with 26 patriarchs appointed to lead the synod across Oromia. In stark opposition to the new synod, a large number of Ethiopian Orthodox Church members, particularly those of an Amhara ethnic background, have been coming out in protest at the breaking up of the church, citing it as a violation beyond politics, and a breach of holy religious law.
The government, which has been supportive of the Oromo Synod has – in the manner in which it regularly responds to any expression of civil dissent – responded with state violence, shooting at protesters and, for a short while, shutting down the Internet and telecommunication services.
On the 13th of February, the Oromia Media Network reported that the new Synod is in the process of supporting the formation of synods of other national and ethnic identities, naming the Gambela, Gumuz, Sidama, Gurage, and Gamo as amongst those that will be forming their own Orthodox Church Synods in the near future.
The Ethiopian Orthodox Church has existed since the 4th century and belongs to the broader body of Orthodox churches that include the Coptic, Syrian, and Armenian Orthodox churches, and the Syrian Orthodox Church of India. The liturgical language of the church is Ge’ez, a Semitic language originating from northern Ethiopia and Eritrea, with Amharic also being used in the church today. Orthodox believers make up approximately 30 per cent of Ethiopia’s population and Amharic, the language of the Amhara ethnic group who make up approximately 22 per cent of Ethiopia’s overall population, is the official working language of Ethiopia.
Language, and the social and political power that it comes with, is one of the reasons that supporters of the Oromo Orthodox Synod believe that this recent shift is necessary. Cultural marginalization has been the experience of the Oromo and other national and cultural groups in the country since the formation of the Ethiopian state in the 1800s, a formation that the Ethiopian Orthodox Church was instrumental in spearheading.
When Menelik II began his expeditions into the Oromia heartland with the intent of consolidating the new state of Ethiopia, the proponents of this project came across a people who lived, worked, and worshipped predominately in Afaan Oromo. In particular, they practiced Waaqeefatta, the monotheistic religion of the Oromo.
Cultural marginalization has been the experience of the Oromo and other national and cultural groups in the country since the formation of the Ethiopian state in the 1800s.
Even though the popular narrative is that Ethiopia was never colonized, one of the impacts that Menelik achieved with the support of the Showan Amhara conquerors who were armed by the West was the upheaval of Oromo religious, cultural and political practice. This was replaced by the church’s own religious beliefs, as they were considered the only way to effectively commune with God.
In Ethiopia, as in much of the world, religion has always had political undertones. Historical narratives recounting both Protestant Christianity and Islam being used by Oromos to counter the effects of cultural and political domination experienced through the combined efforts of the Orthodox Church and the Ethiopian state speak to these political undertones.
Is the split really unprecedented?
Politics pervades every aspect of life everywhere, and although we would like to think that spiritual matters are beyond politics, there is perhaps nothing as politically charged as the relationships religions have with people, with states, and with the desire for social change.
Schisms and splits that occur for political reasons are not a new phenomenon in the world of Orthodox Christianity. In the 17th century, a movement to establish religious uniformity between Greek and Russian Orthodox practice was met with resistance that eventually saw a split into “Old Believers” and the official Russian Orthodox Church.
The reason for the split was disagreement over the introduction into the Russian Orthodox Church of specific religious rituals that belong to the Greek Orthodox tradition. Although it began as a disagreement about religious protocol, it developed into a movement where different parts of Russian society began to voice dissent against the feudal order led by leaders in the church.
There are obvious and significant differences between the 17th-century Russian split and what Ethiopia is facing today, but in order to avoid viewing the split within the Ethiopian Orthodox Church as entirely unprecedented, we should see the formation of the Oromo Orthodox Synod in the larger context of movements that have taken place in the history of the church, whereby politics and faith have collided to create new institutions and communities.
Is this just about religion?
The formation of the Oromo Orthodox Synod has an impact on much more than just how people practice their faith. This event signals greater shifts that have been on the political horizon in Ethiopia for the last four years.
Opposition to the formation of the Oromo Orthodox Synod has been defined by language describing it as an affront to the church’s values of “oneness”; the full name of the church is the Ethiopian Orthodox Tewahedo Church, with the word “Tewahedo” meaning “to be made one” in the Amharic language.
The ideal of “oneness” or “unity” versus the reality has been at the heart of Ethiopia’s most critical political issues. The Ethiopian state has, in concert with the Ethiopian Orthodox Church, had a history of violently assimilating a deeply diverse people and, in the same breath, defining itself as a beacon of unity. What we must understand is that what might be a breach of oneness and unity for one people, is for another people an act of revolution and decolonization.
The solution to this crisis, in my opinion, is not for the formation of the Oromo or other prospective synods to be stopped. Instead, as I think is the solution to many of Ethiopia’s issues, people must be willing to hear stories from the other side of the political divide in order to better engage the social and political changes of the now, and of the future.
I think that this is just the beginning and that although separation, like all change, can cause confusion, grief, and uncertainty, it can sometimes be the boldest step we can take towards building a new social contract for togetherness, cohesion, and harmony.
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