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No Place for Women: India’s Female-unfriendly Cities

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Rising rape cases in Indian cities have sparked women’s movements that are claiming public spaces for themselves and defying a culture that says that a woman’s place is in the home. RASNA WARAH examines how gender-sensitive urban planning and design can deter potential rapists.

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No Place for Women: India’s Female-unfriendly Cities
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The gruesome rape and murder of a 26-year-old vet in the Indian city of Hyderabad has once again highlighted the issues of women’s safety in urban areas and the rape culture that allows these kinds of heinous acts to take place. The woman was gang-raped by four men who approached her on the pretext of fixing a flat tyre on her scooter. When they had finished raping her, they doused her body with petrol and set it alight. Her charred body was found in a highway underpass.

Women’s rights activists have once again taken to the streets as they did in 2012 when another brutal gang rape led to the death of a female student in New Delhi. The rape of Jyoti Singh, the paramedic student who was repeatedly tortured and thrown out of a moving bus by her tormentors, galvanised India. Vigils and protest marches were held in her name. “Nirbhaya” (Fearless) – the name that was given to her as she struggled to stay alive in hospital – remains a symbol of women’s resistance in the face of misogyny.

But seven years after that horrific incident, rape statistics in India remain as high as ever; about one hundred women and girls are raped in India every single day. Most of the perpetrators never face justice.

In Jyoti Singh’s case, the trial of the perpetrators was fast-tracked because of the public outcry, and stricter laws were passed to deter rapists. The immense shame suffered by the families of the accused even caused one of the rapists to commit suicide while in prison. But that case has clearly had little impact on the Indian male psyche, which is apparently wired to view every woman as a potential target for rape and other forms of violence. This in a country where female Hindu goddesses like Durga, Kali, and Saraswati are worshipped.

However, like all organised religions, Hinduism has a contradictory view of women. The Madonna-Whore dichotomy, which worships “pure, virginal” women, on the one hand, and diminishes those considered “impure”, on the other, is very much prevalent. Hindu mythology is rife with stories of women being “punished” for disobeying their male family members or for straying out of the home.

In the epic Ramayana, Sita, the wife of Lord Ram who is revered for her self-sacrifice and purity, is abducted by the demon Ravan after she crosses an invisible line outside her dwelling, thus breaking a promise she made to her brother-in-law Lakshman to not venture outside her homestead. (The message is clear: women leave their homes at their peril, and like Eve who ate an apple in the Garden of Eden despite having been warned against it, there is a price women have to pay for disobeying an order.) Sita’s kidnapping and eventual return to her husband’s kingdom (where she undergoes a trial by fire – agni pariksha – to prove her chastity) is one of the central themes surrounding the Hindu festival of Diwali.

The rape and murder of Jyoti Singh led to a lot of soul-searching, particularly among India’s elite and middle classes, who have tended to view violence against women as a problem mainly afflicting the lower uneducated classes. Soutik Biswas, the BBC’s Delhi correspondent, was among those who viewed gender-based violence as being common among the less privileged sections of the population, particularly in northern India, a region which he said harbours “a stiflingly patriarchal social mindset”.

He also blamed Delhi’s “deracinated generation of migrants” and a “broken justice system” for the rising incidence of rapes in the capital city. Biswas was referring to the hordes of unskilled migrants moving to New Delhi from neighbouring – largely agricultural – states, such as Haryana, where “honour killings” are known to take place.

What Biswas failed to recognise is that domestic violence is prevalent even among the rich and that this form of violence remains hidden because women are made to believe that a family’s honour will be damaged if a woman speaks about the violence she endures at the hands of her husband or another family member. However, thankfully, more and more women in India are now speaking more openly about the physical abuse they suffer at home – but this has not deterred men from inflicting the violence.

Statistics show that nearly 40 per cent of Indian women have experienced some form of domestic violence. Many of these women are middle class professionals, such as journalist Nita Bhalla, who recounted her own abuse at the hands of her husband in an article published on BBC News. Bhalla said that Indians’ high tolerance for violence against women makes it difficult for victims to get justice. “When he pulled my hair and kicked me as I lay on the pavement, there was a deafening silence from my neighbours who heard my screams but were reluctant to intervene,” she wrote.

Bhalla says that modern educated women are particularly threatening to Indian males, who lash out at these women because of their own insecurities. Men’s loss of power and control over women has made professional women particularly vulnerable, especially in male-dominated work environments and in public spaces. Sexual harassment and rape are men’s responses to this loss of power and control.

I also see a direct correlation between Indian men’s consumption of pornography and the rising cases of rape in India. According to Pornhub’s own data, Indians are the largest consumers of online pornography after the United States, the United Kingdom and Canada (in that order). Pornography desensitises men and boys and makes them believe that violence against women, including rape, is normal and even a secret fantasy that women harbour.

A sense of entitlement

In highly patriarchal societies, men tend to view women as their personal property. This sense of entitlement fosters the commodification of women and girls. Girls are viewed as an economic burden whose only value lies in their labour and in their ability to produce sons. That is why the burning of brides for dowry was until recently fairly common in India, as was female infanticide.

Men’s loss of power and control over women has made professional women particularly vulnerable, especially in male-dominated work environments and in public spaces

Some say that Bollywood’s portrayal of women as sex objects has only made things worse for Indian women. It is hard to find strong female characters who are economically independent and not dependent on male approval. While some films have tackled the issue of rape, and female directors are making more women-centric films, the commercially successful movies tend to be those that revolve around a male protagonist, with the female protagonist relegated to the role of “love interest”.

Narendra Modi’s India has not made Indian women safer either. On the contrary, it could be argued that the right-wing exclusionary politics espoused by Modi has made life for minorities, including women, more difficult. Modi has not vociferously condemned the killing of Muslims in India by Hindu fanatics so, despite having a large female following, it is unlikely that he will take a strong stand against violence against women. Right-wing groups tend to be hostile to women’s and minorities’ rights, and so we can expect little in terms of progressive, gender-friendly policies from his government.

The rape and murder of the vet in Hyderabad last month is not just a tragedy for the victim’s family but is also deeply embarrassing for the Indian government, which has superpower ambitions. Economic growth and liberalisation may have lifted millions out of poverty, but they have clearly not had a significant impact on the status of women in Indian society. This needs to change. A society may be economically successful, but its success will be meaningless if half of its population lives in fear.

Pornography desensitises men and boys and makes them believe that violence against women, including rape, is normal and even a secret fantasy that women harbour

Economic success has also not assured the safety of women in countries such as Kenya, South Africa and the United States – where incidences of rape are particularly high. In recent years, there have also been increasing cases of Kenyan men murdering women who have rebuffed their sexual advances. Young university students are particularly vulnerable. The alarming rise in the number of such cases has led a group of Kenyan women to document these cases, lest we forget. But documentation is not enough. The long and complicated legal process, and a woman-unfriendly police force, have made prosecution cumbersome. Poorly-lit streets and female-unfriendly public transport also make urban living for women particularly harrowing.

Claiming public spaces

Since Jyoti Singh’s death, women’s movements that are claiming public spaces have sprung up in India. In Mumbai a group of women have formed the “Why Loiter” movement, which encourages women to just “loiter” in public spaces after dark – in effect to claim spaces that have been denied them by a culture that says a woman’s place is in the home. The movement’s advocates argue that, in fact, the home is the most dangerous place for women who experience domestic violence at the hands of their own family members. They also say that by claiming public spaces, they are asserting their right to the city and defying those who want to see women’s mobility curtailed.

While it is difficult to completely stamp out misogyny in highly patriarchal societies such as India, many urban planners are coming to the realisation that gender-sensitive urban planning and design can deter potential rapists and sexual harassers. There is now increasing awareness of the fact that violence – or the threat of it – has severely hindered women’s movement in cities in most parts of the world. Impractical zoning laws, inflexible public transport routes, lack of childcare facilities and poorly-lit public spaces have made cities dangerous places for women.

According to studies done by the United Nations Human Settlements Programme (UN-Habitat) and NGOs working towards women’s safety in public spaces, there are four main reasons why women experience cities as hostile environments. First, zoning laws are woman-unfriendly and do not recognise that women need to balance their income-earning and domestic activities. If zoning laws allowed women to work from or near their homes, women would not spend so much time commuting and would also be able to take care of their families while earning an income. Second, lack of services, such as childcare at work, further limits women’s economic and public life. Third, poor infrastructure, particularly insufficient lighting on streets and in public spaces like bus stops and train stations makes walking at night a challenging prospect for women. Lack of clean and safe public toilets also impedes women’s and girls’ mobility. Fourth, public transport itineraries that are not sensitive to women’s needs – not having enough stops on a route for instance – means women have to walk longer distances to get to their destination.

We may not be able to change the mindset of men who rape, but there are certain things cities can do to make them safer for women. One way is to keep men away from women through segregation. “Ladies’ compartments” – women-only carriages on long-distance trains and suburban commuter trains – are common across India. Women prefer to use these services because they significantly reduce the chances of sexual harassment – a phenomenon locally known as “eve teasing”, which is rampant across India. (Women and girls using buses in Indian cities regularly report being groped by male passengers.)

In response to the epidemic of sexual violence on city streets, a group of women developed an app that allows users to rate their streets for safety using criteria such as lighting, people density, security and transport. In short, Indian women are taking charge of their public spaces by sharing information that can keep them safe.

Impractical zoning laws, inflexible public transport routes, lack of childcare facilities and poorly-lit public spaces have made cities dangerous places for women

In one village in the state of Uttar Pradesh, women have formed a “gang” that punishes men who beat their wives or behave badly. The Green Gang – named after the green saris that gang members wear – represents a rising wave of women taking the law into their own hands in the face of poor policing and lack of law enforcement.

The challenge in cities is to encourage urban planners to design spaces that are women-friendly. As Anne Michaud, President of Femmes et Villes in Canada put it, a woman-friendly city not only has social benefits, but economic benefits as well. “If women feel safe, they will go out at night, they will patronize the theatre, the movie houses, the business establishments,” she stated. All this means that more money will circulate within the economy.

Smart urban planners would do well to ensure that women participate in the 24-hour urban economy without fear of being molested or raped. Who would want to live in a city where there is a constant fear of one’s wife or daughter being attacked?

I am a 100 per cent sure that if cities were woman-friendly, urban living would be a joyful and productive experience for every city resident, including men. Using public spaces without fear should not be a male privilege; it should be a woman’s right.

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Rasna Warah is a Kenyan writer and journalist. In a previous incarnation, she was an editor at the United Nations Human Settlements Programme (UN-Habitat). She has published two books on Somalia – War Crimes (2014) and Mogadishu Then and Now (2012) – and is the author UNsilenced (2016), and Triple Heritage (1998).

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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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