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The Devil and the Deep Blue Sea: Why Ruto and Raila Should Drop out of 2022 Race

9 min read.

For the sake of Kenya, both Raila Odinga and William Ruto should step aside and let someone who has a clean governance record vie for the top leadership in 2022. This would make the Uhuru succession politics less toxic and less polarised. It would also, hopefully, usher in much-needed reforms.

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The Devil and the Deep Blue Sea: Why Ruto and Raila Should Drop out of 2022 Race
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“Never dress a deep wound superficially.” – Somali proverb

A recent article by The Elephant’s senior writer Dauti Kahura suggests that one of the main reasons why a sizeable number of Kikuyus are going to vote for William Ruto in 2022 is that they are afraid that if they don’t – and especially if he loses or is forced out of the election race – Ruto will unleash terror on Kikuyus living in the Rift Valley, the kind of terror that Kikuyus in the region experienced when hundreds of them were killed and hundreds of thousands of them were displaced after the disputed 2007 election.

“It is the Kikuyu electorate that finds itself torn between the devil and the deep blue sea,” wrote Kahura. “Whatever option it takes, it will not be an easy choice because Ruto has presented the Kikuyus with the greatest dilemma. If they do not support Ruto, is there a risk that the violence of 2007/8 will be repeated?”

One Kikuyu lady told Kahura that she will definitely be voting for Ruto come 2022 because he was part of the deal that Uhuru Kenyatta made when the duo joined forces. In that sense, Kikuyus owe Ruto a political debt. “We entered into a pact with the Kalenjin people, that they would help our son capture power and protect our people in the Rift. In return, we would also lend our support to their son after Uhuru’s terms ended. It would now be disingenuous for the Kikuyu people to renege on that promise . . . it actually would be dangerous. I have relatives in the Rift and I can tell you they are not sitting pretty.”

For those who are neither Kikuyu nor Kalenjin, this rationale sounds like pure and simple blackmail: “If you vote for me, I won’t kill you.” The horror of this thinking cannot be overstated. If this blackmailing tool is what Kalenjins (read Ruto) are going to be using to win the next election, then we are in a very bad place indeed. It not only mocks our democratic right to live wherever we choose but also entrenches a mindset that views Kenya as belonging to only two tribes – the Kikuyu and the Kalenjin – whose agendas we have to accept regardless of whether they are against our own interests. And we must honour every deal they make with each other to stay in power.

If this blackmailing tool is what Kalenjins (read Ruto) are going to be using to win the next election, then we are in a very bad place indeed

It seems like a strange logic, but one that has become normalised in Kenya since 2013. Although many analysts insist that the UhuRuto victory was simply a mathematical probability, in that it united two of Kenya’s largest ethnic groups into one formidable voting bloc, thereby outnumbering the opposition, many also believe that the alliance was a pact based on the threat of violence. In addition, by declaring the election as a “referendum against the ICC [International Criminal Court]”, Uhuru and Ruto managed to galvanise two communities whose elites have held onto power since independence.

How did we get here?

It all started when Justice Philip Waki handed over the secret list of names of the suspected perpetrators of the 2007/8 post-election violence to the African Union’s envoy Kofi Annan in 2009. Kenya had the option to form a local tribunal within a year, but failed to do so. At that time, Raila Odinga, who was then the Prime Minister, had campaigned for the formation of such a tribunal, if for no other reason than that it would end speculation about the identity of the perpetrators.

When the ICC went ahead to charge the so-called Ocampo Six, including Uhuru Kenyatta and William Ruto, with crimes against humanity, Kalonzo Musyoka, who was then the Vice President, travelled to New York to try and convince the United Nations Security Council to defer the cases, ostensibly because “the ICC process has the potential to affect Kenya’s fragile stability”.

The whole episode was filled with intrigues and innuendos. Luis Moreno Ocampo’s threat that he would “make an example of Kenya” sounded childish, vindictive and selective. As I have commented before, why did the ICC not go after Mwai Kibaki, who was in charge of the security forces that unleashed much of the 2007/2008 terror and Raila Odinga, who was the leader of the party to which William Ruto belonged, and who did nothing to stop the violence?

Annan’s decision to hand over the secret list of names of the perpetrators to the ICC’s Chief Prosecutor was probably made in good faith but had the net effect of shrouding the ICC cases in ambiguity and secrecy. This ambiguity was exploited by Uhuru and Ruto, whose 2013 election campaign was pegged on the claim that they had been “fixed” and scapegoated by the likes of Raila and others who were using the ICC to get rid of their political rivals.

In the end, the ICC ended up delivering the presidency to Uhuru and Ruto. If the court had not relentlessly pursued the Kenyan cases (and bungled them), and if, as many believe, the election had not been rigged or manipulated by the likes of Cambridge Analytica, there would be no Jubilee government in place today. The ICC cases, therefore, had the unintended consequence of galvanising a nation against it.

Unfortunately, the social and economic cost of the UhuRuto political union has been unacceptably high. Kalenjin and Kikuyu politicians interpreted the truce between the two communities as a licence for theft and impunity. Members of the Jubilee government have been implicated in a looting spree of public coffers of a magnitude that has not been witnessed since the Moi years. Some would argue that the looting today is unprecedented, and has even surpassed that of the Moi era – a position that is supported by data coming out of the Auditor General’s office.

The lesson we might learn from this saga is that if political reconciliation between two groups results in the political and economic exclusion of other groups, there is no guarantee that electoral or other types of violence will not remain an option for the disenfranchised – with or without the ICC. The article by Kahura also suggests that the pact between the Kikuyu and the Kalenjin is built on a fragile foundation that can easily be destabilised by the threat of future violence.

The ICC cases against Uhuru and Ruto collapsed due to lack of sufficient evidence. It is entirely possible that key witnesses were intimidated, killed or silenced in other ways. However, Kenyans also know that the perpetrators of the violence are still walking freely in Nairobi, Naivasha, Nakuru, Eldoret, Kisumu and other places. Men who gang-raped grandmothers and chopped of their neighbours’ hands have not been arrested or charged with any crime, nor have they been ostracised by their communities.

Nor did Kenya establish Rwanda-style “Gacaca” courts to bring about reconciliation among aggrieved parties. The wounds of 2007/2008 have thus not yet healed. If true, the claim by William Ruto during a recent interview on NTV that the ICC case against him is being revived by his opponents to finish him will not heal these wounds either as many communities, not just the Kikuyu, also lost loved ones during that dark period. It would be naïve to believe that the ICC will deliver justice to the post-election violence victims because Ruto is now back in the dock.

The original sin

However, Kenyans’ wounds run deeper than the 2007/2008 trauma. These wounds can only heal if processes are put in place and serious efforts are made to address the structural and systemic causes of violence and greed in our society.

Structural and systemic violence has been part of Kenya’s DNA since before independence, and has often manifested itself in the forced eviction or displacement of people from their land. British colonialism in Kenya was in essence a violent land grab.

The first large-scale post-independence land grab began during the first few years of Jomo Kenyatta’s presidency when a resettlement scheme was implemented to “buy back” one million acres of land from white settlers in order to resettle displaced (mostly Kikuyu) Kenyans. Kenyatta had argued then that since the British colonialists and white settlers had taken land away from indigenous African communities, they were obliged to fund a large-scale settlement programme – using long-term loans with easy repayment conditions – to provide land to the landless.

It would be naïve to believe that the ICC will deliver justice to the post-election violence victims because Ruto is now back in the dock

However, a group led by Oginga Odinga, Bildad Kaggia and Paul Ngei opposed the buying of land for resettlement; they argued that Africans could not buy back land that was originally theirs, a contention that did not go down well with Kenyatta because “there were no free things and that land was not free, but must be purchased”. Kenyatta’s position mirrored that of the outgoing British colonial administration that made it clear that “African settlers could not get free land but were expected to either purchase it directly with their money or borrow the loan that was to be repaid to the British government”.

This first betrayal would be followed by many others. As the scheme operated on a “willing-seller-willing-buyer” basis, hundreds of thousands of people, particularly in the coast and Rift Valley regions, remained landless.

Interestingly, the scheme also offered loans to Africans who were not landless. In this group fell a select group of people who had been loyal to the colonial administration – the so-called homeguards – who gobbled up prime land in Central Kenya and the Rift Valley. Among this group were provincial commissioners, ministers, permanent secretaries and others within Kenyatta’s inner circle who would go on to become Kenya’s new ruling elite.

According to the report of the Truth, Justice and Reconciliation Commission (TJRC), “rich businessmen and businesswomen, rich and powerful politicians who were loyal to the colonial administration, managed to acquire thousands of acres at the expense of the poor and the landless.” Hence, “instead of redressing land-related injustices perpetrated by the colonialists on Africans, the resettlement process created a privileged class of African elites, leaving those who had suffered land alienation either on tiny unproductive pieces of land or landless.”

These alienated “lesser Kikuyus”, particularly those residing in the Rift Valley, have remained vulnerable to violence perpetrated by other ethnic groups as well as by their own ethnic group. (Recall the politically-instigated “ethnic cleansing” in the Rift Valley in the 1990s during the Moi regime and the shoot-to-kill-Mungiki order given by the late John Michuki in 2007.)

When Kenyatta died in 1978, there was a fear that his successor, President Daniel arap Moi, would reverse the Kenyatta-era land-related and other injustices by targeting Kikuyu elites who had benefitted from Kenyatta’s patronage. This fear, however, was unfounded – not only did Moi follow in Kenyatta’s footsteps by grabbing land for himself, he also entrenched a patronage network that mostly benefitted members of his own ethnic group, the Kalenjin.

Structural and systemic violence has been part of Kenya’s DNA since before independence, and has often manifested itself in the forced eviction or displacement of people from their land

Having experienced violence during the Moi regime, and having suffered under Kikuyu leadership (not even Mwai Kibaki could protect the Kikuyus in the Rift during the post-election violence of 2007/8) why would these Kikuyus now trust Moi’s protégé William Ruto and a (former?) Uhuru ally to protect them?

And if indeed, as Kahura notes, the choice is between the “devil and the deep blue sea”, why choose someone whose reputation is tainted with corruption and other misdeeds, including Youth for Kanu 92 shenanigans, not to mention crimes against humanity? Ruto is known to be a scheming and vindictive politician, a man who has the capacity to crush anyone opposed to him. Do we need someone with such a Machiavellian temperament at the helm?

Hoodwinking exercise

As for Raila, after the famous “handshake” between him and Uhuru, even some of his most ardent supporters are questioning whether he ran an opportunistic and cynical campaign as leader of the opposition and whether his main objective has always been to gain political power, not to fight for the rights of ordinary Kenyans. Many Kenyans are still recovering from his about-turn after being sworn in as the “People’s President” on 30 January 2018 at a rally attended by thousands, and after so many lives had been lost unnecessarily, including that of Baby Pendo.

Listening to the Building Bridges Initiative (BBI) rally in Mombasa on 25 January this year, one got the impression that none of the politicians present at the rally had any political ambitions, that Kenya was now one big happy family where everyone was expected to get along and think about the country first.

Politicians present at the rally, including Raila and his lieutenant James Orengo, urged wananchi not to think too much about the 2022 elections but to focus on nation-building. The rhetoric had an eerie resemblance to the “accept and move on” mantra of the Jubilee government when it took power in 2013. It was a hoodwinking exercise that made people believe that every single politician on the podium that day was not preparing a war chest with which to retain their seats in the next polls.

What was also omitted was the fact that the Independent Electoral and Boundaries Commission (IEBC) remains as inept and as corrupt as it was during the 2013 and 2017 elections, and that what worries Kenyans is whether they can trust this electoral body to conduct a free and fair election in 2022.

The endorsement of BBI by Kipchumba Murkomen, a diehard Ruto supporter, also suggested that the BBI was a national project that had nothing to do with personal ambition. The cooption of Ruto’s allies into the BBI fold could be just a survival tactic (or perhaps a form of deception?) to ensure that they do not miss out on the “eating”. As development consultant Jerotich Seii so aptly put it on Twitter, “The slices of the 2022 Succession Pie just got a little thinner because Tanga Tanga has brought itself firmly into the mix.”

Kilifi governor Amason Kingi emphasised that historical land injustices in the coast region must be addressed by the BBI, but there was no mention of the post-election violence victims, many of whom are still displaced, nor of the fact that the government of Mwai Kibaki spent millions of shillings on the TJRC whose recommendations on historical and other injustices have yet to be implemented.

The BBI is being sold to us as a project that in one fell swoop will wipe out all the evils in our society, including tribalism. But as other commentators have noted, if the Ndung’u Land Commission’s report and the TJRC report could not bring about radical reforms in Kenya, what hope is there that the BBI will? There is simply no political will to bring about reforms, particularly on land, because too many rich and powerful people will be adversely affected.

Between the devil and the deep blue sea, the only option in this case would be to choose neither. For the sake of Kenya, both Raila and Ruto should step aside and let someone who has a clean governance record vie for the top leadership in 2022. This would make the Uhuru succession politics less toxic and less polarised.

This leader’s top priorities would be to steer the country out of the deep economic morass that the Jubilee administration headed by Uhuru Kenytatta has got us into and to slay the twin dragons of corruption and tribalism that have bedevilled this country since independence. Hopefully, he or she will also be committed to implementing the myriad recommendations that have come out of the umpteen reports and commissions that aimed to make Kenya a more just and inclusive country.

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By

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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Land Title and Evictions in the Supreme Court of Kenya

Violent evictions of families from their homes are not exceptional events. They go to the heart of Kenya’s political economy and its long history of valorising the rights of those who hold private title.

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Land Title and Evictions in the Supreme Court of Kenya
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The Supreme Court of Kenya published its judgment in William Musembi v The Moi Educational Centre Co. Ltd. on the 16th July 2021. The case arose after fourteen families — the residents of two informal settlements, City Cotton and Upendo village in Nairobi — petitioned the High court following their evictions in 2013. They had lived on the land since 1968 when it was public land. The first respondent claimed that they had legitimately acquired title to the land by letters of allotment and that the land was therefore private land. According to Amnesty Kenya, the evictions began in the early morning, without warning. Groups of young men burst into homes. Four hundred homes were demolished and personal possessions were destroyed. Crowbars and sledgehammers were used. The police were present. They fired live ammunition and used teargas canisters during the operation.

In the High Court, Judge Mumbi Ngugi held that the petitioners’ rights to dignity, security, and adequate housing had been infringed. There had been a violation of the rights of children and elderly persons under the constitution. She awarded damages. At the Court of Appeal this judgment was partially set aside. While accepting that there had indeed been violations of the rights to dignity and security, the Court of Appeal nonetheless set aside the order of damages arguing that “there was no material before the court on the basis of which the orders for compensation were made” and that, because it was unable to work out how the damages had been quantified, “the only relief that should have commended itself to the trial Court was a declaration that the forced eviction and demolition of their houses without a Court order is a violation of their right to human dignity and security.” Following this, the petitioners appealed to the Supreme Court.

Importance of the Supreme Court judgment

The importance of this case is, as Gautum Bhatia has written, that it raised the question whether “the right to accessible and adequate housing could be applied inter se between private parties”. It can thus be distinguished from the same Supreme Court’s Mitu-Bell Welfare Society v The Kenya Airports Authority, which ruled on evictions from public land.

Amongst several issues for determination, the petitioners in the present case asked the court to reach a determination of the question whether the letter of allotment held by the first respondent, the Moi Educational Centre, was issued lawfully or legally. Because that question had not been conclusively determined at the High Court or at the Court of Appeal, the petitioners sought “a declaration that the acquisition of the suit property was illegal and unlawful.”

The Supreme Court declined to do this. Arguing that in the High Court Judge Mumbi Ngugi had been right in holding that the question of the propriety of the first respondent’s title was a matter for the National Land Commission and that it is the Land and Environment Court that properly has jurisdiction over this question, the Supreme Court held in William Musembi that “the title of the first respondent remains unimpeached”. Instead, it held, the only question it ought to determine was whether, in evicting the petitioners, the respondents violated the petitioners’ rights to human dignity and security, as well as the rights to housing and health.

It is on the basis of the “unimpeached” title of the first respondent that the court goes on to make its landmark finding. For determination by the court was the question whether the first respondent, being a private party, could nonetheless be responsible for the violation of constitutional rights. Recognising that “the mandate to ensure the realization and protection of social and economic rights does not extend to the first respondent” because it is a private entity which is not under any obligation to ensure the progressive or immediate realisation of those rights, the court found that private parties do nonetheless have a “negative obligation to ensure that it does not violate the rights of the petitioners.”

For Bhatia, the judgment’s significance lies partly in its finding that “a negative obligation not to interfere with socio-economic rights (such as the right to housing), …applies to both public and private parties” although he argues persuasively that “the distinction between negative and positive obligations is doing a lot of work” and that the concrete practice of evictions significantly blurs the boundary between public and private actors. He rightly notes that “evictions invariably involve concert of action between State forces and private landowners, with the latter relying upon the former (either directly, or through forbearance) to accomplish physically removing people from land.”

Public and private

If the distinction between negative and positive obligations is somewhat artificial, I also want to suggest that Kenya’s history of land grabbing shows that so too is the distinction between the state and private landowners. More than just state forces doing the bidding of private landowners, wielding batons and using bullets to break into homes in the early morning, in Kenya the state/private distinction is a mirage. In William Musembi, the court does not elaborate on the important history of letters of allotment in Kenya and the process by which they enabled public land to morph into private land. Instead, it affirms the first respondent’s title – and proceeds to make an important ruling on the obligations of private actors. However, the history of land grabbing and the murky past of letters of allotment is a critical one to keep at the front of our minds.

For determination by the court was the question whether the first respondent, being a private party, could nonetheless be responsible for the violation of constitutional rights.

The report of the Commission of Inquiry into the Illegal/ Irregular Allocation of Public Land established in 2003 set out in forensic detail the illegal and irregular land awards made over the years using the mechanism of the letter of allotment. Awards of land were made to the families of Presidents Kenyatta and Moi, numerous former ministers, members of parliament and civil servants, as well as to individuals in the military and the judiciary. The report sets out how out of proximity to the state, private property owners were created. Public land – land set aside for the building of public health clinics or schools for example – mysteriously turned into private land on which malls, private residences, and diplomatic headquarters appeared. No doubt some individuals acquired perfectly legitimate letters of allotment. But from the 1970s onwards, a thriving market in improper letters of allotment developed. They came to be treated as tradable land documents. Widely but mistakenly used as land titles (with the collusion of lawyers), they changed hands quickly in sales of grabbed land. This was done in order to get the benefit of the principle that an innocent third party for value without notice takes good title. The full extent of this practice is unknown: the Ndung’u Commission warned that its report provided only a snapshot of the illegal/irregular land allocations that had taken place over the years.

I have written elsewhere that land grabbing is sedimented in Kenya’s political economy such that we can describe it as a “grabbed state”. The “normal” economy is founded on accumulation by dispossession. It is not possible to understand Kenya’s political economy without an understanding of how the normal and the supposedly abnormal are pervasively linked. Far from land grabbing being an aberrant phenomenon that can be sharply distinguished from normal business practice, the illegal and irregular appropriation of land structures Kenya’s economy.

Widely but mistakenly used as land titles (with the collusion of lawyers), they changed hands quickly in sales of grabbed land.

There is no operative distinction between the public and the private in Kenya. This makes the judgment in the present case even more consequential: given the history of these murky conversions in title, the judgment’s finding that negative constitutional obligations can attach to private actors is likely to cover a great many potential eviction scenarios. Indeed, I would argue that given the history of land described above, the court should have gone further. Grounding its reasoning in Kenya’s history of land grabbing and the dispossession and discrimination that resulted, it could have held that positive socio-economic obligations (such as providing alternative accommodation) should extend to private parties. Or it might have held that given the extent of land grabbing — which is a matter of public record — the state should not agree to enforce a court order for eviction until it is satisfied that alternative accommodation has been provided.

Entrenching private property

Welcoming the Supreme Court’s judgment, Bhatia has noted that it “continues the welcome trend of judicial scepticism towards entrenched property rights.” The court demonstrated this scepticism by extending negative constitutional obligations to private actors. However, to do so, the Supreme Court moved to confirm the respondent’s title. That title it described as “unimpeached”. The court used this as the basis for setting out the first respondent’s obligations as a private owner. The extension of constitutional obligations to private actors is to be welcomed. But it is important to recognise also that by refusing jurisdiction to question the first respondent’s title – and ruling that this is a matter for another forum – the Supreme Court effectively sanctioned the enclosure of what the appellants claimed was unalienated public land and potentially legitimated the grabbing of public land.

The court does not elaborate on the important history of letters of allotment in Kenya and the process by which they enabled public land to morph into private land.

Instead, the Supreme Court might have used Art. 23 which provides for the authority of courts to uphold and enforce the Bill of Rights, to try to fashion a remedy. It could have expressly referred the question of the integrity of the first respondent’s title to the National Land Commission rather than state as unequivocally as it did that it is unimpeached. At the very least, given the importance of a letter of allotment and the question of title in the case, the court should have rehearsed Kenya’s history of land grabbing and corruption as revealed by the Ndung’u report so as to give it judicial notice and provide a starting point for the wider task of challenging ill-gotten titles by those who might seek to do so.

Reinstating Judge Mumbi Ngugi judgment in the High Court and in particular her finding that damages should be paid to those evicted, the Supreme Court ordered the first respondents, the Moi Educational Centre, to pay fourteen families KSh150,000 (just over 1000 euros) each in damages. The government will also pay each family KSh100,000. In return, unless the National Land Commission or the Land and Environment Court are asked to rule on the propriety of the first respondent’s title and find against them, the Moi Educational Centre now hold unimpeached title to very valuable land in Nairobi. That is quite a windfall.

Violent evictions of families from their homes are not episodic and exceptional events. They go to the heart of Kenya’s political economy and its long history of valorising the rights of those who hold private title, however acquired. How far can the courts be relied upon to undo accumulation by dispossession?

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South Africa Has to Heal Its Troubled Past – and the Time Is Now

If there is no material justice and investment in healing the generations of harm enacted onto South Africans, the rot in the country’s wounds will overcome them.

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South Africa Has to Heal Its Troubled Past – and the Time Is Now
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Social unrest”—though others may prefer “riots and looting,” “food riots,” or “insurrection”—have swept South Africa since Monday. It’s unsettled an already unsettled nation. And as with all South Africa’s heightened moments, our historic fault lines have been re-exposed. Racial and ethnic divisions, class antagonisms, xenophobia, questions of violence and its use. These are some of our wounds that have never been treated. Over the last decades we’ve covered them with patriotic bandages, unity slogans and surface-level performances of a shared national consciousness. But the wounds have opened again now, and as the country bleeds, the rot is open for all to see. Flashing moments tell an incomplete but tragic story of the reality unfolding in our country.

Impoverished communities with limited prospects, rejoice as they leave megastores with stolen food and essential resources. Elderly women are seen taking medication that they otherwise could not afford. A father exits a store with nappies (diapers) for his child. Families that have struggled with eating daily meals suddenly have food for a month.

Elsewhere, in the historically Indian community of Phoenix, an elderly man is surrounded by people from a nearby  informal settlement. He is commanded that he needs to hand over his home, or otherwise will face attacks on his family in the dead of night. In the night, drive-by shootings claim lives as stray bullets shatter family homes.

Armed Indian and white “vigilantes” drive around shooting African people they assume are looters. Hunting them down while recording vicious videos, beating them with sjamboks as the person begs for their lives.

These videos are shared and watched repeatedly across social media, racially charged viewers salivate with a carnal sense of pleasure as one racial group watches the other suffer and bleed.

At least 15 people are killed by armed community members of Phoenix. They blockade roads entering the community, racially profiling people, preventing them from access to functioning supermarkets. Bodies are found in the night. #PhoenixMassacre trends on twitter echoing disgust and outrage at the anti-black sentiment within the South African Indian community.

The home of Thapelo Mohapi, the spokesperson of Abahlali BaseMjondolo, the shack dwellers movement in KwaZulu-Natal that safeguards working-class interests, has his home burnt down on Wednesday morning. Mohapi, like most in Abahlali, is outspoken against ANC corruption and political violence in the country, with Abahlali members often the targets for political killings.

Shacks burnt down in response to the looting. Reports of xenophobic attacks by the rioters. Families terrified as gunshots break their windows. Small community stores torched. Blood banks and clinics ransacked. Essential foods become scarce, gas stations close.

The excitement of people getting access to expensive TVs, furniture, alcohol, and commodities they would not be able to access otherwise. Because in South Africa we know that nice things are reserved for a minority—and you either have to be crazy lucky and gifted, or crazy devious and connected, to escape the poverty cycle.

This is the status quo of our neocolonial, violent and divided country. Every snapshot from the riots reveals a new layer of a tragedy we’re all too familiar with but have made no substantial material effort to address to this point. And now the rot in our open wound has become septic.

In the midst of all this mess and complexity, many are now left trying to make sense of where they stand regarding these riots—with the mask of a shared national consciousness being ruthlessly peeled back — some who thought they understood their political standings are having to rethink their position after being thrust into a violent situation where racial and class perceptions pre-determine their position for them.

Orchestrated or Inevitable?

Acentral question on people’s minds is who is responsible for the unfolding events. How much of it is orchestrated as part of the #FreeZuma campaign that sparked this moment with former President Zuma’s arrest, and how much is simply an overflow from the desperate situation a majority of South Africans find themselves in. The reality is, of course, complex. Reports from activists on the ground and observers indicate the riots are likely made up of multiple forces.

Some are believed to be political agents of the pro-Zuma faction of the African National Congress ANC, using chaos to fight their battle against President Cyril Ramaphosa. These agents are known to have organized the initial demonstrations and are believed by some commentators to continue funding transport for rioters and operating in the background to hamstring the local economy. Some now attribute this orchestrated terror with the targeted burning of key distribution centers, factories, network towers, and trucks.

Others involved are not politically linked to a factional ANC agenda or desire to destabilize the country. They are there because the moment has presented families with access to food under dire circumstances and the opportunity for temporary relief from the dredges of poverty. One may say that their situation is being purposefully manipulated by political agendas, but the material reality of their situation is no less real. Individuals from well-known working class organizations that are strongly anti-ANC in all forms have reported taking part in looting as the moment allowed for sorely needed aid to struggling communities.

And of course, with any mass gathering, there are simply those criminal elements who use the moment with malicious intent, stirred by past and present grudges, looking to impose power and fear on those they see as “other.” Yet, these malicious sentiments exist on both the “sides” of the rioters and those responding to them. It is every person’s right and entitlement to defend themselves, their family, and personal property from harm against malicious forces. But much of this defence and protection of what is dear  has morphed into older desires to harm, dehumanize, and kill those considered “other.” How much of our violence in the name of defence is rooted in the historic rot we’ve left untreated from colonialism, apartheid, and a world that hates poor people?

Military intervention

Many are in support of the President Cyril Ramaphosa’s position that the army be deployed to quell the riots, looting, and violence. They argue for an armed, militant, and potentially lethal response.

Part of this rationale is in response to the signs of orchestration and mobilization by pro-Zuma political forces. As some of the actions show signs of being organized and targeted strikes, they will not subside organically and so the use of intelligence and organized force would be necessary to intervene. This tactical move acts in support of the President Cyril Ramaphosa and preserving the current status quo of South Africa.

The other reason is that the racial conflict between communities has reached such a heightened state that many fear an echo of the Durban Riots of 1949. With armed vigilantes enacting destruction, racial profiling, and vicious killing onto those they brand “looters”—  and the responsive revenge cycles this opens up—there can be no road that does not lead to further death. And right now there is no Steve Bantu Biko and his dear friend Strini Moodley to lead us back on the path towards a more human face.

However, even in the face of this leadership vacuum, military intervention is short sighted, ahistoric, and temporary at best. The wounds are all open now, the military cannot heal, only repress.

Ultimately the scale and intensity of these riots have very little to do with political infighting within the ANC and the tensions between communities could not be set alight if there was not already kindling of unresolved tensions. The material conditions of South Africa indicate that it’s been ripe for mass political uprising for years now. With grants cut under lockdown, youth unemployment over 70%, service delivery a mess or none existent, trust in government, media and political parties at record lows—there seems to be meagre hope for South Africans on the wrong side of the poverty line—and very little to lose.

Whether it’s an orchestrated plot by devious political agendas, a student throwing poop on a colonial statue or an increase in bread prices as was seen in South America—a spark is all that’s needed to set alight a desperate people.

The best case scenario with military intervention this time is further repression of people’s material frustrations. If people die, the situation becomes further inflamed. When the next spark goes off the riots will be more organized, with living memory of the injustices of this moment. And if not organized by our dysfunctional Left, it will be led by reactionary forces. Most dangerous of all is, as with other examples from history, as military forces play a greater role in a country’s internal policing, they become more used to enacting power over its populace, and ambitious autocrats rise up their ranks in military command.

With military intervention, we admit that the violence and death that will be enacted on the working class populace is worth a return to South Africa’s abnormal normal. The violence of this moment simply transferred back to those who held it silently a week ago.

Repression and military enforcement of a violent status quo is not the answer. Material conditions need to change, people need to be fed, grants need to be returned and our septic wounds that have laid open for centuries need urgent attention.

If there is no material justice and investment in healing the generations of harm enacted onto us—and by us—the rot in our wounds will overcome us. And we will become the rot.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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They Are Watching You: Israeli-Made Spyware Used to Monitor Journalists and Activists Worldwide

The use of spyware to surveil, harass, and intimidate journalists and activists — and those close to them has become a key activity for many governments worldwide.

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They Are Watching You: Israeli-Made Spyware Used to Monitor Journalists and Activists Worldwide
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In Hungary, Szabolcs Panyi exposed spy intrigue and murky arms deals. In India, Paranjoy Guha Thakurta probed the ties between business and political interests. In Azerbaijan, Sevinj Vaqifqizi caught vote-rigging on tape.

Separated by thousands of miles, these journalists have one thing in common: their governments considered them a threat.

All three were among dozens of journalists and activists around the world whose smartphones were infected by Pegasus: spyware made by Israeli firm NSO Group that is able to secretly steal personal data, read conversations, and switch on microphones and cameras at will.

The attacks were revealed by The Pegasus Project, an international collaboration of more than 80 journalists from 17 media organizations, including OCCRP, and coordinated by Forbidden Stories.

What Does ‘Selected for Targeting’ Mean?

The phones of Panyi, Thakurta, and Vaqifqizi were analyzed by Amnesty International’s Security Lab and found to be infected after their numbers appeared on a list of over 50,000 numbers that were allegedly selected for targeting by governments using NSO software. Reporters were able to identify the owners of hundreds of those numbers, and Amnesty conducted forensic analysis on as many of their phones as possible, confirming infection in dozens of cases. The reporting was backed up with interviews, documents, and other materials.

The strongest evidence that the list really does represent Pegasus targets came through forensic analysis.

Amnesty International’s Security Lab examined data from 67 phones whose numbers were in the list. Thirty-seven phones showed traces of Pegasus activity: 23 phones were successfully infected, and 14 showed signs of attempted targeting. For the remaining 30 phones, the tests were inconclusive, in several cases because the phones had been replaced.

Fifteen of the phones in the data were Android devices. Unlike iPhones, Androids do not log the kinds of information required for Amnesty’s detective work. However, three Android phones showed signs of targeting, such as Pegasus-linked SMS messages.

In a subset of 27 analyzed phones, Amnesty International researchers found 84 separate traces of Pegasus activity that closely corresponded to the numbers’ appearance on the leaked list. In 59 of these cases, the Pegasus traces appeared within 20 minutes of selection. In 15 cases, the trace appeared within one minute of selection.

The strongest evidence that the list really does represent Pegasus targets came through forensic analysis.

Amnesty International’s Security Lab examined data from 67 phones whose numbers were in the list. Thirty-seven phones showed traces of Pegasus activity: 23 phones were successfully infected, and 14 showed signs of attempted targeting. For the remaining 30 phones, the tests were inconclusive, in several cases because the phones had been replaced.

Fifteen of the phones in the data were Android devices. Unlike iPhones, Androids do not log the kinds of information required for Amnesty’s detective work. However, three Android phones showed signs of targeting, such as Pegasus-linked SMS messages.

In a subset of 27 analyzed phones, Amnesty International researchers found 84 separate traces of Pegasus activity that closely corresponded to the numbers’ appearance on the leaked list. In 59 of these cases, the Pegasus traces appeared within 20 minutes of selection. In 15 cases, the trace appeared within one minute of selection.

In a series of responses, NSO Group denied that its spyware was systematically misused and challenged the validity of data obtained by reporters. It argued that Pegasus is sold to governments to go after criminals and terrorists, and has saved many lives. The company, which enjoys close ties to Israel’s security services, says it implements stringent controls to prevent misuse. NSO Group also specifically denies that it created or could create this type of list.

But instead of targeting only criminals, governments in more than 10 countries appear to have also selected political opponents, academics, reporters, human rights defenders, doctors, and religious leaders. NSO clients may have also used the company’s software to conduct espionage by targeting foreign officials, diplomats, and even heads of state.

Based on the geographical clustering of the numbers on the leaked list, reporters identified potential NSO Group clients from more than 10 countries, including: Azerbaijan, Bahrain, Hungary, India, Kazakhstan, Mexico, Morocco, Rwanda, Saudi Arabia, Togo, and the United Arab Emirates.

Journalists and Activists in the Crosshairs

In the coming days, OCCRP and other Pegasus Project partners will release stories highlighting the threat of surveillance through misuse of NSO Group software around the world. But to start with, we will focus on some of the most egregious cases: the use of spyware to surveil, harass, and intimidate journalists and activists — and those close to them.

Among those on the list were multiple close relations of Jamal Khashoggi, the Washington Post columnist who was murdered and dismembered by Saudi operatives in the country’s Istanbul consulate. Forensic analyses show that Khashoggi’s Turkish fiancée, Hatice Cengiz, and other loved ones and colleagues were successfully compromised with NSO Group software both before and after Khashoggi’s 2018 killing. (NSO Group said that it has investigated this claim and has denied its software was used in connection with the Khashoggi case.)

Sandra Nogales, the assistant of star Mexican journalist Carmen Aristegui, was also targeted with Pegasus through a malicious text message, according to a forensic analysis of her phone.

Aristegui had already known that she was a Pegasus target. Her case was featured in a 2017 report by Citizen Lab, an interdisciplinary laboratory at the University of Toronto. Still, “it was a huge shock to see others close to me on the list,” Aristegui told The Pegasus Project.

“My assistant, Sandra Nogales, who knew everything about me — who had access to my schedule, all of my contacts, my day-to-day, my hour-to-hour — was also entered into the system.”

Several reporters in OCCRP’s network were among the at least 188 journalists on the list of potential targets. They include Khadija Ismayilova, an OCCRP investigative journalist whose uncompromising reporting has made her a target of the kleptocratic regime of the country’s president, Ilham Aliyev. Independent forensic analysis of Ismayilova’s Apple iPhone shows that Pegasus was used consistently from 2019 to 2021 to penetrate her device, primarily by using an exploit in the iMessage app.

Ismayilova is no stranger to government surveillance. Roughly a decade ago, her reporting led her to be threatened with compromising videos that she learned to her horror had been shot with hidden cameras installed in her home. She refused to back down, and as a result had the footage broadcast across the internet.

But even after this, Ismayilova was shocked by the all-consuming nature of her surveillance by Pegasus.

“It’s horrifying, because you think that this tool is encrypted, you can use it… but then you realize that no, the moment you are on the internet they [can] watch you,” Ismayilova said. “I’m angry with the governments who produce all of these tools and sell it to the bad guys like [the] Aliyev regime.”

Panyi and his colleague András Szabó, both OCCRP partner journalists in Hungary, also had their phones successfully hijacked by Pegasus, potentially granting their attackers access to sensitive data like encrypted chats and story drafts. As investigative journalists at one of the country’s few remaining independent outlets, Direkt36, they had spent years investigating corruption and intrigue as their country became increasingly authoritarian under the rule of Prime Minister Viktor Orban.

Now they found out that they were the story.

For Panyi, the descendant of Jewish Holocaust survivors, something stung in particular: that the software had been developed in Israel, and exported to a country whose leadership regularly flirts with antisemitism.

“According to my family memory, after surviving Auschwitz, my grandmother’s brother left to Israel, where he became a soldier and soon died during the Arab-Israeli war of 1948,” Panyi wrote in a first-person account of learning he had been hacked. “I know it is silly and makes no difference at all, but probably I would feel slightly different if it turned out that my surveillance was assisted by any other state, like Russia or China.”

The alleged surveillance list includes more than 15,000 potential targets in Mexico during the previous government of President Enrique Peña Nieto. Many were journalists, like Alejandro Sicairos, a reporter from Sinaloa state who co-founded the journalism site RíoDoce. Data seen by The Pegasus Project show Sicairos’ phone was selected as a target for NSO Group’s software in 2017 shortly after his colleague, prominent journalist Javier Valdéz, was shot dead near RíoDoce’s office.

Others on the list were regular people thrust into activism by Mexico’s chaos and violence. Cristina Bautista is a poor farmer whose son, Benjamin Ascencio Bautista, was one of 43 students abducted in Iguala, in the Mexican state of Guerrero, in 2014 and remains missing until this day. The case shook Mexican society to its core and prompted Bautista and other parents to take to the streets in protest, and to assist independent experts in their own investigations.

The vocal stance taken by Bautista and other parents put them directly in the sights of Mexican authorities and Peña Nieto, who denounced the protests as destabilizing the country.

“Oh yeah, they were watching us! Whenever we went, a patrol followed us,” she said.

“They were chasing us.”

A “Natural Tool” for Autocrats

While The Pegasus Project exposes clear cases of misuse of NSO Group’s software, the company is just one player in a global, multi-billion-dollar spyware industry.

Estimated by NSO managers to be worth approximately $12 billion, the mobile spyware market has democratized access to cutting-edge technology for intelligence agencies and police forces that, in years past, could only dream of having it.

“You’re giving lots more regimes an intelligence service,” said John Scott-Railton, a senior researcher at Citizen Lab. “Like a foreign intelligence service in a box.”

Like many private spyware companies, NSO Group’s stock in trade is so-called “zero-day exploits” — previously undiscovered flaws in commercial software that can allow third parties to gain access to devices, such as mobile phones. Pegasus and other top tools enjoy a particular strength: They are often able to infect devices silently, without the user even having to click a link.

Such tools have given governments the edge amid the widespread adoption of encrypted messaging applications, such as WhatsApp and Signal, which otherwise supposedly allow for users to communicate beyond the reach of state surveillance. Once devices are successfully compromised, however, the contents of such apps become readily available, along with other sensitive data like messages, photographs, and calls. Meanwhile, the ubiquity of mobile phone cameras and microphones means they can be easily accessed by spyware clients as remote recording devices.

While The Pegasus Project exposes clear cases of misuse of NSO Group’s software, the company is just one player in a global, multi-billion-dollar spyware industry.

“In order to bypass [encrypted messaging] you just need to get to the device at one or the other end of that communication,” said Claudio Guarnieri, head of Amnesty International’s Security Lab. Pegasus does just that. “Pegasus can do more [with the device] than the owner can. If Signal, for example, encrypts the message… [an attacker] can just record using the microphone, or take screenshots of the phone so you can read [the conversation]. There is virtually nothing from an encryption standpoint to protect against this.”

In fact, there isn’t much anyone can do to protect themselves from a Pegasus attack. Guarnieri is skeptical of applications that claim they are completely secure, and instead recommends mitigating the risks of spyware by practicing good cybersecurity hygiene. “Make sure to compartmentalize things and divide your information in such a way that even if an attack is successful, the damage can be minimized.”

At its heart, The Pegasus Project reveals a disturbing truth: In a world where smartphones are ubiquitous, governments have a simple, commercial solution that allows them to spy on virtually whoever they want, wherever they want.

“I think it’s very clear: Autocrats fear the truth and autocrats fear criticism,” said Scott-Railton of Citizen Lab.

“They see journalists as a threat, and Pegasus is a natural tool for them to target their threats.”

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