“Public participation calls for the appreciation by State, Government and all stakeholders implicated in this appeal that the Kenyan citizenry is adult enough to understand what its rights are under Article 34 [of the Constitution]. In the cases of establishment, licensing, promotion and protection of media freedom, public participation ensures that private “sweet heart” deals, secret contracting processes, skewed sharing of benefits-generally a contract and investment regime enveloped in non-disclosure, do not happen. Thus, threats to both political stability and sustainable development are nipped in the bud by public participation. Indeed, if they did the word and spirit of the Constitution would be both subverted.” – Communications Commission of Kenya & 5 Others v Royal Media Services Limited & Others  eKLR, para 381.
The role of constitutions and law in social transformation
The role of law in social transformation has a long genealogy when posed as a question about whether law and the courts can advance, stagnate or impede transformation and revolution. This question, once the source of serious and continuous jurisprudential debates, has acquired a consensus that law, indeed, has a role to play in societal transformation and revolution. This multi-disciplinary consensus is shared by lawyers, economists, policymakers, politicians, international organisations, and think tanks.
The debate on the new phenomenon of transformative constitutionalism has been both enriched and transformed by this consensus. The very idea of a transformative constitution (such as those of India, Colombia, South Africa, Ecuador, Venezuela, Bolivia, and Kenya) is the idea that the constitutional superstructure is embedded in a theory that it will be an instrument for the transformation of society rather than a historical, economic and socio-political pact to preserve the status quo as the earlier constitutions did. Constitutions and law have a class content. The superstructure does not merely conform to the economic base passively.
Issues of base and superstructure need creative and undogmatic re-analyses given the changing contexts and circumstance of the world. It should be argued that the dialectical relationship between the base and superstructure will need creativity, innovation, lack of dogma in the varying economic, political, social, ideological, cultural, and intellectual contexts without losing sight of the original revolutionary messages and expected revolutionary outcomes. This approach takes into account the limitations of transformative constitutions and constitutionalism as a basis for understanding revolutionary constitutions of the past, such as the Bolshevik, Chinese, Cuban, and Vietnamese ones. Meanwhile, transformative constitutions are about mitigating the status quo that societies find unsustainable and unacceptable.
While still on the issue of relations between base and superstructure, the constitution and law are part of the superstructure as is politics. The base determines the long movement of history. Most African states were governed by laws that did not recognise Africans as citizens. In my view, these vital aspects of the superstructure are significant forces in the short to immediate term. I would add, however, that they play either a progressive or a retrogressive role depending on the way they are used to fight the base (in our day and age, imperialism) or reinforce it. Whether these aspects play a progressive role, whether they have transformative potential depends on who uses them and how. And this depends mainly on the quality of political leadership and authentic opposition in all countries.
Judicial leadership is integrated in such leadership. I believe progressive forces in the Judiciary can use the constitution and law in moving society towards fundamental transformation. They will do that by developing progressive jurisprudence out of the constitution and the law, accepting that judicial officers do politics, and that their institution, the judiciary, is an institutional political actor.
We, the people of Kenya
Modern transformative constitutions – under which the Kenyan one falls – address two fundamentally critical pillars that anchor societal development: the equitable distribution and use of political power and land and natural resources of the country. The two pillars are the basis of survival, promise of democracy, equity, and prosperity in a nation. They impact the struggles for freedom, emancipation, struggles against exploitation, domination and oppression. These struggles are internal as well as external. It is these struggles that capture, going forward, a new nation, and a new planet that is peaceful, non-militaristic, free, just, equitable, ecologically safe, prosperous, and in my books, socialist. It is only the people the world over who can make this vision a reality. The 2010 Constitution puts Kenyans in this trajectory of struggle. It seeks to mitigate the status quo that is unacceptable and unsustainable while becoming a basis for further struggles towards freedom and emancipation.
The constitution-making process that birthed the 2010 Constitution was people-driven. The consultations with the Kenyan people were robust. The debates on whether the people’s will was reflected in the many drafts that were considered was an extension of the struggle to ultimately guarantee that the Constitution was a people’s constitution. Once in place, the implementation of the Constitution triggered yet another struggle in the constitution-making process. The Constitution Implementing Constitution, Parliament, and courts became central in the struggle to breathe life into the new Constitution. That struggle still continues.
There can be no doubt in the provisions of the 2010 Constitution about the centrality of the Kenyan people in its implementation. In the Preamble it is We, the people of Kenya that ADOPT, ENACT and give this Constitution to ourselves and to our future generations. Chapter One of the Constitution is appropriately titled Sovereignty of the People and Supremacy of the Constitution. Article 1 (1) & (2), respectively, provide that “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution” and “The people may exercise their sovereign power either directly or through their democratically elected representatives.”
The constitution-making process that birthed the 2010 Constitution was people-driven. The consultations with the Kenyan people were robust.
Kenyans are further called upon under Article 3 (1) “to respect, uphold and defend this Constitution.” Although English and Kiswahili are the official languages of the Republic of Kenya under Article 7, the State is obligated to “promote the development and use of indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities.” Under Article 10, participation of the people is one of the national values and principles of governance. In reinforcing this value, other relevant values are patriotism, national unity, human dignity, democracy, equity, human rights, rule of law, non-discrimination, protection of the marginalised, integrity, transparency, accountability, and sustainable development. Under Article 11 the “Constitution recognises culture as the foundation of the nation and the cumulative civilization of the Kenyan people and nation.”
The Kenyan Bill of Rights, under Chapter 4, is perhaps the most progressive in the world. It gives Kenyans the promotion and protection of their whole gamut of political, civil, economic, social, and cultural rights. (However, it must be noted that the Bill of Rights has its limitations. It is not clear on the protection of gay rights. Land rights are still based on the protection of private property under Article 40. Although there is a category of community land, the fundamental land regime is one that protects land as a commodity, making the ownership and use of land the root cause of poverty and gross inequalities.) Article 22 (1) in the Bill of Rights states “Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or threatened.” Article 258 (1) provides that “Every person has the right to institute court proceedings claiming that this Constitution has been contravened or is threatened with contravention. Article 22 (2) and Article 258 (2) decree robust sovereignty of Kenyans as individuals and in the public interest.
All these provisions are the basis of Kenyan citizens and institutions developing robust jurisprudence of public interest litigation (PIL) in the protection of the Bill of Rights, in particular, and the Constitution in general. These provisions give Kenyans the responsibility to protect the Constitution from subversion by Parliament, state institutions, the executive, and/or external forces that could, through investment agreements or military pacts, subvert our Constitution. (We need to glorify the work of Katiba Institute and Okoiti Omtata for breathing life into these provisions. Katiba Institute works with individuals or social movements to take up cases in their interest. So does, Omtata. One hopes that going forward the Law Society of Kenya will take up serious and robust public interest litigation, as provided under the Law Society Act.)
The sovereign power of the Kenyan people is delegated or donated to Parliament (whose members the Constitution decrees be individuals of integrity). The Constitution also provides for how political parties are to mobilise people. Article 81 provides for “free and fair” elections that deliver electoral justice to Kenyans. So, the “legislative authority of the Republic is derived from the people” under Article 94. So are executive and judicial authorities “derived from the people” under Articles 129 and 159, respectively.
The sovereign power of the Kenyan people is delegated or donated to Parliament (whose members the Constitution decrees be individuals of integrity). The Constitution also provides for how political parties are to mobilise people.
All the structures under the national and county executive, such as finance and security, also derive their authority from the people of Kenya. Commissions created under Chapter 15 have one of their objects “to protect the sovereignty of the people” of Kenya. The peoples’ sovereignty reigns supreme in matters of amending the Constitution under Articles 255-257. Article 259 provides for a theory of interpreting the Constitution that is pro-people and cognisant of the people’s economic, social, cultural, spiritual, and political struggles that underpin the word and spirit of the Constitution.
Reality or lip service?
I would like to comment on two case studies, namely, the Makueni County Experiment and the current political initiative called the Building Bridges Initiative (BBI). In my view, the former case study breathes life into the sovereignty of the people while in the latter case the political leadership subverts that same sovereignty.
Case Study 1: The Makueni County Experiment
There is no doubt that the Makueni County Experiment in the implementation of the 2010 Constitution has caught the imagination politicians, public intellectuals, civil society groups, and foreign interests represented by the diplomatic missions in Nairobi. There has been consistent bench-marking to Makueni by governors of other counties. The media could have participated robustly in these bench-marking trips, but that has not been the case.
Makueni is, indeed, a beacon of progress in the implementation of the Constitution. The robust public participation and civic education in matters of county governance are a reflection of the reality of the sovereignty of the people. Makueni County has a county agenda discussed right from the grassroots in a six-tier consultation process. In matters of governance, Makueni County has made a reality of the constitutional requirement of the people’s authority. The county has donated its executive political power to the grassroots in the County Agenda. The consensus reached in the Agenda cannot be varied by the County Assembly or the leadership of the County Government. Monitoring of budgets and the implementation of the Agenda is subjected to robust public participation.
The political leadership of Makueni County is known to be incorruptible. It accounts in a transparent manner the resources entrusted to it by people. Some key projects have become the talk of the country: universal healthcare; scholarships; factories; and other projects in compliance with the county agenda such as the mango and milk plants; and innovative research on education as a public good. Partnerships with foreign interests have been on the basis of the vision of the county, a good precedent in negotiation after the county clearly knows its interests.
It does not surprise me that the Makueni Experiment has not been glorified by the political leadership in this country. Recognising beacons of incorruptibility, progress, public participation, and transparent accountability of resources is the last project the political leadership wishes to see.
Makueni County’s narratives of incorruptibility, good governance, public participation, donating executive power of the county to the grassroots, implementing a county agenda borne out of people’s participation, and allowing monitoring and policing of county budgets and projects should have been the case study the BBI engaged with seriously.
Case Study 2: The Presidential Taskforce on Building Bridges to Unity Advisory (popularly known as BBI)
“We must undertake a major consultation, in the form of an inclusive national conversation culminating in a major conference with the single aim of producing a vision of a unique Kenyan civilisation 100 years from today.” – BBI report, page 100.
“If BBI has failed to unite 6 Kenyans [ethnic barons], [namely] Raila, Ruto, Uhuru, Kalonzo, Mudavadi, and Wetangula, how can it unite 47 million Kenyans?” – Post on Twitter
On page 7 of its report, the BBI Taskforce states who it interviewed:
“The Taskforce heard from more than 400 elected leaders past and present; prominent local voices from the community; and young people who added their voices to citizens in the Counties. This included more than 35 Governors and their Deputies as well as dozens of Senators, MPs, and MCAs in the Counties and in Nairobi. Submissions were given by 123 individuals representing major institutions, including constitutional bodies and major stakeholders in the public and private sectors; 261 individuals and organisations who sent memoranda via email; and 755 citizens who offered handwritten submissions during public forums in the Counties. Kenyans made their views heard as individual citizens, institutionally, and based on diverse interests and experiences. This report reflects their views and insights.”
The BBI, given the sample of consultations above, has the audacity to shamelessly announce from the rooftops that the “Kenyan people have spoken!”
After reading pages 7-17 and 100-126 of the BBI report, I have only come up with burning questions, all involving the implementation of the Constitution. It seems to me that this effort should have been restricted to the political leadership to account for the failures that the report narrates in the nine issues it focuses on. The political leadership could have been asked to give reasons for:
- Their continued politics of division and disunity;
- Their failure to implement national ethos in the 2010 Constitution;
- Their failure to guarantee the independence of national institutions;
- Their failure on the so-called war on corruption;
- The continuing gross violations of human rights of the Kenyan people by state authorities;
- Their failure to restructure the colonial provincial administration system, as decreed by the Constitution, and to reinforce county governance;
- Divisive, corrupt, unfree, not peaceful, unacceptable elections;
- The Executive seeking to claw back constitutional provisions that guarantee the decentralisation and democratisation of the imperial presidency through equitable distribution of political power, land and natural resources of the nation and the defence of devolution;
- The utter failure of political parties to comply with the provisions of Article 91 of the Constitution on the basic requirements for political parties; and the failure of the government to give capacity to the Registrar of Political Parties to police, monitor, deregister and hold political parties accountable in their obedience of the Constitution;
- The deliberate subversion of the national value and principle of inclusiveness through political alliances of the “Big Five” communities to the exclusion of all others;
- The continued wastage and theft of national resources and the failure to implement the many reports of the Auditor-General and other Commissions set to investigate the issue of corruption;
- Their failure to conduct forensic lifestyle audits that were to start with the President and his Deputy;
- Not entrenching of Article 43 on economic and social rights in political platforms and national policy;
- Their failure to reduce the mounting sovereign national debt and its disastrous economic, social, and political consequences;
- Their failure to submit development funds to the counties and to audit the effectiveness of the 15% currently given to the counties;
- Their failure to secure the lives and properties of the people of Kenya;
- The impotency of the Summit of the 48 governments;
- Their failure to make healthcare, housing, water, education, food and the environment public goods, as envisaged by Article 43 of the Constitution; and
- Their failure to transparently account for the authority that the people of Kenya donated to the political leadership.
The Taskforce could have focused on good practices (apparently there were not many) in the implementation of the Constitution. The Taskforce paid lip service to public participation, as is clear from the report.
It does not surprise me that the Makueni Experiment has not been glorified by the political leadership in this country. Recognising beacons of incorruptibility, progress, public participation, and transparent accountability of resources is the last project the political leadership wishes to see.
BBI reminds me of the Saitoti Committee tasked with finding out if Kenyans wanted multiparty democracy. Although the response from the people was in the affirmative, the Committee chose to report to President Moi that the people did not want political pluralism. Here the BBI did not ask the political leadership the reasons for not implementing the Constitution, but goes on to give recommendations that beg that question. The BBI put the cart before the horse. The BBI is a monumental political distraction and an abdication of the national interest for the interests of the ruling Kenyan elite. The BBI provides a golden political opportunity for those who are agitating for an alternative political leadership in Kenya to birth, nurture and consolidate it.
One county governor told me once that the 2010 Constitution gave birth to a beautiful healthy baby whose protection and security was entrusted to a ruling Kenyan elite that was a master in trafficking children’s body parts! A great metaphor that I believe is as pessimistic as it is true.
BBI reminds me of the Saitoti Committee tasked with finding out if Kenyans wanted multiparty democracy. Although the response from the people was in the affirmative, the Committee chose to report to President Moi that the people did not want political pluralism.
However, the metaphor underestimates the resistance of the Kenyan people in the protection of their baby. While the Kenyan elite continues to pay lip service to the implementation of the Constitution, the people of Kenya resist this elite and focus on making the 2010 Constitution a reality in its economic, social, cultural, political, and ideological vision. It mitigates the current status quo in Kenya that the people find unsustainable and unacceptable.
Implementing the 2010 Constitution can be the basis – if given the right political party or environment – of our imagination and thinking of a Kenyan society that is just, free, peaceful, non-militaristic, ecologically safe, equitable, prosperous, and socialist.
This lecture by the former Chief Justice, Dr. Willy Mutunga, was delivered on 10 February 2020 to post-graduate students at The East Africa Institute of the Aga Khan University (EAI) in partnership with IGLUS (iglus.org)
Lumumba’s Iconography in the Arts
On anniversary of the birthday of Patrice Lumumba, the first prime minister of an independent Congo, we ask, “What iconography arose around him, and why is that iconography so diverse?”
Patrice Emery Lumumba’s career as Congo’s first post-independence prime minister lasted only three months before he was arrested and executed five months later. Yet he lives on as idea, meme, symbol, icon, model, logo, metonym, specter, image, figure, and projection.
For four years I edited a book, Lumumba in the Arts, that examines Lumumba’s iconography. That book is now available.
Although Lumumba has won a place equal to other political icons like Malcolm X, Che Guevara, and Nelson Mandela, and although an equally rich or even richer imagery has developed around him, his iconography has remained underexposed and unannotated.
In fact, it is a rich iconography. It includes a whole range of renderings and portrayals, spans the whole range of media, and encompasses a variety of representations. It is no coincidence that a historical figure such as Patrice Lumumba has taken on an imaginary afterlife in the arts. After all, his project remained unfinished and his corpse was never buried.
Lumumba’s diverse iconography already started with the different names he received such as Élias Okit’Asombo (heir of the cursed), Nyumba Hatshikala l’Okanga (the one who is always implicated), Osungu (white), Lumumba (a crowd in motion), Okanda Doka (the sorcerer’s wisdom), or Omote l’Eneheka (the big head who detects the curse), starting from his childhood. His iconography was furthered during his lifetime, especially through songs and by the press, but most expressions, however, arose after his death.
Since his murder, Lumumba has been appropriated through painting (e.g. Chéri Samba, William Kentridge), photography (e.g. Sammy Baloji, Robert Lebeck), poetry (e.g. Henri Lopez, Ousmane Sembene), music (e.g. Pitcho, Miriam Makeba), film (e.g. Raoul Peck, Zurlini), theater (e.g. Aimé Césaire), and literature (e.g. Barbara Kingsolver) as well as in public spaces, stamps, and cartoons. No single form of art seems to escape Lumumba. While at first sight his iconography seems to oscillate between demonization and beatification, it is the gap between these two opposites that has proven to be fruitful for a very polymorphic iconography, one which, amongst many things, observes the memory and the undigested suffering that inscribed itself upon Lumumba’s body and upon the history of the Congo.
Notable exceptions such as Patrice Lumumba entre Dieu et Diable. Un héros africain dans ses images, edited by Pierre Halen and János Riesz, and A Congo Chronicle. Patrice Lumumba in Urban Art, edited by Bogumil Jewsiewicki, are foundational and seminal to my work on Lumumba’s iconography in regards to mostly literature and poetry in the first case, and to painting in the second one.
Two questions guided our work: What iconography arose around Lumumba and why is that iconography so diverse? One of the most striking paintings about Lumumba is Les pères de la démocratie et de l’indépendance by Sam-Ilus (2018). The painting demonstrates both the beatification of Lumumba and the political recuperation of his figure. It critically shows that artistic creations of Lumumba’s figure and the scenes in which he is reconfigured provide anything but a window on historical veracity; rather, they often reinvent him for political reasons. In this example, Patrice Lumumba is aligned with the anti-Lumumbist Etienne Tshisekedi, who followed Albert Kalonji on his secessionist adventure in Kasai against the central government of Lumumba, and who is the father of the current president of the Democratic Republic of the Congo, Felix Tshisekedi. In contrast to the more realistically depicted Etienne Tshisekedi (who died in 2017), Lumumba—who died almost sixty years earlier—is more abstracted and iconized. In the image, Lumumba is the reference: the model to aspire to. Tshisekedi tries to pose like him and identify with him, looking for political legitimation and atonement from sin. But whereas Lumumba has both arms up, Tshisekedi is still trying to find the right balance and is not very confident of receiving expiation. Lumumba does not seem to be very happy being cast in this reunion with his foe. His upper body, which is slightly averted from his companion, betrays some discomfort. Not only does Lumumba “seem distrustful because Tshisekedi is probably complicit in his death,” as the artist Sam-Ilus explained to me in a personal interview, but—I would add—also because his figure is being appropriated and dragged into a misplacement. Apart from the beatification, political recuperation, and the contrast with history, Sam-Ilus’s painting also illustrates that the meanings ascribed to Lumumba depend on the interplay of differences and oppositions within the construct. Moreover, these meanings are not fixed but deferred along l’hors cadre: those people below Lumumba holding their protest signs, that is, and also the other artworks in the book, as well as those not reproduced in the book, and those yet to come. The cover thus functions as a possible portal to other fictions that defy to a greater or lesser extent what Alexie Tcheuyap calls the triple censorship inflicted on Lumumba: censorship against his person (his murder), against his discourses, and against all attempts to constitute an alternative discourse on his existence.
The answer to the first question—as to what iconography arose around him—depends on the different art forms, which the book discusses in relation to historiography in the first part, and which the book divides into different chapters in the second part (cinema, theater, photography, poetry, comics, music, painting, and public space). Throughout the different art forms, we can distinguish an iconography that has been grafted onto a Judeo-Christian tradition (as both diabolization or beatification) from a more profane trend. Remarkably, the Janus-faced figure of the scapegoat/martyr—the most recurrent figure among all the different and even contradictory things that Lumumba stood for—are to be found in both. The answer to the second question—why such a diverse iconography – will be answered from as many angles as there are authors. However, four interrelated realms keep recurring: the spectral, the postcolonial, the martyr, and the political.
By discussing the rich iconographic heritage bequeathed to us by Lumumba and by reflecting on the different ways in which he is being remembered, we do not only answer the two questions that guided our work, but hope equally to contribute to this imagery by making his absence more present, though without laying his legacy to rest.
Why Winning a Seat at the UN Security Council is Nothing to Write Home About
The UN Security Council is not a club of equals. The ten rotational non-permanent members of the fifteen-member Council, including Kenya, do not pose a serious threat to the five veto-holding permanent members – though membership does give the former the illusion of being influential.
The Kenyan government has been congratulating itself for securing a seat at the United Nations Security Council, perhaps believing – mistakenly – that such a “privilege” will somehow allow it to influence security issues affecting the African continent and will bestow on Kenya some kind of legitimacy that it did not enjoy before.
After Kenya was voted into the Security Council last month (after beating Djibouti in a second round of voting), the country’s Foreign Affairs Cabinet Secretary, Rachel Omamo, stated: “Kenya will [now] have an opportunity to shape the global agenda and ensure that our interests and the interests of Africa are heard and considered. We now have a voice at one of the most important decision making forums”.
Kenya has now joined a long list of countries that eventually hold membership in the Security Council, which is rotational except for the five countries that have permanent seats and veto-holding power, an arrangement that was made by the victors of World War II, who assigned themselves permanent status in the Council, ostensibly because they could be most relied on not to start another world war. The Council consists of 15 members, of which 10 are rotational non-permanent members elected for two-year terms. The non-permanent members may have a say in decisions made by the Security Council, but the ultimate decision rests with the five permanent veto-holding members, namely the United States, Britain, France, Russia and China – also known as the P-5.
The UN Security Council is not a club of equals. The ten non-permanent members of the Council do not pose a serious threat to the P-5, though membership does give these countries the illusion of being influential. In fact, one might even say that Security Council resolutions amount to little, and are acted upon only if all of the five permanent members agree on them unanimously. Disagreements within the P-5 can stall and even stop resolutions and decisions from being implemented.
So non-permanent status has little or no impact on important security-related decisions. The only countries whose opinions matter are the P-5. And the P-5 can make unilateral decisions with only cursory or tokenistic reference to the non-permanent members. So, in essence, nothing moves at the Security Council without P-5 approval.
Let me give you just a few examples of how ineffectual occupying a non-permanent seat in the Security Council can be.
The Security Council did not intervene in Rwanda to prevent a genocide
Rwanda was elected as a non-permanent member of the Security Council in 1994, the very year a horrific genocide took place in that country. The UN Security Council did little to prevent the genocide that ravaged the country and left at least 800,000 people dead. There is speculation that France (a P-5 member) did not want to interfere in the conflict; in fact, Rwanda’s president Paul Kagame has often accused France of being party to the genocide, a claim the latter has denied.
On its part, the United States had a hands-off approach towards conflicts in Africa, having burnt its fingers in Somalia the previous year when 18 American soldiers were killed in Mogadishu during a so-called humanitarian operation, and so it looked the other way when Rwandans were being slaughtered. Meanwhile, Rwanda, the non-permanent member, sat back and watched the genocide unfold before the world’s eyes.
So if the role of the Security Council is to prevent crimes against humanity and war crimes and to promote peace, why is it that it failed miserably in preventing mass killings in a small African country? In fact, why did the UN’s Department of Peacekeeping Operations, which takes instructions from the Security Council, withdraw troops from Rwanda just when the country needed them most? And why did Kofi Annan, the head of UN peacekeeping at the time, order Roméo Dallaire, who was in charge of the peacekeeping mission in Rwanda, to not to take sides as “it was up to the Rwandans to sort things out for themselves”? (Annan later explained to the journalist James Traub that “given the limited number of men Dallaire had at his disposal, if he initiated an engagement and some were killed, we would lose the troops”.)
In his book Shake Hands with the Devil, Dallaire talks of being extremely frustrated with his inability to convince the UN in New York to allow him to take actions that could have saved lives, if not prevented the genocide from taking place in the first place. In fact, prior to the genocide, when Dallaire informed his bosses that militias were gathering arms and preparing for mass killings, “the matter was never brought before the UN Security Council, let alone made public”, according to the writer David Rieff, author of A Bed for the Night: Humanitarianism in Crisis.
The UN’s tendency to flee a country experiencing conflict or disaster is very common, as many Rwandans will attest. As génocidaires roamed freely in Rwanda, UN officials were busy packing their bags and catching chartered flights to neighbouring countries. And the UN Security Council members, including Rwanda, remained mum.
The UN Security Council – and by extension, the UN as a whole – has lost its moral authority over other human rights issues as well. For example, at the height of the Black Lives Matter protests in New York (where the UN Secretariat is based), Antonio Guterres, the UN Secretary-General, issued a memo to all UN staff asking them to refrain from participating in the demonstrations, ostensibly because as international civil servants, they were expected to remain apolitical and neutral. Maina Kiai, the former UN special rapporteur on freedom of assembly, condemned the Secretary-General’s directive, saying it was “conflating the right to protest and racial equality with political partisanship”.
The Black Lives Matter protests occurred when the United States was experiencing a rise in COVID-19 cases and deaths. The pandemic, which has the potential to become an international security issue (economies that suffer high levels of unemployment and inequality tend to generate disaffection and political unrest, which can sometimes result in armed conflict), has yet to be discussed at the Security Council.
The Security Council did not impose sanctions on the US and Britain for going to war with Iraq
The UN Security Council did absolutely nothing to prevent the United States and Britain from going to war with Iraq in 2003. In fact, the United States went ahead and invaded Iraq in March of that year shortly after making a rather unconvincing argument at the Security Council that Saddam Hussein was harbouring weapons of mass destruction. (No such weapons were found in Iraq.) Yet no member of the Security Council (except France, which made an impassioned plea against the war) had the clout to force the United States and Britain not to go to war.
Even though the then UN Secretary-General, Kofi Annan, declared the war “illegal”, as it did not have the unanimous approval of the Security Council, there was nothing much he could do. And despite widespread anti-war protests around the world, President George Bush and Prime Minister Tony Blair went ahead with their misguided plan, which some estimate cost more than 600,000 Iraqi civilian lives. Further, the Security Council did not vote to impose sanctions on the US and Britain for waging an illegal war for the obvious reason that the countries waging the war were part of the P-5.
Ironically, but not surprisingly, a decade earlier, in 1991, the Security Council had imposed sanctions on Iraq for invading and annexing parts of Kuwait.
The Security Council has failed to protect civilians caught in conflict
Now let’s go to peacekeeping, the raison d’être of the Security Council. Currently there are 13 UN peacekeeping missions around the world, mostly in African countries, including the Democratic Republic of the Congo (DRC), Mali, South Sudan and Western Sahara. However, as the case of Rwanda shows, there is little evidence that the presence of peacekeepers significantly reduces the threat of conflict in these countries or protects civilians.
The UN’s largest peacekeeping mission is in the DRC. Since 1999, MONUSCO, the UN’s stabilising mission in the DRC, has deployed thousands of troops to the country. Yet the DRC, arguably the world’s most mineral-rich country, remains the site of much poverty, conflict and human rights abuses as militias and the Congolese army fight to control mining areas and extract taxes.
Human rights organisations have for years raised the alarm on human rights violations, including rape, committed by both the army and armed groups, but the violence and abuse doesn’t seem to stop. It is estimated that millions have died as a result of resource-based conflicts in the country. The mineral-rich eastern part of the country has also been described as “the rape capital of the world”, where sexual violence is systematically used as a weapon of war.
The question arises: Despite a large presence of peacekeeping troops in the DRC, why are civilians still not safe? Could it be that some peacekeepers might in fact be party to the conflict? Scandals involving the illegal sale of arms by UN peacekeepers have been reported. In May 2007, for instance, the BBC reported that in 2005 UN peacekeeping troops from Pakistan had been re-arming Congolese militia (whom they were supposed to be disarming) in exchange for gold. A Congolese witness claimed to have seen a UN peacekeeper disarm members of the militia one day only to re-arm them the following day. The trade was allegedly being facilitated by a triad involving the UN peacekeepers, the Congolese army and traders from Kenya.
UN peacekeepers in conflict areas have also been reported to have sexually abused or exploited populations they are supposed to be protecting. An investigation by the Associated Press in 2017 revealed that nearly 2,000 allegations of sexual abuse and exploitation by UN peacekeepers had been made in troubled parts of the world. (This number could be a gross underestimation as the majority of victims of sexual exploitation or abuse do not report their cases.)
Peacekeeping missions have also been reported to have underplayed the scale of a conflict in order to prove that they are doing a good job of keeping the peace. When Aicha Elbasri, the former spokesperson for the African Union-United Nations Mission in Darfur (UNAMID), reported that UNAMID and the UN’s Department of Peacekeeping Operations routinely misled the media and the UN Security Council about crimes, including forced displacement, mass rape and bombing of civilians, committed by Sudanese government forces in Darfur, the UN failed to investigate her allegations. It only carried out an internal inquiry after she resigned in protest in 2013 and when the International Criminal Court (ICC) ordered the UN to do so; to this day the UN has not made the inquiry’s findings public, contrary to the ICC’s demand that such an inquiry be “thorough, independent and public”.
Elbasri later publicly released thousands of emails, police reports, internal investigations and diplomatic cables that exposed the failure of the UN to protect millions of Sudanese civilians under its protection.
The P-5 have a vested interest in the military-industrial complex
It is not lost on many people that the P-5 have a vested interest in wars in faraway places because wars keep their military-industrial complexes running. The weapons industry is huge, and countries that supply arms and military equipment would not like to the threat of war to fade away.
When wars occur in far-off places, arms manufacturers have a field day. Wars in former French colonies in Africa keep France’s military industrial complex well-oiled. Wars in the Middle East are viewed by British and American arms manufacturers as a boon for their weapons industries. If there were no wars or civil conflicts in the world, these industries would not be so lucrative.
It was no surprise then that Donald Trump’s first official foreign visit was to Saudi Arabia, which has been buying arms worth billions of dollars from the United States for decades. Arms from the US have kept the Saudi-led war in Yemen going. The connection between arms sales and the arms manufacturers’ silence on human rights violations committed by countries which buy the arms became acutely visible during that visit. This also explains Trump’s lukewarm response to the murder of Saudi journalist Jamal Khashoggi at the Saudi consulate in Istanbul.
The Security Council has put no pressure on the United States – which contributes almost a quarter of the UN’s budget – to rethink its policy towards arms sales to Saudi Arabia and other countries. On the contrary, the UN’s campaign in Yemen, for example, is not about ending the war, but raising donations for the millions of Yemenis who are suffering as a result of Saudi-led bombings.
Make the Security Council more representative
The UN Security Council was established 75 years ago at a time when countries went to war with each other, and when Western powers had experienced severe physical and economic destruction and the loss of millions of lives. However, today’s most deadly wars are being waged by insurgents or terrorist groups, such as the Islamic State in Iraq and Syria, which have become transnational. The Security Council is not equipped to handle this new threat. New forms of international cooperation are required.
If Kenya wants to have real influence in the UN Security Council, it should lobby for the Council to be expanded and be made more representative and democratic. Countries in Africa, Asia and Latin America (regions that hold the majority of the world’s population), must demand to be included as permanent members. Permanent membership should be allocated to those countries that have no vested interest in the weapons industry and which have not waged war in other countries since the Security Council was established in 1945 – countries that are genuinely committed to world peace. No country should have veto powers. Maybe that would make membership in the Council more democratic and meaningful.
However, even if this happens, membership might not amount to much as long as the UN’s purse strings are controlled by a few rich and powerful countries which can sway other countries to vote in their favour and as long as some members have an interest in ensuring that their military-industrial complexes remain operational for a long time. Kenya, being a donor-dependent country, can therefore easily be influenced by rich donor countries. This is how the world, including the Security Council, operates.
The Upright Man: A Sympathetic Critique of Thomas Sankara
The judgment that Sankara was a hero rests in part on what was politically possible in Burkina Faso in the early 1980s.
Over the past few years, several, partly scathing critiques of African political heroes have been published in larger works of history and ethnography. Thus the Patrice Lumumba of David Van Reybrouck’s Congo is a young, inspiring man whose fiery rhetoric outstrips his coalition-building and governance capacity; the Kwame Nkrumah of Jemima Pierre’s Predicament of Blackness is simultaneously the exponent of a pan-Africanism that was merely “nominally powerful,” and a political leader “dependent” on colonial and industrial apparatus.
Although other, longer-lived revolutionaries from decolonisation and the Cold War saw their stars fade as their time in office extended, the reputation as a worthy presidential martyr enjoyed by Thomas Sankara, who led a short-lived revolution in Burkina Faso, has only grown. Since his death in 1987, he has been hailed as Africa’s Ché Guevara, and seen as a beacon of good and selfless governance. As with Ché, he’s turned into a beret-clad icon with an aura of cool that transcends the tedium of policy.
What shape might a sympathetic critique of Thomas Sankara take?
The life and times of the late Joseph Ki-Zerbo, a leader of regional independence movements originating from Haute (Upper) Volta (how Burkina Faso was known before Sankara took power), and the lifelong face of its leftist opposition, offers a clue. Prior to the 1980s, Ki-Zerbo, as a leader of the Voltaic left before, during, and after independence, was widely respected for his historical and analytic perspectives as well as his political participation, and his unwillingness to compromise his socialist principles for an opportunity of increased power. Haute Volta was rocked almost from the start by a series of coups, and Ki-Zerbo never found a government that he could join with a clear conscience.
At the time when a number of West African states gained their independence. Ki Zerbo had given up a career track in academia (he studied in Mali as well as at the Sorbonne and Sciences Po in Paris) to go to work in government and serve as a public representative: first as a civil servant for Sekou Touré in Guinea-Conakry, the first French colony to gain its independence. Ki Zerbo returned to Haute Volta before Touré’s regime in Conakry turned autarkic and self-consuming. Then, in Haute Volta, Ki Zerbo took up a seat on the opposition benches of parliament, working on things like education policy while the country was being rocked by a series of coups.
Sitting in his country’s parliament, and influenced by his experience studying with the Senegalese historian Chiekh Anta Diop, and by the ideas of the Malian ethnographer Amadou Hampâté Bâ, Ki Zerbo spent years leading the development of a primary school curriculum that tried to reconcile traditional Sahelian ways of knowing with Western-style, classroom-based pedagogy. Before he could do much with his curriculum, Sankara, a young army captain who had been given ever-more powerful portfolios in a series of putschist regimes in Ouagadougou, came to power in a coup in 1983 with the help of his colleague Blaise Compaoré. He quickly renamed the country Burkina Faso, or the Land of Honest Men, and ushered in a remarkable slate of policies: among other things, he broke the country of its decades-long dependence on imported foodstuffs, and put in place unprecedented policies promoting gender equality.
Sankara wore camouflage into office, but his policies harkened back to the heady and hopeful early days of Touré in Guinea, making it all the more surprising when Ki-Zerbo, fearing for his life at the hands of Sankara’s military administration, joined a stream of politicians and professionals who went into voluntary exile from the country.
The Sankara years were marked both by forthright policies and the political repression that led to the most talented members of the political and bureaucratic classes joining reactionaries and incompetents in flight abroad.
Four years into his revolution, Sankara was murdered in another coup; this one installed Blaise Compaoré, minister of defense and a one-time close Sankara ally, as head of state. Ki-Zerbo stayed away for as long as Sankara ruled, returning only after he was executed. The self-sufficiency, anti-corruption, and general moral rectitude of the Sankara years slipped rapidly into the past. Ki-Zerbo, no stranger to being outside of government, found little to like in Compaoré’s platform and regime, and resumed his status as leader of the principled opposition upon his return. In 2008, late in a book-length interview with René Holenstein, Ki Zerbo outlined the difficulties he had with Sankara.
Ki-Zerbo argued that by coming to power in another coup, and thus being required to be suspicious of everyone in the political establishment, including his ideological and partisan allies, Sankara ensured his own immediate failure, setting the ground for a continuation of the countercoups and crack-downs that had already become commonplace. In his view, what was needed was not a better coup-leader, but a turn toward realistic governance.
But Ki Zerbo also held up another figure as a hero he could get behind: the Burkinabé journalist, Norbert Zongo, murdered in 1998 by Compaoré’s army. Ki-Zerbo, no stranger to academic discourse, talks about Zongo as a member of the Gramscian civil society, noting that at the time, civil society declined to align itself forthrightly with the political opposition, preferring a stance of neutrality. That didn’t prevent Zongo, who got his start in the government-sanctioned press, from aggressively covering the excesses of the Compaoré regime, something he continued to do from within the country even after his own life was threatened. From his perch as founder and editor of the newspaper, L’Independant, he investigated the government. When in 1998, this meant looking into the torture and death of the chauffeur of Compaoré’s brother, Zongo and three others were assassinated by agents of the state.
Zongo’s death electrified the opposition, civil society, and progressives in Ouagadougou and other major cities; Ki-Zerbo said that it helped persuade civil society to drop its non-coordination stance in opposition to Compaoré’s government, culminating in more than a decade later in youth protests and coordinated action from the political opposition, civil society, and dissident factions of the military forced Compaoré from power.
It’s easy enough to see why Ki-Zerbo, who repeatedly declined opportunities to exercise political power when he thought he’d be joining administrations that didn’t operate in the long-term interest of the country, might prefer an outsider like Zongo to a cunning political actor like Sankara. And while Ki-Zerbo doesn’t say it himself, it’s possible to imagine that Zongo’s bravery in continuing his work from Ouagadougou even when he knew his life was in danger made the journalist someone he could look up to, having faced a similar challenge in his own career.
Over the last decade, repressive governments around the world have come to recognize the oppositional power of civil society, heavily regulating organizations, raiding offices, and arresting leaders, while painting civil society as a pathway for foreign influence. But in the 1990s, a journalist could still surprise the government and the opposition alike by doggedly pursuing his leads about government malfeasance, and publishing his findings far and wide.
The extent to which a person may agree or disagree with Ki-Zerbo’s critique of Sankara is likely dependent on context. Ki-Zerbo clearly thought that Burkina Faso was, in the mid-1980s, poised for a government that could include a variety of committed voices; furthermore that the rise of Sankara and Compaoré in 1983 set the stage for Compaoré’s nearly three decades of reaction and repression. But if an observer sees the entire last quarter of the 20th century as an insurmountable political dark night of the soul, then the shining example of Sankara, however quixotic it may have been in the moment, would show itself to be just the sort of light in the darkness that could demonstrate to later politicians and citizens what it means to be a leader of principle. The judgment that Sankara was a hero, then, rests in part on a deeper judgment as to what was possible in Burkina Faso in the early 1980s.
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