“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)
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Lessons From India’s COVID Calamity
Neglect of the public healthcare system, suppression of scientific information and sacrificing citizen welfare for political mileage have led to the public health crisis facing India today.
An Australian newspaper called it “Modi’s COVID apocalypse”. The Indian activist and author Arundhati Roy calls it “a crime against humanity”. These descriptions of India’s current public health crisis may seem alarmist, but they are not far from the truth. By the end of April, India was recording more than 300,000 new COVID infections and nearly 3,000 deaths per day, a 30-fold increase from September last year, when the country reported a new infection rate of 11,000 per day. Media reports are showing overflowing crematoriums and hospitals overwhelmed by the number of patients seeking treatment. Reports of people dying in ambulances outside hospitals because the latter did not have enough beds or oxygen cylinders reveal a healthcare system that is on its knees.
However, according to those who are witnessing the catastrophe first-hand, the horrifying images shown in the local and international media are just a microcosm of what is really happening on the ground. Even those with money and connections are unable to secure the healthcare they need. Barkha Dutt, a famous media personality in India who lost her father to COVID last week, told ITV that despite her privileges and connections, she could not get access to the treatment her father needed. She never imagined that she would become the story that she has been covering for months. She said lack of drugs and equipment in New Delhi’s hospitals is even forcing people to go to Sikh temples, which are supplying oxygen for free to those who need it. Many families in New Delhi and other large cities are treating their sick relatives at home with oxygen cylinders, some bought at exorbitant rates on the black market. Crematoriums cannot keep up with the number of bodies arriving at their gates. The smell of death is everywhere.
Many of the current deaths are not exclusively due to the virus, but also to a lack of preparedness on the part of India’s healthcare system, which suddenly became overwhelmed due to a dramatic spike in corona cases. Analysts say the easing of restrictions and complacency on the part of Indians in general led to the crisis. People went back to work and continued with their daily lives as if there was no pandemic. The winter wedding season was in full swing in cities like New Delhi.
On its part, the government did little to avert the crisis by allowing the Kumbh Mela, the world’s largest religious gathering that is held along the banks of the Ganges river, to take place. The gathering became a superspreader event, as did the many political rallies held in states like West Bengal, which were attended by hundreds of people. At one such rally, Prime Minister Narendra Modi even boasted that the presence of large numbers of people at the rallies showed that his political party, the Bharatiya Janata Party (BJP), had massive support. Social distancing and wearing of masks were not prevalent at these crowded meetings.
In January, Modi told leaders at the World Economic Forum that India had “saved humanity from a disaster by containing corona effectively”. He said that India had defied expectations of “a tsunami of corona infections”. Now he is having to eat his own words. Not only has India, the world’s second most populous country, become the epicentre of the disease – with new aggressive variants being reported every week – but it is in the very awkward position of having to seek aid from other countries, including its long-time rival Pakistan, which has offered to help. The UK, USA and other governments plan to send oxygen and other medical supplies to India.
India has tended to view itself as a regional economic powerhouse, and so being reduced to a recipient of humanitarian aid is having a wounding effect. This is not how Modi, whose Hindu nationalist rhetoric has ignited a “Hindu First” movement in India, would like India to be viewed. India’s prime minister now finds himself reduced to having to accept medical aid for a country that has marketed itself as a destination for medical tourism and the “pharmacy of the world” that manufactures affordable drugs for developing nations. The Serum Institute of India is currently producing a large proportion of the AstraZeneca vaccine that is being rolled out in many countries. But Modi has decided to nationalise the institute as well, and has banned exports of the vaccine until the country sorts out its own health crisis, leaving millions of people around the world, including Kenya, in limbo.
India’s public healthcare system was already strained before the pandemic. The government spends a measly 1 per cent of its budget on health. The medical needs of Indians are met mostly by the private sector. Nearly 80 per cent of the healthcare in urban areas is provided by private facilities. In rural areas, 70 per cent of the population relies on private clinics and hospitals, which are unaffordable for the majority. This privatisation of healthcare has come at a huge cost. Poor Indians suffer disproportionately from preventable diseases. Malnutrition rates among mothers and children are also among the highest in the world. What we are witnessing is how neglect of public healthcare systems can have long-term negative consequences, especially during a disaster or an epidemic.
India is also a lesson in how leaders can impact the spread of a disease. Since he took office, Prime Minister Modi has tried very hard to control public perceptions about his achievements and the virtues of the BJP, which he has filled with spin doctors who try to present a rosy image of India under his leadership. Several journalists have been arrested under Modi’s watch and media organisations that call him out are dismissed as unpatriotic. News channels in India are dominated by pro-government news anchors and journalists who have twisted the narrative in favour of Modi, even when he stands in the way of press freedom. In March 2020, in the early days of the pandemic, Modi asked India’s Supreme Court to stop media organisations from publishing any COVID-related news without getting government clearance first. Thankfully, because the Supreme Court is obliged to protect the rights and freedoms enshrined in India’s constitution, including freedom of the press, the court refused his request.
What we are witnessing is how neglect of public healthcare systems can have long-term negative consequences.
Like Jair Bolsonaro in Brazil and Donald Trump in the USA, Modi underplayed the scale of the pandemic and painted independent media and journalists who questioned his policies as enemies of the people. As a result, more than half a million Americans, nearly 400,000 Brazilians and some 200,000 Indians have died from COVID-19. The link between a paranoid, media-hostile leadership and negative health outcomes is evident in these cases.
Many independent journalists and observers believe that the official figures on COVID deaths and infections put out by the Indian government are a gross underestimation, and that the actual figures could be two or three times more than those that are being reported. Crematoriums are reporting more cremations adhering to COVID protocols than what is being given as the official death toll from COVID-19. This could be partly because many deaths are occurring at home and so are not being reported. In addition, people who die from COVID but who were not tested are not recorded as having died from the disease.
Meanwhile, the BJP government, is assuring India’s 1.4 billion citizens that it is doing everything to increase the supply of oxygen and increase vaccination levels among those over the age of 18, but these measures are coming a little too late. The death toll is likely to rise significantly over the coming weeks.
Lack of trust in the government may be the biggest hurdle countries face as they try to contain the virus. In Kenya, the theft of COVID-19 donations last year and massive corruption scandals at the state-run medical supplies agency, KEMSA, have severely diminished citizens’ faith in the government’s willingness and ability to protect them. Moreover, apart from periodic lockdowns and curfews, there seems to be no strategy on how prevention measures will be instituted in the long term. Also no one is quite sure when vaccination will reach “herd immunity” levels; people like me who have received their first dose of the AstraZeneca vaccine under the COVAX facility – a global mechanism for pooled procurement and distribution of vaccines for low and middle income countries – still don’t know for sure if they will get their second jab, a scenario complicated by the fact that Modi has temporarily banned the Serum Institute from exporting the vaccines.
India has three important lessons for Kenya and the rest of the world.
Lesson 1: Do not neglect the public healthcare system
Countries around the world such as South Korea and Uganda that have successfully contained the coronavirus, managed to do so because the containment measures were led and funded by the public sector. Mass testing and other measures could not have taken place if the government did not initiate them, and ensured their successful implementation through a nationwide network of public healthcare facilities. But for this to happen, people must have faith in the government, which is sorely lacking in many countries.
The emphasis on private healthcare in countries such as Kenya and India has also left millions of poor and low-income people completely vulnerable to epidemics and pandemics. Public healthcare systems in all countries should be beefed up so that countries are not caught unawares in the future. Like public education, public health is an investment that reaps economic and social dividends in the future. COVID-19 has shown us the folly of relying solely on the private sector to meet citizens’ health needs and the importance of investing in robust public health systems that play a key role in detecting, containing and stopping the spread of infectious diseases.
Lesson 2: Do not suppress or distort scientific information and data
Donald Trump and Jair Bolsonaro consistently underplayed the threat posed by the novel coronavirus disease. Trump initially referred to it as a minor flu even as hospital beds were filling up, and even as infection rates were rising. Both leaders also mocked the wearing of masks and social distancing, which American and Brazilian scientists advocated. Trump’s rallies were filled with people who ignored corona protocols. In India, some politicians even said that the pandemic was a hoax intended to prevent farmers in Punjab from organising protests against the government’s agriculture policies. By ignoring the science, and peddling false information, these leaders put their countries’ citizens in immense danger. Vilifying the press – which is often the public’s main source of corona-related data and information – in the face of a pandemic is also not a good idea.
Lesson 3. Do not sacrifice public health to gain political mileage
Politicians should not sacrifice people’s lives at the altar of politics. Prime Minister Modi could have banned pilgrims from attending the Kumbh Mela, just as he ordered a nationwide lockdown early last year. But he chose not to do so because he wanted to appease Hindus and his Hindu nationalist base. In addition, he attended massive political rallies where few people wore masks, thereby facilitating the spread of the virus. He put people’s lives in danger because he wanted to score political points for his party. In the United States and Brazil, leaders chose to keep the economy running even if it meant losing hundreds of thousands of lives. In Kenya, politicians engaged in Building Bridges Initiative (BBI) rallies even as corona cases were rising. Moreover, parliamentarians are discussing BBI amendments to the constitution rather than what measures could be taken to protect Kenyans not just from the coronavirus disease and its various variants, but also from the hardships they have had to endure in the past year due to job losses and business closures. This is the type of shortsightedness and lack of compassion and vision among the country’s leadership that has led to the public health crisis facing India today.
Towards an African Revolution: Fanon and the New Popular Movement (Hirak) Engulfing Algeria
Sixty years after the death of the revolutionary Frantz Fanon and the publication of his masterpiece, The Wretched of the Earth, Algeria is undergoing another revolution. In the first of a two-part blogpost, Hamza Hamouchene provides a brief historical account of Fanon’s anti-colonial thought, his critique of the postcolonial ruling elites and the new popular movement (Hirak) engulfing Algeria.
During the upheavals that the North African and West Asian region witnessed a decade ago – what has been dubbed the ‘Arab Spring’- Fanon’s thought proved to be as relevant as ever. Not only relevant, but insightful in helping to grasp the violence of the world we live in, and the necessity of a sustained rebellion against it.
Fanon’s wrote during in a period of decolonisation in Africa and elsewhere in the Global South. Born in Martinique, a French colony in the Caribbean, though Algerian by choice, he wrote from the vantage point of the Algerian revolution against French colonialism and of his political experiences on the African continent. Today, we might ask: can his analyses transcend the limitations of time? Can we learn from him as a committed intellectual and revolutionary thinker? Or should we just reduce him to another anti-colonial figure, largely irrelevant for our post-colonial times?
For me, as an Algerian activist, Fanon’s dynamic and revolutionary thinking, always about creation, movement and becoming, remains prophetic, vivid and committed to emancipation from all forms of oppression. He strongly and compellingly argued for a path to a future where humanity ‘advances a step further’ and breaks away from the world of colonialism and European universalism. Fanon represented the maturing of anti-colonial consciousness and he was a decolonial thinker par excellence.
Despite his short life (he died at the age of 36 from leukaemia in 1961), Fanon’s thought is rich and his work, in books, papers and speeches, prolific. He wrote his first book Black Skin, White Masks in 1952, two years before Điện Biên Phủ (the defeat of the French in a crucial battle in Vietnam) and his last book, The Wretched of the Earth in 1961. His 1961 classic became a treatise on the anti-colonialist and Third-Worldist struggle, one year before Algerian independence, at a moment when sub-Saharan African countries were gaining their independence – an experience in which Fanon was deeply and practically involved.
In Fanon’s intellectual journey, we can see the interactions between Black America and Africa, between the intellectual and the militant, between theory and practice, idealism and pragmatism, individual analysis and collective action, the psychological life (he trained as a psychiatrist) and physical struggle, nationalism and Pan-Africanism and finally between questions of colonialism and those of neo-colonialism.
Fanon did not live to see his adoptive country become free from French colonial domination, something he believed had become inevitable. Yet his experiences and analysis were the prism through which many revolutionaries abroad understood Algeria and helped to turn the country into the mecca of Third World revolution.
Six decades after the publication of his masterpiece The Wretched, Algeria is witnessing another revolution, this time against the national bourgeoisie that Fanon railed against in his ferocious chapter ‘The Pitfalls of National Consciousness.’
Fanon and colonial Algeria
The Algerian independence struggle against the French was one of the most inspiring anti-imperialist revolutions of the 20th century. It was part of a wave of decolonisation that had started after the Second World War in India, China, Cuba, Vietnam and many countries in Africa. The wave of decolonisation inscribed itself in the spirit of the Bandung Conference and the era of the ‘awakening of the South’, the Third world as it was then known, which has been subjected to decades of colonial and capitalist domination under several forms, from protectorates to settler colonies.
Frantz Fanon methodically unpicked the mechanisms of violence put in place by colonialism. He wrote: ‘Colonialism is not a thinking machine, nor a body endowed with reasoning faculties. It is violence in its natural state.’ According to him, the colonial world is a Manichean world (to see things as having only two sides), which goes to its logical conclusion and ‘dehumanises the native, or to speak plainly it turns him into an animal.’
What followed the insurrection on November 1, 1954, launched by nationalist forces against the French, was one of the longest and bloodiest wars of decolonisation, which saw the widespread involvement of the rural poor and urban popular classes. Huge numbers of Algerians were killed in the eight-year war against the French that ended in 1962, a war that has become the foundation of modern Algerian politics.
Arriving at Blida psychiatric hospital in 1953 in French controlled Algeria, Fanon realised quickly that colonisation, in its essence, produced madness. For him, colonisation was a systematic negation of the other and a refusal to attribute humanity to them. In contrast to other forms of domination, the violence here was total, diffuse, and permanent.
Treating both French torturers and liberation fighter, Fanon could not escape this total violence. This led him to resign in 1956 and to join the Front de libération nationale (FLN). He wrote: ‘The Arab, alienated permanently in his own country, lives in a state of absolute depersonalisation.’ He added that the Algerian war was ‘a logical consequence of an abortive attempt to decerebralise a people’.
Fanon saw colonial ideology being underpinned by the affirmation of white supremacy and its ‘civilising mission.’ The result was the development in the ‘indigènes évolués’ (literally the more evolved natives) of a desire to be white, a desire which is nothing more than an existential aberration. However, this desire stumbles upon the unequal character of the colonial system which assigns places according to colour.
Throughout his professional work and militant writings, Fanon challenged the dominant culturalist and racist approaches on the ‘native’: Arabs are lazy, liars, deceivers, thieves, etc. He advanced a materialist explanation, situating symptoms, behaviours, self-hatred and inferiority complexes in a life of oppression and the reality of unequal colonial relations.
Fanon believed in revolutionary Algeria. His illuminating book A Dying Colonialism (published in 1959) or as it is known in French L’An Cinq de la Révolution Algérienne, shows how liberation does not come as a gift. It is seized by the popular classes with their own hands and by seizing it they are themselves transformed. He strongly argued the most elevated form of culture – that is to say, of progress – is to resist colonial domination. For Fanon, revolution was a transformative process that created ‘new souls.’ For this reason, Fanon closes his 1959 book with the words: ‘The revolution …changes man and renews society, has reached an advanced stage. This oxygen which creates and shapes a new humanity – this, too, is the Algerian revolution.’
Bankruptcy of the post-colonial ruling elites
Unfortunately, the Algerian revolution and its attempt to break from the imperialist-capitalist system was defeated, both by counter-revolutionary forces and by its own contradictions. The revolution harboured the seeds of its own failure from the start: it was a top-down, authoritarian, and highly bureaucratic project (albeit with some redistributive aspects that improved people’s lives in the reforms carried out in the first years of independence).
However, the creative experiences of workers’ initiatives and self-management of the 1960s and 1970s were undermined by a paralyzing state bureaucracy that failed to genuinely involve workers in the control of the processes of production. This lack of democracy was connected with the ascendancy of a comprador bourgeoisie that was hostile to socialism, workers control and staunchly opposed to genuine land reform.
By the 1980s, the global neoliberal counter-revolution was the nail in the coffin and ushered in an age of deindustrialization and pro-market policies in Algeria, at the expense of the popular classes. The dignitaries of the new neoliberal orthodoxy declared that everything was for sale and opened the way for mass privatization.
Fanon’s work still bears a prophetic power as an accurate description of what happened in Algeria and elsewhere in the Global South. Fanon foretold the bankruptcy and sterility of national bourgeoisies in Africa and the Middle East today. A ‘profiteering caste’, he wrote, that tended to replace the colonial ruling class with a new class-based system replicating the old structures of exploitation and oppression.
By the 1980s, the Algerian national bourgeoisie had dispensed with popular legitimacy, turned its back on the realities of poverty and underdevelopment. In Fanon’s terms, this parasitic and unproductive bourgeoisie (both civilian and military) was the greatest threat to the sovereignty of the nation. In Algeria, this class was closely connected to the ruling party, the FLN, and renounced the autonomous development initiated in the 1960s and offered one concession after another for privatizations and projects that would undermine the country’s sovereignty and endanger its population and environment — the exploitation of shale gas and offshore resources being just one example.
Today, Algeria – but also Tunisia, Egypt, Nigeria, Senegal, Ghana, Gabon, Angola and South Africa, among others – follows the dictates of the new instruments of imperialism such as the IMF, the World Bank and negotiate entry into the World Trade Organisation. Some African countries continue to use the CFA franc (renamed Eco in December 2019), a currency inherited from colonialism and still under the control of the French Treasury.
Fanon predicted this behaviour of the national bourgeoisie when he noted that its mission has nothing to do with transforming the nation but rather consists of ‘being the transmission line between the nation and capitalism, rampant though camouflaged, which today puts on the masque of neo-colonialism.’ Fanon’s analysis of the class basis of independence speaks to the contemporary postcolonial reality, a reality shaped by a national bourgeoisie ‘unabashedly…anti-national,’ opting he added, for the path of a conventional bourgeoisie, ‘a bourgeoisie which is stupidly, contemptibly and cynically bourgeois.’
Fanon also noted in 1961 the international division of labour, where we Africans ‘still export raw materials and continue being Europe’s small farmers who specialise in unfinished products.’ Algeria remains in a extractivist model of development where profits are accumulated in the hands of a foreign-backed minority at the expense of dispossession of the majority.
The Hirak and the new Algerian revolution
Fanon alerted us sixty years ago that the enrichment of this ‘profiteering caste’ will be accompanied by ‘a decisive awakening on the part of the people and a growing awareness that promised stormy days to come.’ In 2019 Algerians shattered the wall of fear and broke from a process that had infantilised and dazed them for decades. They erupted onto the political scene, discovered their political will and began again to make history.
Since 22 February 2019, millions of people, young and old, men and women from different social classes rose in a momentous rebellion. Historic Friday marches, followed by protests in professional sectors, united people in their rejection of the ruling system and their demands of radical democratic change. ‘They must all go!’ (Yetnahaw ga’), ‘The country is ours and we’ll do what we wish’ (Lablad abladna oundirou rayna), became two emblematic slogans of the uprising, symbolising the radical evolution of a popular movement (Al Hirak Acha’bi). The uprising was triggered by the incumbent president Bouteflika’s announcement that he would run for a fifth term despite suffering from aphasia and being absent from public life.
The movement (Hirak) is unique in its scale, peaceful character, national spread – including the marginalised south, and participation of women and young people, who constitute the majority of Algeria’s population. The extent of popular mobilisation has not been seen since 1962, when Algerians went to the streets to celebrate their hard-won independence from France.
The popular classes have affirmed their role as agents in their own destiny. We can use Fanon’s exact words to describe this phenomenon: ‘The thesis that men change at the same time that they change the world has never been as manifest as it is now in Algeria. This trial of strength not only remodels the consciousness that man has of himself, and of his former dominators or of the world, at last within his reach. The struggle at different levels renews the symbols, the myths, the beliefs, the emotional responsiveness of the people. We witness in Algeria man’s reassertion of his capacity to progress.’
The Hirak succeeded in unravelling the webs of deceit that were deployed by the ruling class and its propaganda machine. Moreover, the evolution of its slogans, chants, and forms of resistance, is demonstrative of processes of politicisation and popular education. The re-appropriation of public spaces created a kind of an agora where people discuss, debate, exchange views, talk strategy and perspectives, criticize each other or simply express themselves in many ways including through art and music. This has opened new horizons for resisting and building together.
Cultural production also took on another meaning because it was associated with liberation and seen as a form of political action and solidarity. Far from the folkloric and sterile productions under the suffocating patronage of authoritarian elites, we have seen instead a culture that speaks to the people and advances their resistance and struggles through poetry, music, theatre, cartoons, and street-art. Again, we see Fanon’s insights in his theorisation of culture as a form of political action: ‘A national culture is not a folklore, nor an abstract populism that believes it can discover the people’s true nature. It is not made up of the inert dregs of gratuitous actions, that is to say actions which are less and less attached to the ever-present reality of the people.’
The struggle of decolonisation continues
Leaving aside largely semantic arguments around whether it is a movement, uprising, revolt or a revolution, one can say for certain that what is taking place in Algeria today is a transformative process, pregnant with emancipatory potential. The evolution of the movement and its demands specifically around ‘independence’, ‘sovereignty’ and ‘an end to the pillage of the country’s resources’ are fertile ground for anti-capitalist, anti-imperialist and even ecological ideas.
Algerians are making a direct link between their current struggle and the anti-French colonial resistance in the 1950s, seeing their efforts as the continuation of decolonisation. When chanting ‘Generals to the dustbin and Algeria will be independent’, they are laying bare the vacuous official narrative around the glorious revolution and revealing that it has been shamelessly used to pursue personal enrichment. We see a second Fanonian moment where people expose the neo-colonial situation and emphasise one unique characteristic of their uprising: its rootedness in the anti-colonial struggle against the French.
Slogans and chants have captured this desire and made references to anti-colonial war veterans such as Ali La Pointe, Amirouche, Ben Mhidi and Abane: ‘Oh Ali [la pointe] your descendants will never stop until they wrench their freedom!’ and ‘We are the descendants of Amirouche and we will never go back!’
The struggle of decolonisation is being given a new lease of life as Algerians lay claim to the popular and economic sovereignty that was denied to them when formal independence was achieved in 1962. In Fanon’s prophetic words: ‘The people who at the beginning of the struggle had adopted the primitive Manichaeism of the settler – Blacks and Whites, Arabs and Christians – realise as they go along that it sometimes happens that you get Blacks who are whiter than the whites and the hope of an independent nation does not always tempt certain strata of the populations to give up their interests or privileges.’
This two-part long read is an extract from a chapter in a forthcoming book Fanon Today: The Revolt and Reason of the Wretched of the Earth (edited by Nigel Gibson, Daraja Press 2021).
This article was first published in the Review of African Political Economy Journal.
South Africa: Why an Amnesty for Grand Corruption Is a Bad Idea
A full confession can bring amnesty and immunity from prosecution or civil procedures for the crimes committed. Therein lies the central irony. As people give more and more evidence of the things they have done they get closer and closer to amnesty and it gets more and more intolerable that these people should be given amnesty.
South Africa’s former Public Protector, Thuli Madonsela, provoked a political storm recently when she suggested that public servants implicated in grand corruption should be given the chance to apply for amnesty.
Many South Africans, weary of rampant, unchecked and unaccountable corruption, could be forgiven for asking: what on earth was she thinking?
Madonsela won the admiration of many South Africans because of her steely resolve in the face of malfeasance and breaches of the rules of integrity in public office. Her proposal suggested she might be going soft on corruption.
To be effective as the Public Protector Madonsela required many attributes, as I set out in my 2013 book, The Zuma Years. These included independence of mind, a very thick skin and a certain contrarian eccentricity that rendered her far less susceptible to the numerous attempts to intimidate her as she took on then president Jacob Zuma and his state capture network.
Her amnesty idea displays all of these characteristics.
It should be taken seriously, if only to affirm the merit of a diametrically opposed position.
It’s an inherently bad idea.
Madonsela’s timing is especially unfortunate. It is only in very recent times that the Hawks, the priority crimes investigating police unit, and other agencies of the criminal justice system appear to have recovered the institutional capacity to begin prosecuting those responsible for the deep-lying state capture project.
Recent developments have begun to suggest that the net is finally tightening around the bigger fish that are the true architects of systematic corruption in the country.
This has been widely welcomed. Accountability, at last.
Against the grain of this public view, Madonsela, a law professor, entered the fray to suggest that instead of being tough on the perpetrators, an olive branch should be extended.
This is an example of the “independent-mindedness” for which Madonsela was rightly acclaimed during her seven-year term as Public Protector from 2009-2016.
It is also not only contrarian, but also eccentric in that it makes so little sense.
To be fair to her, she tried to clarify later that she did not mean amnesty for every perpetrator, and certainly not the big fish. Her idea is targeted at those whose “status”, she says, “in the food chain is quite junior”.
But the first of a series of fatal flaws in her idea is about where to draw the line: on what basis should one distinguish the smaller from the bigger fish?
Those who had played a “minor but critical” role was how she framed her idea. There is already a problem here: is it possible for something to be both “critical” to a (criminal) enterprise and yet still “minor”?
I think not.
Madonsela confirmed that amnesty should be available on a legal rather than a moral basis. Yet, in a radio interview after she’d floated the idea, and drawn a lot of flak, she added to the confusion.
At first Madonsela spoke of people who may have “bent the rules” unwittingly, in which case, they may well have a legal defence to criminal conduct. Later, she clarified that she intended to cover individuals with “agency”, even to the extent that their palms have been “greased with money” (which, she argued, they would have to pay back in return for amnesty).
If the right to amnesty was indeed to be a legal entitlement, then the terms on which entitlement to amnesty applies have to be very clearly and carefully drawn. This much has been revealed in Constitutional Court decisions concerning the legal rationality of presidential amnesties or pardons in the case of women convicts and perpetrators of apartheid era offences.
Madonsela’s public policy rationale appears to be that without an inducement, the smaller cogs in the bigger wheels of state corruption may seek to hide and avoid prosecution when what is required is that they should come forward with information about the bigger fish.
Perhaps, then, an offer of amnesty – in effect, a legal right to indemnity from prosecution – deserves to be given serious consideration. This, especially if it is the case that the National Prosecuting Authority is struggling to pull together the evidence to bring strong prosecutions against the most powerful perpetrators of state capture corruption.
But there is no evidence that this is the situation. And, moreover, there are major downsides to be weighed in the balance.
The case against amnesty
First of all: deterrence.
The fact that amnesty has been granted in the past may encourage future corrupt actors to take the risk. The corollary is that the successful prosecution of corrupt officials is likely to discourage repetition.
Secondly, the arguments put forward by Madonsela would, in my view, provide grounds for mitigation in sentencing – not for amnesty. One example would be “small fish” cooperating with the investigative authority and providing evidence about the bigger fish. Another example would be if someone could show that they were bullied into bending procurement rules by a superior and more powerful individual in the system.
Another possible avenue – common practice in criminal justice systems around the world – is the use of a “plea bargain”. Here an accused person trades information in return for facing a less serious charge.
Amnesty would, in effect, deprive them of this opportunity and could thereby undermine the integrity of the whole criminal justice system.
The other major consideration is perception – both in the eyes of key stakeholders, such as the investment community and, secondly, the general public.
Investors are especially eager to see if South Africa has the capacity to hold to account those who contaminated the democratic state and so undermined fair competition by enabling a rent-seekers’ paradise. It is about the strength of the rule of law. Investors want to feel confident that this is one destination where the rule of law holds and where, because of state capture prosecutions, there is less risk of a repeat.
And surely, above all else, the public will feel cheated if perpetrators of state capture corruption, however “minor”, get away scot-free. This, more than anything, would encourage a lawless society, steeped in a culture of impunity rather than accountability.
A dangerous path to tread
Attempts to trade amnesty for information about state corruption have caused conflict as well as controversy in other countries. One notable example was in Tunisia in 2017.
But the biggest danger is that it simply sends the wrong message. This was aptly spelt out by esteemed South African artist William Kentridge reflecting on a previous attempt at taking the amnesty road in South Africa through the Truth and Reconciliation Commission process.
Admittedly, Madonsela has a different purpose in mind than the national reconciliation ambition of the Truth and Reconciliation Commission process. But, no, Advocate Madonsela, a blanket amnesty would send the wrong message at the worst possible time.
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