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Elephant Series: Journaling a Pandemic

14 min read.

In the face of an onslaught of harrowing and, occasionally, life-affirming news, we reached out to our storytellers and editors to reflect on the times. The following is a journal bearing witness and foretelling the effects of an unfolding pandemic seen through African eyes.

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Elephant Series: Journaling a Pandemic
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Oyunga Pala, Curator-in-Chief, The Elephant

Death knocks at your door and before you can tell him come in, he is in the house with you ~ Grace Ogot in Tekayo

Towards the end of January 2020, we discussed the coronavirus outbreak in China during an editorial meeting at The Elephant. At the time, the issue seemed not within the immediate scope of the important world events we should look into. A month later, we published a piece by Nairobi-based writer April Zhu on the experiences of the Chinese diaspora in Kenya, and the subsequent wave of sinophobia that was spreading faster than the coronavirus. By the third week of March, Kenya was in the grip of the COVID-19 global health crisis. The coronavirus has now become our lived reality in a manner that none of us could have predicted.

Our core mandate at The Elephant is to explain society to the people and the advent of COVID-19 has brought society into extraordinary times; the pandemic has provoked an existential crisis across the world, reordering all facets of life in real time.

At a time when good journalism is constrained by corporate interests, a deluge of fake news, state propaganda and sensationalism, The Elephant seeks clarity for its audience. In the face of an onslaught of harrowing and, occasionally, life-affirming news, we reached out to our storytellers and editors to reflect on the times. Even as we adhered to the health protocols of physical distancing, we leaned into the social solidarity of our intellectual community to help us make sense of the incomprehensible. The following is a journal bearing witness and foretelling the effects of an unfolding pandemic seen through African eyes.

Normal Service Will Not Be Resumed

John Githongo is the Publisher at The Elephant

Across the planet, extraordinary circumstances have been precipitated by an invisible deadly viral threat whose freedom of movement has not only caused illness and death. The fear it has provoked, and the measures taken to contain it, have brought humanity to a unique point of inflection. The asymmetrical challenge the coronavirus has posed to governments has caused them to literally throw their economies at the pandemic in a desperate attempt to slow it down. Previous major pandemics have served to reorder society and this one will be no different. Even as the economic consequences of the coronavirus begin to be felt, this crisis has also created a great opportunity for systemic change.

We have come to the stark realisation that, despite the experiments of the past 40 years, governments cannot shirk the responsibility of providing quality healthcare, security and education for all citizens. In the short-term, across Africa, we will have to free up resources to mitigate the economic blast that’s on its way and which will quickly become political if mismanaged. Debt will have to be renegotiated or set aside and if our elites insist on stealing even this, the next extreme stress test will be brought to bear on the security services called upon to manage the revolt of hungry populations. Ironically, the coronavirus has provided us with an opportunity to transform our economy and politics in true service to the people. The greatest crisis will not have been the virus itself but rather, a failure of the imagination in the face of the massive disruption it will have caused.

Advent Season of the Virus

Yvonne A. Owuor is an award-winning writer, editor and theoretician

Elements from a surreal landscape we call earth: Wuhan. Wet Market. Dr. Li Weinliang (RIP), Kenyan students and citizens stranded in moving virus epicentres; an Ambassador who resorts to praying for them—turns out she was right: social isolation + moral support as the most effective solution. Animals strolling into humanity’s silenced cities (at least we now know that in the event of our mass demise, the animals who have been watching us, after all, will take over our cities, and nature, it seems, truly does abhor a vacuum), the halting of work as we know it, a new shared grammar; social distancing, COVID-19, curfew. Verbally adept Italian mayors, Mutahi Kagwe, startling Kenyans by being a state official in an entrenched “mediocraty” that looks and sounds competent and coherent.

The likelihood of a post-virus global economic recession and depression. The roles of States (with the primary pimps of Neoliberal Logic revealing themselves to be oddly inchoate now) and how each performed on the “capacity, management and delivery of public goods” scorecard, in the face of this equalising global existential threat, that has also offered the world a common language. (It has caused (for a while) persistent dumb dichotomies–Us/them; West/Other; Developed/Undeveloped… that sought to assert themselves to fizzle away in the face of chilling reality). The masks that concealed so many cracked facades, even in Kenya, are off and in this humanising moment where the only battle is Life vs Death spin only sounds like garble.

Most significantly, COVID-19 is the defining virus for a new generation. That generation watches in terror at the incompetence of their elders whose instinct it is to apply old tested answers to new untested crises. After this storm, the generation is likely to emerge from the womb of darkness furious and frothing, armed with a collectivised will to uproot the status quo by whatever means. They will use the unique grammar of their generation, wired by a preternatural technological savvy, to programme another imagination of being in the world. They will confuse the Emperor-elders, who they see, through the lenses of the virus, have, in reality been buzzing about stark naked even as they preached robes of many colours. That generation did it (as organised netizens) for Dr. Ai Fen’s article by resorting to assorted censor-algorithm-beating language forms. They succeeded. Something is coming: a virus is its herald. Let the games begin.

Racism, Ecology and Conservation Politics

Dr Mordecai Ogada is a writer, conservationist and co-author of the book The Big Conservation Lie

Our warped conservation sector hasn’t been spared the upheaval brought on by the COVID-19 pandemic. For many years, I have advised that tourism should be treated as a by-product of conservation, rather than the basis for it, precisely because of the fickle nature of the tourism business. Kenya’s relentless pursuit of tourism at the expense of more resilient indigenous livelihoods like pastoralism, is a fallacy that is only matched by our obsession with tourists of foreign extraction as some kind of validation of our standing as a country. Now that tourism has crashed for the foreseeable future, the weakness of this model has been brutally exposed, with tourism interests begging for donations and bailouts, while livestock production continues unimpeded.

This trauma may just be the “reset” button required to rouse our conservation sector from the slumber that styles the Kenya wildlife service as a tourism organisation under a Ministry of “Tourism and Wildlife”, led by a minister who was a long-term tourism practitioner. A “woken up” Kenya would hopefully come to the realisation that we should conserve first for ourselves and then receive the visitors who come to partake of what we have conserved to serve our own needs. Our obsession with foreign (preferably white) tourists and conservation thinking is what provides fertile ground for the racial prejudice, corruption and unseemly dependence on charity that still persist in this sector. May there be a bright dawn at the end of this dark night.

Pandemics, Tech and the Future of Work

Njanja Mwangi is the founder and Director of Apex College in Sydney City, Australia

The recent discussion online and elsewhere on how the coronavirus will force Kenyan firms to rethink the way work is done, ignores the fact that expectations of a virtual work revolution accelerated by this pandemic are overblown. The optimistic belief is that we will abruptly move into a future where offices and the nine to five workday will be replaced with virtual work and results-only workplaces.

I think this optimism about a revolution around work is premature. Allow me to explain. A question I have often asked any manager I have met over the years is, “What proportion of the workforce would you say is below average to terrible at their job?” I don’t think I have ever heard anyone give me a number of less than 70 per cent. This means that in any workplace or society, 7 out of 10 people can’t be relied upon to consistently understand and effectively execute work instructions.

A number of tools have been perfected over the years to mitigate this reality including in management, human resources departments, offices and work schedules. Talk to any Baby Boomer who owns a business in Kenya and they will tell you that “waKenya ni lazima wakaliwe” (Kenyans must be sat upon, i.e. micro-managed).

This means that, firstly, once this crisis is over, a lot of workplaces will resume business as usual to allow the tools that make up for workplace incompetence to do their thing. Secondly, there definitely will be people who will transition to working from home but I think it would be foolish to assume that this change will not come with a lot of controls, many of which will make working from home much less appealing than it currently appears.

A Braver, Newer World

Rasna Warah is a writer, editor and author of Unsilenced

The coronavirus has heralded an age of uncertainty around the globe, but one thing is certain: the world will never be the same again. After the coronavirus pandemic has run its course, and even after a vaccine against the disease has been developed, a shaken world will be forced to reevaluate its priorities.

We may be forced to ask ourselves difficult existential questions, such as: should we continue ravaging and plundering the earth in the name of profit and economic growth? Can we sustain a world where a tiny number of people own and control the majority of its resources? What kind of planet do we want our children to inherit? One where sharing and cooperation are the norm or one where greed and individualism trump compassion and generosity?

What use are armies when a virus like this one can silently and stealthily decimate unsuspecting populations? How do we prepare for such a disaster in the future? What lessons can we learn from this pandemic? What really is the meaning of life? Maybe human beings still have a chance to redeem themselves. Maybe now is the time to reassert our collective humanity.

Terror, Security and COVID-19

Abdullahi Boru is a security expert and writer with a focus on the Horn of Africa

The COVID-19 outbreak has had a trifecta of impacts: health, the economy and public order.  All are inextricably interlinked.

In the Horn of Africa where the national health infrastructure is fragile and there are hardly any formal social safety fallback options, the proposed iterations of lockdowns announced by the governments as a means of containing the spread of the virus could ignite public order crises. And considering that some of the countries in the region are landlocked, public disruption in one country could spread to neighbouring countries.

Such vulnerabilities provide a window of opportunity for transnational non-state actors. With the security agencies preoccupied with the local public order crisis, non-state actors like Al Shabaab, while sensitive to public opinion, are not averse to inflicting maximum damage to the state at its point of weakness.

The dawn attacks at Camp Simba in Manda show that Al Shabaab’s ambitions are not limited to soft and hard national military targets, but also target American bases in the region. Moreover, AMISOM bases will be particularly in the group’s crosshairs now that drawdown of the forces has been announced. Over the last few months, Al Shabaab fighters have been seeking to acquire Chinese-made, shoulder-fired antiaircraft missiles, and some have been arrested while taking flying classes, an indication of the group’s ambition to remain the pre-eminent Al Qaeda franchise internationally.

Tech and Our Lives Post-Corona

Nanjira Sambuli is a researcher, writer, policy analyst, advocacy strategist and musician

Digital technologies will be a cornerstone of life after the pandemic. Development, investment, policy and governance plans will carry the term “digital” as a prefix.

Today, we may welcome proposals like digitally tracking infected persons’ movements to flatten the curve. The flipside: they are also the building blocks for a surveillance-ridden future. Our consent lies in our desire to see governments “do whatever it takes” to put an end to the rona.

But it won’t be as simple as switching off the apps and algorithms tracking the virus, and by extension, people. These “solutions” are also feeding the appetite that states and tech providers already have for the datafication of every aspect of our lives; to monitor our every move, every transaction, every activity.

The justification to keep the digital surveillance in place will be that there will be other crises for which the activated technology can be put to use. Going cashless today may mean saying goodbye to autonomy tomorrow. Today’s coronavirus victim could be any one of us that will be deemed to be out of line with the system’s rules in the future.

We urgently need narratives and strategies to counter the overwhelming tide of techno-solutionism sweeping in and positioning itself as the silver bullet. Or else, life after the coronavirus will come to imitate our dystopian fictions.

Institutionalised Racism and the Coronavirus Pandemic

Darius Okolla is a writer, editor and curator of audio-visual content at The Elephant 

Many Kenyans will not know that there exists a corpus of colonial-era writings and policies grounded in scientific racism, many of which have been incorporated into the current laws, mindsets and worldviews that govern our public life. The marketisation of basic services – water, education, healthcare – arbitrary application of the law, endemic corruption, and even the theft of blood from our blood banks are the manifestations of this institutionalised racism.

The COVID-19 pandemic is forcing us to confront the cluelessness and heavy-handedness of a ruling regime that has perpetuated this historical racism which has engendered feelings of cultural inferiority and encouraged anti-intellectualism, elite ineptitude, collapse of moral courage, predatory public instincts, commercialisation of public life, and corruption, particularly in the healthcare sector.

In imposing a curfew and partial lockdown, the state should have taken into account our communal existence, particularly our conception of space, social relations, interdependencies, and supply chains. How, for example, does this lockdown shape night travel? Marikiti 4 a.m. agro-purchases? Where on the scale of essential services do critical “non-essential” ecosystems like Gikomba fit given their place in the crucial informal economy? Thus far, however, the state’s haphazard policies have only served to precipitate the chaos and pushback that happened in Likoni, the defiance of curfew in Eldoret, and the citizen violence against the police in Malindi.

We need to intellectualise more and securitise less, using a pandemic mitigation advisory panel consisting of epidemiologists, urban planners, public interest lawyers, urban anthropologists, public health teams, virologists, economists, and the clergy to craft county-specific lockdown policies. This pandemic should be a road back to crafting human-centred, data-informed public policy.

Tech, Pandemics and Viruses

Alan Kawamara is a techie and a software developer at The Elephant

With the world quickly realising the benefits of digital-ready workspaces and teleworking, COVID-19 has handed digital transformation evangelists a huge opportunity to spread the tech gospel further and faster. Everywhere in our digital spaces, online workspaces hitherto unknown are mentioned, shared and applied with a new-found zeal as workplaces try to find new ways of keeping the work going.

Going forward, organisations will rethink their working models, embracing Cloud technology and anything-as-a-service (XaaS) solutions to cushion themselves against future disruptions. Therefore, in many ways COVID-19 can be said to be as much a tech virus as it is a biological virus. It has unleashed a disruption similar to the infamous Stuxnet virus, the world’s first digital weapon.

Having gone through the challenges of having to perform in the unpredictable time of the coronavirus pandemic, individuals and organisations will have to embrace cultures of experimentation, being willing to quickly adapt, scale or drop tech solutions depending on new and fast-changing variables.

With greater digitisation, reliance on data and analytics for decision-making will become key, with managers keen on obtaining almost real-time measurement of team and work efficiencies. Governments will make more determined investments in internet infrastructure, allowing for faster and cheaper access to connectivity as an enabler of this new way of working.

Pandemics, Power and Foreign Lands

Shingai Kagunda is an MFA graduate student at Brown University

Isn’t it much harder to write when the speculative possibility of a globalised pandemic becomes reality? The worldwide scourge and its ramifications have now become this bottomless anxiety sitting in our being, making itself comfortable. COVID-19 has ensured that many aspects of national and racial existence now carry with them clear or tacit signs that say “Not welcome here”.

This is an even much more personal loss for those of us who are so far away from home facing so many unknowns. And it was even more strongly felt as I watched the last flight leave New York for Kenya, leaving a sense of “so now?” hanging in the air.

Currently, out here in the US, we have to stay home, and where possible take walks—six feet away from other bodies—and turn to Zoom for classes. This is a whole re-education of our lives. We have to rely on multiple video chats to speak to family and friends at least once a day. Ideally, this is an opportune time to dream up alternative ways of being because the pandemic has interrupted capital, supply chains, human connection, and life as we know it.

We must now begin to imagine what this will mean for the long haul and what our world and lives will be after the pandemic. No doubt, we must prepare for a radical shift of priorities in the after. We will need to set terms that will, and must, gain momentum in healthcare, redistribution of resources; we must choose life over profit. In the end we must sit and reflect and read and write and work and rest and draw and notice the earth breathing.

A New Philosophy of Man

Joe Kobuthi is a philosopher and a curator at The Elephant

For all creation, gazing eagerly as if with outstretched neck, is waiting and longing to see the manifestation of the sons of God. Romans 8:19

The scientific and technological advancements, the military-industrial complex, the sophisticated economic, social and political arrangements of the western hegemonic model now appear futile in the face of the coronavirus pandemic.

Humanity and nature have been groaning with eager expectation for something other than this five-hundred-year European experiment that has revealed itself to be rapacious and genocidal where the world is concerned. The West now lives at such a crazy, reckless speed that it has lost all reason and moral authority as it sinks into the abyss.

Here in the global south, we must no longer benchmark with this edifice as the standard for human advancement. No, we do not want to catch up to anyone. What we want is to move forward in the company of all men. It is now time for the peoples at the periphery to begin a new history for mankind.

After COVID-19, if our desire is human progress, we must create other ways of being. For Mother Nature and for humanity’s sake, we must rebuild from the ruins, think anew and attempt to set afoot a new philosophy of man. 

Coronavirus and a Changing Media Landscape

John Allan Namu is an investigative journalist and team lead of Africa Uncensored

I’m hoping that mine will be a self-fulfilling prophecy. I see a media landscape that will be changed by the virus, in many ways for the better. What we are observing in the face of the pandemic is the resurgence of expert opinion from actual experts, a curiosity and hunger for fact by some (not all) journalists and a deeper appreciation for the importance of quality information by the public. So in that respect, the bones of journalism are relatively intact even if they have been weakened over time.

What is much harder to establish is how journalism will survive. COVID-19 has thrust upon almost every country that it has touched economic strain unseen in the 21st century. The value chains that supported journalism that were already imperiled now seem like they almost certainly will break, and more than ever, media houses in Kenya will have to find a way to ensure a future for themselves. This could be done through decentralising the news cycle and moving resources to create a plethora of news products and a more robust ecosystem. Swanky news studios may either have to become more spartan or be used as much as possible to generate new income.

The best coverage of the COVID-19 pandemic offers us a window into what could be. The very nature of the pandemic is such that the numbers being tracked change every day, and the lack of clarity about when it will end means that journalists have to think deeply about how to make their stories less and less perishable. Hopefully, this will lead to institutional thinking about the kind of investment that must be made for news to be useful.  Otherwise, even more media space will be captured by those who can pay for it.

Alternative media will flourish in the short term, but to survive, boutique media houses will have to search for partnerships that allow them to collaborate on content and share resources. Finally, what I hope for is that people recognise that good journalism is a public good, and fight for a national broadcaster that reports for the nation, not for the holders of office whom we have confused for the overlords of this precious public commodity.

Post-coronavirus and the need for communal solidarity. 

Betty Guchu is a writer and editor

I am returnee, a former long-term remittance woman (in the sense that I was doing the remitting, gladly). I came back, jaded by the world of international development cooperation, where the cooperation seems to benefit only the highly paid functionaries and the development experts that hang on to their coattails, earning a handsome fee with every contract. The waste of resources, the corruption, the nepotism and the cronyism finally got to me and the racism that one day asserted that “the hand that receives is always beneath the hand that gives”, to justify the exclusion of the views of the so-called beneficiaries, was the final straw. I started casting about for another way to live and to earn a living. More simply and more meaningfully. Before it was too late.

Out in the Kenyan countryside I have found such a life, in a community where we are each other’s social safety net. A hospital bill is shared, not just among friends and family, but within the community. As is the cost of a burial. My neighbour watches out for me and it doesn’t take long to know who the chicken thief is. Tools are borrowed and lent and seeds and seedlings exchanged. Advice is freely given, some of it old wives’ tales until you find out that it is not, having skeptically applied it. New ideas are welcomed and knowledge freely shared. Projects are initiated, funds raised and labour provided, elected officials showing up at the tail end to bask in the reflected glory. As is their wont.

It is not that folk here are nicer or more generous than folk anywhere else; it is that the environment is less alienating, that the inter-generational relationships are still quite strong, that the gap between the better-off and the less so is not a yawning chasm. But also, it is the realisation that “there, but by the grace of God, go I” that spurs the solidarity, the acknowledgement that unless we help each other, we all sink together. May the coronavirus bring all of us everywhere to that happy realisation.

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Land Title and Evictions in the Supreme Court of Kenya

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

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

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

Importance of the Supreme Court judgment

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

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

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

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

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

Public and private

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

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

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

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

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

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

Entrenching private property

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Orchestrated or Inevitable?

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

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

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

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

Military intervention

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What Does ‘Selected for Targeting’ Mean?

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

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

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

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

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

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

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

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

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

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

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

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

Journalists and Activists in the Crosshairs

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

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

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

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

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

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

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

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

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

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

Now they found out that they were the story.

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

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

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

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

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

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

“They were chasing us.”

A “Natural Tool” for Autocrats

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

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

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

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

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

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

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

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

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

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

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

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