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Out of the Ruins and Rubble: COVID-19 and the Fightback in Africa

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In an update on the COVID-19 pandemic across Africa, Heike Becker, Femi Aborisade and Issa Shivji report on the reaction of governments, the struggles of poor communities and the urgency of building a new world out of the ruins of the old.

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South Africa: Social Distancing and Social Solidarity

By Heike Becker

The good news first: On Monday, 6 April, the South African government began to roll out an ambitious programme of countrywide screening of the coronavirus infection. Mobile units and a corps of 10,000 health workers began screening and testing in the communities, with an intermediate aim of reaching at least 50,000 people within a week.

On 6 April, South Africa was also halfway through the scheduled 21-day lockdown that came into force on midnight of 26 March. Except for a few locations where residents flaunted the lockdown protocols, most people have been complying with the severe regulations.

South Africa’s 60 million people are only allowed to leave the house to do essential shopping for groceries or medicine, visit the doctor, or collect social grants. No allowance is made for outdoor exercise – an activity that even people in the European countries that are hardest hit by the pandemic still enjoy.

There have been reports of violent abuse that residents of poor neighbourhoods have suffered at the hands of the enforcement services, especially the police. From Day 1 of the lockdown reports, photographs and videos have been circulating of officers beating people. There is even one of officers shooting rubber bullets at people queuing at the entrance of a supermarket.

A group of people whose lives have been particularly affected by the lockdown protocols are the homeless, the approximately 70,000 people who live on the streets of cities across South Africa. They have been collected, more or less voluntarily, and accommodated in temporary facilities, some of them decently run, others dangerous mass encampments, such as the tented camp that the city of Cape Town has set up some 27 km outside the metropole for 4,000 street people. This is happening just as autumn temperatures have dropped over the past weekend to a wet and chilly 15 degrees Celsius.

The severe and cold South African winter is at our doorstep, and speculations are rife that with the peak of the pandemic in South Africa expected in early May, the lockdown may be extended, possibly until the end of June, or even longer. People in the poorest communities have been bravely patient thus far, although many have lost their income, especially those who make a living day-by-day – the domestic workers, the waste-pickers, the informal traders who sell much of the fresh produce in the townships, and many others. There is hunger and the longer the lockdown will last the hungrier the marginalised majority of the world’s most unequal society will get.

The tremendous efforts of South African civil society have continued. There are a remarkable multitude of community initiatives that provide practical support, from soup kitchens and food baskets to hygiene and face mask-making.

Beyond that, an impressive C19 People’s Coalition of over 190 organisations has been built over the past couple of weeks that is running campaigns for social solidarity under the banner “Stay Home. Stay Safe. Demand a Just Response to COVID-19!” The C19 Coalition has put together a wide-ranging programme of action that includes income security for all, specifically the extension of social grants, general easy access to water and sanitation, and food security. The Coalition calls for the appropriation of essential private facilities for public use during the crisis, for free and open communication, and for proper training and resources for community health workers. It also asks that the inequalities within the country’s educational system be considered in the move to remote learning.

With all this, the focus is on grassroots organisation and mobilisation, including the identification of strategies to divert violence, especially domestic violence, in the country’s communities and homes. The C19 programme programmatically articulates: “How each of us responds to the COVID-19 pandemic will determine who we are as a society. The better we respond now, the better we will be after the pandemic…Our response must be just, equitable, and redistributive if we are to meet the needs of all our people. In times of physical distancing, social solidarity is key.”

Heike Becker is an activist and teacher of social and cultural anthropology at UWC in South Africa. Her work and activism explores culture and politics and focuses particularly on popular culture, digital media and social movements in southern Africa. Heike is a regular contributor to roape.net.

***

Nigeria: The Hunger Virus

By Femi Aborisade

One basic point I must make is that the COVID-19-induced lockdown measures and effects in Nigeria are not uniform. For example, in Oyo State, South West, Nigeria where I live, only night life is curtailed by the imposition of the curfew between 7pm and 6am. So people are allowed to carry on their activities normally outside these hours. However, because of the total lockdown announced by the Federal Government and imposed on Abuja, Lagos and Ogun State, activities in all other states are affected to one degree or another as interstate movements are prohibited.

On a general note, the lockdown has meant unprecedented hardship, hunger and anger. In some cases, ordinary people have been compelled to defy the lockdown as they are compelled to go out in search of work. Some states share raw food and bread but on a limited scale, but frequently to such a limited extent that young people and women have been seen protesting in the streets against these “food rations”. One group of protesters complained that only one loaf of bread worth two hundred Naira (about 45 pence) was given to 650 people living in about 240 houses on a particular street. Young people angrily turned the bread into footballs. In another location in Lagos, the food rations, similarly pathetic in quantity, were distributed, to widows and old women. Community-based health and rights organisations have been unanimous in making demands for government provision of water, food and drugs to ensure a successful lockdown.

The Federal Government says it has set aside huge sums of money to fight COVID-19. But, in reality, it would appear that little is being used for this purpose. Recently, it was announced that the Federal Government would take US$150 million from the sovereign wealth fund and share it among the different levels of government to fight the virus It did not provide any information about what the money would be used for.

While public offices are shut, workers at Dangote are exempt from the lockdown. The workers are angry that adequate protection is not being made available to them. Aliko Dangote is West Africa’s wealthiest businessman, who runs the Dangote Group that employs thousands across Nigeria who work, principally, in his cement business.

In response to the defiance of the lockdown by hungry and angry poor people, some state governments, such as Ekiti State in the Southwest and Kaduna state in the Northwest, are relaxing the lockdown, and are allowing movement on some days of the week to allow people go to the market to buy foodstuff.

But in situations where people do not earn salaries, there is hardship. Even market women are complaining of little activity. In Nigeria, there are no social security schemes to take care of the unemployed and the elderly. People are saying that in the absence of public support, the hunger virus is no different from COVID-19.

Femi Aborisade is a socialist, writer and lawyer based in Lagos.

***

Tanzania: Chickens of Capitalist Modernity Coming Home to Roost

By Issa Shivji

The fight against COVID-19 is as much a class struggle as any, perhaps even fiercer. The pandemic is knocking on the doors of the continent. The ravages of five centuries of capitalist barbarity and its sycophant accomplices has left us most vulnerable. In Tanzania, we have been made doubly vulnerable as floods are devastating some regions and rendering people shelter-less. I shudder to think what the consequences will be. But we must continue to hope and struggle as long as we live.

We are going through trying times. Humanity is on trial. This is the time when the worst and the best in us comes out in ways that we could not have imagined in normal times. We are used to saying “the personal is political”. Now with the “social is personal”, the personal takes precedence, the social disappears. “Me first”, “my (family) first” overwhelms the “us”.

These are the times when “keep sane”, “stay sane” become words of affection. Yet what is at stake is our humanity itself. We don’t say “be human”, “stay human” for human is social and social is a distant second. Social is moral. Sanity is rational. And we are all children of Enlightenment rationality.

The chickens of capitalist modernity are coming home to roost.

But all is not bleak; it never is for we are humans and do not have the hide of a buffalo to be unaffected by human suffering. So, health workers are in the front line fighting the pandemic. Cuban doctors travel over the seas to save lives of fellow human beings while putting their own lives in danger. The Chinese send shiploads of medical kits to Italy and Iran in the people’s war (truly a peoples’ war) against COVID-19 (while Trump tightens the screws of sanctions against Iran and the European Union mulls over financial instruments that would secure its loans to a fellow EU member). Humanity is not so bereft of humanness. No, it is not.

Julius Nyerere rhetorically asked in his article “Usawa wa Binadamu” (Human Equality) what it is that makes us all equal when we are so unequal in every respect. His answer: it is our humanness. Nyerere’s equality is human equality (moral). Enlightenment’s equality is legal equality (rational).

Why am I saying all this? I’m saying it because in such times of crisis our Enlightenment values – which inform the age of (capitalist) modernity – starkly reveal themselves in all their nakedness. And they are barbaric to the core!

Will this pandemic teach us that humanity is crying out for a new civilisation, a civilisation whose centre is the human being, a social being with innate humanity, not an individual subject of the capitalist state who oozes out barbarity, greed and selfishness from every pore? People before property maybe sums it all up, though perhaps not sufficiently to drive our souls – nonetheless it is a good approximation to lead us on.

As I read the messages of love and warmth, of hope and solidarity from the continent, I cannot stop reflecting on how capitalist barbarity has destroyed our humanity, yet how our underlying humanness is kicking in and that is what makes life.

In the name of struggle and solidarity, let us shout and scream:

  • Cancel all African debts
  • Send air loads of testing kits and medical supplies
  • And you African rulers, divert funds from your grandiose projects and your filthy salaries and perks to feed our people in quarantine
  • Without humongous feeding schemes, lockdown is not possible and without lockdown it will be impossible to control transmission

The Revenge of Nature

By Issa Shivji


For over five centuries
Capital has devastated nature and human nurture.
Now nature is taking its revenge.
Once again capital will shield behind stimulus packages
While the working poor will die out packed like sardines in their slums. 

Hope we should not lose, to despair we shall not surrender,
The struggle must continue.
We, the People of the World, will build a New Civilisation
Out of the ruins and rubbles of corona
We shall never again allow capital to ruin our homes and hearth
To build their domes and malls 

Never again shall we subdue to its law and order
We shall stand up
Against their might
To fight back
And claim back our right to rebel

Never again revolution will be an episode
We will make it permanent
It will be the daily ablution
Five times a day
To wash away the sins of barbaric capitalism. 

Stay calm
Stay human
Keep safe my friend

Issa Shivji taught for years at the University of Dar es Salaam’s Public Law Department, and has written more than twenty books on Pan-Africanism, political economy, socialism and radical change in Africa. He is a longstanding member of ROAPE.

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Heike Becker is an activist and teacher of social and cultural anthropology at UWC in South Africa. Her work and activism explores culture and politics and focuses particularly on popular culture, digital media and social movements in southern Africa. Heike is a regular contributor to roape.net. Femi Aborisade is a socialist, writer and lawyer based in Lagos. Issa Shivji taught for years at the University of Dar es Salaam’s Public Law Department, and has written more than twenty books on Pan-Africanism, political economy, socialism and radical change in Africa. He is a longstanding member of ROAPE.

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Elections? What elections? Abiy is Counting on a Military Victory

Abiy Ahmed’s legitimacy hangs on conjuring up an improbable military victory in the total war he has declared on the people of Tigray.

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Elections? What elections? Abiy is Counting on a Military Victory
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Selected by the ruling party and later appointed by the Ethiopian parliament in 2018, Prime Minister Abiy Ahmed was expected to deliver the long hoped for post-EPRDF (Ethiopian People’s Revolutionary Democratic Front) era. For some of his domestic and international backers, the post-EPRDF era meant the ushering in of political democratization, further economic liberalization, and “post-ethnic” Ethiopian politics. He has failed to deliver on all three counts.

More than ever, Ethiopian politics is bitterly polarized along ethnic lines. Ethnic divisions have split the Ethiopian National Defence Forces (ENDF). Now, Ethiopia has two armies: the Tigrayan Defence Force (TDF) and the Ethiopian National Defence Force (ENDF). Nor is economic liberalization faring any better. In 2020, foreign direct investment (FDI) dropped significantly to US$2.4 billion from US$ 7.1 billion in 2016. Creditors are not more optimistic. The birr has become the worst performer among 20 African currencies following a slump of 11 per cent against the dollar.

After a decade of double-digit GDP growth, Ethiopia is now growing at only two per cent, an economic slowdown Kevin Daly describes as “the shine [having] come off the star in a big way”. Ethiopia’s democratization, which is the focus of this piece, has also stalled, as illustrated by the uncompetitive and non-participatory elections of 21 June 2021.

False start 

Ethiopia’s new leadership was widely expected to spearhead a democratic dispensation in which elections would be freely and fairly contested by all the major political forces in the country. The June 21 election was expected to be both participatory and competitive. It was neither and its outcome was predictable, if not preordained. As everyone expected, the ruling party won overwhelmingly, with some leftover seats going to other parties.

Against the hopes of many, Abiy Ahmed found ways to effectively exclude the real contenders with any chance of defeating the incumbent.

Liquidating the former ruling party and extending the term of office

The first step was to liquidate the former ruling party, the EPRDF, and place the new Prosperity Party in power. The Tigray People’s Liberation Front, one of the core parties forming the EPRDF and currently ruling Tigray, vehemently opposed the formation of the new party, and decided not to join it.

The second step was to postpone the much-anticipated 2020 elections on the pretext of the Covid-19 pandemic. The legality and legitimacy of this decision was fiercely contested, especially by opposition leaders from Oromia and Tigray. Inevitably, those opposition leaders from Oromia with a large following and constituency were jailed or placed under house arrest.  By opting to postpone the election and arresting opposition leaders, Abiy extended his own tenure by using a controversial constitutional interpretation.

Waging war

The third step was waging war on Tigray. The postponement of the election qualifies as one of the triggers of this war. The ruling party in Tigray rejected the postponement, asserting that regular elections are a necessary tool for the exercise of a people’s right to self-determination. Accordingly, Tigray conducted its regional election on 4 September 2020. The election was considered illegal by the incumbent and the federal government cut ties with the Tigray government and suspended the transfer of the regional budget, a move viewed by Tigray as a declaration of war. On 4 November 2020, Tigray was invaded by the combined Ethiopian, Eritrean and Amhara forces.

Subverting the will of the people

These early steps to subvert the will of the people call into question the incumbent’s commitment to a fair and democratic process. Providing a detailed contextual analysis on the state of Ethiopia before the polls, US Senator Bob Menendez and Representative Gregory Meeks said:

Against this grim backdrop, few believe Ethiopia’s upcoming national elections stand a real chance of being free or fair. . . . Prime Minister Abiy and his ruling Prosperity Party have made it clear they intend to continue working from the same authoritarian playbook as their predecessors, squandering Ethiopians’ hopes for the country’s first-ever genuinely democratic elections.

The EU withdrew its earlier decision to send election observers. Though it fell short of denouncing the election, the US government in its statement provided precise reasons why the election would not meet the requisite democratic standards:

The United States is gravely concerned about the environment under which these upcoming elections are to be held. The detention of opposition politicians, harassment of independent media, partisan activities by local and regional governments, and the many inter-ethnic and inter-communal conflicts across Ethiopia are obstacles to a free and fair electoral process and whether Ethiopians would perceive them as credible. In addition, the exclusion of large segments of the electorate from this contest due to security issues and internal displacement is particularly troubling.

The US statement added, “these elections [are conducted] at a time when so many Ethiopians are suffering and dying from violence and acute food insecurity caused by conflict”.

Elections without credibility

The credibility of elections is assessed based on international standards such as those set by the United Nations. Unfortunately, Ethiopia’s recent election does not meet the minimum international threshold of being free, fair, participatory and competitive.

First, this election was conducted during a period of violent conflict that effectively denied the citizens their fundamental democratic rights and the opportunity to participate on an equal basis. Over 100 constituencies in Tigray, Somali, Harari, Afar, and Benishangul-Gumuz, representing well over 18 per cent of parliamentary seats, did not vote. For close to 4 million internally displaced persons (IDPs), this election was a luxury. In Tigray, constituencies in Oromia, Amhara (Oromo special zone and parts of north Shewa), and the border areas of the Amhara, Oromia, Somali and Afar regions face violent conflict. With 7 per cent and 1.7 per cent of the total constituency in Tigray and Benishangul-Gumuz respectively, wars for survival still rage. In parts of Oromia, the region with the largest population and 33 per cent of the total constituency, armed conflict continues. Furthermore, the election was conducted under conditions of pervasive discrimination and profiling based on ethnicity that targeted Tigrayans, Oromos and Gumuz.

The postponement of the election qualifies as one of the triggers of this war.

Second, at the subnational levels and in some urban areas such as Amhara regional state, a few “opposition” parties did manage to win seats. However, in terms of presenting alternative policy options for Ethiopia, these parties failed, as their electoral manifestos were just versions of that of the ruling party. In addition, such results at the subnational level are anomalies, not trends. The trend is the incumbent attempting to re-establish a durable authoritarian regime, this time with a centralizing vision at its core that is diametrically opposed to the federalist vision set out in the current constitution.

Third, this election – like the previous one – was marred by claims of killings, assault, detention, intimidation and harassment of opposition candidates and supporters. In addition, the cancellation of political parties’ registration, litigation, anomalies in voter and candidate registrations, and ballot printing problems have damaged the credibility of the electoral bodies. Moreover, the deferral in holding referenda on requests for state formation in the Southern Nations, Nationalities and Peoples’ Region has stoked discontent. And nor did the media environment allow competitive elections; local media was rigorously censured, and journalists were killed, arrested, and intimidated. International media outlets were not spared either, with the permits of many foreign correspondents cancelled.

It thus came as no surprise when five parties criticised the ruling Prosperity Party for allegedly influencing the electoral process to favour its candidates. The National Movement of Amhara, Ethiopian Social Democratic Party, Afar People’s Party, Balderas for Genuine Democracy and Ethiopian Citizens for Social Justice complained of heavy security and cited a failure to meet minimum standards.

Legitimacy hanging on military victory

Abiy has clipped the wings of democracy. A day after the country went to the polls, and as Addis Ababa enjoyed the fanfare surrounding its “first democratic election”, the Ethiopian army continued its indiscriminate aerial bombardment of Tigray.

Abiy has plunged the country into a civil war that is now spreading from Tigray to other parts of Ethiopia. The war has been manipulated with a view to bolstering Abiy’s popularity and serves as the glue holding his internally fractured support base together. Military victory in Tigray has replaced an electoral win as the litmus test for the legitimacy of his rule.

Yet following the defeat and withdrawal of the Ethiopian army from Tigray, Abiy’s popular base is fast eroding. Now his legitimacy hangs on conjuring up an improbable military victory in the total war he has declared on the people of Tigray. The recent military advances made by the Tigray Defence Forces show that it is not just Abiy who is losing the unwinnable war in Tigray. Ethiopia is also losing its army.

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The Second Sex: Women’s Liberation and Media in Post-Independence Tanzania

Fatma Alloo (of the Tanzania Media Women’s Association) on how women used the media and cultural spaces to organize and challenge gender norms.

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The Second Sex: Women’s Liberation and Media in Post-Independence Tanzania
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Fatma Alloo’s activism grew in the decades following Tanzania’s independence in 1961, when she worked as a journalist under Julius Nyerere, or Mwalimu, the first president of Tanzania; co-founded the feminist advocacy group Tanzania Media Women’s Association (TAMWA) in 1987; and co-founded the vibrant Zanzibar International Film Festival (ZIFF) in 1997. Here, she unpacks how women used the media and cultural spaces for social mobilization and shifting patriarchal norms, particularly in periods where they were marginalized from state power. In the “Reclaiming Africa’s Early Post-Independence History” series, and the Post-Colonialisms Today project more broadly, we’re learning from African activists and policy makers from the early post-independence era, to understand how their experience of a unique period of economic, societal, cultural, and regional transformation can aid us in the present day, when questions of decolonization and liberation are more pressing than ever.

Heba M. Khalil: You have lived through so many changes in so many different political systems, from the Sultanate, colonialism, the Nyerere years; you’ve seen the dawning of liberalism and neoliberalism.

Fatma Alloo: As you say, I’ve been through a lot of “-isms” in Tanzania. The other day I was reflecting that although I grew up under colonialism in Zanzibar, as a child I was not aware that it was colonialism, I was not aware there was a Sultanate. We used to run and wave to the Sultan because he was the only one with a shiny, red car and we used to love that car, a red Rolls Royce. But as I reflect now, I realized that these were the years Mwalimu was struggling for independence in Tanganyika.

Then, of course, as you grow, life takes you on a journey, and I ended up at the University of Dar es Salaam in the 1970s, where the Dar es Salaam debates were taking place. Tanzania hosted liberation movements, and that is where socialism, communism, Marxism, Leninism, Trotskyism, Maoism, and feminism were being debated, and that’s where my consciousness grew, because I was in the midst of it. As the progressive, international community at the university was ideologically fired up by Mwalimu’s socialism, I began to understand that even my feminism had come from the West. Nobody had taught me that women lived feminism on the continent. This realization came when, as a student, I participated in an adult literacy program launched by Mwalimu. As students, we were sent to a rural and urban factory to teach literacy, but I emerged from those communities having been taught instead!

Heba M. Khalil: What do you think the role of women was in Tanzania in particular, but also on the continent, in defining the parameters, the choices and the imagination of post-independence Africa?

Fatma Alloo: Women had always been part and parcel of the independence movement in Africa. In Southern Africa and Tanzania they stood side-by-side with the men to fight, so they were very much part of it. The unique thing about Tanzania was that Mwalimu established a party called the Tanganyika African National Union (TANU), which had five wings with women being one of them. The others were youth, peasants, and workers, so as to mobilize society as a whole.

Post-independence is another story, one that very often has been narrated by men in power. There was a struggle for the visibility of women. I remember the debates in South Africa, where the African National Congress was arguing about the women’s wing wanting to discuss power relations. And there was resistance to this, the party leaders would argue first let’s just get independence, let’s not waste our time, women’s liberation will come later. It was a very bitter struggle, and of course after independence, women lost out quite a bit.

Heba M. Khalil: Why were post-independence power structures and ideologies defeated and replaced at some point by new ideologies of liberalism and, eventually, neoliberalism?

Fatma Alloo: The western media portrays Mwalimu as a failure. He has not failed, from my point of view. The whole issue of national unity is important. Tanzania has been a relatively peaceful country. Why? It did not happen by accident, it had to do with Mwalimu’s policies—he realized he had to deal with profound divisions, and he understood the role of education. Administratively, the nation had been inherited after decades of divide and rule policies. It was divided on racial and religious bases, as Tanzania is half Christian and half Muslim. We could have had a civil war, like in Lebanon, or a tribal-oriented conflict, like in Kenya or Libya. Mwalimu really understood this from the very beginning. I remember when we started TAMWA, when the women came together, we had no idea who belonged to what tribe. He was that successful.

We had free medicine, free education, but of course, all that went away with neoliberalism. My generation remembers this, and I think we have to make sure that the younger generation knows the history of the country, knows the literature that emerged from the continent. In my opinion, of all the contributions of Mwalimu, the most important was the peace and unity—amani, in Kiswahili.

Because Mwalimu was so successful, the West, especially Scandinavian countries, made him their darling. As you know, Scandinavian countries had not colonized Africa much, so people also trusted them and accepted their development aid. Very sadly, it did eat away at the success of Mwalimu with his people, and eventually made us dependent on that development aid, which continues to date. Without development aid we don’t seem to be able to move on anything. We have stopped relying on ourselves.

Heba M. Khalil: What was your experience of organizing during the rapid growth of the mass media sector in Tanzania?

Fatma Alloo: I was very active, first as a journalist in the 1980s and early 1990s, and it was extremely different. We were very influenced by Mwalimu’s ideology and ready to play our role to change the world. Mwalimu had refused to introduce television because, he argued at that time, we did not have our own images to portray, to empower our younger generations. He said if we introduce television the images shown will be of the West and the imperialist ideology will continue. In Zanzibar, however, we already had the oldest television on the continent, and it was in color. When Abeid Karume attained power in Zanzibar in 1964, after a bloody overthrow of the sultanate in power, the first thing he did was to introduce not only television, but community media, so every village in Zanzibar already had these images. But television didn’t come to Tanganyika until 1992 (Mwalimu stepped down in 1986), when it was introduced by a local businessman who established his own station. Until then the state had controlled the media, so history began to change as businesses were allowed to establish media.

I remember I was then in TAMWA and we had to encourage a lot of production of plays and other visuals, for which there was no market before. The radio had been powerful; when the peasants went to the countryside, they would take the radio and listen as they ploughed the land. So, the radio was the main tool that was used to mobilize society during Mwalimu’s era.

The press gave women journalists little chance to cover issues of importance to women. We were given health or children to cover as our issues. Before, Tanzania had one English paper, one Kiswahili, Uhuru, and one party paper. By 1986, there were 21 newspapers, and it became easier for us to really influence the press, and TAMWA began talking about issues like sexual harassment at work. But it was a double-edged sword, because the television stations recruited pretty girls to do the news reading, and the girls also wanted to be seen on television as it was a novelty. So, while we were expanding the conversation on the portrayal of women, here was television, where women were used as sex objects. The struggle continues, a luta continua.

Heba M. Khalil: How are movements trying to achieve change on the continent, particularly youth movements or younger generations, by utilizing media and cultural spaces?

Fatma Alloo: The youth need to develop tools of empowerment at an educational level and at an organizational level. Africa is a young continent, and our hope is the youth. Many youth are very active at a cultural level, they may not be in universities but at a cultural level they are extremely visible, in music, dance, and street theater.

At the moment, you see the pan-African dream has sort of lost the luster it had during independence. Even if you look at the literature of that time, it was a collective dream for Africa to unite—Bob Marley had a song “Africa Unite,” we used to dance to it and we used to really identify with it, and the literature—Franz Fanon, Ngũgĩ wa Thiong’o, Sembène Ousmane, Miriam Ba, Nawal al Saadawi—and also the films that came out. In fact, Egypt was the first country to produce amazing films; when we established the Zanzibar International Film Festival (ZIFF), in our first year we showed a film from Egypt, The Destiny by Youssef Chahine.

Zanzibar International Film Festival was born because we asked the question, “If we in Africa do not tell our stories, who will?” We ask that question particularly to train and stimulate the production of films on the continent, including in Kiswahili, because while West Africa has many films, East Africa lags behind. The festival has been in existence for 21 years. This part of the world has more than 120 million people who speak Kiswahili, so the market is there. We also encourage a lot of young producers and we encourage putting a camera in children’s hands, because from my own experience, children get so excited when they can create their own images. Twenty-one years later, these children are now adults, and they are the directors and the producers in this region. So, one has to play a role in impacting change and liberating consciousness on our vibrant and rich continent.

This article is part of the series “Reclaiming Africa’s Early Post-Independence History” from Post-Colonialisms Today (PCT), a research and advocacy project of activist-intellectuals on the continent working to recapture progressive thought and policies from post-independence Africa to address contemporary development challenges. Sign up for updates here.

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The State of Judicial Independence in Kenya: A Persistent Concern

Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such. So long as we may have an independent Judiciary, the great interests of the people will be safe.

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The State of Judicial Independence in Kenya: A Persistent Concern
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On Thursday 22 July 2021, Justice Aggrey Muchelule and Justice Said Juma Chitembwe were subjects of arbitrary search, intimidation, and interrogation by the Directorate of Criminal Investigations (DCI) on the basis of unfounded allegations of corruption.

The arrest, coming in the wake of constant and relentless attacks on the judiciary by the Executive and politicians, left a very sour taste in the mouths of many, bearing in mind that nothing was found to implicate the judges upon searching their respective chambers. Let it be clear that NOBODY is above the law  (nemo est supra legis)! Not even the President of the Republic, let alone the judges.

However, there are reasons why there are arguments for special procedures when arresting or dealing with criminal allegations against a sitting judge: the need to preserve the sanctity of the office and the need to manage perceptions with regard to the judicial office. The Supreme Court of India in the case of  Delhi Judicial Service Association v. State of Gujarat  AIR 1991 SC 2176, (1991) 4 SCC 406 recognized the fact that whereas judges were not above the law, certain guidelines had to be in place to guide the conduct of arrest  “in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated”. The concept of judicial independence, it must be recalled, recognizes not only realities but also perceptions that attach to the judicial office.

Chief Justice Howland in the Canadian Supreme Court case of  R v. Valente  [1985] 2 SCR 673 stated as follows with regards to perception as an ingredient of judicial independence: “it is most important that the judiciary be independent and be so perceived by the public. The judges must not have cause to fear that they will be prejudiced by their decisions or that the public would reasonably apprehend this to be the case.’ There is therefore the need to guard and jealously so, the image of the judiciary such as to manage how the judiciary is perceived by the public.

The unsubstantiated claims of corruption, and knee jerk searches without an iota of evidence does not bode well for the perception of the judiciary as a whole, and specifically, for the individual judges involved whose reputations are dragged through the mud, and needlessly so. There are germane reasons why the arrest of a judge should not be a trivial matter. The deference and respect to a judicial office informs the caution exercised in the conduct of arresting a judge. The judicial office fuses with the person of the holder and therefore it becomes necessary to err on the side of caution.

Indeed, Courts elsewhere have endeavoured to engage cautiously in this exercise of delicate funambulism. The Supreme Court of India in the case of  K. Veeraswami v Union of India and others,  1991 SCR (3) 189  found that a sitting judge can only be undertaken with permission from the Chief Justice or if it is the Chief Justice who is sought to be prosecuted, from the President.

Equally, the Court of Appeal of the Federal Republic of Nigeria in the case of Hon. Justice Hyeladzira Ajiya Nganjiwa V. Federal Republic of Nigeria  (2017) LPELR-43391(CA) held that a sitting judge cannot be prosecuted for offences that would have otherwise been a ground for removal from office.

It is important to note that the grounds for the removal of any judge from office are captured in article 168 of the Constitution of Kenya and they include a breach of the code of conduct and gross misconduct or misbehaviour.

Noteworthy it is to remark that the High Court of Kenya, in laying a principle of constitutional law in the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae)  [2019] eKLR ably stated that, “While the DCI is not precluded from investigating criminal misconduct of judges, there is a specific constitutional and legal framework for dealing with misconduct and/or removal of judges.

Consequently, cases of misconduct with a criminal element committed in the course of official judicial functions, or which are so inextricably connected with the office or status of a judge, shall be referred to the JSC in the first  instance.” The cumulative conclusion was that the gang-ho recklessness meted on Justices Muchelule and Chitembwe by an increasingly overzealous Department of Criminal Investigations (DCI) was an affront to judicial independence in its functional sense and also in terms of perception. It was a careless move.

If there is any evidence linking any of the judges to any conduct unbecoming, then out of constitutional edict and commonsensical pragmatism, the first point of call should be the Judicial Service Commission (JSC). The Office of the Chief Justice must also be subject of focus during this unfortunate debacle.

The statement emanating from that office in the aftermath of the unfortunate events of 22nd  July 2021, was at best timid and disjointed. The statement did not appear to reinforce the constitutional principle that judges cannot be arrested over matters that really ought to be addressed by the Judicial Service Commission. The office of the Chief Justice should have done better.

In summary, let it be proclaimed boldly that judicial independence is too precious a public good that it will be protected at all costs. Let it be lucid that incessant interference with judicial independence will not be tolerated from any quarters.

Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such! And in the words of John Rutledge, a scholar, jurist and the second Chief Justice of the United States of America; “So long as we may have an independent Judiciary, the great interests of the people will be safe.”

This article was initially published at THE PLATFORM For Law, Justice and Society Magazine

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