If Kenyans had any doubt that the government is oblivious to their worries and concerns, the COVID-19 pandemic has confirmed their worst fears: the Kenyan government is not only ignorant about how the majority of the country’s citizens live, but it also simply doesn’t care. The level of insensitivity displayed by the president and his cabinet has stunned even those who would normally sing the government’s praises.
A few examples:
1. Bludgeoning citizens during a curfew
When the government imposed a dusk-to-dawn curfew and a partial lockdown at the end of March, images of police officers brutally beating up people waiting for ferries and other forms of public transport filled social media. There have been at least three reported deaths as a result of the violence inflicted on ordinary citizens by the police. No public apology by the police has been forthcoming, nor has there been any statement on who died and in what circumstances. The cruelty with which the curfew was enforced shocked even the international media, prompting the president to urge the police to use restraint. Yet, the beatings continue to this day. One recent video on social media showed police officers dragging a person from his house for not wearing a face mask – in his own house!
The new Cabinet Secretary for Health, Mutahi Kagwe, has adopted a similar “disciplinarian” approach to the pandemic, which has instilled more fear than confidence in the government. Instead of reassuring Kenyans, he has resorted to scolding them, even admonishing those who dare to eat “only one sausage” with their beer at restaurants (Restaurants have been asked to only serve alcoholic drinks to patrons who order food as well.)
2. No safety net for the poor and vulnerable
Meanwhile, President Uhuru Kenyatta, begging bowl in hand, has been imploring donors/lenders to give money to Kenya to allow the country to effectively handle the coronavirus crisis. (It must be noted that the president belongs to among the wealthiest families in the country, running a large monopolistic and highly profitable milk processing enterprise. Yet, there has been no talk of reducing milk prices during this current crisis, nor has the president or his family donated money or milk to charities helping the jobless and the vulnerable.)
Promises of cash transfers and food to those who are suffering extreme hardship as a result of the curfew and lockdown don’t seem to have materialised. A cynical citizenry is already wondering if the funds raised will go towards the intended beneficiaries or will simply line some politically-connected pockets. Anecdotal evidence and other reports indicate that the Sh2,000 (about $20) monthly stipend that was promised to the most vulnerable people has still not been disbursed to them despite assurances by various government officials that cash transfers started in April. A quick, highly unscientific survey I conducted on people living in Kawangware, a large informal settlement in Nairobi, showed that none of the people, who have either been laid off or have had to close down their small businesses, have seen a cent of the stipend.
As Mercy Mwenda, a columnist with the Daily Nation lamented, “Given the current government’s treatment of poor Kenyans, one would be mistaken to assume that one of the key strategies of fighting poverty by this government is by creating more poor . . . It is now that we realise that our interaction with the government, as poor people, starts and ends with elections. In between, only the tragedies affecting the rich and brought by the rich will be focused on”.
3. Flowers for UK medics but no rewards for Kenyan doctors and nurses
Cowed by the state, and with no support system to see them through the crisis, Kenyans had to endure another slap in the face when it was announced that the Kenyan government had sent flowers grown in Kenya to National Health Service (NHS) workers in the United Kingdom in appreciation of their efforts in treating COVID-19 patients. This public relations stunt (probably a misguided attempt by Kenya’s once thriving flower-exporting industry to ensure future exports) backfired. Disgusted Kenyans – who have witnessed a deterioration in their public healthcare system, where doctors and nurses barely have the tools to treat any patient, let alone one suffering from COVID-19, were aghast that the president saw it fit to reward healthcare workers abroad when doctors and nurses in local hospitals have been complaining of lack of personal protective equipment (PPE) and poor wages.
Uhuru responded to his social media critics by admitting that sending flowers to people in a rich country was not just a kind gesture by a poor country; it was a marketing strategy. He told Kenyans that the 300 bouquets of flowers were sent to the UK “to show the world our product” and to protect the country’s flower industry. Kenyans on social media were told to “think before you talk nonsense”.
4. Making people homeless in the middle of a lockdown
There were more shocking events to follow. About three weeks into the lockdown and curfew, some 5,000 people were forcibly evicted from a low-income neighbourhood in Nairobi and left homeless. Images of houses being demolished and women and children pleading for mercy did not move the government or the security personnel sent to the scene to halt the eviction.
The eviction happened during a time when no one could leave Nairobi due to containment measures, which meant that the evicted people could not even seek refuge in their rural homes. The 7 p.m. curfew also made it difficult for the evictees to find alternative accommodation at short notice. No one in government wondered how these people would enforce “social distancing” in their homeless state or where they would sleep during a night curfew.
The details about why this eviction was ordered at this time are scanty, but there is speculation that the order was made to pave way for a large development scheme nearby. Even if this is the case, why were the residents not given enough notice? More importantly, why was the eviction exercise (overseen by the police) ordered during a lockdown and curfew?
The international media and social media picked up the story and aired it for the world to see, but there was no apology or explanation from the state, nor any stated plans for resettling, housing or compensating those whose houses were torn down. John Githongo, the publisher of The Elephant, commented on Twitter: “That the demolition of houses of over 5,000 residents of Kariobangi North Ward can take place in the middle of an unprecedented pandemic lockdown demonstrates an official callousness and disregard for the lives and basic dignity of Kenyans that is staggering”.
Jubilee’s poor scorecard
What these tragic events have demonstrated is not just the government’s callousness in the midst of an extremely difficult period, but also its cluelessness, accompanied by extreme greed and an anti-intellectual posture, which has raised levels of mediocrity and incompetence in government not witnessed under Daniel arap Moi’s highly repressive regime. (Even the former president knew that you need intelligent people in government.)
State capture of media organisations has also made a disturbing comeback, with stories of editors taking instructions from State House, and with corporate interests aligning with state interests. (Uhuru’s contempt for the media – and for reading in general – was evident after he assumed the presidency when he stated that newspapers were only good for “wrapping meat”.)
When the coalition Jubilee government of Uhuru Kenyatta and his deputy William Ruto first took over in 2013, I thought it merely incompetent. But as the years passed, and as one corruption scandal after another threatened to taint the government’s legacy, it dawned on me that something more sinister was afoot. The corruption scandals were of such huge magnitude that Kenyans stopped counting the zeros in the amounts that were looted. Shady “tenderpreneurs” were blamed, but many Kenyans wondered how such large amounts could pass through important ministries without ministers or permanent secretaries noticing.
Belated attempts to curtail corruption in government have led to the sacking of a Treasury Cabinet Secretary, but this anti-corruption campaign appears to be targeting one side of the coalition government, which has raised questions about its impartiality.
It has also became apparent that the people running the show haven’t a clue about the challenges facing ordinary Kenyans. Election promises – such as the laptop for every Standard One pupil made by Uhuru during his 2013 election campaign – failed to consider that large numbers of Kenyan students go to schools that have no running water or electricity. Some schools, especially in remote areas, don’t even have roofs. One school board member told me of a case where tablets (and not the promised laptops) were delivered but they lie unused because they are not sufficient in number and, in any case, the teachers have not received training.
During the current crisis, government honchos encouraged school children to embrace e-learning at home, not realising that a personal computer is a luxury even for many university students, let alone primary school students.
Despite attempts to paint Uhuru’s “legacy” as one that has delivered tangible benefits to Kenyans, citizens now know that promises made by him and his deputy (like the stadiums that were to be built in various towns across the country) have not materialised. On the contrary, Kenyans have suffered a steep decline in their standard of living, thanks to high rates of inflation and a declining shilling.
And as if Kenyans are not already suffering financially on account of the current lockdown and curfew, the Treasury Secetary, Ukur Yatani, recently proposed a raft of additional taxes, which will make life for poor and middle class Kenyans and those who have lost their jobs or businesses even harder. He wants to impose 14 per cent VAT on liquefied petroleum gas (which was previously exempt from tax); he wants to tax pensions paid to people over the age of 65; he even wants to impose a 14 per cent tax on machinery and equipment used in plastic recycling plants (a real disincentive to those who recycle waste and care for the environment).
These and other new taxes are no doubt a response to the ballooning debt now standing at Sh6.29 trillion (about $60 billion or around 60 per cent of the country’s GDP) that the Jubilee government has inflicted on the country, and which it appears unable to repay. Early this month, Moody’s, the international credit rating agency, downgraded Kenya’s credit rating from “stable” to “negative” owing to the country’s huge repayments on external debt, heavy local debt obligations with less tax income (thanks to a mismanaged economy that saw several small and medium enterprises fold up due to high energy and other costs, including high taxation) and dollar loans that could see repayments rise if the shilling declines sharply. Given that Kenyans are also suffering – and will continue to suffer – from the effects of the COVID-19-related lockdown for several months, if not years, it is deeply insensitive to increase their suffering through punitive taxation.
The Jubilee government’s extortionate methods of taxation remind me of the notorious “hut tax” imposed by the British colonial administration which, having forcibly alienated the indigenous peoples from their land, then proceeded to impose a tax on them as a means of coercing them into paid employment on white settler farms, a form of extortion that eventually led to the anti-colonial Mau Mau rebellion.
An unholy alliance
Part of the problem is that the ruling elite in Kenya, particularly Uhuru Kenyatta, have never experienced real poverty. Uhuru’s father, Jomo Kenyatta, Kenya’s first president, came from a humble peasant background, but within a decade of his rule after independence, he had become one of the wealthiest people in the country, with landholdings all across the country, some acquired through coercion.
Deputy President William Ruto has never hidden the fact that he comes from a poor family and even sold chickens by the roadside to earn a living when he was a young man. But it is not lost on Kenyans that the vast fortune he has today is the result of crooked deals he made when he was close to Moi, who groomed him to be a campaigner for his KANU party when it appeared that he might be losing his grip on power. Ruto has since been named in various land-related scandals, allegations he continues to deny.
The unholy alliance between these former International Criminal Court (ICC) indictees opened the floodgates of impunity. When Uhuru and Ruto joined hands to form the Jubilee Party in the run-up to the 2013 election – which they dubbed “a referendum against the ICC” – they were essentially telling Kenyans that any crime – even one against humanity – can be overlooked as long as the people vote overwhelmingly for those accused of that crime. Their election campaign encouraged a wave of known criminals to vie for political office, contrary to Chapter Six of the 2010 Constitution that demands that leaders in government be people of integrity.
However, now, seven years after that marriage of convenience, Uhuru seems to have switched sides. A clear example of the dishonesty that has pervaded his administration is the sidelining of allies of the deputy president, who in 2013 was paraded as the president’s best friend, ally and fellow indictee wrongfully charged by an international court. Both men often appeared in public holding hands and dressed in similar attire (another publicity stunt no doubt concocted by the various PR companies that the president hired to whitewash and shore up his image).
Now that Uhuru has joined hands with his former foe and leader of the now defunct opposition, Raila Odinga, he thinks nothing of dumping his deputy. Ruto is not known to be a man of integrity or honesty either, but when a man he helped to win an election dumps him like an old wet sock, it says a lot about the man doing the dumping. And given that Uhuru is capable of throwing people who helped him win an election under the bus, what guarantee is there he won’t do the same to Raila?
A bumpy ride and possible rebirth
Kenyans are in for a bumpy ride in the months leading up to the 2022 election, what with an ailing economy, thanks to mismanagement and now COVID-19, and a highly charged political environment where friends and foes have become highly interchangeable. In other countries, the mismanagement of the economy and the callous treatment of citizens would normally lead to a change of guard during elections. But this being Kenya – where loyalty to one’s tribe trumps qualifications – all we can expect is more of the same. Or perhaps COVID-19 may have finally helped to unmask our leaders to show their true colours, which could alter the way Kenyans view leadership.
Going forward, I envision a “lost development decade” for Kenya, much like the one that African countries experienced in the 1990s during the implementation of the World Bank-IMF Structural Adjustment Programmes (SAPs) that led to withdrawal of essential services by the state and huge job cuts in the public sector, increasing the levels of hardship across the continent. The repayment of unsustainable and reckless loans will no doubt leave Kenya economically much weaker, and halt progress in key sectors. COVID-19 has only served to hasten the country’s inevitable economic decline.
However, we must also remember that the 1990s also gave birth to pro-democracy movements in Kenya and in many other African countries. As then, an angry, disillusioned and impoverished citizenry may now finally say, “Enough is enough!” This could give rise to a progressive alternative leadership that actually cares about the country and its citizens, and which has the vision and capacity to unleash Kenya’s unlimited potential.
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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.
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.
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.
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  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)  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
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.
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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