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Not Yet Uhuru: Why Postcolonialism Doesn’t Exist in France

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It is no longer shocking to witness the prejudice among French institutions and intelligentsia against Africa and Africans.

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Racism and exclusion have always been at the heart of France’s neocolonial project in Africa. What is new, however, is the pervasive and active discursive process of making invisible, and therefore containment, of the violent reality of France’s policies and its devastating consequences for France’s racialised citizens as well as the African populations on the other side of the Mediterranean. Today it is important to consider what France has become: to slightly stretch the words of philosopher Herbert Marcuse, a one-dimensional society where repressive and exploitative forces of domination and injustice that have been at the heart of France’s national consciousness challenge any possibility of a genuine vision of change.

It is no longer shocking to witness the prejudice among French institutions and intelligentsia against Africa and Africans. The state, the media, and the academy in France actively embody the role of new agents of state neocolonialism to reject any resistance against racism and Islamophobia through complex methods of containment and abstraction.

Race blindness for instance becomes an effective tool to safeguard the neocolonialist foundation of France’s state apparatus and contain any possible threats to its national consciousness. As writer Lauren Collins observes, “There is a common belief that there cannot be racism in France because in France there is, officially, no such thing as race. The state, operating under a policy of “absolute equality,” does not collect any statistics on race or ethnicity.” By doing so, the state apparatus in France ignores its racialised and ethnic citizens and represses their rights to be fully acknowledged.

State neocolonialism in France has been impregnated in its national consciousness to the extent that its networks of domination and dehumanization have blurred the traditional distinctions that are made on the basis of colour and between racialised and ethnic citizens emigrating from Africa. In France, to draw upon Fanon’s analysis that racism is fundamental to the economic structures of capitalism, the political infrastructure is also a superstructure: you are French because you embody France’s state neocolonialism, you embody France’s state neocolonialism because you are French. The French state no longer presupposes certain racial and aesthetic characteristics of the ideal citizen: Black African intellectuals and brown Maghrebi media pundits can also be incorporated as new agents of state neocolonialism. In contemporary France, Africans are not othered and excluded on the basis of race, ethnicity, or colour, but rather on the basis of their politics, culture, and religion.

When Emmanuel Macron, the French president, decided in October 2019 to share his views on immigration and Islamophobia, he chose the far-right magazine Valeurs Actuellesdeclaring that “the failure of our (economic) model coincides with the crisis of Islam” and adding that this crisis leads to the emergence of more radical forms of political Islam. Macron criticized a demonstration in support of the right to wear veils as “non-aligned Third-Worldism with Marxist tendencies” (he used the word “relents,” which can be translated to hint or trace, but also to stink or stench). This interview was published a few days after a mosque shooting in Bayonne, in south-west France. No terrorism offenses were brought by the French government against the white shooter.

The media’s complicity overwhelms any possibility of a meaningful public debate. At its basic form, the process of invisibilisation in a one-dimensional society involves the dispersal of productive energies through diversion and abstraction so to ensure that a revolutionary momentum is as unattainable as the end of capitalism itself.

This complicit relationship between the media and the state in France is carefully exposed in Serge Halimi’s Les Nouveaux Chiens de Garde (translated to The New Watch Dogs, 1997-2005). Halimi, the chief editor of Le Monde Diplomatique, lays down a seething critique of a “capitalist” press and media in France that are heavily influenced by the elite interests of politicians and powerful corporations and likely to manufacture propaganda to serve their agenda.

This is exemplified by the controversial debate in France around returning works of African art, stolen during colonial times, to the continent after the publication of the report by the French historian Bénédicte Savoy and the Senegalese economist and writer Felwine Sarr, and commissioned by Macron, which recommends to cancel the project of long-term loan of items to African museums and to support the full and unconditional restitution of the looted heritage back to Africa. The glaring discrepancies in reporting the ambivalent position of the French Minister of Culture, Franck Riester, a right wing politician, regarding the return of the stolen artifacts to Africa highlight the dangerous complicity between state institutions and the media in France. There were two opposing reports of this event: on the one hand, major French media outlets celebrated the efforts of the French government to return 26 works of art to Benin. Radio France International, for example, chose the title: “Restitution of works of art in Benin: France goes a step further” while Libération opted for: “Restitution of works in Benin: Paris says it works for a quick return.” But once we dive into these articles, we are faced with the many approximations and “possible scenarios” under which France will actually return the art. The conditional supplants the affirmative, and what remains is the strong belief that much has been left unsaid.

On the other hand, The Art Newspaper, a leading global art magazine, commented differently on the same event: “France retreats from report recommending automatic restitutions of looted African artefacts” ran the article. Here, what is emphasized is the strong opposition of France’s powerful gallery owners and art collectors against any form of permanent restitution and the pressure they put to change the “restoration without delay” decision into a “temporary return.” The new scenario, according to the minister’s comments, refers now to a temporary “exhibition dedicated to the diversity, complexity and aesthetic richness of these works” that will be held, not in Africa, but across France this summer as part of Macron’s highly publicized event entitled “Africa 2020.”

While most news outlets in France continue to briefly comment on the ongoing debate between supporters and critics of Savoy-Sarr report on the restitution of African art, The Art Newspaper insisted that “the report made international headlines, recommending the restitution of African artifacts in French museums, but the country has not returned a single item to Africa.” A year after the publication of Savoy-Sarr recommendations and Macron’s promise for a quick return, “neither the 26 pieces from Benin nor indeed the 90,000 other Sub-Saharan artifacts in French museums” have been returned to Africa.

What is often dismissed from the debate on the restitution of African heritage is the capacity of the French president to secure political and economic gains while asserting the hegemonic power of France over its neo-colonies. Macron accepted to temporarily return El Hadj Omar Tall’s sword to Senegal for a period of five years during another highly publicized ceremony, and at the same time he persuaded Macky Sall, the Senegalese President, to sign a new, multi-hundred million euro contract “for the construction of three offshore patrol vessels for the Senegalese Navy.” Again, there is nothing new here: as Sally Price reports, “[R]estitution is part of a two-way interaction, based on inequality and demanding something in return.” However, Macron successfully manages to obscure this inequality through a highly-calculated, affective, and Africa-friendly communicative strategy.

In France, as the old world is dying and the new is waiting to be born again, a specific breed of pseudo-intellectuals highjacks the public discourse to further promote a republicanism of inequality and exclusion. Among white French intellectuals, the complexity of the postcolonial field is often reduced to a corrupt discursive technology of deceptive arguments, false readings, and deliberate confusion. It is unconceivable to think of a public debate about, say, the case for reparations.

Whenever I am faced with the abysmal state of postcolonialism in France, I remember how Carina Ray, associate professor at Brandeis University, at a panel on the racial politics of knowledge production in November 2018, described the state of African studies in Europe: There are still issues that are “so 1940s and 1950s.” “White Europeness” has made it difficult to bring new perspectives on the postcolonial question. As she put it blatantly: it is a disaster.

The dangerous pseudo-intellectualism of Bernard-Henri Lévy, Alain Finkielkraut, Éric Zemmour, Raphaël Enthoven, Michel Houellebecq, Renaud Camus, Robert Ménard, and others – the list is absurdly long – has caused a permanent damage to any possibility of a qualitative change. There is no pause here: these figures have always been central to France’s neocolonial project of domination and exploitation.

As Marcuse writes, “The most effective and enduring form of warfare against liberation is the implanting of material and intellectual needs that perpetuate obsolete forms of the struggle for existence.” The omnipresence of Lévy, Finkielkraut, and Zemmour in public discourse in France is meant to turn meaningful propositions of liberation into obsolete forms of insignificant punditry.

In an infamous manifesto signed by 80 figures of the French intelligentsia such as the reactionary Alain Finkielkraut and published in 2018 postcolonialism was deemed “a hegemonic strategy” that attacks the ideals of republican universalism, and it involves “the use of methods of intellectual terrorism reminiscent and far exceeds what Stalinism once did to European intellectuals.”

What is often recurring in these incendiary attacks on postcolonialism among the white French elite is this amalgam of postcolonialism with the North American scholarship. There is the tendency to believe that postcolonial studies, an interdisciplinary field of inquiry and activism, is due above all to the contributions of the American and Anglo-Saxon schools to the developments of its theories and practices. When the existing tensions between France (and Europe) and the United States on issues of knowledge production and cultural superiority is taken into consideration, one is inclined to consider that their attacks against postcolonialism are a deep and irrational fear of hegemonic American interventionism.

The view of postcolonial thought as a universal, progressive praxis that has been forged by the struggles of the peoples of the South is dismissed. The fundamental thrust of postcolonialism as moving beyond racial and identity issues to rethink also political, cultural, and utopian ideals is attacked. While the Americans and others have grasped that, in a world in flux, we cannot afford not to be postcolonial, France’s established networks of neocolonial power continue to dismiss postcolonialism as unpatriotic and as a homogeneous threat.

Faced with Finkielkraut’s racist and misogynist attacks during a televised debate, Maboula Soumahoro, the activist and chair of the Black History Month in France, was succinct in her reply: “Your world is ending! You can be panic struck as long as you want, it’s over!”

Meanwhile, the complicity between the political, media and cultural institutions in France continues to silently enforce the state neocolonialism against the African diaspora. The death of Zineb Redouane, the islamophobic attack against a French Muslim women by a white far-right politician during a school trip with her son and other children to the regional parliament in eastern France, the outrageous and ignorant falsehoods made-up by a white French writer about slavery, the racist mural of Hervé Di Rosa in the National Assembly, the decision of the French government to backtrack on the full and permanent restitution of stolen works of African art, and France’s murky role in Libya’s ongoing civil war are all visible signs of a pervasive state of neocolonialism that dictates the violent relationship between France and Africa.

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

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Haythem Guesmi is a Tunisian writer and critic.

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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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