Makau Mutua Was Wrong on JSC Reforms7 min read.
Professor Makau Mutua’s proposed constitutional amendments targeting the Judicial Service Commission are highly regressive and would neuter the independence of the judiciary.
In his column in the Sunday Nation of May 31 2020, Professor Makau Mutua argued that there was need for a constitutional amendment targeting the Judicial Service Commission (JSC). Although details about his proposed reforms were scant, he did articulate three core changes on structure, membership and mandate.
On structure, he proposed splitting the JSC in two: an independent body for interviewing judicial candidates and hearing petitions against judges and, a commission chaired by the Chief Justice that would exclusively deal with the judiciary’s administration matters.
On membership, Mutua seemed to prefer dismantling the current membership of the JSC and adopting a model more akin to how other commissions — such as the Kenya National Commission on Human Rights — are constituted. The effect of such a model would be to ensure that institutions with ring-fenced membership in the JSC — the Law Society of Kenya, the Magistrates, Judges of the three Superior Courts and the Public Service Commission — would have no representation in the body. The model would likely then require the President to appoint a recruitment panel for commissioners and then both he and parliament would have the final word on who become JSC commissioners.
On mandate, Mutua argues for reducing the role of the JSC and limiting it to “only interviewing judicial candidates and hearing petitions against judges”. His choice of words is critical, because interviewing judicial candidates is not the same thing as deciding which persons should be appointed judges. The most extreme of Mutua’s recommendations is on the removal of judges, which he proposes be ceded to parliament.
There are many reasons why Mutua’s suggestions are highly regressive and unhelpful. However, before I outline some of those reasons, it is critical to explain what the constitution currently provides in respect of the JSC.
The Constitution and the JSC
The JSC is one of the independent commissions established by the constitution. It has eleven members with its composition constituted through a mixed approach. The first category are permanent positions comprising persons occupying the positions of Chief Justice and Attorney General. The second category are elective positions with the first three being for the judges of the Supreme Court, the Court of Appeal and the High Court. There are three other elective positions, one for Magistrates and the other two for a female and male advocate who are members of the Law Society of Kenya. Position to the third category are appointive, with appointment to the first position being made by the Public Service Commission. The constitution describes the remaining two appointive positions as “one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of National Assembly”.
The JSC’s overarching role is to facilitate the independence, accountability as well as transparency and efficiency of the judiciary. One of its core tasks is nominating and recommending to the President, following a competitive and open process, persons for appointment as judges. Additionally, it is responsible for considering complaints against judges and notifying the President when to form a tribunal to determine whether a judge should be removed from office.
With the exception of the Chief Justice and the Deputy Chief Justice, whose candidatures have to be vetted by the National Assembly, the JSC essentially makes the decisions on persons to be appointed judges. Even for the Chief Justice and Deputy Chief Justice, the President and the National Assembly cannot substitute their choices for those of the JSC. Fundamentally, if the National Assembly declines to approve the person selected as Chief or Deputy Chief Justice, the JSC has to recommend an alternative candidate for vetting.
Of course, both Mwai Kibaki and Uhuru Kenyatta have shown their frustration with the constitutional edict removing from them the power to decide or directly influence the appointment of judges. This was apparent from the first appointments under the 2010 Constitution when Mwai Kibaki rushed to appoint a now retired Judge of the Court of Appeal as Chief Justice without the involvement of the JSC. The courts were quick to assert their authority, suspending Kibaki’s decision and the JSC eventually conducting a competitive process that saw Dr Willy Mutunga appointed Chief Justice. Ironically, Mutunga was perhaps the last person Kibaki had in mind for the position of CJ because, even though Kibaki’s autocratic tendencies now pale in comparison to Uhuru Kenyatta’s, still he seemed to prefer more pliant judges.
Nevertheless, while Kibaki was gracious after the courts blocked his choice, Uhuru has been contumaciously obstinate about seeking to influence the appointment of judges. It started in 2014 when he refused to appoint 14 Judges nominated by the JSC. The courts eventually forced him to make the appointments. Yet, since July 2019 he has refused to appoint 41 new Judges nominated by the JSC despite being ordered to do so by the courts. His court filings on the case show that he believes he can haggle over who he does not want to see appointed judge.
Ring-fencing the independence of the judiciary
The constitutional framework establishing the JSC is perhaps one of the constitution’s strongest tools to guarantee the independence of the judiciary by ensuring that (legally) political actors have little leeway to influence who becomes a judge. Yet, there are many other constitutional provisions that jealously guard the independence of the judiciary. This ring-fencing was not a chance constitutional design occurrence. It was reflectively deliberate. Historically, as Mutua rightly indicated, the propensity of Kenya’s political elite to demand control of the judiciary has been insatiable. Yet, in his wisdom, Mutua asks that parliament be given the mandate to remove judges. If this had been the case, nearly all our leading judges who have displayed exceptional courage in defending the rule of law would be long gone even where the threshold for removal was a vote by two-thirds of parliament. It would be an exceptionally gleeful removal ceremony as punishment for those judges who have displayed inestimable consistency in defending the rule of law and calculated to create a chilling effect on those still in the judiciary.
There is another and more fundamental reason.
The 2010 Constitution created a constitutional democracy. The cardinal feature of a constitutional democracy is the rule of law. Rule of law is a very basic concept which simply means that no person or institution should operate above or outside the law. That includes the President and his relatives. The sacrosanct task of checking that everyone operates within the law is assigned to the judiciary. A constitutional design that ensured that the institution entrusted to call out those who violate the law is to the extent possible devoid of interference was key. The solution was a professional yet diverse institution – the JSC – where no one voice had an eclipsing effect. Importantly, the designers of the Constitution made sure that legally the political class – the President and Members of Parliament – had a minimal, perhaps nearly inconsequential, role in deciding the composition of the judiciary.
Mutua anecdotally samples how judges are appointed in different jurisdictions starting from – yes, you guessed right – the United States. He then mentions India and South Africa while providing scant details about the relevance of these countries.
As a starting point, the United States is just the wrong place to go when one wants to argue a case for the independent and professional appointment of judges. To begin with, the United States is not a modern constitutional democracy. In fact, I would argue that it is not at all a constitutional democracy but perhaps merely a struggling democracy with a constitution written by slave owners. Second, recent events have shown how the political class in the United States manipulates judicial appointments to entrench their political ideologies through the courts. I need say no more here.
The most recent detailed study on best practice to guarantee judicial independence through appointments, tenure and removal of judges is by the Commonwealth in 2015. The study builds on and complements the Latimer House Principles, a set of guiding principles promulgated by the Commonwealth Heads of State in Abuja in 2003 for the best ways to ensure a true separation of powers between the three arms of government: the judiciary, legislature and executive. While that study does not rate the legal norms of individual commonwealth countries for their effectiveness in guaranteeing judicial independence, it distils a set of principles for best practice. Kenya’s legal framework, under the 2010 Constitution, would rate relatively highly measured against those criteria.
We have in the 2010 Constitution the best law we perhaps could hope for to support the independence of the judiciary. It is therefore difficult to understand how the amendments to the constitution that Mutua argues for, superintended by a regime that does not believe in an independent judiciary, can achieve better independence, transparency and accountability of the judiciary.
In ordinary times, Mutua’s proposals would not elicit a response. However, they are made during a season of heightened and choreographed demands by those who control the executive and parliament, to effect amendments that would neuter the independence of the judiciary. His proposals might just be part of the “intellectual” primer that the Building Bridges Initiative is desperately clamouring for to sanitise its upcoming proposals for constitutional change.
Right of Reply
I hope you’ve been well. I’ve read with interest your response piece in the Elephant. It’s challenging and engaging. Several points.
First, you essentialize democracy without realizing it’s a system of governing people based on the stilts and fictions of liberalism. Those fictions and stilts are very fragile. That’s why democracy is an experiment whose outcome is unknown. That’s why there’s nothing like a “modern” democracy. Every country has a dynamic and evolving political system within the genre of political thought and history known as democracy. What would interest me are thoughts about a post-modern post-liberal democracy.
Second, all systems and institutions rely on community ethics and standards of internalized norms and behavior. You can’t abstract Kenya’s institutions from its corrupt elites in the judiciary, executive, and legislature — and even civil society. It’s a rotten country, and you know it. The three arms of the state are all equally corrupt. They work together to steal and destroy. That’s why it’s fallacious to imagine the JSC or the judiciary is above the muck.
Third, law is important but not determinative of anything. Virtually all a society’s choices lie in politics — even law. If your politics are bad — as we’ve seen in the US, and has been the case since its founding, then your laws are bad.
Fourth, you can’t carve out a sane lane in the judiciary without capturing state power and then leading a moral, normative, and cultural revolution. Anything else is just elite and bourgeois musical chairs. Lastly, the founders of the American state weren’t slave owners — rather, they repressed ENSLAVED Africans. No one can normatively be a slave, but people can be empirically enslaved — I’ve written a chapter on this for a forthcoming book that Caroline Elkins has edited.
On the enslavement question, I just want to add that one human being can treat another as chattel, or commercial property — as Arab, Europeans, and White Americans did to black Africans. But this empirical transactional concept cannot normatively vacate the humanity of the person treated as chattel. In other words, one human being cannot be normatively owned by another. That’s why the term slave is a political assertion without a philosophical basis. It’s normalized by those who dehumanize black Africans in a bid to turn enslavement into a natural condition.
Finally, let me thank you for keeping the debate I started vibrant. We can disagree, even in civil society without ulterior motives, or being pawns. The tyranny of the intellect which requires orthodoxy or unanimity is by definition anti-intellectual. Let’s continue the debate and engage it in a higher gear when we meet post-COVID!
Prof Makau Mutua
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The Blind Spot: A Graphic Novel on Food Security and Farmers’ Rights
Chief Nyamweya shines a light on the central issues of food security and the welfare of smallholder farmers in Kenya.
Some time back in May 2020, an incident occurred in Mombasa that stunned the nation. The Daily Nation reported a story of a Kisauni widow who was forced to boil stones to give her children false hope that she had some food for them. The story sent shockwaves across the country and ignited a conversation about the magnitude of the hunger plaguing Kenyan households.
The story of Peninah Kitsao is not an isolated incident. All over the country, ordinary Kenyans are struggling to put food on the table due to biting inflation that has seen commodity prices soar to nearly unaffordable levels. Failed rains and a drought of a severity never witnessed before in the history of the country, especially in northern Kenya, have worsened a dire situation.
Interventions by state and non-state actors have arguably not been enough as there have been reports from certain parts, such as Samburu, of people drinking dirty water and eating dog meat to survive. The country is essentially in a deep hole. Coupled with the drying up of the rivers and lakes that used to serve vulnerable communities, it is safe to say that the government and other agencies have had blind spots in dealing with the situation.
Route to Food Initiative’s graphic novel The Blind Spot, which is written and illustrated by Chief Nyamweya, should be read against the backdrop of some of these startling developments. The work of committed art is to expose the ills in society, not just by dropping popular catchphrases and revolutionary slogans, but by disturbing the conscience of the nation. Such works of art are expected to put us on track for what needs to be done to set things right.
That’s exactly what Nyamweya’s comic offering is all about.
Worrying policy gaps
The central issues of food security and the welfare of smallholder farmers shine throughout the slim graphic novel, bringing into sharp focus policy gaps and a lack of commitment from leaders to correct the mistakes of the past.
The visual narrative opens with a protest by Kajibora residents and farmers at the Kajibora County Hall. Chanting outside the county governor’s residence, the agitated crowd demands justice for one of their own, Karisa, who has committed suicide after auctioneers sell his land to recover an unpaid debt.
The protest also provides the space and opportunity for the residents and farmers to demand “lower prices on food, better quality food and enhanced protection of Kenya’s ecosystems [and] land reforms.” Demonstrations are not new in the country; with livelihoods threatened by forces beyond their control even as the national and county governments drag their feet to alleviate the suffering, it is inevitable that ordinary people would take such drastic measures.
The Mzee Maona-led Jembe Revolution calls on Governor Nyoni to deal with food insecurity as a human rights issue and to protect smallholder farmers from predatory multinationals. The corporations are often accused of exploitation through the introduction of harmful production methods and industrial processes that threaten biodiversity.
The fictionalised revolution echoes the vigorous pushback by various stakeholders, including farmers, politicians and ordinary Kenyans, who have questioned the government’s proposal to introduce genetically modified foods.
While those in support of the introduction of genetically modified organisms (GMOs) into the country have a valid argument that Kenya and the continent at large are dealing with a serious food crisis that needs never-before-tested solutions, those against them argue that farmers and consumers are likely to suffer. This is because there are growing fears that the multinationals that distribute GM seeds will have the monopoly to dictate to farmers which seeds to use, and the scenario is likely to deny them the agency to produce food on their own terms and according to their preferences.
Putting Western interests first
In other words, the prioritisation of Western interests, as it often emerges in Nyamweya’s narrative, where the governor is accused of focusing on “the large scale production of a few food crops and protecting the interests of big agribusiness”, is a reality that policymakers will have to contend with to effectively address the issue of food security in the country.
A DW documentary titled Africa, GMOs and Western Interests, which aired two months ago, revealed the hidden hand of philanthropists such as Bill Gates, through the Bill & Melinda Gates Foundation, in pushing for the introduction of GMOs in select African countries to benefit private businesses in the West. Therefore, when Kajibora farmers and residents, through their Chama cha Wakulima (CCW) party, wave a placard reading SAVE OUR SEEDS, they are not expressing a grievance coming from without but a genuine fear born out of the reality that, on the one hand, the forces of globalisation are unavoidable (food production systems and the overall supply chain can never only be local) and on the other, the reality of the weak political system that hardly prioritises the interests of its citizens, least of all smallholder farmers.
To give credit where it is due, President William Ruto’s introduction of the fertiliser subsidy is likely to be a game changer for a majority of farmers who are unable to afford the essential commodity. The subsidised fertiliser is retailing at KSh3,500 for a 50kg bag, down from KSh6,000. The use of technology for registration (farmers use their phones) will also help eliminate red tape and corruption and thus improve efficiency in distribution, which is key to the timely use of the fertiliser to boost yields.
The cries and anxieties of the Kajibora farmers take a dramatic twist following the death of Mzee Maona when CCW is wracked by fissures as various members pull in different directions. As is characteristic of Kenyan political parties not founded on a solid vision and ideology, the core issues—such as sustainable agriculture for the farmers—that define the party’s agenda become a footnote. Instead, the so-called ideological differences (a euphemism for selfish interests) erupt during the requiem mass for Maona when party members engage in a vicious fistfight before the bereaved mourners.
Enter the scions of Mzee Maona, Sifa and Yona—highly educated, exposed and polished but with contrastingly opposing views on how to reimagine the patriarch’s vision of putting the farmers’ agenda first—and the narrative is set for a fascinating climax.
What emerges from the troubled relationship between Sifa, a professor, and Yona, now an aspiring Kajibora governor, are the intra-generational tensions of how to approach the pressures and complicated issues that have become synonymous with modern living. This is especially true when it comes to championing the rights of ordinary people such as farmers.
As is characteristic of Kenyan political parties not founded on a solid vision and ideology, the core issues that defined the party’s agenda become a footnote.
Sifa is distrustful of the political process for fixing societal issues. She is an advocate of fighting for human rights from outside the political process since, in politics, you “promise the people paradise while only delivering paperwork”. While her worldview is sometimes abstract and detached and elitist, she deserves credit for not losing focus on the immediate priorities that should be urgently addressed to make life better for small-scale farmers.
Yona, on the other hand, styles himself as a pragmatist and realist who is in touch with what is happening on the ground but comes across as vain, selfish and arrogant. He is a perfect representative of Kenya’s political class for whom governance is about foreign investment, rather than the people. He says that “a key part [of his] job as governor will be to attract investment to Kajibora”. This includes doing the bidding of multinationals like Green Shots Corporation, which is accused of controlling the food prices and the supply chains that are vital to farmers and consumers.
The role of the youth
However, what is poignant in the clash between Mzee Maona’s two grandchildren is the involvement of the youth—whether for good or bad—in debating the issues of food security and fair agricultural policies. While their approaches are often different, there is a genuine concern and passion that, in real life, should be encouraged and even rewarded.
Statistics indicate that the average age of the Kenyan farmer is 61 years. A revival of the 4K Clubs that were the craze in the 1990s under the 8-4-4 education system has been mooted as a way to entice young people to return to the soil. These are noble interventions that are likely to boost agricultural output since the youthful population is not just energetic enough to take up the challenge but also because modern farming involves access to the right information which a tech-savvy generation can exploit in this digital age.
When Dalili, a member of the CCW and a former close ally of Mzee Maona, encourages Sifa to join them on the anniversary of Jembe Day commemorating the revolt of Kajibora farmers and residents, she is essentially signalling a new way of addressing food insecurity. She tells Sifa that “our youth need to see where it all started”. The statement is profound because it acknowledges both the complexity and enormity of the task of streamlining food systems and the urgent need to bring diverse groups of people on board.
More importantly, sustainable agriculture has the potential to create jobs for thousands of jobless youth unable to secure the increasingly elusive white-collar jobs. According to the November 2022 Agriculture Sector Survey, the industry “employs over 40 percent of the total population and more than 70 percent of the rural populace”. This is a significant figure that is likely to increase even more if the youth are given the incentive to join forces in the overall agricultural production process.
Nyamweya’s only shortcoming is the exclusion of the voices of ordinary farmers from the entire narrative. As is characteristic of top-down policies, and unlike the bottom-up approach, there is a tendency to speak on behalf of the masses, to pretend to know what is best for them. A majority of the characters in the text speak of the “right” agricultural policies and approaches that need to be adopted to boost yields and food security. However, ironically, they behave like the multinationals that often impose their decisions on farmers without taking their views.
The approach is fraught with its own blind spots, not just because it is condescending to the farmers—those who are directly affected—but also because it poses the risk of aggravating an already bad situation. Talking about revolutions and uprisings is not enough to effectively transform the agricultural sector, even if the calls are to rid it of the cartels and the brokers present along the production chain.
Also, an erudite knowledge of the politics of food and the manipulation by multinationals cannot replace the basic principle that the farmer has to, first and foremost, speak for himself or herself. Does the farmer want to experiment with other seeds? Is the farmer only interested in the large-scale cultivation of staple foods? Is the farmer comfortable with the multinationals? What exactly is in the farmer’s mind? It is not always necessary that all foreign players that intervene in formulating agricultural policies have ulterior motives. One Acre Fund, an organisation founded by a non-Kenyan, has significantly helped smallholder farmers in western Kenya boost their farm output through the use of the right seeds and agricultural techniques and methods. I have seen this first-hand.
The statement is profound because it acknowledges both the complexity and enormity of the task of streamlining food systems and the urgent need to bring diverse groups of people on board.
However, despite the aforementioned shortcomings, Nyamweya’s artistic intervention cannot be downplayed. The issue of food security cannot be left to politicians and policymakers alone. This is not just because food is a basic need, but because a healthy and productive nation has the potential to improve the life expectancy and of children afflicted by malnutrition.
More importantly, a visual narrative approach is a welcome addition to a radical way of acknowledging the enormous capacity of art to surprise and reimagine how to deal with the existential anxieties of our time, such as food insecurity, climate change-induced drought and destruction of biodiversity. It is also a wake-up call to leaders, policymakers and other stakeholders that the conventional way of dealing with the challenges affecting farmers might have to change. Nyamweya’s book is a must-read for everyone who cares deeply about the future of our country and the coming generations.
Queer Lawfare in Africa – Legal Strategies in Contexts of LGBTIQ+ Criminalisation and Politicisation
The concept of lawfare, describes long-term battles over heated social and political issues, where actors on different sides employ strategies using rights, law and courts as tools and arenas.
The Supreme Court of India is anticipated to conduct hearings and deliver judgments in some important issues concerning the LGBTQIA+ community- ranging from the constitutionality of the blood donation guidelines that discriminate persons based on sexual orientation and gender identity to petitions on marriage equality (under both the Special Marriage Act and the Hindu Marriage Act). In this context, the book Queer Lawfare in Africa, edited by Adrian Jjuuko, Siri Gloppen, Alan Msosa and Frans Viljoen makes for a relevant and compelling read.
Queer Lawfare, according to the authors, is a strategy where rights and/ or laws are tactically employed to advance politically contested goals with regards to the rights of the LGBTQIA+ community. In the words of Siri Gloppen, Adrian Jjuuko, Frans Viljoen, Alan Msosa, the term “lawfare” used in the book describes the following:
The concept of lawfare, as used in this book, describes long-term battles over heated social and political issues, where actors on different sides employ strategies using rights, law and courts as tools and arenas. While sometimes associated with the misuse of law for political ends, ‘lawfare’ is here used as a descriptive, analytical term, de-linked from (the perceived) worthy-ness of the goal. The association with warfare is intentional and important: these are ongoing ‘wars’, with hard ideological cleavages and iterative battles. They are typically fought on several fronts and the contestants on each side have long term goals that they seek to advance by way of incremental tactics, often responding to, or anticipating their opponents’ moves, as well as other aspects of their (always potentially shifting) opportunity structure.
The book looks into queer lawfare in thirteen African nations- South Africa, Mozambique, Kenya, Botswana, Uganda, Malawi, Nigeria, Zambia, Ghana, Senegal, Gambia, Ethiopia and Sudan. Much like India, a lot of the nations discussed in the book had a criminal provision very similar to section 377 of the Indian Penal Code (before it was read down by the Supreme Court in Navtej Johar v. Union of India). Thereby, in many of these nations decriminalisation of sexual intercourse between consenting adults- irrespective of their sexual orientation or gender identity became (and in some countries still is) one of the first major goals of queer lawfare.
In some of the countries discussed in the book (particularly in those where queer lawfare has led to realisation of substantial legal gains for the LGBTQIA+ community), the movement started with seemingly neutral rights battles which intersected with discrimination law for instance, the right to association. The right to association cases in queer lawfare majorly consist of organisations or coalitions- established with the aim of further LGBTQIA+ rights- challenging the decision of the government to disallow their registration (set in a legal context where homosexuality is criminalised). In Botswana, such a challenge was decided in favour of the LGBT organisation, Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) by the Court of Appeal (see also, the recent judgment of the Supreme Court of Kenya). In Mozambique on the other hand, the Mozambican Association for the Defence of Sexual Minorities (LAMBDA) operates under a feminist umbrella organisation since it is not legally registered and as a natural corollary, the queer lawfare is influenced much by the strategies used by the feminist movement.
The book also refreshingly looks into the social contexts of each nation and discusses how despite LGBTQ+ movements sharing the same vision of emancipation, the means employed to achieve the end varies depending on social and political contexts in different countries. It also subtly gets across the point that there is ‘no one size fits all’ solution when it comes to queer lawfare. It discusses the different stages at which queer lawfare is in and how it varies from country to country- from South Africa where giant strides have been made in the judicial sphere to Ethiopia where ‘online lawfare’ is more prevalent due to which there is an absence of a significant progressive legal change.
As the marriage equality petition is listed for hearing before the Supreme Court of India is being heard by the Supreme Court of India, the chapter on queer lawfare in South Africa becomes particularly relevant. The landmark judgment of the Constitutional Court of South Africa in Minister of Home Affairs v. Fourie that recognised marriage equality notably held that the constitutional rights of persons cannot be undermined or be determined by the religious beliefs of some persons. In this judgment, Justice Albie Sachs read the words “or spouse” after the words “husband” and “wife”, into certain provisions of the Marriage Equality Act, 1961. As has been articulated by Jayna Kothari in this piece, the adoption of a similar strategy in the marriage equality proceedings before the Supreme Court of India is central to making the provisions of the Special Marriage Act (“SMA”) more inclusive. Reading in the words “of spouse” after the words “wife” and “husband” used in various provisions of the Special Marriage Act in India would allow persons irrespective of their sexual orientation or gender identity to get the reliefs conferred by the SMA ranging from solemnization of marriage to provision of alimony.
The chapter also confronts the challenge of limited judicial imagination while dealing with marriage equality and states that the judgment delivered by the Constitutional Court of South Africa (which was hailed as progressive) still caters to the gender binary vision- one where the institution of marriage is valourised and idea of a ‘permanent same-sex life partnership’ essentially contains the characteristics of a typical heterosexual marriage. The chapter also highlights how the ‘good homosexual’ visualised by the Constitutional Court is generally ‘a partnered middle class, if not upper middle class, man or woman who, in a country like South Africa where class continues to follow race, is almost invariably white’ thereby bringing to light the class and racial undertones underlying the legal recognition of such unions. In India, given that the institution of marriage is intrinsically tied into caste, property and patriarchy, it will remain to be seen how the Supreme Court will navigate through complex questions of intersectionality while adjudicating this case.
The book also makes a passing reference to the transnational impact of judgments on queer rights delivered by the Indian Supreme Court. For example, where submissions made before the Kenyan High Court in EG v. Attorney General and the high court decision in Botswana in Letsweletse Motshidiemang v Attorney General were influenced by the judgment of the Supreme Court of India in Navtej Johar v. Union of India. This also points out to the butterfly effect in progressive queer jurisprudence and the important role the constitutional courts in India have to fulfill in the days ahead.
Another important feature is that none of the chapters miss an opportunity to inform the readers about the perseverance and resilience of LGBTQIA+ organizations, coalitions and activists. It does the important work of documenting their role in shaping the legal destiny despite facing legal setbacks and risks of coercive action by the state. It is a fitting tribute to the indomitable spirit of the queer rights movement across the said nations in Africa to challenge the legal and political system, despite it being designed to fail them.
Oromo Orthodox Split: A Collision Between Politics and Faith
The formation of the Oromo Orthodox Synod signals greater shifts that have been on the political horizon in Ethiopia for the last four years.
Ethiopia has taken centre stage over the last four years, with a Nobel Peace Prize winning Prime Minister propelled to power by a four-year civil protest movement quickly leading the country into multiple internal war fronts. The last two years, in particular, have seen many begin to wonder if the Ethiopian state itself will survive the compounding conflicts, given that they are rooted in a tumultuous, contested, and violent past. The most recent and significant development in the tectonic shifts that have been breaking social and political ground in the country occurred on the 22nd of January 2023.
Three Oromo archbishops of the Ethiopian Orthodox Church announced the formation of an Oromo Orthodox Church Synod, with 26 patriarchs appointed to lead the synod across Oromia. In stark opposition to the new synod, a large number of Ethiopian Orthodox Church members, particularly those of an Amhara ethnic background, have been coming out in protest at the breaking up of the church, citing it as a violation beyond politics, and a breach of holy religious law.
The government, which has been supportive of the Oromo Synod has – in the manner in which it regularly responds to any expression of civil dissent – responded with state violence, shooting at protesters and, for a short while, shutting down the Internet and telecommunication services.
On the 13th of February, the Oromia Media Network reported that the new Synod is in the process of supporting the formation of synods of other national and ethnic identities, naming the Gambela, Gumuz, Sidama, Gurage, and Gamo as amongst those that will be forming their own Orthodox Church Synods in the near future.
The Ethiopian Orthodox Church has existed since the 4th century and belongs to the broader body of Orthodox churches that include the Coptic, Syrian, and Armenian Orthodox churches, and the Syrian Orthodox Church of India. The liturgical language of the church is Ge’ez, a Semitic language originating from northern Ethiopia and Eritrea, with Amharic also being used in the church today. Orthodox believers make up approximately 30 per cent of Ethiopia’s population and Amharic, the language of the Amhara ethnic group who make up approximately 22 per cent of Ethiopia’s overall population, is the official working language of Ethiopia.
Language, and the social and political power that it comes with, is one of the reasons that supporters of the Oromo Orthodox Synod believe that this recent shift is necessary. Cultural marginalization has been the experience of the Oromo and other national and cultural groups in the country since the formation of the Ethiopian state in the 1800s, a formation that the Ethiopian Orthodox Church was instrumental in spearheading.
When Menelik II began his expeditions into the Oromia heartland with the intent of consolidating the new state of Ethiopia, the proponents of this project came across a people who lived, worked, and worshipped predominately in Afaan Oromo. In particular, they practiced Waaqeefatta, the monotheistic religion of the Oromo.
Cultural marginalization has been the experience of the Oromo and other national and cultural groups in the country since the formation of the Ethiopian state in the 1800s.
Even though the popular narrative is that Ethiopia was never colonized, one of the impacts that Menelik achieved with the support of the Showan Amhara conquerors who were armed by the West was the upheaval of Oromo religious, cultural and political practice. This was replaced by the church’s own religious beliefs, as they were considered the only way to effectively commune with God.
In Ethiopia, as in much of the world, religion has always had political undertones. Historical narratives recounting both Protestant Christianity and Islam being used by Oromos to counter the effects of cultural and political domination experienced through the combined efforts of the Orthodox Church and the Ethiopian state speak to these political undertones.
Is the split really unprecedented?
Politics pervades every aspect of life everywhere, and although we would like to think that spiritual matters are beyond politics, there is perhaps nothing as politically charged as the relationships religions have with people, with states, and with the desire for social change.
Schisms and splits that occur for political reasons are not a new phenomenon in the world of Orthodox Christianity. In the 17th century, a movement to establish religious uniformity between Greek and Russian Orthodox practice was met with resistance that eventually saw a split into “Old Believers” and the official Russian Orthodox Church.
The reason for the split was disagreement over the introduction into the Russian Orthodox Church of specific religious rituals that belong to the Greek Orthodox tradition. Although it began as a disagreement about religious protocol, it developed into a movement where different parts of Russian society began to voice dissent against the feudal order led by leaders in the church.
There are obvious and significant differences between the 17th-century Russian split and what Ethiopia is facing today, but in order to avoid viewing the split within the Ethiopian Orthodox Church as entirely unprecedented, we should see the formation of the Oromo Orthodox Synod in the larger context of movements that have taken place in the history of the church, whereby politics and faith have collided to create new institutions and communities.
Is this just about religion?
The formation of the Oromo Orthodox Synod has an impact on much more than just how people practice their faith. This event signals greater shifts that have been on the political horizon in Ethiopia for the last four years.
Opposition to the formation of the Oromo Orthodox Synod has been defined by language describing it as an affront to the church’s values of “oneness”; the full name of the church is the Ethiopian Orthodox Tewahedo Church, with the word “Tewahedo” meaning “to be made one” in the Amharic language.
The ideal of “oneness” or “unity” versus the reality has been at the heart of Ethiopia’s most critical political issues. The Ethiopian state has, in concert with the Ethiopian Orthodox Church, had a history of violently assimilating a deeply diverse people and, in the same breath, defining itself as a beacon of unity. What we must understand is that what might be a breach of oneness and unity for one people, is for another people an act of revolution and decolonization.
The solution to this crisis, in my opinion, is not for the formation of the Oromo or other prospective synods to be stopped. Instead, as I think is the solution to many of Ethiopia’s issues, people must be willing to hear stories from the other side of the political divide in order to better engage the social and political changes of the now, and of the future.
I think that this is just the beginning and that although separation, like all change, can cause confusion, grief, and uncertainty, it can sometimes be the boldest step we can take towards building a new social contract for togetherness, cohesion, and harmony.
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