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Saba Saba at 30: The Struggle for Progressive Alternative Political Leadership in Kenya Continues

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The struggle for a prosperous, democratic and stable Kenya is not over and despite having successfully fought for a new constitution, three decades after Saba Saba, power is still largely imperial, exercised in a brutal and unaccountable manner by a political elite who have in the last decade taken every step to undermine it.

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Saba Saba at 30: The Struggle for Progressive Alternative Political Leadership in Kenya Continues
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Three decades ago, driven by a quest to reclaim their sovereignty and recalibrate the power relations between the state and society, the people of this country went to the streets to push for political and constitutional reforms, a major inflection point in the history of our nation. Through a protracted, peaceful struggle by Kenyans in the country and in the diaspora, the country finally transitioned into a multi-party democracy.

The struggle is not over; Kenya’s politics have taken a backward trajectory, moving towards dictatorship in the midst of an intra-elite succession struggle that could descend into violent conflict, chaos, and even civil war.

Kenya is a fake democracy where elections do not matter because the infrastructure of elections has been captured by the elites. There is a danger of normalising electoral authoritarianism, where the vote neither counts nor gets counted. The Judiciary is under constant attack and disparagement by the executive while parliament is contorted into a body increasingly unable to represent Kenyans and provide oversight over the executive’s actions. The security services are unleashed on the poor and the dispossessed as if they are not citizens but enemies to be hunted down and destroyed.

A range of constitutional commissions are in a state of contrived dysfunction while our media business model is failing, accelerated by political interference. Grand corruption—perpetrated by a handful of families and by the elites collectively—has been normalised and the fight against corruption has been politicised. In the creeping descent into dictatorship, civilian public services have been militarised and the 2010 Constitution that was in many ways a culmination of the struggle that started on 7 July 1990 when the late Kenneth Matiba and Charles Rubia called for a meeting at the Kamukunji grounds in Nairobi, is being deliberately undermined.

We have a duty and a responsibility to defend Kenya’s constitution; to resist efforts to undermine devolution in particular; to resist those determined to continue looting an economy already on its knees; to stand up against efforts to brutalise, dehumanise, and rent asunder the essential human dignity of Kenyans as a people.

Three decades is a generation. The generation that voted for the first time in 1992 is a venerated demographic that is 48 years old today. It is the generation of freedom (the South African equivalent of the “born-frees”), and a significant part of the cohort that participated in the struggle as teens or young adults. It is the generation that bore the brunt of the struggle for freedom but which has been denied the opportunity for real political leadership. That part of its membership that has had access to state power is drawn from the reactionary wing of the group—the scions of the decadent YK’92 and drivers of the “NO” campaign against a new constitution.

Despite having successfully fought for a new constitution, three decades after Saba Saba, the frustration felt by this generation and its children runs deep. Why? Power is still largely imperial, exercised in a brutal and unaccountable manner, as institutions flail and falter. The country is still ethnically divided, the fabric of our nationhood is fraying and its stability remains remarkably and frighteningly fragile. Foreign domination, exploitation, oppression is still with us. Poverty and inequality still reign as a tiny economic aristocracy consolidates wealth at the top, while a large pool of the poor underclass expands at the bottom. Why is this the case? Why, after three major successful transitions over three decades—multipartyism in 1992; power transition in 2002; and a new constitution in 2010—are we still being frustrated by our politics and economics? Why is our quest to advance Kenya as a prosperous, democratic and stable country floundering? I see five main reasons why Kenya’s democratisation and development have been stymied.

First, and most importantly, is the moral bankruptcy of Kenya’s elite. It is the loyal facilitator of our continued colonisation by the imperialism of the West and the East. We have a political elite who—together with their acolytes in the middle classes—view this constitution as inconvenient and who have in the last decade taken every step to undermine it, now even audaciously threatening to overhaul it. This mythmaking of how the constitution “doesn’t work for us”; or how it is “expensive” (despite analytical evidence to the contrary), or how it “does not promote inclusivity”, is basically political mischief-making that must be roundly denounced and firmly rejected.

But this hostile attitude by the political class towards the constitution should not surprise us. The constitution was imposed on them by the people through a people-driven process. And we must remember that they proposed more amendments to it on the floor of the House than there were articles in the constitution. To be sure, when the political class finds a constitution, a law or an institution to be an inconvenience, that is a clear indicator of success.

We must actively resist the schemes by the political class to hijack, mangle and wreck the constitution, and thus remove the checks that make the exercise of political power onerous. The constitutional product is only as good—and as secure—as the process that creates it. And whereas we must salute the decision of Uhuru Kenyatta and Raila Odinga to stop the grandstanding and step back from the brink to save lives, the framework for dealing with the issues that created the problem in the first place (such as electoral theft right from the party primaries to the general election, ethnicity, police brutality and vigilante massacres) should have been broader, more structured, and more inclusive than the present process which is private, exclusionary, unstructured and partisan.

The moral bankruptcy of the political elite is pushing us into a false choice between “dynasties” and “hustlers”—a very superficial and shallow narrative masquerading as a class-based political contest yet it is merely a joust between gangs. It is a (mis)-framing that obscures the underlying forces that create underdevelopment, instability and violence and those who benefit from the end result. We must not buy into this misframing of our political choices, whose guile in placing a confederacy of familiar surnames on one side, and a well-known economic rustler of public assets on the other, seeks to hide the common denominator of those two groups: the plutocrats within the state that are the beneficiaries. Both are extractive and extortionist, only distinguished by the differences in their predatory styles and their longevity in the enterprise of shaking down the Kenyan public. This is a club, a class of state-dependent “accumulationists” and state-created “capitalists” united by a history of plunder of public resources and unprincipled political posturing, and only divided by the revolving-door cycle of access to the public trough.

My second argument as to why, despite the many progressive political and constitutional transitions the country still feels restless and dissatisfied, has to do with the performance and the posture adopted by parliament. Whereas the judiciary has emerged as an effective and consequential arm of government since 2011, simultaneously playing defender and goalkeeper of the constitution, parliament, has since 2013, and even more so now, acquiesced as an adjunct to the executive. In a complete misreading of the presidential system, parliament sees itself as an extension rather than a check on the executive. The senate is even worse; instead of playing its constitutive role of protecting devolution against the excesses and encroachment of the national government, senators got into the most parochial contest of egos with the governors, bizarrely siding with the executive to stream-roll and undermine devolution. It took the judiciary, through a number of bold decisions, and the public, who rallied around devolution, including in the ruling party’s backyard, to save devolution from an early collapse.

Third is the suboptimal output from devolved governments. Devolution has been good but is not yet great. Because of a hostile national government and endemic corruption in the counties, devolved governments have not performed optimally although, compared to the central government’s record of the last 50 years, they have made a big difference in people’s daily lives. Although devolution has been revolutionary, a combination of frustration from the top (especially from the Treasury the Devolution Ministry (particularly the first one) and the Provincial Administration) and the extremely poor and corrupt leadership of some governors have delayed the devolution dividends.

I dare say that without the strong backing of the judges—a raft of decisions by the High Court and two decisions by the Supreme Court on the Division of Revenue Bill—devolution would long have unravelled. These decisions are part of the reason for the animosity towards the judiciary that we have witnessed in the last decade.

Fourth, political parties have not been operating optimally. Political party primaries have been heavily rigged and violent, which has undermined people’s faith in the democratic process. Further, the Political Parties Fund is operated in an opaque manner, with the size of the allocations to some parties being equal to the allocations that are given to some counties. The disorganisation and privatisation of parties is nurturing a feeling of despondency and a lack of belief in parties, yet our constitution envisages a party-based constitutional democracy.

Fifth is the country’s economic collapse due to mismanagement. This economic failure preceded the COVID-19 pandemic. Never before has the country witnessed such a spectacular mismanagement of the economy. There is absolute incoherence and inconsistency in the public policy priorities. From a glitzy manifesto that has been honoured more in the breach than in the observance, to the Big 4 Agenda, the Nairobi Regeneration Team, the Anti-Corruption, we are all over the place, and are now consumed by succession politics. We have a ballooning debt that is unprecedented in stock (over Sh6 trillion), in composition (much of it expensive commercial debt); and in impact (Eurobond monies are yet to be accounted for).

In this context, it would be extremely foolish to think that individuals who have been partners in this mismanagement could be plausible alternatives. The authors of the last seven years of corruption, debt, and underdevelopment are known and so, if the country is to stand a chance of realising the benefits of the transitions that it has undergone, then it would be utter tomfoolery to consider parading any of these characters as the agents of that change.

Our Constitution is not defective. The quality of our elite is—fatally so. The problem is not in the structure of power as expressed in our constitutional architecture, but in the exercise of power in the conduct, choice and decisions that leaders—and to some extent the masses—make. The structure of power does not command us to have a President, Speaker, Prime Minister (that is what the Majority Leader would be in a parliamentary system), Attorney General, Chief of Defence Forces, Director General of Intelligence, Head of Kenya Police, Director of Directorate of Criminal Investigations, Governor of Central Bank, Commissioner General of Kenya Revenue Authority, and Auditor General, all from one region.

It is the exercise of that power, both by the nominating and confirming authorities, that allows for this construction of an ethnic hegemony at the heart and in the commanding heights of state affairs. This is not to question the competence and patriotism of these compatriots; it is to question the effect of this apparent singular concentration of competence in one ethnic identity on the fabric of our nationhood. The absolute necessity for diversity and inclusion in public positions and policy cannot be gainsaid. That is how you create a strong and united nation. The argument that changing the constitution will, ipso facto, foster inclusivity is a false one. With an already expansive government of 22 ministers, over 40 Principal Secretaries, parastatal chiefs, and an expanded leadership in both Houses of Parliament, how come we are still not able to be inclusive?

Vuguvugu la Mageuzi (VUMA) or Kongomano la Mageuzi. These are possible names of a transformative movement made up of all the social movements that exist in the country and that, going forward, would tackle a number of issues.

First, the middle class civil society must reactivate its engagement and build strategic and effective alliances with grassroots movements and the over 40 social justice centres countrywide to keep both national and county governments in check and create a strong central defence for the constitution. Indeed, the countervailing power of the civil society must be strengthened.

VUMA should be the crucible for the development of alternative leaderships drawn from such movements as The Artist Movements of cartoonists, film makers, singers, poets, and song writers; 100 Days of the Citizens’ Assemblies; Congress for the Protection of the Constitution; DeCOALonise; Friends of Lake Turkana; Inuka Kenya Ni Sisi, Okoa Mombasa, Kenya Tuitakayo Movement and SwitchOffKPLC. There are many others in formation: the movement to protect the rights of tea workers in Kericho; the movement to protect the cane farmers in Western Kenya; the movement to protect devolution in the NFD; the movements that defend community land from commodification; farmers revolts against crony capitalism in the Rift Valley and Central Kenya; and the movement to withdraw our troops from Somalia, among others.

Second, the movement must give voice and support the Council of Governors’ demands for the arrears in development funds that the national government continues to refuse to disburse.

Third, this is a good moment for the emergence of an alternative leadership for Kenya. The political elites are in fear of each other and there is a hurting stalemate in their relationship and negotiations. We need to invest in the rupture of those negotiations.

Fourth, we need to support a principled and fair fight against corruption, both at the national and county levels, and establish whether public policy and the law have been used for public good or private gain.

Fifth, we also need to set up at least three Judicial Commissions of Inquiry, the first one being on the public debt incurred since independence so that we can establish the rationale, basis, terms, impact and beneficiaries of these debts. This includes Ken-Ren, Goldenberg, Anglo Leasing, SGR, Eurobond and other scams. The second one should be on all government technology projects from IFMIS to OT-Morpho, to Huduma Number to E-Citizen. The third commission of inquiry should target police brutality and the vigilante and police massacres of 2017, especially in Western Kenya and in the slums of Nairobi.

Sixth, we should revisit all the solutions devised by the Saitoti Report; the Akiwumi Ethnic Clashes Report; the Ndungu Land Report; the InterParty-Parliamentary Group Report (particularly its unfinished business); the Truth and Justice Commission Report; the Kreigler Report; the Kroll Report; Kofi Annan’s Agenda 4; the Waki Report and all the reports developed by the civil society as solutions to our societal problems. That rich and robust material should be debated and refined for implementation.

Seventh, we must undertake mass civic education on the contents of the 2010 Constitution with a view to triggering the citizenry to demand its implementation;

Eighth, we must form a united front with political parties that are against imperialism and baronial rule and their respective narratives.

Ninth, we must nurture a political party or political parties that will contest for political power in the interests of the motherland.

And lastly, we must ensure that the failure of the ruling elite to secure the social and economic rights of the Kenyan people as provided for under the constitution (the right to food, housing, water, education, health, social security, employment) during the ongoing pandemic is an important lesson about the kind of leadership this country should not have.

The future of the constitution and our democracy will depend on the quality of leaders the country elects. That is when the full dividends of Saba Saba and 2010 will be fully realised. As the United States has shown, even constitutions, institutions, and customs that have been nurtured over hundreds of years can come easily undone by a rogue leadership and a pliant public.

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Dr Willy Mutunga is a public intellectual and former Chief Justice of Kenya.

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Joint UN, Ethiopia Atrocities Report: Poison Fruit of Poisonous Tree

By excluding the voices of the majority of victims, the UN violated its cardinal principle of a victim-centred investigation.

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Joint UN, Ethiopia Atrocities Report: Poison Fruit of Poisonous Tree
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The joint United Nations (UN) and Ethiopian Human Rights Commission (EHRC) investigation is like a ham omelette: the chicken is involved, but the pig is committed. In this investigation, the UN only reluctantly became involved in demonstrating its efforts in investigating atrocity crimes, while the EHRC was committed to defending the government of Ethiopia – the architect of the war on Tigray.

Various reports on the investigation into atrocity crimes committed in Tigray are expected to be released in the coming weeks.

The report of the joint UN and EHRC investigation was released on 3 November 2021. The much-anticipated report by the African Commission on Human and Peoples’ Rights, and the determination by the United States government on whether genocide against Tigrayans has been committed, are also expected to be released in the near future. These reports will be markedly different from the discredited report of the joint investigation.

The joint investigation’s report failed to establish facts because the Joint Investigation Team (JIT) had no access to the location it purported to cover and where most of the crimes are presumed to have been committed. Due to what the report calls “challenges and constraints”, the joint investigation was unable to access atrocity zones. It also underreported on, and failed to include, infamous atrocity zones in Tigray, including Axum, Abi Addi, Hagere Selam, Togoga, Irob, Adwa, Adrigrat, Hawzen, Gijet, and Maryam Dengelat as well as the Tigrayan bodies that washed up in Sudan on the Nile River. As in most cases, the worst atrocity zones in Tigray were located in active battlefields. Yet, the investigators were able to visit and interview witnesses in parts of Tigray that had been ethnically cleansed.

Victims side-lined 

Moreover, the report downplayed the concerns of victims. The UN Basic Principles on Right to Remedy and Reparations, under Principle 8, define victims as:

[P]ersons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimisation.

The final report did not include the findings of extensive interviews that the UN conducted with Tigrayan refugees from the second week of November 2020 through to the end of December 2020. These interviews were held in refugee camps in Sudan, with victims and witnesses of human rights violations of various kinds and to different degrees. According to some informants, the report was submitted to Michelle Bachelet, the UN High Commissioner for Human Rights, in January 2021. However, for unclear reasons, the findings of this investigation have not yet been made public, and there is no mention of it in the joint report. Informants say that few staff members of the Office of The High Commissioner for Human Rights in Addis Ababa raised questions regarding the integrity of the investigation carried out by their colleagues in Sudan.

The voices of victims and witnesses of atrocious crimes who gave their accounts in complete confidence in the UN have been deliberately disregarded. Instead, the UN issued the report authored jointly with the EHRC while concealing the report its office in Sudan had produced earlier. This amounts to subversion of investigations and victims’ right to truth and remedy – a violation of international law.  Reports indicate that the government of Ethiopia curtailed the UN’s role in the investigation including by expelling one of the UN investigators.

Witnesses were reluctant to participate in an inquiry involving the EHRC. As one of the challenges, the report mentions the “perceptions of bias against the EHRC in some parts of Tigray where some potential interviewees declined to be interviewed by the JIT because of the presence of EHRC personnel”. This is a deliberate understatement.

Tigrayan victims and Tigray authorities rejected the joint investigation from the outset and declared their non-cooperation. In a recent report the Guardian asserts, “Especially damaging has been the growing perception among Tigrayans, about 6% of Ethiopia’s population, that the commission is partial towards the federal government and hostile to the TPLF.”

The voices of victims and witnesses of atrocious crimes who gave their accounts in complete confidence in the UN have been deliberately disregarded.

Victims are right to fear reprisals by Ethiopian, Eritrean and Amhara forces, and this fear silenced many and reinforced victims’ non-cooperation since the EHRC was involved. Conversely, perpetrators believe they can get away with their crimes when the EHRC is leading the investigation.

A principal at the core of the concept of justice is redressing the wrongs done to victims. The interests of victims should thus remain central to any investigation. In Tigray, women are the principal victims of the war, and a deliberate campaign of rape and sexual violence has been as typical as murder.

By excluding the voices of the majority of victims, the UN violated its cardinal principle of a victim-centred investigation. Justice entails that victims have the right to the truth and that those responsible for victimising people are held to account for their actions in a transparent fact-finding process and held liable for remedying the harm caused. The truth of what occurred should be established through the verification of facts and full public disclosure.

Bad start

The joint investigation started on the wrong footing. The basis on which the decision to constitute a joint investigation was made, the terms of reference, the selection of the investigators, and the agreement between the UN and the EHRC have never been made public, despite many requests. They remain shrouded in secrecy.

Some claim that the EHRC was involved in this investigation for the UN to gain access to Ethiopia. Others argue that such a joint venture would help build local and national capacity for investigation. It is heartless to think of building local capacity at the expense of victims of mass atrocity crimes (rape, killings, displacement and destruction of livelihoods). In effect, in this investigation, though committed to addressing atrocity crimes, the UN has been allowed to play second fiddle to personalities of a national system. The UN offered a façade of independence and impartiality to the investigation. The decision to conduct this joint investigation politicized a process that could and should have been de-politicized.

Some claim that the EHRC was involved in this investigation for the UN to gain access to Ethiopia.

Given that a general situation of war, chaos and a breakdown in law and order has been deliberately created in Tigray to systematically and systemically commit atrocities, destroy infrastructure and loot property, fears of reprisal are real. Consequently, the victims had little confidence in the joint investigation’s impartiality, capability and mandate to establish the truth, let alone identify perpetrators – particularly those holding the highest offices of command, control and communication.

Pleas unheeded 

For these reasons, many Tigrayans denounced the UN High Commissioner for Human Rights for involving the EHRC. The investigation was, from the start, designed to fail the Tigrayan victims. Tigrayans consistently called for the UN to establish an international commission of inquiry equipped to investigate crimes of such magnitude and gravity.

What is more, the report subverted the core aim of a standard investigation. Investigations and findings should be based on verifiable evidence collected from the ground without any involvement from the parties to the conflict and institutions accused of bias. The UN also failed to follow its guidelines and precedence of establishing independent and international commissions of inquiry or international fact-finding missions, as it did in Burundi, South Sudan, Gaza, Syria, Libya, Sudan (Darfur), Côte d’Ivoire, and Lebanon. These exemplary investigations were comprehensive and served as historical records of grave violations of human rights and international humanitarian law, offered the victims truth, and ensured the legal and political accountability of those responsible. In addition to holding criminals accountable, such investigations are supposed to help in restitution, compensation, rehabilitation, satisfaction, and above all, guarantees of non-repetition of violations.

One asks why the UN thinks the atrocities committed in Tigray are less deserving.

False equivalence

All investigations need to include all alleged violations by any party. The prosecution also needs to include all responsible parties to ensure that no justice is victor’s justice. This is not only the right thing to do but also the most effective method of legitimizing the process, ensuring accountability, providing remedies, and fighting impunity. However, such a process should not apply bothsidesism as a method of investigation and attribution of culpability.

Pulling the wool over the eyes of the international community, the report created false equivalence to disguise the real perpetrators. There are more paragraphs about calls for the cessation of hostilities, reconciliation, and capacity building than accountability, attribution of culpability, and ending impunity. The report is crafted in a manner that covers up the ringleaders of the crimes, softens accountability, advances recommendations that permit impunity in the name of reconciliation, and establishes false equivalence among warring parties. One paragraph in the report, for example, states, “International mechanisms are complementary to and do not replace national mechanisms. In this regard, the JIT was told that national institutions such as the Office of the Federal Attorney General and military justice organs have initiated processes to hold perpetrators accountable, with some perpetrators already having been convicted and sentenced.” The report advances proposals on non-legal issues including political causes of the war, humanitarian consequences and capacity building of EHRC.

Pulling the wool over the eyes of the international community, the report created false equivalence to disguise the real perpetrators.

It is bizarre that the UN believes that the Ethiopian National Defence Force and the Attorney General of the Government of Ethiopia can ensure accountability. The Ethiopian National Defence Force is a principal party in the war, and the Attorney General remains the chief architect of massive profiling of Tigrayans living outside Tigray, rounding up Tigrayans and leading the campaign for their internment. Like the EHRC, the Attorney General has no prosecutorial independence to hold officials of the Ethiopian government accountable.

Furthermore, many Ethiopians see only the victimization of their own group and not what their side has done to others. Dialogue, reconciliation and peace cannot be achieved while every fact is disputed. This report adds to the fierce dispute around the facts. For this very reason, many will continue to reject the report – as they did the investigation.

Victims’ demand

Overwhelming segments of the Tigrayan society reject the joint report. In particular, Tigrayans demand that the UN conduct its investigations, revealing Tigrayans’ high expectations of the UN’s ability to establish the truth based on which justice can be served.

Given the recent leaked audio recording that reveals the conspiracy against Tigrayans by some of the leaders in the UN Ethiopia office, one is forced to ask why Tigrayans have such high hopes in the UN. Many are left with no option but to reject outright the poison fruit of the so-called joint investigation, much as the victims, their families, the survivors and the Tigrayan community at large have done. By disregarding repeated calls for an international commission of inquiry, the UN has missed an opportunity for an empathetic and purposeful connection with the actual victims of the war.

Many atrocity situations such as in Rwanda, Darfur, Syria, and Burundi have been visited by the highest level officials of the international community. The highest-level officials of the UN, AU, IGAD and the US and EU leadership should travel to Tigray and other war-torn areas of Ethiopia. Even if permission from the government of Ethiopia for such high-level visits would have been difficult to secure, such attempts by high-level officials to visit the region would have demonstrated at least personal compassion and solidarity with victims. Such visits would have been viewed as both a symbolic and tangible commitment of leaders to end the war and the siege, and address impunity.

In the interests of the victims – and to place them at the centre of UN’s human rights work – the UN should authorize a UN-mandated commission of inquiry to investigate the atrocity crimes committed in Tigray and in other parts of the country.

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No Country for Our Real Heroes: A Monument for the Mau Mau at Last, but No Land

Kenyans choose to forget that the Kenya Land and Freedom army (also known as Mau Mau) did not fight for a monument. They fought for land.

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No Country for Our Real Heroes: A Monument for the Mau Mau at Last, but No Land
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Mau Mau heroes now have a monument, but no land. Earlier this month, they were invited to the unveiling of this monument in Nairobi; a “memorial to the victims of torture and ill treatment during the colonial period 1952-1960.” They turned up in large numbers, the majority wearing bright red t-shirts emblazoned with the words “Shujaa wa Mau Mau” – Mau Mau hero.

In their hundreds, they were a sea of red and black amidst the green of Uhuru Park, watching avidly for when their monument would be unveiled in the section of this commons called “Freedom Corner.”

And while the British and Kenyan government and collaborating NGO representatives, all younger than the actual heroes, were sitting within an expansive white tent, these aging freedom fighters were sat under the hot sun, waiting for the official ceremony to begin. Some were said to have arrived as early as 6 am.

Finally, we could say, at least some recognition for our people who were classified as terrorists until 2003. Finally something to honour the bravery of all freedom fighters and the significance of that period in our history.

But, as social movement activist Gacheke Gachihi asked, what can we gain from a narrative that continues to posit them as “victim” instead of victor over the British? And even while recognizing the inhuman excesses meted out against them, what are the motivations for a rewriting of history that perpetuates a narrative of their victimhood and, as is appearing to be more and more the case, erases the full extent of their struggle?

Spoken interminably at the monument unveiling was the word “reconciliation,” followed closely by “ending” and “closure.” It seems that this monument is also meant to make us reconcile our past with all features of British imperialism; the £90,000 monument (an incessantly repeated figure) is where all further questions about the ravages of empire stop.

Inevitably, it seems also to be the national burial site for the land question.

Not one mention of it anywhere at this launch.

It was the elephant in the room, the solid yet invisible presence that no one spoke about. It was clumsily replaced by other buzzwords: reconciliation, closure, victimhood.

And while they turned up in their numbers, the show could definitely have gone on without the Kenya Land and Freedom army for in many ways these heroes were the appropriate props for the speeches and photo opportunities of innumerable people who were not Mau Mau, yet who will revel in the after glories of the praise that will come from being “important” at this event.

It is reported that these important characters then later went off to drink at the Norfolk, the oldest and, undoubtedly, most colonial of Nairobi’s hotels (even President Roosevelt stayed here in 1909 when he came to shoot half our wildlife to “collect specimens for the Smithsonian institute”) and whose terrace is “rumoured” to be the site where Africans were often shot for sport.

Meanwhile the actual shujaas then walked home, 80-year-old grandmothers bent over with no shoes walking through busy Nairobi to go back to their rural homes.

And in the the Nairobi headquarters of the Mau Mau, Mathare constituency, life continued as normal for Monica Wambui, a 101-year-old Mau Mau woman who has been living in her mabati tin house for the last 50 + years, and with no water, permanent shelter and still having to find her own firewood to cook.

And for this shujaa wa Mau Mau from Mathare, tells it all.

In this same place the descendants of these two heroes are caught in the spate of police killings that Mathare Social Justice Centre is working to document. And there will never be monuments for these young people who, in many ways, are also fighting for land.

A week later we are still being told about the £90,000 monument to “victims,” and being assailed constantly by the supposed generosity of the British government who solicited this monument at their “own” expense  (one twitter commentator remarked that this money is likely to have been easily raised from all the exorbitant visa fees Kenyans are charged to visit the UK) .

And in all the hyper-buzz about this memorial we choose to forget that the Kenya Land and Freedom army did not fight for a monument.

They fought for land.

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

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I Am Samuel

The government should support our creative industries, and allow every Kenyan’s voice to be heard, and everyone’s point of view to be listened to.

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I Am Samuel
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“I may not agree with what you say, but I’ll defend to the death your right to say it.”

We first got introduced to independent documentary filmmaking in 2013, at a gathering of Kenyan filmmakers in a small office of the nascent DocuBox film fund. Pete Murimi, director of I am Samuel, and I, producer, had no idea that it was possible to tell stories independent of a broadcaster or funder. As a service producer, I was used to receiving agency or broadcaster briefs and working according to spec. Pete, as a filmmaker at the UN, was familiar with that style of telling stories.

This intimate gathering of filmmakers (which included directors of The Letter, Kenya’s submission to the Oscars in 2020, and the director of New Moon, winner of Oscar-qualifying 2018 DIFF Best Documentary award) did not know that it was about to embark on an arduous multiple-year journey to tell their stories, and self-release at global festivals. But we all somehow made it through the strength of community and the determination to have complete agency over the stories we felt were important to tell. Pete and I were committed to telling stories of outsiders, people who did not accept the way things were, just because.

Voltaire’s quote above is our fallback when asked about freedom of expression, the freedom we committed to when we decided we wanted to tell these stories. We are a diverse country, with complicated, layered realities. Allowing storytellers to tell these stories, no matter whether you agree with them or not, is a move towards greater inclusivity, democracy, and tolerance.

Shot over five years, I Am Samuel tells the story of a queer man navigating the tension between his life in Nairobi and his rural childhood home. He and his partner Alex want to build a life together, but his father and mother want him to get married, have kids, and live the exact kind of life they have.

Allowing storytellers to tell these stories, no matter whether you agree with them or not, is a move towards greater inclusivity, democracy, and tolerance.

This was not an easy documentary to make. Samuel had to give up a lot of his privacy, and trust Pete and I, who were first-time independent filmmakers, balancing making this film with our day jobs. But Samuel allowed us into his life, without restriction. And that was a privilege that we could not afford to take lightly. Alfred Hitchcock once said, “In fiction films, the director is God; in documentary, God is the director.” We believe this to be true; life as it happens, with all its messiness and unpredictability, is what makes character-driven verité styles so difficult to do, but ultimately so rewarding.

I am Samuel was released at Hot Docs 2020, an international film festival that showcases stories from across the globe. It then toured the Human Rights Watch Film Festivals the world over and showed in South America, the Netherlands, and the UK. But our eventual goal was always to bring it back home. Because we felt this was a Kenyan story, we knew it would connect with audiences back home; mostly because Samuel’s lived reality as a queer, religious, traditional man is not unique. We applied for classification in Kenya to be able to screen it locally, and waited weeks for a response. We were asked to attend a meeting at the KFCB offices on Thursday 23rd September, but we were unable to make it in person. We then heard about the press conference, the ban, and the press release later that Thursday.

We are yet to receive a letter in writing or a certificate that shows our Kenyan rating.

We were deeply disturbed by the discriminatory language used in explaining the ban: they described it as “blasphemous” and “unacceptable, and an affront to our culture and identity.” The restricted classification of the film contained a number of inaccuracies. It referenced a “marriage” that never happened and said we were “promoting a homosexual lifestyle”. The board noted a “clear and deliberate attempt by the producer to promote same-sex marriage as an acceptable way of life. This attempt is evident through the repeated confessions of the gay couple that what they feel for each other is normal and should be embraced as a way of life, as well as the characters’ body language, including scenes of kissing of two male lovers.”

We were simply filming people’s lived experiences.

By banning the film, KFCB is silencing a real Kenyan community and trampling on our rights as filmmakers to tell Samuel’s story. Every story is important. And we are all equal in the eyes of the law and before God, in line with the religion the film board is invoking in this ruling. The arts – from filmmakers and novelists to painters and comedians – hold a mirror up to society and show us some of the difficult realities from which we often try to shy away.

The Kenya Film Classification Board is trying to censor a part of Kenya that has always existed, is a lived reality for millions and will always be a part of us. Several high-profile Kenyans are queer, including government politicians and public figures, but the intolerant atmosphere created by discriminatory statements like those of the KFCB make it impossible for them to live openly – and allow other Kenyans to continue to discriminate, wrongfully so, against LGBTQ+ Kenyans. As I Am Samuel shows, prejudice forces LGBTQ+ Kenyans to live in the shadows, fearful of being beaten up, fired from their jobs, or evicted from their homes. Stigma puts pressure on their families, who fear that if their neighbours find out they have a gay child, they will be ostracised.

The arts – from filmmakers and novelists to painters and comedians – hold a mirror up to society and show us some of the difficult realities from which we often try to shy away.

In their press statement, the KFCB appealed for content that “promotes Kenya’s moral values and national aspirations”. What are these values? The KFCB is assuming that the values of all Kenyans are the same – conservative and Christian. But Kenya is a diverse country and it is the responsibility of our government to represent and serve everybody. Our differences should be acknowledged as a strength, and shown through our filmmaking. Kenya is Africa’s third biggest film producer, after Nigeria and Ghana, making 500 films a year. African filmmakers are attracting international acclaim. Softie won an award at the prestigious Sundance Film Festival last year. The United Nations recently said that the African film and audio-visual industry generates US$5 billion a year and has the potential to create 20 million jobs. I Am Samuel is the third LGBTQ+ film to be banned by the KFCB, following Stories of Our Lives (2014) and Rafiki (2018). Among other movies that have been banned by KFCB are The Wolf of Wall Street (2014) and Fifty Shades of Grey (2015).

Our film is a true record of Samuel’s lived experience Samuel. Gay African men, gay African people, should be recognised and have their rights respected. This includes the right to freedom of expression, freedom of association and freedom from discrimination. Samuel himself is a strong Christian, and Kenya has several LGBTQ+-friendly churches that provide a place for queer Kenyans to worship together. Banning of films is a blow to Kenyan filmmakers as our audience is inherently local, and we need to have a wide distribution to reach audiences, to go regional, to go global, for so many reasons: telling our own narratives, correcting the misguided ones, creating jobs, and widening our own imaginations, exponentially, of what is possible for us as Kenyans. The Lupita Nyong’os and Edi Gathegis of this world should not only exist in a rare and unexplored vacuum.

It is time for the government to accept and support our creative industries, and allow every Kenyan’s voice to be heard – because the banning also leaves us with questions about whether everyone’s point of view truly is listened to. The documentary has been released across Africa on the AfriDocs website, and we hope that African audiences will still get a chance to watch a film that is not accepted in its home country. . . yet.

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