Returning to the major crises we face at this historic moment, all are international, and two internationals are forming to confront them. One is opening today: the Progressive International. The other has been taking shape under the leadership of Trump’s White House, a Reactionary International comprising the world’s most reactionary states.
We are meeting at a remarkable moment, a moment that is, in fact, unique in human history, a moment both ominous in portent and bright with hopes for a better future. The Progressive International has a crucial role to play in determining which course history will follow.
We are meeting at a moment of confluence of crises of extraordinary severity, with the fate of the human experiment quite literally at stake. The issues are coming to a head in the next few weeks in the two great imperial powers of the modern era.
Fading Britain, having publicly declared that it rejects international law, is on the verge of a sharp break from Europe, on the path to becoming even more of a US satellite that it already is. But of course what is of the greatest significance for the future is what happens in the global hegemon, diminished by Trump’s wrecking ball, but still with overwhelming power and incomparable advantages. Its fate, and with it the fate of the world, may well be determined in November.
We are meeting at a remarkable moment, a moment that is, in fact, unique in human history, a moment both ominous in portent and bright with hopes for a better future.
Not surprisingly, the rest of the world is concerned, if not appalled. It would be difficult to find a more sober and respected commentator than Martin Wolf of the London Financial Times. He writes that the West is facing a serious crisis, and if Trump is re-elected, “this will be terminal.” Strong words, and he is not even referring to the major crises humanity faces.
Wolf is referring to the global order, a critical matter though not on the scale of the crises that threaten vastly more serious consequences, the crises that are driving the hands of the famous Doomsday Clock towards midnight – towards termination.
Wolf’s concept “terminal” is not a new entry into public discourse. We have been living under its shadow for 75 years, ever since we learned, on an unforgettable August day, that human intelligence had devised the means that would soon yield the capacity for terminal destruction. That was shattering enough, but there was more. It was not then understood that humanity was entering a new geological epoch, the Anthropocene, in which human activities are despoiling the environment in a manner that is now also approaching terminal destruction.
The hands of the Doomsday Clock were first set shortly after atomic bombs were used in a paroxysm of needless slaughter. The hands have oscillated since, as global circumstances have evolved. Every year that Trump has been in office, the hands have been moved closer to midnight. Two years ago they reached the closest they had ever been. Last January, the analysts abandoned minutes, turning to seconds: 100 seconds to midnight. They cited the same crises as before: the growing threats of nuclear war and of environmental catastrophe, and the deterioration of democracy.
The last might at first seem out of place, but it is not. Declining democracy is a fitting member of the grim trio. The only hope of escaping the two threats of termination is vibrant democracy in which concerned and informed citizens are fully engaged in deliberation, policy formation, and direct action.
That was last January. Since then, President Trump has amplified all three threats, not a mean accomplishment. He has continued his demolition of the arms control regime that has offered some protection against the threat of nuclear war, while also pursuing development of new and even more dangerous weapons, much to the delight of military industry. In his dedicated commitment to destroy the environment that sustains life, Trump has opened up vast new areas for drilling, including the last great nature reserve. Meanwhile, his minions are systematically dismantling the regulatory system that somewhat mitigates the destructive impact of fossil fuel use, and that protects the population from toxic chemicals and from pollution, a curse that is now doubly murderous in the course of a severe respiratory epidemic.
Trump has also carried forward his campaign to undermine democracy. By law, presidential appointments are subject to Senate confirmation. Trump avoids this inconvenience by leaving the positions open and filling the offices with “temporary appointments” who answer to his will – and if they do not do so with sufficient fealty to the lord, are fired. He has purged the executive of any independent voice. Only sycophants remain. Congress had long ago established Inspectors General to monitor the performance of the executive branch. They began to look into the swamp of corruption that Trump has created in Washington. He took care of that quickly by firing them. There was scarcely a peep from the Republican Senate, firmly in Trump’s pocket, with hardly a flicker of integrity remaining, terrified by the popular base Trump has mobilized.
This onslaught against democracy is only the bare beginning. Trump’s latest step is to warn that he may not leave office if he is not satisfied with the outcome of the November election. The threat is taken very seriously in high places. To mention just a few examples, two highly respected retired senior military commanders released an open letter to the chairman of the Joint Chiefs of Staff, General Milley, reviewing his constitutional responsibility to send the army to remove by force a “lawless president” who refuses to leave office after electoral defeat, summoning in his defense the kinds of paramilitary units he dispatched to Portland Oregon to terrorize the population over the strong objection of elected officials.
Many establishment figures regard the warning as realistic, among them the high-level Transition Integrity Project, which has just reported the results of the “war gaming” it has been conducting on possible outcomes of the November election. The project members are “some of the most accomplished Republicans, Democrats, civil servants, media experts, pollsters and strategists around,” the Project co-director explains, including prominent figures in both Parties. Under any plausible scenario apart from a clear Trump victory, the games led to something like civil war, with Trump choosing to end “the American experiment.”
Again, strong words, never before heard from sober mainstream voices. The very fact that such thoughts arise is ominous enough. They are not alone. And given incomparable US power, far more than the “American experiment” is at risk.
Nothing like this has happened in the often troubled history of parliamentary democracy. Keeping to recent years, Richard Nixon – not the most delightful person in presidential history – had good reason to believe that he had lost the 1960 election only because of criminal manipulation by Democratic operatives. He did not contest the results, putting the welfare of the country ahead of personal ambition. Albert Gore did the same in 2000. Not today.
Forging new paths in contempt for the welfare of the country does not suffice for the megalomaniac who dominates the world. Trump has also announced once again that he may disregard the Constitution and “negotiate” for a third term if he decides he is entitled to it.
Some choose to laugh all this off as the playfulness of a buffoon. To their peril, as history shows.
The survival of liberty is not guaranteed by “parchment barriers,” James Madison warned. Words on paper are not enough. It is founded on the expectation of good faith and common decency. That has been torn to shreds by Trump along with his co-conspirator Senate Majority Leader Mitch McConnell, who has turned the “world’s greatest deliberative body,” as it calls itself, into a pathetic joke. McConnell’s Senate refuses even to consider legislative proposals. Its concern is largesse to the rich and stacking the judiciary, top to bottom with far right young lawyers who should be able to safeguard the reactionary Trump-McConnell agenda for a generation, whatever the public wants, whatever the world needs for survival.
The hands of the Doomsday Clock were first set shortly after atomic bombs were used in a paroxysm of needless slaughter. The hands have oscillated since, as global circumstances have evolved
The abject service to the rich of the Trump-McConnell Republican party is quite remarkable, even by the neoliberal standards of exaltation of greed. One illustration is provided by the leading specialists on tax policy, economists Emmanuel Saez and Gabriel Zucman. They show that in 2018, following the tax scam that was the one legislative Trump-McConnell achievement, “for the first time in the last hundred years, billionaires have paid less [in taxes] than steel workers, school teachers, and retirees,” erasing “a century of fiscal history.” “In 2018, for the first time in the modern history of the United States, capital has been taxed less than labor” – a truly impressive victory of class war, called “liberty” in hegemonic doctrine.
The Doomsday Clock was set last January before the scale of the pandemic was understood. Humanity will sooner or later recover from the pandemic, at terrible cost. It is needless cost. We see that clearly from the experience of countries that took decisive action when China provided the world with the relevant information about the virus on January 10. Primary among them were East-Southeast Asia and Oceania, with others trailing along, and bringing up the rear a few utter disasters, notably the US, followed by Bolsonaro’s Brazil and Modi’s India.
Despite the malfeasance or indifference of some political leaders, there will ultimately be some kind of recovery from the pandemic. We will not, however, recover from the melting of the polar icecaps, or the exploding rate of arctic fires that are releasing enormous amounts of greenhouses gasses into the atmosphere, or other steps on our march to catastrophe.
When the most prominent climate scientists warn us to “Panic Now,” they are not being alarmist. There is no time to waste. Few are doing enough, and even worse, the world is cursed by leaders who are not only refusing to take sufficient action but are deliberately accelerating the race to disaster. The malignancy in the White House is far in the lead in this monstrous criminality.
It is not only governments. The same is true of fossil fuel industries, the big banks that finance them, and other industries that profit from actions that put the “survival of humanity” at serious risk, in the words of a leaked internal memo of America’s largest bank.
Humanity will not long survive this institutional malignancy. The means to manage the crisis are available. But not for long. One primary task of the Progressive International is to ensure that we all panic now – and act accordingly.
The crises we face in this unique moment of human history are of course international. Environmental catastrophe, nuclear war, and the pandemic have no borders. And in a less transparent way, the same is true of the third of the demons that stalk the earth and drive the second hand of the Doomsday clock towards midnight: the deterioration of democracy. The international character of this plague becomes evident when we examine its origins.
Circumstances vary, but there are some common roots. Much of the malignancy traces back to the neoliberal assault on the world’s population launched in force 40 years ago.
The basic character of the assault was captured in the opening pronouncements of its most prominent figures. Ronald Reagan declared in his inaugural address that government is the problem, not the solution – meaning that decisions should be removed from governments, which are at least partially under public control, to private power, which is completely unaccountable to the public, and whose sole responsibility is self-enrichment, as chief economist Milton Friedman proclaimed. The other was Margaret Thatcher, who instructed us that there is no society, only a market in which people are cast to survive as best they can, with no organizations that enable them to defend themselves against its ravages.
Unwittingly no doubt, Thatcher was paraphrasing Marx, who condemned the autocratic rulers of his day for turning the population into a “sack of potatoes,” defenseless against concentrated power.
With admirable consistency, the Reagan and Thatcher administrations moved at once to destroy the labour movement, the primary impediment to harsh class rule by the masters of the economy. In doing so, they were adopting the leading principles of neoliberalism from its early days in interwar Vienna, where the founder and patron saint of the movement, Ludwig von Mises, could scarcely control his joy when the proto-fascist government violently destroyed Austria’s vibrant social democracy and the despicable trade unions that were interfering with sound economics by defending the rights of working people. As von Mises explained in his 1927 neoliberal classic Liberalism, five years after Mussolini initiated his brutal rule, “It cannot be denied that Fascism and similar movements aimed at the establishment of dictatorships are full of the best intentions and that their intervention has for the moment saved European civilization. The merit that Fascism has thereby won for itself will live on eternally in history” – though it will be only temporary, he assured us. The Blackshirts will go home after having accomplished their good work.
The same principles inspired enthusiastic neoliberal support for the hideous Pinochet dictatorship. A few years later, they were put into operation in a different form in the global arena under the leadership of the US and UK.
The consequences were predictable. One was sharp concentration of wealth alongside of stagnation for much of the population, reflected in the political realm by undermining of democracy. The impact in the United States brings out very clearly what one would expect when business rule is virtually uncontested. After 40 years, 0.1% of the population have 20% of the wealth, twice what they had when Reagan was elected. CEO remuneration has skyrocketed, drawing general management wealth along with it. Real wages for non-supervisory male workers have declined. A majority of the population survives from paycheck to paycheck, with almost no reserves. Financial institutions, largely predatory, have exploded in scale. There have been repeated crashes, increasing in severity, the perpetrators bailed out by the friendly taxpayer, though that is the least of the implicit state subsidy they receive. “Free markets” led to monopolization, with reduced competition and innovation, as the strong swallowed the weak. Neoliberal globalization has deindustrialized the country within the framework of the investor rights agreements mislabeled as “free trade pacts. ”Adopting the neoliberal doctrine that “taxation is robbery,” Reagan opened the door to tax havens and shell companies – previously banned and barred by effective enforcement. That led at once to a huge tax evasion industry to expedite massive robbery of the general population by the very rich and the corporate sector. No small change. The scale is estimated in tens of trillions of dollars.
And so it continues as neoliberal doctrine took hold.
As the assault was just beginning to take shape, in 1978, the president of the United Auto Workers, Doug Fraser, resigned from a labor-management committee that was set up by the Carter Administration, expressing his shock that business leaders had “chosen to wage a one-sided class war in this country – a war against working people, the unemployed, the poor, the minorities, the very young and the very old, and even many in the middle class of our society,” and had “broken and discarded the fragile, unwritten compact previously existing during a period of growth and progress” – during the period of class collaboration under regimented capitalism.
His recognition of how the world works was somewhat belated, in fact too late to fend off the bitter class war launched by business leaders who were soon granted free rein by compliant governments. The consequences over much of the world come as little surprise: widespread anger, resentment, contempt for political institutions while the primary economic ones are hidden from view by effective propaganda. All of this provides fertile territory for demagogues who can pretend to be your savior while stabbing you in the back, meanwhile deflecting the blame for your conditions to scapegoats: immigrants, blacks, China, whoever fits long-standing prejudices.
Returning to the major crises we face at this historic moment, all are international, and two internationals are forming to confront them. One is opening today: the Progressive International. The other has been taking shape under the leadership of Trump’s White House, a Reactionary International comprising the world’s most reactionary states.
In the Western Hemisphere, the International includes Bolsonaro’s Brazil and a few others. In the Middle East, prime members are the family dictatorships of the Gulf; al-Sisi’s Egyptian dictatorship, perhaps the harshest in Egypt’s bitter history; and Israel, which long ago discarded its social democratic origins and shifted far to the right, the predicted effect of the prolonged and brutal occupation. The current agreements between Israel and Arab dictatorships, formalising long-standing tacit relations, are a significant step towards solidifying the Middle East base of the Reactionary International. The Palestinians are kicked in the face, the proper fate of those who lack power and do not grovel properly at the feet of the natural masters.
To the East, a natural candidate is India, where Prime Minister Modi is destroying India’s secular democracy and turning the country into a racist Hindu nationalist state, while crushing Kashmir. The European contingent includes Orban’s “illiberal democracy” in Hungary and similar elements elsewhere. The International also has powerful backing in the dominant global economic institutions.
The two internationals comprise a good part of the world, one at the level of states, the other popular movements. Each is a prominent representative of much broader social forces, which have sharply contending images of the world that should emerge from the current pandemic. One force is working relentlessly to construct a harsher version of the neoliberal global system from which they have greatly benefited, with more intensive surveillance and control. The other looks forward to a world of justice and peace, with energies and resources directed to serving human needs rather than the demands of a tiny minority. It is a kind of class struggle on a global scale, with many complex facets and interactions.
It is no exaggeration to say that the fate of the human experiment depends on the outcome of this struggle.
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The Second Sex: Women’s Liberation and Media in Post-Independence Tanzania
Fatma Alloo (of the Tanzania Media Women’s Association) on how women used the media and cultural spaces to organize and challenge gender norms.
Fatma Alloo’s activism grew in the decades following Tanzania’s independence in 1961, when she worked as a journalist under Julius Nyerere, or Mwalimu, the first president of Tanzania; co-founded the feminist advocacy group Tanzania Media Women’s Association (TAMWA) in 1987; and co-founded the vibrant Zanzibar International Film Festival (ZIFF) in 1997. Here, she unpacks how women used the media and cultural spaces for social mobilization and shifting patriarchal norms, particularly in periods where they were marginalized from state power. In the “Reclaiming Africa’s Early Post-Independence History” series, and the Post-Colonialisms Today project more broadly, we’re learning from African activists and policy makers from the early post-independence era, to understand how their experience of a unique period of economic, societal, cultural, and regional transformation can aid us in the present day, when questions of decolonization and liberation are more pressing than ever.
Heba M. Khalil: You have lived through so many changes in so many different political systems, from the Sultanate, colonialism, the Nyerere years; you’ve seen the dawning of liberalism and neoliberalism.
Fatma Alloo: As you say, I’ve been through a lot of “-isms” in Tanzania. The other day I was reflecting that although I grew up under colonialism in Zanzibar, as a child I was not aware that it was colonialism, I was not aware there was a Sultanate. We used to run and wave to the Sultan because he was the only one with a shiny, red car and we used to love that car, a red Rolls Royce. But as I reflect now, I realized that these were the years Mwalimu was struggling for independence in Tanganyika.
Then, of course, as you grow, life takes you on a journey, and I ended up at the University of Dar es Salaam in the 1970s, where the Dar es Salaam debates were taking place. Tanzania hosted liberation movements, and that is where socialism, communism, Marxism, Leninism, Trotskyism, Maoism, and feminism were being debated, and that’s where my consciousness grew, because I was in the midst of it. As the progressive, international community at the university was ideologically fired up by Mwalimu’s socialism, I began to understand that even my feminism had come from the West. Nobody had taught me that women lived feminism on the continent. This realization came when, as a student, I participated in an adult literacy program launched by Mwalimu. As students, we were sent to a rural and urban factory to teach literacy, but I emerged from those communities having been taught instead!
Heba M. Khalil: What do you think the role of women was in Tanzania in particular, but also on the continent, in defining the parameters, the choices and the imagination of post-independence Africa?
Fatma Alloo: Women had always been part and parcel of the independence movement in Africa. In Southern Africa and Tanzania they stood side-by-side with the men to fight, so they were very much part of it. The unique thing about Tanzania was that Mwalimu established a party called the Tanganyika African National Union (TANU), which had five wings with women being one of them. The others were youth, peasants, and workers, so as to mobilize society as a whole.
Post-independence is another story, one that very often has been narrated by men in power. There was a struggle for the visibility of women. I remember the debates in South Africa, where the African National Congress was arguing about the women’s wing wanting to discuss power relations. And there was resistance to this, the party leaders would argue first let’s just get independence, let’s not waste our time, women’s liberation will come later. It was a very bitter struggle, and of course after independence, women lost out quite a bit.
Heba M. Khalil: Why were post-independence power structures and ideologies defeated and replaced at some point by new ideologies of liberalism and, eventually, neoliberalism?
Fatma Alloo: The western media portrays Mwalimu as a failure. He has not failed, from my point of view. The whole issue of national unity is important. Tanzania has been a relatively peaceful country. Why? It did not happen by accident, it had to do with Mwalimu’s policies—he realized he had to deal with profound divisions, and he understood the role of education. Administratively, the nation had been inherited after decades of divide and rule policies. It was divided on racial and religious bases, as Tanzania is half Christian and half Muslim. We could have had a civil war, like in Lebanon, or a tribal-oriented conflict, like in Kenya or Libya. Mwalimu really understood this from the very beginning. I remember when we started TAMWA, when the women came together, we had no idea who belonged to what tribe. He was that successful.
We had free medicine, free education, but of course, all that went away with neoliberalism. My generation remembers this, and I think we have to make sure that the younger generation knows the history of the country, knows the literature that emerged from the continent. In my opinion, of all the contributions of Mwalimu, the most important was the peace and unity—amani, in Kiswahili.
Because Mwalimu was so successful, the West, especially Scandinavian countries, made him their darling. As you know, Scandinavian countries had not colonized Africa much, so people also trusted them and accepted their development aid. Very sadly, it did eat away at the success of Mwalimu with his people, and eventually made us dependent on that development aid, which continues to date. Without development aid we don’t seem to be able to move on anything. We have stopped relying on ourselves.
Heba M. Khalil: What was your experience of organizing during the rapid growth of the mass media sector in Tanzania?
Fatma Alloo: I was very active, first as a journalist in the 1980s and early 1990s, and it was extremely different. We were very influenced by Mwalimu’s ideology and ready to play our role to change the world. Mwalimu had refused to introduce television because, he argued at that time, we did not have our own images to portray, to empower our younger generations. He said if we introduce television the images shown will be of the West and the imperialist ideology will continue. In Zanzibar, however, we already had the oldest television on the continent, and it was in color. When Abeid Karume attained power in Zanzibar in 1964, after a bloody overthrow of the sultanate in power, the first thing he did was to introduce not only television, but community media, so every village in Zanzibar already had these images. But television didn’t come to Tanganyika until 1992 (Mwalimu stepped down in 1986), when it was introduced by a local businessman who established his own station. Until then the state had controlled the media, so history began to change as businesses were allowed to establish media.
I remember I was then in TAMWA and we had to encourage a lot of production of plays and other visuals, for which there was no market before. The radio had been powerful; when the peasants went to the countryside, they would take the radio and listen as they ploughed the land. So, the radio was the main tool that was used to mobilize society during Mwalimu’s era.
The press gave women journalists little chance to cover issues of importance to women. We were given health or children to cover as our issues. Before, Tanzania had one English paper, one Kiswahili, Uhuru, and one party paper. By 1986, there were 21 newspapers, and it became easier for us to really influence the press, and TAMWA began talking about issues like sexual harassment at work. But it was a double-edged sword, because the television stations recruited pretty girls to do the news reading, and the girls also wanted to be seen on television as it was a novelty. So, while we were expanding the conversation on the portrayal of women, here was television, where women were used as sex objects. The struggle continues, a luta continua.
Heba M. Khalil: How are movements trying to achieve change on the continent, particularly youth movements or younger generations, by utilizing media and cultural spaces?
Fatma Alloo: The youth need to develop tools of empowerment at an educational level and at an organizational level. Africa is a young continent, and our hope is the youth. Many youth are very active at a cultural level, they may not be in universities but at a cultural level they are extremely visible, in music, dance, and street theater.
At the moment, you see the pan-African dream has sort of lost the luster it had during independence. Even if you look at the literature of that time, it was a collective dream for Africa to unite—Bob Marley had a song “Africa Unite,” we used to dance to it and we used to really identify with it, and the literature—Franz Fanon, Ngũgĩ wa Thiong’o, Sembène Ousmane, Miriam Ba, Nawal al Saadawi—and also the films that came out. In fact, Egypt was the first country to produce amazing films; when we established the Zanzibar International Film Festival (ZIFF), in our first year we showed a film from Egypt, The Destiny by Youssef Chahine.
Zanzibar International Film Festival was born because we asked the question, “If we in Africa do not tell our stories, who will?” We ask that question particularly to train and stimulate the production of films on the continent, including in Kiswahili, because while West Africa has many films, East Africa lags behind. The festival has been in existence for 21 years. This part of the world has more than 120 million people who speak Kiswahili, so the market is there. We also encourage a lot of young producers and we encourage putting a camera in children’s hands, because from my own experience, children get so excited when they can create their own images. Twenty-one years later, these children are now adults, and they are the directors and the producers in this region. So, one has to play a role in impacting change and liberating consciousness on our vibrant and rich continent.
This article is part of the series “Reclaiming Africa’s Early Post-Independence History” from Post-Colonialisms Today (PCT), a research and advocacy project of activist-intellectuals on the continent working to recapture progressive thought and policies from post-independence Africa to address contemporary development challenges. Sign up for updates here.
The State of Judicial Independence in Kenya: A Persistent Concern
Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such. So long as we may have an independent Judiciary, the great interests of the people will be safe.
On Thursday 22 July 2021, Justice Aggrey Muchelule and Justice Said Juma Chitembwe were subjects of arbitrary search, intimidation, and interrogation by the Directorate of Criminal Investigations (DCI) on the basis of unfounded allegations of corruption.
The arrest, coming in the wake of constant and relentless attacks on the judiciary by the Executive and politicians, left a very sour taste in the mouths of many, bearing in mind that nothing was found to implicate the judges upon searching their respective chambers. Let it be clear that NOBODY is above the law (nemo est supra legis)! Not even the President of the Republic, let alone the judges.
However, there are reasons why there are arguments for special procedures when arresting or dealing with criminal allegations against a sitting judge: the need to preserve the sanctity of the office and the need to manage perceptions with regard to the judicial office. The Supreme Court of India in the case of Delhi Judicial Service Association v. State of Gujarat AIR 1991 SC 2176, (1991) 4 SCC 406 recognized the fact that whereas judges were not above the law, certain guidelines had to be in place to guide the conduct of arrest “in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated”. The concept of judicial independence, it must be recalled, recognizes not only realities but also perceptions that attach to the judicial office.
Chief Justice Howland in the Canadian Supreme Court case of R v. Valente  2 SCR 673 stated as follows with regards to perception as an ingredient of judicial independence: “it is most important that the judiciary be independent and be so perceived by the public. The judges must not have cause to fear that they will be prejudiced by their decisions or that the public would reasonably apprehend this to be the case.’ There is therefore the need to guard and jealously so, the image of the judiciary such as to manage how the judiciary is perceived by the public.
The unsubstantiated claims of corruption, and knee jerk searches without an iota of evidence does not bode well for the perception of the judiciary as a whole, and specifically, for the individual judges involved whose reputations are dragged through the mud, and needlessly so. There are germane reasons why the arrest of a judge should not be a trivial matter. The deference and respect to a judicial office informs the caution exercised in the conduct of arresting a judge. The judicial office fuses with the person of the holder and therefore it becomes necessary to err on the side of caution.
Indeed, Courts elsewhere have endeavoured to engage cautiously in this exercise of delicate funambulism. The Supreme Court of India in the case of K. Veeraswami v Union of India and others, 1991 SCR (3) 189 found that a sitting judge can only be undertaken with permission from the Chief Justice or if it is the Chief Justice who is sought to be prosecuted, from the President.
Equally, the Court of Appeal of the Federal Republic of Nigeria in the case of Hon. Justice Hyeladzira Ajiya Nganjiwa V. Federal Republic of Nigeria (2017) LPELR-43391(CA) held that a sitting judge cannot be prosecuted for offences that would have otherwise been a ground for removal from office.
It is important to note that the grounds for the removal of any judge from office are captured in article 168 of the Constitution of Kenya and they include a breach of the code of conduct and gross misconduct or misbehaviour.
Noteworthy it is to remark that the High Court of Kenya, in laying a principle of constitutional law in the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae)  eKLR ably stated that, “While the DCI is not precluded from investigating criminal misconduct of judges, there is a specific constitutional and legal framework for dealing with misconduct and/or removal of judges.
Consequently, cases of misconduct with a criminal element committed in the course of official judicial functions, or which are so inextricably connected with the office or status of a judge, shall be referred to the JSC in the first instance.” The cumulative conclusion was that the gang-ho recklessness meted on Justices Muchelule and Chitembwe by an increasingly overzealous Department of Criminal Investigations (DCI) was an affront to judicial independence in its functional sense and also in terms of perception. It was a careless move.
If there is any evidence linking any of the judges to any conduct unbecoming, then out of constitutional edict and commonsensical pragmatism, the first point of call should be the Judicial Service Commission (JSC). The Office of the Chief Justice must also be subject of focus during this unfortunate debacle.
The statement emanating from that office in the aftermath of the unfortunate events of 22nd July 2021, was at best timid and disjointed. The statement did not appear to reinforce the constitutional principle that judges cannot be arrested over matters that really ought to be addressed by the Judicial Service Commission. The office of the Chief Justice should have done better.
In summary, let it be proclaimed boldly that judicial independence is too precious a public good that it will be protected at all costs. Let it be lucid that incessant interference with judicial independence will not be tolerated from any quarters.
Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such! And in the words of John Rutledge, a scholar, jurist and the second Chief Justice of the United States of America; “So long as we may have an independent Judiciary, the great interests of the people will be safe.”
This article was initially published at THE PLATFORM For Law, Justice and Society Magazine
Land Title and Evictions in the Supreme Court of Kenya
Violent evictions of families from their homes are not exceptional events. They go to the heart of Kenya’s political economy and its long history of valorising the rights of those who hold private title.
The Supreme Court of Kenya published its judgment in William Musembi v The Moi Educational Centre Co. Ltd. on the 16th July 2021. The case arose after fourteen families — the residents of two informal settlements, City Cotton and Upendo village in Nairobi — petitioned the High court following their evictions in 2013. They had lived on the land since 1968 when it was public land. The first respondent claimed that they had legitimately acquired title to the land by letters of allotment and that the land was therefore private land. According to Amnesty Kenya, the evictions began in the early morning, without warning. Groups of young men burst into homes. Four hundred homes were demolished and personal possessions were destroyed. Crowbars and sledgehammers were used. The police were present. They fired live ammunition and used teargas canisters during the operation.
In the High Court, Judge Mumbi Ngugi held that the petitioners’ rights to dignity, security, and adequate housing had been infringed. There had been a violation of the rights of children and elderly persons under the constitution. She awarded damages. At the Court of Appeal this judgment was partially set aside. While accepting that there had indeed been violations of the rights to dignity and security, the Court of Appeal nonetheless set aside the order of damages arguing that “there was no material before the court on the basis of which the orders for compensation were made” and that, because it was unable to work out how the damages had been quantified, “the only relief that should have commended itself to the trial Court was a declaration that the forced eviction and demolition of their houses without a Court order is a violation of their right to human dignity and security.” Following this, the petitioners appealed to the Supreme Court.
Importance of the Supreme Court judgment
The importance of this case is, as Gautum Bhatia has written, that it raised the question whether “the right to accessible and adequate housing could be applied inter se between private parties”. It can thus be distinguished from the same Supreme Court’s Mitu-Bell Welfare Society v The Kenya Airports Authority, which ruled on evictions from public land.
Amongst several issues for determination, the petitioners in the present case asked the court to reach a determination of the question whether the letter of allotment held by the first respondent, the Moi Educational Centre, was issued lawfully or legally. Because that question had not been conclusively determined at the High Court or at the Court of Appeal, the petitioners sought “a declaration that the acquisition of the suit property was illegal and unlawful.”
The Supreme Court declined to do this. Arguing that in the High Court Judge Mumbi Ngugi had been right in holding that the question of the propriety of the first respondent’s title was a matter for the National Land Commission and that it is the Land and Environment Court that properly has jurisdiction over this question, the Supreme Court held in William Musembi that “the title of the first respondent remains unimpeached”. Instead, it held, the only question it ought to determine was whether, in evicting the petitioners, the respondents violated the petitioners’ rights to human dignity and security, as well as the rights to housing and health.
It is on the basis of the “unimpeached” title of the first respondent that the court goes on to make its landmark finding. For determination by the court was the question whether the first respondent, being a private party, could nonetheless be responsible for the violation of constitutional rights. Recognising that “the mandate to ensure the realization and protection of social and economic rights does not extend to the first respondent” because it is a private entity which is not under any obligation to ensure the progressive or immediate realisation of those rights, the court found that private parties do nonetheless have a “negative obligation to ensure that it does not violate the rights of the petitioners.”
For Bhatia, the judgment’s significance lies partly in its finding that “a negative obligation not to interfere with socio-economic rights (such as the right to housing), …applies to both public and private parties” although he argues persuasively that “the distinction between negative and positive obligations is doing a lot of work” and that the concrete practice of evictions significantly blurs the boundary between public and private actors. He rightly notes that “evictions invariably involve concert of action between State forces and private landowners, with the latter relying upon the former (either directly, or through forbearance) to accomplish physically removing people from land.”
Public and private
If the distinction between negative and positive obligations is somewhat artificial, I also want to suggest that Kenya’s history of land grabbing shows that so too is the distinction between the state and private landowners. More than just state forces doing the bidding of private landowners, wielding batons and using bullets to break into homes in the early morning, in Kenya the state/private distinction is a mirage. In William Musembi, the court does not elaborate on the important history of letters of allotment in Kenya and the process by which they enabled public land to morph into private land. Instead, it affirms the first respondent’s title – and proceeds to make an important ruling on the obligations of private actors. However, the history of land grabbing and the murky past of letters of allotment is a critical one to keep at the front of our minds.
For determination by the court was the question whether the first respondent, being a private party, could nonetheless be responsible for the violation of constitutional rights.
The report of the Commission of Inquiry into the Illegal/ Irregular Allocation of Public Land established in 2003 set out in forensic detail the illegal and irregular land awards made over the years using the mechanism of the letter of allotment. Awards of land were made to the families of Presidents Kenyatta and Moi, numerous former ministers, members of parliament and civil servants, as well as to individuals in the military and the judiciary. The report sets out how out of proximity to the state, private property owners were created. Public land – land set aside for the building of public health clinics or schools for example – mysteriously turned into private land on which malls, private residences, and diplomatic headquarters appeared. No doubt some individuals acquired perfectly legitimate letters of allotment. But from the 1970s onwards, a thriving market in improper letters of allotment developed. They came to be treated as tradable land documents. Widely but mistakenly used as land titles (with the collusion of lawyers), they changed hands quickly in sales of grabbed land. This was done in order to get the benefit of the principle that an innocent third party for value without notice takes good title. The full extent of this practice is unknown: the Ndung’u Commission warned that its report provided only a snapshot of the illegal/irregular land allocations that had taken place over the years.
I have written elsewhere that land grabbing is sedimented in Kenya’s political economy such that we can describe it as a “grabbed state”. The “normal” economy is founded on accumulation by dispossession. It is not possible to understand Kenya’s political economy without an understanding of how the normal and the supposedly abnormal are pervasively linked. Far from land grabbing being an aberrant phenomenon that can be sharply distinguished from normal business practice, the illegal and irregular appropriation of land structures Kenya’s economy.
Widely but mistakenly used as land titles (with the collusion of lawyers), they changed hands quickly in sales of grabbed land.
There is no operative distinction between the public and the private in Kenya. This makes the judgment in the present case even more consequential: given the history of these murky conversions in title, the judgment’s finding that negative constitutional obligations can attach to private actors is likely to cover a great many potential eviction scenarios. Indeed, I would argue that given the history of land described above, the court should have gone further. Grounding its reasoning in Kenya’s history of land grabbing and the dispossession and discrimination that resulted, it could have held that positive socio-economic obligations (such as providing alternative accommodation) should extend to private parties. Or it might have held that given the extent of land grabbing — which is a matter of public record — the state should not agree to enforce a court order for eviction until it is satisfied that alternative accommodation has been provided.
Entrenching private property
Welcoming the Supreme Court’s judgment, Bhatia has noted that it “continues the welcome trend of judicial scepticism towards entrenched property rights.” The court demonstrated this scepticism by extending negative constitutional obligations to private actors. However, to do so, the Supreme Court moved to confirm the respondent’s title. That title it described as “unimpeached”. The court used this as the basis for setting out the first respondent’s obligations as a private owner. The extension of constitutional obligations to private actors is to be welcomed. But it is important to recognise also that by refusing jurisdiction to question the first respondent’s title – and ruling that this is a matter for another forum – the Supreme Court effectively sanctioned the enclosure of what the appellants claimed was unalienated public land and potentially legitimated the grabbing of public land.
The court does not elaborate on the important history of letters of allotment in Kenya and the process by which they enabled public land to morph into private land.
Instead, the Supreme Court might have used Art. 23 which provides for the authority of courts to uphold and enforce the Bill of Rights, to try to fashion a remedy. It could have expressly referred the question of the integrity of the first respondent’s title to the National Land Commission rather than state as unequivocally as it did that it is unimpeached. At the very least, given the importance of a letter of allotment and the question of title in the case, the court should have rehearsed Kenya’s history of land grabbing and corruption as revealed by the Ndung’u report so as to give it judicial notice and provide a starting point for the wider task of challenging ill-gotten titles by those who might seek to do so.
Reinstating Judge Mumbi Ngugi judgment in the High Court and in particular her finding that damages should be paid to those evicted, the Supreme Court ordered the first respondents, the Moi Educational Centre, to pay fourteen families KSh150,000 (just over 1000 euros) each in damages. The government will also pay each family KSh100,000. In return, unless the National Land Commission or the Land and Environment Court are asked to rule on the propriety of the first respondent’s title and find against them, the Moi Educational Centre now hold unimpeached title to very valuable land in Nairobi. That is quite a windfall.
Violent evictions of families from their homes are not episodic and exceptional events. They go to the heart of Kenya’s political economy and its long history of valorising the rights of those who hold private title, however acquired. How far can the courts be relied upon to undo accumulation by dispossession?
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