The Role of Kenyan Civil Society in Democratic Governance10 min read.
Kenyan civil society has played a critical role in holding the State to account and in promoting a human rights-based approach to governance.
In defense of democracy, human rights and the rule of law is the motto of conscientious human rights defenders. A human rights defender is any person fighting for a cause to improve the well-being of human beings or to correct a violation to human dignity or breach of law for remedy. Human rights are rights that belong to everyone simply because they are human beings. By belonging to everyone it means that every person is a holder of these rights and they may not be taken away or denied because of a person’s social or economic status. Human rights are universal. They belong to everyone. They are interrelated, interdependent and indivisible. No right is greater than the other.
The primary obligation to promote and protect human rights rests with the State. However, every individual, and other non-State actors also have the responsibility and duty to respect the rights of his or her fellow human being. It is vital that in the establishment of a human rights culture that no one is excluded and that the most vulnerable are included. For democracy to prevail, it is imperative that it reaches every citizen. It is often said that it is easier to struggle for democracy but more difficult to sustain it.
This is critical especially in situations where people have limited respect for and trust in the government. The world is facing the greatest test – the COVID-19 pandemic. It is my personal experience that pandemics or upheavals in countries and societies have always had serious consequences to human trights democracy and rule of law. In most cases, such occurrences exacerbate existing human rights violations. It is the moment when human rights defenders in their active and vibrant civil society are necessary to hold the State accountable, especially because the State capitalises on such calamities to grab more power and cause egregious violations.
A new United Nations report on the global response to COVID-19 has noted the central role of a human rights-based approach to the pandemic. “This is not a time to neglect human rights; it is a time when, more than ever, human rights are needed to navigate this crisis in a way that will allow us, as soon as possible, to focus again on achieving equitable sustainable development and sustaining peace,” stated the report. This is a time when, more than ever, government needs to be open and transparent, responsive and accountable to the people they are seeking to protect. Civil society organisations, particularly grassroots community-based organisations, are better placed to reach exposed populations quickly and in ways that factor in the specific sensitivities of each community and that ensure that critical information reaches diverse segments of the society.
Perhaps the biggest challenge that human rights defenders and civil society in general have faced during this pandemic is the State taking advantage of the pandemic to grab and consolidate more power. States have turned COVID-19 into a security matter, giving themselves enormous powers to curtail crucial freedoms and rights while remaining covertly opaque in their decision-making processes. This poses a dilemma for civil society on how to respond while being sensitive to the public’s concerns.
Who constitutes civil society?
In my own understanding, civil society is not what many Kenyans see as particular individuals and/or the organisations they work for. No! Civil society should been seen in the context of the heterogeneity of an entire range of organised groups, individuals, and institutions that are independent of the state, voluntary, and at least to some extent self-generating and self-reliant. This includes those individuals and organisations that the majority of Kenyans see as the being the civil society, as well as independent media, think tanks, universities, and social and religious groups.
To be part of civil society, such individuals and groups, formally or informally, must have respect for the rule of law, for the rights of individuals, and for the rights of other groups to express their interests and opinions, and must also exercise tolerance and the accommodation of pluralism and diversity of ideas and formations.
States have turned COVID-19 into a security matter, giving themselves enormous powers to curtail crucial freedoms and rights while remaining covertly opaque in their decision-making processes.
There is consensus that civil society in all its different formations and characters needs to ensure its own legitimacy, openness and transparency. Legitimacy stems from several sources:
Firstly, from a strong moral conviction, through acting on the basis of universally-recognised rights and freedoms of speech, assembly and association to articulate public concerns that are inadequately addressed by the government.
Secondly, from a political and civic legitimacy or credibility, through approval of the community or constituency represented by the voluntary association, asserting people’s sovereignty and community control.
Thirdly, from competence or performance legitimacy, by delivering results through being closer to local reality than governmental institutions, helping to bridge a government-community gap and promoting social cohesion.
Fourthly, from legal recognition, although laws may prevent truly independent civil society from functioning, or formal registration may undermine rather than enhance their reputation.
And finally, and most importantly, from the legitimacy that comes from accountability and transparency in its work.
A strong civil society is one in which voluntary formations are effective and strategic organisations that work cohesively in influential networks or coalitions in an environment governed by civil norms, such as respect, reciprocity, tolerance and inclusion. Such norms promote open discourse and citizens’ engagement in informed dialogue.
A narrow view of civil society results in a failure to develop civil society organisations that keep the government in check and nurture democratic practices and values as a multi-generational effort. A broader view of civil society requires cultural and attitudinal changes to help people understand, support, and protect civil society organisations as representatives of their interests. Yet goverments are able to keep replenishing and tapping good ideas and brains to help them overcome citizens’ pressure. Civil society, which is facing very turbulent times on many fronts, will have to become more innovative in enabling collaboration and improving practices in order to remain relevant and effective in influencing public policy. It cannot remain conventional with the same traditional approaches.
In my view, there are several important principles to follow in seeking to strengthen civil society. Firstly, it is critical to start where civil society is: measures to strengthen its capacities need to be based on local needs, assets and institutional ecosystems. Civil society organisations need to know their own strengths. Outsiders cannot necessarily connect with local society.
Secondly, decision-making needs to be in the hands of those undertaking the strengthening measures, so it is informed by indigenous values, concerns and environment. Thirdly, action must be based on well documented and analysed data and evidence and sustainable resources to inform local engagement across sectors and levels. A people-oriented participatory approach is key. It creates constituency and legitimacy. Fourthly, action should support and reinforce existing compatible interventions. This will need to have a combination of multidimensional tools for execution. For instance, how do online actions combine and reinforce offline actions? Fifth, there should be realistic time horizons since institutional development does not occur instantaneously.
Finally, building alliances within a sector or domain will support individual sector members or issue-based communities. This leads to improved information through sharing best practices and avoiding duplication. Through collaborative action in alliances there can be a greater impact at the policy level, and a means to set standards in accountability. Alliances and networking create solidarity. Bridge-building across sector boundaries strengthen both by generating a larger body of interest and also new resources, for example, through cooperation with the public or private sector. Transnational or international engagement enhances civil society roles in different spheres of public discourses.
In my experience with civil society, I see have seen it playing pivotal roles of advocacy, watchdog and service provider of public goods. The roles are intertwined. Perhaps what have been different are approaches, which has created unnecessary frictions and misunderstanding. As dynamic and multidimensional entities, civil society moves from one role to another and/or assumes several roles. This can be illustrated by an organisation whose initial role is service delivery; it turns to advocacy to overcome problems it meets in fulfilling its service provision role; and it subsequently becomes a watchdog in trying to prevent the recurrence or worsening of the problems while continuing to provide its original services. The role of service delivery is regarded, at least by governments, as the least controversial function of civil society. However, many people express concern that while civil society is performing a crucial activity, the government can take advantage of this service provider role and fail to assume its own responsibilities and obligations.
Most agree that Kenyan civil society has contributed enormously towards both the substance and process of democracy and human rights. Civil society has been an important driver of the State’s democratisation process by providing a vital link between citizens and the State as well as by mobilising communities for collective actions. It also provides an environment that can be used to enhance community cohesion and decision-making. Information is vital to civic participation and also encourages inclusive development and participatory democracy. When people get better informed, they are more likely to participate in policy discussions and communicate their ideas and concerns freely.
Achievements of Kenyan civil society
The following is a summary on the role civil society played in Kenya in advancing human rights, democracy and the rule of law in different contexts. (The list is not exhaustive.)
First, civil society has been an incubator and supplier of ideas on content and strategies on State transformation and building an open pluralistic society. Perhaps the struggle for multipartyism and a new constitutional order culminating in the progressive Constitution of Kenya 2010 amplifies this critical role of civil society. Today, there is a growing movement of civil society on the implementation of the constitution and championing of devolution of powers and resources under the banner of Tekeleza Katiba Movement. Further, civil society has not shied away from working and organising political parties into a formidable socio-political movement. This capacity was demonstrated in 1997 and 2002.
The role of service delivery is regarded, at least by governments, as the least controversial function of civil society. However, many people express concern that while civil society is performing a crucial activity, the government can take advantage of this service provider role and fail to assume its own responsibilities and obligations.
Secondly, civil society has been a strong deterrent and catalyst in defanging the power of the State. A true democracy needs a well-functioning and legitimate State. Kenyan civil society has been highly successful in deploying different methods to ensure that the State is tamed through checking, monitoring, and taking actions to restrain the power of political leaders and State officials. Civil society actors have been aggressive watchdogs on how State officials and agencies use their powers through raising public concern and awareness about any abuse of power and robustly taking advocacy actions ranging from public demonstrations to picketing and litigation.
Thirdly, research and documentation to expose the corrupt conduct of public officials and demands for accountability and improved governance have been a great success. This is also very important in collection and preservation of evidence. Civil society in its different formations has been a leading light in tackling corruption, especially through push for public access to information, whistle blowing and public campaigns. This is upon realising that even where anti-corruption laws and bodies exist, they cannot function effectively without the active support and participation of civil society. Civil society have come up with transparency and accountability tools as some potential solutions to some of the corruption problems in that they allow communities to identify breakdowns and hold responsible agents or decision makers to account. A fourth function of civil society is to promote political and public participation. Civic education on citizens’ rights and obligations has been a bulwark in developing citizens’ skills to work with one another to solve common problems, to debate public issues, and express their views.
Fifth, civil society has been a major player in conflict mitigation efforts and propagating values of democratic life, such as tolerance, moderation, compromise, and respect for opposing points of view. Without this deeper culture of accommodation, democracy cannot be stable. Civil society understands that these values cannot simply be taught; they must also be experienced through practice and interlocutors. Civil society has developed formal programmes and training of trainers to relieve political and ethnic conflict and teach groups to solve their disputes through bargaining and accommodation. This brings the crucial connection between policy and practice in civil society work.
Sixth, civil society has been an arena for the expression of diverse interests. One role of civil society organisations has been to push for the needs and concerns of their members, as women, students, farmers, environmentalists, trade unionists, lawyers, doctors, and so on. Civil societies, in all their diversity, have been presenting their views and those of different constituencies they represent to different State institutions for redress. They also establish a dialogue with relevant government ministries and agencies to lobby for their interests and concerns. And it is not only the resourceful and well-organised whose voices have been heard. Over time, groups that have historically been oppressed and confined to the margins of society have organised to assert their rights and defend their interests.
Kenyan civil society has been highly successful in deploying different methods to ensure that the State is tamed through checking, monitoring, and taking actions to restrain the power of political leaders and State officials.
Seventh, different civil society platforms have been vital focal points for strengthening democracy in actions by providing new diverse forms of interests and solidarity. For civil society, democracy cannot be stable if people only associate with others of the same social, political or status identity orientation. When people of different religions, ethnic identities, professionals backgrounds and sectors come together on the basis of their common interests as women, artists, doctors, students, workers, farmers, lawyers, human rights activists, environmentalists, and so on, civic life becomes richer, more complex, and more tolerant. Civil society has very efficiently provided this platform. Historically, groups and individuals never saw themselves as part of civil society; today there find crucial space for civic engagement.
Eighth, civil society provides a training ground for political, civic and private leaders. Civil society has helped to identify and train new types of leaders who have dealt with important public issues and are recruited to run for political office at all levels and to serve in local and national positions, both in politics and private/professional sectors. Evidence shows that civil society has been a particularly important arena from which to recruit and train women leaders in different fields.
Ninth, civil society has helped to inform the public about important public policy issues. This is not only the role of the mass media, which is also part of civil society, but individuals or groups of organisations coming together to provide fora for debating public policies and disseminating information about issues that affect the interests of different groups, or of society at large, using different methods. Civil society leads in taking action that safeguards public interest like litigating and drafting petitions and policy papers and presenting those policy positions to the relevant State institutions.
Tenth, civil society organisations have played vital role in monitoring electoral processes and management. This has seen a broad coalition of organisations unconnected to political parties or candidates deploying neutral monitors at all the different polling stations to ensure that voting and vote-counting is entirely free, fair, peaceful, and transparent. It is very hard to have credible and fair elections in a democracy unless civil society groups play this role. The outcomes of such vital civil society processes have been useful as evidence in electoral disputes.
Twelfth, civil society has been very instrumental in advocating for fair rules in the digital world and influence at the policy level. This has been important in establishing spaces for civil society to engage and bring social change through digital activism.
Finally, it is important to stress that civil society is not simply in tension with the State. Because civil society is independent of the State does not mean that it must always criticise and oppose the state. In fact, by making the State at all levels more accountable, responsive, inclusive, and effective, and hence more legitimate, a vigorous civil society strengthens citizens’ respect for the State and promotes their positive democratic engagement with the State. However, Kenyan civil society is in the state of fluid transition as global dynamics shift.
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The Blind Spot: A Graphic Novel on Food Security and Farmers’ Rights
Chief Nyamweya shines a light on the central issues of food security and the welfare of smallholder farmers in Kenya.
Some time back in May 2020, an incident occurred in Mombasa that stunned the nation. The Daily Nation reported a story of a Kisauni widow who was forced to boil stones to give her children false hope that she had some food for them. The story sent shockwaves across the country and ignited a conversation about the magnitude of the hunger plaguing Kenyan households.
The story of Peninah Kitsao is not an isolated incident. All over the country, ordinary Kenyans are struggling to put food on the table due to biting inflation that has seen commodity prices soar to nearly unaffordable levels. Failed rains and a drought of a severity never witnessed before in the history of the country, especially in northern Kenya, have worsened a dire situation.
Interventions by state and non-state actors have arguably not been enough as there have been reports from certain parts, such as Samburu, of people drinking dirty water and eating dog meat to survive. The country is essentially in a deep hole. Coupled with the drying up of the rivers and lakes that used to serve vulnerable communities, it is safe to say that the government and other agencies have had blind spots in dealing with the situation.
Route to Food Initiative’s graphic novel The Blind Spot, which is written and illustrated by Chief Nyamweya, should be read against the backdrop of some of these startling developments. The work of committed art is to expose the ills in society, not just by dropping popular catchphrases and revolutionary slogans, but by disturbing the conscience of the nation. Such works of art are expected to put us on track for what needs to be done to set things right.
That’s exactly what Nyamweya’s comic offering is all about.
Worrying policy gaps
The central issues of food security and the welfare of smallholder farmers shine throughout the slim graphic novel, bringing into sharp focus policy gaps and a lack of commitment from leaders to correct the mistakes of the past.
The visual narrative opens with a protest by Kajibora residents and farmers at the Kajibora County Hall. Chanting outside the county governor’s residence, the agitated crowd demands justice for one of their own, Karisa, who has committed suicide after auctioneers sell his land to recover an unpaid debt.
The protest also provides the space and opportunity for the residents and farmers to demand “lower prices on food, better quality food and enhanced protection of Kenya’s ecosystems [and] land reforms.” Demonstrations are not new in the country; with livelihoods threatened by forces beyond their control even as the national and county governments drag their feet to alleviate the suffering, it is inevitable that ordinary people would take such drastic measures.
The Mzee Maona-led Jembe Revolution calls on Governor Nyoni to deal with food insecurity as a human rights issue and to protect smallholder farmers from predatory multinationals. The corporations are often accused of exploitation through the introduction of harmful production methods and industrial processes that threaten biodiversity.
The fictionalised revolution echoes the vigorous pushback by various stakeholders, including farmers, politicians and ordinary Kenyans, who have questioned the government’s proposal to introduce genetically modified foods.
While those in support of the introduction of genetically modified organisms (GMOs) into the country have a valid argument that Kenya and the continent at large are dealing with a serious food crisis that needs never-before-tested solutions, those against them argue that farmers and consumers are likely to suffer. This is because there are growing fears that the multinationals that distribute GM seeds will have the monopoly to dictate to farmers which seeds to use, and the scenario is likely to deny them the agency to produce food on their own terms and according to their preferences.
Putting Western interests first
In other words, the prioritisation of Western interests, as it often emerges in Nyamweya’s narrative, where the governor is accused of focusing on “the large scale production of a few food crops and protecting the interests of big agribusiness”, is a reality that policymakers will have to contend with to effectively address the issue of food security in the country.
A DW documentary titled Africa, GMOs and Western Interests, which aired two months ago, revealed the hidden hand of philanthropists such as Bill Gates, through the Bill & Melinda Gates Foundation, in pushing for the introduction of GMOs in select African countries to benefit private businesses in the West. Therefore, when Kajibora farmers and residents, through their Chama cha Wakulima (CCW) party, wave a placard reading SAVE OUR SEEDS, they are not expressing a grievance coming from without but a genuine fear born out of the reality that, on the one hand, the forces of globalisation are unavoidable (food production systems and the overall supply chain can never only be local) and on the other, the reality of the weak political system that hardly prioritises the interests of its citizens, least of all smallholder farmers.
To give credit where it is due, President William Ruto’s introduction of the fertiliser subsidy is likely to be a game changer for a majority of farmers who are unable to afford the essential commodity. The subsidised fertiliser is retailing at KSh3,500 for a 50kg bag, down from KSh6,000. The use of technology for registration (farmers use their phones) will also help eliminate red tape and corruption and thus improve efficiency in distribution, which is key to the timely use of the fertiliser to boost yields.
The cries and anxieties of the Kajibora farmers take a dramatic twist following the death of Mzee Maona when CCW is wracked by fissures as various members pull in different directions. As is characteristic of Kenyan political parties not founded on a solid vision and ideology, the core issues—such as sustainable agriculture for the farmers—that define the party’s agenda become a footnote. Instead, the so-called ideological differences (a euphemism for selfish interests) erupt during the requiem mass for Maona when party members engage in a vicious fistfight before the bereaved mourners.
Enter the scions of Mzee Maona, Sifa and Yona—highly educated, exposed and polished but with contrastingly opposing views on how to reimagine the patriarch’s vision of putting the farmers’ agenda first—and the narrative is set for a fascinating climax.
What emerges from the troubled relationship between Sifa, a professor, and Yona, now an aspiring Kajibora governor, are the intra-generational tensions of how to approach the pressures and complicated issues that have become synonymous with modern living. This is especially true when it comes to championing the rights of ordinary people such as farmers.
As is characteristic of Kenyan political parties not founded on a solid vision and ideology, the core issues that defined the party’s agenda become a footnote.
Sifa is distrustful of the political process for fixing societal issues. She is an advocate of fighting for human rights from outside the political process since, in politics, you “promise the people paradise while only delivering paperwork”. While her worldview is sometimes abstract and detached and elitist, she deserves credit for not losing focus on the immediate priorities that should be urgently addressed to make life better for small-scale farmers.
Yona, on the other hand, styles himself as a pragmatist and realist who is in touch with what is happening on the ground but comes across as vain, selfish and arrogant. He is a perfect representative of Kenya’s political class for whom governance is about foreign investment, rather than the people. He says that “a key part [of his] job as governor will be to attract investment to Kajibora”. This includes doing the bidding of multinationals like Green Shots Corporation, which is accused of controlling the food prices and the supply chains that are vital to farmers and consumers.
The role of the youth
However, what is poignant in the clash between Mzee Maona’s two grandchildren is the involvement of the youth—whether for good or bad—in debating the issues of food security and fair agricultural policies. While their approaches are often different, there is a genuine concern and passion that, in real life, should be encouraged and even rewarded.
Statistics indicate that the average age of the Kenyan farmer is 61 years. A revival of the 4K Clubs that were the craze in the 1990s under the 8-4-4 education system has been mooted as a way to entice young people to return to the soil. These are noble interventions that are likely to boost agricultural output since the youthful population is not just energetic enough to take up the challenge but also because modern farming involves access to the right information which a tech-savvy generation can exploit in this digital age.
When Dalili, a member of the CCW and a former close ally of Mzee Maona, encourages Sifa to join them on the anniversary of Jembe Day commemorating the revolt of Kajibora farmers and residents, she is essentially signalling a new way of addressing food insecurity. She tells Sifa that “our youth need to see where it all started”. The statement is profound because it acknowledges both the complexity and enormity of the task of streamlining food systems and the urgent need to bring diverse groups of people on board.
More importantly, sustainable agriculture has the potential to create jobs for thousands of jobless youth unable to secure the increasingly elusive white-collar jobs. According to the November 2022 Agriculture Sector Survey, the industry “employs over 40 percent of the total population and more than 70 percent of the rural populace”. This is a significant figure that is likely to increase even more if the youth are given the incentive to join forces in the overall agricultural production process.
Nyamweya’s only shortcoming is the exclusion of the voices of ordinary farmers from the entire narrative. As is characteristic of top-down policies, and unlike the bottom-up approach, there is a tendency to speak on behalf of the masses, to pretend to know what is best for them. A majority of the characters in the text speak of the “right” agricultural policies and approaches that need to be adopted to boost yields and food security. However, ironically, they behave like the multinationals that often impose their decisions on farmers without taking their views.
The approach is fraught with its own blind spots, not just because it is condescending to the farmers—those who are directly affected—but also because it poses the risk of aggravating an already bad situation. Talking about revolutions and uprisings is not enough to effectively transform the agricultural sector, even if the calls are to rid it of the cartels and the brokers present along the production chain.
Also, an erudite knowledge of the politics of food and the manipulation by multinationals cannot replace the basic principle that the farmer has to, first and foremost, speak for himself or herself. Does the farmer want to experiment with other seeds? Is the farmer only interested in the large-scale cultivation of staple foods? Is the farmer comfortable with the multinationals? What exactly is in the farmer’s mind? It is not always necessary that all foreign players that intervene in formulating agricultural policies have ulterior motives. One Acre Fund, an organisation founded by a non-Kenyan, has significantly helped smallholder farmers in western Kenya boost their farm output through the use of the right seeds and agricultural techniques and methods. I have seen this first-hand.
The statement is profound because it acknowledges both the complexity and enormity of the task of streamlining food systems and the urgent need to bring diverse groups of people on board.
However, despite the aforementioned shortcomings, Nyamweya’s artistic intervention cannot be downplayed. The issue of food security cannot be left to politicians and policymakers alone. This is not just because food is a basic need, but because a healthy and productive nation has the potential to improve the life expectancy and of children afflicted by malnutrition.
More importantly, a visual narrative approach is a welcome addition to a radical way of acknowledging the enormous capacity of art to surprise and reimagine how to deal with the existential anxieties of our time, such as food insecurity, climate change-induced drought and destruction of biodiversity. It is also a wake-up call to leaders, policymakers and other stakeholders that the conventional way of dealing with the challenges affecting farmers might have to change. Nyamweya’s book is a must-read for everyone who cares deeply about the future of our country and the coming generations.
Queer Lawfare in Africa – Legal Strategies in Contexts of LGBTIQ+ Criminalisation and Politicisation
The concept of lawfare, describes long-term battles over heated social and political issues, where actors on different sides employ strategies using rights, law and courts as tools and arenas.
The Supreme Court of India is anticipated to conduct hearings and deliver judgments in some important issues concerning the LGBTQIA+ community- ranging from the constitutionality of the blood donation guidelines that discriminate persons based on sexual orientation and gender identity to petitions on marriage equality (under both the Special Marriage Act and the Hindu Marriage Act). In this context, the book Queer Lawfare in Africa, edited by Adrian Jjuuko, Siri Gloppen, Alan Msosa and Frans Viljoen makes for a relevant and compelling read.
Queer Lawfare, according to the authors, is a strategy where rights and/ or laws are tactically employed to advance politically contested goals with regards to the rights of the LGBTQIA+ community. In the words of Siri Gloppen, Adrian Jjuuko, Frans Viljoen, Alan Msosa, the term “lawfare” used in the book describes the following:
The concept of lawfare, as used in this book, describes long-term battles over heated social and political issues, where actors on different sides employ strategies using rights, law and courts as tools and arenas. While sometimes associated with the misuse of law for political ends, ‘lawfare’ is here used as a descriptive, analytical term, de-linked from (the perceived) worthy-ness of the goal. The association with warfare is intentional and important: these are ongoing ‘wars’, with hard ideological cleavages and iterative battles. They are typically fought on several fronts and the contestants on each side have long term goals that they seek to advance by way of incremental tactics, often responding to, or anticipating their opponents’ moves, as well as other aspects of their (always potentially shifting) opportunity structure.
The book looks into queer lawfare in thirteen African nations- South Africa, Mozambique, Kenya, Botswana, Uganda, Malawi, Nigeria, Zambia, Ghana, Senegal, Gambia, Ethiopia and Sudan. Much like India, a lot of the nations discussed in the book had a criminal provision very similar to section 377 of the Indian Penal Code (before it was read down by the Supreme Court in Navtej Johar v. Union of India). Thereby, in many of these nations decriminalisation of sexual intercourse between consenting adults- irrespective of their sexual orientation or gender identity became (and in some countries still is) one of the first major goals of queer lawfare.
In some of the countries discussed in the book (particularly in those where queer lawfare has led to realisation of substantial legal gains for the LGBTQIA+ community), the movement started with seemingly neutral rights battles which intersected with discrimination law for instance, the right to association. The right to association cases in queer lawfare majorly consist of organisations or coalitions- established with the aim of further LGBTQIA+ rights- challenging the decision of the government to disallow their registration (set in a legal context where homosexuality is criminalised). In Botswana, such a challenge was decided in favour of the LGBT organisation, Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) by the Court of Appeal (see also, the recent judgment of the Supreme Court of Kenya). In Mozambique on the other hand, the Mozambican Association for the Defence of Sexual Minorities (LAMBDA) operates under a feminist umbrella organisation since it is not legally registered and as a natural corollary, the queer lawfare is influenced much by the strategies used by the feminist movement.
The book also refreshingly looks into the social contexts of each nation and discusses how despite LGBTQ+ movements sharing the same vision of emancipation, the means employed to achieve the end varies depending on social and political contexts in different countries. It also subtly gets across the point that there is ‘no one size fits all’ solution when it comes to queer lawfare. It discusses the different stages at which queer lawfare is in and how it varies from country to country- from South Africa where giant strides have been made in the judicial sphere to Ethiopia where ‘online lawfare’ is more prevalent due to which there is an absence of a significant progressive legal change.
As the marriage equality petition is listed for hearing before the Supreme Court of India is being heard by the Supreme Court of India, the chapter on queer lawfare in South Africa becomes particularly relevant. The landmark judgment of the Constitutional Court of South Africa in Minister of Home Affairs v. Fourie that recognised marriage equality notably held that the constitutional rights of persons cannot be undermined or be determined by the religious beliefs of some persons. In this judgment, Justice Albie Sachs read the words “or spouse” after the words “husband” and “wife”, into certain provisions of the Marriage Equality Act, 1961. As has been articulated by Jayna Kothari in this piece, the adoption of a similar strategy in the marriage equality proceedings before the Supreme Court of India is central to making the provisions of the Special Marriage Act (“SMA”) more inclusive. Reading in the words “of spouse” after the words “wife” and “husband” used in various provisions of the Special Marriage Act in India would allow persons irrespective of their sexual orientation or gender identity to get the reliefs conferred by the SMA ranging from solemnization of marriage to provision of alimony.
The chapter also confronts the challenge of limited judicial imagination while dealing with marriage equality and states that the judgment delivered by the Constitutional Court of South Africa (which was hailed as progressive) still caters to the gender binary vision- one where the institution of marriage is valourised and idea of a ‘permanent same-sex life partnership’ essentially contains the characteristics of a typical heterosexual marriage. The chapter also highlights how the ‘good homosexual’ visualised by the Constitutional Court is generally ‘a partnered middle class, if not upper middle class, man or woman who, in a country like South Africa where class continues to follow race, is almost invariably white’ thereby bringing to light the class and racial undertones underlying the legal recognition of such unions. In India, given that the institution of marriage is intrinsically tied into caste, property and patriarchy, it will remain to be seen how the Supreme Court will navigate through complex questions of intersectionality while adjudicating this case.
The book also makes a passing reference to the transnational impact of judgments on queer rights delivered by the Indian Supreme Court. For example, where submissions made before the Kenyan High Court in EG v. Attorney General and the high court decision in Botswana in Letsweletse Motshidiemang v Attorney General were influenced by the judgment of the Supreme Court of India in Navtej Johar v. Union of India. This also points out to the butterfly effect in progressive queer jurisprudence and the important role the constitutional courts in India have to fulfill in the days ahead.
Another important feature is that none of the chapters miss an opportunity to inform the readers about the perseverance and resilience of LGBTQIA+ organizations, coalitions and activists. It does the important work of documenting their role in shaping the legal destiny despite facing legal setbacks and risks of coercive action by the state. It is a fitting tribute to the indomitable spirit of the queer rights movement across the said nations in Africa to challenge the legal and political system, despite it being designed to fail them.
Oromo Orthodox Split: A Collision Between Politics and Faith
The formation of the Oromo Orthodox Synod signals greater shifts that have been on the political horizon in Ethiopia for the last four years.
Ethiopia has taken centre stage over the last four years, with a Nobel Peace Prize winning Prime Minister propelled to power by a four-year civil protest movement quickly leading the country into multiple internal war fronts. The last two years, in particular, have seen many begin to wonder if the Ethiopian state itself will survive the compounding conflicts, given that they are rooted in a tumultuous, contested, and violent past. The most recent and significant development in the tectonic shifts that have been breaking social and political ground in the country occurred on the 22nd of January 2023.
Three Oromo archbishops of the Ethiopian Orthodox Church announced the formation of an Oromo Orthodox Church Synod, with 26 patriarchs appointed to lead the synod across Oromia. In stark opposition to the new synod, a large number of Ethiopian Orthodox Church members, particularly those of an Amhara ethnic background, have been coming out in protest at the breaking up of the church, citing it as a violation beyond politics, and a breach of holy religious law.
The government, which has been supportive of the Oromo Synod has – in the manner in which it regularly responds to any expression of civil dissent – responded with state violence, shooting at protesters and, for a short while, shutting down the Internet and telecommunication services.
On the 13th of February, the Oromia Media Network reported that the new Synod is in the process of supporting the formation of synods of other national and ethnic identities, naming the Gambela, Gumuz, Sidama, Gurage, and Gamo as amongst those that will be forming their own Orthodox Church Synods in the near future.
The Ethiopian Orthodox Church has existed since the 4th century and belongs to the broader body of Orthodox churches that include the Coptic, Syrian, and Armenian Orthodox churches, and the Syrian Orthodox Church of India. The liturgical language of the church is Ge’ez, a Semitic language originating from northern Ethiopia and Eritrea, with Amharic also being used in the church today. Orthodox believers make up approximately 30 per cent of Ethiopia’s population and Amharic, the language of the Amhara ethnic group who make up approximately 22 per cent of Ethiopia’s overall population, is the official working language of Ethiopia.
Language, and the social and political power that it comes with, is one of the reasons that supporters of the Oromo Orthodox Synod believe that this recent shift is necessary. Cultural marginalization has been the experience of the Oromo and other national and cultural groups in the country since the formation of the Ethiopian state in the 1800s, a formation that the Ethiopian Orthodox Church was instrumental in spearheading.
When Menelik II began his expeditions into the Oromia heartland with the intent of consolidating the new state of Ethiopia, the proponents of this project came across a people who lived, worked, and worshipped predominately in Afaan Oromo. In particular, they practiced Waaqeefatta, the monotheistic religion of the Oromo.
Cultural marginalization has been the experience of the Oromo and other national and cultural groups in the country since the formation of the Ethiopian state in the 1800s.
Even though the popular narrative is that Ethiopia was never colonized, one of the impacts that Menelik achieved with the support of the Showan Amhara conquerors who were armed by the West was the upheaval of Oromo religious, cultural and political practice. This was replaced by the church’s own religious beliefs, as they were considered the only way to effectively commune with God.
In Ethiopia, as in much of the world, religion has always had political undertones. Historical narratives recounting both Protestant Christianity and Islam being used by Oromos to counter the effects of cultural and political domination experienced through the combined efforts of the Orthodox Church and the Ethiopian state speak to these political undertones.
Is the split really unprecedented?
Politics pervades every aspect of life everywhere, and although we would like to think that spiritual matters are beyond politics, there is perhaps nothing as politically charged as the relationships religions have with people, with states, and with the desire for social change.
Schisms and splits that occur for political reasons are not a new phenomenon in the world of Orthodox Christianity. In the 17th century, a movement to establish religious uniformity between Greek and Russian Orthodox practice was met with resistance that eventually saw a split into “Old Believers” and the official Russian Orthodox Church.
The reason for the split was disagreement over the introduction into the Russian Orthodox Church of specific religious rituals that belong to the Greek Orthodox tradition. Although it began as a disagreement about religious protocol, it developed into a movement where different parts of Russian society began to voice dissent against the feudal order led by leaders in the church.
There are obvious and significant differences between the 17th-century Russian split and what Ethiopia is facing today, but in order to avoid viewing the split within the Ethiopian Orthodox Church as entirely unprecedented, we should see the formation of the Oromo Orthodox Synod in the larger context of movements that have taken place in the history of the church, whereby politics and faith have collided to create new institutions and communities.
Is this just about religion?
The formation of the Oromo Orthodox Synod has an impact on much more than just how people practice their faith. This event signals greater shifts that have been on the political horizon in Ethiopia for the last four years.
Opposition to the formation of the Oromo Orthodox Synod has been defined by language describing it as an affront to the church’s values of “oneness”; the full name of the church is the Ethiopian Orthodox Tewahedo Church, with the word “Tewahedo” meaning “to be made one” in the Amharic language.
The ideal of “oneness” or “unity” versus the reality has been at the heart of Ethiopia’s most critical political issues. The Ethiopian state has, in concert with the Ethiopian Orthodox Church, had a history of violently assimilating a deeply diverse people and, in the same breath, defining itself as a beacon of unity. What we must understand is that what might be a breach of oneness and unity for one people, is for another people an act of revolution and decolonization.
The solution to this crisis, in my opinion, is not for the formation of the Oromo or other prospective synods to be stopped. Instead, as I think is the solution to many of Ethiopia’s issues, people must be willing to hear stories from the other side of the political divide in order to better engage the social and political changes of the now, and of the future.
I think that this is just the beginning and that although separation, like all change, can cause confusion, grief, and uncertainty, it can sometimes be the boldest step we can take towards building a new social contract for togetherness, cohesion, and harmony.
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