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Referendum Without a Constitutional Moment: The Kenyan Story

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With the country in the grip of a global pandemic and grappling with an ailing economy, is constitutional reform a priority when it’s not clear that the country is facing a constitutional moment?

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Referendum Without a Constitutional Moment: The Kenyan Story
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When they met and shook hands in March 2018, Uhuru Kenyatta and Raila Odinga pledged to address a number of issues that, to them, bedevil Kenya’s politics. A plan, formally referred to as the Building Bridges Initiative to a New Kenyan Nation—or simply, BBI—was announced in front of an audience that had witnessed a rather chaotic turn of events in the preceding months.

Raila had successfully contested Uhuru’s presidential victory at the Supreme Court and proceeded to boycott a repeat poll, citing lack of a competent and impartial electoral commission. Two months before the two leaders met, Raila had also made real his threat to take a symbolic presidential oath as the “people’s president” in defiance of Uhuru. A joint report by Amnesty International and Human Rights Watch stated that the police had behaved appropriately in some instances but, in many others, had shot or beat protestors to death.  Meanwhile, pressure from civil society organisations and the international community to find a political settlement was piling even as a debt-burdened economy was threatening to stall. Uhuru, like former president Mwai Kibaki before him, was probably worried about tarnishing his legacy.

Uhuru appointed an advisory committee in a matter of weeks. The members of the committee were instructed to make actionable proposals to address the BBI agenda, including proposals to review Kenya’s now ten-year-old constitution. The BBI’s nine-point agenda included ethnic antagonism, lack of a national ethos, devolution, divisive elections, security, corruption, shared prosperity, responsibility and inclusivity, as the main areas requiring intervention. It didn’t matter that protestors, including Raila himself, had singled out electoral malpractice as the main problem.

It wasn’t lost on many that nine days prior to the 8 August poll, the body of Chris Msando, the head of information, communication and technology at the Independent Electoral and Boundaries Commission (IEBC), had been found on the outskirts of Nairobi. Very few people, if any, thought that the Kenya 2010 constitution was the poisoned chalice.

Since then, the BBI bandwagon has threatened to change the constitution. It has taken particular issue with the winner-takes-all system, a feature that the 2010 constitution had actually been designed to dampen by diluting the powers of the presidency and distributing them across parliament, and devolving some responsibility to the 47 newly-established county governments.

Despite its pure presidential system, some supporters of the BBI have even argued that the 2010 constitution did not create an imperial presidency, that, in fact, it created a system of checks and balances on how the president should exercise his/her authority. In addition, the terms of reference for the Committee of Experts (CoE) who wrote the 2010 constitution were strikingly similar to those that, ten years later, were assigned to the BBI task force. Similar to BBI, the idea of building bridges and creating a national ethos had also been at the heart of the CoE’s mandate.

The constitutional draft that the CoE proposed (now Kenya’s constitution) not only received the popular vote during a referendum, but it also received the support of a broad section of the country’s political leadership, Raila and Uhuru included. What the 2010 constitution has not received since its promulgation is fidelity and adherence to its spirit.

A key weakness of constitutions the world over is their dependence on traditions put in place by human beings, which often makes them vulnerable to prevailing political interests. In Kenya’s case, the problem has never been a constitutional one in nature, but the result of deliberate efforts by Uhuru Kenyatta, and the Kibaki administration before him, to undermine the constitution and to reassert direct presidential control over devolution and over the other arms of government, the legislature and the judiciary.

I have written elsewhere about the significance of the reduction of the role of county governments by central government bureaucrats—the most significant structural change in Kenya since the 1960s—to simple units of administration and development, while minimising their political features. In this way, feelings of exclusion and marginalisation, underpinned by unaddressed historical injustices, have continued to exist despite constitutional change. Measures that would enable real participation in matters of governance and policy at the local level are frowned upon. Dismissed. Ignored.

Assertive County Governors are viewed as a nuisance that should go away. Responsibility over land administration, education, mega-infrastructure and parastatals has remained in the hands of the central government, and as such, under the direction of the presidency. In fact, matters of devolution have been domiciled within a national government ministry. Despite the establishment of a National Police Service Commission and an Independent Police Oversight Authority, police officers have continued to function outside the law with the express direction and support of higher-ups, with some shooting suspects dead in broad day light. President Uhuru Kenyatta has violated the constitution he wants to amend by refusing to swear in 41 judges appointed by the Judicial Service Commission. A resolution to the land question remains as distant as ever, despite the establishment of a National Land Commission.

These multiple assaults on the constitution and the law by executive fiat mean that it would be very difficult to remove an incumbent president from office through an electoral process, and in 2017 many paid the price of attempting to do so with their lives.

The question is, what has changed since then? Why has it become necessary to review or change a document that was written to avert the very conflict that the BBI task force was assigned to address? Also, should constitutional reform be prioritised when it’s not clear that the country is facing a constitutional moment but is in fact grappling with a global pandemic, an ailing economy, and a political leadership that has a penchant for behaving badly?

The theory

The theory of the “constitutional moment” refers to lasting constitutional arrangements that result from specific, emotionally shared responses to shared fundamental political experiences, or when there are unusually high levels of sustained popular attention to questions of constitutional significance. The constitutions of the United States, nineteenth-century Belgium, post-apartheid South Africa, and the Kenya 2010 constitution come closest to demonstrating this theory.

In the absence of a constitutional moment, a constitutional review usually serves other—more technical—goals and cannot be considered to be a fundamental choice regarding the political design of a country. One of the drawbacks of a constitution that emerges without the blessing of a constitutional moment is that it does not contribute to a sense of union, or the formation of identity, among the members of the society to which it applies.

In short, absent of a constitutional moment, the BBI is beginning to look, feel and behave like no more than a mere pact between the elite.

It is unlikely that the BBI will constitutionalise ordinary politics. Without popular enthusiasm for a new constitution, many Kenyans will perceive the plan to be no more than a pragmatic form of protection of the interests of the elite.

And this, since the handshake in 2018, is what has been taking place.

The problem

For Raila’s supporters, the BBI promises their leader a place in a future government. Uhuru’s supporters continue to be divided over the plan, as some remain suspicious of Raila’s intentions, and others believe that the BBI will consolidate Uhuru’s legacy at the end of his second term in office. For the supporters of the Deputy President, William Ruto, the BBI is meant to frustrate his efforts to succeed his boss come the next elections in 2022.

In an environment devoid of political trust, it is unlikely that the BBI will put an end to political tensions and instability in the country. In fact, a cursory survey of social media language during the COVID-19 pandemic reveals that extreme views and divisive political rhetoric are on the rise.

It is therefore more likely that the BBI will amplify the country’s ethnically polarised politics, setting the stage for future conflict. In this way, the BBI has quickly moved from building bridges to becoming the agent of their imminent destruction.

Kenya’s political class is yet again employing constitutional change as a tool to fight its traditional factional wars.

The results can only be disastrous.

The outcome

Raila Odinga, now BBI’s primary mover, has insisted that it is time to proceed to a referendum. Together with Uhuru Kenyatta, Raila has declared a second BBI report released on 21 October 2020 (the first was published on November 2019) to be final.

In his address to the Siaya County Assembly, Dr Adams Oloo, the BBI Steering Committee Vice-Chairperson and a close Odinga ally, intimated that only Uhuru Kenyatta and Raila Odinga have the final say on any further amendments to the document.

It is not clear whether it will be possible to complete the constitutional process in time for the embattled IEBC to effect the necessary changes ahead of the August 2021 referendum—which the IEBC estimates will cost Sh14 billion.

The electoral commission, whose term the BBI report has reduced from six to four years, has itself expressed reservations over the document.

Religious leaders and internally displaced people have also weighed in: the possibility of creating an imperial presidency and the fact that their concerns have not been addressed are, to them, key concerns. After promising the Pastoralist Parliamentary Group (PPG) that their concerns would be included in the document to be put to a referendum vote, Raila has backtracked, insisting that no changes will be introduced to the document after all.

The political struggles undergirding the BBI process have been laid bare. All language regarding consensus building has been thrown out. The main protagonists, in the wider race to succeed Uhuru Kenyatta in 2022, are Raila Odinga and William Ruto.

For the Ruto camp, a “Yes” vote in the referendum would be a disappointing measure of their popularity. For the Odinga camp, a delayed referendum would not leave them with much time to gauge Ruto’s and their own strength in the run-up to the 2022 polls.

Caught haplessly in the midst of these struggles, of course, are Kenyan citizens. They are now meant to forget that the Jubilee Administration had promised to tackle four big agendas –  affordable universal health care, food security, manufacturing and affordable housing –  now a near laughable prospect, given the ravages of the COVID-19 pandemic and the disastrous economic record that preceded it. A Jubilee politician has bragged that the BBI is a clever innovation to save the Big Four Agenda from completely turning to ash.

Broadly, the proposals of the second BBI report seem to have tightened control around the presidency. If successful, the president gets to appoint a prime minister from parliament who will also be the leader of the largest political party or the largest coalition of political parties. The president will also appoint two deputy prime ministers and cabinet ministers drawn from within and outside of parliament. The report has also recommended the disbandment of the National Police Service Commission and the creation of a National Police Council to be chaired by a cabinet Sscretary, that is, a presidential appointee. It has also established the office of an ombudsman within the judiciary, to be appointed by the president. A number of (early Christmas) gifts have been presented to various key players, perhaps as seductive (and useful) distractions from the proposed tyrannical changes.

Changing the 2010 constitution will not be easy given the high constitutional guardrails. It requires securing both a majority of the votes in a referendum and a majority of votes from members of the 47 county assemblies. In this way, the BBI report proposes an increase of the minimum revenue distributed to county governments from 15% to 35% of national revenue. Members of county assemblies will be allocated 5% of county revenue for a newly-created Ward Development Fund, modelled on the Constituency Development Fund. Businesses set up by young Kenyans will be tax-exempt for the first seven years of operation. The number of members of parliament has been increased, with an additional 27 new senators and 10 new members of the national assembly. The second runner-up in a presidential contest will be named the Leader of the Official Opposition, with a shadow cabinet, technical support and a budget.

All this is in complete disregard of the debt overhang that Kenya has found itself in since 2013. In fact, the external debt has grown by 15.6 per cent to Sh3.7 trillion between March and August 2020. Over the same period local debt expanded by 9.7 per cent to Sh3.4 trillion. The overall cost of running parliament is already 2 per cent of the national budget, and that of running the Executive has increased by 20 per cent over the last two years alone. As the government suspends health insurance for COVID-19 patients in the midst of a second, spiking wave, no one is talking about the possibility of the proposed referendum facing funding shortfalls.

In their response to the first constitutional draft that was published by the Committee of Experts in 2009, Kenyans cautioned against the creation of a bloated government—a concern that is still close to their hearts. This also means that Kenyans are not opposed to the existence of an opposition, per se, but that the loser of an election needs to feel that they have lost fairly. The dispute during every electoral cycle is usually over the sloppy manner in which elections are conducted, coupled with a high trust deficit often cultivated by politicians.

The solution, in my view, is to respect the law and cultivate a culture of constitutionalism. The Kenya 2010 constitution is not perfect, but it is also true that the leadership has not adhered to its letter and spirit.

Reviewing the constitution less than a decade after it was first promulgated may be right and proper, but one may ask, what is the constitutional moment this time?

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Dr Ngala Chome is a regular commentator on Kenyan politics and culture. His opinion pieces have been published d in Kenya’s The Standard and Daily Nation, influential online publications such as African Arguments, Foreign Affairs and the Elephant. His academic and policy research has been published in various policy reports and in peer-reviewed academic journals and edited volumes. He can be reached for comment at ngala.k.chome@gmail.com.

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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.

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Land Title and Evictions in the Supreme Court of Kenya
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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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South Africa Has to Heal Its Troubled Past – and the Time Is Now

If there is no material justice and investment in healing the generations of harm enacted onto South Africans, the rot in the country’s wounds will overcome them.

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South Africa Has to Heal Its Troubled Past – and the Time Is Now
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Social unrest”—though others may prefer “riots and looting,” “food riots,” or “insurrection”—have swept South Africa since Monday. It’s unsettled an already unsettled nation. And as with all South Africa’s heightened moments, our historic fault lines have been re-exposed. Racial and ethnic divisions, class antagonisms, xenophobia, questions of violence and its use. These are some of our wounds that have never been treated. Over the last decades we’ve covered them with patriotic bandages, unity slogans and surface-level performances of a shared national consciousness. But the wounds have opened again now, and as the country bleeds, the rot is open for all to see. Flashing moments tell an incomplete but tragic story of the reality unfolding in our country.

Impoverished communities with limited prospects, rejoice as they leave megastores with stolen food and essential resources. Elderly women are seen taking medication that they otherwise could not afford. A father exits a store with nappies (diapers) for his child. Families that have struggled with eating daily meals suddenly have food for a month.

Elsewhere, in the historically Indian community of Phoenix, an elderly man is surrounded by people from a nearby  informal settlement. He is commanded that he needs to hand over his home, or otherwise will face attacks on his family in the dead of night. In the night, drive-by shootings claim lives as stray bullets shatter family homes.

Armed Indian and white “vigilantes” drive around shooting African people they assume are looters. Hunting them down while recording vicious videos, beating them with sjamboks as the person begs for their lives.

These videos are shared and watched repeatedly across social media, racially charged viewers salivate with a carnal sense of pleasure as one racial group watches the other suffer and bleed.

At least 15 people are killed by armed community members of Phoenix. They blockade roads entering the community, racially profiling people, preventing them from access to functioning supermarkets. Bodies are found in the night. #PhoenixMassacre trends on twitter echoing disgust and outrage at the anti-black sentiment within the South African Indian community.

The home of Thapelo Mohapi, the spokesperson of Abahlali BaseMjondolo, the shack dwellers movement in KwaZulu-Natal that safeguards working-class interests, has his home burnt down on Wednesday morning. Mohapi, like most in Abahlali, is outspoken against ANC corruption and political violence in the country, with Abahlali members often the targets for political killings.

Shacks burnt down in response to the looting. Reports of xenophobic attacks by the rioters. Families terrified as gunshots break their windows. Small community stores torched. Blood banks and clinics ransacked. Essential foods become scarce, gas stations close.

The excitement of people getting access to expensive TVs, furniture, alcohol, and commodities they would not be able to access otherwise. Because in South Africa we know that nice things are reserved for a minority—and you either have to be crazy lucky and gifted, or crazy devious and connected, to escape the poverty cycle.

This is the status quo of our neocolonial, violent and divided country. Every snapshot from the riots reveals a new layer of a tragedy we’re all too familiar with but have made no substantial material effort to address to this point. And now the rot in our open wound has become septic.

In the midst of all this mess and complexity, many are now left trying to make sense of where they stand regarding these riots—with the mask of a shared national consciousness being ruthlessly peeled back — some who thought they understood their political standings are having to rethink their position after being thrust into a violent situation where racial and class perceptions pre-determine their position for them.

Orchestrated or Inevitable?

Acentral question on people’s minds is who is responsible for the unfolding events. How much of it is orchestrated as part of the #FreeZuma campaign that sparked this moment with former President Zuma’s arrest, and how much is simply an overflow from the desperate situation a majority of South Africans find themselves in. The reality is, of course, complex. Reports from activists on the ground and observers indicate the riots are likely made up of multiple forces.

Some are believed to be political agents of the pro-Zuma faction of the African National Congress ANC, using chaos to fight their battle against President Cyril Ramaphosa. These agents are known to have organized the initial demonstrations and are believed by some commentators to continue funding transport for rioters and operating in the background to hamstring the local economy. Some now attribute this orchestrated terror with the targeted burning of key distribution centers, factories, network towers, and trucks.

Others involved are not politically linked to a factional ANC agenda or desire to destabilize the country. They are there because the moment has presented families with access to food under dire circumstances and the opportunity for temporary relief from the dredges of poverty. One may say that their situation is being purposefully manipulated by political agendas, but the material reality of their situation is no less real. Individuals from well-known working class organizations that are strongly anti-ANC in all forms have reported taking part in looting as the moment allowed for sorely needed aid to struggling communities.

And of course, with any mass gathering, there are simply those criminal elements who use the moment with malicious intent, stirred by past and present grudges, looking to impose power and fear on those they see as “other.” Yet, these malicious sentiments exist on both the “sides” of the rioters and those responding to them. It is every person’s right and entitlement to defend themselves, their family, and personal property from harm against malicious forces. But much of this defence and protection of what is dear  has morphed into older desires to harm, dehumanize, and kill those considered “other.” How much of our violence in the name of defence is rooted in the historic rot we’ve left untreated from colonialism, apartheid, and a world that hates poor people?

Military intervention

Many are in support of the President Cyril Ramaphosa’s position that the army be deployed to quell the riots, looting, and violence. They argue for an armed, militant, and potentially lethal response.

Part of this rationale is in response to the signs of orchestration and mobilization by pro-Zuma political forces. As some of the actions show signs of being organized and targeted strikes, they will not subside organically and so the use of intelligence and organized force would be necessary to intervene. This tactical move acts in support of the President Cyril Ramaphosa and preserving the current status quo of South Africa.

The other reason is that the racial conflict between communities has reached such a heightened state that many fear an echo of the Durban Riots of 1949. With armed vigilantes enacting destruction, racial profiling, and vicious killing onto those they brand “looters”—  and the responsive revenge cycles this opens up—there can be no road that does not lead to further death. And right now there is no Steve Bantu Biko and his dear friend Strini Moodley to lead us back on the path towards a more human face.

However, even in the face of this leadership vacuum, military intervention is short sighted, ahistoric, and temporary at best. The wounds are all open now, the military cannot heal, only repress.

Ultimately the scale and intensity of these riots have very little to do with political infighting within the ANC and the tensions between communities could not be set alight if there was not already kindling of unresolved tensions. The material conditions of South Africa indicate that it’s been ripe for mass political uprising for years now. With grants cut under lockdown, youth unemployment over 70%, service delivery a mess or none existent, trust in government, media and political parties at record lows—there seems to be meagre hope for South Africans on the wrong side of the poverty line—and very little to lose.

Whether it’s an orchestrated plot by devious political agendas, a student throwing poop on a colonial statue or an increase in bread prices as was seen in South America—a spark is all that’s needed to set alight a desperate people.

The best case scenario with military intervention this time is further repression of people’s material frustrations. If people die, the situation becomes further inflamed. When the next spark goes off the riots will be more organized, with living memory of the injustices of this moment. And if not organized by our dysfunctional Left, it will be led by reactionary forces. Most dangerous of all is, as with other examples from history, as military forces play a greater role in a country’s internal policing, they become more used to enacting power over its populace, and ambitious autocrats rise up their ranks in military command.

With military intervention, we admit that the violence and death that will be enacted on the working class populace is worth a return to South Africa’s abnormal normal. The violence of this moment simply transferred back to those who held it silently a week ago.

Repression and military enforcement of a violent status quo is not the answer. Material conditions need to change, people need to be fed, grants need to be returned and our septic wounds that have laid open for centuries need urgent attention.

If there is no material justice and investment in healing the generations of harm enacted onto us—and by us—the rot in our wounds will overcome us. And we will become the rot.

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

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They Are Watching You: Israeli-Made Spyware Used to Monitor Journalists and Activists Worldwide

The use of spyware to surveil, harass, and intimidate journalists and activists — and those close to them has become a key activity for many governments worldwide.

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They Are Watching You: Israeli-Made Spyware Used to Monitor Journalists and Activists Worldwide
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In Hungary, Szabolcs Panyi exposed spy intrigue and murky arms deals. In India, Paranjoy Guha Thakurta probed the ties between business and political interests. In Azerbaijan, Sevinj Vaqifqizi caught vote-rigging on tape.

Separated by thousands of miles, these journalists have one thing in common: their governments considered them a threat.

All three were among dozens of journalists and activists around the world whose smartphones were infected by Pegasus: spyware made by Israeli firm NSO Group that is able to secretly steal personal data, read conversations, and switch on microphones and cameras at will.

The attacks were revealed by The Pegasus Project, an international collaboration of more than 80 journalists from 17 media organizations, including OCCRP, and coordinated by Forbidden Stories.

What Does ‘Selected for Targeting’ Mean?

The phones of Panyi, Thakurta, and Vaqifqizi were analyzed by Amnesty International’s Security Lab and found to be infected after their numbers appeared on a list of over 50,000 numbers that were allegedly selected for targeting by governments using NSO software. Reporters were able to identify the owners of hundreds of those numbers, and Amnesty conducted forensic analysis on as many of their phones as possible, confirming infection in dozens of cases. The reporting was backed up with interviews, documents, and other materials.

The strongest evidence that the list really does represent Pegasus targets came through forensic analysis.

Amnesty International’s Security Lab examined data from 67 phones whose numbers were in the list. Thirty-seven phones showed traces of Pegasus activity: 23 phones were successfully infected, and 14 showed signs of attempted targeting. For the remaining 30 phones, the tests were inconclusive, in several cases because the phones had been replaced.

Fifteen of the phones in the data were Android devices. Unlike iPhones, Androids do not log the kinds of information required for Amnesty’s detective work. However, three Android phones showed signs of targeting, such as Pegasus-linked SMS messages.

In a subset of 27 analyzed phones, Amnesty International researchers found 84 separate traces of Pegasus activity that closely corresponded to the numbers’ appearance on the leaked list. In 59 of these cases, the Pegasus traces appeared within 20 minutes of selection. In 15 cases, the trace appeared within one minute of selection.

The strongest evidence that the list really does represent Pegasus targets came through forensic analysis.

Amnesty International’s Security Lab examined data from 67 phones whose numbers were in the list. Thirty-seven phones showed traces of Pegasus activity: 23 phones were successfully infected, and 14 showed signs of attempted targeting. For the remaining 30 phones, the tests were inconclusive, in several cases because the phones had been replaced.

Fifteen of the phones in the data were Android devices. Unlike iPhones, Androids do not log the kinds of information required for Amnesty’s detective work. However, three Android phones showed signs of targeting, such as Pegasus-linked SMS messages.

In a subset of 27 analyzed phones, Amnesty International researchers found 84 separate traces of Pegasus activity that closely corresponded to the numbers’ appearance on the leaked list. In 59 of these cases, the Pegasus traces appeared within 20 minutes of selection. In 15 cases, the trace appeared within one minute of selection.

In a series of responses, NSO Group denied that its spyware was systematically misused and challenged the validity of data obtained by reporters. It argued that Pegasus is sold to governments to go after criminals and terrorists, and has saved many lives. The company, which enjoys close ties to Israel’s security services, says it implements stringent controls to prevent misuse. NSO Group also specifically denies that it created or could create this type of list.

But instead of targeting only criminals, governments in more than 10 countries appear to have also selected political opponents, academics, reporters, human rights defenders, doctors, and religious leaders. NSO clients may have also used the company’s software to conduct espionage by targeting foreign officials, diplomats, and even heads of state.

Based on the geographical clustering of the numbers on the leaked list, reporters identified potential NSO Group clients from more than 10 countries, including: Azerbaijan, Bahrain, Hungary, India, Kazakhstan, Mexico, Morocco, Rwanda, Saudi Arabia, Togo, and the United Arab Emirates.

Journalists and Activists in the Crosshairs

In the coming days, OCCRP and other Pegasus Project partners will release stories highlighting the threat of surveillance through misuse of NSO Group software around the world. But to start with, we will focus on some of the most egregious cases: the use of spyware to surveil, harass, and intimidate journalists and activists — and those close to them.

Among those on the list were multiple close relations of Jamal Khashoggi, the Washington Post columnist who was murdered and dismembered by Saudi operatives in the country’s Istanbul consulate. Forensic analyses show that Khashoggi’s Turkish fiancée, Hatice Cengiz, and other loved ones and colleagues were successfully compromised with NSO Group software both before and after Khashoggi’s 2018 killing. (NSO Group said that it has investigated this claim and has denied its software was used in connection with the Khashoggi case.)

Sandra Nogales, the assistant of star Mexican journalist Carmen Aristegui, was also targeted with Pegasus through a malicious text message, according to a forensic analysis of her phone.

Aristegui had already known that she was a Pegasus target. Her case was featured in a 2017 report by Citizen Lab, an interdisciplinary laboratory at the University of Toronto. Still, “it was a huge shock to see others close to me on the list,” Aristegui told The Pegasus Project.

“My assistant, Sandra Nogales, who knew everything about me — who had access to my schedule, all of my contacts, my day-to-day, my hour-to-hour — was also entered into the system.”

Several reporters in OCCRP’s network were among the at least 188 journalists on the list of potential targets. They include Khadija Ismayilova, an OCCRP investigative journalist whose uncompromising reporting has made her a target of the kleptocratic regime of the country’s president, Ilham Aliyev. Independent forensic analysis of Ismayilova’s Apple iPhone shows that Pegasus was used consistently from 2019 to 2021 to penetrate her device, primarily by using an exploit in the iMessage app.

Ismayilova is no stranger to government surveillance. Roughly a decade ago, her reporting led her to be threatened with compromising videos that she learned to her horror had been shot with hidden cameras installed in her home. She refused to back down, and as a result had the footage broadcast across the internet.

But even after this, Ismayilova was shocked by the all-consuming nature of her surveillance by Pegasus.

“It’s horrifying, because you think that this tool is encrypted, you can use it… but then you realize that no, the moment you are on the internet they [can] watch you,” Ismayilova said. “I’m angry with the governments who produce all of these tools and sell it to the bad guys like [the] Aliyev regime.”

Panyi and his colleague András Szabó, both OCCRP partner journalists in Hungary, also had their phones successfully hijacked by Pegasus, potentially granting their attackers access to sensitive data like encrypted chats and story drafts. As investigative journalists at one of the country’s few remaining independent outlets, Direkt36, they had spent years investigating corruption and intrigue as their country became increasingly authoritarian under the rule of Prime Minister Viktor Orban.

Now they found out that they were the story.

For Panyi, the descendant of Jewish Holocaust survivors, something stung in particular: that the software had been developed in Israel, and exported to a country whose leadership regularly flirts with antisemitism.

“According to my family memory, after surviving Auschwitz, my grandmother’s brother left to Israel, where he became a soldier and soon died during the Arab-Israeli war of 1948,” Panyi wrote in a first-person account of learning he had been hacked. “I know it is silly and makes no difference at all, but probably I would feel slightly different if it turned out that my surveillance was assisted by any other state, like Russia or China.”

The alleged surveillance list includes more than 15,000 potential targets in Mexico during the previous government of President Enrique Peña Nieto. Many were journalists, like Alejandro Sicairos, a reporter from Sinaloa state who co-founded the journalism site RíoDoce. Data seen by The Pegasus Project show Sicairos’ phone was selected as a target for NSO Group’s software in 2017 shortly after his colleague, prominent journalist Javier Valdéz, was shot dead near RíoDoce’s office.

Others on the list were regular people thrust into activism by Mexico’s chaos and violence. Cristina Bautista is a poor farmer whose son, Benjamin Ascencio Bautista, was one of 43 students abducted in Iguala, in the Mexican state of Guerrero, in 2014 and remains missing until this day. The case shook Mexican society to its core and prompted Bautista and other parents to take to the streets in protest, and to assist independent experts in their own investigations.

The vocal stance taken by Bautista and other parents put them directly in the sights of Mexican authorities and Peña Nieto, who denounced the protests as destabilizing the country.

“Oh yeah, they were watching us! Whenever we went, a patrol followed us,” she said.

“They were chasing us.”

A “Natural Tool” for Autocrats

While The Pegasus Project exposes clear cases of misuse of NSO Group’s software, the company is just one player in a global, multi-billion-dollar spyware industry.

Estimated by NSO managers to be worth approximately $12 billion, the mobile spyware market has democratized access to cutting-edge technology for intelligence agencies and police forces that, in years past, could only dream of having it.

“You’re giving lots more regimes an intelligence service,” said John Scott-Railton, a senior researcher at Citizen Lab. “Like a foreign intelligence service in a box.”

Like many private spyware companies, NSO Group’s stock in trade is so-called “zero-day exploits” — previously undiscovered flaws in commercial software that can allow third parties to gain access to devices, such as mobile phones. Pegasus and other top tools enjoy a particular strength: They are often able to infect devices silently, without the user even having to click a link.

Such tools have given governments the edge amid the widespread adoption of encrypted messaging applications, such as WhatsApp and Signal, which otherwise supposedly allow for users to communicate beyond the reach of state surveillance. Once devices are successfully compromised, however, the contents of such apps become readily available, along with other sensitive data like messages, photographs, and calls. Meanwhile, the ubiquity of mobile phone cameras and microphones means they can be easily accessed by spyware clients as remote recording devices.

While The Pegasus Project exposes clear cases of misuse of NSO Group’s software, the company is just one player in a global, multi-billion-dollar spyware industry.

“In order to bypass [encrypted messaging] you just need to get to the device at one or the other end of that communication,” said Claudio Guarnieri, head of Amnesty International’s Security Lab. Pegasus does just that. “Pegasus can do more [with the device] than the owner can. If Signal, for example, encrypts the message… [an attacker] can just record using the microphone, or take screenshots of the phone so you can read [the conversation]. There is virtually nothing from an encryption standpoint to protect against this.”

In fact, there isn’t much anyone can do to protect themselves from a Pegasus attack. Guarnieri is skeptical of applications that claim they are completely secure, and instead recommends mitigating the risks of spyware by practicing good cybersecurity hygiene. “Make sure to compartmentalize things and divide your information in such a way that even if an attack is successful, the damage can be minimized.”

At its heart, The Pegasus Project reveals a disturbing truth: In a world where smartphones are ubiquitous, governments have a simple, commercial solution that allows them to spy on virtually whoever they want, wherever they want.

“I think it’s very clear: Autocrats fear the truth and autocrats fear criticism,” said Scott-Railton of Citizen Lab.

“They see journalists as a threat, and Pegasus is a natural tool for them to target their threats.”

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