Connect with us

Op-Eds

The Militarisation of US/Africa Policy: How the CIA Came To Lead Deadly Counter-Terrorism Operations in Kenya

12 min read.

US and Kenyan diplomatic and intelligence officials tell Declassified UK why the CIA set up a covert paramilitary counter-terror team, how it flies recruits to the US for special training, and why Britain helps gather intelligence on targets.

Published

on

The Militarisation of US/Africa Policy: How the CIA Came To Lead Deadly Counter-Terrorism Operations in Kenya
Download PDFPrint Article

Republication courtesy of Declassified UK / the Daily Maverick. First published by Declassified UK on 28 August 2020.

A CIA-backed paramilitary police unit uncovered by Declassified UK – known as the Rapid Response Team (RRT) – is at the heart of US efforts to combat terrorism in Kenya. The revelations come as deaths of US military personnel in an attack by the al-Shabaab terrorist group earlier this year on a base in northeast Kenya, are refocusing attention on America’s expanded military and intelligence footprint in Africa.

The story behind the RRT’s development, from a nascent force initially designed to undertake renditions of high-value or high-risk terror suspects, to the go-to tactical counter-terror team in Kenya behind a number of controversial killings, has been recounted to Declassified by US and Kenyan diplomatic, intelligence and paramilitary personnel.

The RRT team’s establishment dates back to 2004, long before Kenya had become embroiled in Somalia’s civil war and al-Shabaab had begun attacks inside Kenya.

Henry Crumpton, who served as deputy chief of operations at the CIA counterterrorism center and retired as State Department counterterrorism coordinator in 2007, said the “imperative” to take a more aggressive stance against Islamist extremists in East Africa emerged in the late 1990s.

“We [the CIA] didn’t really get a wake-up call until August 1998,” Crumpton told Declassified, referring to the twin bombings that month at the US embassies in Kenya and Tanzania that killed over 200 people, including 12 US citizens.

“I think it’s important to note what happened in August of ‘98 because Kenya has been on the frontline. If you go back further; if you look at the attacks against US forces in Somalia [in 1993] and before that even, I think that US policymakers and leaders and certainly citizens don’t remember or know or appreciate the role Kenya has played going back to the nineties,” Crumpton said.

Michael Ranneberger, the US ambassador to Kenya during 2006-2011, agreed the country was and remains a pivotal player in the fight against al Qaeda-aligned militants.

“Kenya is a strategically very important country for the United States. Not just in terms of the fight against terrorism, but its location on the East African coast – with the largest [US] embassy in Africa and one of the largest in the world – and that’s because we do a lot of our regional activity from that embassy,” he said.

After the 1998 bombings, the director of the CIA’s new counterterrorism centre, Cofer Black, began taking “a much more aggressive view” of the agency’s approach to its relationships with African law enforcement agencies, Crumpton said.

“If you look at how the CIA approaches liaison relationships, in the late ‘90s it really accelerated beyond just gathering information, and rapidly evolved into integrated operations,” said Crumpton, who led CIA operations in Afghanistan in 2001-2002.

By 1998, Crumpton had been seconded by the CIA to deputy chief of the FBI’s international terrorism operations section. Facing a terror case in the US involving a Somali suspect, he recalled reaching out to his Kenyan partners for help.

“They sent us a Kenyan policeman – ethnic Somali – who was integrated into the FBI investigation, which was of enormous help. And that was just a small step in what would become a rapidly intimate relationship among intelligence and law enforcement officials, where it’s not just sharing information, it’s really integrated operations,” Crumpton explained.

“There are hundreds if not thousands of examples of this type of deep cooperation.”

One key US figure tasked with developing the diplomatic groundwork for the integrated operations in Kenya was William Bellamy, US ambassador to the country from 2003-2006.

The covert Kenyan Rapid Response Team (RRT) was established as part of the CIA’s “intimate integration” programme to train and manage local paramilitaries in terrorism hotspots around the globe

Bellamy recalled arriving in the Kenyan capital Nairobi feeling that the country was “a high-value target for al-Qaeda in East Africa”. Increasingly concerned about the possible spread of terrorism across the region, the US government set aside a “large pot of money” for counter-terrorism assistance, Bellamy told Declassified.

However, he added that efforts to persuade the Kenyan government’s law enforcement and military agencies to buy into America’s war on terror proved “a real hard sell”. The police and military agencies were beset by “too much interagency rivalry and suspicion” and, to the former ambassador’s “biggest frustration”, a proposed multi-agency centre for counter-terrorism never got off the ground.

Another former senior CIA official with knowledge of Kenyan counter-terror operations at the time recalled: “Western governments were throwing a lot of resources at the Kenyans. That [extremism] was something we were all trying to get ahead of and not allow al-Qaeda or any other successor groups to get a foothold there.”

The former official added: “We were definitely trying but I think the Kenyans were a little reluctant, and I think that was just because they knew it would be a rough fight… Now it seems it’s like a whole government strategy.”

Former Kenyan Foreign Minister and Vice President, Kalonzo Musyoka, explained: “Kenya’s positioning, when I was foreign minister [2003-2004], was that of absolute neutrality in the regional conflicts… that’s why we were trusted with the role of mediation. We had taken a view that as a frontline state with a 1,800km border with Somalia, which is unpatrolled, we would be making a mistake to engage directly by sending our troops into Somalia.”

Despite the difficulty faced by former ambassador Bellamy in dealing with his Kenyan counterparts, their National Intelligence Service (NIS, then known as NSIS) was nonetheless eager to develop counter-terrorism collaboration, and was the CIA’s liaison for the development of integrated operations.

Establishing the covert team

The unit that would later become the Rapid Response Team (RRT) was a product of this outreach. Part of a secret CIA programme to train and manage local paramilitaries in numerous hotspots around the globe, from Afghanistan to Georgia, the team began with just 18 officers – dubbed ‘Team 18’ – who were selected by Kenyan police and intelligence to receive elite training in the United States.

A former senior US government official with knowledge of the RRT’s establishment said, “On something of this sensitivity and this importance… we would need to run it through the Agency [CIA] and through [Kenya’s] NIS.”

NIS, with extensive links to Britain’s MI6, were “professional, capable, serious people. And they were our best partners, the most reliable partners”, the former senior official said.

The new recruits to the RRT, who would become Kenya’s first paramilitary police squad dedicated primarily to counter-terrorism operations, were then flown to training facilities in the US. Landing at Dulles International Airport in Washington DC, the CIA handlers advised the RRT trainees to tell immigration officials they were visiting the country on a sports scholarship.

From there, the men were flown to a further destination and driven in buses with blacked-out windows so the trainees could not determine the location.

Though the recruits never found out where they were being trained, multiple RRT officers said they believed their initial training, and successive courses, took place at Annapolis Naval Academy in Maryland. One former senior US official with direct knowledge of the programme told Declassified it was also likely that, at one point, trainees were taken to the CIA’s training facility at Camp Peary, near Williamsburg in Virginia, also known as ‘The Farm’.

One former RRT officer recalled asking his CIA handler why they did not want the trainees to know their location in the US. “We have good intentions and do not act in bad faith. But the United States is not prepared to repeat its errors with Osama bin Laden,” the CIA handler is said to have responded, referring to mistakes made in providing covert assistance to Afghan mujahideen in the 1980s.

On arrival at the facility, the men received training from CIA contractors, former special operations forces and SWAT team members of the US police, in tactical operations, close-quarter combat, weapons handling, reconnaissance, surveillance and intelligence gathering.

RRT commandos have been flown to Maryland, US, for SWAT-style training, under cover of sports scholarships

Following their first and second courses in 2004, titled “Renditions Operations Training” and “Disruption Operations”, the commandos were formalised as the Rapid Response Team. But by then the new unit’s nickname – the “Renditions Team” – had already stuck among the few who knew it existed.

RRT members are part of the special operations-oriented Recce Company of the Kenyan paramilitary police’s General Service Unit (GSU). At their headquarters in Ruiru near Nairobi, they enjoy privileged status. Exclusive training facilities, such as ‘Michelin House’ – a mock terrorist hideout used for conducting entry drills – were financed by their US embassy liaison, multiple RRT officers said.

However, owing to the sensitivity of their operations, RRT officers were not permitted to reside in the same quarters as other teams in the GSU’s Recce Company. This included other ‘special teams’, such as the US State Department and FBI-supported Crisis Response Team (CRT), which specialises in surveillance and hostage rescue, and which sometimes supports the RRT on tactical operations.

“Specialised units are needed to deal with extraordinary situations, such as hostage-taking and terrorist activity,” former US ambassador Michael Ranneberger said.

He added, “We do that in a lot of countries, where we will identify a GSU [RRT]-like unit, a special unit [to work with]. Or if they don’t exist, we sometimes help establish such units and then provide the training.”

Target development

In the first few years after its founding, the RRT carried out relatively few offensive counter-terror operations. Although Kenya’s intelligence service, the NIS, and Kenya’s  Anti-Terrorism Police Unit (ATPU) “knew they had some bad people” in Kenya, as one former CIA official put it, political leaders were initially reluctant to be drawn into the US war on terror.

Former US ambassador William Bellamy agreed, noting, “When I was in Kenya we probably spent 70% of counter-terrorism [work] on good intelligence work with the Kenyans.”

Explaining why the RRT was relatively dormant in its first few years, the former CIA counter-terrorism official said that targets were often operating below the radar.

“We try to stick, on certain levels, on many levels, within the law. I think that’s why you didn’t see much [action from RRT], because certain targets were either very deep cover and you weren’t able to make a case on them, and once you started getting a little more clarity on the cases and being able to take these suspects down for violations, that’s when you started seeing the Rapid Response Team get more active.”

The few counter-terror operations undertaken by the RRT in its first years were focused on the capture and subsequent rendition of terror suspects.

RRT officers would be summoned to Wilson Airport in Nairobi, briefed by CIA paramilitary liaison officers on their objectives, and then flown to their destination, which was often in Kenya but, on some occasions, included Somalia, former RRT officers and US officials confirmed.

The former senior CIA official recalled watching Kenyan clerics becoming radicalised by videos emerging from Iraq, particularly those of the then leader of al-Qaeda in Iraq, Abu Musab al-Zarqawi. “When the Zarqawi videos started popping up in Kenya, I was like ‘oh shit… here come the takfiris,” he said, referring to militant jihadists.

By 2006 Kenya’s NIS had developed intelligence liaison cells dedicated to working with the CIA, Britain’s Secret Intelligence Service (SIS, also known as MI6) and Israel’s external spy agency, Mossad, multiple US and Kenyan intelligence sources told Declassified.

In later years, Mossad would assist in forming, training and providing weapons to a separate Recce squad ‘special team’, composed partly of former RRT and CRT officers, known as the Special Anti-Terror Team (SATT), a team dedicated to VIP protection and covert patrols of Kenya’s five-star hotels.

Alongside the CIA, MI6 helped Kenya’s NIS with target development, bringing together and analysing the various sources of intelligence to prioritise the greater threats.

The former CIA counter-terrorism official said the four pillars of the CIA and MI6 relationship with Kenyan intelligence were “training, mentorship, lead by example… and pressing”.

“When we talk about pressing a liaison partner, that is together [as the CIA and MI6]. We are working together with our liaison partner [NIS] to get things done. We’re meeting with SIS [MI6] and saying, ‘Hey here’s what we’re doing on this case’, you know, this is how we’re trying to push them, ‘we’re giving them this’ and they [MI6] would respond in kind.”

The former official added: “There were British-centred cases, there are US-centred cases, and I think on both sides, and in parallel, we’re all giving them training, equipment and money etc – I won’t talk about the amounts – to try and get it done, and then have oversight.”

One of the RRT’s major coups occurred in August 2009 when Kenyan and Western intelligence agencies detected a plot to stage simultaneous attacks on three hotels in Nairobi, one of which was to be visited by then US Secretary of State, Hillary Clinton. A subsequent operation, driven by the CIA and NIS, pinpointed the location of suspects who were then captured by the RRT.

Out of gratitude to Kenyan intelligence, and “to bolster what we thought was already a pretty good relationship”, five months later then CIA chief Leon Panetta paid a secret visit to Kenya to meet with Michael Gichangi, then NIS director, a former US official familiar with the meeting recalled.

“Gichangi was absolutely a world-class spymaster. He did a great song and dance. A very polished guy, very glib. He gave a great presentation,” the former official said. With a successful meeting for the visiting CIA director, the former official continued, “The outcome was, let’s push ahead, let’s try to deepen this, let’s try to do more.”

 ‘Let’s go get ‘em’

Less than six months after this meeting, the US would come to heavily rely on its Kenyan intelligence partner, and the RRT commandos, amidst fall out from one of the worst terrorist attacks to hit the region in recent history.

On 11 July 2010, football fans had gathered to watch a World Cup match in Uganda when militants bombed a restaurant and rugby club, killing 74 people. Somali militant group Al-Shabaab publicly claimed responsibility, calling the attacks retaliation for Uganda’s involvement in a UN-backed military mission to protect the Somali Transitional Federal Government.

In response to the attack, Kenyan intelligence and police snatched multiple suspects across the Horn of Africa. Press coverage of these operations tended to pinpoint Kenya’s Anti-Terrorism Police Unit (ATPU) as being responsible. But while the ATPU was involved in some operations, those deemed high-risk or high-value were led by the RRT, at times with CRT support, officers from both teams confirmed.

A plot to kill Hillary Clinton was foiled by the CIA-backed Kenyan paramilitary team

Around 2010, al-Qaeda-inspired militants began targeting tourist sites in Kenya, killing civilians and abducting tourists, and the political barriers to taking action evaporated.

“I think that’s when the Kenyans said ‘this isn’t just about America. We have to do something because they’re hitting us too’,” the former CIA counter-terrorism official said.

Former Kenyan vice president, Kalonzo Musyoka, said that at the time, “The position was taken by the NSC [Kenya’s National Security Council] to exercise the right of ‘active pursuit’, because that [terrorism] was seen to harm our tourism industry,” he added, having served on the Council as deputy president during 2008-2013.

As Kenya waged war against al-Shabaab outside its borders, domestically its covert war on terror suspects was also ramping up, the former CIA counter-terrorism official said. “Once they [Kenya] got on board [with the war on terror], the Recce [RRT] team gets busy… People that were long time targets; they get taken down.”

He added: “Remember, you’ve been building this capacity since ‘02 and in some cases the first work started after ’98. They [RRT] have got some of the best training in the world, some of the best tools, so they start getting active. In some cases they did, some of those targets were cross-border and some of them were inside Kenya.”

The former official continued: “They [RRT] have got the discipline, they’ve got the techniques… and then you’ve got your US advisors [to the RRT], your British advisors [to NIS] and now it’s like ‘hey guys, let’s go get ‘em’. That’s what you started seeing in terms of ‘let’s go get ‘em’.”

But when a target travels into Somalia, “that’s his ass”, the former official added, referring to the deadly US programme of drone strikes, backed by special force raids.

‘Less constraint’

Kenya’s burgeoning role in regional counter-terrorism in this period was shown most clearly by one target who was eventually captured by RRT operatives and is currently serving a jail sentence.

Brought up Catholic in western Kenya, Elgiva Bwire Oliacha converted to Islam in 2005, changing his name to Mohamed Seif. Though Bwire’s journey into radicalisation is not extensively known, in 2009 he made his first attempt to join militants in Somalia, only to be thwarted by Kenyan police.

Reports claim that he eventually reached Somalia two years later, and received training from militants on how to use small arms and stage terrorist attacks. Two months after his return to Kenya, Bwire is said to have recruited others to conduct those attacks.

On 24 October 2011, after receiving intelligence that Bwire had led a grenade attack on a bus stop in Nairobi, killing six and injuring dozens more, RRT commandos descended on Kayole, one of Nairobi’s densely populated neighbourhoods. They captured Bwire, along with a cache of grenades, assault rifles and over 700 rounds of ammunition.

But ATPU officers failed to claim the arrest, as was normal practice, an RRT officer familiar with the operation recounted, forcing personnel from the paramilitary unit to make a rare appearance in court and testify that they had captured Bwire.

Unused to appearing publicly, and fearing cross-examination, an RRT officer recalls anxiety at seeing someone from the unit having to make the court appearance. “Nobody knew [about] our existence, which was good [for] us”, the officer said. However, even though RRT officers appeared in court, few questions were asked about the RRT itself.

There are US laws governing which foreign security services US government bodies can partner with. These include the Leahy Law, which requires human rights vetting of units slated for assistance, training or equipment. But the law only applies to the US military, the State Department and law enforcement agencies, former Washington director at Human Rights Watch, Sarah Margon, said.

Robert Etinger, former deputy general counsel at the CIA, told Declassified in an email that the law does not apply to the intelligence community.

A former senior US official based in Africa, who had knowledge of Kenyan counter-terrorism operations, explained that programmes such as those supporting the RRT are run through the CIA, in part to avoid domestic legal restrictions.

“The Leahy amendment prevents the US from training anybody [we want] that’s going to be useful to us in [offensive] anti-terrorism endeavours,” said the former official. But “friends from across the aisle, the intelligence community, don’t have similar restrictions”.

Had the CIA been required to vet the Kenyan RRT under the terms of the Leahy Law, it may have faced difficult questions about the General Service Unit, the RRT’s parent police unit from which its commandos are selected. One leaked US diplomatic cable from 2009 noted allegations that the GSU “is involved in committing serious human rights abuses, including extrajudicial killings”.

The classified RRT programme is run through the CIA in part to avoid legal restrictions, it is claimed

Former CIA deputy Crumpton disagreed that Leahy Law-related “bureaucratic reasoning” was why the CIA leads counter-terrorism operations in Kenya. Instead, he said, “this conflict, against al-Qaeda and ISIS [Islamic State] and affiliates, is fundamentally driven by intelligence”.

The CIA’s relationship with the RRT endures under Donald Trump’s presidency, US officials and RRT commandos confirmed.

A senior State Department official with knowledge of the CIA-RRT liaison explained: “The relationship goes back some way and we keep reinvesting in them because of that perception that we have, that they are somewhat more professional than the rest of the police.”

But under Trump, its operations are even less constrained than before, according to US officials. The CIA, and the paramilitary teams it supports, would encounter little criticism from the White House, a former senior CIA counter-terrorism official said.

“At the end of the day, Trump is not going to castigate them for violating human rights.”

He added: “You can brief Trump and tell him ‘the Kenyans just went and killed five targets unilaterally’ and Trump’s going to be like ‘and your point is? These are bad guys right?’

“So I think that if you’re the Agency [CIA], you’re going to keep working and hope the Kenyans keep trying to take down your targets in a way that is palatable.”

A former senior State Department official based in Africa agreed. “I would certainly think the Kenyans would feel under much less constraint, in terms of how they operate, than they ever did before under previous administrations.”

Grant Harris, a former special assistant to former president Barack Obama and senior director for African affairs between 2011-2015, told Declassified: “What we’re seeing now in the Trump administration is… less emphasis on governance, on human rights, on economic growth and development and a greater emphasis not just on security issues, but specifically counterterrorism and security tools.”

He added: “I’m very concerned this is militarising US-Africa policy, across the continent, in East Africa and elsewhere.”

Read Part 1 of this investigation here.
Read Part 3 of this investigation here.

Support The Elephant.

The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.

Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.

By

Namir Shabibi is a British investigative journalist who has written and produced documentaries for the BBC, VICE News and The Bureau of Investigative Journalism, among others. Declassified UK is an investigative journalism organisation that covers Britain’s role in the world.

Op-Eds

BBI and Kenya’s Finest Jurists

For Mr. Kenyatta and Mr. Odinga, the dim prospects of the Bill process could upend any succession plans they have hatched together. Political analysts believe that Mr. Kenyatta could back Mr. Odinga for the presidency next year against Mr. Ruto.

Published

on

BBI and Kenya’s Finest Jurists
Download PDFPrint Article

On May 13 this year, a five-judge bench of the Kenya High Court struck down a state effort to amend Kenya’s 2010 Constitution. With the possible exception of the 2017 ruling of the Supreme Court of Kenya overturning the re-election of Mr. Uhuru Kenyatta – a first for Africa – no judicial opinion has been more consequential. The ruling struck like a thunderbolt and upset Mr. Kenyatta’s legacy, and possibly upended his succession plans. It is not an exaggeration to say that Mr. Kenyatta has pegged his tenure on the fate of the Building Bridges Initiative (BBI), a project ostensibly designed to rid Kenya of perennial electoral violence, rampant corruption, and ethnic and sub-national exclusion and marginalization.

From the “Handshake” to BBI

In 2017, Mr. Kenyatta sought re-election against a strong challenge from Mr. Raila Odinga, without doubt Kenya’s key opposition figure. Mr. Odinga had run against pro-establishment candidates before, each time coming up short. On several of those occasions, Mr. Odinga had claimed fraud and ballot-stuffing. But each time, he was eventually declared the loser. That pattern repeated itself in 2017. Citing irregularities, the Supreme Court annulled that election and ordered a fresh vote. Mr. Odinga boycotted the re-run, assuring Mr. Kenyatta of victory. Mr. Odinga refused to concede and swore himself in as the “people’s president.” Deadly violence, often with ethnic undertones, broke out. The economy was paralyzed. Then on March 9, 2018, Mr. Kenyatta and Mr. Odinga shocked the nation by declaring a truce.

The rapprochement between Kenyatta and his archrival Mr. Odinga came to be known as the “Handshake.” Out of it grew BBI, which they termed a historic initiative to right Kenya’s past wrongs and firmly put it on an irreversible path to full citizenship and belonging for all its diverse peoples. Mr. Kenyatta and Mr. Odinga unilaterally appointed the Building Bridges Initiative Task Force, a fourteen-member body composed mainly of status quo apparatchiks and politicians. In October 2020, the task force released its report and a constitutional amendment bill. Articles 255-257 of the Constitution provide for the process of amending the Constitution through a referendum after approval by Parliament and a simple majority of Kenya’s 47 counties.

In March 2021, Parliament approved the BBI bill. However, groups of NGOs and citizens sued the State, the legislature, and the Kenya’s Independent Electoral and Boundaries Commission (IEBC) to stop them from conducting the referendum. The suit alleged, inter alia, that the process of the BBI was illegal and unconstitutional. It argued that the BBI bill would usurp the sovereignty of the people and abridge the constitution. They submitted further that Parliament was powerless to pass bills that would negate the “basic structure” doctrine which allows only the people – not the legislature – to fundamentally alter the basic logic and architecture of the constitution. This last point was a novel one in Kenyan jurisprudence because no one had hitherto invoked it in live proceedings.

Kenya’s Finest Jurists

Sitting at the High Court in Nairobi to hear the petition were arguably Kenya’s finest jurists. The bench was led by Presiding Judge Joel Ngugi. Justice Ngugi, a Harvard-trained academic, had been a professor of law at the University of Washington School of Law in Seattle, one of America’s finest law schools. He is also a reputable member of the school of thought known as TWAIL, or Third World Approaches to International Law. He is recognized as a leading intellectual in Kenya and elsewhere. Early in his judicial career, he led the Judiciary Transformation Institute (JTI) when Dr. Willy Mutunga was Chief Justice in 2012-2016. His judicial rulings have been original, progressive, and stretch the scope of human rights.

Justice Ngugi was joined on that bench by four other judges, including Justice George Odunga, a leader in expanding the rights of the citizenry against an illiberal state bend on curtailing the rule of law. Justice Odunga is one of a small cadre of brilliant and courageous judges who are leading a judiciary long held captive by executive overreach and corrupt cartels to a more independent posture. The others on that bench – Justices Chacha Mwita, Teresia Matheka, and Jairus Ngaah – have themselves been lauded for standing up to an executive prone to the abuse of power. The bench had been appointed by former Chief Justice David Maraga, who had often clashed with Mr. Kenyatta for failing to carry out court orders.

The ruling was a shocker when it came down. In a scathing – even disdainful – ruling, the judges uprooted tree, stem, and branch of the entire BBI process. The bottom line was that the judges viewed the whole BBI process as the fruit of a poisoned tree, and therefore wholly unsalvageable as a constitutional matter. In a tongue lashing the likes of which Kenyans were unaccustomed to, the court laid waste to every one of the basic arguments for the BBI initiative. After the five-hour ruling, there was hardly anyone who thought the BBI project could be revived. Its proponents were shell-shocked, and its opponents supremely elated. The state and the initiative’s backers have gone to the appeals court to reverse the ruling.

A Jurisprudential Milestone

Several of the court’s findings deserve special attention. The court agreed with the petitioners that the BBI initiative was irregular, illegal, and unconstitutional. First, in the televised ruling, the judges held that Mr. Kenyatta had failed the integrity test of leadership and violated the norms contained in Chapter Six of the Constitution. This is significant because no one should hold office – and is liable to impeachment if they do – once they are found in violation of Chapter Six. It is not clear what the political implication for Mr. Kenyatta is on this finding. But the judges warned that Mr. Kenyatta could be sued in his individual capacity. The import was to pull the moral rug from under him.

Secondly, the judges rubbished the five million votes collected from citizens by the BBI task force to support the referendum push. They ruled that the initiative was not started, or led, by citizens. The court ruled that only the people, not the government, can initiate and conduct a process to amend the constitution through a referendum. In other words, the state cannot hide behind a murky process to take away the people’s will.

Thirdly, the judges held that the IEBC – several of whose members had resigned – was not properly constituted and therefore lacked quorum to conduct any legal business. As such, any decisions that the IEBC had taken, or would take, on the BBI process were null and void.

Fourth, the court ruled that only a people-driven initiative (exercising constituent authority) as opposed to a state-driven exercise (exercising constituted authority) can change the fundamental architecture of the Constitution. Thus, the “basic structure” doctrine prohibits the state from taking a machete to the Constitution and mutilating its foundational assumptions, norms, and basic edifice. The larger meaning of this finding is a jurisprudential milestone for Kenya because it disallows the piecemeal and selfish amendments to the constitution by Parliament in cahoots with the executive. It says only the people have the power to fundamentally reconstitute the state either through enacting a wholly new constitution, or carrying out deep reforms of the extent one. This preserves the notion of popular sovereignty.

Fifth, the court held that Parliament did not have the power to allocate 70 more constituencies in the BBI bill. The judges ruled that only the IEBC – and no other entity – could allocate new constituencies. The largest share of these additional constituencies were allocated to Mr. Kenyatta’s Kikuyu ethnic strongholds as way of enticing his supporters to support BBI. Mr. Kenyatta has been locked in a battle of supremacy in his backyard against Mr. William Ruto, the Deputy President. Mr. Kenyatta had vowed to support Mr. Ruto, a Kalenjin, as his successor, but then reneged. Mr. Ruto then went behind Mr. Kenyatta’s back to peel away a large chuck of the Kikuyu electorate and turn it against BBI.

Do or Die

For now, the state and the backers of the BBI bill have gone to the Court of Appeal seeking to overturn the High Court’s historic ruling. It is anyone’s guess what the appellate process will yield. Anything is possible given the capture of large sections of the judiciary by the executive. The appeal could result in a reversal in whole, or in part, of the High Court ruling. Or it could wholly reaffirm the lower court’s ruling. One thing is undeniable – it is now an open question whether a referendum is even feasible given the election calendar in 2022. Time may simply run out on the BBI clock. Mr. Ruto and his supporters have celebrated the court’s ruling.

For Mr. Kenyatta and Mr. Odinga, the dim prospects of the Bill process could upend any succession plans they have hatched together. Political analysts believe that Mr. Kenyatta could back Mr. Odinga for the presidency next year against Mr. Ruto. The BBI agenda could’ve been an important calculus in that matrix. One of its proposals was to expend the executive to include a prime minister and two deputy prime ministers. These offices would have been an important carrot to bring on board a broader ethnic coalition of major communities to support Mr. Odinga. It is clear that Mr. Kenyatta and his family and political orbit cannot risk a Ruto presidency because of the bad blood between the two men. BBI for him is a do or die proposition. Will the courts rescue, or sink, him?

This article was first published in Verfassungsblog.

Continue Reading

Op-Eds

India’s COVID-19 Surge Is a Warning for Africa

The surge in COVID-19 cases in India, spurred by a more transmissible variant and complacency, provides a stark warning to African populations to remain vigilant to contain the pandemic.

Published

on

India’s COVID-19 Surge Is a Warning for Africa
Download PDFPrint Article

India has been grappling with a deadly COVID-19 surge that hit the country like a cyclone in early April. Within a month, new daily cases peaked at over 400,000. On May 19, India set a global record of 4,529 COVID-19 deaths in 24 hours. Over 500 Indian physicians have perished from COVID since March. The actual figures on these counts are likely to be much higher due to testing limitations. Conservative estimates indicate India has experienced over 400 million cases and 600,000 deaths overall.

India’s hospitals are overflowing with patients in the hallways and lobbies. What hospital beds are available are often shared by two patients. Thousands more are turned away. Entire families in the cities are falling ill, as are whole villages in some rural areas. Countries in the region, such as Nepal, Thailand, and Malaysia, have also experienced a sharp uptick in cases fueled by the highly transmissible Indian variant.

India’s surge is also remarkable considering the country largely avoided the worst of the earlier stages of the pandemic.

India’s COVID-19 surge is a warning for Africa. Like India, Africa mostly avoided the worst of the pandemic last year. Many Sub-Saharan African countries share similar sociodemographic features as India: a youthful population, large rural populations that spend a significant portion of the day outdoors, large extended family structures, few old age homes, densely populated urban areas, and weak tertiary care health systems. As in India, many African countries have been loosening social distancing and other preventative measures. A recent survey by the Africa Centres for Disease Control and Prevention (Africa CDC) reveals that 56 percent of African states were “actively loosening controls and removing the mandatory wearing of face-masks.” Moreover, parts of Africa have direct, longstanding ties to India, providing clear pathways for the new Indian variant to spread between the continents.

So, what has been driving India’s COVID-19 surge and what lessons might this hold for Africa?

The Indian Variant Is More Transmissible

In February, India was seeing a steady drop of infections across the country, and life was seemingly returning to normal. Unfortunately, this was just a calm before the storm. That same month, a new variant, B.1.617, was identified in the western state of Maharashtra, home to India’s largest city of Mumbai. Now widely known as the “Indian variant,” B.1.617.2 (or “Delta” variant according to WHO’s labeling) is believed to be roughly 50 percent more transmissible than the U.K. or South African variants of the virus, which, in turn, are believed to be 50 percent more transmissible than the original variant, SARS-CoV-2, detected in Wuhan.

Some experts say the emergence of B.1.617.2 represented a significant turning point. Within weeks, the new variant spread throughout southwest India and then to New Delhi and surrounding states in the north. Densely populated urban centers of New Delhi and Mumbai became hotspots. The virus then started spreading rapidly in poor, rural states across the country.

The Rapid Spread of India's COVID Variant

Medical professionals are saying the new variant is infecting more young people compared to the transmissions of 2020. Multiple variants are now circulating in India, including the Brazil (P.1) and U.K. (B.1.1.7) variants. Moreover, a triple mutant variant, B.1.618, has been identified and is predominantly circulating in West Bengal State. A triple mutant variant is formed when three mutations of a virus combine to form a new variant. Much remains unknown about B.1.618, though initial reports suggest it may be more infectious than other variants.

Complacency and the Loosening of Restrictions

When the COVID-19 pandemic emerged as a global threat in 2020, Indian authorities implemented a strict and early lockdown, educational campaigns on mask wearing, and ramped up testing and contact tracing where they could. However, since the peak of infections in September 2020, a public narrative started to emerge that COVID-19 no longer posed a serious threat. It was also believed that large cities had reached a measure of herd immunity. The relative youth of India and its mostly rural population that spends much of its time outdoors, further contributed to the sense that India had escaped the public health emergencies seen in other parts of the world.

“Government messaging during the first few months of 2021 boosted the narrative that India was no longer at risk.”

Government messaging during the first few months of 2021 boosted the narrative that India was no longer at risk. Prime Minister Narendra Modi declared victory over the coronavirus in late January. In March, India’s health minister, Harsh Vardhan, proclaimed the country was “in the endgame of the COVID-19 pandemic.”

Behavioral fatigue also set in. Mask wearing waned, as did social distancing, all while tourism opened up and people began traveling to other parts of the country as in pre-pandemic times. Leaders in the western state of Goa, a popular tourist destination, began ignoring pandemic protocols and allowed entry to tens of thousands of tourists in an effort to bounce back from the economic fallout of the 2020 lockdown. Instead, Goa is believed to be the epicenter of the 2021 surge and now has one of the highest rates of infection in the country.

People began socializing in large gatherings elsewhere in the country as well. Contradictory COVID-19 protocols that called for strict night curfews and weekend lockdowns while simultaneously allowing large weddings and mass religious festivals only added to the collective sense of confusion and complacency. Contact tracing and follow-up in the field largely stopped.

Super-Spreader Events

India’s COVID-19 surge was also seemingly driven by a variety of super-spreader events. Most prominently were two international cricket matches in Gujarat State in western India where 130,000 fans converged, mostly unmasked, at the Narendra Modi Stadium.

Unmasked crowds fill the streets during India’s Kumbh Mela Festival in April 2021. (Photo: balouriarajesh)

Unmasked crowds fill the streets during India’s Kumbh Mela Festival in April 2021. (Photo: balouriarajesh)

Prime Minister Modi, himself unmasked, campaigned in state elections at rallies of thousands of maskless supporters in March and April. In West Bengal, where voting is held in eight phases, infections have since spiked.

Thousands gathered in the state of Uttar Pradesh to celebrate Holi, the weeklong festival of colors that began on March 29. Meanwhile, millions pilgrimaged to the Hindu festival Kumbh Mela in Uttarakhand State in April, which possibly led to “the biggest super-spreader [event] in the history of this pandemic.”  Leaders in Uttarakhand not only allowed the festival to take place but also openly encouraged attendance from all over the world saying, “Nobody will be stopped in the name of Covid-19.”

Warning for Africa

The recent surge in COVID-19 cases in India underscores why African countries cannot let their guard down or succumb to myths that cast doubt on how to bring the pandemic to a halt. Most directly, the Indian variant has already reached Africa. It was first detected in Uganda on April 29, 2021, and is now circulating in at least 16 African countries. Moreover, hospitals and ICUs in Uganda are now reporting an overflow of cases linked to the Indian variant. Many of the incoming patients are young people. India also shares similar social features with Africa: a young population, extended family structures that include caring for the elderly at home, and returning to less-populated rural areas of origin when crisis strikes.

COVID-19 Variants Spreading in Africa

Previous analysis has shown that there is not a single African COVID-19 trajectory. Rather, reflective of the continent’s great diversity, there are multiple, distinct risk profiles. Two of these risk profiles—Complex Microcosms and Gateway Countries—seem particularly relevant when assessing the Indian surge risk for Africa.

Complex Microcosms represent countries with large urban populations and widely varying social and geographic landscapes. Many inhabitants of countries such as the Democratic Republic of the Congo, Nigeria, Sudan, Cameroon, and Ethiopia live in densely populated informal settlements, making them particularly susceptible to the rapid transmission of the coronavirus. This group also has a higher level of risk due to their weaker health systems, which limits the capacity for testing, reporting, and responding to transmissions. Both the Democratic Republic of the Congo and Nigeria are among Complex Microcosm countries that have already detected the Indian variant.

Gateway countries, such as Egypt, Algeria, Morocco, and South Africa, have among the highest levels of international trade, travel, tourism, and port traffic on the continent. This makes them more exposed to potentially more infectious and deadly variants that have emerged from other parts of the world, such as India. The interconnected nature of South Asia and the African continent is seen by the early detection of the Indian variant in Algeria, Morocco, and South Africa.

India and the African continent have strong historical, cultural, and economic bonds. Roughly 3 million people of Indian origin live on the continent, and India is Africa’s second most important trading partner after China. Southern and East Africa, in particular, have deep ties to India and large Indian populations with families on both continents. In short, there are many economic and socially driven pathways for the Indian variant to reach Africa.

Priorities for Africa
Lessons from India show that its unprecedented COVID-19 surge was driven by both a more transmissible variant as well as by letting its guard down on preventative public health measures. This exposed the vulnerability of India’s closely integrated and densely populated demographics. A number of African countries also face elevated risks to the spread of the pandemic. Learning from India’s experience highlights several priorities for Africa.

Skyline in Mombasa, Kenya. (Photo: Leo Hempstone)

Skyline in Mombasa, Kenya. (Photo: Leo Hempstone)

Sustained Vigilance. Africa must remain vigilant since some of the same presumed protections India claimed, such as large rural populations that spend much of the day outside, may not guard against the next wave. The new Indian variants are spreading rapidly among young populations, and there is evidence that these newer variants, rather than just exploiting compromised immune systems, are causing some young healthy immune systems to overreact, resulting in severe inflammation and other serious symptoms.

This was the pattern observed in Africa during the 1918-1919 Spanish flu pandemic. The second wave of this pandemic was the result of a significantly more infectious and lethal strain that devasted the continent, infecting the young and the healthy. Countries outside Africa exposed to the mild first wave seemed to experience a reduced impact during the second wave, even though the two strains were markedly different. Having largely escaped the mild first wave, Africa was particularly vulnerable to the virulent second wave.

Continued Importance of Mask Wearing and Social Distancing. The strength of Africa’s public health system is its emphasis on prevention over curative care. African health systems do not have the infrastructure or supplies to respond to a crush of cases. Yet, many African countries have been actively loosening mask mandates and social distancing controls. On May 8, the Africa CDC hosted a Joint Meeting of African Union Ministers of Health on COVID-19 to encourage governments to overcome pandemic fatigue and invest in preparedness. With an eye toward India, prevention measures such as mask wearing, social distancing, and good hand hygiene are still as important as ever until vaccines become more readily available.

“Africa must remain vigilant since some of the same presumed protections India claimed, such as large rural populations that spend much of the day outside, may not guard against the next wave.”

Public Messaging. India suffered from confusing messaging at the early stages of the surge with prominent leaders and public health officials downplaying the severity of the risk and not modeling safe practices with their own behaviors. As they did with the initial onset of the pandemic, African leaders must convey clearly and consistently that the COVID-19 threat persists. Special outreach must be made to youth, who may feel they are immune, but who face greater risks from the Indian variant than previous variants that were transmitted on the continent. In cases where there is a low level of trust in government pronouncements, communication from trusted interlocutors such as public health practitioners, cultural and religious leaders, community leaders, and celebrities, will be especially important.

Ramping Up of Vaccine Campaigns. According to the Africa CDC, the continent has administered just 24.2 million doses to a population of 1.3 billion. Representing less than 2 percent of the population, this is the lowest vaccination rate of any region in the world. With the Indian and other variants coursing through Africa, the potential for the emergence of additional variants rises, posing shifting threats to the continent’s citizens. Containing the virus in Africa, in turn, is integral to the global campaign to end the pandemic. Recognizing the global security implications if the virus continues to spread unchecked in parts of Africa, the United Nations Security Council has expressed concern over the low number of vaccines going to Africa.

While this can largely be attributed to the limited availability of vaccines in Africa during the early part of 2021, this is changing. A number of African countries are now unable to use the doses they have available as a result of widespread vaccine hesitancy driven by myths surrounding the safety of the vaccines. Meanwhile, several African countries have not yet placed their vaccine orders with Afreximbank.

African governments and public health officials, therefore, need to ramp up all phases of their COVID-19 vaccine rollout—public awareness and education, identification of vulnerable populations for prioritization, and logistical preparations and outreach—for a mass vaccination effort to reach as large a share of their populations as possible. Africa’s well-established networks of community health workers provide a vital backbone as well as a trusted and experienced delivery mechanism to successfully achieve these objectives. With technical, financial, and logistical support from external partners, African vaccination campaigns can rise to meet the challenge.

This article was first published by the Africa Centre for Strategic Studies.

Continue Reading

Op-Eds

Mr President, in the Name of the Constitution, Swear in the Judges

President Uhuru Kenyatta should live up to his oath of office to obey the constitution and resist the temptation to be garlanded in the pettiness of performing power, writes former Chief Justice Willy Mutunga.

Published

on

Mr President, In The Name Of The Constitution, Swear In The Judges
Download PDFPrint Article

Mr. President

I have elected to speak elaborately and strongly on this issue because when apparently innocuous and blithe breaches to the Constitution begin to occur, especially from the highest office in the land, they signal a dangerous dalliance with impunity. This is particularly so when these occurrences are intentional, persistent, defiant, and brazen – fuelled by an inexplicable determination to overrun the barricades of Kenya’s constitutional order.

There is a reasonable presumption that anyone seeking public office would be familiar with the Constitution. The presumption is even stronger that such persons have read, re-read, and understood provisions specific to the office they seek and, consequently, fully comprehended the allocation and demarcation of power and authority thereto. If they haven’t, then they don’t deserve to be in those offices in the first place. If they have, they have an obligation to respect every provision. That’s the meaning of public officers taking an oath before assuming office to protect, defend, and promote the Constitution, and to abide by all other laws of the Republic.

Nothing in the oaths says, ‘I will obey and protect only those aspects of the Constitution that I find convenient and self-fulfilling; so help me God’. The oath is comprehensive, total, and unqualified; and its administration is not an exercise in jest, but rather a very solemn commitment to conscience and to country; to self and to the public, in the performance of public duty held in trust for the Kenyan people. If any public officer does not like the powers the Constitution donates to them, or find the exercising of those powers annoyingly inconvenient, they have no business continuing to occupy those offices. Resignation and early voluntary retirement are readily available options that the Constitution merrily provides, in order to protect itself from individuals who may find further fidelity to its edicts a burdensome enterprise.

The provision on the appointment of judges is clearly articulated in Article 166, as well as the Judicial Service Act. The JSC discharged its mandate properly and completely in 2019 by recommending for appointment 41 judges. The president, by dint of plain, clear constitutional provisions, and numerous court orders, is obliged to appoint all the recommended judges without hesitation, review, or negotiation.

It is disappointing that this standoff, needlessly occasioned by presidential obduracy, has recurred. Sadly, it has done so in a manner that lowers the esteem of the office, undermines the rule of law, and erodes public confidence both in the elevated majesty of statecraft, and in the granularity in administration of justice.

In 2015, when this issue first emerged, the JSC and the president openly discussed the matter, and agreed on a framework that not only respected the constitutional processes but also acknowledged the unique nature of the presidency. Under this framework, it was agreed that, if the president has any adverse reports on any shortlisted candidates for judgeship, he, both in his privileged position as Head of State, and as a citizen of Kenya and a member of the public, would share that report with the JSC at that stage (not later) in the recruitment process. However, in the interest of fairness, these reports or allegations – just like all the others the JSC receives – would be put to the candidate for his or her response, before the Commission makes a determination on the suitability of that candidate. This is such a fair and common-sense approach that has worked before. In the recruitment of the 41 judges, the president did not present any adverse reports at the appropriate stage, leaving JSC with no option but to make recommendations for appointment.

I rehash this account in the public interest, and because statesmanship requires honour. It abjures petulance. The president’s conduct in this matter has been beneath the dignity of that high office. For two years he has subjected several advocates to untold personal suffering for no reason at all and called into question the integrity of serving judges and judicial officers without any due process. That the president has finally gazetted 34 of the 41 (one had in the meantime died) advocates recommended two years ago following an inexplicable and dishonest delay, speaks to an exercise of power that is egregious, reckless and insensitive.

Most disturbing is the president’s decision to omit the names of six judges and judicial officers from the list. Strikingly, the presidential ‘list of hate’ has even mysteriously changed, meaning that the objection to the judges’ nomination is driven more by personal pique rather that principle. That is not the way to conduct the serious business of state.

The scientific formulation in the provision of the Constitution on the appointment of judges was intended precisely to be an antidote to this kind of whimsical and capricious presidential conduct such as is being seen in ugly display in this matter.

State offices are not the personal property of any individual or officer. All Kenyans have a right to seek to serve in the manner prescribed by law and no individual or authority can arbitrarily renounce, withdraw, or abrogate this right.

The constitution is clear on the mechanisms for raising any issue the president or any other person may have against a sitting judge or judicial officer at whatever level. The JSC has been tested on these issues and has dealt openly and fairly with complaints against judges of ranks even higher than the Court of Appeal. Even Chief Justices, myself included, have had to answer to public petitions in an open and fair process — and that is as it should be. That the president has delayed appointments for two years without presenting any evidence to the Commission in spite of active and repeated solicitation points to bad faith, and most likely, absence of any actionable information on the judges.

And this is not the time to commence muck-racking adventures in a feeble and abominable attempt to besmirch the character of the judges and judicial officers.

The president must resist the temptation to be garlanded in the pettiness of performing power, particularly by those who have built a thriving pettiness cottage industry, completely consumed by the pursuit of personal vendetta, at the expense of the national good and Kenya’s fledging constitutional democracy.

It is urgent that the president immediately appoints the six judges, many of whom are exceptional, because that’s what fairness, common decency, the rule of law and the Constitution require. The independence and accountability of the judiciary is not negotiable. And in the fullness of time, everybody gets to learn this lesson — some rather too painfully, too late, having played a part in undermining it.

Mr President, you bear a burden of history to do the right thing for Kenya’s Constitution, her institutions, and the general public. Discharge this burden. Simply do the right thing.

Mr. President I remain sincerely,

 

Willy Mutunga

Chief Justice & President, Supreme Court of Kenya,
Republic of Kenya,  2011-2016

Continue Reading

Trending