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Why Kenya’s Constitutional Duels Are All About Power Struggles Among the Elite

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Why Kenya’s Constitutional Duels Are All About Power Struggles Among the Elite
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Kenya is in the throes of another agonised constitutional debate. Proponents of the new push for amendments argue that the time is right to cure deficiencies in the 2010 constitution. Yet that document is only a little over 10 years old, and followed a referendum that ushered in the most comprehensive constitutional reforms since independence in 1963.

A look back in history helps us understand Kenya’s perennial quest for constitutional change.

In the colonial era, constitutional demands were led by white settlers who ruled over the African population. Africans had no rights to land or civil amenities. In 1907, Britain conceded to white settler demands and created the Legislative Council. It began as a nominated, exclusively European institution with no provision for natives. Eventually, it became an elected body and a white missionary was nominated as the first official member to represent the interests of the African community. African elites challenged the privilege of white missionaries speaking for Africans.

Policy changes followed. The government appointed Eliud Mathu the first “native” to the Legislative Council in 1944. His appointment gave birth to Kenya African Union, the predecessor of the independence ruling party, Kenya African National Union. In the 1950s, demands by African led to the Mau Mau War. The armed movement sprang up in protest over colonial land alienation, economic inequalities and political oppression under British rule. The organisation’s mobilisation forced further governance policy adjustments.

In 1960, 1962 and 1963 Britain organised three Lancaster House Constitutional Conferences to decide Kenya’s future. On 12 December 1963 Kenya finally became an independent state.

From then on in constitutional power play became a domestic affair as local power brokers competed against one another. This resulted in power-hungry politicians faulting existing structures and demanding changes to the constitution. This was the case at the outset of colonialism and is still the case in 21st Century post-colonial Kenya.

The current push for constitutional change is reminiscent of these earlier trends – it is all about competition for power among the country’s elite.

Moments of crisis

There have been three major phases to constitutional reform in post-colonial Kenya.

The first followed the death of Jomo Kenyatta, the country’s first president. The second revolved around the consolidation of power, and the survival, of the country’s second president Daniel arap Moi. The latest is to push to amend the 2010 constitution.

When Kenyatta began ailing, rival politicians engaged in constant mischief as they schemed to identify a suitable successor. Constitutional Affairs Minister Tom Mboya, who belonged to the ruling Kenya African National Union, ensured that the 1963 constitution sidelined his party-mate, Kenya’s first Vice-President Jaramogi Oginga Odinga in the succession line up.

Ruling party honchos then turned to infighting as the then Vice-President Daniel Moi, formerly the chairman of the opposition’s Kenya African Democratic Union, looked on. Moi began to see how he could use the wrangling to ascend to the presidency. His first opportunity came in 1968 when successful constitutional amendments ruled Mboya out of the succession picture.

The law stipulated that in the event the president died, the vice-president would take office for 90 days and then call an election. In addition, the president was granted powers of detention without trial, meaning that he could detain his opponents as he saw fit.

Moi’s second opportunity came in the 1970s when he himself was the target of proposed constitutional amendments. His proponents wanted to return to the previous formula. Moi outwitted them by forming alliances with influential players across the country.

When he ascended to the presidency in August 1978, part of his control strategy was to constantly remind the public about how he foiled the amendments. That narrative ignored the successful constitutional change in 1968, of which he was the main beneficiary.

Moi’s survival amendments

Moi held the presidency for 24 years. Crafty in exploiting perceived weaknesses, his main constitutional concern was to consolidate his grip on power.

To secure his position, he engineered a constitutional amendment in June 1982 to make Kenya a one-party state. KANU was the “party”. This was the “Section 2A” amendment to the constitution the purpose of which was to stop the former vice-president Oginga Odinga from starting another political party.

A number of additional amendments were added, also designed to give Moi more power. These included the removal of tenure for constitutional office holders and an egregious amendment that replaced secret ballot at elections with voters lining up behind their candidate or agent at the 1988 elections.

These amendments backfired on the president, produced new national heroes, and eventually forced the repeal of Section 2A in December 1991 to pave way for the 1992 multiparty elections.

Following the repeal, the debate centred around Moi’s survival. In 1992, when he was still in control of Parliament, he took three far reaching steps. First, he introduced an amendment that required winning candidates to obtain 25% of votes cast in five of Kenya’s eight provinces. This made it difficult for any opposing candidate to win outright.

Second, he imposed a two-term limit for future presidents, just in case he lost. And third, he appointed retired judge and ally Zacchaeus Chesoni chairman of the electoral commission. Chesoni declared Moi the winner in the contested 1992 elections, despite the president garnering just 36% of the vote, and swore him in immediately probably to avoid court challenges.

After he won the 1992 election, Moi became preoccupied with repealing the two-term limit he had previously imposed. The period between 1993 and 1997 became charged with the constitution debate. This led to the formation of the Inter-Parliamentary Party Group, which committed to a review of the constitution after the 1997 election.

Two other groups had also emerged: the Ufungamano House group comprising religious leaders and civil society activists, and the Constitution of Kenya Review Commission, which was convened by Moi and opposition ally Raila Odinga, son of former vice-president Jaramogi Oginga Odinga.

Moi and Raila recruited lawyer Yash Pal Ghai who unified the review commission and Ufungamano initiatives, and together the two groups prepared a draft constitution. That draft became the basis of constitutional debate between 2003 and 2005. The debate culminated in the 2005 constitutional referendum. The draft was voted against, setting the stage for the chaotic 2007 elections.

Beyond 2007

The third post-colonial phase of constitution-making came about as a direct result of the 2007 election chaos.

What finally emerged was a grand coalition government between Raila Odinga and the incumbent Mwai Kibaki. The two finally agreed to a co-presidency with Kibaki as the president and Odinga in the new position of prime minister.

The co-presidency shepherded in the 2010 constitution because they were required to pass the new law as part of the national accord agreement that set up the grand coalition government.

But the document had many flaws which meant that its promulgation created new constitutional conflicts.

Ten years on and gyrations around Kenya’s constitution continue. The current drive for change is happening under the guise of the Building Bridges Initiative. This suggests that, once again, constitutional reform is being driven by political power agendas.

The changes that are likely to be effected will, therefore, not be the last because there always will be groups or individuals who will question the existing power structure. They are interested in grabbing power, not the effective functioning of constitutional structures in a state.The Conversation

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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SAPs – Season Two: Why Kenyans Fear Another IMF Loan

The Jubilee government would have us believe that the country is economically healthy but the reality is that the IMF has come in precisely because Kenya is in a financial crisis.

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SAPs – Season Two: Why Kenyans Fear Another IMF Loan
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Never did I imagine that opposing an International Monetary Fund (IMF) loan to Kenya would be viewed by the Kenyan authorities as a criminal act. But that is exactly what transpired last week when activist Mutemi Kiama was arrested and charged with “abuse of digital gadgets”, “hurting the presidency”, “creating public disorder” and other vaguely-worded offences. Mutemi’s arrest was prompted by his Twitter post of an image of President Uhuru Kenyatta with the following caption: “This is to notify the world . . . that the person whose photograph and names appear above is not authorised to act or transact on behalf of the citizens of the Republic of Kenya and that the nation and future generations shall not be held liable for any penalties of bad loans negotiated and/or borrowed by him.” He was released on a cash bail of KSh.500,000 with an order prohibiting him from using his social media accounts or speaking about COVID-19-related loans.

Mutemi is one among more than 200,000 Kenyans who have signed a petition to the IMF to halt a KSh257 billion (US$2.3 billion) loan to Kenya, which was ostensibly obtained to cushion the country against the negative economic impact of COVID-19.  Kenya is not the only country whose citizens have opposed an IMF loan. Protests against IMF loans have been taking place in many countries, including Argentina, where people took to the streets in 2018 when the country took a US$50 billion loan from the IMF. In 2016, Eqyptian authorities were forced to lower fuel prices following demonstrations against an IMF-backed decision to eliminate fuel subsidies. Similar protests have also taken place in Jordan, Lebanon and Ecuador in recent years.

Why would a country’s citizens be against a loan given by an international financial institution such as the IMF? Well, for those Kenyans who survived (or barely survived) the IMF-World Bank Structural Adjustment Programmes (SAPs) of the 1980s and 90s, the answer is obvious. SAPs came with stringent conditions attached, which led to many layoffs in the civil service and removal of subsidies for essential services, such as health and education, which led to increasing levels of hardship and precarity, especially among middle- and low-income groups. African countries undergoing SAPs experienced what is often referred to as “a lost development decade” as belt-tightening measures stalled development programmes and stunted economic opportunities.

In addition, borrowing African countries lost their independence in matters related to economic policy. Since lenders, such as the World Bank and the IMF, decide national economic policy – for instance, by determining things like budget management, exchange rates and public sector involvement in the economy – they became the de facto policy and decision-making authorities in the countries that took their loans. This is why, in much of the 1980s and 1990s, the arrival of a World Bank or IMF delegation to Nairobi often got Kenyans very worried.

In those days (in the aftermath of a hike in oil prices in 1979 that saw most African countries experience a rise in import bills and a decline in export earnings), leaders of these international financial institutions were feared as much as the authoritarian Kenyan president, Daniel arap Moi, because with the stroke of a pen they could devalue the Kenyan currency overnight and get large chunks of the civil service fired. As Kenyan economist David Ndii pointed out recently at a press conference organised by the Linda Katiba campaign, when the IMF comes knocking, it essentially means the country is “under receivership”. It can no longer claim to determine its own economic policies. Countries essentially lose their sovereignty, a fact that seems to have eluded the technocrats who rushed to get this particular loan.

When he took office in 2002, President Mwai Kibaki kept the World Bank and the IMF at arm’s length, preferring to take no-strings-attached infrastructure loans from China. Kibaki’s “Look East” economic policy alarmed the Bretton Woods institutions and Western donors who had until then had a huge say in the country’s development trajectory, but it instilled a sense of pride and autonomy in Kenyans, which sadly, has been eroded by Uhuru and his inept cronies who have gone on loan fishing expeditions, including massive Eurobonds worth Sh692 billion (nearly $7 billion), which means that every Kenyan today has a debt of Sh137,000, more than three times what it was eight years ago when the Jubilee government came to power. By the end of last year, Kenya’s debt stood at nearly 70 per cent of GDP, up from 50 per cent at the end of 2015. This high level of debt can prove deadly for a country like Kenya that borrows in foreign currencies.

When the IMF comes knocking, it essentially means the country is “under receivership”.

The Jubilee government would have us believe that the fact that the IMF agreed to this loan is a sign that the country is economically healthy, but as Ndii noted, quite often the opposite is true: the IMF comes in precisely because a country is in a financial crisis. In Kenya’s case, this crisis has been precipitated by reckless borrowing by the Jubilee administration that has seen Kenya’s debt rise from KSh630 billion (about $6 billion at today’s exchange rate) when Kibaki took office in 2002, to a staggering KSh7.2 trillion (about US$70 billion) today, with not much to show for it, except a standard gauge railway (SGR) funded by Chinese loans that appears unable to pay for itself. As an article in a local daily pointed out, this is enough money to build 17 SGRs from Mombasa to Nairobi or 154 superhighways like the one from Nairobi to Thika. The tragedy is that many of these loans are unaccounted for; in fact, many Kenyans believe they are taken to line individual pockets. Uhuru Kenyatta has himself admitted that Kenya loses KSh2 billion a day to corruption in government. Some of these lost billions could actually be loans.

IMF loans with stringent conditions attached have often been presented as being the solution to a country’s economic woes – a belt-tightening measure that will instil fiscal discipline in a country’s economy by increasing revenue and decreasing expenditure. However, the real purpose of these loans, some argue, is to bring about major and fundamental policy changes at the national level – changes that reflect the neoliberal ethos of our time, complete with privatisation, free markets and deregulation.

The first ominous sign that the Kenyan government was about to embark on a perilous economic path was when the head of the IMF, Christine Lagarde, made an official visit to Kenya shortly after President Uhuru was elected in 2013. At that time, I remember tweeting that this was not a good omen; it indicated that the IMF was preparing to bring Kenya back into the IMF fold.

Naomi Klein’s book, The Shock Doctrine, shows how what she calls “disaster capitalism” has allowed the IMF, in particular, to administer “shock therapy” on nations reeling from natural or man-made disasters or high levels of external debt. This has led to unnecessary privatisation of state assets, government deregulation, massive layoffs of civil servants and reduction or elimination of subsidies, all of which can and do lead to increasing poverty and inequality. Klein is particularly critical of what is known as the Chicago School of Economics that she claims justifies greed, corruption, theft of public resources and personal enrichment as long as they advance the cause of free markets and neoliberalism. She shows how in nearly every country where the IMF “medicine” has been administered, inequality levels have escalated and poverty has become systemic.

Sometimes the IMF will create a pseudo-crisis in a country to force it to obtain an IMF bailout loan. Or, through carefully manipulated data, it will make the country look economically healthy so that it feels secure about applying for more loans. When that country can’t pay back the loans, which often happens, the IMF inflicts even more austerity measures (also known as “conditionalities”) on it, which lead to even more poverty and inequality.

IMF and World Bank loans for infrastructure projects also benefit Western corporations. Private companies hire experts to ensure that these companies secure government contracts for big infrastructure projects funded by these international financial institutions. Companies in rich countries like the United States often hire people who will do the bidding on their behalf. In his international “word-of-mouth bestseller”, Confessions of an Economic Hit Man, John Perkins explains how in the 1970s when he worked for an international consulting firm, he was told that his job was to “funnel money from the World Bank, the US Agency for International Development and other foreign aid organisations into the coffers of huge corporations and the pockets of a few wealthy families who control the planet’s resources”.

Sometimes the IMF will create a pseudo-crisis in a country to force it to obtain an IMF bailout loan.

The tools to carry out this goal, his employer admitted unashamedly, could include “fraudulent financial reports, rigged elections, payoffs, extortion, sex and murder”. Perkins showed how in the 1970s, he became instrumental in brokering deals with countries ranging from Panama to Saudi Arabia where he convinced leaders to accept projects that were detrimental to their own people but which enormously benefitted US corporate interests.

“In the end, those leaders become ensnared in a web of debt that ensures their loyalty. We can draw on them whenever we desire – to satisfy our political, economic or military needs. In turn, they bolster their political positions by bringing industrial parks, power plants, and airports to their people. The owners of US engineering/construction companies become fabulously wealthy,” a colleague told him when he asked why his job was so important.

Kenyans, who are already suffering financially due to the COVID-19 pandemic which saw nearly 2 million jobs in the formal sector disappear last year, will now be confronted with austerity measures at precisely the time when they need government subsidies and social safety nets. Season Two of SAPs is likely to make life for Kenyans even more miserable in the short and medium term.

We will have to wait and see whether overall dissatisfaction with the government will influence the outcome of the 2022 elections. However, whoever wins that election will still have to contend with rising debt and unsustainable repayments that have become President Uhuru Kenyatta’s most enduring legacy.

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Haiti: The Struggle for Democracy, Justice, Reparations and the Black Soul

Only the Haitian people can decide their own future. The dictatorship imposed by former president Jovenel Moïse and its imperialist enablers need to go – and make space for a people’s transition government.

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Haiti is once again going through a profound crisis. Central to this is the struggle against the dictatorship imposed by former president Jovenel Moïse. Since last year Mr. Moise, after decreeing the dismissal of Parliament, has been ruling through decrees, permanently violating Haiti’s constitution. He has refused to leave power after his mandate ended on February 7, 2021, claiming that it ends on February 7 of next year, without any legal basis.

This disregard of the constitution is taking place despite multiple statements by the country’s main judicial bodies, such as the CSPJ (Superior Council of Judicial Power) and the Association of Haitian Lawyers. Numerous religious groups and numerous institutions that are representative of society have also spoken. At this time, there is a strike by the judiciary, which leaves the country without any public body of political power.

At the same time, this institutional crisis is framed in the insecurity that affects practically all sectors of Haitian society. An insecurity expressed through savage repressions of popular mobilizations by the PNH (Haitian National Police), which at the service of the executive power. They have attacked journalists and committed various massacres in poor neighborhoods. Throughout the country, there have been assassinations and arbitrary arrests of opponents.

Most recently, a judge of the High Court was detained under the pretext of promoting an alleged plot against the security of the State and to assassinate the president leading to the illegal and arbitrary revocation of three judges of this Court. This last period has also seen the creation of hundreds of armed groups that spread terror over the entire country and that respond to power, transforming kidnapping into a fairly prosperous industry for these criminals.

The 13 years of military occupation by United Nations troops through MINUSTAH and the operations of prolongation of guardianship through MINUJUSTH and BINUH have aggravated the Haitian crisis. They supported retrograde and undemocratic sectors who, along with gangsters, committed serious crimes against the Haitian people and their fundamental rights.

For this, the people of Haiti deserve a process of justice and reparations. They have paid dearly for the intervention of MINUSTAH: 30 THOUSAND DEAD from cholera transmitted by the soldiers, thousands of women raped, who now raise orphaned children. Nothing has changed in 13 years, more social inequality, poverty, more difficulties for the people. The absence of democracy stays the same.

The poor’s living conditions have worsened dramatically as a result of more than 30 years of neoliberal policies imposed by the International Financial Institutions (IFIs), a severe exchange rate crisis, the freezing of the minimum wage, and inflation above 20% during the last three years.

It should be emphasized that, despite this dramatic situation, the Haitian people remain firm and are constantly mobilizing to prevent the consolidation of a dictatorship by demanding the immediate leave of office by former President Jovenel Moïse.

Taking into account the importance of this struggle and that this dictatorial regime still has the support of imperialist governments such as the United States of America, Canada, France, and international organizations such as the UN, the OAS, and the EU, the IPA calls its members to contribute their full and active solidarity to the struggle of the Haitian people, and to sign this Petition that demands the end of the dictatorship as well as respect for the sovereignty and self-determination of the Haitian people, the establishment of a transition government led by Haitians to launch a process of authentic national reconstruction.

In addition to expressing our solidarity with the Haitian people’s resistance, we call for our organisations to demonstrate in front of the embassies of the imperialist countries and before the United Nations. Only the Haitian people can decide their future. Down with Moise and yes to a people’s transition government, until a constituent is democratically elected.

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Deconstructing the Whiteness of Christ

While many African Christians can only imagine a white Jesus, others have actively promoted a vision of a brown or black Jesus, both in art and in ideology.

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When images of a white preacher and actor going around Kenya playing Jesus turned up on social media in July 2019, people were rightly stunned by the white supremacist undertone of the images. They suggested that Africans were prone to seeing Jesus as white, promoting the white saviour narrative in the process. While it is true that the idea of a white Jesus has been prevalent in African Christianity even without a white actor, and many African Christians and churches still entertain images of Jesus as white because of the missionary legacy, many others have actively promoted a vision of Jesus as brown or black both in art an in ideology.

Images of a brown or black Jesus is as old as Christianity in Africa, especially finding a prominent place in Ethiopian Orthodox Church, which has been in existence for over sixteen hundred years. Eyob Derillo, a librarian at the British Library, recently brought up a steady diet of these images on Twitter. The image of Jesus as black has also been popularised through the artistic project known as Vie de Jesus Mafa (Life of Jesus Mafa) that was conducted in Cameroon.

The most radical expression of Jesus as a black person was however put forth by a young Kongolese woman called Kimpa Vita, who lived in the late seventeenth and early eighteenth century. Through the missionary work of the Portuguese, Kimpa Vita, who was a nganga or medicine woman, became a Christian. She taught that Jesus and his apostles were black and were in fact born in São Salvador, which was the capital of the Kongo at the time. Not only was Jesus transposed from Palestine to São Salvador, Jerusalem, which is a holy site for Christians, was also transposed to São Salvador, so that São Salvador became a holy site. Kimpa Vita was accused of preaching heresy by Portuguese missionaries and burnt at the stake in 1706.

It was not until the 20th century that another movement similar to Vita’s emerged in the Kongo. This younger movement was led by Simon Kimbangu, a preacher who went about healing and raising the dead, portraying himself as an emissary of Jesus. His followers sometimes see him as the Holy Spirit who was to come after Jesus, as prophesied in John 14:16. Just as Kimpa Vita saw São Salvador as the new Jerusalem, Kimbangu’s village of Nkamba became, and still is known as, the new Jerusalem. His followers still flock there for pilgrimage. Kimbangu was accused of threatening Belgian colonial rule and thrown in jail, where he died. Some have complained that Kimbangu seems to have eclipsed Jesus in the imagination of his followers for he is said to have been resurrected from the dead, like Jesus.

Kimbangu’s status among his followers is however similar to that of some of the leaders of what has been described as African Independent Churches or African Initiated Churches (AICs). These churches include the Zionist churches of Southern Africa, among which is the amaNazaretha of Isaiah Shembe. Shembe’s followers see him as a divine figure, similar to Jesus, and rather than going to Jerusalem for pilgrimage, his followers go to the holy city of Ekuphakameni in South Africa. The Cameroonian theologian, Fabien Eboussi Boulaga, in his Christianity Without Fetish, see leaders like Kimbangu and Shembe as doing for their people in our own time what Jesus did for his people in their own time—providing means of healing and deliverance in contexts of grinding oppression. Thus, rather than replacing Jesus, as they are often accused of doing, they are making Jesus relevant to their people. For many Christians in Africa, therefore, Jesus is already brown or black. Other Christians still need to catch up with this development if we are to avoid painful spectacles like the one that took place Kenya.

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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