The Kenyan High Court’s BBI Judgement: An Instant Classic13 min read.
The High Court joins the family of courts that have adopted a variant of the basic structure doctrine, and has done so in an entirely unique and compelling manner.
On 13th May, the Constitutional and Human Rights Division of the High Court of Kenya handed down its judgment in David Ndii and Others v Attorney General and Others (the BBI Judgment). Through the course of the judgment, the Court examined a fascinatingly broad range of issues, including the question of whether the Kenyan Constitution of 2010 has an un-amendable “basic structure”, the extent and limits of public participation in law-making, and political representation and the alteration of constituencies. For this reason, and for the clarity of its analysis, the BBI Judgment is a landmark judicial verdict that will be studied by students of constitutional law across the world in the days to come.
The primary issue in the BBI judgment involved a set of contentious proposals to amend the Kenyan Constitution. After winning power in 2017, in a controversial general election (the results were set aside by the Supreme Court the first time, and the Opposition boycotted the rerun), Kenyan President Uhuru Kenyatta created a “Building Bridges to Unity Taskforce” (BBI Taskforce), which was mandated to come up with “recommendations and proposals for building a lasting unity in the country”. After the BBI Taskforce submitted its report, the president appointed a sixteen-member “BBI Steering Committee”, whose terms of reference included “administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the Taskforce Report”. The Steering Committee’s report finally turned into a Bill for bringing about wide-ranging amendments to the Kenyan Constitution (“The Constitution of Kenya Amendment Bill, 2020).
Under Article 257 of the Kenyan Constitution, one of the ways to amend the Constitution is by “Popular Initiative”, which requires – as a starting point – the signatures of one million registered voters (Article 257). Consequently, the BBI Secretariat commenced the process of gathering signatures. At this point, the entire process – as a whole, as well as its constituent parts – was challenged before the High Court through a number of petitions. All these petitions were consolidated, and the High Court eventually struck down the whole of the BBI process as unconstitutional.
The Court framed a total of 17 issues for disposal.
The basic structure
As the challenges were to (proposed) constitutional amendments, at the outset, the High Court was called upon to answer a crucial – preliminary – question: was there any part of the Kenyan Constitution that was un-amendable, i.e., beyond the amendment processes set out in the constitution itself (the “basic structure” question).
The constitutional provisions
To understand this better, let us briefly consider Articles 255 to 257 of the Kenyan Constitution, that deal with constitutional amendments. Articles 256 and 257 set out two methods of amending the constitution: through parliament, and through Popular Initiative. The Parliamentary Process is contained in Article 256, which requires amendments to be passed by a two-thirds majority of both Houses of Parliament. The Popular Initiative process is contained in Article 257. It requires the signature of one million registered voters, followed by a range of procedural and substantive steps, such as certification by the Independent Electoral and Boundaries Commission (IEBC), approval by a majority of county assemblies, and approval by a majority in both Houses of Parliament (failing which, the proposal can be put to a referendum).
Article 255 of the Kenyan Constitution places a further requirement for certain types of amendments. If an amendment falls into one of the ten categories set out in Article 255(1) (including Kenyan territory, the Bill of Rights, presidential terms, etc.), then in addition to the processes described in the previous paragraph, it must also be approved in a referendum by a simple majority (and under certain quorum rules). A perusal of the categories under Article 255(1) reveals – unsurprisingly – that they pertain to core structural issues, and are therefore deemed more important (in a way), or – dare we say it – more basic than the other constitutional provisions.
The text of the Kenyan Constitution, therefore, sets out two processes of amendment: Parliament (Article 256) and People and Parliament (Article 257). It also divides the constitution into two sets of provisions: those that can only be amended following a referendum, and those that do not need a referendum (Article 255). The key question in the BBI Judgment was whether Articles 255 to 257 were exhaustive when it came to constitutional amendments, or whether there was a third set of provisions that could not be amended even if the scheme under these articles was scrupulously followed.
To answer this question, the High Court embarked upon a detailed analysis of Kenyan constitutional history. It noted that if there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a “model . . . of participatory constitution building process”. This meant that the public was meant to be involved in every step of the constitution-making process, as opposed to the “20th century model”, where constitutions drafted by experts were submitted for public approval, giving the people a say over only the final version.
Indeed, the 2010 Constitution – the Court argued – was designed to respond to two sets of pathologies that had plagued Kenyan constitutionalism in its previous iterations (starting from independence in 1963). The first was a “culture of hyper-amendment”, where presidents amended constitutions with such ease and such frequency, that the document became little more than a “hollow shell”, creating a raft of “constitutions without constitutionalism”. This was especially true in the 1970s and 1980s, when Kenya effectively became a one-party state, and this was at the heart of demands for constitutional reform when multi-party democracy returned in 1991.
If there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a model of participatory constitution-building process.
The second piece of constitutional history that culminated in the 2010 document was a two-decade emphasis on a citizen-led process. The High Court’s account of this history – starting at paragraph 411 of the judgment – is deeply fascinating, and repays careful study. Despite strong pushback from the political executive – with the president sarcastically asking “What does Wanjiku [i.e. the common Kenyan] know about the Constitution?” – efforts to centre the citizen in the constitution-making process remained undeterred. The Constitution of Kenya Review Act of 1997 specified that constitutional review had to be “by the people of Kenya”, and went on to provide a framework for public participation – insulated from legislative and executive interference – at every stage of the drafting process. The Constitution of Kenya Review Commission (the CKRC) implemented this at the ground level through a sequential process that involved civic education, research, public consultation, preparing the draft bill, and considering the commissioners’ report. After a long process that included considering more than 35,000 submissions from the people, a draft constitution was prepared by 2002. This process was, however, short-circuited when the then President Daniel arap Moi dissolved Parliament before the 2002 general election.
In the 2002 elections, however, President Moi lost power, and the opposition coalition that entered into government committed to continuing with the constitutional process. After further consultations, a draft called “the Bomas Draft” was prepared; however, the government attempted to significantly alter the draft through a non-participatory parliamentary process that resulted in a fresh document called “the Wako Draft”. Attempts to force through the Wako Draft were forestalled when, in 2004, the High Court of Kenya famously held that the draft would have to be put to a referendum. In 2005, when the referendum did take place, the Wako Draft was voted down 58-42.
Constitutional reform came back on the table after the large-scale violence in the aftermath of the 2007 general election, which needed international mediation. The legal framework for this was provided by the 2008 Constitution of Kenya Review Act, which again placed public participation at the centre (although its implementation in this regard was criticised). On 4th August 2010, the new draft constitution was passed with 68.55% of Kenyans voting in its favour.
Relying upon this constitutional history – i.e., the pathologies of hyper-amendments and the two-decades-long struggle for public participation – the High Court concluded that “these principles of interpretation, applied to the question at hand, yield the conclusion that Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments.”
This was buttressed by the fact that the Wako draft – which did not respect the principle of public participation – had been voted down by the Kenyan people. Over the course of the years, it had become clear that participation in the constitution-making process required four distinct steps: civic education to equip people with sufficient information to meaningfully participate in the constitution-making process; public participation in which the people – after civic education – give their views about the issues; debate, consultations and public discourse to channel and shape the issues through representatives elected specifically for purposes of constitution-making in a Constituent Assembly; and, a referendum to endorse or ratify the Draft Constitution.
The Court thus found:
What we can glean from the insistence on these four processes in the history of our constitution-making is that Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through a similarly informed and participatory process. It is clear that Kenyans intended that each of the four steps in constitution-making would be necessary before they denatured or replaced the social contract they bequeathed themselves in the form of Constitution of Kenya, 2010.
The Court labeled this the “primary constituent power” – i.e., the power possessed by the people themselves, as a constituent body – as opposed to the “secondary constituent power” (the Popular Initiative + Referendum process under Articles 255 and 257) and the “constituted power” (amendment only by Parliament under Article 256). The “primary constituent power” was located outside of the constitution’s amendment provisions, and was plenary and unlimited. It followed that there were substantive limitations upon which amendments the secondary constituent power or the constituted power could bring about: such amendments could not “destroy the basic structure of the Kenyan Constitution”, because that right – i.e., to make or radically alter the fundamentals of a constitution – lay only with the primary constituent power, i.e., with “the People.”
Thus, while the High Court affirmed the basic structure doctrine in the Kenyan context, it also went one step beyond. In its classical iteration, the basic structure stops at saying that constitutional amendments cannot damage or destroy the basic structure. It hints at the possibility that such alterations can be brought about only through revolution or by a complete destruction of the existing order but – for obvious reasons – does not spell that out. The assumption is that if a constitution is to be replaced altogether, then it can only be done extra-constitutionally – and presumably through great revolutionary upheaval. The Kenyan High Court on the other hand – drawing from Kenyan history – spelt out a concrete, four-step process that could be resorted to if the People did want to change the basic structure of the Kenyan constitution. There is, of course, an interesting question: now that the Court – a body that owes its own existence to the 2010 Constitution – has spelt out the process, is it “extra-constitutional” in any genuine sense? Or is it simply a third kind of amendment process that owes its existence solely to the judiciary? This is no doubt a debate that will be joined intensely, both in Kenya and elsewhere, in the days to come.
It is nonetheless important to note, therefore, that the High Court did not actually hold that any provision or principle of the constitution is entirely un-amendable (the default position under classical basic structure doctrine). Every constitutional provision is hypothetically amendable, but some – that the Court called “eternity clauses”, borrowing form Germany – can only be amended by “recalling the Primary Constituent Power“, in accordance with the four-step process that the Court set out. As is now familiar to students of the basic structure, the Court declined to set out an “exhaustive list” of eternity clauses, noting only that this would have to be determined on a case-to-case basis, while providing illustrative examples: constitutional supremacy, the role of international law on the one hand (eternity clauses), and the number of constituencies on the other (not an eternity clause).
A final point: it is particularly fascinating to note that the High Court derived its articulation of the basic structure not from a textual interpretation of the word “amend”, or from structural arguments about implied limitations, but from Kenyan social history. Its entire analysis was focused on how Kenyans struggled for – and won – the right to public participation in constitution-making, and that was the basis for holding that the core of the constitution could not be altered without going back to the people. A crucial argument of transformative constitutionalism is that constitutional interpretation needs to work with an expanded interpretive canon, which centres people – and social movements – in its understanding of constitutional meaning. The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.
The popular initiative and the BBI process
A second key issue that fell for determination was the exact meaning of Article 257(1) of the Kenyan Constitution. Article 257(1) states that “an amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.” The BBI Taskforce and Steering Committee, however, had been set up by the President. Consequently, was it legal for it to start gathering the one million signatures needed for triggering amendment by Popular Initiative?
The High Court held that it was not. Going back to the constitutional history outlined above, it held that through multiple iterations of constitutional drafts, it had been clear that the intent of the provision that finally became Article 257(1) was that the power to initiate a constitutional amendment lie in the hands of voters. Here, the president’s direct involvement – including establishing the Taskforce and Steering Committee through gazette notifications – made it clear that the amendment bill had not been initiated by the voters. This was also impermissible because the scheme of Article 257 made the president the adjudicating authority of whether or not a referendum was to take place – thus making that authority both the “player and the umpire in the same match”, if he was also allowed to initiate proceedings.
Thus, as the Court summed up:
It is our view that a Popular Initiative being a process of participatory democracy that empowers the ordinary citizenry to propose constitutional amendment independent of the law making power of the governing body cannot be undertaken by the President or State Organs under any guise. It was inserted in the Constitution to give meaning to the principles of sovereignty based on historical past where the reservation of the power of amendment of the Constitution to the elite few was abused in order to satisfy their own interests.
While I find this clear and persuasive, it is – I think – an open question about how effective this part of the ruling will be. One can imagine all too easily how – without further safeguards and judicial good sense – such rulings can be subverted through use of proxies as “initiators” of the process. Whether or not that plays out in the future will be interesting to see.
In this case, however, it meant that the BBI process – insofar as it contemplated the Steering Committee recommending “constitutional changes” as part of its terms of reference – was illegal. An executive-led amending process was unknown to the constitution: it had to be parliament (Article 256) or people and parliament (Article 257).
The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.
The Court also found the BBI process to be unlawful for another reason – it violated Article 10’s requirement of public participation in law-making. Over the years, the Kenyan judiciary has developed a rich and substantive jurisprudence around public participation under Article 10, that requires meaningful participation, and all that it entails (intelligibility, enough time, substantive exchange of views etc.). Here, however, the Court found a very straightforward violation: the Constitutional Amendment Bill had been made available only in English, whereas Kiswahili and Braille were constitutionally-mandated languages.
Thus the Court held:
The copies also ought to have been made available in other communication formats and technologies accessible to persons with disabilities including Kenya Sign Language as required under Article 7(3)(b) of the Constitution. Only then would the voters be deemed to have been given sufficient information to enable them to make informed decisions on whether or not to append their signatures in support of the proposed constitutional amendments.
Constituency apportionment and delimitation
A significant portion of the Constitutional Amendment Bill dealt with effective alterations to Article 89 of the Kenyan Constitution, which deals with “delimitation of electoral units”. The Bill sought to introduce 70 new electoral constituencies – but also directed the IEBC to complete the delimitation within a specified time, and the basis of delimitation (“equality of [the] vote.”). The roots of this, again, lay in pre-2007 distortions of constituencies that had severely compromised the one-person-one-vote principle. To correct this, in the run-up to the 2010 Constitution, the Interim Independent Boundaries Review Commission (IIBRC) had presented a detailed report, which recognised the importance of stakeholder participation in any constituency or electoral boundary review process, and set out five principles of delimitation that were eventually incorporated into Article 89.
The Constitutional Amendment Bill gave the High Court an immediate opportunity to apply the basic structure doctrine that it had just crafted. The Court found that while the number of constituencies was not part of the eternity clauses, the provisions dealing with the method of delimitation were:
Both the text and the history of the Article makes it clear that Kenyans were very particular about the criteria of the delimitation and apportionment of constituencies. This was because the apportionment and distribution of electoral units has a bearing on both the right to representation (which is a political right) as well as the distribution of national economic resources (which is an economic right). The reason for this, as outlined above, is that a substantial amount of national resources distributed to the regions by the national government is done at the constituency level . . . Given this history and the text of the Constitution, we can easily conclude that whereas Kenyans were particular to entrench the process, procedure, timelines, criteria and review process of the delimitation of electoral units, they were not so particular about the determination of the actual number of constituencies.
Thus, the Constitutional Amendment Bill’s departure from the stipulated processes – in particular, by detailing how and when the IEBC had to do its job – was unconstitutional. Lurking underneath this reasoning, one senses an undercurrent of concern about institutional independence: it appears clear that the Constitutional Amendment Bill amounted to an encroachment upon an independent, fourth-branch institution’s sphere of work, and – indeed – interfered with how the ground rules of the democratic processes were set. This is evident in the Court’s – correct – observation that the Bill attempted to amend Article 89 “by stealth”, setting up a parallel process of boundary delimitation, as well as dispensing with public participation and taking away the guaranteed constitutional right of individuals to challenge delimitation (also under Article 89):
We say it is an attempt to amend the Constitution by stealth because it has the effect of suspending the operation of Article 89 without textually amending it. The implications of such a scheme if allowed are at least two-fold. First, it creates a constitutional loophole through which the Promoters can amend the Basic Structure of the Constitution without triggering the Primary Constituent Power. Second, such a scheme creates a “constitutional hatch” through which future Promoters of constitutional amendments can sneak in fundamental changes to the governing charter of the nation for ephemeral political convenience and without following the due process of the law.
Although the Court did not put it in so many words, this is – in many ways – a classic checks-and-balances argument: democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference (and, in the Kenyan case, buttressed by requirements of public participation). Distortion or undermining of fourth-branch institutions (whether explicitly or implicitly) would amount to undermining the ground rules of the democratic game, which are what render democratic outcomes legitimate. Thus – once the Court has committed to identifying a set of constitutional provisions as “eternity clauses”, provisions governing political representation are prime candidates. It is perhaps therefore rather fitting that it was Article 89 that was the basis of the High Court’s first application of the basic structure doctrine.
There were a number of other issues, all of which deserve a detailed analysis of their own, but which we do not have further space to examine here. These include the finding that there was no suitable legislative or regulatory framework to collect signatures and to conduct the referendum; the (fascinating) holding that amendments would have to be presented separately in multiple referenda, and not as a bloc; and the finding that County Assemblies could not alter or modify a Popular Initiative proposal (so as to avoid political capture), but were only allowed to consider and vote on it. All of these holdings raise a range of important questions that will no doubt be discussed in detail in the coming days.
Democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference.
If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender. While the High Court joins the family of courts that have adopted a variant of the basic structure doctrine, it does so in an entirely unique – and compelling – manner: relying upon social and constitutional history in order to craft a three-tiered hierarchy of constituted power, secondary constituent power, and primary constituent power; it then utilises that same social history to spell out in great detail what the components of primary constituent power would look like, thus taking on the (seemingly) paradoxical task of constitutionalising revolutionary power.
If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender.
But even more than that, what is perhaps most heartening about the judgment is how it uses constitutional silences and the interpretive openness of constitutional text to advance an interpretation that in concrete and tangible ways seeks to empower citizens against the executive. From its spelling out of the basic structure, to its interpretation of Article 257, and to its reading of Article 89, at every step, the Court is keenly aware of the power difference between a powerful executive and the individual citizen, and at every step, the judgment works to mitigate that powerful imbalance upon the terrain of the constitution. In a world that is too full of Imperial presidencies and quiescent courts, the BBI Judgment is an inspiring illustration of courts and constitutions at their very best.
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Defend the Freedom of the Press
We, The Elephant, stand with our fellow journalists against the attacks meted during the coverage of the recent demonstrations. An independent, impartial, and objective media is a pillar of our democracy and crucial to both the state, the opposition, and the wider public. Freedom of the press is a non-negotiable.
Going by recent events, we are quickly sliding down a precarious path as regards freedom of the press. The spike in disinformation, influence peddling, hostility and attacks blurs the ability for the media sector to deliver, timely, critical and credible information necessary to help the public make informed decisions and hold meaningful conversations.
We are also particularly concerned by the targeting of specific media persons, media institutions, international journalists, and media industry practitioners.
In March 2023 alone, we have witnessed at least 45 reported cases of attacks, theft, harassment, and arrests by both sponsored state and non-state actors with some of the journalists affected suffering direct attacks and bodily harm.
The genesis of these attacks can be linked to the publication of the photos and issuance of summons by the Directorate of Criminal Investigations (DCI) linked to the demonstrations on the 20th of March. The publication on the state agencies social media platforms was an exercise in error that included false, misleading and misconstrued claims against participants in the demonstration.
The unintended outcome has been the formulation, and instrumental-ization of hostility and violence against members of the 4th estate. So far we have witnessed the targeting of reporters, videographers, freelance practitioners, and photographers by police, hooligans, hired goons, and looters who’re kin to cause mayhem and evade justice.
Journalists as chroniclers of societal events, scribes of the evolution of political demands, and recorders of the unwarranted, gross violations, have a solemn duty to inform the public on matters of public interest. They therefore ought to be accorded their respect in time, their place in the political contestations as neutral arbiters, and respected as repositories of current and historical memories.
We urge our colleagues while out in the field to prioritize their safety, assess the risk factors, coordinate with their newsrooms, and the law enforcers, and review media ethics and the legal ramifications in the course of their work during demonstrations.
We urge freelance journalists to coordinate, liaise, and embed with their colleagues for safety purposes. We also urge for urgent investigations into the theft, assault and detainment of journalists, and call for speedy prosecution of the perpetrators. We also ask for refrain by public figures from spotlighting specific media persons and media houses, and ask aggrieved parties against media persons and institutions, to channel their complaints through the respective legal channels as provided by law.
The Elephant Desk
Addressing the Information Disorder: Building Collaboration
In deploying measures to address the information disorder, the trend is towards the establishment of multi-stakeholder collaboratives.
In a recent article, I discussed the need to address the information disorder (defined as mis- and disinformation) through collaborative multi-stakeholder collectives such as Fumbua Kenya. In this article, I take the next step of envisioning the ideal composition for such collectives. However, before doing so, I briefly explore other similar collectives with a view to drawing lessons on building collaboration.
A tried and tested concept?
For several years now, numerous stakeholders have attempted to address the information disorder in different ways such as fact-checking and conducting media literacy trainings. These solutions were often used in isolation. More recently, stakeholders recognized the importance of collaboration in deploying measures to address the information disorder. As a result, there has been a growing trend towards the establishment of multi-stakeholder collaboratives to address the information disorder as it relates to issues such as the pandemic or democratic processes such as elections.
Collaborative efforts have largely been dominated by media practitioners. For example, in Brazil, during the 2018 elections, a collective of journalists drawn from twenty-four different local media companies was established to debunk rumours, fabricated content, and manipulative content aimed at influencing the polls. This collective is known as Comprova. In the same year, a similar collective was established in Mexico with the same mandate. It was known as Verificado. A year later, Uruguay followed suit and established a collective under the same name. However, Uruguay’s iteration of Verificado broke the mould by incorporating academics, universities, and civil society professionals. With the examples of Brazil, Mexico, and Uruguay, Argentina was able to pull together a collective of more than 100 news organizations under the Re-Verso banner. Much like Uruguay, Argentina’s Re-Verso took the collaboration further by including other disciplines such as forensic scientists who were able to assist the journalists in fact-checking audio messages.
With the experiences of these collectives, recent multi-stakeholder collectives have become increasingly diverse in their composition. For example, the BBC recently launched the Trusted News Initiative which brings together journalists, social media platforms and technology companies, and researchers. The mandate of the Trusted News Initiative is to increase media literacy, develop early warning systems, engage in voter education, and provide a platform for stakeholders to share lessons. Similarly, the Credibility Coalition, which is comprised of researchers, journalists, academics, policymakers, and technologists, aims to foster collaboration around developing common standards for information credibility. One of Fumbua’s members—Meedan—is also a member of the Credibility Coalition.
When these collectives were initially established, they were primarily driven by the recognition of the importance of collaborative journalism, and the need to reach broader audiences. As a result, their composition was heavily biased towards the media. However, subsequent iterations recognized the importance of broadening the pool of collaboration to factor in other disciplines. Some have articulated this importance explicitly. For example, Nordis, a consortium of researchers and fact-checkers funded by the EU Commission, explains that the diversity in their composition is aimed at developing new insights, technological solutions, recommendations for journalistic practice and tools educators can use. Perhaps most importantly, they hope to have concrete policy recommendations for legislators.
Extrapolating the basics
Based on the examples of multi-stakeholder collectives around the world, one can discern common trends. For one, most collectives seem to be centred around journalistic practice and as such are dominated by media organizations. While there has been a recognition of the role played by other stakeholders such as academic researchers and cognitive scientists, their involvement has not been as robust and deliberate. These collectives also often crop up in response to a major socio-political/socio-economic event such as an election, and this influences their composition and activity.
Most collectives seem to be centred around journalistic practice and as such are dominated by media organizations.
Fumbua has largely conformed to these trends, being comprised of a large number of media organizations, and having been established to address the information disorder around the 2022 general election in Kenya. However, Fumbua’s experience is unique in several ways. For one, Fumbua included a pre-bunking initiative which was the first of its kind in Kenya—StopReflectVerify. Fumbua also relied on social media personalities and performing artists to repurpose some of the core messages developed by the journalists within their collectives. The use of multimedia content enabled the collective to engage audiences in ways that align with the nature of information consumption on social media. Perhaps most crucially, Fumbua was able to use its network to engage with policymakers and regulators to attempt to impact public policy.
One size does not fit all
When one considers the experience of the diverse collectives around the world, it is clear that each iteration was significantly influenced by several factors which were unique to each situation. From the social issue the collective was designed to respond to, to the available resources and organizations willing to participate, it is clear that one cannot define, in absolute terms, what these collectives should look like.
However, what remains clear is the importance of such collectives being intentional about defining the scope of collaboration, the role of each member, and how each member’s activities will feed into the larger collective’s work. In building collaboration, such collectives should also be mindful of the information value chain in their ecosystem. For example, in Kenya, one would be remiss to exclude vernacular radio stations which remain a consequential player in the media ecosystem.
The diversity of these collectives should be informed by the unique issues they are responding to. Fumbua for example was able to engage a large cross-section of its audiences in a way that was familiar to them by deliberately including stakeholders at all levels of the media ecosystem and supporting these stakeholders by amplifying their content and helping them repurpose it. However, at a broader level, these collectives should be designed around changing how the populace interacts with and consumes information. It no longer suffices to raise awareness around the existence of the information disorder, or to flag information as false or misleading. For this reason, these collectives ought to be focused on impacting how information systems are designed. This goal, considered in the context of the particular collectives, should then inform their composition.
The Roots of Toxic Masculinity in South Africa
In South Africa and elsewhere, toxic masculinity is an outcome of modern individualism rather than tradition.
As I stepped into the nightly streets of Cape Town’s most dangerous neighborhoods, I sensed that my journey would be an initiation. The goal of my research project was to document the lasting impact of apartheid racism and gender inequalities on tough and street-smart men. Little did I know that I would make every effort to become invulnerable in my own kind of way, trying to prove my masculinity and academic prowess through ethnographic fieldwork.
Just like many of the men I met in South Africa, I was attempting to shed my vulnerability. However, it never fully worked, even for a privileged European white man like me. Ethnography is an art form rather than a science and it makes researchers vulnerable as they continuously affect and are affected by the research subjects. Moreover, the pressure I put on myself to produce something exceptional to gain respect and impress others took a toll on me.
The paradox of (in)vulnerability made both my research participants and I complicit, although on vastly different terms. For me, attempts to become an invulnerable individual with fixed gender identity led to relationship problems, substance abuse, irritability, and suicidal thoughts. The more I sought invulnerability, the more vulnerable I felt. This (in)vulnerability has received little attention in research, which often disregards the gendering of behavior or turns masculinity into both the cause and solution for a range of social, psychological, and medical problems.
Over the course of more than 10 years of research, I could feel the pulse of (in)vulnerability; the throbbing between disconnection and connectivity, rigidity and disorder, closure and openness. Perhaps this pulse is a fundamental aspect of life for everyone, regardless of social and cultural differences. But the struggle for invulnerability takes on different rhythms based on circumstances. I have been witness to the pain and struggles of the men I interviewed. Some committed suicide, others were murdered, had fatal accidents, or died from infectious disease before they reached their 40s.
Although I stayed in contact with some of these men, I retreated to my safe haven after completing my doctoral research. Writing my dissertation and book was draining, filled with anger and shame over my inability to support the people whose stories I documented, and my own shortcomings. I was not living up to the ideals of a compassionate human rights advocate or a productive academic who could be sharp, unyielding, and daring at all times. But the survivor’s guilt was just another manifestation of me believing that I could be an individual savior.
As I delved deeper into my research, I realized I had fallen into a well-worn pattern—a white European male traveling to Africa to prove his masculinity. It dawned on me, most of the behaviors that are associated with toxic masculinity are an outcome of modern individualism rather than tradition in South Africa and elsewhere. White men imported the gendered ideal of a self-made individual. The trope can be traced back to 17th-century English philosophers who defined the individual as the “owner of himself,”” who owes little to others, with a core identity composed of seamless traits, behaviors, and attitudes, rather than an assemblage of contradictory elements adopted through ongoing exchanges with others.
South African psychologist Kopano Ratele argues that well-meaning critiques of gender ideologies tend to homogenize and retribalize African masculinities as if they had no history. From this perspective, contemporary heteronormativity and male power are not necessarily a matter of “‘tradition”’ as a single and fixed structure. Yet, gender development work in Africa often uses the term “toxic masculinity” interchangeably with “traditional masculinity” particularly among low-income Black men.
During my doctoral research, I found that my own assumptions about the dark ages of patriarchy and their continuing effects on South Africans were based on a teleological model of progress that obscures how modern individualism creates toxic masculinity. My pursuit of invulnerability through ethnographic research was an attempt to “be somebody” in a world in which personhood is seemingly no longer defined by mutuality in relationships. For the most marginalized men I met in Cape Town, this pursuit was by far more distressing, in part, because these men were aware of the fact that they always depended on others for their very survival.
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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