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The Kenyan High Court’s BBI Judgement: An Instant Classic

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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.

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The Kenyan High Court’s BBI Judgement: An Instant Classic
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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[1]). 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.

The history

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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Gautam Bhatia is a constitutional lawyer based in New Delhi, India.

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Educating the Native and the Ivy League Myth

Elite schools in the US continue to place a premium on institutions, not ideas. Where you went to school is what matters.

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As a young student, I was always fascinated by the “top” universities and the erudite people that emerged from those august institutions. My first contact with Ivy League people was when I arrived at Mpala Research Centre in Laikipia in 1999 to start my MSc research. I met students and faculty from Princeton University (which is a trustee of the research centre) and was reassured that they looked “normal”, given all the academic challenges and foibles that a Kenyatta University student like me had. After I finished my MSc, the administration was impressed enough with my work to offer me a job as resident scientist, which I took up with the alacrity of someone catching a big break through hard work (I got a rude awakening later, but that’s a story for another day). As part of my job, I was to supervise a group of Princeton undergraduates undertaking a senior field project and, wanting impress, I sharpened my ecologist brain, especially because I thought I would be instructing some of the world’s sharpest young minds. Now I laugh at my consternation when, after mapping out clear and easy ecological transects for them, they strayed off into a neighbouring ranch and I got a call from the security personnel there that they were sunbathing topless on the research vehicle (they were ladies) and that the boss might be offended.

Later on, I asked a postgraduate student from the same institution how these ladies could be so casual about their studies and she couldn’t hide her amusement at my ignorance. “Grad school is competitive. Undergrads get in because of money and name recognition.” I was stunned, but I remembered this when I saw the poor work they submitted at the end of their study. Being an aspiring lecturer (and a student of the late brilliant Prof R.O. Okelo) I marked them without fear or favour, assuming that they would be used to such standards at Princeton. I was told that I couldn’t give them such low marks because they were supposed to qualify for med school after their biology degrees.

They strayed off into a neighbouring ranch and I got a call from the security personnel there that they were sunbathing topless on the research vehicle.

The next cohort included one serious student who I actually enjoyed instructing and who finished her course successfully. By that time though, I was getting restless and had started writing an academic and financial proposal for my PhD, and I finished it about six months after my student had returned to the US to graduate. The then Director of Mpala, Dr Georgiadis, refused to let me do my PhD on the job, so I submitted my proposal to several conservation organizations, including the New York-based Wildlife Conservation Society. I received a positive response from them (offering me a grant) which hit me with a strange mixture of feelings. First of all, I was elated at the prospect of starting my PhD, but I was completely baffled by the signature on the award letter. It was signed by the undergraduate student that I had supervised about eight months earlier. An American undergraduate who had spent two months in Africa was somehow qualified to assess a PhD proposal on the ecology of African wildlife written by an African MSc holder. It was my rude awakening to the racial prejudice that is de rigueur in African conservation practice. But I had to get my academic career moving, and indulge my first taste of the ultimate luxury that my competence and my work could afford me, which was the ability to say “NO”. It was with extreme pleasure that I wrote and signed my letter of resignation from my job at Mpala, leaving it on the Director’s desk.

Years later, after I finished my PhD and had a useful amount of conservation practice under my belt, I attended the Society for Conservation Biology conference in Sacramento, California, where there was a side event featuring publishers from several Ivy League universities. I excitedly engaged them because at the time Gatu Mbaria and I were in the middle of writing “The Big Conservation Lie”. I pointed out to all of them that there were no books about conservation in Africa written by indigenous Africans, but they were uniform in their refusal to even read the synopsis of what we had written. I later understood why when I learned that in US academia, African names — as authors or references — are generally viewed as devaluing to any literature.

An American undergraduate who had spent two months in Africa was somehow qualified to assess a PhD proposal on the ecology of African wildlife written by an African MSc holder.

From Sacramento, I made the short trip to Stanford University in Palo Alto, to give a seminar to an African Studies group. I felt honoured to be making an academic contribution at an Ivy League university and I prepared well. My assertions about the inherent prejudices in African conservation practice were met with stunned silence by the faculty, many of whom are involved with conservation research in Africa. One bright spot in that dour experience was the brilliant PhD student who echoed my views and pointed out that these prejudices existed within academia as well. I later found out that he was Kenyan — his name is Ken Opalo and he now teaches at Georgetown University.

Fast forward to today. The Big Conservation Lie was published, and after the initial wailing, breaking of wind, gnashing of teeth and accusations of racism, Mbaria and I are actually being acknowledged as significant thinkers in the conservation policy field and our literary input is being solicited by various publications around the world. Now, the cultural differences between how European and American institutions treat African knowledge are becoming clear (certainly in my experience). I have been approached by several European institutions to give talks (lectures), and have contributed articles and op-eds (to journals and magazines) and one book foreword. Generally, the approach is like this:

“Dear Dr Ogada, I am_______ and I am writing to you on behalf of________. We are impressed with what you wrote in _____ and would appreciate it if you would consider writing for us an article of (length) on (topic) in our publication. We will offer you an honorarium of (X Euros) for this work, and we would need to receive a draft from you by (date). . .” Looking forward to your positive response. . .”

When inviting me to speak, the letters are similarly respectful and appreciative of my time. The key thing is the focus on and respect for one’s intellectual contribution. Publications from American Ivy league schools typically say:

“Dear Dr Ogada, I am __________, the editor of __________. We find your thoughts on _______ very interesting and we are pleased to invite you to write an essay of________ (length) in our publication. Previous authors we have invited include (dropping about 6-8 names of prominent American scholars).

The entire tone of the letter implies that you are being offered a singular privilege to “appear” in the particular journal. It is even worse when being asked to give a lecture. No official communication, just a casual message from a young student saying that they would like you to come and talk to their class on__________ (time and date on the timetable). No official communication from faculty or the institution. After doing that a couple of times, I realized that the reason these kids are so keen to have an African scholar speak to them and answer all their questions is because they need his knowledge, but do not want to read his publications, or (God forbid) have an African name in the “references” section of their work.

The reason these kids are so keen to have an African scholar speak to them and answer all their questions is because they need his knowledge, but do not want to read his publications.

European intellectuals seem to be catching on to the fact that knowledge and intellect reside in people, not institutions. That is why they solicit intellectual contributions based on the source of an idea they find applicable in that space and time. Name recognition doesn’t matter to them, which is why they seek people like Ogada, who doesn’t even have that recognition in Kenya. The elite schools in US still place this premium on institutions, which is why whenever an African displays intellectual aptitude, those who are impressed don’t ask about him and his ideas, but where he went to school. They want to know which institution bestowed this gift upon him.

For the record, I usually wait about a week before saying “no” to the Ivy League schools. Hopefully, they read my blog and will improve the manner in which they approach me, or stop it altogether.

Aluta continua.

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Cuba Can Help Vaccinate the World

On 25 January, the Progressive International will host a special briefing live from Havana with Cuba’s leading scientists, government ministers and public health officials as part of its Union for Vaccine Internationalism.

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2022 began with a “tsunami” of new Covid-19 cases crashing over the world, according to the World Health Organization. Over 18 million cases have been recorded in the past week alone, a record number since the pandemic began two years ago. In the first 10 days of January, nearly 60,000 Covid-19 deaths have been recorded worldwide — though the total death count is far higher than the official statistics describe.

The Omicron variant is reported to have less “severe” implications among vaccinated patients. But the world remains perilously under-vaccinated: 92 of the WHO’s member countries missed the 2021 target of 40 percent vaccination; at the current pace of rollout, 109 of them will miss their 2022 targets by July.

These statistics tell a story of a persistent vaccine apartheid. Across the EU, 80 percent of all adults have been fully vaccinated against Covid-19. Meanwhile, only 9.5 percent of people in low-income countries have received a single dose. Omicron is a death sentence for thousands in these countries — and as the virus travels across the Global South, new variants will emerge that may be less “mild” for the vaccinated populations of the North.

But the governments of these Northern countries refuse to plan for global vaccination — or even meet their own pledges. By late last year, they had delivered only 14% of the vaccine doses that they had promised to poorer countries through COVAX, the UN vaccine-sharing initiative. Big pharmaceutical corporations are focused almost exclusively on production of boosters for the world’s rich countries, creating a shortfall of three billion doses in the first quarter of this year.

President Joe Biden could easily help fill this shortfall by compelling US pharmaceutical corporations to share their vaccine technology with poorer nations. But he has so far refused to do so. A new production hub in Africa — where only 3 percent of people are vaccinated — is now trying to replicate the Moderna vaccine. But without Moderna’s help, or Joe Biden’s executive action, production could take more than a year to begin.

Amidst this crisis of global solidarity, Cuba has emerged as a powerful engine of vaccine internationalism. Not only has the island nation successfully developed two Covid-19 vaccines with 90 percent effectiveness, and vaccinated more than 90 percent of its population with at least one dose of its homegrown vaccine, Cuba has also offered its vaccine technology to the world. “We are not a multinational where returns are the number one reason for existing,” said Vicente Vérez Bencomo of the Finlay Vaccines Institute in Cuba. “For us, it’s about achieving health.”

But the US and its allies continue to oppress and exclude Cuba from the global health system. The US blockade forced a shortage of syringes on the island that endangered its vaccine development and hindered mass production. US medical journals “marginalize scientific results that come from poor countries,” according to Vérez Bencomo. Meanwhile, the WHO refuses to accredit the Cuban vaccines, despite approval from regulators in countries like Argentina and Mexico.

That is why the Progressive International is sending a delegation to Havana: to combat misinformation, to defend Cuban sovereignty, and to help vaccinate the world.

Bringing delegates from the Union for Vaccine Internationalism, founded in June 2021 to fight the emerging apartheid, the Progressive International will convene Cuban scientists and government representatives to address international press and members of the scientific community in a showcase of the Cuban vaccine on 25 January.

The goals of the showcase are both local and global. Drawing attention to the promise of the Cuban vaccine and the perils of the US embargo against it, the showcase aims to forge connections between Cuba’s public biotech sector and manufacturers who might produce the vaccine and help the Cuban government recuperate the costs of its development.

In the process, the showcase aims to set an example of international solidarity in the face of the present global health crisis, advancing the cause of vaccine internationalism around the world.

This article was first published by Progressive International.

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DRC: Bring Patrice Lumumba Home

The return of Patrice Lumumba’s remains must not be an occasion for Belgium to congratulate itself, but for a full accounting of the colonial violence that led to the assassination and coverup.

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DRC: Bring Patrice Lumumba Home
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For much of the past year, there have been plans for the sacred human remains of the Democratic Republic of the Congo’s first post-independence prime minister, Patrice Émery Lumumba, to finally be returned to his children in Belgium, and then repatriated to the Congo. Originally scheduled for a ceremony on June 30, 2021, the 61st anniversary of the country’s independence passed with Lumumba’s remains still in the custody of Belgian authorities. The ceremony with Belgian King Philippe, current Prime Minister Alexander de Croo of Belgium, and Congo President Felix Tshisekedi, was then planned for January 17, 2022, the anniversary of the assassination. Last week, Tshisekedi announced another delay—this time until June 2022. The official reason for the delay was the rising number of COVID-19 cases in the Congo, but the pandemic crisis is deeply entangled with a series of other political maneuvers and other crises that are undoubtedly factors in the decision.

At the center of this story, Lumumba’s family continues to be victimized. As Nadeen Shaker recently reported, his children were forced to escape to Cairo during their father’s house arrest, never to see him again. The disturbing fact that the remains of Lumumba spent another Independence Day in Belgium may provide opportunities for metaphor and analogy, but, amid the widespread complicity in this ongoing desecration, the most important outcome must be to respect the ethical and legal claims of his children, which daughter Juliana Lumumba described in an open letter to the Belgian king last year.

The story of the execution and its aftermath is well told by Ludo de Witte in The Assassination of Patrice Lumumba. On January 17, 1961, Lumumba was killed along with comrades Maurice Mpolo and Joseph Okito by Belgian authorities, with the support of neocolonial Kantangan separatists and the US. Two days later, Gerard Soete, Belgian police commissioner of Katanga, and his brother exhumed the body to chemically eradicate all physical evidence of their crime in order to prevent the kind of mobilization which its identification would inspire. Though the execution was kept secret for nearly a month, its announcement inspired exactly what his executioners feared, as African people throughout the world engaged in protest and other revolutionary acts of remembrance—from the well-known demonstration at the United Nations, and other cities throughout the world to a legacy in a visual, musical, and literary culture that continues to this day.

In February 1961, while the Cultural Association of Women of African Heritage organized a major protest at UN headquarters in New York, Lumumba’s widow Pauline Opango Lumumba led a march of family and supporters to the UN offices of Rajeshawar Dayal in Kinshasa. There, she requested that the UN help her receive the remains of her husband for a proper burial. After Ralph Bunche offered “apologies” for the New York protest, Lorraine Hansberry “hasten[ed] publicly to apologize to Mme. Pauline Lumumba and the Congolese people for our Dr. Bunche.” Meanwhile, James M. Lawson of the United African Nationalist Movement and other Black activists organized a wake for Lumumba at Lewis Michaux’s Harlem bookstore. When Pauline died in Kinshasa in 2014, she was still waiting to bury her husband. She, and her iconic demonstration, are memorialized in Brenda Marie Osbey’s poem “On Contemplating the Breasts of Pauline Lumumba,” which is part of a long line of African American efforts to uplift the Lumumba family. The immediacy of Pauline’s demands remains after 6 years.

While Lumumba’s body was dissolved in sulphuric acid, Soete, like the US lynchers of Sam Hose and so many others, kept trophies of his victims as he traveled from the Congo to Belgium, often displaying them for friends and journalists. After Soete died, his daughter Godelieve continued her father’s tradition, culminating in a bizarre 2016 interview, during which a reporter found the remains in her possession. (In her efforts to defend her father, Godelieve further revealed that his brutality was visited upon his children.) The Belgian police intervened and, for the past five years, Lumumba’s remains have been held by the Belgian government responsible for his death. In September 2020, a court finally ruled they should be returned to the family.

These most recent delays are occurring at a time when the ongoing mistreatment of human remains is receiving public attention. The case of the Morton Collection at the University of Pennsylvania led activist Abdul-Aliy Muhammad to uncover the ongoing desecration of the remains of Tree and Delisha Africa, who were killed when the city of Philadelphia bombed their family’s home on May 13, 1985, leading to the discovery that the city held additional remains of the victims of its violence against the MOVE organization.

Since 2005, in South Africa, the Truth and Reconciliation Commission (TRC) created the Missing Persons Task Team to identify the remains of the Black victims of the country’s apartheid era. Drawing on the expertise of researchers with experience in similar initiatives in Argentina and elsewhere, this government project has been deliberate in its efforts to include the families of the missing at all stages, while seeing their work as integral to the larger mission of the TRC, and further representative of a larger model of repatriation of human remains and possessions. As different as these cases of violence may be, government sanction—at multiple levels and taking different forms—remains constant.

In an October 2021 program hosted by Friends of the Congo, Juliana Lumumba explained that for her, as the daughter of a martyr, repatriation and memorialization of her father’s remains were not finite events to be completed like items checked off of a to-do list. Rather, the return must be part of a wider and ongoing process: “I told Belgium, that if we want a reconciliation we need reconciliation of memories because we can not make a reconciliation when our memories [are] so different and so contradictory.” Juliana’s words carry a particular weight at a time when the Special Parliamentary Commission on Belgian Colonial History has received a sharply critical historical report that may or may not lead to meaningful action of the sort that the family has demanded.

Lumumba’s son Guy-Patrice Lumumba opposes Tshisekedi’s efforts to exploit the repatriation for political gain. Tshisekedi himself is familiar with some of the political challenges of memorialization after the remains of his own father, longtime popular opposition leader Etienne Tshisekdi, spent more than two years in Europe before their return in 2019 after Felix’s election. Felix is quickly losing whatever claim he had on his own father’s mantle (see Bob Elvis’s song “Lettre à Ya Tshitshi for a recent indictment of the president’s abandonment of his father’s mantle). He may find value in an association with a revered nationalist icon amid political protests from opponents concerned about his overreaching efforts to control the country’s powerful electoral commission as the 2023 election cycle approaches.

Meanwhile, the younger Tshisekedi’s international standing has been consolidated through his position as head of the African Union, where his responsibilities include negotiating for the provision of COVID-19 vaccines for member states. He recently met with President Biden and made an official visit to Israel, the latter of particular concern given its historical involvement in mercenary efforts against pro-Lumumba rebels and its ongoing role in the plunder of the Congo’s resources (to say nothing of Tshisekedi’s support for Israel’s occupation of Jerusalem and its status as an observer at the African Union). Such actions highlight the extraordinary distance between Lumumba’s legacy and Tshisekedi’s leadership.

For decades, the Lumumba family has made a series of unanswered demands through formal inquiries and legal appeals. A group of scholars and activists have also asserted the return of Lumumba’s remains must not be an occasion for Belgium to congratulate itself, but rather an opportunity for a full accounting of the colonial violence that led to the assassination and its subsequent coverup.

Hopefully soon, Lumumba’s family can mourn on their own terms and have all of their demands for justice met immediately and without equivocation.

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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