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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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Kisumu County’s Fragile Food Security

Reliance on imports from as far away as Tanzania, Uganda and even China, leaves Kisumu County’s accessibility to food on a fragile footing.

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Kisumu County’s Fragile Food Security
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A ceasefire had to be called at the height of the 2007/8 post-election violence and a corridor created for the safe passage of foodstuffs from the Rift Valley to the lakeside city of Kisumu to avert a food crisis. The post-election violence had erupted barely 10 days earlier.

For a region that enjoys adequate rainfall and has good agricultural soils, the lack of access food supplies within days of a crisis breaking out is indicative of the problems generated by how food systems are structured in Kisumu County.

Kisumu County has a considerable shoreline along Lake Victoria that extends from Seme to the south to Nyakach Sub-County to the north. Apart from Kisumu city, the county also has a number of smaller towns such as Muhoroni, Ahero, Katito, Maseno and Kombewa.

Eighty per cent of the food consumed by the county’s 300,000 households—including maize, potatoes, onions, vegetables, milk, rice, eggs and bananas—is imported from as far as Uganda and Tanzania along with imports of fish from China.

Kisumu County continues to import food despite having regions that could potentially support expansive food production in areas such as Muhoroni, Nyamware and Nam Thowi, and the fertile crescents in Seme to the south. Over time, the rich alluvial soils that have been deposited in these areas by floods and rivers flowing downstream from Nandi Hills have created fertile grounds that support farming.

How did we get here?

The persistent issues that have impeded food production in Kisumu County are numerous. Traditionally, communities living in the county practiced fishing and livestock keeping, and subsistence agriculture as their economic mainstay. Commercial farming has only been embraced in recent years, due to interactions with neighbouring farming communities such as the Kisii, Luhya, Abasuba, and Kuria. The majority, however, continue to practice smallholder subsistence agriculture.

The uptake of commercial farming was also hindered by the economic policies of the 1990s that saw the collapse or the weakening of many of the structures that had been established to support food production in the country as a whole and provided extension services, grants, and subsidies to farmers. They include the Agricultural Finance Corporation (AFC), the Agricultural Development Corporation (ADC), Agricultural Training Centres (ATCs), Agricultural Research Institutions (ARIs), and farmers’ co-operatives.

The system of land ownership in Kisumu County is also a hindrance to commercial food production. Most land in Kisumu County is not registered and titled and much of it is inherited property that has been passed down through the generations without legal title.

Recent surveys show that the cost of the farming inputs required to initiate meaningful agricultural production is out of reach for the majority of Kisumu County residents. This challenge is further compounded by the dearth of farming SACCOs (Savings and Credit Cooperatives); with the prohibitive interest rates charged by local banks, obtaining capital to start an agricultural enterprise has proved to be a challenge. These challenges are further exacerbated by the risks associated with farming such as crop losses and post-harvest losses.

The system of land ownership in Kisumu County is also a hindrance to commercial food production.

There is little agro-innovation among Kisumu farmers who still rely on traditional farming methods. There is little irrigation going on in the county. Lastly, there is a serious lack of the human resource required to support food production such as agricultural engineers, extension officers, veterinary doctors, agronomists, sociologists, planners, economists, among others.

Food shortage affects the mwananchi

At Jubilee Market, a major cog in the food supply chain in Kisumu City, traders lament daily about inadequate local food supplies and about middlemen from outside the county who take advantage of food shortages to import supplies and make big profits. The high demand for food and the low supply have an impact on food prices, reducing profit margins for the traders, even as consumers are faced with high food prices.

There is a serious lack of the human resource required to support food production.

The missing link in Kisumu’s economic growth is a buoyant agricultural sector. From observations made when the writer toured Victoria Eco-Farm, a leading food supplier situated at Dunga Beach in Kisumu City, the revival of agriculture in Kisumu is possible.  Victoria Eco-Farm deals in poultry, dairy, bee keeping, and the rearing of exotic dogs.  The farm has also diversified into agri-tourism, receiving visitors and training both students on attachment and local farmers on best farming practices. Nicholas Omondi, the Director, has become a role model for emerging food producers in the agriculture sector.

Modelling food sufficiency

Based on Walt Rostow’s model of economic growth, Kisumu County will not make a sudden and quick leap out of food insecurity. In Stages of Economic Growth, Rostow outlines the five stages that all countries must pass through to become developed: the traditional society; pre-conditions for take-off; take-off; drive to maturity; age of mass consumption. Regrettably, Kisumu County is still at the stage of a traditional society that is characterized by subsistence agriculture, limited funding and technological innovation, and low economic mobility.

The pre-conditions for take-off will only be fulfilled when the county government, acting in collaboration with the national government, provides adequate incentives for agricultural development. More food crops need to be introduced to farmers in Kisumu County. There is also an urgent need to revitalize existing sectors such as the sugar and fishing industries. The county’s potential to become a prime producer of rice also needs to be actualized.

Reform-oriented policies such as titling and surveying are needed in order to transform the existing models of landholding and land ownership. Farming communities in the county also require extensive sensitization and training on emerging technologies and innovations. Most importantly, existing lacklustre attitudes to farming as an economic activity among Kisumu County residents will need to be addressed.

However, the current tax regime is inimical to the drive to boost food security and needs urgent review. In effect, no serious gains can be made in the agriculture sector anywhere in the country as long as the national government continues to insist on enforcing policies that increase production costs and make it cheaper to import food from Tanzania and Uganda than to grow it at home.

The current tax regime is inimical to the drive to boost food security and needs urgent review.

Leaders must realize that whether they are in the opposition or in government, relations with state agencies, especially those in the agriculture sector, are key to developing farming in Kisumu County, that in the interest of economic development, they must always be in constant touch with the government for purposes of support, lobbying and relaying feedback in development processes. Existing attitudes and brands of politics that lead to self-marginalization must be removed at all costs.

It must be recognised, however, that the county government has taken initial steps to start addressing the challenge of food insecurity. In partnership with the Food and Agriculture Organization (FAO), the county government has established a youth-focused Food Liaison Advisory Group (FLAG), leading to the promotion of urban agriculture, the strengthening of rural mechanisms for food production and initiating programmes for the training and deployment of agricultural extension officers.

It is to be hoped that such initiatives will contribute towards alleviating the food insecurity situation that the residents of Kisumu County continue to grapple with.

This article is part of The Elephant Food Edition Series done in collaboration with Route to Food Initiative (RTFI). Views expressed in the article are not necessarily those of the RTFI.

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How Twitter’s Negligence is Harming Kenya’s Democracy

Twitter’s trending algorithm has been abandoned to disinformation campaigns and attacks, failing Kenyans as political actors use it to control political narratives by harassing dissenting voices.

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On the 24th of June 2021 at around 6 a.m., an insidious hashtag, #KatibaMbichi, appeared on Kenyan Twitter timelines. Its trend seemed to be driven by a number of faceless bots, and retweeted by a series of catfishes that sent it to the number one spot on the Kenyan Twitter trends. 

Our investigations have uncovered how such malicious, coordinated, inauthentic attacks that seek to silence members of civil society, muddy their reputations and stifle the reach of their messaging, is a growing problem in Kenya. Twitter, especially, has been central to these operations due to the influence it has on the country’s news cycle.

The proliferation of digital media platforms in Kenya carries the promise of a renewed definition of freedom of speech. Moreover, Twitter has been a vital tool of expression for many Kenyan citizens, many of whom use it to hold their leaders to account and to call out their failures. But civil society members and journalists have increasingly come under attack thanks to disinformation campaigns in the country.

Through a series of interviews with anonymous influencers involved in these campaigns, we accessed their inner workings and gained crucial insights into how they are organized.

An examination of the campaigns has provided our team with a window into the shadowy world of Twitter influencers for political hire in Kenya. Many of the accounts and individuals involved promote brands, causes and political ideologies without disclosing that they are part of paid campaigns.

Twitter features such as the trending algorithm are exploited to achieve the goals of these campaigns by amplifying them. Certain verified accounts on the platform are complicit in leading these attacks. The goal of these campaigns is to exhaust critical thinking and poison the information environment by muddying the truth.

Our investigations examined two months’ data between 1 May 2021 and 30 June 2021, with a particular focus on the Constitutional Amendment Bill—famously known as the Building Bridges Initiative—that was being promoted in Kenya at the time.

With the aid of Twint, Sprinklr and Trendinalia, we trailed the attacks by mapping and analysing specific hashtags that the influencers used on Twitter. This involved mapping certain accounts that posted malicious content targeting Kenya’s activists and judicial officers. The flagged hashtags often displayed synchronized publishing timestamps within the metadata, with a lack of content on most days, followed by one very sharp burst of activity and then fizzling out.

In total, using Sprinklr, which has access to Twitter’s full historical archive, we flagged 23,606 tweets and retweets released by 3,742 accounts under the 11 hashtags. We also obtained 15,350 of these tweets using the Twint package on Github to carry out further analysis of the content.

How disinformation is spread

The Twitter campaigns we looked at were those that were pro-BBI and directly attacked citizens and prominent civil society activists that were vocally opposed to the proposed reforms, and also sought to discredit civil society organisations and activists by portraying them as villains who were being funded by Kenya’s Deputy President William Ruto—he opposes the BBI process.

The well-coordinated attacks are launched through WhatsApp groups to avoid detection. The WhatsApp group admins give direction about what to post, the hashtags to use, which tweets to engage with, and whom to target. They also synchronize the posting to enable the tweets to trend on twitter.

There is money to be made in attacking civil society. Our sources confirmed that they get paid between US$10 and US$15 to participate in three campaigns per day. Those higher up the ranks are on a monthly retainer that can go as high as US$500. Those who are on a retainer supervise the hashtags and ensure that they trend on the days they are posted.

Who the disinformation targets

From our analysis, the top three most frequent victims were Kenyan journalists, judges, and known activists. Prominent anti-BBI activists under the Linda Katiba movement who petitioned the courts against the BBI were the targets of some of the most vicious attacks.

The attacks peaked in early May with the specific goal of trying to discredit the anti-BBI campaign. Jerotich Seii, a key member of the Linda Katiba campaign who was targeted, said in interview that she had to spend a lot of time trying to prove that her activism efforts were genuine and that she was not a front for someone else. “The disinformation attacks against me focussed on painting me as someone with ulterior motives who isn’t interested in the welfare of Kenyans. I had to spend a good chunk of my time defending my position as someone who is actually a patriot who does what they do out of love for their country,” said Seii.

From our analysis, the top three most frequent victims were Kenyan journalists, judges, and known activists.

All this is leading to self-censorship by some of the activists on the platform as they feel that it is pointless to use a platform that cannot deliver any meaningful engagement. One activist we spoke to said that she had significantly scaled down her Twitter activity because of all the trolling she had experienced.

The Kenyan High court struck down the BBI on 14 May on the grounds that the initiative was unconstitutional and the Court of Appeal followed suit on August 20th. The ruling not only strained the already bad relationship between Kenya’s Judiciary and the Executive, it also led to wave after wave of disinformation attacks seeking to question the judges’ judicial independence and the accuracy of their decision.

A notable change in these attacks was how the visual aesthetics of the content within the campaigns evolved; newspaper editorial cartoon-style caricatures and memes were employed, a likely indication of a change of leadership or strategy at the top that sought to make the content more palatable and shareable.

What is the impact of the slander?

The data that we gathered from Trendinalia (which collects data on Twitter trends in Kenya) shows that sufficient amplification was achieved for 8 of the 11 hashtags we identified that became trending topics. This amplification was achieved partly through the use of verified accounts. One anonymous influencer we spoke to said that owners of certain verified accounts involved in these campaigns would often rent them out to improve the campaign’s chances of trending. “The owner of the account usually receives a cut of the campaign loot from the person that rented it from them once it’s over,” the influencer said.

The demand for this service by the political class in Kenya is markedly strong. During the months of May and June alone, we counted at least 31 artificial political hashtags, including the ones linked to the BBI process. This translates to at least one manipulated disinformation campaign that Kenyans have to deal with every two days.

Curiously, there is little evidence that these operations actually sway people’s opinions. However, they do have an effect on how Twitter users interact with their information environment. The goal of such operations is to overwhelm, to create an environment where nobody knows what is true or false anymore. The objective is to exhaust critical thinking and muddy the truth.

During the months of May and June alone, we counted at least 31 artificial political hashtags, including the ones linked to the BBI process.

Typically, a post by any of the prominent activists or judicial officers is bombarded with so much aggression, insults, and dismissive comments that the space for a good conversation is lost. The point is always to ensure that sober-minded people are disincentivized from amplifying the topic after encountering so much aggression in the replies and the quote tweets.

The role of Twitter Inc.

To many Kenyans, Twitter matters. The platform has become a very critical avenue of expression, networking, running ads, and a means of obtaining information. It is also an important avenue for active citizenship as #KOT (Kenyans on Twitter) is one of Africa’s loudest and most lively internet communities.

On the darker side however, some of the features on Twitter are being exploited for nefarious purposes. The platform is failing Kenyans—and Africans more broadly. Political actors are using it to try to control political narratives by poisoning the platform and harassing dissenting voices.

Specifically, Twitter’s trending algorithm, which selects and highlights content without examining its potential for harm, often serves as an on-ramp for users who are trying to find information on the platform. Our sources said that Twitter trends is the primary key performance indicator by which most of their campaigns are judged. They admitted that without it their jobs would not exist. “The main goal is to go trending on Twitter. I’m not sure what our jobs would look like without that target,” said one source.

The evidence available points to the fact that, for the executives at Twitter, this is not a new phenomenon. The trending algorithm in particular, which is a big part of how Twitter works, has been abandoned to disinformation campaigns and attacks.

Twitter’s Moderation Team should pay close attention, keenly monitor and regulate its trending section. Activists, such as Sleeping Giants, have repeatedly called for Twitter to “untrend” itself. This could be done by either removing the feature completely or by disabling it during critical times such as during election periods.

The evidence available points to the fact that, for the executives at Twitter, this is not a new phenomenon.

Arguably, Twitter does not have an incentive to fix this. It sells ads for “promoted trends” and “promoted tweets” within the feeds of hashtags on its trending topics section to business clients. This puts Twitter squarely in the middle of the mess as it profits from this harmful activity.

Ad Dynamo, an agency that sells Twitter Ads in Kenya, currently offers promoted trends for US$3,500 per day within the country. The overall message this sends is that it is ok to sow hate on the platform so long as Ad Dynamo owners can place ads next to the trending content and make a profit from it.

As Kenya heads towards elections in 2022, the demand for these services will increase and many political parties will seek out malicious coordinated trending models and create the risk of a repeat of the 2007 political violence.

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WHO Neutrality in a Time of Crisis at Home: The Case of Dr Ghebreyesus

The UN and its highest officials must not choose inaction under the pretext of observing neutrality especially where genocide, crimes against humanity, war crimes, ethnic cleansing, weaponised rape, and starvation are taking place.

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WHO Neutrality in a Time of Crisis at Home: The Case of Dr Ghebreyesus
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Dr Tedros Adhanom Ghebreyesus was re-elected to serve a second five-year term as the Director-General of the World Health Organization at the 75th World Health Assembly on 24 May 2022. Dr Ghebreyesus is from Ethiopia’s Tigray region and he has been condemning the Ethiopian and Eritrean governments, as well as non-state actors in Ethiopia such as the Amhara militia, for the comprehensive humanitarian blockade, total siege, systematic rape, mass killings, total destruction of health facilities, and killings of humanitarian and health workers, and other atrocious acts committed in Tigray and against its people. There are, however, critics, especially from the Ethiopian government, that claim that he is abusing his mandate as the head of a UN organization. This raises the question to what extent high-ranking UN officials should stay neutral when it comes to conflict and crises in their home countries.

Mandate and watchdog 

As the Director-General of the WHO, Dr Ghebreyesus’ statements on the catastrophic humanitarian and medical condition of the people of Tigray and his call on the Ethiopian and Eritrean governments to lift the siege and humanitarian blockade are legitimate and within the purview of his mandate. It is important to understand the context of Dr Ghebreyesus’ statements. Dr Ghebreyesus has the responsibility of upholding WHO principles, which include the recognition that the “health of all peoples is fundamental to the attainment of peace and security and is dependent on the fullest cooperation of states and individuals” and that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”

The war on Tigray started at a time of the rapid spread of the COVID-19 pandemic, and disrupted the efforts of the people of Tigray to prevent and contain the spread of the disease and mitigate its significant health and socio-economic-political impacts. Citing the COVID-19 pandemic as the reason for the move, on 31 March 2020, the National Electoral Board of Ethiopia (NEBE) postponed the scheduled 29 August 2020 legislative elections indefinitely. However, other voices, including the Government of Tigray,  have condemned the decision as a corona-clouded power grab.

The war on Tigray, referred to by the Ethiopian government as simply “law and order enforcement” against a few leaders in Tigray, turned out to be a well-planned total war against the people of Tigray that involved significant forces from foreign countries, including Eritrea and Somalia. Several reports by humanitarian organisations and investigations by human rights organisations and international media have repeatedly concluded that the gruesome mass atrocities committed against Tigrayans constitute war crimes, crimes against humanity, and ethnic cleansing that may amount to genocide. This is consistent with Ethiopian officials’ openly stated intent to erase Tigrayans. In February 2021, four months after the war started, they even shared their intentions with Pekko Havvisto, Finland’s Foreign Minister and EU Envoy to Ethiopia. “When I met the Ethiopian leadership in February, they really used this kind of language, that they are going to destroy the Tigrayans, they are going to wipe out the Tigrayans for 100 years, and so forth.

Despite the Ethiopian government declaring unilateral humanitarian ceasefires twice, first on 28 June 2021 and then on 24 March 2022, together with their Eritrean allies, Ethiopian forces have maintained the siege sealing off Tigray from the rest of the world and imposing “a de facto humanitarian aid blockade” as stated by the UN in July 2021. The siege involves a complete shutdown of telecommunications, transportation, electricity, and the banking system with the result that workers’ salaries cannot be paid, people with savings cannot access their money, and the Tigray diaspora cannot send remittances to help their families and friends in Tigray. Even aid agencies working in Tigray were denied cash and fuel and many were forced to halt their humanitarian operations.

By March 2022, 16 months since the start of the war, it was reported that an estimated half a million Tigrayans have been killed. Of those, close to 200,000 lost their lives by starvation, which is being deliberately used as a weapon of war, while another 100,000 civilian Tigrayans died from lack of access to basic medical care. The allied Ethiopian and Eritrean forces deliberately destroyed, damaged, and looted food production and supply chains and the entire health system. It is now close to 20 months since the war started and more Tigrayans have died from deliberate starvation, denial of medical care, torture, extrajudicial killings in the liberated part of Tigray, in western and other parts of Tigray still occupied by Ethiopian federal, Amhara, and Eritrean forces and in internment camps in many parts of Ethiopia.

The allied Ethiopian and Eritrean forces deliberately destroyed, damaged, and looted food production and supply chains and the entire health system.

The Ethiopian government and its allies are indeed working against the core UN charter and instruments including universal human rights such as the right to life, freedom of movement, right to food, right to health, and right to humanitarian aid. The people of Tigray are now denied the enjoyment of a standard of health services that they attained after decades of a hard, consistent and holistic effort to attain primary health care. The WHO sent critical medical supplies to all conflict-affected regions of Ethiopia but while the consignments to the Amhara and Afar regions arrived at destination without problems, those destined for Tigray have been deliberately blocked by Ethiopian authorities and their allies from reaching people who are being deliberately starved and denied access to basic medical supplies.

It is within this context that Dr Ghebreyesus is speaking out and calling for the Ethiopian and Eritrean governments to stop weaponizing access to food and medical supplies. Speaking at the inauguration of his second term, Dr Ghebreyesus said:

“I am humbled by the opportunity provided by the Member States to serve a second term as WHO Director-General”. He added, “This honour, though, comes with great responsibility and I am committed to working with all countries, my colleagues around the world, and our valued partners, to ensure WHO delivers on its mission to promote health, and keep the world safe and serve the vulnerable.”

Dr Ghebreyesus is therefore acting in line with his mandate to be a voice for the voiceless victims. Dr Ghebreyesus is impartial in that, under his leadership, the WHO has also been dispatching critical medical supplies to the Afar and Amhara regions; the UN system has a watchdog that oversees the impartiality of UN officials. Moreover, the UN also has an Office of Internal Oversight Services, which investigates misconduct and violations by UN officials and submits reports and recommendations to the UN Secretary-General.

The Ethiopian government did lodge a complaint to the WHO Office of Compliance, Risk Management and Ethics (CRE) and to the WHO’s Executive Board, alleging misconduct and calling for the removal of Dr Ghebreyesus from office claiming that he was using the office of the Director-General to further his personal political interests. This is part of the campaign that the Ethiopian government has been waging against all Tigrayans—attacks and witch-hunts against Tigrayans that lack any credibility. UN peacekeeping troops of Tigrayan origin deployed in Somalia, South Sudan and Sudan faced similar attacks which led the UN to treat them as prima facie refugees in need of protection.

Neutrality 

In his 2021 book titled Perilous Medicine, Professor Leonard Rubenstein describes the debate within the humanitarian and donor community about the role of neutrality in aid work, which can be extrapolated to the UN’s high-ranking officials.

Neutrality, one of the four principles of UN humanitarian practice (humanity, impartiality, and independence), is about not taking a position on one side or another in a conflict. When undertaking humanitarian and other UN operations in zones of armed conflict, UN officials are expected to remain neutral, avoiding taking sides or showing favouritism. In contrast, impartiality is maintaining non-discriminatory positions towards individuals and  groups of  people in a conflict  needing humanitarian assistance. However, neutrality should not mean that UN officials have to remain tight-lipped and passive when any of the warring parties are massacring and deliberately starving a civilian population and denying them access to life-saving assistance because of their ethnic origin, gender, nationality, political opinions, race or religion. As long as aid workers (or in this case UN officials) maintain impartiality, Professor Rubenstein questions if maintaining neutrality vis-à-vis a waring party or parties is even morally ethical, especially when they attack or deny civilians humanitarian assistance  because of their identity, as is the case with ethnic Tigrayans.

The WHO, led by Dr Ghebreyesus, has been impartial in its medical aid delivery to all ethnic groups affected by the civil war in northern Ethiopia.  While neutrality has been interpreted as not taking sides, it does not require Dr Ghebreyesus to be indifferent to the suffering of millions civilian Tigrayans when the Ethiopian government and its allies blatantly discriminate against them and deny them access to vital international medical assistance because of their ethnicity.

In her article Neutrality vs impartiality: What is the difference?, Carol Devine of Doctors Without Borders says, “Neutrality is not the same as staying silent. It’s nuanced and even controversial. MSF reserves the possibility to speak in public about massive human rights violations and crimes of humanity, including genocide.” A misguided interpretation of neutrality can lead, as it did in Rwanda, to catastrophic and regrettable tragedies. When civilians are facing crimes against humanity, war crimes, ethnic cleansing and genocide as is still happening in Tigray, taking no action using neutrality as excuse is against the fundamental values and mandates of the UN human rights and international humanitarian law.

A misguided interpretation of neutrality can lead, as it did in Rwanda, to catastrophic and regrettable tragedies.

It is important to be aware of the unfortunate conflation of neutrality with the duty of impartiality. Indeed, former UN Deputy Secretary-General Louis Frechette is cited saying, “The UN cannot be impartial between those who respect international, humanitarian, and human rights laws and those who grossly violate them.” In 1999, former UN Secretary-General, Kofi Annan said, “In the face of genocide, there can be no standing aside, no looking away, no neutrality – there are perpetrators and there are victims, there is evil and there is evil’s harvest.”

The UN and its highest officials must not choose inaction under the pretext of observing neutrality especially where genocide, crimes against humanity, war crimes, ethnic cleansing, weaponised rape, and starvation are taking place. The heads of UN organizations including Secretary-General Antonio Guterres need to join Dr Ghebreyesus in speaking up and acting against the continuing ethnic cleansing, siege and humanitarian blockade of millions of civilian Tigrayans.

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