On 13th May, the Constitutional and Human Rights Division of the High Court of Kenya handed down its judgment in David Ndii and Others v Attorney General and Others (the BBI Judgment). Through the course of the judgment, the Court examined a fascinatingly broad range of issues, including the question of whether the Kenyan Constitution of 2010 has an un-amendable “basic structure”, the extent and limits of public participation in law-making, and political representation and the alteration of constituencies. For this reason, and for the clarity of its analysis, the BBI Judgment is a landmark judicial verdict that will be studied by students of constitutional law across the world in the days to come.
The primary issue in the BBI judgment involved a set of contentious proposals to amend the Kenyan Constitution. After winning power in 2017, in a controversial general election (the results were set aside by the Supreme Court the first time, and the Opposition boycotted the rerun), Kenyan President Uhuru Kenyatta created a “Building Bridges to Unity Taskforce” (BBI Taskforce), which was mandated to come up with “recommendations and proposals for building a lasting unity in the country”. After the BBI Taskforce submitted its report, the president appointed a sixteen-member “BBI Steering Committee”, whose terms of reference included “administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the Taskforce Report”. The Steering Committee’s report finally turned into a Bill for bringing about wide-ranging amendments to the Kenyan Constitution (“The Constitution of Kenya Amendment Bill, 2020).
Under Article 257 of the Kenyan Constitution, one of the ways to amend the Constitution is by “Popular Initiative”, which requires – as a starting point – the signatures of one million registered voters (Article 257). Consequently, the BBI Secretariat commenced the process of gathering signatures. At this point, the entire process – as a whole, as well as its constituent parts – was challenged before the High Court through a number of petitions. All these petitions were consolidated, and the High Court eventually struck down the whole of the BBI process as unconstitutional.
The Court framed a total of 17 issues for disposal.
The basic structure
As the challenges were to (proposed) constitutional amendments, at the outset, the High Court was called upon to answer a crucial – preliminary – question: was there any part of the Kenyan Constitution that was un-amendable, i.e., beyond the amendment processes set out in the constitution itself (the “basic structure” question).
The constitutional provisions
To understand this better, let us briefly consider Articles 255 to 257 of the Kenyan Constitution, that deal with constitutional amendments. Articles 256 and 257 set out two methods of amending the constitution: through parliament, and through Popular Initiative. The Parliamentary Process is contained in Article 256, which requires amendments to be passed by a two-thirds majority of both Houses of Parliament. The Popular Initiative process is contained in Article 257. It requires the signature of one million registered voters, followed by a range of procedural and substantive steps, such as certification by the Independent Electoral and Boundaries Commission (IEBC), approval by a majority of county assemblies, and approval by a majority in both Houses of Parliament (failing which, the proposal can be put to a referendum).
Article 255 of the Kenyan Constitution places a further requirement for certain types of amendments. If an amendment falls into one of the ten categories set out in Article 255(1) (including Kenyan territory, the Bill of Rights, presidential terms, etc.), then in addition to the processes described in the previous paragraph, it must also be approved in a referendum by a simple majority (and under certain quorum rules). A perusal of the categories under Article 255(1) reveals – unsurprisingly – that they pertain to core structural issues, and are therefore deemed more important (in a way), or – dare we say it – more basic than the other constitutional provisions.
The text of the Kenyan Constitution, therefore, sets out two processes of amendment: Parliament (Article 256) and People and Parliament (Article 257). It also divides the constitution into two sets of provisions: those that can only be amended following a referendum, and those that do not need a referendum (Article 255). The key question in the BBI Judgment was whether Articles 255 to 257 were exhaustive when it came to constitutional amendments, or whether there was a third set of provisions that could not be amended even if the scheme under these articles was scrupulously followed.
To answer this question, the High Court embarked upon a detailed analysis of Kenyan constitutional history. It noted that if there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a “model . . . of participatory constitution building process”. This meant that the public was meant to be involved in every step of the constitution-making process, as opposed to the “20th century model”, where constitutions drafted by experts were submitted for public approval, giving the people a say over only the final version.
Indeed, the 2010 Constitution – the Court argued – was designed to respond to two sets of pathologies that had plagued Kenyan constitutionalism in its previous iterations (starting from independence in 1963). The first was a “culture of hyper-amendment”, where presidents amended constitutions with such ease and such frequency, that the document became little more than a “hollow shell”, creating a raft of “constitutions without constitutionalism”. This was especially true in the 1970s and 1980s, when Kenya effectively became a one-party state, and this was at the heart of demands for constitutional reform when multi-party democracy returned in 1991.
If there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a model of participatory constitution-building process.
The second piece of constitutional history that culminated in the 2010 document was a two-decade emphasis on a citizen-led process. The High Court’s account of this history – starting at paragraph 411 of the judgment – is deeply fascinating, and repays careful study. Despite strong pushback from the political executive – with the president sarcastically asking “What does Wanjiku [i.e. the common Kenyan] know about the Constitution?” – efforts to centre the citizen in the constitution-making process remained undeterred. The Constitution of Kenya Review Act of 1997 specified that constitutional review had to be “by the people of Kenya”, and went on to provide a framework for public participation – insulated from legislative and executive interference – at every stage of the drafting process. The Constitution of Kenya Review Commission (the CKRC) implemented this at the ground level through a sequential process that involved civic education, research, public consultation, preparing the draft bill, and considering the commissioners’ report. After a long process that included considering more than 35,000 submissions from the people, a draft constitution was prepared by 2002. This process was, however, short-circuited when the then President Daniel arap Moi dissolved Parliament before the 2002 general election.
In the 2002 elections, however, President Moi lost power, and the opposition coalition that entered into government committed to continuing with the constitutional process. After further consultations, a draft called “the Bomas Draft” was prepared; however, the government attempted to significantly alter the draft through a non-participatory parliamentary process that resulted in a fresh document called “the Wako Draft”. Attempts to force through the Wako Draft were forestalled when, in 2004, the High Court of Kenya famously held that the draft would have to be put to a referendum. In 2005, when the referendum did take place, the Wako Draft was voted down 58-42.
Constitutional reform came back on the table after the large-scale violence in the aftermath of the 2007 general election, which needed international mediation. The legal framework for this was provided by the 2008 Constitution of Kenya Review Act, which again placed public participation at the centre (although its implementation in this regard was criticised). On 4th August 2010, the new draft constitution was passed with 68.55% of Kenyans voting in its favour.
Relying upon this constitutional history – i.e., the pathologies of hyper-amendments and the two-decades-long struggle for public participation – the High Court concluded that “these principles of interpretation, applied to the question at hand, yield the conclusion that Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments.”
This was buttressed by the fact that the Wako draft – which did not respect the principle of public participation – had been voted down by the Kenyan people. Over the course of the years, it had become clear that participation in the constitution-making process required four distinct steps: civic education to equip people with sufficient information to meaningfully participate in the constitution-making process; public participation in which the people – after civic education – give their views about the issues; debate, consultations and public discourse to channel and shape the issues through representatives elected specifically for purposes of constitution-making in a Constituent Assembly; and, a referendum to endorse or ratify the Draft Constitution.
The Court thus found:
What we can glean from the insistence on these four processes in the history of our constitution-making is that Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through a similarly informed and participatory process. It is clear that Kenyans intended that each of the four steps in constitution-making would be necessary before they denatured or replaced the social contract they bequeathed themselves in the form of Constitution of Kenya, 2010.
The Court labeled this the “primary constituent power” – i.e., the power possessed by the people themselves, as a constituent body – as opposed to the “secondary constituent power” (the Popular Initiative + Referendum process under Articles 255 and 257) and the “constituted power” (amendment only by Parliament under Article 256). The “primary constituent power” was located outside of the constitution’s amendment provisions, and was plenary and unlimited. It followed that there were substantive limitations upon which amendments the secondary constituent power or the constituted power could bring about: such amendments could not “destroy the basic structure of the Kenyan Constitution”, because that right – i.e., to make or radically alter the fundamentals of a constitution – lay only with the primary constituent power, i.e., with “the People.”
Thus, while the High Court affirmed the basic structure doctrine in the Kenyan context, it also went one step beyond. In its classical iteration, the basic structure stops at saying that constitutional amendments cannot damage or destroy the basic structure. It hints at the possibility that such alterations can be brought about only through revolution or by a complete destruction of the existing order but – for obvious reasons – does not spell that out. The assumption is that if a constitution is to be replaced altogether, then it can only be done extra-constitutionally – and presumably through great revolutionary upheaval. The Kenyan High Court on the other hand – drawing from Kenyan history – spelt out a concrete, four-step process that could be resorted to if the People did want to change the basic structure of the Kenyan constitution. There is, of course, an interesting question: now that the Court – a body that owes its own existence to the 2010 Constitution – has spelt out the process, is it “extra-constitutional” in any genuine sense? Or is it simply a third kind of amendment process that owes its existence solely to the judiciary? This is no doubt a debate that will be joined intensely, both in Kenya and elsewhere, in the days to come.
It is nonetheless important to note, therefore, that the High Court did not actually hold that any provision or principle of the constitution is entirely un-amendable (the default position under classical basic structure doctrine). Every constitutional provision is hypothetically amendable, but some – that the Court called “eternity clauses”, borrowing form Germany – can only be amended by “recalling the Primary Constituent Power“, in accordance with the four-step process that the Court set out. As is now familiar to students of the basic structure, the Court declined to set out an “exhaustive list” of eternity clauses, noting only that this would have to be determined on a case-to-case basis, while providing illustrative examples: constitutional supremacy, the role of international law on the one hand (eternity clauses), and the number of constituencies on the other (not an eternity clause).
A final point: it is particularly fascinating to note that the High Court derived its articulation of the basic structure not from a textual interpretation of the word “amend”, or from structural arguments about implied limitations, but from Kenyan social history. Its entire analysis was focused on how Kenyans struggled for – and won – the right to public participation in constitution-making, and that was the basis for holding that the core of the constitution could not be altered without going back to the people. A crucial argument of transformative constitutionalism is that constitutional interpretation needs to work with an expanded interpretive canon, which centres people – and social movements – in its understanding of constitutional meaning. The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.
The popular initiative and the BBI process
A second key issue that fell for determination was the exact meaning of Article 257(1) of the Kenyan Constitution. Article 257(1) states that “an amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.” The BBI Taskforce and Steering Committee, however, had been set up by the President. Consequently, was it legal for it to start gathering the one million signatures needed for triggering amendment by Popular Initiative?
The High Court held that it was not. Going back to the constitutional history outlined above, it held that through multiple iterations of constitutional drafts, it had been clear that the intent of the provision that finally became Article 257(1) was that the power to initiate a constitutional amendment lie in the hands of voters. Here, the president’s direct involvement – including establishing the Taskforce and Steering Committee through gazette notifications – made it clear that the amendment bill had not been initiated by the voters. This was also impermissible because the scheme of Article 257 made the president the adjudicating authority of whether or not a referendum was to take place – thus making that authority both the “player and the umpire in the same match”, if he was also allowed to initiate proceedings.
Thus, as the Court summed up:
It is our view that a Popular Initiative being a process of participatory democracy that empowers the ordinary citizenry to propose constitutional amendment independent of the law making power of the governing body cannot be undertaken by the President or State Organs under any guise. It was inserted in the Constitution to give meaning to the principles of sovereignty based on historical past where the reservation of the power of amendment of the Constitution to the elite few was abused in order to satisfy their own interests.
While I find this clear and persuasive, it is – I think – an open question about how effective this part of the ruling will be. One can imagine all too easily how – without further safeguards and judicial good sense – such rulings can be subverted through use of proxies as “initiators” of the process. Whether or not that plays out in the future will be interesting to see.
In this case, however, it meant that the BBI process – insofar as it contemplated the Steering Committee recommending “constitutional changes” as part of its terms of reference – was illegal. An executive-led amending process was unknown to the constitution: it had to be parliament (Article 256) or people and parliament (Article 257).
The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.
The Court also found the BBI process to be unlawful for another reason – it violated Article 10’s requirement of public participation in law-making. Over the years, the Kenyan judiciary has developed a rich and substantive jurisprudence around public participation under Article 10, that requires meaningful participation, and all that it entails (intelligibility, enough time, substantive exchange of views etc.). Here, however, the Court found a very straightforward violation: the Constitutional Amendment Bill had been made available only in English, whereas Kiswahili and Braille were constitutionally-mandated languages.
Thus the Court held:
The copies also ought to have been made available in other communication formats and technologies accessible to persons with disabilities including Kenya Sign Language as required under Article 7(3)(b) of the Constitution. Only then would the voters be deemed to have been given sufficient information to enable them to make informed decisions on whether or not to append their signatures in support of the proposed constitutional amendments.
Constituency apportionment and delimitation
A significant portion of the Constitutional Amendment Bill dealt with effective alterations to Article 89 of the Kenyan Constitution, which deals with “delimitation of electoral units”. The Bill sought to introduce 70 new electoral constituencies – but also directed the IEBC to complete the delimitation within a specified time, and the basis of delimitation (“equality of [the] vote.”). The roots of this, again, lay in pre-2007 distortions of constituencies that had severely compromised the one-person-one-vote principle. To correct this, in the run-up to the 2010 Constitution, the Interim Independent Boundaries Review Commission (IIBRC) had presented a detailed report, which recognised the importance of stakeholder participation in any constituency or electoral boundary review process, and set out five principles of delimitation that were eventually incorporated into Article 89.
The Constitutional Amendment Bill gave the High Court an immediate opportunity to apply the basic structure doctrine that it had just crafted. The Court found that while the number of constituencies was not part of the eternity clauses, the provisions dealing with the method of delimitation were:
Both the text and the history of the Article makes it clear that Kenyans were very particular about the criteria of the delimitation and apportionment of constituencies. This was because the apportionment and distribution of electoral units has a bearing on both the right to representation (which is a political right) as well as the distribution of national economic resources (which is an economic right). The reason for this, as outlined above, is that a substantial amount of national resources distributed to the regions by the national government is done at the constituency level . . . Given this history and the text of the Constitution, we can easily conclude that whereas Kenyans were particular to entrench the process, procedure, timelines, criteria and review process of the delimitation of electoral units, they were not so particular about the determination of the actual number of constituencies.
Thus, the Constitutional Amendment Bill’s departure from the stipulated processes – in particular, by detailing how and when the IEBC had to do its job – was unconstitutional. Lurking underneath this reasoning, one senses an undercurrent of concern about institutional independence: it appears clear that the Constitutional Amendment Bill amounted to an encroachment upon an independent, fourth-branch institution’s sphere of work, and – indeed – interfered with how the ground rules of the democratic processes were set. This is evident in the Court’s – correct – observation that the Bill attempted to amend Article 89 “by stealth”, setting up a parallel process of boundary delimitation, as well as dispensing with public participation and taking away the guaranteed constitutional right of individuals to challenge delimitation (also under Article 89):
We say it is an attempt to amend the Constitution by stealth because it has the effect of suspending the operation of Article 89 without textually amending it. The implications of such a scheme if allowed are at least two-fold. First, it creates a constitutional loophole through which the Promoters can amend the Basic Structure of the Constitution without triggering the Primary Constituent Power. Second, such a scheme creates a “constitutional hatch” through which future Promoters of constitutional amendments can sneak in fundamental changes to the governing charter of the nation for ephemeral political convenience and without following the due process of the law.
Although the Court did not put it in so many words, this is – in many ways – a classic checks-and-balances argument: democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference (and, in the Kenyan case, buttressed by requirements of public participation). Distortion or undermining of fourth-branch institutions (whether explicitly or implicitly) would amount to undermining the ground rules of the democratic game, which are what render democratic outcomes legitimate. Thus – once the Court has committed to identifying a set of constitutional provisions as “eternity clauses”, provisions governing political representation are prime candidates. It is perhaps therefore rather fitting that it was Article 89 that was the basis of the High Court’s first application of the basic structure doctrine.
There were a number of other issues, all of which deserve a detailed analysis of their own, but which we do not have further space to examine here. These include the finding that there was no suitable legislative or regulatory framework to collect signatures and to conduct the referendum; the (fascinating) holding that amendments would have to be presented separately in multiple referenda, and not as a bloc; and the finding that County Assemblies could not alter or modify a Popular Initiative proposal (so as to avoid political capture), but were only allowed to consider and vote on it. All of these holdings raise a range of important questions that will no doubt be discussed in detail in the coming days.
Democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference.
If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender. While the High Court joins the family of courts that have adopted a variant of the basic structure doctrine, it does so in an entirely unique – and compelling – manner: relying upon social and constitutional history in order to craft a three-tiered hierarchy of constituted power, secondary constituent power, and primary constituent power; it then utilises that same social history to spell out in great detail what the components of primary constituent power would look like, thus taking on the (seemingly) paradoxical task of constitutionalising revolutionary power.
If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender.
But even more than that, what is perhaps most heartening about the judgment is how it uses constitutional silences and the interpretive openness of constitutional text to advance an interpretation that in concrete and tangible ways seeks to empower citizens against the executive. From its spelling out of the basic structure, to its interpretation of Article 257, and to its reading of Article 89, at every step, the Court is keenly aware of the power difference between a powerful executive and the individual citizen, and at every step, the judgment works to mitigate that powerful imbalance upon the terrain of the constitution. In a world that is too full of Imperial presidencies and quiescent courts, the BBI Judgment is an inspiring illustration of courts and constitutions at their very best.
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Changes in Suicide Reporting Welcome, but Slow
Without a deeper understanding of the harm insensitive reporting on suicide causes, attempts to change may be wrongly deemed as political correctness.
Earlier this year, the Baraza Media Lab and the Centre on Suicide Research and Intervention published a report that looked at how broadcasting stations report on suicide on social media. Its contents were sobering. Many leading media houses were found to report suicide as a criminal act. Reports also contained harmful elements such as descriptions of suicide methods and imagery of suicide and did not provide helpful information for readers who may be thinking of suicide.
So how have journalists been reporting on suicide since the data was collected? A very cursory survey of news outlets on social media shows reasons for both optimism and worry. Over the course of 2023, media outlets have published more stories about mental health, indicating an increasing awareness of it. This year has also seen an increased number of responsibly written social media posts that take into account the need for sensitivity on suicide.
Now, the negatives. Knowledge on responsible reporting of suicide, while improved, remains inconsistent across news operations. Real progress will require further integrating social media into editorial processes, subjecting its copy to as much rigour as the stories themselves to ensure errors are not introduced once stories are completed. Also, many insensitive references to suicide on social media were accurately reproduced from news stories.
The term “committed suicide” continues to appear on news websites, even in stories where responsible reporting would be expected, such as those that explore the risk factors of suicide. Stories use the insensitive word “suicidal” in phrases like “treating suicidal people as criminals” and “people who are suicidal”. The same insensitivity is also observed in the phrase “mentally ill” – ironically in stories that call for acts of suicide to be decriminalised.
It’s not clear that all journalists understand why respectful reporting on suicide is necessary. It was interesting – and revealing – to see a media outlet’s official X account, formerly known as Twitter, include both the terms “died by suicide” and “committed suicide” in the same tweet.
News websites continue to narrate morbid details about the manner of death by suicide. You are still likely to find phrases like “the body was found hanging in his room”, a man “who set himself ablaze” and “doused himself in a flammable substance before setting himself ablaze while carrying the Kenyan flag”. The imagery of suicide, with the noose particularly prominent, continues to be used in stories, inadvertently advertising hanging as a suitable method.
It’s not clear that all journalists understand why respectful reporting on suicide is necessary.
Media outlets aired insensitive footage. One camera focused on a woman overcome with emotion, who understood she was being filmed. One story goes as far as to narrate that instead of dissuading the deceased from taking his own life, a bystander handed him a lighted match and taunted him over unsuccessful attempts to light himself on fire, displaying the contempt people have for people thinking of suicide and inviting viewers to agree with those ideas.
The approach to reporting suicide varies depending on whether the person who died by suicide had committed a violent crime just prior, usually another killing. Reports are more likely to use “died by suicide” where the only death reported is by suicide. On the other hand, when person who died by suicide had killed another person, the phrase “committed suicide” is used freely.
The approach to reporting suicide varies depending on whether the person who died by suicide had committed a violent crime just prior, usually another killing.
Yet the same responsibility to reduce the prominence of suicide applies even in the context of crime reporting, and steps that broadcasters take to make footage of murders acceptable, such as using trigger warnings and black and white for bloodstains, may still be unacceptable in the context of suicide prevention. According to a 2021 brief by the University College Cork, Ireland, no graphic footage should be used in reporting murder-suicides, and care should be taken to discourage copycats, or position murder-suicide as a solution to anything.
Without a deeper understanding of the harm insensitive reporting on suicide causes, attempts to change may be wrongly deemed as political correctness, resulting in disrespectful coverage that tries to “say it as it is” and neglects to include sources of help for people who may be thinking of suicide.
Why President Kagame Should Not Run for a Fourth Term
The 2024 elections in Rwanda are an opportunity for the country to move away from strongman leadership to enable the emergence of strong institutions and a governance that is more tolerant of critics.
The constitution of Rwanda was amended in 2015 to allow President Paul Kagame to stand for a third term of seven years. Kagame was re-elected in 2017 and his term ends in 2024. The change in the constitution also allows him to stand for a fourth and a fifth five-year term. In my view, President Kagame should not run for a fourth presidential term in the 2024 elections.
President Paul Kagame was appointed Vice President and Minister for Defence on 19 July 1994, immediately after the end of the war and the Rwanda genocide. When President Pasteur Bizimungu resigned in 2000, Kagame was elected by the Transitional National Assembly to replace him. Three years later, in 2003, Kagame was elected president and has been president of Rwanda for over two decades. He has, therefore, risen to higher levels of decision-making over three decades, a sufficient period of time during which to oversee the implementation of policies he thought would advance the betterment of Rwandans. Kagame should, therefore, consider letting another willing and capable Rwandan build upon his achievements and continue to advance Rwanda’s interests. Indeed, under Kagame’s leadership, Rwanda has made some achievements but there are also shortcomings.
First, from a war-torn country, Rwanda has emerged to become a state with well-defined and functioning structures and institutions supported by fairly clear legislations. In my opinion, this has been achieved thanks to Kagame’s administration’s commitment to bring about change in Rwanda manifested immediately after the end of the war and the genocide against the Tutsi.
Second, Rwanda has also made some economic gains even though these can be challenged in many aspects. In 2000, Kagame made a pledge to transform Rwanda from a low- to a middle-income country driven by a knowledge economy by 2020. Since then, the Rwandan economy has grown significantly and its GDP per capita has increased from USD304 in 1995 to USD940 in 2022. The country’s human development index has soared and Rwanda has been recognised by the World Health Organization as one of the countries that are performing well on the goal of achieving universal health coverage. The country’s life expectancy has increased significantly, from 47 years in 2000 to 67 years in 2020. Moreover, according to UNICEF, the government has made some improvements in expanding education for all across Rwanda.
Lastly, through a meticulously executed campaign of communication, compelling narratives have been disseminated across the world that speak well of Rwanda. This along with the country’s commitment to deploy its soldiers to multinational peacekeeping missions across the world (Rwanda ranks fourth on the list of countries that contribute in peacekeeping in the world) has enabled Rwanda to strengthen its foreign relations with other countries and project its image as a development success story.
There are certainly more achievements that President Kagame has made during his 30 years in leadership that his replacement can learn from and retain to move Rwanda forward. However there are shortcomings. Kagame managed to put the country back on the world map but failed to create an environment for the country’s citizens to exercise their fundamental rights and freedoms.
Upon taking power following a military victory, his political party, the Rwandan Patriotic Front (RPF), pledged a consensual democracy to Rwandans. But over time this democracy has transformed into a political system that suppresses political dissent, restricts pluralism and curtails liberty in Rwanda. Most affected are those who dare or are perceived to challenge his government’s narrative in Rwanda and abroad. In many instances, Kagame’s government has abused its power, colluding with the judicial system to criminalise his critics. As a result, Rwanda has repeatedly been categorised as not a free country by Freedom House.
This has led to independent and inter-governmental human rights organisations and representatives of developed countries that financially support Rwanda to publicly criticise his leadership for lack of political inclusion, human rights violations and the overall democracy deficit in Rwanda. This situation continues to tarnish Rwanda’s reputation that Kagame’s leadership has been working hard to restore.
Furthermore, independent reports on the development of democracy and governance throughout the world – and in Africa in particular – all point out that citizen participation in Rwanda remains limited, as do local NGOs.
Political participation in Rwanda is limited only to those who adhere or are willing to be affiliated to his political party, the RPF. This has prevented the emergence of a genuine opposition that could have provided checks and balances across institutions in Rwanda. The repercussions are that lack of accountability within public institutions is rampant and Kagame has many times publicly criticised officials in his administration for not delivering as they should. In fact, the pledge he made in 2000 to transform Rwanda into a middle-income country driven by a knowledge economy has not materialised and Rwanda remains a low-income country to date.
Failure to effectively engage citizens in decision-making has also resulted in the implementation of development policies that do not meet the immediate needs of the population. Hence, the economic gains made by Kagame’s administration can be challenged in many aspects as previously pointed out. For instance, substantial public funds have been invested in the development of the Meetings, Incentives, Conferences, and Exhibitions (MICE) sector while less has been allocated to education, agriculture, and rural infrastructure development. Thus, despite remarkable economic growth and a significant improvement in the human development index registered by Rwanda since 1994, these achievements are tarnished by high inequalities in income, health and education. Furthermore, they are characterised by economic injustices such as unfair land expropriation and the uprooting of farmers’ crops. Rwanda’s human capital development remains below the average for African countries due to a lack of quality education and high levels of malnutrition among children below five years. Only 41 per cent of households in Rwanda are considered to be substantially food secure. The private sector’s contribution to growth has remained small and growth is predominantly led by state-owned enterprises and those belonging to the ruling party. Overall, Rwandans have been consecutively ranked among the bottom five least happy populations on the global happiness index.
Failure to effectively engage citizens in decision-making has also resulted in the implementation of development policies that do not meet the immediate needs of the population.
Over the past three decades, curtailed civil liberties and mounting social inequalities have seen Rwandans seek refuge abroad and prevented from returning to their homeland those who had fled Rwanda after the RPF took power in 1994. This situation has exacerbated the issue of Rwandan refugees that has persisted since Rwanda’s independence.
In particular, under President Kagame, the unresolved issue of Rwandan refugees settled in Rwanda’s neighbouring countries has been a source of political tensions between Rwanda and its neighbours. The Rwandan government has maintained that there are negative forces resident in eastern DRC that are out to destabilise Rwanda, a reference to the Democratic Forces for the Liberation of Rwanda (FDLR). The FDLR is an armed group formed by Rwandan refugees in DRC who, following their forcible eviction from Rwanda during the genocide, resorted to armed struggle as a means of retaking power in Rwanda. Despite Rwanda’s armed forces launching military operations against the FDLR on numerous occasions on Congolese soil in collaboration with the Congolese army, the Rwandan government continues to insist that the FDLR is a threat to Rwanda’s security.
The United Nations has twice – in 2012 and 2022 – accused Rwanda of supporting the M23, an armed group that is fighting in the eastern DRC. This conflict has displaced populations and led to the death of millions of African civilian lives. In 2016, the UN Security Council accused Rwanda of recruiting and training Burundian refugees with the aim of ousting the then Burundian president Pierre Nkurunziza. Western countries have suspended or withheld aid to Rwanda over allegations that it supported the M23 in 2012 and some of Rwanda’s donors have recently publicly called on the Rwandan government to stop supporting the M23 and remove its troops from eastern DRC. The European Union and United States of America have sanctioned Rwandan military officials for backing the M23. The US has placed Rwanda on the Child Soldiers Prevention Act List and suspended its military aid to the country due to Rwanda’s support of the M23, which the US says recruits and uses child soldiers. Not only do these allegations of Rwanda’s involvement in the regional conflict further tarnish the country’s image that Kagame’s administration has worked hard to restore, but the tensions with neighbouring states have also prevented Rwanda from maximising the benefits of regional integration and trade for its development.
President Kagame should not run for a fourth term as the governance of Rwanda needs to be reformed so that it becomes more tolerant of critics, democratic and inclusive. To successfully implement such reforms in governance requires a new leadership with fresh perspectives and approaches that will be able to build on Kagame’s achievements in order to address unresolved historical grievances of Rwandans and at the same time enable Rwanda to maximise its potential in the region and experience genuine development.
President Kagame should not run for a fourth term as the governance of Rwanda needs to be reformed so that it becomes more tolerant of critics, democratic and inclusive.
Considering Rwanda’s history of long-serving strongmen who have taken power, retained it and lost it through violence, the 2024 presidential election is an opportunity for Rwandans to experience the transfer of power in a peaceful and transparent manner as has been the case in neighbouring countries including Burundi, DRC and Tanzania. It is an opportunity for Rwanda to move away from strongman leadership to enable the emergence of strong institutions to take the lead instead. This can be achieved by building on the legislations that have been reviewed and implemented under Kagame’s leadership. Therefore, while recognising with gratitude the achievements that he has made over the past three decades, Kagame’s greatest achievement yet would be to step away from power at the end of his term in 2024. In so doing, Kagame will have paved the way for better leadership in Rwanda and opened the door to future generations of Rwandans aspiring to become leaders in Rwanda.
Why Kenyans Demanded an Apology from King Charles
The traumatic legacy of British colonialism lingers in Kenya to this day, and this is why Kenyans were demanding an apology from King Charles.
Many British people are surprised that King Charles’s visit to Kenya was not welcomed by many Kenyans and human rights organisations. People whose families had suffered at the hands of British colonialists during his mother’s reign demanded an apology for crimes committed. Although the British monarch expressed “deepest regret” for the atrocities committed by the British in Kenya, he fell short of making a public apology.
However, many Brits believe that there is nothing the king needed to apologise for. One presenter on Sky News even wondered why Kenyans were calling for an apology from the king given that Britain had done much “good” in the country. After all, he said, without any hint of irony, the British Empire had brought democracy to Kenya (how he equated imperialism with democracy beats me) and given Kenyans “the gift of the English language”.
It was obvious that the presenter had been taught British imperial history that has whitewashed the atrocities that the British Empire committed in its colonies around the world. British children are to this day taught that British colonialism was a “civilising mission” that brought modern education and infrastructure, in addition to Christianity, to regions that were steeped in ignorance and backwardness. Apologists for the British Empire, such as the historian Niall Ferguson, author of Empire: How Britain Made the Modern World, argue that Britain should be congratulated for conquering the world because British civilisation brought science and technology to people who held superstitious beliefs, and injected a “work ethic” in populations that were lazy and lacking in imagination. This is sort of like saying that slave owners did slaves a favour by shipping them to the Americas and forcing them to work for free because these slaves are now US citizens and enjoy all that America has to offer (even though it took them four centuries to gain rights as equal citizens).
A few months ago, the editor of a German magazine contacted me to ask whether I could submit an article on the atrocities the British had committed in Kenya during colonialism. He told me that while his magazine had documented human rights violations by German and Belgian colonialists in places like Namibia and the Democratic Republic of the Congo, it had largely ignored the violations committed by Britain in places like Kenya because the majority of Germans believe that British colonialism was not as brutal as that of other European powers, and that its net impact on its colonies in Africa had been positive. It dawned on me that perhaps Europeans are not being told the true story about colonialism and its horrific impact on Africans. So, here’s primer.
Erasure of memory
Kenya officially became a British colony in 1920, but prior to that, from 1895, it was deemed a “protectorate” – a term suggesting that the colonisers who grabbed the land were there to protect the interests of the “natives” who would benefit from being colonised. A widely held belief is that because Britain spearheaded the abolition of slavery, the British were “benevolent” colonisers, unlike the French and the Belgians who plundered and looted their African colonies. (In addition to extracting raw materials and exporting items such as ivory and rubber, the French and the Belgians also stole invaluable artefacts from their colonies in West and Central Africa, which today are displayed in museums across Europe, including in Britain, despite efforts by African governments to have these artefacts returned to where they were stolen from.)
Yet, those who care to join the dots between the anti-slavery movement and the colonisation of Africa are acutely aware of the fact that the Berlin Conference of 1884-85 (dubbed the “Scramble for Africa”) that carved up Africa among European nations, including Britain, took place just a few years after slavery ended. Because slavery was no longer legal and was costly to maintain, the only other way Europeans could extract cheap labour and highly profitable resources from Africa was by colonising the continent.
In order to justify colonisation in settler colonies like Kenya and Zimbabwe (formerly known as Rhodesia), it was necessary to erase evidence of atrocities committed by the Europeans. Many of these atrocities remained unacknowledged and unreported for decades because archival documents were either destroyed or deliberately concealed. British historian David M. Anderson, author of Histories of the Hanged: The Dirty War in Kenya, discovered that thousands of documents belonging to the British colonial administration were flown to London in 1963 on the eve of Kenya’s independence and remained hidden from the public for decades, despite attempts by successive post-independence Kenyan governments to have these “stolen papers” returned to Kenya.
The magnitude of these atrocities was finally revealed in 2005 when the Harvard historian Caroline Elkins’ book, Britain’s Gulag: The Brutal End of Empire in Kenya, was published. The book documents the many crimes that British colonial officers committed in Kenya in their relentless pursuit of wealth, land and power for themselves and in the name of the British Empire. Mau Mau fighters and their supporters were subjected to extreme forms of torture, including castration, whipping, waterboarding and electric shocks.
The areas where these Mau Mau revolutionaries were arrested, detained, tortured or killed in the 1950s were in and around the Aberdares mountain range in Central Kenya where Queen Elizabeth, during an official visit to Kenya, ascended to the throne after the death of her father, King George VI, in February 1952. Eight months after she became Queen of England and head of the British Empire, a state of emergency was declared in Kenya that allowed the British Colonial Office to detain people without trial. Many freedom fighters languished in camps or jails where they were subjected to torture.
Mau Mau fighters and their supporters were subjected to extreme forms of torture, including castration, whipping, waterboarding and electric shocks.
The Mau Mau rebellion was a reaction to the expropriation of some 7 million acres of the most fertile land in Central Kenya and the Rift Valley – dubbed the White Highlands – in the early part of the 20th century after the building of the Uganda Railway, which opened up the interior of East Africa for British colonisation and settlement. The indigenous population was pushed into so-called reserves while others became squatters on land that was once theirs, working for white farmers for very little wages.
Elkins estimates that between 160,000 and 320,000 detainees, mostly from the Kikuyu, Meru and Embu ethnic groups, were tortured or maimed by the British at the height of the Mau Mau rebellion in the 1950s, although official figures state that the number of detainees was no more than 80,000. It is estimated that more than 20,000 Mau Mau militants were killed. Further, more than a million people, mainly in central Kenya, were detained in camps or confined in villages known as “reserves” (which have been described as “concentration camps”) surrounded by barbed wire. Tens of thousands of people held in these dense and unsanitary guarded camps and villages died from hunger or disease.
To justify these atrocities, British officials painted the Mau Mau as savage “terrorists” because of the violent and brutal methods they used to hunt down and kill white settlers and local informers. Official figures show that Mau Mau fighters killed 32 British settlers and 1,819 indigenous people whom they believed to be spies for the British.
Today what the British Empire did in Kenya might be perceived as a form of ethnic cleansing, but because colonisation was not unfashionable then, the atrocities were not condemned, nor was anyone tried. It was only in 2011, during a landmark court case brought against the British by a group of Mau Mau veterans, that the British government, under legal pressure, admitted that the documents were in a high-security facility that also contained files from 36 other former British colonies. (In 2013, 5,228 Mau Mau veterans were awarded £20 million in compensation by a UK court, which amounts to roughly £3,000 per victim, a paltry sum given the suffering they endured.) One of these documents contained details of eight colonial officers stationed in Kenya “roasting detainees alive”. All of the accused officers were granted amnesty.
Official amnesia and disinformation were not just part of a deliberate campaign by the British Empire to whitewash the crimes it committed in its colonies in Africa and elsewhere, but also a strategy employed by post-colonial governments in Kenya to cloak their own complicity in ensuring that British interests in the country were preserved.
Post-independence Kenyan elites benefitted from colonial policies that alienated Africans from their own land and became the biggest beneficiaries of post-independence land grabs disguised as land redistribution or adjudication. After independence, the so-called home guards or loyalists became the biggest beneficiaries of land and political power. According to Kenya’s 2013 Truth, Justice and Reconciliation Commission report, “Rich businessmen and businesswomen, rich and powerful politicians who were loyal to the colonial administration, managed to acquire thousands of acres at the expense of the poor and the landless.” Hence, “instead of redressing land-related injustices perpetrated by the colonialists on Africans, the resettlement process created a privileged class of African elites, leaving those who had suffered land alienation either on tiny unproductive pieces of land or landless.” Even today in Kenya, members of freedom fighting movements like the Mau Mau remain landless and poverty-stricken while those who sided with the colonialists are among the richest people in the land.
After independence, the so-called home guards or loyalists became the biggest beneficiaries of land and political power.
The Mau Mau remained a proscribed organisation for four decades after independence. It was only in 2003, when Mwai Kibaki became president, that the Mau Mau were recognised for the role they had played in Kenya’s struggle for independence. Kenyatta Day on 20 October was renamed Mashujaa Day (Heroes Day) to commemorate all those who died while fighting for freedom. In 2007, a statue of Dedan Kimathi was erected in Nairobi’s central business district, and in 2015, following the 2013 UK court decision to compensate Mau Mau veterans, the British government put up a Mau Mau memorial sculpture in Nairobi’s Uhuru Park “as a symbol of reconciliation between the British government, the Mau Mau and all those who suffered”.
Despite these symbols of reconciliation and healing, the traumatic legacy of British colonialism lingers in Kenya to this day. This is why Kenyans were demanding an apology from the King – because the wounds have not yet healed. While a public apology might not have been enough to completely heal the wounds and traumas of the past, it would have been an important first step.
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