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

13 min read.

The High Court joins the family of courts that have adopted a variant of the basic structure doctrine, and has done so in an entirely unique and compelling manner.

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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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Conflict in Marsabit: Voter and Politician Locked in a Danse Macabre

The nature of the conflict in Marsabit has changed. Deaths are tallied, and ledgers of the unmourned dead are meticulously kept.

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Conflict in Marsabit: Voter and Politician Locked in a Danse Macabre
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Counting the dead

Ninety-three deaths in the past year, the count has dominated national TV coverage of conflict in Marsabit, contributing to the trend of turning the effect of the conflict and the loss into a body-counting exercise.

A year ago, Saku Member of Parliament (MP) Ali Raso Dido spoke of the number of people killed in his constituency. On his list there were only the Borana dead; he did not include the dead from other communities. To him, as an MP, only Borana lives mattered and were worthy of raising on the floor of parliament.

In a lengthy response, his counterpart, North Horr MP Francis Chachu gave the number of dead in his constituency. He listed only the Gabra dead.

In the last cycle of conflict in Marsabit County, 75 houses were burnt down, and about 850 families were displaced. Governor Mohamud Ali called a press conference at which the list of the dead was the central theme of his statement.

Since the state has no official data on number of people who have died as a result of conflict in Marsabit, all these accounts are true, but they are also subjective and incomplete. Just why the counting is done, where to begin counting, who is to be counted and who does the counting are the concerns of these times.

In between the statistics informing politicians’ petitions to parliament, or forming the subject of a governor’s hasty press statement or the prop of a news story, there is a whole social milieu within which the conflict exists and how it is processed at the political and economic levels of grief.

A macabre dance between voters and politicians

Proximity to countries in conflict—Ethiopia, Somalia, and South Sudan—and the easy availability of Small Arms and Light Weapons have been the central explanation for the conflict in Marsabit County. While valid and, in some instances, correct, this explanation misses the fact of the banality of conflict in the county—a more insidious new lexicon that normalizes killing beyond the traditional boundaries of ethnic conflict is developing.

In the last cycle of conflict in Marsabit County, 75 houses were burnt down, and about 850 families were displaced.

This change in the ethnic conflict dynamic is a function of a perverse, mutually reinforcing loop involving politicians and voters, each egging on the other to visit more death and destruction on the opposite community. The hypercompetitive nature of local elections post-devolution significantly exacerbates this loop.

Thus, taking the “war” to the other community becomes a politician’s campaign pledge rather than the promise of building hospitals and schools or bringing about the desperately needed development. The more vociferous a politician becomes, the more likely he is to be elected.

This perverse incentive makes politicians more incendiary, making both the threat of violence and the violence itself politically rewarding.

Ancestral hatred theory

While it is often cast as anchored in ancestral hatred, there is something new about conflict in Marsabit. And because it is mutating even as we all watch, we sometimes miss it. What makes it unique is its banalisation.

Three aspects make recent conflicts in Marsabit distinct from the old ones.

One, the slow-burning, episodic nature of the conflict and the attendant “peace” meetings have come to be accepted as an immutable fact of life. But the peace-industrial complex has done little to end the conflict; instead, the conflict has mutated into something new, complete with a new lexicon and signals far more incendiary than the old conflict. This rinse-and-repeat cycle has spawned a coterie of peace entrepreneurs activated at a moment’s notice whenever violence breaks out.

This perverse incentive makes politicians more incendiary, making both the threat of violence and the violence itself politically rewarding.

Two, with increased competition over land and resources under devolution, this “new” conflict is increasingly framed in apocalyptic, existential language. As a result, voters prefer politicians who cast themselves as the “defenders” of the community from outsiders’ keen on taking their land and resources. Thus, voters lean towards politicians with a “warlord” mentality rather than those with a good development record.

Three, in this “new” conflict controlling the narrative is central, making the national media and the local-language radio stations the battleground. Where the national media frames the region as a godforsaken Badlands, local-language radio stations offer politicians a safe space from where to speak directly to their people unfiltered. WhatsApp and the ever-mushrooming Facebook groups act as a functional auxiliary for sharing media content. This interface has made the Marsabit conflict far deadlier on and offline.

Conflict as theatre 

Every death in Marsabit is increasingly seen through the prism of cold arithmetic—losing and winning. This strips death of its meaning. Every death is accounted for on a ledger; it is a debt to be repaid with the death of another. Death is performance theatre, acted rather than mourned.

This theatre extends to the burial, measured by the length of the cavalcade of vehicles that accompany the body to the grave, and the promises made by politicians at his funeral or in their interviews in the local and national media. During a recent funeral, the number of vehicles contributed to the drama as cars stretched a kilometre from the centre of town to the cemetery.

Every death is accounted for on a ledger; it is a debt to be repaid with the death of another.

There was such silence in the picture that the silence was in our minds, but we know that the slow pace of the vehicles inching towards the cemetery had no connection to the past murders. In the prevailing mind-set, this image will replace that of the mad man whose throat had been slit at 8 p.m. near the market and who had tried to walk from the back of the police van into the hospital and failed—rising and falling, rising and falling.

Later, as the region’s leaders foam at the mouth on TV, everyone goes home with smaller versions of the same talk. Emotions are gauged through the metrics of tribe, place of murder, murder weapon, the known backstories of the casualties; many went unmoored as collaterals of the drama that people made of the conflict.

Part of the post-death package is “what have our leaders said?” This reaction is baked into the system of conflict, whether the said leaders are maintaining the honour of the tribe. Whether they have promised to even the score or repay the death debts. Their words are shared on and off line as a whispered social contract.

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Kenyans Need an Education That Is Human: A Call to Conscience

Colonial and post-colonial governments have worked to separate education from access to culture and information, and to isolate the school as the only source of learning.

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Kenyans Need an Education That Is Human: A Call to Conscience
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This is a call to Kenyans of conscience to step back and reflect on the lies about education that are circulating in the media, the schooling system and government. Foreign sharks have camped in Kenya to distort our education. Using buzzwords such as “quality” and “global standards”, these sharks seek to destroy the hopes, dreams and creativity of young Africans, not just in Kenya, but in the whole region, and to make a profit while at it. With the help of local professors, bureaucrats and journalists, they spread hatred for education among the population. At the same time, they ironically create a thirst for schooling that makes parents resort to desperate measures to get their children into school, going as far as accepting violence and abuse in schools that causes children to take their own lives.

This insanity must end.

We must accept that education is a life endeavour through which people constantly adapt to their social and natural environment. Education is more than going to school and getting the right paper credentials. Education occurs anywhere where human beings process what they perceive, make decisions about it and act together in solidarity. That is why education, culture and access to information are inseparable.

However, since colonial times, both the colonial and “independence” versions of the Kenya government have worked hard to separate education from culture and access to information. They have done so through crushing all other avenues where Kenyans can create knowledge. We have insufficient public libraries and our museums are underfunded. Arts festivals, where people come together and learn from unique cultural expressions, have been underfunded, and by some accounts, donors have been explicitly told not to fund creativity and culture. In the meantime, artists are insulted, exploited and sometimes silenced through censorship, public ridicule and moralistic condemnations in the name of faith.

All these measures are designed to isolate the school as the only source of learning and creativity, and this is what makes the entry into schools so cutthroat and abusive.

But entering school does not mean the end of the abuse. Once inside the schools, Kenyans find that there is no arts education where children can explore ideas and express themselves. In school, they find teachers who themselves are subject to constant insults and disruptions from the Ministry of Education and the Teachers Service Commission. Under a barrage of threats and transfers, teachers are forced to implement the Competency Based training which is incoherent and has been rejected in other countries. Many of the teachers eventually absorb the rationality of abuse and mete it out on poor children whose crime is to want to learn. This desperation for education has also been weaponized by the corporate world that is offering expensive private education and blackmailing parents to line the pockets of book publishers.

Education is more than going to school and getting the right paper credentials. Education occurs anywhere where human beings process what they perceive, make decisions about it and act together in solidarity.

By the end of primary and secondary school, only a mere 3 per cent of total candidates are able to continue with their education. This situation only worsens inequality in Kenya, where only 2 per cent of the population have a university degree, and where only 8,300 people own as much as the rest of Kenya.

But listening to the government and the corporate sector, you would think that 98 per cent of Kenyans have been to university. The corporate sector reduces education to job training and condemns the school system as inadequate for meeting the needs of the corporations. Yet going by statements from the Kenya Private Sector Alliance (KEPSA) and the government, there is no intention to employ Kenyans who get training. The government hires doctors from Cuba and engineers from China, and then promises the United Kingdom to export our medical workers. KEPSA is on record saying that we need to train workers in TVET so that they can work in other African countries.

It is clear that the Kenya government and the corporate sector do not want Kenyans to go to school and become active citizens in their homeland. Rather, these entities are treating schooling as a conveyor belt to manufacture Kenyans for export abroad as labour and to cushion the theft of public resources through remittances.

The media and the church also join in the war against education by brainwashing Kenyans to accept this dire state of affairs. The media constantly bombards Kenyans with lies about the composition of university students, and with propaganda against “useless degrees”. The church has abandoned prophecy and baptizes every flawed educational policy in exchange for maintaining its colonial dreams of keeping religion in the curriculum to pacify Kenyans in the name of “morality”.

The government is now intending to restrict education further through the Competency-Based Curriculum (CBC) which seeks to limit education through pathways that prevent children from pursuing subjects of their interests, and by imposing quotas on who can pursue education beyond secondary school. At tertiary level, the government is devising an algorithm that will starve the humanities and social sciences of funding. It claims that funds will instead go to medical and engineering sciences, which are in line with Kenya’s development needs.

But recall that foreigners are doing the work of medical professionals and engineers anyway, so “development” here does not mean that Kenyan professionals will work in their home country. They will work abroad where they cannot be active citizens and raise questions about our healthcare and infrastructure.

The proposed defunding of the arts, humanities and social sciences aims to achieve one goal: to reserve thinking and creativity for the 3 per cent of Kenyans who can afford it. This discrimination in funding of university education is about locking the majority and the poor out of spaces where they can be creative and develop ideas. It also seeks to prevent Kenyans from humble backgrounds from questioning policies and priorities that are passed under dubious concepts such as “development needs” that are largely studied in the humanities and social sciences.

It is clear that the Kenya government and the corporate sector do not want Kenyans to go to school and become active citizens in their homeland.

Clearly, there is a war against education and against Kenyans being creative and active citizens in their own country. For the 8,300 Kenyans to maintain their monopoly of resources, they need to distract Kenyans with propaganda against education, they need to limit Kenyans’ access to schooling, and they need to shut down alternative sources of training, information and knowledge. By limiting access to schooling and certificates, the 8,300 can exploit the work of Kenyans who have not been to school, or who have not gone far in school, by arguing that those Kenyans lack the “qualifications” necessary for better pay.

We must also name those who enable this exploitation. The greedy ambitions of the political class are entrenched by people who, themselves, have been through the school system. To adapt Michelle Obama’s famous words, these people walked through the door of opportunity, and are trying to close it behind them, instead of reaching out and giving more Kenyans the same opportunities that helped them to succeed. This tyranny is maintained by a section of teachers in schools, of professors in universities and of bureaucrats in government, who all fear students and citizens who know more than they do, instead of taking joy in the range of Kenyan creativity and knowledge. The professors and bureaucrats, especially, are seduced into this myopia with benchmarking trips abroad, are spoon-fed foreign policies to implement in Kenya. They harvest the legitimate aspirations of Kenya and repackage them in misleading slogans. For instance, they refer to limited opportunities as “nurturing talent”, and baptize the government’s abandonment of its role in providing social services “parental involvement”.

These bureaucrats and academics are helped to pull the wool over our eyes by the media who allow them to give Kenyans obscure soundbites that say nothing about what is happening on the ground. They also make empty calls for a return to a pre-colonial Africa which they will not even let us learn about, because they have blocked the learning of history and are writing policies to de-fund the arts and humanities. We must put these people with huge titles and positions to task about their loyalty to the African people in Kenya. We call on them to repent this betrayal of their own people in the name of “global standards”.

We Kenyans also need an expanded idea of education. We need arts centres where Kenyans can meet and generate new ideas. We need libraries where Kenyans can get information. We need guilds and unions to help professionals and workers take charge of regulation, training and knowledge in their specializations. We need for all work to be recognized independent of certification, so that people can be paid for their work regardless of whether one has been to school or not.

We need recognition of our traditional skills in areas like healing, midwifery, pastoralism, crafts and construction. We need a better social recognition of achievement outside business and politics. It is a pity that our runners who do Kenyans proud, our scientists, thinkers, artists and activists who gain international fame, are hardly recognized in Kenya because they were busy working, rather than stealing public funds to campaign in the next election. Our ideas are harvested by foreign companies while our government bombards us with useless bureaucracy and taxes which ensure that we have no impact here.

We need for all work to be recognized independent of certification, so that people can be paid for their work regardless of whether one has been to school or not.

Most of all, we need an end to the obsession with foreign money as the source of “development”. We are tired of being viewed as merely labour for export, we are tired of foreigners being treated as more important than the Kenyan people. We are tired of tourism which is based on the tropes of the colonial explorer and which treats Africans as a threat to the environment. And the names of those colonial settlers who dominate our national consciousness must be removed from our landmarks.

Development, whatever that means, comes from the brains and muscles of the Kenyan people. And the key to us becoming human beings who proudly contribute to society and humanity is education. Not education in the limited sense of jobs and certificates, but education in the broader sense of dignity, creativity, knowledge and solidarity.

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UN Panel of Experts: Kenya Urged to Back Former CJ Willy Mutunga Candidacy

Willy Mutunga, the former Chief Justice and President of the Supreme Court of Kenya has been nominated by a number of international organisations to be one of the three experts. International human rights activists are calling on the government of Kenya to join with others in Global Africa to support the nomination of Willy Mutunga.

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UN Panel of Experts: Kenya Urged to Back Former CJ Willy Mutunga Candidacy
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On 28 June 2021, the Human Rights Council of the United Nations called on the UN to set up a panel of experts to investigate systemic racism in policing against people of African descent. This call came one year after the police murder of George Floyd in the United States. The UN panel of three experts in law enforcement and human rights will investigate the root causes and effects of systemic racism in policing, including the legacies of slavery and colonialism, and make recommendations for change. Willy Mutunga, the former Chief Justice and President of the Supreme Court of Kenya has been nominated by a number of international organisations to be one of the three experts. International human rights activists are calling on the government of Kenya to join with others in Global Africa to support the nomination of Willy Mutunga.

The government of Kenya is strongly placed to support the nomination of its native son, an internationally respected jurist. Kenya is currently a member of the UN Security Council and an influential member of “A3 plus 1”, the partnership between the three African members of the Security Council and the Caribbean member of the UNSC, St Vincent and the Grenadines. Last week on 7 September, President Uhuru Kenyatta co-chaired the African Union, Caribbean Community summit. This meeting between the AU and the Caribbean states agreed to establish the Africa, Brazil, CARICOM, and Diaspora Commission. This Commission will mature into a politico/economic bloc embracing over 2 billion people of African descent. Kenya, with its experience of reparative justice from the era of the Land and Freedom Army, has joined with the Caribbean to advance the international campaign to end the dehumanization of Africans. African descendants around the world have lauded the 2021 Human Rights Council Report for calling on the international community to “dismantle structures and systems designed and shaped by enslavement, colonialism and successive racially discriminatory policies and systems.”

Background to the nomination of Hon Willy Mutunga

The murder of George Floyd on 25 May 2020 led to worldwide condemnation of police killings and systemic racism in the United States. The African Members of the UN Human Rights Council pushed hard to garner international support to investigate systemic racism in policing in the United States. In the wake of the global outcry, there were a number of high-level investigations into police killings of innocent Blacks. Three distinguished organizations, the National Conference of Black Lawyers, the International Association of Democratic Lawyers and the National Lawyers Guild convened a panel of commissioners from Africa, Asia, Europe, Latin America and the Caribbean to investigate police violence and structural racism in the United States. Virtual public hearings were held in February and March 2021, with testimonies from the families of the victims of some of the most notorious police killings in recent times.

In its report, a panel of leading human rights lawyers from 11 countries found the US in frequent violation of international laws, of committing crimes against humanity by allowing law enforcement officers to kill and torture African Americans with impunity and of “severe deprivation of physical liberty, torture, persecution and other inhumane acts”.

Among its principal findings, the Commission found the US guilty of violating its international human rights treaty obligations, both in terms of laws governing policing and in the practices of law enforcement officers, including traffic stops targeting Black people and race-based stop-and-frisk; tolerating an “alarming national pattern of disproportionate use of deadly force not only by firearms but also by Tasers” against Black people; and operating a “culture of impunity” in which police officers are rarely held accountable while their homicidal actions are dismissed as those of just “a few bad apples”.

After the Commission’s report was published, the convening organizations’ Steering Committee mobilized international public opinion to publicize its findings. Former CJ Willy Mutunga was one of the jurists in Africa who worked hard to publicize the report’s findings and recommendations.

It was in large part on the basis of these findings that the Human Rights Council issued its own report at the end of June. The United Nations decided to set up a panel of experts to investigate systemic racism in policing against people of African descent, adding international weight to demands in the United States for accountability for police killings of African Americans, and reparations for victims. The panel of three experts will have a three-year mandate to investigate the root causes and effects of systemic racism in policing. Many organizations have submitted names for suggested panel members. Legal experts from Global Africa and international jurists have recommended Willy Mutunga to be one of the three panellists. Thus far, the following organizations have endorsed the candidacy of Willy Mutunga:

  1. The African Bar Association, with membership in 37 African Countries.
  2. The United States Human Rights network (USHRN), a National network of U.S. organizations working to strengthen the Human Rights movement in the US.
  3. International Commission of Inquiry on Systemic Racist Police Violence Against People of African Decent in the United States.
  4. Society of Black Lawyers of the United Kingdom
  5. Bandung Conference, a Diaspora Human Rights network based in Nairobi, Kenya.

There are now calls for the government of Kenya to step forward to be more proactive to lobby the Human Rights Council and to write letters to its President, H.E. Nazhat Shameen Khan (hrcpresidency@un.org), endorsing the candidature of Dr Mutunga. His CV is included for those who want to write to the Minister of Foreign Affairs for Kenya to lead the endorsement of Willy Mutunga.

The Steering Committee of the International Commission of Inquiry on Systemic Racist Police Violence in the United States is coordinating the campaign for Dr Willy Mutunga to be appointed by the UNHRC as a member of the International Expert Mechanism to monitor compliance of the UNHRC findings and recommendations.

The Government of Kenya and Human Rights groups are kindly asked to send copies of their endorsements to the Coordinator, International Commission of Inquiry on Systemic Racist Police Violence in the United States, lennoxhinds@aol.com.

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