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Somaliland Electoral Law Imperils Inclusive Representation

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The absence of legal commitments to promote representation of women, minorities, and clans from contested regions in the upcoming elections will reinforce an exclusionary voting system.

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Somaliland Electoral Law Imperils Inclusive Representation
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30 years after declaring independence from Somalia in 1991, Somaliland can take pride in an impressive but not flawless democratisation record. Since 2002, the people of Somaliland have participated in six multi-party elections: three presidential elections (2003, 2010 and 2017) and two district council elections (2002 and 2012), but only one parliamentary (2005), and none for the House of Elders (Guurti). At last, combined local council and parliamentary elections will take place on 31 May 2021, respectively four years and eleven years after they were due.

The repeated postponements of elections have at times caused political tensions and uncertainty. This has undermined Somaliland’s democratisation process, weakened public confidence in democracy, stalled institution-building and reforms, and damaged the country’s relationship with the international community.

The main obstacle to holding parliamentary elections has been the difficulty in reaching a political compromise on the allocation of the 82 seats in the House of Representatives to Somaliland’s regions – and by extension, their clans – without a reliable national census. The 2005 parliamentary election could only take place because the National Electoral Commission (NEC) brokered a compromise on seat distribution just weeks before the polls.

However, the five-year mandate of the House of Representatives came to an end in 2010 without a reliable national census having been carried out, or a political solution put in place to resolve the issue of seat distribution. Disagreement on this issue delayed the holding of parliamentary elections for the next 10 years. Whenever the issue was raised, the only solution proposed was to return to the 2005 compromise formula. However, this has elicited strong opposition from people in Awdal region (western Somaliland), particularly from the Samaroon clan, who felt that the 2005 arrangement did not allocate them enough seats. Leaders from the clan threatened to boycott any future polls if a revised seat allocation formula was not agreed.

The national clan arithmetic and balance were at the centre of this stand-off. Expectations in Awdal region were anchored in a demand to allocate half of the seats of the House of Representatives to non-Isaaq clans (including Samaroon, Isse, Harti). The argument was based on the need to protect minority rights against majority rule and promote equitable clan representation rather than representation based on population. Among the leaders of the populous Isaaq clans in particular, the proposal was perceived as unreasonable and provocative. It was also seen as an attempt to win the other non-Isaaq clans, such as the Harti, over to the Samaroon cause.

Given the overwhelming public support in Awdal for stronger representation, and the fear of alienating other non-Isaaq constituencies, Somaliland’s political leaders refrained from addressing this divisive issue, contributing to the continued postponement of Somaliland’s parliamentary elections. But growing internal and external pressure forced President Musa Bihi to act.  In September 2020, he endorsed a new electoral law, which stipulated that parliamentary seats would again be distributed according to the 2005 arrangement. The law was passed in early October, despite strong opposition from MPs and elders in Awdal region, paving the way for the NEC to prepare parliamentary elections.

Women’s candidacy and representation 

The change in 2002 from the clan-based system of representation to electoral democracy with universal suffrage gave women in Somaliland the right to stand for election and to vote. There was hope among women that recognition of their political rights would improve women’s participation and representation in Somaliland’s politics unlike in the clan-based system of nominations, which discriminated against women.

However, the first test of the new system — the local council elections held in 2002 — demonstrated that formal recognition of the political rights of women was rarely respected in practice and was not enough to significantly improve their political participation. Clan influence remained extremely strong and most Somalilanders voted along clan lines, which tends to exclude women. The patriarchal clan system meant that very few women were put forward for election. In 2002, this resulted in only two women being elected among a total of 379 local councillors.

Even when the law allows it, few women run for office in Somaliland. And women too generally vote along clan lines, often under the direction of the men in their family. In the run-up to the parliamentary elections of 2005, women’s groups and other civic organisations campaigned hard to have provisions included in the electoral law that would establish a quota for women candidates. However, the initiative was rejected by parliament. Once more, female candidates were largely excluded from the electoral process due to the strong clan influence in the nomination process and voting patterns. As a result, out of the 246 candidates in the parliamentary elections, only seven were women and of the 82 MPs elected, only two were women.

Efforts to amend the electoral law to set a quota for women continued and in 2007, constant pressure and lobbying from women’s groups and other civic organisations eventually persuaded the government and parliament to include provisions in the electoral law that would grant a  quota for female candidates. But although the proposal was endorsed by the House of Representatives, it was rejected by the House of Elders due to opposition from religious groups. The proposal was put to a vote again in 2020, but both Houses rejected the amendments under external pressure.

In the absence of a quota or a framework for promoting women’s representation, female candidates for the upcoming parliamentary elections on 31 May 2021 have sought support and endorsement from their respective clans. Seven women reportedly pursued the backing of their clans. Only one of them won the full support of her clansmen, setting a precedent as this was the first time in Somaliland’s history that clan elders, intellectuals, the diaspora, youth, opinion makers, and businessmen publicly endorsed a woman’s candidacy. Securing her clan backing furthered her candidacy. Resources were mobilised and a database was established to support her and to ensure high turnout in her clan constituency during the voter registration exercise. In contrast, a female candidate who failed to secure the support of her clansmen has faced strong and consistent resistance and opposition from her clan leadership and politicians.

Marginalised communities

The most marginalised groups in Somaliland are the Gabooye, who constitute the traditional occupational castes (“low caste”) known as Tumaal, Midgaan and Yibir. (In casual speech, these groups are often referred to as Beelaha Gabooye, although members of the various sub-groups do not necessarily accept this appellation. For the purposes of brevity, the term Beelaha Gabooye is used to refer to the Gabooye, Tumaal, and Yibir together.)  For the Gabooye, the challenge of representation is more a question of their social status rather than their numbers; they have a significant number of voters to pick up seats in Hargeisa and other urban centres. But their internal divisions and especially their lack of political, social, and economic clout as a result of years of marginalisation hinder the nomination and electoral success of Gabooye candidates. To rectify this, Gabooye representation had also been discussed as part of the failed attempts to establish quotas.

Female candidates for the upcoming parliamentary elections have sought support and endorsement from their respective clans.

In the absence of quotas, the Gabooye now compete with candidates from the “noble” sub-clans of Somaliland, both to get nominated by the parties and to win seats in the parliamentary and local elections. Local observers believe that at least one Gabooye candidate in Hargeisa has a good chance of winning a parliamentary seat because he is a prominent and outspoken member of a political party and enjoys public support.

Harti candidacy and representation

In the eastern regions of Sool, Sanaag and Togdheer that are the object of contest between Somaliland and Puntland, the Dhulbahante and Warsangeli clans — which are sub-clans of the Harti clan federation which includes the Majerteen of Puntland — have long been divided in their attitudes towards Somaliland. In the run-up to the 2005 parliamentary elections, there were security concerns about holding elections in some of these contested areas. Exclusion of these territories from the poll would have reduced Harti representation in the new parliament. A provision was therefore made in the electoral law for eight reserved, uncontested seats for these Harti sub-clans – six for the Dulbahante and two for the Warsangeli.

In spite of this, Harti representation decreased from 14 to 10 following the 2005 parliamentary election. Of these seats, 8 were from the uncontested list, while 2 were elected.  In contrast, the number of Samaroon seats from Awdal region increased from 10 to 13. Candidates from the Isaaq clans won 57 seats, gaining 10 seats at the expense of the Harti and minority representation. Members from Isaaq clans now controlled 70 per cent of the House, up from 63 per cent before the polls.

Ensuring the active participation of the Harti clans in the upcoming parliamentary election remains a challenge. There was an understanding between some Harti MPs and the president that the provision granting uncontested seats for the non-voting Sool, Sanaag, and Togdheer regions would remain. However, the plan met with strong opposition from some Isaaq MPs in these three regions who hope to win these seats in an electoral contest. They pressured the government to back off and passionately lobbied other Isaaq MPs to vote against reserved seats for the Harti. All Samaroon parliamentarians and most of the Harti MPs boycotted the parliamentary debate on the electoral law in protest against the proposed seat allocation. In the end, the law was narrowly approved by Isaaq MPs in parliament, and no seats were reserved for Harti constituencies.

For the Gabooye, the challenge of representation is more a question of their social status rather than their numbers.

Those opposed to the special arrangement argued that the Harti communities could organise themselves as a political group to register enough voters to compete successfully in the elections. This sentiment is shared by some members of the Harti, particularly those from the areas controlled by Somaliland, such as Sool region. Efforts by the competing candidates from the Dulbahante clan in Sool, government officials from these areas and the political parties have all considerably improved participation in voter registration. The Dulbahante districts now account for more than 57 per cent of the registered voters in the region, which would enable Dulbahante candidates to win 6 or 7 of the 12 electoral seats if there is high voter turnout. By contrast, the Warsangeli candidates (mostly in Sanaag) were far less successful because large sections of the area are not sufficiently under the control of the Somaliland government. The two predominantly Warsangeli districts have registered only about 10,000 voters. Together with about 16,500 other voters in the capital district of Eiragabo, Warsangeli candidates stand a chance to win only 2 out of 12 electoral seats in Sanaag. The refusal by parliament to allocate uncontested seats could inflict substantial damage on political representation in Somaliland if the Harti constituencies fail to gain sufficient numbers in the House.

Reinforcing exclusion

The absence of legal commitments and special arrangements to promote the representation of women, minorities, and clans from Somaliland’s contested regions in the upcoming parliamentary election will reinforce an exclusionary majoritarian voting system. This will clearly produce segments of winners and losers and will ultimately lead to less inclusive representation.

The most obvious losers will be women. Already, few women are running for parliament due to the prevailing social barriers. At best, women are likely to have only one representative in parliament. This will mean that women continue to be denied equal legislative rights, which will also have a negative impact on public policy.

Harti representation in parliament could reduce further after the upcoming election, thereby increasing their sense of marginalisation within Somaliland.  It is also foreseeable that Isaaq clans will increase their share of seats at the expense of the Harti, while Samaroon representation will probably remain unchanged, thereby increasing Isaaq dominance in the parliament and further cementing their majoritarian rule.

This article relies heavily on interviews and informal discussions with candidates and MPs from Awdal, Hargeisa, Sool, East Sanaag and West Sanaag conducted between 6 and 22 December 2020.

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Mohamed Ibrahim Gani is a is freelance consultant and researcher who has written extensively on conflict, socio-economic needs, the judicial system, decentralisation, women’s rights, elections, civic education, youth, diaspora, institutional development and reconstruction in Somaliland over the past 25 years. He has held senior positions in the Somaliland Government and in civil society.

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BBI and Kenya’s Finest Jurists

For Mr. Kenyatta and Mr. Odinga, the dim prospects of the Bill process could upend any succession plans they have hatched together. Political analysts believe that Mr. Kenyatta could back Mr. Odinga for the presidency next year against Mr. Ruto.

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BBI and Kenya’s Finest Jurists
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On May 13 this year, a five-judge bench of the Kenya High Court struck down a state effort to amend Kenya’s 2010 Constitution. With the possible exception of the 2017 ruling of the Supreme Court of Kenya overturning the re-election of Mr. Uhuru Kenyatta – a first for Africa – no judicial opinion has been more consequential. The ruling struck like a thunderbolt and upset Mr. Kenyatta’s legacy, and possibly upended his succession plans. It is not an exaggeration to say that Mr. Kenyatta has pegged his tenure on the fate of the Building Bridges Initiative (BBI), a project ostensibly designed to rid Kenya of perennial electoral violence, rampant corruption, and ethnic and sub-national exclusion and marginalization.

From the “Handshake” to BBI

In 2017, Mr. Kenyatta sought re-election against a strong challenge from Mr. Raila Odinga, without doubt Kenya’s key opposition figure. Mr. Odinga had run against pro-establishment candidates before, each time coming up short. On several of those occasions, Mr. Odinga had claimed fraud and ballot-stuffing. But each time, he was eventually declared the loser. That pattern repeated itself in 2017. Citing irregularities, the Supreme Court annulled that election and ordered a fresh vote. Mr. Odinga boycotted the re-run, assuring Mr. Kenyatta of victory. Mr. Odinga refused to concede and swore himself in as the “people’s president.” Deadly violence, often with ethnic undertones, broke out. The economy was paralyzed. Then on March 9, 2018, Mr. Kenyatta and Mr. Odinga shocked the nation by declaring a truce.

The rapprochement between Kenyatta and his archrival Mr. Odinga came to be known as the “Handshake.” Out of it grew BBI, which they termed a historic initiative to right Kenya’s past wrongs and firmly put it on an irreversible path to full citizenship and belonging for all its diverse peoples. Mr. Kenyatta and Mr. Odinga unilaterally appointed the Building Bridges Initiative Task Force, a fourteen-member body composed mainly of status quo apparatchiks and politicians. In October 2020, the task force released its report and a constitutional amendment bill. Articles 255-257 of the Constitution provide for the process of amending the Constitution through a referendum after approval by Parliament and a simple majority of Kenya’s 47 counties.

In March 2021, Parliament approved the BBI bill. However, groups of NGOs and citizens sued the State, the legislature, and the Kenya’s Independent Electoral and Boundaries Commission (IEBC) to stop them from conducting the referendum. The suit alleged, inter alia, that the process of the BBI was illegal and unconstitutional. It argued that the BBI bill would usurp the sovereignty of the people and abridge the constitution. They submitted further that Parliament was powerless to pass bills that would negate the “basic structure” doctrine which allows only the people – not the legislature – to fundamentally alter the basic logic and architecture of the constitution. This last point was a novel one in Kenyan jurisprudence because no one had hitherto invoked it in live proceedings.

Kenya’s Finest Jurists

Sitting at the High Court in Nairobi to hear the petition were arguably Kenya’s finest jurists. The bench was led by Presiding Judge Joel Ngugi. Justice Ngugi, a Harvard-trained academic, had been a professor of law at the University of Washington School of Law in Seattle, one of America’s finest law schools. He is also a reputable member of the school of thought known as TWAIL, or Third World Approaches to International Law. He is recognized as a leading intellectual in Kenya and elsewhere. Early in his judicial career, he led the Judiciary Transformation Institute (JTI) when Dr. Willy Mutunga was Chief Justice in 2012-2016. His judicial rulings have been original, progressive, and stretch the scope of human rights.

Justice Ngugi was joined on that bench by four other judges, including Justice George Odunga, a leader in expanding the rights of the citizenry against an illiberal state bend on curtailing the rule of law. Justice Odunga is one of a small cadre of brilliant and courageous judges who are leading a judiciary long held captive by executive overreach and corrupt cartels to a more independent posture. The others on that bench – Justices Chacha Mwita, Teresia Matheka, and Jairus Ngaah – have themselves been lauded for standing up to an executive prone to the abuse of power. The bench had been appointed by former Chief Justice David Maraga, who had often clashed with Mr. Kenyatta for failing to carry out court orders.

The ruling was a shocker when it came down. In a scathing – even disdainful – ruling, the judges uprooted tree, stem, and branch of the entire BBI process. The bottom line was that the judges viewed the whole BBI process as the fruit of a poisoned tree, and therefore wholly unsalvageable as a constitutional matter. In a tongue lashing the likes of which Kenyans were unaccustomed to, the court laid waste to every one of the basic arguments for the BBI initiative. After the five-hour ruling, there was hardly anyone who thought the BBI project could be revived. Its proponents were shell-shocked, and its opponents supremely elated. The state and the initiative’s backers have gone to the appeals court to reverse the ruling.

A Jurisprudential Milestone

Several of the court’s findings deserve special attention. The court agreed with the petitioners that the BBI initiative was irregular, illegal, and unconstitutional. First, in the televised ruling, the judges held that Mr. Kenyatta had failed the integrity test of leadership and violated the norms contained in Chapter Six of the Constitution. This is significant because no one should hold office – and is liable to impeachment if they do – once they are found in violation of Chapter Six. It is not clear what the political implication for Mr. Kenyatta is on this finding. But the judges warned that Mr. Kenyatta could be sued in his individual capacity. The import was to pull the moral rug from under him.

Secondly, the judges rubbished the five million votes collected from citizens by the BBI task force to support the referendum push. They ruled that the initiative was not started, or led, by citizens. The court ruled that only the people, not the government, can initiate and conduct a process to amend the constitution through a referendum. In other words, the state cannot hide behind a murky process to take away the people’s will.

Thirdly, the judges held that the IEBC – several of whose members had resigned – was not properly constituted and therefore lacked quorum to conduct any legal business. As such, any decisions that the IEBC had taken, or would take, on the BBI process were null and void.

Fourth, the court ruled that only a people-driven initiative (exercising constituent authority) as opposed to a state-driven exercise (exercising constituted authority) can change the fundamental architecture of the Constitution. Thus, the “basic structure” doctrine prohibits the state from taking a machete to the Constitution and mutilating its foundational assumptions, norms, and basic edifice. The larger meaning of this finding is a jurisprudential milestone for Kenya because it disallows the piecemeal and selfish amendments to the constitution by Parliament in cahoots with the executive. It says only the people have the power to fundamentally reconstitute the state either through enacting a wholly new constitution, or carrying out deep reforms of the extent one. This preserves the notion of popular sovereignty.

Fifth, the court held that Parliament did not have the power to allocate 70 more constituencies in the BBI bill. The judges ruled that only the IEBC – and no other entity – could allocate new constituencies. The largest share of these additional constituencies were allocated to Mr. Kenyatta’s Kikuyu ethnic strongholds as way of enticing his supporters to support BBI. Mr. Kenyatta has been locked in a battle of supremacy in his backyard against Mr. William Ruto, the Deputy President. Mr. Kenyatta had vowed to support Mr. Ruto, a Kalenjin, as his successor, but then reneged. Mr. Ruto then went behind Mr. Kenyatta’s back to peel away a large chuck of the Kikuyu electorate and turn it against BBI.

Do or Die

For now, the state and the backers of the BBI bill have gone to the Court of Appeal seeking to overturn the High Court’s historic ruling. It is anyone’s guess what the appellate process will yield. Anything is possible given the capture of large sections of the judiciary by the executive. The appeal could result in a reversal in whole, or in part, of the High Court ruling. Or it could wholly reaffirm the lower court’s ruling. One thing is undeniable – it is now an open question whether a referendum is even feasible given the election calendar in 2022. Time may simply run out on the BBI clock. Mr. Ruto and his supporters have celebrated the court’s ruling.

For Mr. Kenyatta and Mr. Odinga, the dim prospects of the Bill process could upend any succession plans they have hatched together. Political analysts believe that Mr. Kenyatta could back Mr. Odinga for the presidency next year against Mr. Ruto. The BBI agenda could’ve been an important calculus in that matrix. One of its proposals was to expend the executive to include a prime minister and two deputy prime ministers. These offices would have been an important carrot to bring on board a broader ethnic coalition of major communities to support Mr. Odinga. It is clear that Mr. Kenyatta and his family and political orbit cannot risk a Ruto presidency because of the bad blood between the two men. BBI for him is a do or die proposition. Will the courts rescue, or sink, him?

This article was first published in Verfassungsblog.

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India’s COVID-19 Surge Is a Warning for Africa

The surge in COVID-19 cases in India, spurred by a more transmissible variant and complacency, provides a stark warning to African populations to remain vigilant to contain the pandemic.

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India’s COVID-19 Surge Is a Warning for Africa
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India has been grappling with a deadly COVID-19 surge that hit the country like a cyclone in early April. Within a month, new daily cases peaked at over 400,000. On May 19, India set a global record of 4,529 COVID-19 deaths in 24 hours. Over 500 Indian physicians have perished from COVID since March. The actual figures on these counts are likely to be much higher due to testing limitations. Conservative estimates indicate India has experienced over 400 million cases and 600,000 deaths overall.

India’s hospitals are overflowing with patients in the hallways and lobbies. What hospital beds are available are often shared by two patients. Thousands more are turned away. Entire families in the cities are falling ill, as are whole villages in some rural areas. Countries in the region, such as Nepal, Thailand, and Malaysia, have also experienced a sharp uptick in cases fueled by the highly transmissible Indian variant.

India’s surge is also remarkable considering the country largely avoided the worst of the earlier stages of the pandemic.

India’s COVID-19 surge is a warning for Africa. Like India, Africa mostly avoided the worst of the pandemic last year. Many Sub-Saharan African countries share similar sociodemographic features as India: a youthful population, large rural populations that spend a significant portion of the day outdoors, large extended family structures, few old age homes, densely populated urban areas, and weak tertiary care health systems. As in India, many African countries have been loosening social distancing and other preventative measures. A recent survey by the Africa Centres for Disease Control and Prevention (Africa CDC) reveals that 56 percent of African states were “actively loosening controls and removing the mandatory wearing of face-masks.” Moreover, parts of Africa have direct, longstanding ties to India, providing clear pathways for the new Indian variant to spread between the continents.

So, what has been driving India’s COVID-19 surge and what lessons might this hold for Africa?

The Indian Variant Is More Transmissible

In February, India was seeing a steady drop of infections across the country, and life was seemingly returning to normal. Unfortunately, this was just a calm before the storm. That same month, a new variant, B.1.617, was identified in the western state of Maharashtra, home to India’s largest city of Mumbai. Now widely known as the “Indian variant,” B.1.617.2 (or “Delta” variant according to WHO’s labeling) is believed to be roughly 50 percent more transmissible than the U.K. or South African variants of the virus, which, in turn, are believed to be 50 percent more transmissible than the original variant, SARS-CoV-2, detected in Wuhan.

Some experts say the emergence of B.1.617.2 represented a significant turning point. Within weeks, the new variant spread throughout southwest India and then to New Delhi and surrounding states in the north. Densely populated urban centers of New Delhi and Mumbai became hotspots. The virus then started spreading rapidly in poor, rural states across the country.

The Rapid Spread of India's COVID Variant

Medical professionals are saying the new variant is infecting more young people compared to the transmissions of 2020. Multiple variants are now circulating in India, including the Brazil (P.1) and U.K. (B.1.1.7) variants. Moreover, a triple mutant variant, B.1.618, has been identified and is predominantly circulating in West Bengal State. A triple mutant variant is formed when three mutations of a virus combine to form a new variant. Much remains unknown about B.1.618, though initial reports suggest it may be more infectious than other variants.

Complacency and the Loosening of Restrictions

When the COVID-19 pandemic emerged as a global threat in 2020, Indian authorities implemented a strict and early lockdown, educational campaigns on mask wearing, and ramped up testing and contact tracing where they could. However, since the peak of infections in September 2020, a public narrative started to emerge that COVID-19 no longer posed a serious threat. It was also believed that large cities had reached a measure of herd immunity. The relative youth of India and its mostly rural population that spends much of its time outdoors, further contributed to the sense that India had escaped the public health emergencies seen in other parts of the world.

“Government messaging during the first few months of 2021 boosted the narrative that India was no longer at risk.”

Government messaging during the first few months of 2021 boosted the narrative that India was no longer at risk. Prime Minister Narendra Modi declared victory over the coronavirus in late January. In March, India’s health minister, Harsh Vardhan, proclaimed the country was “in the endgame of the COVID-19 pandemic.”

Behavioral fatigue also set in. Mask wearing waned, as did social distancing, all while tourism opened up and people began traveling to other parts of the country as in pre-pandemic times. Leaders in the western state of Goa, a popular tourist destination, began ignoring pandemic protocols and allowed entry to tens of thousands of tourists in an effort to bounce back from the economic fallout of the 2020 lockdown. Instead, Goa is believed to be the epicenter of the 2021 surge and now has one of the highest rates of infection in the country.

People began socializing in large gatherings elsewhere in the country as well. Contradictory COVID-19 protocols that called for strict night curfews and weekend lockdowns while simultaneously allowing large weddings and mass religious festivals only added to the collective sense of confusion and complacency. Contact tracing and follow-up in the field largely stopped.

Super-Spreader Events

India’s COVID-19 surge was also seemingly driven by a variety of super-spreader events. Most prominently were two international cricket matches in Gujarat State in western India where 130,000 fans converged, mostly unmasked, at the Narendra Modi Stadium.

Unmasked crowds fill the streets during India’s Kumbh Mela Festival in April 2021. (Photo: balouriarajesh)

Unmasked crowds fill the streets during India’s Kumbh Mela Festival in April 2021. (Photo: balouriarajesh)

Prime Minister Modi, himself unmasked, campaigned in state elections at rallies of thousands of maskless supporters in March and April. In West Bengal, where voting is held in eight phases, infections have since spiked.

Thousands gathered in the state of Uttar Pradesh to celebrate Holi, the weeklong festival of colors that began on March 29. Meanwhile, millions pilgrimaged to the Hindu festival Kumbh Mela in Uttarakhand State in April, which possibly led to “the biggest super-spreader [event] in the history of this pandemic.”  Leaders in Uttarakhand not only allowed the festival to take place but also openly encouraged attendance from all over the world saying, “Nobody will be stopped in the name of Covid-19.”

Warning for Africa

The recent surge in COVID-19 cases in India underscores why African countries cannot let their guard down or succumb to myths that cast doubt on how to bring the pandemic to a halt. Most directly, the Indian variant has already reached Africa. It was first detected in Uganda on April 29, 2021, and is now circulating in at least 16 African countries. Moreover, hospitals and ICUs in Uganda are now reporting an overflow of cases linked to the Indian variant. Many of the incoming patients are young people. India also shares similar social features with Africa: a young population, extended family structures that include caring for the elderly at home, and returning to less-populated rural areas of origin when crisis strikes.

COVID-19 Variants Spreading in Africa

Previous analysis has shown that there is not a single African COVID-19 trajectory. Rather, reflective of the continent’s great diversity, there are multiple, distinct risk profiles. Two of these risk profiles—Complex Microcosms and Gateway Countries—seem particularly relevant when assessing the Indian surge risk for Africa.

Complex Microcosms represent countries with large urban populations and widely varying social and geographic landscapes. Many inhabitants of countries such as the Democratic Republic of the Congo, Nigeria, Sudan, Cameroon, and Ethiopia live in densely populated informal settlements, making them particularly susceptible to the rapid transmission of the coronavirus. This group also has a higher level of risk due to their weaker health systems, which limits the capacity for testing, reporting, and responding to transmissions. Both the Democratic Republic of the Congo and Nigeria are among Complex Microcosm countries that have already detected the Indian variant.

Gateway countries, such as Egypt, Algeria, Morocco, and South Africa, have among the highest levels of international trade, travel, tourism, and port traffic on the continent. This makes them more exposed to potentially more infectious and deadly variants that have emerged from other parts of the world, such as India. The interconnected nature of South Asia and the African continent is seen by the early detection of the Indian variant in Algeria, Morocco, and South Africa.

India and the African continent have strong historical, cultural, and economic bonds. Roughly 3 million people of Indian origin live on the continent, and India is Africa’s second most important trading partner after China. Southern and East Africa, in particular, have deep ties to India and large Indian populations with families on both continents. In short, there are many economic and socially driven pathways for the Indian variant to reach Africa.

Priorities for Africa
Lessons from India show that its unprecedented COVID-19 surge was driven by both a more transmissible variant as well as by letting its guard down on preventative public health measures. This exposed the vulnerability of India’s closely integrated and densely populated demographics. A number of African countries also face elevated risks to the spread of the pandemic. Learning from India’s experience highlights several priorities for Africa.

Skyline in Mombasa, Kenya. (Photo: Leo Hempstone)

Skyline in Mombasa, Kenya. (Photo: Leo Hempstone)

Sustained Vigilance. Africa must remain vigilant since some of the same presumed protections India claimed, such as large rural populations that spend much of the day outside, may not guard against the next wave. The new Indian variants are spreading rapidly among young populations, and there is evidence that these newer variants, rather than just exploiting compromised immune systems, are causing some young healthy immune systems to overreact, resulting in severe inflammation and other serious symptoms.

This was the pattern observed in Africa during the 1918-1919 Spanish flu pandemic. The second wave of this pandemic was the result of a significantly more infectious and lethal strain that devasted the continent, infecting the young and the healthy. Countries outside Africa exposed to the mild first wave seemed to experience a reduced impact during the second wave, even though the two strains were markedly different. Having largely escaped the mild first wave, Africa was particularly vulnerable to the virulent second wave.

Continued Importance of Mask Wearing and Social Distancing. The strength of Africa’s public health system is its emphasis on prevention over curative care. African health systems do not have the infrastructure or supplies to respond to a crush of cases. Yet, many African countries have been actively loosening mask mandates and social distancing controls. On May 8, the Africa CDC hosted a Joint Meeting of African Union Ministers of Health on COVID-19 to encourage governments to overcome pandemic fatigue and invest in preparedness. With an eye toward India, prevention measures such as mask wearing, social distancing, and good hand hygiene are still as important as ever until vaccines become more readily available.

“Africa must remain vigilant since some of the same presumed protections India claimed, such as large rural populations that spend much of the day outside, may not guard against the next wave.”

Public Messaging. India suffered from confusing messaging at the early stages of the surge with prominent leaders and public health officials downplaying the severity of the risk and not modeling safe practices with their own behaviors. As they did with the initial onset of the pandemic, African leaders must convey clearly and consistently that the COVID-19 threat persists. Special outreach must be made to youth, who may feel they are immune, but who face greater risks from the Indian variant than previous variants that were transmitted on the continent. In cases where there is a low level of trust in government pronouncements, communication from trusted interlocutors such as public health practitioners, cultural and religious leaders, community leaders, and celebrities, will be especially important.

Ramping Up of Vaccine Campaigns. According to the Africa CDC, the continent has administered just 24.2 million doses to a population of 1.3 billion. Representing less than 2 percent of the population, this is the lowest vaccination rate of any region in the world. With the Indian and other variants coursing through Africa, the potential for the emergence of additional variants rises, posing shifting threats to the continent’s citizens. Containing the virus in Africa, in turn, is integral to the global campaign to end the pandemic. Recognizing the global security implications if the virus continues to spread unchecked in parts of Africa, the United Nations Security Council has expressed concern over the low number of vaccines going to Africa.

While this can largely be attributed to the limited availability of vaccines in Africa during the early part of 2021, this is changing. A number of African countries are now unable to use the doses they have available as a result of widespread vaccine hesitancy driven by myths surrounding the safety of the vaccines. Meanwhile, several African countries have not yet placed their vaccine orders with Afreximbank.

African governments and public health officials, therefore, need to ramp up all phases of their COVID-19 vaccine rollout—public awareness and education, identification of vulnerable populations for prioritization, and logistical preparations and outreach—for a mass vaccination effort to reach as large a share of their populations as possible. Africa’s well-established networks of community health workers provide a vital backbone as well as a trusted and experienced delivery mechanism to successfully achieve these objectives. With technical, financial, and logistical support from external partners, African vaccination campaigns can rise to meet the challenge.

This article was first published by the Africa Centre for Strategic Studies.

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Mr President, in the Name of the Constitution, Swear in the Judges

President Uhuru Kenyatta should live up to his oath of office to obey the constitution and resist the temptation to be garlanded in the pettiness of performing power, writes former Chief Justice Willy Mutunga.

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Mr President, In The Name Of The Constitution, Swear In The Judges
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Mr. President

I have elected to speak elaborately and strongly on this issue because when apparently innocuous and blithe breaches to the Constitution begin to occur, especially from the highest office in the land, they signal a dangerous dalliance with impunity. This is particularly so when these occurrences are intentional, persistent, defiant, and brazen – fuelled by an inexplicable determination to overrun the barricades of Kenya’s constitutional order.

There is a reasonable presumption that anyone seeking public office would be familiar with the Constitution. The presumption is even stronger that such persons have read, re-read, and understood provisions specific to the office they seek and, consequently, fully comprehended the allocation and demarcation of power and authority thereto. If they haven’t, then they don’t deserve to be in those offices in the first place. If they have, they have an obligation to respect every provision. That’s the meaning of public officers taking an oath before assuming office to protect, defend, and promote the Constitution, and to abide by all other laws of the Republic.

Nothing in the oaths says, ‘I will obey and protect only those aspects of the Constitution that I find convenient and self-fulfilling; so help me God’. The oath is comprehensive, total, and unqualified; and its administration is not an exercise in jest, but rather a very solemn commitment to conscience and to country; to self and to the public, in the performance of public duty held in trust for the Kenyan people. If any public officer does not like the powers the Constitution donates to them, or find the exercising of those powers annoyingly inconvenient, they have no business continuing to occupy those offices. Resignation and early voluntary retirement are readily available options that the Constitution merrily provides, in order to protect itself from individuals who may find further fidelity to its edicts a burdensome enterprise.

The provision on the appointment of judges is clearly articulated in Article 166, as well as the Judicial Service Act. The JSC discharged its mandate properly and completely in 2019 by recommending for appointment 41 judges. The president, by dint of plain, clear constitutional provisions, and numerous court orders, is obliged to appoint all the recommended judges without hesitation, review, or negotiation.

It is disappointing that this standoff, needlessly occasioned by presidential obduracy, has recurred. Sadly, it has done so in a manner that lowers the esteem of the office, undermines the rule of law, and erodes public confidence both in the elevated majesty of statecraft, and in the granularity in administration of justice.

In 2015, when this issue first emerged, the JSC and the president openly discussed the matter, and agreed on a framework that not only respected the constitutional processes but also acknowledged the unique nature of the presidency. Under this framework, it was agreed that, if the president has any adverse reports on any shortlisted candidates for judgeship, he, both in his privileged position as Head of State, and as a citizen of Kenya and a member of the public, would share that report with the JSC at that stage (not later) in the recruitment process. However, in the interest of fairness, these reports or allegations – just like all the others the JSC receives – would be put to the candidate for his or her response, before the Commission makes a determination on the suitability of that candidate. This is such a fair and common-sense approach that has worked before. In the recruitment of the 41 judges, the president did not present any adverse reports at the appropriate stage, leaving JSC with no option but to make recommendations for appointment.

I rehash this account in the public interest, and because statesmanship requires honour. It abjures petulance. The president’s conduct in this matter has been beneath the dignity of that high office. For two years he has subjected several advocates to untold personal suffering for no reason at all and called into question the integrity of serving judges and judicial officers without any due process. That the president has finally gazetted 34 of the 41 (one had in the meantime died) advocates recommended two years ago following an inexplicable and dishonest delay, speaks to an exercise of power that is egregious, reckless and insensitive.

Most disturbing is the president’s decision to omit the names of six judges and judicial officers from the list. Strikingly, the presidential ‘list of hate’ has even mysteriously changed, meaning that the objection to the judges’ nomination is driven more by personal pique rather that principle. That is not the way to conduct the serious business of state.

The scientific formulation in the provision of the Constitution on the appointment of judges was intended precisely to be an antidote to this kind of whimsical and capricious presidential conduct such as is being seen in ugly display in this matter.

State offices are not the personal property of any individual or officer. All Kenyans have a right to seek to serve in the manner prescribed by law and no individual or authority can arbitrarily renounce, withdraw, or abrogate this right.

The constitution is clear on the mechanisms for raising any issue the president or any other person may have against a sitting judge or judicial officer at whatever level. The JSC has been tested on these issues and has dealt openly and fairly with complaints against judges of ranks even higher than the Court of Appeal. Even Chief Justices, myself included, have had to answer to public petitions in an open and fair process — and that is as it should be. That the president has delayed appointments for two years without presenting any evidence to the Commission in spite of active and repeated solicitation points to bad faith, and most likely, absence of any actionable information on the judges.

And this is not the time to commence muck-racking adventures in a feeble and abominable attempt to besmirch the character of the judges and judicial officers.

The president must resist the temptation to be garlanded in the pettiness of performing power, particularly by those who have built a thriving pettiness cottage industry, completely consumed by the pursuit of personal vendetta, at the expense of the national good and Kenya’s fledging constitutional democracy.

It is urgent that the president immediately appoints the six judges, many of whom are exceptional, because that’s what fairness, common decency, the rule of law and the Constitution require. The independence and accountability of the judiciary is not negotiable. And in the fullness of time, everybody gets to learn this lesson — some rather too painfully, too late, having played a part in undermining it.

Mr President, you bear a burden of history to do the right thing for Kenya’s Constitution, her institutions, and the general public. Discharge this burden. Simply do the right thing.

Mr. President I remain sincerely,

 

Willy Mutunga

Chief Justice & President, Supreme Court of Kenya,
Republic of Kenya,  2011-2016

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