Legally recognised and secure land and resource rights are fundamental to advancing peace, prosperity, and sustainability. Security of tenure underpins a society’s fabric and its relationship to the natural environment, shaping its cultural development and the realisation of democracy. In Kenya, the land question remains politically sensitive and culturally complex, a function of historical injustice, land ownership disparities, and tenure insecurity.
Most land disputes in Kenya arise from how the land has been allocated. This is because access to land and land use in Kenya is a distributive game that creates winners and losers. From 1965 to the late 80s, land appropriation and allocation programmes were clearly biased in favour of the elites and the ruling class and as a result, vast swathes of land were concentrated in the hands of a wealthy few. This led to land inequality and exacerbated other forms of inequality, affecting the common man’s livelihood and prospects for prosperity.
With rising land inequality and with the citizens unable to question or control this imbalance, the likelihood of violent conflict over land increased. A push for people-centred land reforms culminated in the Land Policy of 2009 and the promulgation of the Constitution of Kenya (CoK) 2010. The land reforms foreseen in the CoK 2010 and other substantive laws rest on the principles of equitable access to land, security of land rights, sustainable and productive management of land resources, and the transparent and cost-effective administration of land. But despite the passing of laws governing land reform, the transparent and effective administration of land remains elusive.
Compulsory land acquisition
The government occasionally needs to acquire land for public projects like roads, power plants, water reservoirs and even schools or hospitals. In such cases, the rights of the government override individual rights of ownership; the government can take possession of privately or communally-owned land through compulsory acquisition.
Article 40 (3) of the constitution and the Land Act, 2012 allow for acquisition only where the land is required for a public purpose or in the public interest. Upon acquisition, the law provides for prompt payment of just compensation. However, compulsory land acquisition can lead to human rights violations and the Isiolo International Airport case is a classic example.
The expansion of the Isiolo airstrip into an international airport is part of the Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET) development project. LAPSSET is a component of the Kenya Vision 2030 Programme whose aim is to transform Kenya into a newly industrialising, middle–income country providing a high quality life to all its citizens in a clean and secure environment by the year 2030. The Isiolo International Airport is one of the projects expected to spur economic growth in the region.
The expansion of the Isiolo airstrip was carried out on land that is in both Meru and Isiolo counties. Landowners living in Meru County who were expropriated received their compensation on time, while some landowners in Isiolo County were yet to be compensated by the time the airport opened in 2017. This is because land ownership in Meru is well documented whereas most of the land in Isiolo is owned by communities under customary law without formal title deeds. This has made the compensation process slow, unfair, and unjust.
This disparity in the tenure system has disadvantaged the people of Isiolo who find themselves in this situation due to historical marginalisation. In effect, land in Isiolo County has been considered to be of low potential since colonial times, a perception that has been perpetuated by successive governments which have continued to invest highly in the areas that were identified as having a “high potential” — with abundant natural resources, rainfall, and productive land among other factors — for the development of the economy. This systemic marginalisation, together with insurgency wars and banditry in the region, has meant that land in Isiolo County has remained invisible to investors. That is, until the LAPSSET Corridor project took off.
Land ownership in Meru is well documented whereas most of the land in Isiolo is owned by communities under customary law.
Coupled with the disparity in land tenure systems, the failure to establish communication channels with the affected communities was a major cause of the chaotic compensation process, and efforts to identify the legitimate landowners entitled to compensation were fraught with difficulties. In effect, undocumented landowners were not the only ones to rush to Ardhi House for allotment letters; as soon as the project was proposed, land grabbers conspired to obtain Part Development Plan (PDPs) which would enable them to claim compensation from the LAPSSET project.
This led to double or even triple issuance of letters of allotment for the same piece of land, undermining the security of tenure of the original owners of the land. Community elders in Isiolo County have brought this issue to the attention of the relevant authorities but the county government has been lethargic in moving to resolve this matter, mainly due to the poor land records and management system it inherited from the defunct Isiolo County Council.
Article 40(4) of the Constitution of Kenya 2010 provides for compensation to be paid to occupants in good faith for expropriated land which has no title. This provision is supported by various other legislations. For example, Section 5 of the Land Act of 2012 recognises customary land rights, whether documented or not, as one of the forms of land tenure in Kenya.
Further, Section 5(3) of the Community Land Act of 2016 recognises customary land rights to be equal in law with freehold and leasehold interests in land while the Land Value Index Laws provide comprehensive guidelines for the calculation of the value of such land. However, critics of the land value index claim that sections of the Act can cause suffering to landowners as the Act gives the government up to a year to compensate landowners based on the value index and not on the prevailing market rates.
The Land Value (Amendment) Act 2019 provides for additional forms of compensation apart from monetary compensation, including allocation of alternative land of equivalent value and land use. In the case of the Isiolo Airport project, the displaced residents were allocated alternative land at Mwangaza, Kiwanjani, and Chechelesi but as it turned out this land was already occupied. Lack of public participation in the compensation scheme was the underlying cause of the confusion. Had the Ministry of Lands, the Kenya Airports Authority (KAA) and the project contractor engaged the local leaders, elders and the host community at the outset, this problem could have been avoided. Instead, the compensation process has pitted the resettled community against the original occupants, leading to tension and suffering.
In the particular case of the drylands, there is no clear matrix that guides compensation as the parameters to be applied are not provided for in law. In effect, the Land Value (amendment) Act of 2019 does not cover communal land, the most common type of tenure in the dryland areaswhich make up more than 50 per cent of Kenya’s land mass. The national and county governments were to jointly develop a land value index map within six months of the adoption of the Act on 19 August 2019 but to date there is no evidence of any consolidated value index of all lands in Kenya, rendering the process of land compensation in drylands a difficult task.
The compensation process has pitted the resettled community against the original occupants, leading to tension and suffering.
The compensation value for a piece of land in the urban and high potential areas is determined by proximity or access to social infrastructure such as tarmacked and paved roads, access to electricity, schools, hospitals, serenity, and aesthetic beauty. This is not possible in the drylands, which have different characteristics but where the land is of equally great social-economic value to the community, yet the Land Value (Amendment) Act of 2019 does not make provision for the valuation of communal land in a manner that reflects the social-economic practices of the communities such as pastoralism.
A 2017 report by Hakijamii titled Tension Between Human Right and Development – The Case of LAPSSET in Isiolo County, finds that the project failed to “uphold human rights to information, housing, employment, education and provision of water”. A review by the Environmental Justice Atlas (EJATLAS) concludes that the Isiolo Airport project is not an “Environmental Justice Success” as by the time the expanded airport commenced operations, some of the affected residents had not yet been compensated. The Compulsory Land Acquisition Act, The Constitution of Kenya 2010, the Land Act, 2012 are among the many laws that have been passed to prevent such outcomes, yet the affected communities find themselves at a loss as they were not even informed about the impact that the expanded Isiolo Airport and the other large-scale projects would have on their lives.
Impact on pastoralism
Ideally, the population of a country must benefit equally from government policy regardless of age, class, ethnicity, population size and location. Yet, rather than gaining, the marginalised people of Isiolo are losing from these flagship projects because of lack of proper compensation since the land is perceived to be unoccupied or underutilised. Indeed, pundits argue that infrastructure projects such as LAPSSET and Isiolo resort city are being implemented in pastoral areas because there is not enough space in higher potential areas whereas the rangelands are perceived to be idle land.
The assumption that land in the arid and semi-arid areas (ASALs) is idle and of lesser value leads to the flouting of compensation guidelines when projects are undertaken in ASALs. It also explains why the communities that were affected by the Mombasa-Nairobi Standard Gauge Railway have been compensated while those affected by the LAPSSET project — which will hive off approximately half a million acres of land in Lamu, Garissa, Isiolo, Marsabit, Samburu and Turkana — are yet to be compensated.
The assumption that land in the arid and semi-arid areas (ASALs) is idle and of lesser value leads to the flouting of compensation guidelines.
The airport is just one component of the LAPSSET Corridor project which also comprises the Lamu Port, a resort city, a Standard Gauge Railway (SGR), and an oil refinery and pipeline. While these infrastructure projects will undoubtedly attract investors and other populations to Isiolo, this will also lead to cultural shocks as people from different backgrounds with different beliefs, behaviours, languages and values come into a community largely made up of people who hold comparable values. Changes in social-economic activities will also lead to loss of local cultures as dominant cultures are introduced. Finally, as ancestral lands are lost and grazing land diminishes, cultural livelihoods such as nomadic pastoralism will be affected, undermining the resilience of pastoral communities.
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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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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,
Chief Justice & President, Supreme Court of Kenya,
Republic of Kenya, 2011-2016
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