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

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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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Dr Willy Mutunga is a public intellectual and former Chief Justice of Kenya.

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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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Cutting the Hand That Feeds: Is the UN Silencing the Voices of Farmers and Indigenous Communities?

More than 500 indigenous and farmer organisations across the continents have raised their voices to expose the UN’s Food Systems Summit as only advocating one food system—so they’re being silenced.

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Cutting the Hand That Feeds: Is the UN Silencing the Voices of Farmers and Indigenous Communities?
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The United Nations Food Systems Summit (UNFSS) invokes the UN Sustainable Development Goals to demonstrate its purpose—namely, goals 2.1 and 2.2 (to end hunger and malnutrition). At the same time, however, the summit is obstructing another of those goals: goal 2.3 (to increase resources for smallholder farmers).

Because of this contradiction, the summit, planned since 2019 to be held at the UN Headquarters in New York, will now be exclusively virtual (September 23), a measure intended to maximize control and minimize dissent. During the last year, more than 500 indigenous and farmer organizations across the continents have raised their voices to expose the summit as advocating only one food system, the one that is polluting the soil, water, and air, and killing vital pollinators.

In contrast, the food system that feeds 75 to 80 percent of the human population—smallholder farmers practicing biodiverse cropping (in line with the principles of agro ecology)—was only added to the agenda after months of criticism. Those in opposition to the summit say it is advancing industrial agriculture, which is the core problem, not solution, for addressing climate change, malnutrition, and hunger.

A second criticism is that corporations are trying to replace the UN system of one country-one vote with “stakeholders,” a euphemism that may sound inclusive but really only invites those “who think like us” to the table.  Smallholder farmers, who produce the majority of our food, are not invited.

This food summit is about the global business of agriculture, not the livelihoods of those who produce nutritious, biodiverse foods. Governments’ attempts to regulate global food corporations (e.g., labeling unhealthy foods, taxing sugar products) meet strong opposition from these industries. Yet the corporations profited massively from the 2008 food crisis and strengthened their global “food value chain,” contributing to the consequences that over 23 percent of Africans (282 million people) still go to bed hungry every night.

This focus is in stark contrast to the stated aims of the summit. As the UN Special Rapporteur on the Right to Food explained in August 2021:

Hunger, malnutrition, and famine are caused by political failures and shortcomings in governance, rather than by food scarcity ….. How will the [Summit] outcomes identify the root cause of the crisis and hold corporations and other actors accountable for human rights violations?

A third criticism of the UN Food Systems Summit is that it heralds technological advances as the primary answer to overcoming continuing hunger in an era of climate change. Most of us applaud multiple revolutions in genetics while we queue for vaccines, but genetic manipulation of seeds threatens the future of food, because ownership of the technology controls ownership of the seed. Industrial agriculture expands corporate profits from commodification of seed (beginning early 20th century), from the financialization of seed (speculative trading, late 20th century) and continuing today, through the digitalization of seed.

To the industry, a seed is merely a genome, with its genes representing digital points. The genes can be cut and pasted (by enzymes, e.g., CRISPRcas9), much like we edit text.  A seed is no longer a living organism representing thousands 1000s of years of careful selection by expert farmers. For example, biologists today say they no longer need the germplasm of Oaxacan corn from Mexico to access its drought-resistant characteristics.

Promoters of these technologies rarely admit that they are very imperfect, with uncontrolled “off-target mutations.”  Further, a seed variety needs its biome to flourish. It is farmers who understand the intricate interactions, who experiment with changing micro-climates (often in one field) to cultivate adaptive seed varieties.

No farmer denies the importance of scientific advances. But industrial agriculture giants are denying the value of farmers and their knowledge, saying they no longer need them: digitalized seed can be planted, watered, fertilized, and harvested by machines, run via satellites (this is called “precision agriculture”). Taste is irrelevant, because it is chemically added as crops are processed into food products.

Success in derailing the “corporate capture” of UN processes (e.g., UN Committee on World Food Security) to address increasing hunger arises from global, organized resistance by smallholder farmers, pastoralists, and fisher folk. After appeals to transform the agenda, many of these farmers and advocates decided to boycott the summit. This “outside resistance” included African voices, who stated:

The current UNFSS process gives little space to traditional ecological knowledge, the celebration of traditional diets and cuisine . . . ….Indigenous and local community Africans have experience and knowledge relevant to the current and future food system. Any process or outcome that does not recognize this is an affront to millions of African food producers and consumers.

The “inside resistance” worked to advance farmers’ voices within the official pre-summit dialogues, holding a series of webinars among the farmers in Southern Africa, and then globally (July 28).  This trajectory was possible because of allied support within the UN Food and Agriculture Organization.  As stated by one of the convenors of these official dialogues, Andrew Mushita,  “African smallholder farmers are not beneficiaries of the corporate [agriculture] industry but rather co-generators of innovations and technologies adaptive to ecological agriculture, farmers’ needs—within the context of sustainable agriculture.”

To follow the end result of the summit, go here.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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