Editor’s note: Gen Tsadkan Gebretensae is a key member of the Tigrayan Defence Forces Command and widely regarded as one of Africa’s best military thinkers and strategists. He was a former top Ethiopian army general. He is widely-regarded as one of the masterminds of Operation Alula which in late June 2021 led to major reversals for the Ethiopian army in Tigray. In this interview, conducted in Tigray on 6 July by The Elephant, Gen Tsadkan spells out his views on peace and the way forward for Ethiopia.
The Elephant: What is the context of what is happening in Tigray?
Gen Tsadkan: I don’t need to go back to the horrendous atrocities that have been committed against the people of Tigray by invading forces of Isaias and Abiy, but after the offensive, after what has happened recently, the Ethiopian government is in my opinion living in an illusion. It is an illusion that has been created by themselves. They tried to deny the reality on the ground. They tried to cheat the world by saying they have declared a unilateral ceasefire while they have been defeated. We decimated two brigades of their forces which were running away from Mekelle, so this nonsense of unilateral ceasefire is a drama that has been created by themselves. Instead, they should recognize the realities on the ground and come with a realistic solution. You cannot have a ceasefire at a time when you have already blocked every movement of goods and services. Ethiopian Airlines is not flying to Mekelle, there is no telephone, there is no internet, there is no power, there is no road transport, humanitarian aid has been blocked. He cannot talk about any unilateral ceasefire while trying to strangle the whole people of Tigray.
So, I think I would like the international community to understand the situation we are in. We have been very much restrained because we don’t want to be seen as if we are not accepting a political solution. The whole problem is not only in Tigray but in the whole of Ethiopia. We know the Government forces are almost finished but at the same time we are restraining ourselves for a realistic political solution to the whole problem. I would like the international community to understand this situation, that is the message I have now.
The Elephant: You were a part of the group that mediated between the PM and the TPLF before war broke out, what led you to break off that role?
Gen Tsadkan: You are right, myself and a group of prominent political individuals in Ethiopia have been trying to mediate. The basis of the interaction we had was to accept the existing Constitution of Multinational Federalism and resolve any other issue apart from it. In my interaction with the PM, it was very clear that he was looking for; (A) dismantling the Multinational Federalism, which brought Ethiopia together and (B) he was looking for a solution that is not a political peaceful solution but preparing himself for war. That was very clear for me in our last meetings. So I had to make a choice. I knew that the political solution to Tigray would not come, in my interactions with him. I was interacting with the President of Tigray, Debretsion Gebremichael. On the part of Tigray, I saw willingness to resolve the issue, as long as the Multinational Federal Constitutional Arrangement is respected. That was not the case with Dr Abiy Ahmed, so I had to take a position. And at the same time, there was no other choice. The Ethiopian Government invited foreign forces to invade our country, so the choice was either to surrender to foreign forces or Abiy’s forces, or join the resistance. I chose the latter.
The Elephant: Those final meetings you had with the PM, when was that, 2019 or 2020?
Gen Tsadkan: I think it was 2020. It was not 2019. We had several, we had some meetings earlier, precisely around three major meetings, but the last one was in 2020.
The Elephant: When did you specifically join the armed resistance?
Gen Tsadkan :It was after November.
The Elephant: Could you explain the relationship btw the TPLF, the TDF, the Government of Tigray and your position now?
Gen Tsadkan: The TPLF is the ruling party, the TDF is a word that has been coined, not in a negative sense but in a positive sense, during the resistance. The whole resistance is led by the Government of Tigray, not the TPLF, as a ruling party it might have its say but the resistance is led by the Government, the duly elected Government of Tigray. The Government of Tigray has established a Central Command which decides on all issues related to war and peace, all issues: political, diplomatic, military, economic issues, this body is chaired by the President of Tigray, Dr. Debretsion, and the military effort is one aspect of the resistance. I serve as a member of the Central Command in the structure that I have described, so the TPLF is the ruling party, the Government of Tigray is the one leading the resistance, through a structure called the Central Command that decides on all issues related to peace and war. The TDF, the Tigrayan Defense Forces, is an element in the whole structure that is being commanded by the Central Command. Below the Central Command there is a structure called the Military Command, the Military Command specifically directs and commands operations in the army. This is the arrangement.
The Elephant: Were you expecting to win control of Tigray so soon or even at all, did it come as a surprise to you?
Gen Tsadkan: No, it didn’t come as a surprise to me. In fact, I am on public record even before the war started telling people, you know, of all regions, the Region of Tigray is a region which shall not head for war but at same time is not scared of war. I know the history, I know the potential, when this thing started it was very clear that the most senior, most highly experienced commanders are from Tigray, which has been the backbone of the Ethiopian armed forces for the last thirty years, highly experienced because most of them have gone through two major wars, I very much know the military tradition of Tigray, so when you combine those two elements, highly experienced and skillful commanders and a society with a very deep military tradition, it only takes a short period of time to reorganize and regain control. That’s exactly what happened.
At the same time, this has been facilitated by the atrocities committed by the enemies of Tigray, that created a widespread opposition and dedicated of the youngsters to finish all this within a short period of time. When all those things came together, given the experience we had, we had to organize the fighting units, train the fighting units, and it was clear for us that when we get some time, we will create a very formidable fighting machine, and that’s what has happened.
The Elephant: how many POWs do you currently have?
Gen Tsadkan: I might miss some of the information, the latest information I have before five days is around more than 8000, the prisoners of war kept increasing, they might have increased a little bit. But that is the figure I know.
The Elephant: Do you want to say about plans for treatment of these POWs?
Gen Tsadkan: No, I don’t think there is anything in particular, I know my colleagues are in touch with the ICRC, and will handle them according to international law.
The Elephant: What is the current humanitarian situation? What actions are you hoping the International Community will take?
Gen Tsadkan: As has been described by the international media several times and by UN Agencies, the humanitarian situation is extremely dire. The Ethiopian Government is trying to aggravate this by blocking any connection with Sudan and any other corridor. Even they have blocked air communications. So the Government of Tigray and the Central Command have decided, I think it has been communicated, we are ready to accept any humanitarian assistance, ready to facilitate anything that the U.N. or any humanitarian assistance agencies would like to have, security, we will provide security to the areas we control, more than 90 percent of Tigray, we will comply with their requirements, so my message is, there is a huge need for humanitarian assistance and we are ready to accept any assistance, if the international community means business, let them come and do what is required to save lives in Tigray.
The Elephant: what will happen if the PM continues to refuse humanitarian access to your region?
Gen Tsadkan: Not only resisting humanitarian assistance to our region, but if he continues to do the way they are acting, that is, strangling Tigray, blocking power, electricity, internet, air transport, land transport, not only humanitarian assistance but to civilians as well, I think the Government of Tigray and the resistance in Tigray will be required to break its restraint, restraint from military activities, we know we have the capacity, we have increased our capacity, we know we can do what it takes to pressurize the government so if they continue behaving like the way they are doing, playing games, and trying to deceive the world with their illusions, the first consequence will be continuation of operations. We will be left with no other alternative except to resolve it militarily. We would like it to be resolved peacefully but if there is no other choice, then the next choice will be, try to resolve it militarily, and we know we are capable of doing that.
The Elephant: What is your timeline for that option?
Gen Tsadkan: No, I’m afraid to comment on this. We are watching the situation seriously.
The Elephant: are you prepared to negotiate peace with Abiy and with the Eritrean leader Isaias?
Gen Tsadkan: I think that’s an issue that we have to deal with when it comes. We have made our points clear on the last declaration of what we mean by a negotiated ceasefire, we have clearly indicated that we are for a negotiated ceasefire. In a negotiated ceasefire, issues are raised and we discuss to resolve them, but the process has to start.
The Elephant: Do you have anything to add to the conditions for the negotiated ceasefire that TPLF released on Sunday?
Gen Tsadkan: No, I was part of the Central Command that drafted that list and I’m happy with it.
The Elephant: Do you have any message for Ethiopians as a whole?
Gen Tsadkan: I would like to say it’s very sad that our country Ethiopia is in such a situation. We were forced to act the way we did, because of the Central Government in Ethiopia, is in our opinion directed by Asmara, by Isaias, Isaias’ security forces, intelligence forces are operating in Ethiopia day and night. I hate this kind of situation to prevail in Ethiopia, but at the same time, it is sad to see that Ethiopians are just accepting the behavior of the Central Government, but I would like to say that even though so many atrocities have been committed, it’s not led to resolve our issue peacefully and politically. So, when Ethiopians come out of the illusion that the Prime Minister has created, the reality on the ground is completely different, let Eritreans get out, not only from Tigray, but from all of Ethiopia. Let Ethiopians set their own trajectory themselves.
Eritrea has a heavy hand, heavy presence not only in Tigray but in Addis Ababa and all over Ethiopia as well.
The Elephant: What are the battlefield developments, status of Western Tigray?
Gen Tsadkan: It’s very clear that Amhara forces are in Western Tigray, it’s obvious that they are preparing to face us. So, we’ll handle it the way they would like to handle it.
The Elephant: Does that mean you are waiting for them to act, you’re not going to push it?
Gen Tsadkan: No, I didn’t say anything, it is a military situation and we will see the situation and act according to what is warranted militarily for us
The Elephant: have the ENDF and Amhara forces retreated to other side of Tekezze River?
Gen Tsadkan: They have already blown up bridges, it is very clear that it’s a continuation of the policy of Abiy Ahmed to strangle Tigray and take away a Constitutionally recognized geographic region of Tigray to another area. So, they are preparing themselves across the river. That, we know.
The Elephant: Do you see the capture of Mekelle as a turning point that will lead to a speedy end to conflict or is it opening up a new front in the war, in the north and west?
Gen Tsadkan: It all depends upon the central government of Ethiopia and its partner Isaias, it could be, it’s very clear that they cannot win the war. The capture of Mekelle and the defeat of the Ethiopian army clearly shows if there was any doubt, that they cannot win this war. On the other hand, the people of Tigray have been under huge atrocities of all kinds, have stood and resisted. The war will continue growing. Even the military experience and the political nature of the just cause of the war, it will keep on growing. So the capture of Mekelle would signal a huge political message to Abiy, to come to his senses and then resolve the political situation not only in Tigray but in all of Ethiopia peacefully, sooner. It has signaled that he cannot get his way by force, that is what he wanted, he could not, he mobilized not only his forces but other forces as well, he mobilized all of the army of Eritrea, he mobilized the technological capacity of the UAE, that did not work. So, for us, we were not craving for war. We wanted a peaceful solution from the very beginning. And it is now after the defeat of Abiy’s forces we are saying, let’s have a negotiated ceasefire. But Abiy and the Amhara elites can resist this, can say no, we’ll have our way by military means, if that is their choice, we’ll see. So it all depends on how they will react. The sooner they come out of their illusion that they have created, that they are riding victory after victory, it will be better for all of Ethiopia and Tigray as well. As long as they live with that illusion, and trying to mobilize innocent peasants and bringing them as cannon fodder to the new fronts that have been created in southern and western Tigray, then the war will continue.
The Elephant: Are there any splits within TPLF, on any topics such as engaging the government, or are you pretty united?
Gen Tsadkan: Pretty united. Obviously, there are different opinions on how the political situation should be resolved, and resolved once and for a durable period of time. But that is for Tigrayans to discuss among themselves and resolve. That is the situation. On the issue of you know defeating the invaders, and coming to a lasting political situation, there is complete unity.
The Elephant: is there anything you would like to share about journey of your life, as someone who fought against Dergue and toppled it?
Gen Tsadkan: I would like to say that I am a product of the people of Tigray. The struggle and the pain that the people of Tigray have went through have created people like me, not only me, several like me. So, when all these things are done, I hope some people will have a lot of time, I will have time as well, to go through all this. But for the time being, as I said, I am the product of the struggle and the pain of the people of Tigray.
Thank you very much.
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The Second Sex: Women’s Liberation and Media in Post-Independence Tanzania
Fatma Alloo (of the Tanzania Media Women’s Association) on how women used the media and cultural spaces to organize and challenge gender norms.
Fatma Alloo’s activism grew in the decades following Tanzania’s independence in 1961, when she worked as a journalist under Julius Nyerere, or Mwalimu, the first president of Tanzania; co-founded the feminist advocacy group Tanzania Media Women’s Association (TAMWA) in 1987; and co-founded the vibrant Zanzibar International Film Festival (ZIFF) in 1997. Here, she unpacks how women used the media and cultural spaces for social mobilization and shifting patriarchal norms, particularly in periods where they were marginalized from state power. In the “Reclaiming Africa’s Early Post-Independence History” series, and the Post-Colonialisms Today project more broadly, we’re learning from African activists and policy makers from the early post-independence era, to understand how their experience of a unique period of economic, societal, cultural, and regional transformation can aid us in the present day, when questions of decolonization and liberation are more pressing than ever.
Heba M. Khalil: You have lived through so many changes in so many different political systems, from the Sultanate, colonialism, the Nyerere years; you’ve seen the dawning of liberalism and neoliberalism.
Fatma Alloo: As you say, I’ve been through a lot of “-isms” in Tanzania. The other day I was reflecting that although I grew up under colonialism in Zanzibar, as a child I was not aware that it was colonialism, I was not aware there was a Sultanate. We used to run and wave to the Sultan because he was the only one with a shiny, red car and we used to love that car, a red Rolls Royce. But as I reflect now, I realized that these were the years Mwalimu was struggling for independence in Tanganyika.
Then, of course, as you grow, life takes you on a journey, and I ended up at the University of Dar es Salaam in the 1970s, where the Dar es Salaam debates were taking place. Tanzania hosted liberation movements, and that is where socialism, communism, Marxism, Leninism, Trotskyism, Maoism, and feminism were being debated, and that’s where my consciousness grew, because I was in the midst of it. As the progressive, international community at the university was ideologically fired up by Mwalimu’s socialism, I began to understand that even my feminism had come from the West. Nobody had taught me that women lived feminism on the continent. This realization came when, as a student, I participated in an adult literacy program launched by Mwalimu. As students, we were sent to a rural and urban factory to teach literacy, but I emerged from those communities having been taught instead!
Heba M. Khalil: What do you think the role of women was in Tanzania in particular, but also on the continent, in defining the parameters, the choices and the imagination of post-independence Africa?
Fatma Alloo: Women had always been part and parcel of the independence movement in Africa. In Southern Africa and Tanzania they stood side-by-side with the men to fight, so they were very much part of it. The unique thing about Tanzania was that Mwalimu established a party called the Tanganyika African National Union (TANU), which had five wings with women being one of them. The others were youth, peasants, and workers, so as to mobilize society as a whole.
Post-independence is another story, one that very often has been narrated by men in power. There was a struggle for the visibility of women. I remember the debates in South Africa, where the African National Congress was arguing about the women’s wing wanting to discuss power relations. And there was resistance to this, the party leaders would argue first let’s just get independence, let’s not waste our time, women’s liberation will come later. It was a very bitter struggle, and of course after independence, women lost out quite a bit.
Heba M. Khalil: Why were post-independence power structures and ideologies defeated and replaced at some point by new ideologies of liberalism and, eventually, neoliberalism?
Fatma Alloo: The western media portrays Mwalimu as a failure. He has not failed, from my point of view. The whole issue of national unity is important. Tanzania has been a relatively peaceful country. Why? It did not happen by accident, it had to do with Mwalimu’s policies—he realized he had to deal with profound divisions, and he understood the role of education. Administratively, the nation had been inherited after decades of divide and rule policies. It was divided on racial and religious bases, as Tanzania is half Christian and half Muslim. We could have had a civil war, like in Lebanon, or a tribal-oriented conflict, like in Kenya or Libya. Mwalimu really understood this from the very beginning. I remember when we started TAMWA, when the women came together, we had no idea who belonged to what tribe. He was that successful.
We had free medicine, free education, but of course, all that went away with neoliberalism. My generation remembers this, and I think we have to make sure that the younger generation knows the history of the country, knows the literature that emerged from the continent. In my opinion, of all the contributions of Mwalimu, the most important was the peace and unity—amani, in Kiswahili.
Because Mwalimu was so successful, the West, especially Scandinavian countries, made him their darling. As you know, Scandinavian countries had not colonized Africa much, so people also trusted them and accepted their development aid. Very sadly, it did eat away at the success of Mwalimu with his people, and eventually made us dependent on that development aid, which continues to date. Without development aid we don’t seem to be able to move on anything. We have stopped relying on ourselves.
Heba M. Khalil: What was your experience of organizing during the rapid growth of the mass media sector in Tanzania?
Fatma Alloo: I was very active, first as a journalist in the 1980s and early 1990s, and it was extremely different. We were very influenced by Mwalimu’s ideology and ready to play our role to change the world. Mwalimu had refused to introduce television because, he argued at that time, we did not have our own images to portray, to empower our younger generations. He said if we introduce television the images shown will be of the West and the imperialist ideology will continue. In Zanzibar, however, we already had the oldest television on the continent, and it was in color. When Abeid Karume attained power in Zanzibar in 1964, after a bloody overthrow of the sultanate in power, the first thing he did was to introduce not only television, but community media, so every village in Zanzibar already had these images. But television didn’t come to Tanganyika until 1992 (Mwalimu stepped down in 1986), when it was introduced by a local businessman who established his own station. Until then the state had controlled the media, so history began to change as businesses were allowed to establish media.
I remember I was then in TAMWA and we had to encourage a lot of production of plays and other visuals, for which there was no market before. The radio had been powerful; when the peasants went to the countryside, they would take the radio and listen as they ploughed the land. So, the radio was the main tool that was used to mobilize society during Mwalimu’s era.
The press gave women journalists little chance to cover issues of importance to women. We were given health or children to cover as our issues. Before, Tanzania had one English paper, one Kiswahili, Uhuru, and one party paper. By 1986, there were 21 newspapers, and it became easier for us to really influence the press, and TAMWA began talking about issues like sexual harassment at work. But it was a double-edged sword, because the television stations recruited pretty girls to do the news reading, and the girls also wanted to be seen on television as it was a novelty. So, while we were expanding the conversation on the portrayal of women, here was television, where women were used as sex objects. The struggle continues, a luta continua.
Heba M. Khalil: How are movements trying to achieve change on the continent, particularly youth movements or younger generations, by utilizing media and cultural spaces?
Fatma Alloo: The youth need to develop tools of empowerment at an educational level and at an organizational level. Africa is a young continent, and our hope is the youth. Many youth are very active at a cultural level, they may not be in universities but at a cultural level they are extremely visible, in music, dance, and street theater.
At the moment, you see the pan-African dream has sort of lost the luster it had during independence. Even if you look at the literature of that time, it was a collective dream for Africa to unite—Bob Marley had a song “Africa Unite,” we used to dance to it and we used to really identify with it, and the literature—Franz Fanon, Ngũgĩ wa Thiong’o, Sembène Ousmane, Miriam Ba, Nawal al Saadawi—and also the films that came out. In fact, Egypt was the first country to produce amazing films; when we established the Zanzibar International Film Festival (ZIFF), in our first year we showed a film from Egypt, The Destiny by Youssef Chahine.
Zanzibar International Film Festival was born because we asked the question, “If we in Africa do not tell our stories, who will?” We ask that question particularly to train and stimulate the production of films on the continent, including in Kiswahili, because while West Africa has many films, East Africa lags behind. The festival has been in existence for 21 years. This part of the world has more than 120 million people who speak Kiswahili, so the market is there. We also encourage a lot of young producers and we encourage putting a camera in children’s hands, because from my own experience, children get so excited when they can create their own images. Twenty-one years later, these children are now adults, and they are the directors and the producers in this region. So, one has to play a role in impacting change and liberating consciousness on our vibrant and rich continent.
This article is part of the series “Reclaiming Africa’s Early Post-Independence History” from Post-Colonialisms Today (PCT), a research and advocacy project of activist-intellectuals on the continent working to recapture progressive thought and policies from post-independence Africa to address contemporary development challenges. Sign up for updates here.
The State of Judicial Independence in Kenya: A Persistent Concern
Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such. So long as we may have an independent Judiciary, the great interests of the people will be safe.
On Thursday 22 July 2021, Justice Aggrey Muchelule and Justice Said Juma Chitembwe were subjects of arbitrary search, intimidation, and interrogation by the Directorate of Criminal Investigations (DCI) on the basis of unfounded allegations of corruption.
The arrest, coming in the wake of constant and relentless attacks on the judiciary by the Executive and politicians, left a very sour taste in the mouths of many, bearing in mind that nothing was found to implicate the judges upon searching their respective chambers. Let it be clear that NOBODY is above the law (nemo est supra legis)! Not even the President of the Republic, let alone the judges.
However, there are reasons why there are arguments for special procedures when arresting or dealing with criminal allegations against a sitting judge: the need to preserve the sanctity of the office and the need to manage perceptions with regard to the judicial office. The Supreme Court of India in the case of Delhi Judicial Service Association v. State of Gujarat AIR 1991 SC 2176, (1991) 4 SCC 406 recognized the fact that whereas judges were not above the law, certain guidelines had to be in place to guide the conduct of arrest “in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated”. The concept of judicial independence, it must be recalled, recognizes not only realities but also perceptions that attach to the judicial office.
Chief Justice Howland in the Canadian Supreme Court case of R v. Valente  2 SCR 673 stated as follows with regards to perception as an ingredient of judicial independence: “it is most important that the judiciary be independent and be so perceived by the public. The judges must not have cause to fear that they will be prejudiced by their decisions or that the public would reasonably apprehend this to be the case.’ There is therefore the need to guard and jealously so, the image of the judiciary such as to manage how the judiciary is perceived by the public.
The unsubstantiated claims of corruption, and knee jerk searches without an iota of evidence does not bode well for the perception of the judiciary as a whole, and specifically, for the individual judges involved whose reputations are dragged through the mud, and needlessly so. There are germane reasons why the arrest of a judge should not be a trivial matter. The deference and respect to a judicial office informs the caution exercised in the conduct of arresting a judge. The judicial office fuses with the person of the holder and therefore it becomes necessary to err on the side of caution.
Indeed, Courts elsewhere have endeavoured to engage cautiously in this exercise of delicate funambulism. The Supreme Court of India in the case of K. Veeraswami v Union of India and others, 1991 SCR (3) 189 found that a sitting judge can only be undertaken with permission from the Chief Justice or if it is the Chief Justice who is sought to be prosecuted, from the President.
Equally, the Court of Appeal of the Federal Republic of Nigeria in the case of Hon. Justice Hyeladzira Ajiya Nganjiwa V. Federal Republic of Nigeria (2017) LPELR-43391(CA) held that a sitting judge cannot be prosecuted for offences that would have otherwise been a ground for removal from office.
It is important to note that the grounds for the removal of any judge from office are captured in article 168 of the Constitution of Kenya and they include a breach of the code of conduct and gross misconduct or misbehaviour.
Noteworthy it is to remark that the High Court of Kenya, in laying a principle of constitutional law in the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae)  eKLR ably stated that, “While the DCI is not precluded from investigating criminal misconduct of judges, there is a specific constitutional and legal framework for dealing with misconduct and/or removal of judges.
Consequently, cases of misconduct with a criminal element committed in the course of official judicial functions, or which are so inextricably connected with the office or status of a judge, shall be referred to the JSC in the first instance.” The cumulative conclusion was that the gang-ho recklessness meted on Justices Muchelule and Chitembwe by an increasingly overzealous Department of Criminal Investigations (DCI) was an affront to judicial independence in its functional sense and also in terms of perception. It was a careless move.
If there is any evidence linking any of the judges to any conduct unbecoming, then out of constitutional edict and commonsensical pragmatism, the first point of call should be the Judicial Service Commission (JSC). The Office of the Chief Justice must also be subject of focus during this unfortunate debacle.
The statement emanating from that office in the aftermath of the unfortunate events of 22nd July 2021, was at best timid and disjointed. The statement did not appear to reinforce the constitutional principle that judges cannot be arrested over matters that really ought to be addressed by the Judicial Service Commission. The office of the Chief Justice should have done better.
In summary, let it be proclaimed boldly that judicial independence is too precious a public good that it will be protected at all costs. Let it be lucid that incessant interference with judicial independence will not be tolerated from any quarters.
Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such! And in the words of John Rutledge, a scholar, jurist and the second Chief Justice of the United States of America; “So long as we may have an independent Judiciary, the great interests of the people will be safe.”
This article was initially published at THE PLATFORM For Law, Justice and Society Magazine
Land Title and Evictions in the Supreme Court of Kenya
Violent evictions of families from their homes are not exceptional events. They go to the heart of Kenya’s political economy and its long history of valorising the rights of those who hold private title.
The Supreme Court of Kenya published its judgment in William Musembi v The Moi Educational Centre Co. Ltd. on the 16th July 2021. The case arose after fourteen families — the residents of two informal settlements, City Cotton and Upendo village in Nairobi — petitioned the High court following their evictions in 2013. They had lived on the land since 1968 when it was public land. The first respondent claimed that they had legitimately acquired title to the land by letters of allotment and that the land was therefore private land. According to Amnesty Kenya, the evictions began in the early morning, without warning. Groups of young men burst into homes. Four hundred homes were demolished and personal possessions were destroyed. Crowbars and sledgehammers were used. The police were present. They fired live ammunition and used teargas canisters during the operation.
In the High Court, Judge Mumbi Ngugi held that the petitioners’ rights to dignity, security, and adequate housing had been infringed. There had been a violation of the rights of children and elderly persons under the constitution. She awarded damages. At the Court of Appeal this judgment was partially set aside. While accepting that there had indeed been violations of the rights to dignity and security, the Court of Appeal nonetheless set aside the order of damages arguing that “there was no material before the court on the basis of which the orders for compensation were made” and that, because it was unable to work out how the damages had been quantified, “the only relief that should have commended itself to the trial Court was a declaration that the forced eviction and demolition of their houses without a Court order is a violation of their right to human dignity and security.” Following this, the petitioners appealed to the Supreme Court.
Importance of the Supreme Court judgment
The importance of this case is, as Gautum Bhatia has written, that it raised the question whether “the right to accessible and adequate housing could be applied inter se between private parties”. It can thus be distinguished from the same Supreme Court’s Mitu-Bell Welfare Society v The Kenya Airports Authority, which ruled on evictions from public land.
Amongst several issues for determination, the petitioners in the present case asked the court to reach a determination of the question whether the letter of allotment held by the first respondent, the Moi Educational Centre, was issued lawfully or legally. Because that question had not been conclusively determined at the High Court or at the Court of Appeal, the petitioners sought “a declaration that the acquisition of the suit property was illegal and unlawful.”
The Supreme Court declined to do this. Arguing that in the High Court Judge Mumbi Ngugi had been right in holding that the question of the propriety of the first respondent’s title was a matter for the National Land Commission and that it is the Land and Environment Court that properly has jurisdiction over this question, the Supreme Court held in William Musembi that “the title of the first respondent remains unimpeached”. Instead, it held, the only question it ought to determine was whether, in evicting the petitioners, the respondents violated the petitioners’ rights to human dignity and security, as well as the rights to housing and health.
It is on the basis of the “unimpeached” title of the first respondent that the court goes on to make its landmark finding. For determination by the court was the question whether the first respondent, being a private party, could nonetheless be responsible for the violation of constitutional rights. Recognising that “the mandate to ensure the realization and protection of social and economic rights does not extend to the first respondent” because it is a private entity which is not under any obligation to ensure the progressive or immediate realisation of those rights, the court found that private parties do nonetheless have a “negative obligation to ensure that it does not violate the rights of the petitioners.”
For Bhatia, the judgment’s significance lies partly in its finding that “a negative obligation not to interfere with socio-economic rights (such as the right to housing), …applies to both public and private parties” although he argues persuasively that “the distinction between negative and positive obligations is doing a lot of work” and that the concrete practice of evictions significantly blurs the boundary between public and private actors. He rightly notes that “evictions invariably involve concert of action between State forces and private landowners, with the latter relying upon the former (either directly, or through forbearance) to accomplish physically removing people from land.”
Public and private
If the distinction between negative and positive obligations is somewhat artificial, I also want to suggest that Kenya’s history of land grabbing shows that so too is the distinction between the state and private landowners. More than just state forces doing the bidding of private landowners, wielding batons and using bullets to break into homes in the early morning, in Kenya the state/private distinction is a mirage. In William Musembi, the court does not elaborate on the important history of letters of allotment in Kenya and the process by which they enabled public land to morph into private land. Instead, it affirms the first respondent’s title – and proceeds to make an important ruling on the obligations of private actors. However, the history of land grabbing and the murky past of letters of allotment is a critical one to keep at the front of our minds.
For determination by the court was the question whether the first respondent, being a private party, could nonetheless be responsible for the violation of constitutional rights.
The report of the Commission of Inquiry into the Illegal/ Irregular Allocation of Public Land established in 2003 set out in forensic detail the illegal and irregular land awards made over the years using the mechanism of the letter of allotment. Awards of land were made to the families of Presidents Kenyatta and Moi, numerous former ministers, members of parliament and civil servants, as well as to individuals in the military and the judiciary. The report sets out how out of proximity to the state, private property owners were created. Public land – land set aside for the building of public health clinics or schools for example – mysteriously turned into private land on which malls, private residences, and diplomatic headquarters appeared. No doubt some individuals acquired perfectly legitimate letters of allotment. But from the 1970s onwards, a thriving market in improper letters of allotment developed. They came to be treated as tradable land documents. Widely but mistakenly used as land titles (with the collusion of lawyers), they changed hands quickly in sales of grabbed land. This was done in order to get the benefit of the principle that an innocent third party for value without notice takes good title. The full extent of this practice is unknown: the Ndung’u Commission warned that its report provided only a snapshot of the illegal/irregular land allocations that had taken place over the years.
I have written elsewhere that land grabbing is sedimented in Kenya’s political economy such that we can describe it as a “grabbed state”. The “normal” economy is founded on accumulation by dispossession. It is not possible to understand Kenya’s political economy without an understanding of how the normal and the supposedly abnormal are pervasively linked. Far from land grabbing being an aberrant phenomenon that can be sharply distinguished from normal business practice, the illegal and irregular appropriation of land structures Kenya’s economy.
Widely but mistakenly used as land titles (with the collusion of lawyers), they changed hands quickly in sales of grabbed land.
There is no operative distinction between the public and the private in Kenya. This makes the judgment in the present case even more consequential: given the history of these murky conversions in title, the judgment’s finding that negative constitutional obligations can attach to private actors is likely to cover a great many potential eviction scenarios. Indeed, I would argue that given the history of land described above, the court should have gone further. Grounding its reasoning in Kenya’s history of land grabbing and the dispossession and discrimination that resulted, it could have held that positive socio-economic obligations (such as providing alternative accommodation) should extend to private parties. Or it might have held that given the extent of land grabbing — which is a matter of public record — the state should not agree to enforce a court order for eviction until it is satisfied that alternative accommodation has been provided.
Entrenching private property
Welcoming the Supreme Court’s judgment, Bhatia has noted that it “continues the welcome trend of judicial scepticism towards entrenched property rights.” The court demonstrated this scepticism by extending negative constitutional obligations to private actors. However, to do so, the Supreme Court moved to confirm the respondent’s title. That title it described as “unimpeached”. The court used this as the basis for setting out the first respondent’s obligations as a private owner. The extension of constitutional obligations to private actors is to be welcomed. But it is important to recognise also that by refusing jurisdiction to question the first respondent’s title – and ruling that this is a matter for another forum – the Supreme Court effectively sanctioned the enclosure of what the appellants claimed was unalienated public land and potentially legitimated the grabbing of public land.
The court does not elaborate on the important history of letters of allotment in Kenya and the process by which they enabled public land to morph into private land.
Instead, the Supreme Court might have used Art. 23 which provides for the authority of courts to uphold and enforce the Bill of Rights, to try to fashion a remedy. It could have expressly referred the question of the integrity of the first respondent’s title to the National Land Commission rather than state as unequivocally as it did that it is unimpeached. At the very least, given the importance of a letter of allotment and the question of title in the case, the court should have rehearsed Kenya’s history of land grabbing and corruption as revealed by the Ndung’u report so as to give it judicial notice and provide a starting point for the wider task of challenging ill-gotten titles by those who might seek to do so.
Reinstating Judge Mumbi Ngugi judgment in the High Court and in particular her finding that damages should be paid to those evicted, the Supreme Court ordered the first respondents, the Moi Educational Centre, to pay fourteen families KSh150,000 (just over 1000 euros) each in damages. The government will also pay each family KSh100,000. In return, unless the National Land Commission or the Land and Environment Court are asked to rule on the propriety of the first respondent’s title and find against them, the Moi Educational Centre now hold unimpeached title to very valuable land in Nairobi. That is quite a windfall.
Violent evictions of families from their homes are not episodic and exceptional events. They go to the heart of Kenya’s political economy and its long history of valorising the rights of those who hold private title, however acquired. How far can the courts be relied upon to undo accumulation by dispossession?
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