Connect with us

Op-Eds

BBI Appeal: The Doctrine of Basic Structure Revisited

8 min read.

On 20 August 2021, a seven-judge bench of the Kenyan Court of Appeal delivered judgment in a set of consolidated cases known as the “BBI Appeals”. The case arose out of the judgment of the High Court of Kenya, where the Constitution Amendment Bill of 2020, containing seventy-four proposed amendments to the 2010 Kenyan Constitution, had been struck down for violation of the basic structure, and non-compliance with various procedural and substantive requirements under the Constitution’s amendment provisions.

Published

on

BBI Appeal: The Doctrine of Basic Structure Revisited
Download PDFPrint Article

The Court of Appeal’s judgment comes in at a formidable 1089 pages, with all seven judges writing separate opinions. Very helpfully, however, the Court has also provided a disposition (here), that sets out eighteen findings along with the bench-split on each issue. This immediately obviates any confusion about what the judgment is, and leaves us free to focus on the Court’s reasoning. In brief: on almost all significant issues, with fluctuating majorities, the Court of Appeal upheld the judgment of the High Court, and affirmed the finding that the Constitution Amendment Bill 2020 was unconstitutional.

In the following series of posts, I propose to analyse the Court of Appeal’s judgment(s), thematically. I will begin with the issue of the basic structure. As the disposition indicates, the Court held that the basic structure doctrine is applicable in Kenya (6-1), that it provides an implied limitation upon the amendment process set out in Articles 255 – 257 (5-2), and that the basic structure can be altered only through an exercise of primary constituent power – i.e., a recreation of the conditions under which the Constitution was founded, which include a four-step process of civic education, public participation, Constituent Assembly Debate, and a referendum (4-3).

Amendment or Repeal: The Heart of the Issue

I will begin with the judgment of Kiage JA, as – in my reading – on the issue of the basic structure, it is the “lead judgment”. Kiage JA’s analysis of the basic structure issue is found between pgs 5 – 98 of his judgment. At its heart, Kiage JA’s argument is a straightforward one, and follows the logic of basic structure judgments across the world, namely that (a) there is a distinction between “amendment” and “repeal”, and (b) repeal can either be express, or implied. The latter form of repeal can take place through a set of amendments that are fundamentally inconsistent with the Constitution as it stands. At pg 83, thus, he notes that “amendments always presuppose the existence of the constitution with which they must be consistent, and which they cannot abolish.

In my analysis of the arguments before the Court of Appeal, I had pointed out that the Appellants’ reliance on Article 1(1) of the Kenyan Constitution was counter-productive, as the words of that article – “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution” – presuppose the existence of this Constitution; amendments that amount to implied repeal, however, are no longer operating within the framework of “this” Constitution. This is the argument that effectively forms the basis of Kiage JA’s acceptance of the basic structure doctrine: that, just like a house no longer remains a house if you knock down its foundations and pillars (as opposed to merely redecorating it), this Constitution no longer remains this Constitution, if your amendments are such that alter its identity.

Direct Democracy under Articles 255 and 257: The Kiage JA/Okwengu JA/Sichale JA Debate

Now, while this argument is a persuasive argument for adopting the basic structure doctrine per se, in the Kenyan case there is an added wrinkle. And that is that the ten “core” themes set out under Article 255 already require a referendum in case they are to be amended; and furthermore, a “popular initiative” under Article 257 also requires public participation and a referendum. For this reason, the core of the Appellants’ case before the Court of Appeal was that the concerns that the basic structure doctrine sought to address had already been addressed within the Kenyan Constitution: by having a mix of representative and direct democracy in its amendment provisions, the framers of the Kenyan Constitution – and, by extension, the People – had provided for an eventuality where any amendment to the basic structure could not be accomplished solely by the representative organs, and would have to go to the People.

Indeed, if we study the dissenting judgment of Okwengu JA, we find that it is precisely this argument that she finds persuasive. In paragraph 76 of her judgment, Okwengu JA notes that:

This means that the popular initiative is a citizen driven process. In both instances, the people remain involved in both the popular initiative and parliamentary initiative through public participation, and are the ultimate determinant through the referendum process on whether the amendment is carried. (paragraph 76)

Okwengu JA then goes on to note that the “basic structure” of the Kenyan Constitution has already been identified in Article 255 – through the setting out of ten thematic areas that require a referendum if they are to be amended – and a specific process for its alteration (involving the People) has been set out:

That is to say that the framers of the Constitution of Kenya, 2010 conscious of these thematic areas as the main pillars forming the basic structure of the Constitution, nonetheless provided a leeway for amendment of these thematic areas, putting in place appropriate safeguards including the peoples’ participation and final decision on the amendment. This is a clear indication that in regard to amendments, the Constitution of Kenya, 2010 is explicit and self-sufficient. (paragraph 82)

We find something similar in the dissenting judgment of Sichale JA. Sichale JA finds particularly persuasive the Appellants’ argument that what distinguishes India from Kenya is that Article 368 of the Indian Constitution limits the amending power to a (representative) Parliament, while Articles 255-257 of the Kenyan Constitution explicitly envisage a role for the People (pg 29). She then goes on to note that the scheme of Articles 255 – 257 specifically respond to the pathologies identified in Kenya’s past, and their solution is found within the text itself:

Indeed, the 2010 Constitution was informed by Kenya’s dark past and its citizenry were determined “Never Again” shall we have a Constitution that can be amended at will. In the formulation of the 2010 Constitution, a conscious effort was made to ensure that we do not have hyper-amendments. (pg 37)

This is, thus, a powerful argument – commanding the acceptance of two Justices – and one that deserves a response. And in Kiage JA’s judgment, we find three responses: conceptual, historical, and theoretical. Conceptually, Kiage JA points out – taking forward the argument set out above – that by definition, if you want to replace the Constitution instead of amending it, you must go outside of the Constitution and not within it (what the High Court referred to as the primary constituent power) (pg 59). Historically, Kiage JA endorses the High Court’s historical analysis of the detailed public participation that went into the making of the Kenyan Constitution, as well as the desire to avoid hyper-amendments, but he also goes further: he locates a core pathology of post-colonial African constitutionalism as that of excessive centralisation of power within the figure of the President (this is crucial for another aspect of the appeal, which I will deal with in a future post) – and how this centralisation of power enabled various Presidents to shrug off constitutional checks and balances through the process of amendments:

It is a sad blight on Africa’s post-independence experience that no sooner did the nations gain independence than the power elites embarked on diluting and dissolving all restraints on power and authority, a blurring and final obliteration of checks and balances and a concentration of power in the Presidency. They did this principally through facially legal and constitutionally compliant changes to their constitutions. (pg 53)

Kiage JA goes on to argue that Kenyans were entirely aware of this “in their search for a new constitutional paradigm” (pg 53), and that this found reflection in the CKRC Report. Crucially, Kiage JA then uses this argument to segue into his third point, which is a democratic-theoretical point: relying upon the work of Yaniv Roznai and others, he argues that by themselves, referenda can be top-down, imposing a set of pre-decided choices upon a passive population. The fact, therefore, that Articles 255 and 257 contemplate a referendum is not sufficient justification to argue that the the reason why the basic structure doctrine exists in the first place has been adequately addressed within the Constitution itself: “an effective bulwark against abusive constitutionalism therefore seems to me to be, on the authorities, one that entails more as opposed to less people involvement.” (p. 96)

The popular initiative is a citizen driven process. In both instances, the people remain involved in both the popular initiative and parliamentary initiative through public participation, and are the ultimate determinant through the referendum process on whether the amendment is carried

We are now, therefore, in a position to reconstruct the essence of Kiage JA’s argument: first, that amendment and repeal are two different things; secondly, that therefore, constitutional alterations that fall in the latter category amount to reconstituting the Constitution, and must be taken to the People exercising primary Constituent power; and that thirdly, the existing provisions for direct democracy and referenda under Articles 255 to 257 lack the extent and guarantees of public participation that would – in light of Kenyan constitutional history – be sufficient safeguards against abusive constitutionalism. Thus, the High Court’s finding regarding the basic structure doctrine and the four-step participation process is correct and ought to be upheld.

The Analysis of the Other Judges

Now, what of the other judges? In large part, they agree with Kiage J’s analysis (see the analysis of Nambuye JA, paragraphs 62 – 65; Kairu JA, paragraphs 32 – 55; Tuiyott JA, paragraphs 25 – 34). Some additional points are added by Musinga (P). The analysis of Musinga (P) begins at para 272 of this judgment. Musinga (P) agrees with the basic point that “any amendment that alters constitutional fundamental values, norms and institutions cannot pass as an amendment, it is in the nature of dismemberment” (paragraph 285). He then spends substantial time on illustrations: in particular, he focuses on the proposed addition of a judicial ombudsman to the Constitution, a Presidential appointee whose presence, he argues, constitutes an “ingenuous and subtle claw back to the independence of the Judiciary.” (paragraph 288). He undertakes a similar analysis for changes in the legislature, which seek to convert Kenya from a Presidential to a hybrid-Presidential system, and to the controversial issue of delimitation, where he finds that the proposed amendments attempt to take away the determination of this question from an independent constitutional body (paragraph 292).

Interestingly, Kairu JA – while agreeing with the High Court’s historical analysis and finding on the basic structure – differs as to the application of the doctrine. He finds – along with Okwengu JA on this point – that the basic structure has already been identified by the Constitution, via the ten thematic areas of Article 255(1). He then holds that while these provisions may be amended (following their stipulated process), there is a complete bar on their “dismemberment”. This actually brings Kairu JA’s finding very close to the classical (or, shall we say, Indian) version of the basic structure, and – incidentally – cuts the majority in favour of alteration of the basic structure via the four-step exercise of primary constituent power, to a wafer-thin 4-3.

The Identification of the Basic Structure

One final point: the disposition does not specify the question of what constitutes the basic structure of the Kenyan Constitution. And by my count, there is no clear majority on this point. Out of the six judges who agree that the Kenyan Constitution does have a basic structure, a plurality of three (Okwengu, Kairu, and Tuiyott JA) hold that the basic structure is to be found under the ten thematic areas of Article 255; two Justices (Musinga (P) and Kiage JA) agree with the High Court that the enquiry is to be undertaken on a case to case basis; and Nambuye JA does not express an opinion on this point.

As historians of the basic structure doctrine will know, there is something almost deliciously fitting about this.

The Kenyan Constitution’s amendment provisions are singular in their detail, the obvious care with which they have been crafted, and the attention that has gone into their design. There is a reflective mix of representative and direct democracy, and the articulation of a hierarchy of norms within the Constitution – two classic features of the global basic structure doctrine. Despite this, five judges at the High Court and five out of seven at the Court of Appeal ultimately found that despite all this textual detail, there exists an additional, implied limitation upon the amending power, in the form of the basic structure doctrine.

For the reasons that I have provided in my previous analysis of the High Court judgment, and for the reasons above, I believe that both Courts are correct on this point. It is important to note that the singular Kenyan amendment provisions have called forth a singular solution: departing from global basic structure doctrine, neither the High Court nor the Court of Appeal has held that any provision of the Kenyan Constitution is unamendable per se; but rather, even the basic structure can be amended, subjected to procedural and procedural/substantive constraints that aim to replicate the participatory character of its founding.

The framers of the Constitution of Kenya, 2010 conscious of these thematic areas as the main pillars forming the basic structure of the Constitution, nonetheless provided a leeway for amendment of these thematic areas, putting in place appropriate safeguards including the peoples’ participation and final decision on the amendment.

But at the end of the day, I believe that the two Courts are correct for an even simpler reason: the very existence of the BBI and the Constitution Amendment Bill. The fact that this case came to Court at all shows that notwithstanding the care with which Articles 255 – 257 were crafted, it was still possible for to push through far-reaching constitutional changes, via a top-down elite political pact, while still staying within the formal constraints of the Constitution.

Now of course, the counter-argument will be that all the two judgments have actually achieved is replaced the elite political pact with gatekeeping by a judicial elite (and indeed, we find echoes of this fear in Sichale JA’s dissent). To this, only one answer can be made: that if future judicial decisions on this point reflect the clarity of reasoning and self-awareness exhibited by these two judgments, then fears of a judicial capture will likely not come to pass; but that, of course, is something that only time will tell. In this sense, the basic structure doctrine is a bit like HLA Hart’s famous rule of recognition: nothing succeeds like success.

Support The Elephant.

The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.

Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.

By

Gautam Bhatia is a constitutional lawyer based in New Delhi, India.

Op-Eds

Educating the Native and the Ivy League Myth

Elite schools in the US continue to place a premium on institutions, not ideas. Where you went to school is what matters.

Published

on

Educating the Native and the Ivy League Myth
Download PDFPrint Article

As a young student, I was always fascinated by the “top” universities and the erudite people that emerged from those august institutions. My first contact with Ivy League people was when I arrived at Mpala Research Centre in Laikipia in 1999 to start my MSc research. I met students and faculty from Princeton University (which is a trustee of the research centre) and was reassured that they looked “normal”, given all the academic challenges and foibles that a Kenyatta University student like me had. After I finished my MSc, the administration was impressed enough with my work to offer me a job as resident scientist, which I took up with the alacrity of someone catching a big break through hard work (I got a rude awakening later, but that’s a story for another day). As part of my job, I was to supervise a group of Princeton undergraduates undertaking a senior field project and, wanting impress, I sharpened my ecologist brain, especially because I thought I would be instructing some of the world’s sharpest young minds. Now I laugh at my consternation when, after mapping out clear and easy ecological transects for them, they strayed off into a neighbouring ranch and I got a call from the security personnel there that they were sunbathing topless on the research vehicle (they were ladies) and that the boss might be offended.

Later on, I asked a postgraduate student from the same institution how these ladies could be so casual about their studies and she couldn’t hide her amusement at my ignorance. “Grad school is competitive. Undergrads get in because of money and name recognition.” I was stunned, but I remembered this when I saw the poor work they submitted at the end of their study. Being an aspiring lecturer (and a student of the late brilliant Prof R.O. Okelo) I marked them without fear or favour, assuming that they would be used to such standards at Princeton. I was told that I couldn’t give them such low marks because they were supposed to qualify for med school after their biology degrees.

They strayed off into a neighbouring ranch and I got a call from the security personnel there that they were sunbathing topless on the research vehicle.

The next cohort included one serious student who I actually enjoyed instructing and who finished her course successfully. By that time though, I was getting restless and had started writing an academic and financial proposal for my PhD, and I finished it about six months after my student had returned to the US to graduate. The then Director of Mpala, Dr Georgiadis, refused to let me do my PhD on the job, so I submitted my proposal to several conservation organizations, including the New York-based Wildlife Conservation Society. I received a positive response from them (offering me a grant) which hit me with a strange mixture of feelings. First of all, I was elated at the prospect of starting my PhD, but I was completely baffled by the signature on the award letter. It was signed by the undergraduate student that I had supervised about eight months earlier. An American undergraduate who had spent two months in Africa was somehow qualified to assess a PhD proposal on the ecology of African wildlife written by an African MSc holder. It was my rude awakening to the racial prejudice that is de rigueur in African conservation practice. But I had to get my academic career moving, and indulge my first taste of the ultimate luxury that my competence and my work could afford me, which was the ability to say “NO”. It was with extreme pleasure that I wrote and signed my letter of resignation from my job at Mpala, leaving it on the Director’s desk.

Years later, after I finished my PhD and had a useful amount of conservation practice under my belt, I attended the Society for Conservation Biology conference in Sacramento, California, where there was a side event featuring publishers from several Ivy League universities. I excitedly engaged them because at the time Gatu Mbaria and I were in the middle of writing “The Big Conservation Lie”. I pointed out to all of them that there were no books about conservation in Africa written by indigenous Africans, but they were uniform in their refusal to even read the synopsis of what we had written. I later understood why when I learned that in US academia, African names — as authors or references — are generally viewed as devaluing to any literature.

An American undergraduate who had spent two months in Africa was somehow qualified to assess a PhD proposal on the ecology of African wildlife written by an African MSc holder.

From Sacramento, I made the short trip to Stanford University in Palo Alto, to give a seminar to an African Studies group. I felt honoured to be making an academic contribution at an Ivy League university and I prepared well. My assertions about the inherent prejudices in African conservation practice were met with stunned silence by the faculty, many of whom are involved with conservation research in Africa. One bright spot in that dour experience was the brilliant PhD student who echoed my views and pointed out that these prejudices existed within academia as well. I later found out that he was Kenyan — his name is Ken Opalo and he now teaches at Georgetown University.

Fast forward to today. The Big Conservation Lie was published, and after the initial wailing, breaking of wind, gnashing of teeth and accusations of racism, Mbaria and I are actually being acknowledged as significant thinkers in the conservation policy field and our literary input is being solicited by various publications around the world. Now, the cultural differences between how European and American institutions treat African knowledge are becoming clear (certainly in my experience). I have been approached by several European institutions to give talks (lectures), and have contributed articles and op-eds (to journals and magazines) and one book foreword. Generally, the approach is like this:

“Dear Dr Ogada, I am_______ and I am writing to you on behalf of________. We are impressed with what you wrote in _____ and would appreciate it if you would consider writing for us an article of (length) on (topic) in our publication. We will offer you an honorarium of (X Euros) for this work, and we would need to receive a draft from you by (date). . .” Looking forward to your positive response. . .”

When inviting me to speak, the letters are similarly respectful and appreciative of my time. The key thing is the focus on and respect for one’s intellectual contribution. Publications from American Ivy league schools typically say:

“Dear Dr Ogada, I am __________, the editor of __________. We find your thoughts on _______ very interesting and we are pleased to invite you to write an essay of________ (length) in our publication. Previous authors we have invited include (dropping about 6-8 names of prominent American scholars).

The entire tone of the letter implies that you are being offered a singular privilege to “appear” in the particular journal. It is even worse when being asked to give a lecture. No official communication, just a casual message from a young student saying that they would like you to come and talk to their class on__________ (time and date on the timetable). No official communication from faculty or the institution. After doing that a couple of times, I realized that the reason these kids are so keen to have an African scholar speak to them and answer all their questions is because they need his knowledge, but do not want to read his publications, or (God forbid) have an African name in the “references” section of their work.

The reason these kids are so keen to have an African scholar speak to them and answer all their questions is because they need his knowledge, but do not want to read his publications.

European intellectuals seem to be catching on to the fact that knowledge and intellect reside in people, not institutions. That is why they solicit intellectual contributions based on the source of an idea they find applicable in that space and time. Name recognition doesn’t matter to them, which is why they seek people like Ogada, who doesn’t even have that recognition in Kenya. The elite schools in US still place this premium on institutions, which is why whenever an African displays intellectual aptitude, those who are impressed don’t ask about him and his ideas, but where he went to school. They want to know which institution bestowed this gift upon him.

For the record, I usually wait about a week before saying “no” to the Ivy League schools. Hopefully, they read my blog and will improve the manner in which they approach me, or stop it altogether.

Aluta continua.

Continue Reading

Op-Eds

Cuba Can Help Vaccinate the World

On 25 January, the Progressive International will host a special briefing live from Havana with Cuba’s leading scientists, government ministers and public health officials as part of its Union for Vaccine Internationalism.

Published

on

Cuba Can Help Vaccinate the World
Download PDFPrint Article

2022 began with a “tsunami” of new Covid-19 cases crashing over the world, according to the World Health Organization. Over 18 million cases have been recorded in the past week alone, a record number since the pandemic began two years ago. In the first 10 days of January, nearly 60,000 Covid-19 deaths have been recorded worldwide — though the total death count is far higher than the official statistics describe.

The Omicron variant is reported to have less “severe” implications among vaccinated patients. But the world remains perilously under-vaccinated: 92 of the WHO’s member countries missed the 2021 target of 40 percent vaccination; at the current pace of rollout, 109 of them will miss their 2022 targets by July.

These statistics tell a story of a persistent vaccine apartheid. Across the EU, 80 percent of all adults have been fully vaccinated against Covid-19. Meanwhile, only 9.5 percent of people in low-income countries have received a single dose. Omicron is a death sentence for thousands in these countries — and as the virus travels across the Global South, new variants will emerge that may be less “mild” for the vaccinated populations of the North.

But the governments of these Northern countries refuse to plan for global vaccination — or even meet their own pledges. By late last year, they had delivered only 14% of the vaccine doses that they had promised to poorer countries through COVAX, the UN vaccine-sharing initiative. Big pharmaceutical corporations are focused almost exclusively on production of boosters for the world’s rich countries, creating a shortfall of three billion doses in the first quarter of this year.

President Joe Biden could easily help fill this shortfall by compelling US pharmaceutical corporations to share their vaccine technology with poorer nations. But he has so far refused to do so. A new production hub in Africa — where only 3 percent of people are vaccinated — is now trying to replicate the Moderna vaccine. But without Moderna’s help, or Joe Biden’s executive action, production could take more than a year to begin.

Amidst this crisis of global solidarity, Cuba has emerged as a powerful engine of vaccine internationalism. Not only has the island nation successfully developed two Covid-19 vaccines with 90 percent effectiveness, and vaccinated more than 90 percent of its population with at least one dose of its homegrown vaccine, Cuba has also offered its vaccine technology to the world. “We are not a multinational where returns are the number one reason for existing,” said Vicente Vérez Bencomo of the Finlay Vaccines Institute in Cuba. “For us, it’s about achieving health.”

But the US and its allies continue to oppress and exclude Cuba from the global health system. The US blockade forced a shortage of syringes on the island that endangered its vaccine development and hindered mass production. US medical journals “marginalize scientific results that come from poor countries,” according to Vérez Bencomo. Meanwhile, the WHO refuses to accredit the Cuban vaccines, despite approval from regulators in countries like Argentina and Mexico.

That is why the Progressive International is sending a delegation to Havana: to combat misinformation, to defend Cuban sovereignty, and to help vaccinate the world.

Bringing delegates from the Union for Vaccine Internationalism, founded in June 2021 to fight the emerging apartheid, the Progressive International will convene Cuban scientists and government representatives to address international press and members of the scientific community in a showcase of the Cuban vaccine on 25 January.

The goals of the showcase are both local and global. Drawing attention to the promise of the Cuban vaccine and the perils of the US embargo against it, the showcase aims to forge connections between Cuba’s public biotech sector and manufacturers who might produce the vaccine and help the Cuban government recuperate the costs of its development.

In the process, the showcase aims to set an example of international solidarity in the face of the present global health crisis, advancing the cause of vaccine internationalism around the world.

This article was first published by Progressive International.

Continue Reading

Op-Eds

DRC: Bring Patrice Lumumba Home

The return of Patrice Lumumba’s remains must not be an occasion for Belgium to congratulate itself, but for a full accounting of the colonial violence that led to the assassination and coverup.

Published

on

DRC: Bring Patrice Lumumba Home
Download PDFPrint Article

For much of the past year, there have been plans for the sacred human remains of the Democratic Republic of the Congo’s first post-independence prime minister, Patrice Émery Lumumba, to finally be returned to his children in Belgium, and then repatriated to the Congo. Originally scheduled for a ceremony on June 30, 2021, the 61st anniversary of the country’s independence passed with Lumumba’s remains still in the custody of Belgian authorities. The ceremony with Belgian King Philippe, current Prime Minister Alexander de Croo of Belgium, and Congo President Felix Tshisekedi, was then planned for January 17, 2022, the anniversary of the assassination. Last week, Tshisekedi announced another delay—this time until June 2022. The official reason for the delay was the rising number of COVID-19 cases in the Congo, but the pandemic crisis is deeply entangled with a series of other political maneuvers and other crises that are undoubtedly factors in the decision.

At the center of this story, Lumumba’s family continues to be victimized. As Nadeen Shaker recently reported, his children were forced to escape to Cairo during their father’s house arrest, never to see him again. The disturbing fact that the remains of Lumumba spent another Independence Day in Belgium may provide opportunities for metaphor and analogy, but, amid the widespread complicity in this ongoing desecration, the most important outcome must be to respect the ethical and legal claims of his children, which daughter Juliana Lumumba described in an open letter to the Belgian king last year.

The story of the execution and its aftermath is well told by Ludo de Witte in The Assassination of Patrice Lumumba. On January 17, 1961, Lumumba was killed along with comrades Maurice Mpolo and Joseph Okito by Belgian authorities, with the support of neocolonial Kantangan separatists and the US. Two days later, Gerard Soete, Belgian police commissioner of Katanga, and his brother exhumed the body to chemically eradicate all physical evidence of their crime in order to prevent the kind of mobilization which its identification would inspire. Though the execution was kept secret for nearly a month, its announcement inspired exactly what his executioners feared, as African people throughout the world engaged in protest and other revolutionary acts of remembrance—from the well-known demonstration at the United Nations, and other cities throughout the world to a legacy in a visual, musical, and literary culture that continues to this day.

In February 1961, while the Cultural Association of Women of African Heritage organized a major protest at UN headquarters in New York, Lumumba’s widow Pauline Opango Lumumba led a march of family and supporters to the UN offices of Rajeshawar Dayal in Kinshasa. There, she requested that the UN help her receive the remains of her husband for a proper burial. After Ralph Bunche offered “apologies” for the New York protest, Lorraine Hansberry “hasten[ed] publicly to apologize to Mme. Pauline Lumumba and the Congolese people for our Dr. Bunche.” Meanwhile, James M. Lawson of the United African Nationalist Movement and other Black activists organized a wake for Lumumba at Lewis Michaux’s Harlem bookstore. When Pauline died in Kinshasa in 2014, she was still waiting to bury her husband. She, and her iconic demonstration, are memorialized in Brenda Marie Osbey’s poem “On Contemplating the Breasts of Pauline Lumumba,” which is part of a long line of African American efforts to uplift the Lumumba family. The immediacy of Pauline’s demands remains after 6 years.

While Lumumba’s body was dissolved in sulphuric acid, Soete, like the US lynchers of Sam Hose and so many others, kept trophies of his victims as he traveled from the Congo to Belgium, often displaying them for friends and journalists. After Soete died, his daughter Godelieve continued her father’s tradition, culminating in a bizarre 2016 interview, during which a reporter found the remains in her possession. (In her efforts to defend her father, Godelieve further revealed that his brutality was visited upon his children.) The Belgian police intervened and, for the past five years, Lumumba’s remains have been held by the Belgian government responsible for his death. In September 2020, a court finally ruled they should be returned to the family.

These most recent delays are occurring at a time when the ongoing mistreatment of human remains is receiving public attention. The case of the Morton Collection at the University of Pennsylvania led activist Abdul-Aliy Muhammad to uncover the ongoing desecration of the remains of Tree and Delisha Africa, who were killed when the city of Philadelphia bombed their family’s home on May 13, 1985, leading to the discovery that the city held additional remains of the victims of its violence against the MOVE organization.

Since 2005, in South Africa, the Truth and Reconciliation Commission (TRC) created the Missing Persons Task Team to identify the remains of the Black victims of the country’s apartheid era. Drawing on the expertise of researchers with experience in similar initiatives in Argentina and elsewhere, this government project has been deliberate in its efforts to include the families of the missing at all stages, while seeing their work as integral to the larger mission of the TRC, and further representative of a larger model of repatriation of human remains and possessions. As different as these cases of violence may be, government sanction—at multiple levels and taking different forms—remains constant.

In an October 2021 program hosted by Friends of the Congo, Juliana Lumumba explained that for her, as the daughter of a martyr, repatriation and memorialization of her father’s remains were not finite events to be completed like items checked off of a to-do list. Rather, the return must be part of a wider and ongoing process: “I told Belgium, that if we want a reconciliation we need reconciliation of memories because we can not make a reconciliation when our memories [are] so different and so contradictory.” Juliana’s words carry a particular weight at a time when the Special Parliamentary Commission on Belgian Colonial History has received a sharply critical historical report that may or may not lead to meaningful action of the sort that the family has demanded.

Lumumba’s son Guy-Patrice Lumumba opposes Tshisekedi’s efforts to exploit the repatriation for political gain. Tshisekedi himself is familiar with some of the political challenges of memorialization after the remains of his own father, longtime popular opposition leader Etienne Tshisekdi, spent more than two years in Europe before their return in 2019 after Felix’s election. Felix is quickly losing whatever claim he had on his own father’s mantle (see Bob Elvis’s song “Lettre à Ya Tshitshi for a recent indictment of the president’s abandonment of his father’s mantle). He may find value in an association with a revered nationalist icon amid political protests from opponents concerned about his overreaching efforts to control the country’s powerful electoral commission as the 2023 election cycle approaches.

Meanwhile, the younger Tshisekedi’s international standing has been consolidated through his position as head of the African Union, where his responsibilities include negotiating for the provision of COVID-19 vaccines for member states. He recently met with President Biden and made an official visit to Israel, the latter of particular concern given its historical involvement in mercenary efforts against pro-Lumumba rebels and its ongoing role in the plunder of the Congo’s resources (to say nothing of Tshisekedi’s support for Israel’s occupation of Jerusalem and its status as an observer at the African Union). Such actions highlight the extraordinary distance between Lumumba’s legacy and Tshisekedi’s leadership.

For decades, the Lumumba family has made a series of unanswered demands through formal inquiries and legal appeals. A group of scholars and activists have also asserted the return of Lumumba’s remains must not be an occasion for Belgium to congratulate itself, but rather an opportunity for a full accounting of the colonial violence that led to the assassination and its subsequent coverup.

Hopefully soon, Lumumba’s family can mourn on their own terms and have all of their demands for justice met immediately and without equivocation.

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.

Continue Reading

Trending