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Court of Appeal’s BBI Judgment: The IEBC as a Fourth Branch Institution

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The IEBC is a Fourth Branch institution that – as the name suggests – is responsible for supervising elections and referenda, and for related matters such as boundary and constituency delimitation.

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Court of Appeal’s BBI Judgment: The IEBC as a Fourth Branch Institution
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If you were to draw one of those Venn Diagrams that are so popular as internet memes these days, for the BBI Judgment, the Independent Electoral and Boundaries Commission [“IEBC”] would be at the centre. Established under Article 88 of the Constitution (see here), the IEBC is a Fourth Branch institution that – as the name suggests – is responsible for supervising elections and referenda, and for related matters such as boundary and constituency delimitation (see Article 88(4)). In the BBI Case, the IEBC was involved in a range overlapping issues: one of the grounds for challenging the Constitution Amendment Bill was that by directly altering constituencies, it took away the prescribed function of the IEBC; and furthermore, since the IEBC plays an important part under Article 257, its own conduct during the Popular Initiative came under scrutiny. Let us take some of these issues in turn.

The Constitution Amendment Bill and the IEBC

Recall that one of the features of the Constitution Amendment Bill was the creation of seventy new constituencies, allocated to twenty-nine counties. This had been invalidated by the High Court, on the basis that the independence of the IEBC and its constitutionally guaranteed role of delimitation was itself a part of the basic structure. Agreeing with this analysis, Musinga (P), in his lead judgment (with which Gatembu Kairu JA agrees), frames the issue as one of political gerrymandering (paragraph 292) (thus implicitly agreeing with Respondent’s counsel during oral arguments, where it had been pointed out that constituencies are essentially sources – and terrains – of political and resource patronage). This point is strengthened by the fact that the criteria in the Second Schedule to the Constitution Amendment Bill to determine the manner of increase of constituencies were different from the criteria set out in Article 89.

This, coupled with the fact that the Second Schedule to the Constitution Amendment Bill would essentially set up two parallel – and conflicting – power centres with respect to delimitation (without deleting Article 89(2)) allow Musinga J to hold that in any event, the creation of additional constituencies via amendment is unconstitutional (paragraphs 416 – 417; see also Nambuye JA, paragraph 150).

The deeper rationale for this is provided in Kiage JA’s opinion. Kiage JA notes:

The protective role of independence commissions over the sovereignty of the people is of critical and vital importance and can only be attained by a jealous and uncompromising assertion, exercise and defense of their independence. I apprehend that it is independent commissions alongside the Judiciary which must police and patrol the lines of delegation of the sovereignty of the people to Parliament and the legislative assemblies in the county governments, the national exercise and the executive structures in the county governments, and the Judiciary and independent tribunals. Independent Commissions are charged with duty of vigilantly and keenly ensuring that the State organs to which sovereign power is delegated maintain the stance of delegates accountable to their principals, and remain always the servants of the people. (pg 187)

These comments chime with a growing trend in comparative constitutionalism, which is the recognition of “Fourth Branch Institutions” as crucial guarantors of constitutional democracy. Information Commissions, Elections Commissions, Ombudspersons (such as, for example, South Africa’s Public Protector or India’s Comptroller and Auditor General), are examples of such bodies. Their importance lies in the fact that as far as certain fundamental rights are concerned, their effective realisation is impossible without a kind of institutional mediation.

The right to vote, for example, needs an election commission to be realised; similarly, the right to information needs an information commission; and so on. Consequently, the independence of such bodies is an integral feature of the complete fulfilment of the right itself, and insofar as issues such as the membership and functions of those bodies are to be determined by legislation, such legislation must (a) be framed so as to ensure that the right is actually realised, and (b) once framed, attains the status of a “constitutional statute.” While a range of these issues were, of course, not before the BBI Court, Kiage JA’s observations – specifically about the role of commissions in ensuring accountability – gesture towards a recognition of the constitutional status of Fourth Branch institutions, and all that such recognition entails.

Kiage JA’s observations are also a response to Sichale JA’s dissent. As the High Court had held, amending Article 89 itself was permissible as long as the procedures under Articles 255 – 257 were followed. Thus, hypothetically, the total number of constituencies could be increased via a procedural amendment. However, the manner in which this increase took place would have to be such that the independence of the IEBC in matters of delimitation (which constitutes a part of the basic structure) was not compromised. Thus, the issue with the Constitution Amendment Bill was not that it sought to increase the number of constituencies, but that it sought to cut the IEBC out of the process altogether.

Sichale JA then argues that a mere increase in the number of constituencies does not amount to a “delimitation” exercise. With respect, this argument appears to play upon a distinction without a difference: the seventy new constituencies will not be created out of a vacuum. They must necessarily be carved out of existing constituencies, thus – ipso facto – altering boundaries and in effect (even if not formally) becoming an exercise in delimitation. It is this that the majority finds must require the independent assessment of the IEBC before any increase in the number of constituencies is effected. Indeed, Tuiyott JA grasps precisely this point when he notes that:

Further, section 1(2) identifies the counties where the additional seventy constituencies will be located. In doing so, delimitation in respect to these 70 constituencies is in a sense pre-set without the involvement of IEBC as they are already allocated to counties set out in the schedule. (paragraph 234)

The IEBC: Questions of Process

In the BBI Hearings, the IEBC was – interestingly – both a victim and in the dock! Its conduct in the Popular Initiative was challenged on multiple grounds: an absence of quorum, the absence of an adequate legislative framework, the absence of mechanisms for voter registration, and so on. On almost all the counts, the IEBC was found wanting, both at the High Court, and at the Court of Appeal. By a majority, the Court of Appeal affirmed the High Court’s findings that:

  1. That the minimum quorum requirement for the IEBC to carry out its functions was five members (an understaffed IEBC, following a spate of resignations, did not meet this). This finding required the Court to engage with two potentially conflicting precedents on this point (Katiba Institute and Isiah Biwott); it was ultimately held that the judicial invalidation of a prior attempt to amend legislation and bring down the quorum meant that, as per law, the quorum stayed at five (but see Tuiyott JA’s opinion for the same outcome, albeit with different reasoning).
  2. That, prior to the Popular Initiative, the IEBC had failed in its obligation to demonstrate continuing voter registration, which would have ensured that there was a sufficient degree of correspondence between those who were entitled to vote, and actually registered voters.
  3. That the task of the IEBC under Article 257 was not simply a head-count of the million votes, but a basic level of verification as well (based on the IEBC’s own previous documents). The IEBC, however, failed to put into place a mechanism for verification; and the Administrative Procedures that it did put into place failed the threshold requirement for such secondary legislation (including, for example, that of public participation).
  4. That there did not exist an adequate legislative and regulatory framework for the conduct of referenda (the provisions in the Elections Act were unfit for purpose, especially considering the seriousness of a referendum under Article 257).

The analysis here concerned detailed engagement with Kenyan statutory and administrative law. Upon this, I am not qualified to comment, noting only that I found Tuiyott JA’s opinion the most granular and instructive (although his reasoning departs from the majority in certain respects). However, there are two larger public law points that I want to briefly flag. The first is the Court’s insistence that the importance of referenda required, in essence, the strictest possible compliance by constitutional authorities. When you survey global constitutional jurisprudence, you find two approaches. One is what may be called a “leeway” approach: that the undertaking of complex administrative tasks requires play in the joints, and that therefore, upon challenge, a Court will allow the State to get away without strict compliance with law, as long as there is substantive compliance (a theory familiar, perhaps, from contract law).

The other, however, is closer to criminal law: that it is the precise importance of the issues at stake that require any deviation from the established procedure to be treated with great seriousness. Across the Court of Appeal’s judgments, the point that a an amendment to the Constitution is a matter of paramount importance. Consequently, issues such as quorum – which would appear to be minor procedural flaws that should not vitiate an exercise of scale – attain the same degree of gravity as the exercise itself, and cannot be lightly brushed aside.

In the BBI Hearings, the IEBC was – interestingly – both a victim and in the dock! Its conduct in the Popular Initiative was challenged on multiple grounds

The second point ties in with the first half of the post, and brings us back to the point of constitutional statutes. It is interesting to note that the Court of Appeals is pellucidly clear on the point that the implementation of the Popular Initiative required the enactment of a legislative scheme (although the High Court did hold – and Tuiyott JA affirms – that for something like Article 257, the legislature’s failure to act should not be held against the People, and that consequently, a procedure that is constitutionally compliant will still pass muster).

This comports with the view that certain fundamental rights are incomplete without legislative instantiation, and raises a host of interesting questions about how statute and Constitution are to be read together, when that legislation does come into existence. It has been argued by scholars that constitutional statutes are a kind of “super statute”, their status somewhere between ordinary law and constitutional law. Indeed, the precedent in Katiba Institute, involving the striking down of the attempt to reduce quorum – as discussed above – is a good example of how, once a legislative scheme does exist to instantiate a set of rights, certain kinds of clawback, or regression, will not be treated as a simple legislative amendment, but an actual constitutional violation (see here). (And this is why I respectfully disagree with Tuiyott JA’s argument that even when the revised Quorum provision was struck down in Katiba Institute, the older one did not revive; Musinga (P)’s reasoning that the older provision stays in force is closer to the theory of constitutional statutes).

For example, suppose that tomorrow Kenya enacts a Referendum Act, which follows the Court of Appeals judgment and prescribes a “unity of content” approach towards the framing of referendum questions. Now suppose that a future Kenyan Parliament decides to amend that Act to allow for a “lumping” of questions a la BBI. The theory of constitutional statutes will allow a Court to strike down such an amendment on constitutional grounds. The argument will be that once a statutory framework has been established to instantiate a certain constitutional right, it is not open to Parliament to retrogress and once again bring the legal position to that of non-compliance from compliance.

Of course, none of these questions were before the Court of Appeals. I believe, however, that the theory of constitutional statutes forms an unarticulated major premise of the Court’s findings on adequacy of legislative framework. It will therefore be exciting to see whether, in a future case where the question is front and centre, the concept attains full articulation.

The BBI Appeals also considered a range of other issues, such as Presidential immunity, the question of service upon the President, the role of County Assemblies, the inclusion of the Kenyan National Union of Nurses, cross-appeals, and many others.

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

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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.

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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.

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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.

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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.

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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.

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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.

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