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The Law Is Clear, Power Belongs to the People: Court of Appeal’s BBI Judgment

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The process of popular initiative must be guarded from abuse. A State actor, who is otherwise barred from initiating a popular initiative, cannot originate a proposal for amendment then hire or sponsor a citizen to formulate it into a Bill and then collect signatures in support.

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The Law Is Clear, Power Belongs to the People: Court of Appeal’s BBI Judgment
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Article 257 of the Kenyan Constitution is one of the most interesting constitutional provisions that I’ve seen. Titled “Amendment by Popular Initiative”, it sets out ten steps for amending the Constitution, which ostensibly begin with the collection of one million signatures of registered voters, and end with a referendum. In between, there is the involvement of the representative organs (Parliament and County Assemblies) as well as a fourth-branch institution (the Independent Electoral and Boundaries Commission, or the IEBC). If each of these ten steps is completed – with its mixture of direct and representative democracy, and the participation of independent constitutional bodies – the Constitution stands amended by Popular Initiative.

As the Constitution Amendment Bill 2020 was going down the Popular Initiative Route, Article 257 was at the heart of much of the litigation, both before the High Court, and the Court of Appeal. Out of the twenty-one thematic issues framed in paragraph 50 of Musinga (P)’s lead judgment, I counted six that were directly about the interpretation of Article 257, and a few more that were ancillary. For the sake of simplicity, I propose to analyse three issues here.

  1. While the “promoters” of the BBI initiative were Mr Dennis Waveru and the Hon. Junet Mohammed, it was strongly urged that the actual force behind the initiative were H.E. President Uhuru Kenyatta and the Hon. Raila Odinga. This then led to a mixed question of fact and law: on fact, who was actually behind the initiative; and on law, if it was the President, then does Article 257 contemplate a situation where the President sets the popular initiative process in motion?
  2. The Constitution Amendment Bill contained seventy-four proposed constitutional amendments. Does Article 257 allow for this kind of a “package deal” to be put to a referendum, or does it require each proposed amendment to be put to the People in a separate referendum?
  3. What are the standards of public participation contemplated by Article 257, and did the BBI process meet those standards?

According to the Disposition, the Court of Appeal (i) unanimously held that the President was behind the BBI initiative, and that this was unconstitutional; (ii) by a 4-3 majority, held that separate amendments need not be put to the People as individual referendum questions; and (iii) did not specifically pass any orders on the third issue. Let us now consider each in turn.

Top-Down or Bottom-Up?

On the issue of who really was behind the BBI initiative, the findings are fairly straightforward. The lead judgment of Musinga (P) traces the chronology as follows: the “handshake” between H.E. President Uhuru Kenyatta and the Hon. Raila Odinga; the establishment, by the President, and through a formal gazette notification, of the BBI Taskforce; the establishment, also by the President, and also through a formal gazette notification, of the BBI Steering Committee; and the coming-into-being of the Constitution Amendment Bill 2020 as an annexure to the Steering Committee Report. Musinga (P) therefore holds:

From the foregoing, there can be no dispute that the President was the initiator of the BBI Initiative, having established and gazetted under his hand the BBI Taskforce and the BBI Steering Committee. I am in agreement with the High Court’s finding that the Amendment Bill was an initiative of the President. (paragraph 312)

During proceedings before the Court of Appeal, Appellants had nonetheless argued that the BBI Taskforce and the BBI Steering Committee were distinct from the BBI Secretariat, a voluntary alliance of political parties, and from where the actual promoters of the initiative under 257 (Mr. Waveru and Hon. Mohammed) came from. Musinga (P) rebuts this point by noting that constitutional amendment proposals were clearly within the terms of reference of the BBI Steering Committee (paragraph 321), evincing a clear intention to start the process under Article 257. Thus:

Considering the way the Amendment Bill was developed and processed, it cannot pass muster as a popular initiative. The Bill came into being after “the President and Commander –in-Chief of the Defence Forces” appointed the BBI Taskforce which prepared a report and presented it to the President, who in turn set up the BBI Steering Committee that eventually drew up the Bill. It is however not in dispute that the BBI Steering Committee toured all the counties and received views from various stakeholders, but that cannot qualify the process as a popular initiative. There is no indication whatsoever that this was a citizen initiated move. By all means, it was an executive led and driven initiative. (paragraph 325)

We find similar analysis in the other judgments (see Nambuye JA, paragraphs 66 – 71; Okwengu JA, paragraph 136154 – 158; Kiage JA, pgs 101 – 107, 118 – 121; Gatembu Kairu JA, paragraph 83; Sichale JA, pgs 67 – 69; Tuiyott JA, paragraphs 66 – 78, for a particularly detailed examination of affidavits).

Musinga (P) then affirms the High Court’s historical analysis, according to which a clear distinction was drawn between amendments initiated “by the People”, and those initiated by the “political elite”, with the BBI falling clearly within the latter category. A perusal of the CKRC Report reveals that the entire purpose of what eventually become Article 257 – and its passage through multiple draft Constitutions through the 2000s – was to release the amendment process from parliamentary monopoly, and provide an avenue whereby the public could be involved, not just at the end of the process (through a referendum), but at the point of initiation.

Now, what of the argument that the President could nonetheless initiate the process “in his capacity as a private citizen”, exercising his own constitutional rights? Here, Musinga (P) affirms the High Court’s conceptual analysis, noting that the Kenyan Constitution itself recognises the distinction between representative and direct democracy; consequently, a provision that expressly contemplates the latter process cannot be usurped by representative organs (paragraph 348). Other judges agree (see Nambuye JA, paragraphs 99 – 101; Okwengu JA, paragraphs 110 – 112, and also paragraph 152, noting that the President cannot “temporary remove his executive mantle”; Kiage JA, pg 108 – 110; Gatembu Kairu JA, paragraphs 77 – 81, Sichale JA, pgs 69 – 72; Tuiyott JA, paragraphs 49, 52 – 55).

From the foregoing, there can be no dispute that the President was the initiator of the BBI Initiative, having established and gazetted under his hand the BBI Taskforce and the BBI Steering Committee. I am in agreement with the High Court’s finding that the Amendment Bill was an initiative of the President

I want to make two further points here. The first is that during oral arguments, Appellants pointed out a situation where the President’s agenda would be stymied by an opposition-dominated Parliament (the famous “veto points”, to borrow a term from American Presidentialism), leaving them no choice but to take their case to the People directly. Article 257 facilitated this. This argument is acknowledged by Kiage JA, but his response is, essentially, “too bad, the Constitution doesn’t allow for that.” I think, however, that Kiage JA does indeed answer this question, but as part of his basic structure analysis (see previous post). In his analysis of comparative constitutional history, Kiage JA notes how the “Imperial Presidency” came to dominate African constitutionalism after the first wave of decolonisation in the 1960s, and he goes on to argue that the 2010 Kenyan Constitution is a response – inter alia – to the pathologies of the Imperial Presidency.

This is a crucial point, because the arguments in the context of Article 257 reveal the stakes here. As multiple Justices note, the text of Article 257 does not specifically bar the President from initiating or promoting the popular amendment process. The question then becomes, how do you resolve this constitutional silence? Now if you think of the Presidential system as set out under the 2010 Constitution as empowering the President against the kind of veto-points that one finds in the United States, then the Appellants’ arguments would be persuasive; however, if you think that the 2010 Constitution was meant – inter alia – to check the Imperial Presidency, then ambiguities and silences should be resolved in favour of veto points and against expanded Presidential power. As is clear, this debate goes right to the fundamental premises of the 2010 Constitution – its “basic structure”, one might almost say! And consequently, which side one takes on this will have implications beyond this judgment, in future litigation concerning Presidential and executive powers. None of the judgments in the Court of Appeal squarely address this point, and so, arguably, it remains open.

My second point involves a debate (of sorts) between Okwengu JA and Tuiyott JA on this point. In her analysis of the legality of the BBI Steering Committee itself, Okwengu JA appears to suggest that had the Steering Committee simply floated some proposals on constitutional amendment, and had those proposals then been taken up by ordinary citizens, the process under Article 257 may have been kicked off validly. This, however, raises a concern that I had indicated in my earlier post about the High Court judgment: even a ruling clarifying that neither the President nor any other State organ can initiate or promote the process under Article 257 will leave open the possibility of doing an end-run around the Constitution through clever use of proxies. Interestingly, this danger is specifically recognised by Tuiyott JA. In paragraph 60, Tuiyott JA notes that:

That said, the process of popular initiative must be guarded from abuse. A State actor, who is otherwise barred from initiating a popular initiative, cannot originate a proposal for amendment then hire or sponsor a citizen to formulate it into a Bill and then collect signatures in support. In that instance, the promoter will simply be a surrogate of the State actor. That will not be a truly citizen-driven initiative as it will an enterprise of the State actor. There will be occasion therefore when it will be necessary to look beyond the person who formulates the draft Bill and collects the signatures to discover the hand behind the initiative, only in this way will the true intent of the popular initiative process be protected against manipulation. (paragraph 60)

Tuiyott JA therefore spends the next eighteen paragraphs minutely examining the evidence on record, including – in particular detail – the affidavit of Mr Waveru, where he himself conceded links between the BBI Secretariat, Taskforce, and Steering Committee, to demonstrate that what was happening here was indeed “an enterprise of the State actor.” This is promising: I suspect that, given the Court of Appeal’s ruling, in the future, the use of proxies – only more subtly and cleverly than the somewhat ham-fisted attempt in this case – to circumvent Article 257 is a non-trivial possibility. In such cases, Tuiyott JA’s detailed consideration of evidence indicates how the judiciary may examine this issue.

The Referendum Questions

Recall that the High Court had held that in a proposal for amending the Constitution that goes to a referendum, the proposed amendments must be submitted as separate and distinct questions, and not as a “package deal”. There are many rationales for this, two of which are succinctly summarised by Nambuye JA (paragraph 121). First, the binary, up-down nature of referenda makes them particularly unsuitable for the simultaneous determination of multiple issues, especially where citizens may have different views on those issues. By forcing a “package deal” vote, actual public preferences are thus seriously distorted. Secondly – and relatedly – the “package deal” allows the State to throw in “sweeteners” to make undesired changes more palatable. Suppose I offer to buy you ice-cream for a week if – and only if – you allow me to whack you in the face, your affirmation of my “package deal” doesn’t actually signify that you want to be whacked in the face – especially when the two “offers” are entirely unrelated.

It is however not in dispute that the BBI Steering Committee toured all the counties and received views from various stakeholders, but that cannot qualify the process as a popular initiative. There is no indication whatsoever that this was a citizen initiated move. By all means, it was an executive led and driven initiative.

On this point, Musinga (P) – whose opinion appears to be controlling (but see below) – adopts a textual reading that is somewhat (in my submission) at odds with the tenor of the rest of his judgment. He notes that under Article 257, what is required to be submitted to the People is a “Bill”, not a “question” or “questions”. The modalities of how this is to be done lies exclusively within the domain of the IEBC (paragraph 398). Note, however, that the textual point is not quite as clear-cut as all that. As Nambuye JA notes – in a very clear exposition of the argument (paragraphs 121 – 132) – the Article 257 differs from, say, the Article V of the United States Constitution, which uses the plural “amendments”, while Article 257 uses the singular “an amendment.” (see also Kiage JA, pgs 175 – 176) There, is therefore, at least a plausible textual argument for the proposition that the Article 257 process refers to a single amendment and therefore, by definition, excludes omnibus bills that offer up multiple amendments.

Now, on all other points, the Justices in the Court of Appeal – including Musinga (P) – consistently hold that wherever there is textual ambiguity or silence, an interpretation that strengthens public participation is to be preferred over one that does not. In this context, it is hard to argue with Nambuye JA’s observation in paragraph 128, that:

It is further my position that, when a bill is limited to a single subject, it is easier for the public to more fully understand the impact of the enactment. It also prevents fraud upon the people by minimizing the possibility of promoters of the amendment hiding harmful proposals in the midst complex multi-subject measures that the common man might not be able to grasp and understand. (paragraph 128)

I respectfully submit, therefore, that on this issue, Musinga (P) departs from his own consistent interpretive methodology. Furthermore, and somewhat bafflingly, shortly after his analysis, he nevertheless goes on to say “that notwithstanding, it is improper to lump together 74 proposed constitutional amendments in a Bill” (paragraph 399) Evidently, therefore, Musinga (P) is entirely cognisant of the problem with “package deals” – and indeed, around sixty paragraphs before, he himself identifies the problem with this package deal:

Some of the proposed amendments are rather superfluous, and strictly speaking they ought not to have been proposed as constitutional amendments by the promoters. At best, they could only be proposed as statutory amendments but were intentionally included in the Amendment Bill and appropriate statutory amendment Bills drawn by the to act as sweeteners to coax voters into supporting the proposed constitutional amendments. (paragraph 336)

He goes on to describe these amendments (tax breaks, loan exemptions etc), and immediately after, notes:

These are definitely very good and appealing proposals, but anchoring them on the Constitution of Kenya (Amendment) Bill, 2020 that also proposed very far reaching alterations of the basic structure of our Constitution was a clever bait to entice the populace, and particularly the young registered voters, who are the majority, to support the Amendment Bill, without proper civic education on all the contents of the entire Bill. (paragraph 338)

But this “clever bait” is surely as much an end run around Article 257 as is the President standing behind the figures of Mr. Waveru and the Hon. Mohammed to initiate the BBI process! Thus, this makes Musinga (P)’s finding on the issue of separate referendum questions even more baffling. I wonder, though, if an answer is to be found in paragraph 400. There, Musinga (P) notes:

I do not therefore agree with the learned judges that what is to be subjected to the referendum is a question or questions, it is the Amendment Bill, but the people are to approve or disapprove of the Bill by answering a question or questions as framed by the IEBC and approved by Parliament. (paragraph 400)

This – I would submit – is a bit of a walk-back, because here Musinga (P) does become prescriptive about the form that the Amendment Bill should take, notwithstanding the IEBC. Now, realistically, it is hard to imagine how anyone might lump together 74 amendments into a single question, unless one takes the absolutely blatant route of listing out all the amendments and ending it with a single question: “Do you agree, yes/no?” What Musinga (P) seems to be saying here is that the referendum can be a single referendum, on a single Bill, but within that, the People should have a chance to vote on separate questions separately (this possibility of a multi-option referendum as solving the “Hobson’s Choice” at issue is indicated by Kiage JA, although he declines to make a finding on it, given that there is no Referendum Act in existence yet (Kiage JA, pg 179).

There is, however, a further issue that now arises. The Disposition notes that the High Court’s finding on multiple/single question referenda has been overruled by a 4-3 majority. The three in the minority are said to be Nambuye JA, Okwengu JA, and Kiage JA. I have referred to the views of Nambuye and Kiage JJA above, and Okwengu JA says that she agrees with Kiage JA.

Now, first of all, Tuiyott JA in his opinion does not return a finding on this issue: he says that there was no “live controversy” in the instant case, as the IEBC had not yet determined the manner and form in which it would frame the reference questions (paragraph 251). To start with, this already means that – even if we read Musinga (P)’s opinion as going against the Respondents, there is no majority for the proposition that multiple issues can be lumped together in a single bill.

Complicating matters further, Gatembu Kairu JA, in his consideration of the issue, has this to say:

…[the voter’s] choice, in my view, is rendered nugatory, inoperative, and inconsequential if the voter is called upon to vote on an omnibus draft Bill, that contains a raft of numerous, diverse, and unrelated proposed amendments to the Constitution, in this case over 70 proposals of amendments, that cut across the entire spectrum of the Constitution. (paragraph 156)

He then says:

The argument made for the respondents on the principle of unity of content or single subject matter, that Constitutional amendment through a referendum should deal with only one main issue, is one I find most attractive and persuasive. (paragraph 157)

And he then says:

Ultimately, it seems to me that to put a single binary question or multiple question is a matter to be informed by the nature of amendment proposed. It may well be that certain proposed amendments may require separate and distinct referendum questions to be framed. What in my view Article 257(10) of the Constitution does not contemplate is the submission to the people in a referendum of an omnibus amendment Bill, a hotchpot of an amendment Bill, such as the Constitution Amendment Bill in this case. (paragraph 159)

Gatembu Kairu JA thus seems to adopt a middle ground, where it is possible to have thematic amendment bills, where the several questions relate or are part of the same theme, thus leading to “unity of content”. It is easy to imagine examples: say, for instance, the restructuring of a regulatory body, where it wouldn’t make sense to treat the amendments separately. This determination, it is clear, must be on a case to case basis. Gatembu Kairu JA makes this explicit when, in his summary, he says that he is not overruling, but qualifying the High Court’s orders on this point by adding the phrase “subject to the nature of the amendment” (paragraph 197); but what is also clear is that Gatembu Kairu JA – along with the three other judges in the minority – is unambiguous on the point that the lumping together of unrelated amendments into an Omnibus Bill is not merely improper, but unconstitutional.

As, however, there is nothing in the overall Disposition on this, we will have to see what the future holds.

Public Participation

The final issue that I want to consider in this post is the scope of public participation under Article 257. Public participation as a constitutional value is one of the outstanding features of the Kenyan Constitution, explicitly set out under Article 10, and subject to interpretation in a number of judgments such as Kiambu County Government v Robert N. Gakuru. Public participation under Kenyan Constitutional law has both procedural and substantive elements: transparency, adequate time, accessibility, and so on.

The requirements of public participation are somewhat challenging to articulate in the abstract, and are therefore best understood through application. In the majority judgments, the following aspects come through: (a) that copies of the Amendment Bill were posted online only in English, despite Kiswhaili being both the national and an official language (Musinga (P), paragraph 333); that there was no indication that civic education about the amendments had been undertaken (Musinga (P), paragraph 335; Nambuye JA, paragraph 84; Okwengu JA, paragraphs 122 – 128;); that the time gap between when the Bill was published in local newspapers and its approval in County Assemblies, as well as at other stages of the process, was much too short to allow for any reasonable public participation; (Musinga (P), paragraph 339; Kiage JA, pgs 135 – 137).

It is further my position that, when a bill is limited to a single subject, it is easier for the public to more fully understand the impact of the enactment. It also prevents fraud upon the people by minimizing the possibility of promoters of the amendment hiding harmful proposals in the midst complex multi-subject measures that the common man might not be able to grasp and understand.

Importantly, a majority of the bench also holds that the burden of demonstrating public participation lies upon the State, as – in accordance with the law of evidence – it has the requisite information on that point. To this I would only add: to the extent that public participation is a constitutional value under Article 10, the argument that an amendment process (for example) is not constitutionally complete until public participation has been affirmatively demonstrated, is a powerful one. Beyond the law of evidence, thus, there is a constitutional reason why the burden of proof should be upon the State.

There is, however, something of a split in the bench when it comes to the stages at which this obligation exists, and the intensity to which it exists. This split reveals something of an internal tension within Article 257. On the one hand – as almost all the Justices note – public participation is particularly vital especially in the context of Article 257, given that it is an instance of direct democracy; on the other hand, given that Article 257 is meant to be initiated by the People, ordinary people (small-p) will invariably lack the resources that will allow them to conduct public participation at a national scale, at the stage of collection of signatures. This tension is articulated by Kiage J, when he notes that:

I must express my unease, brought out quite poignantly by Mr. Karori in his address to us, that it would be to place an onerous, and well-nigh impossible burden on promoters of a constitutional amendment by popular initiative, to expect them to go the whole hog captured in the above excerpt before they can properly collect the signatures. It seems to me, with respect, that the requirements stated by the judges must be present before or as at the time the voters finally make their decision on the proposed amendments at the referendum failing which the mandatory requirement for public participation will not have been met, with fatal consequences to the proposed amendment. I am of the view, however, that the elements of public participation stated must per force be understood to form a spectrum or a continuum which is incremental in character. (pg 130; see also Tuiyott JA, paragraph 209).

Similarly, Gatembu Kairu JA notes that:

For it might appear that by one hand, Wanjiku is given a vehicle by the Constitution to propose amendments to the Constitution, but the vehicle is then taken away by the other hand, by making it impossible for Wanjiku to drive that vehicle by reason of want of resources. (paragraph 88)

Gatembu Kairu JA, however, proposes a different solution. While Kiage J would simply hold that the requirement of public participation – in all its rigour – applies at the final (referendum) stage, Gatembu Kairu JA holds that in an individual case, it would be “open” to Wanjiku to claim a lack of resources (a claim that would not be open to the IEBC, when it gets involved in the process).

I respectfully submit that Gatembu Kairu JA is correct. It is true that the burden of public participation is one that should be borne by the State – or State organs – and not by wanjiku. However, this is where we come right back to the elegant design of Article 257, which accommodates the involvement of the People, of County Assemblies, of Parliament, and of the IEBC. Consequently, would it not make sense for the requirement of public participation – in all its rigour – to be applicable corresponding to the stage at which State organs get involved? This, in my respectful submission, would resolve the tension within Article 257.

The structure and design of Article 257 gives rise to a range of fascinating questions, many of which came to be answered by the Court of Appeal. These include the difference between top-down and bottom-up amendment, with the Court affirming that, viewed in its history and context, Article 257 precludes an executive-driven process. These also include the manner in which a popular initiative may be crystallised into a referendum question (or questions), with a clear majority of the Court holding that “omnibus Bills” that have no “unity of content” are outside the scope of Article 257. And these further include the extent to which the obligation of public participation applies to a public-initiated directly democratic process. Here, the Court affirms that it is clear that in this case – given that it was executive-driven in any event – the obligation has not been discharged; it remains open, however, what standards will apply when – in the hypothetical future – a 257 process is genuinely wanjiku-driven.

I think that some of the ambiguities and tensions in the judgment(s) reflect the challenges of interpreting what is, undoubtedly, a complex provision, and also the fact that these questions are coming up for the determination for the first time, in a relatively young Constitution. Faced with these challenges, the judges of the Court of Appeal, in my respectful submission, have done important, pioneering work (as have the judges in the High Court). It now remains to be seen how future benches take some of these principles forward, and build on them.

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

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Conflict in Marsabit: Voter and Politician Locked in a Danse Macabre

The nature of the conflict in Marsabit has changed. Deaths are tallied, and ledgers of the unmourned dead are meticulously kept.

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Conflict in Marsabit: Voter and Politician Locked in a Danse Macabre
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Counting the dead

Ninety-three deaths in the past year, the count has dominated national TV coverage of conflict in Marsabit, contributing to the trend of turning the effect of the conflict and the loss into a body-counting exercise.

A year ago, Saku Member of Parliament (MP) Ali Raso Dido spoke of the number of people killed in his constituency. On his list there were only the Borana dead; he did not include the dead from other communities. To him, as an MP, only Borana lives mattered and were worthy of raising on the floor of parliament.

In a lengthy response, his counterpart, North Horr MP Francis Chachu gave the number of dead in his constituency. He listed only the Gabra dead.

In the last cycle of conflict in Marsabit County, 75 houses were burnt down, and about 850 families were displaced. Governor Mohamud Ali called a press conference at which the list of the dead was the central theme of his statement.

Since the state has no official data on number of people who have died as a result of conflict in Marsabit, all these accounts are true, but they are also subjective and incomplete. Just why the counting is done, where to begin counting, who is to be counted and who does the counting are the concerns of these times.

In between the statistics informing politicians’ petitions to parliament, or forming the subject of a governor’s hasty press statement or the prop of a news story, there is a whole social milieu within which the conflict exists and how it is processed at the political and economic levels of grief.

A macabre dance between voters and politicians

Proximity to countries in conflict—Ethiopia, Somalia, and South Sudan—and the easy availability of Small Arms and Light Weapons have been the central explanation for the conflict in Marsabit County. While valid and, in some instances, correct, this explanation misses the fact of the banality of conflict in the county—a more insidious new lexicon that normalizes killing beyond the traditional boundaries of ethnic conflict is developing.

In the last cycle of conflict in Marsabit County, 75 houses were burnt down, and about 850 families were displaced.

This change in the ethnic conflict dynamic is a function of a perverse, mutually reinforcing loop involving politicians and voters, each egging on the other to visit more death and destruction on the opposite community. The hypercompetitive nature of local elections post-devolution significantly exacerbates this loop.

Thus, taking the “war” to the other community becomes a politician’s campaign pledge rather than the promise of building hospitals and schools or bringing about the desperately needed development. The more vociferous a politician becomes, the more likely he is to be elected.

This perverse incentive makes politicians more incendiary, making both the threat of violence and the violence itself politically rewarding.

Ancestral hatred theory

While it is often cast as anchored in ancestral hatred, there is something new about conflict in Marsabit. And because it is mutating even as we all watch, we sometimes miss it. What makes it unique is its banalisation.

Three aspects make recent conflicts in Marsabit distinct from the old ones.

One, the slow-burning, episodic nature of the conflict and the attendant “peace” meetings have come to be accepted as an immutable fact of life. But the peace-industrial complex has done little to end the conflict; instead, the conflict has mutated into something new, complete with a new lexicon and signals far more incendiary than the old conflict. This rinse-and-repeat cycle has spawned a coterie of peace entrepreneurs activated at a moment’s notice whenever violence breaks out.

This perverse incentive makes politicians more incendiary, making both the threat of violence and the violence itself politically rewarding.

Two, with increased competition over land and resources under devolution, this “new” conflict is increasingly framed in apocalyptic, existential language. As a result, voters prefer politicians who cast themselves as the “defenders” of the community from outsiders’ keen on taking their land and resources. Thus, voters lean towards politicians with a “warlord” mentality rather than those with a good development record.

Three, in this “new” conflict controlling the narrative is central, making the national media and the local-language radio stations the battleground. Where the national media frames the region as a godforsaken Badlands, local-language radio stations offer politicians a safe space from where to speak directly to their people unfiltered. WhatsApp and the ever-mushrooming Facebook groups act as a functional auxiliary for sharing media content. This interface has made the Marsabit conflict far deadlier on and offline.

Conflict as theatre 

Every death in Marsabit is increasingly seen through the prism of cold arithmetic—losing and winning. This strips death of its meaning. Every death is accounted for on a ledger; it is a debt to be repaid with the death of another. Death is performance theatre, acted rather than mourned.

This theatre extends to the burial, measured by the length of the cavalcade of vehicles that accompany the body to the grave, and the promises made by politicians at his funeral or in their interviews in the local and national media. During a recent funeral, the number of vehicles contributed to the drama as cars stretched a kilometre from the centre of town to the cemetery.

Every death is accounted for on a ledger; it is a debt to be repaid with the death of another.

There was such silence in the picture that the silence was in our minds, but we know that the slow pace of the vehicles inching towards the cemetery had no connection to the past murders. In the prevailing mind-set, this image will replace that of the mad man whose throat had been slit at 8 p.m. near the market and who had tried to walk from the back of the police van into the hospital and failed—rising and falling, rising and falling.

Later, as the region’s leaders foam at the mouth on TV, everyone goes home with smaller versions of the same talk. Emotions are gauged through the metrics of tribe, place of murder, murder weapon, the known backstories of the casualties; many went unmoored as collaterals of the drama that people made of the conflict.

Part of the post-death package is “what have our leaders said?” This reaction is baked into the system of conflict, whether the said leaders are maintaining the honour of the tribe. Whether they have promised to even the score or repay the death debts. Their words are shared on and off line as a whispered social contract.

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Kenyans Need an Education That Is Human: A Call to Conscience

Colonial and post-colonial governments have worked to separate education from access to culture and information, and to isolate the school as the only source of learning.

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Kenyans Need an Education That Is Human: A Call to Conscience
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This is a call to Kenyans of conscience to step back and reflect on the lies about education that are circulating in the media, the schooling system and government. Foreign sharks have camped in Kenya to distort our education. Using buzzwords such as “quality” and “global standards”, these sharks seek to destroy the hopes, dreams and creativity of young Africans, not just in Kenya, but in the whole region, and to make a profit while at it. With the help of local professors, bureaucrats and journalists, they spread hatred for education among the population. At the same time, they ironically create a thirst for schooling that makes parents resort to desperate measures to get their children into school, going as far as accepting violence and abuse in schools that causes children to take their own lives.

This insanity must end.

We must accept that education is a life endeavour through which people constantly adapt to their social and natural environment. Education is more than going to school and getting the right paper credentials. Education occurs anywhere where human beings process what they perceive, make decisions about it and act together in solidarity. That is why education, culture and access to information are inseparable.

However, since colonial times, both the colonial and “independence” versions of the Kenya government have worked hard to separate education from culture and access to information. They have done so through crushing all other avenues where Kenyans can create knowledge. We have insufficient public libraries and our museums are underfunded. Arts festivals, where people come together and learn from unique cultural expressions, have been underfunded, and by some accounts, donors have been explicitly told not to fund creativity and culture. In the meantime, artists are insulted, exploited and sometimes silenced through censorship, public ridicule and moralistic condemnations in the name of faith.

All these measures are designed to isolate the school as the only source of learning and creativity, and this is what makes the entry into schools so cutthroat and abusive.

But entering school does not mean the end of the abuse. Once inside the schools, Kenyans find that there is no arts education where children can explore ideas and express themselves. In school, they find teachers who themselves are subject to constant insults and disruptions from the Ministry of Education and the Teachers Service Commission. Under a barrage of threats and transfers, teachers are forced to implement the Competency Based training which is incoherent and has been rejected in other countries. Many of the teachers eventually absorb the rationality of abuse and mete it out on poor children whose crime is to want to learn. This desperation for education has also been weaponized by the corporate world that is offering expensive private education and blackmailing parents to line the pockets of book publishers.

Education is more than going to school and getting the right paper credentials. Education occurs anywhere where human beings process what they perceive, make decisions about it and act together in solidarity.

By the end of primary and secondary school, only a mere 3 per cent of total candidates are able to continue with their education. This situation only worsens inequality in Kenya, where only 2 per cent of the population have a university degree, and where only 8,300 people own as much as the rest of Kenya.

But listening to the government and the corporate sector, you would think that 98 per cent of Kenyans have been to university. The corporate sector reduces education to job training and condemns the school system as inadequate for meeting the needs of the corporations. Yet going by statements from the Kenya Private Sector Alliance (KEPSA) and the government, there is no intention to employ Kenyans who get training. The government hires doctors from Cuba and engineers from China, and then promises the United Kingdom to export our medical workers. KEPSA is on record saying that we need to train workers in TVET so that they can work in other African countries.

It is clear that the Kenya government and the corporate sector do not want Kenyans to go to school and become active citizens in their homeland. Rather, these entities are treating schooling as a conveyor belt to manufacture Kenyans for export abroad as labour and to cushion the theft of public resources through remittances.

The media and the church also join in the war against education by brainwashing Kenyans to accept this dire state of affairs. The media constantly bombards Kenyans with lies about the composition of university students, and with propaganda against “useless degrees”. The church has abandoned prophecy and baptizes every flawed educational policy in exchange for maintaining its colonial dreams of keeping religion in the curriculum to pacify Kenyans in the name of “morality”.

The government is now intending to restrict education further through the Competency-Based Curriculum (CBC) which seeks to limit education through pathways that prevent children from pursuing subjects of their interests, and by imposing quotas on who can pursue education beyond secondary school. At tertiary level, the government is devising an algorithm that will starve the humanities and social sciences of funding. It claims that funds will instead go to medical and engineering sciences, which are in line with Kenya’s development needs.

But recall that foreigners are doing the work of medical professionals and engineers anyway, so “development” here does not mean that Kenyan professionals will work in their home country. They will work abroad where they cannot be active citizens and raise questions about our healthcare and infrastructure.

The proposed defunding of the arts, humanities and social sciences aims to achieve one goal: to reserve thinking and creativity for the 3 per cent of Kenyans who can afford it. This discrimination in funding of university education is about locking the majority and the poor out of spaces where they can be creative and develop ideas. It also seeks to prevent Kenyans from humble backgrounds from questioning policies and priorities that are passed under dubious concepts such as “development needs” that are largely studied in the humanities and social sciences.

It is clear that the Kenya government and the corporate sector do not want Kenyans to go to school and become active citizens in their homeland.

Clearly, there is a war against education and against Kenyans being creative and active citizens in their own country. For the 8,300 Kenyans to maintain their monopoly of resources, they need to distract Kenyans with propaganda against education, they need to limit Kenyans’ access to schooling, and they need to shut down alternative sources of training, information and knowledge. By limiting access to schooling and certificates, the 8,300 can exploit the work of Kenyans who have not been to school, or who have not gone far in school, by arguing that those Kenyans lack the “qualifications” necessary for better pay.

We must also name those who enable this exploitation. The greedy ambitions of the political class are entrenched by people who, themselves, have been through the school system. To adapt Michelle Obama’s famous words, these people walked through the door of opportunity, and are trying to close it behind them, instead of reaching out and giving more Kenyans the same opportunities that helped them to succeed. This tyranny is maintained by a section of teachers in schools, of professors in universities and of bureaucrats in government, who all fear students and citizens who know more than they do, instead of taking joy in the range of Kenyan creativity and knowledge. The professors and bureaucrats, especially, are seduced into this myopia with benchmarking trips abroad, are spoon-fed foreign policies to implement in Kenya. They harvest the legitimate aspirations of Kenya and repackage them in misleading slogans. For instance, they refer to limited opportunities as “nurturing talent”, and baptize the government’s abandonment of its role in providing social services “parental involvement”.

These bureaucrats and academics are helped to pull the wool over our eyes by the media who allow them to give Kenyans obscure soundbites that say nothing about what is happening on the ground. They also make empty calls for a return to a pre-colonial Africa which they will not even let us learn about, because they have blocked the learning of history and are writing policies to de-fund the arts and humanities. We must put these people with huge titles and positions to task about their loyalty to the African people in Kenya. We call on them to repent this betrayal of their own people in the name of “global standards”.

We Kenyans also need an expanded idea of education. We need arts centres where Kenyans can meet and generate new ideas. We need libraries where Kenyans can get information. We need guilds and unions to help professionals and workers take charge of regulation, training and knowledge in their specializations. We need for all work to be recognized independent of certification, so that people can be paid for their work regardless of whether one has been to school or not.

We need recognition of our traditional skills in areas like healing, midwifery, pastoralism, crafts and construction. We need a better social recognition of achievement outside business and politics. It is a pity that our runners who do Kenyans proud, our scientists, thinkers, artists and activists who gain international fame, are hardly recognized in Kenya because they were busy working, rather than stealing public funds to campaign in the next election. Our ideas are harvested by foreign companies while our government bombards us with useless bureaucracy and taxes which ensure that we have no impact here.

We need for all work to be recognized independent of certification, so that people can be paid for their work regardless of whether one has been to school or not.

Most of all, we need an end to the obsession with foreign money as the source of “development”. We are tired of being viewed as merely labour for export, we are tired of foreigners being treated as more important than the Kenyan people. We are tired of tourism which is based on the tropes of the colonial explorer and which treats Africans as a threat to the environment. And the names of those colonial settlers who dominate our national consciousness must be removed from our landmarks.

Development, whatever that means, comes from the brains and muscles of the Kenyan people. And the key to us becoming human beings who proudly contribute to society and humanity is education. Not education in the limited sense of jobs and certificates, but education in the broader sense of dignity, creativity, knowledge and solidarity.

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UN Panel of Experts: Kenya Urged to Back Former CJ Willy Mutunga Candidacy

Willy Mutunga, the former Chief Justice and President of the Supreme Court of Kenya has been nominated by a number of international organisations to be one of the three experts. International human rights activists are calling on the government of Kenya to join with others in Global Africa to support the nomination of Willy Mutunga.

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UN Panel of Experts: Kenya Urged to Back Former CJ Willy Mutunga Candidacy
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On 28 June 2021, the Human Rights Council of the United Nations called on the UN to set up a panel of experts to investigate systemic racism in policing against people of African descent. This call came one year after the police murder of George Floyd in the United States. The UN panel of three experts in law enforcement and human rights will investigate the root causes and effects of systemic racism in policing, including the legacies of slavery and colonialism, and make recommendations for change. Willy Mutunga, the former Chief Justice and President of the Supreme Court of Kenya has been nominated by a number of international organisations to be one of the three experts. International human rights activists are calling on the government of Kenya to join with others in Global Africa to support the nomination of Willy Mutunga.

The government of Kenya is strongly placed to support the nomination of its native son, an internationally respected jurist. Kenya is currently a member of the UN Security Council and an influential member of “A3 plus 1”, the partnership between the three African members of the Security Council and the Caribbean member of the UNSC, St Vincent and the Grenadines. Last week on 7 September, President Uhuru Kenyatta co-chaired the African Union, Caribbean Community summit. This meeting between the AU and the Caribbean states agreed to establish the Africa, Brazil, CARICOM, and Diaspora Commission. This Commission will mature into a politico/economic bloc embracing over 2 billion people of African descent. Kenya, with its experience of reparative justice from the era of the Land and Freedom Army, has joined with the Caribbean to advance the international campaign to end the dehumanization of Africans. African descendants around the world have lauded the 2021 Human Rights Council Report for calling on the international community to “dismantle structures and systems designed and shaped by enslavement, colonialism and successive racially discriminatory policies and systems.”

Background to the nomination of Hon Willy Mutunga

The murder of George Floyd on 25 May 2020 led to worldwide condemnation of police killings and systemic racism in the United States. The African Members of the UN Human Rights Council pushed hard to garner international support to investigate systemic racism in policing in the United States. In the wake of the global outcry, there were a number of high-level investigations into police killings of innocent Blacks. Three distinguished organizations, the National Conference of Black Lawyers, the International Association of Democratic Lawyers and the National Lawyers Guild convened a panel of commissioners from Africa, Asia, Europe, Latin America and the Caribbean to investigate police violence and structural racism in the United States. Virtual public hearings were held in February and March 2021, with testimonies from the families of the victims of some of the most notorious police killings in recent times.

In its report, a panel of leading human rights lawyers from 11 countries found the US in frequent violation of international laws, of committing crimes against humanity by allowing law enforcement officers to kill and torture African Americans with impunity and of “severe deprivation of physical liberty, torture, persecution and other inhumane acts”.

Among its principal findings, the Commission found the US guilty of violating its international human rights treaty obligations, both in terms of laws governing policing and in the practices of law enforcement officers, including traffic stops targeting Black people and race-based stop-and-frisk; tolerating an “alarming national pattern of disproportionate use of deadly force not only by firearms but also by Tasers” against Black people; and operating a “culture of impunity” in which police officers are rarely held accountable while their homicidal actions are dismissed as those of just “a few bad apples”.

After the Commission’s report was published, the convening organizations’ Steering Committee mobilized international public opinion to publicize its findings. Former CJ Willy Mutunga was one of the jurists in Africa who worked hard to publicize the report’s findings and recommendations.

It was in large part on the basis of these findings that the Human Rights Council issued its own report at the end of June. The United Nations decided to set up a panel of experts to investigate systemic racism in policing against people of African descent, adding international weight to demands in the United States for accountability for police killings of African Americans, and reparations for victims. The panel of three experts will have a three-year mandate to investigate the root causes and effects of systemic racism in policing. Many organizations have submitted names for suggested panel members. Legal experts from Global Africa and international jurists have recommended Willy Mutunga to be one of the three panellists. Thus far, the following organizations have endorsed the candidacy of Willy Mutunga:

  1. The African Bar Association, with membership in 37 African Countries.
  2. The United States Human Rights network (USHRN), a National network of U.S. organizations working to strengthen the Human Rights movement in the US.
  3. International Commission of Inquiry on Systemic Racist Police Violence Against People of African Decent in the United States.
  4. Society of Black Lawyers of the United Kingdom
  5. Bandung Conference, a Diaspora Human Rights network based in Nairobi, Kenya.

There are now calls for the government of Kenya to step forward to be more proactive to lobby the Human Rights Council and to write letters to its President, H.E. Nazhat Shameen Khan (hrcpresidency@un.org), endorsing the candidature of Dr Mutunga. His CV is included for those who want to write to the Minister of Foreign Affairs for Kenya to lead the endorsement of Willy Mutunga.

The Steering Committee of the International Commission of Inquiry on Systemic Racist Police Violence in the United States is coordinating the campaign for Dr Willy Mutunga to be appointed by the UNHRC as a member of the International Expert Mechanism to monitor compliance of the UNHRC findings and recommendations.

The Government of Kenya and Human Rights groups are kindly asked to send copies of their endorsements to the Coordinator, International Commission of Inquiry on Systemic Racist Police Violence in the United States, lennoxhinds@aol.com.

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