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The Kenyan Court of Appeal’s BBI Judgment: Thirsting for Sunlight

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At its heart, the BBI Judgment is about power, and the judges in the majority believe that the constitution acts as a barrier against the concentration of power, and as a channel for its dispersal.

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The Kenyan Court of Appeal’s BBI Judgment: Thirsting for Sunlight
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There is a story about how, for the longest time, the poetic perfection of The Iliad confounded scholars. How could Homer both be the first of the epic bards, and the most accomplished? Foundational works are tentative, exploratory, sometimes stumbling, searching for an assurance that they are doomed to never realise. That privilege is reserved for later works, which build upon the foundation and reach the pinnacle.

The mystery was ultimately resolved when it was deduced that Homer was not the first – or even (in all probability) one – person, but part of an entire oral tradition of epic composition (a lesson, perhaps, that whether artist, judge, or lawyer, acts of creation are always collaborative). Yet the point remains: when we consider work that has taken on the burden of a beginning, we should hold it to the standards of a beginning. Not every question will be answered, not every resolution will satisfy, not every path be taken to its logical destination. But without a beginning, there will be nothing to take forward.

I’d like to think of the BBI Judgment in the words of Christopher Okigbo’s poem, Siren Limits: “For he was a shrub among the poplars/ Needing more roots/ More sap to grow to sunlight/ Thirsting for sunlight. . . .” In the years to come, constitutional jurisprudence may put down stronger roots, and more sap may flow that takes it to sunlight, but here is where the beginning is.

In that spirit, in the first section of this article, I raise a couple of questions that future courts may be called upon to answer. These are in addition to some of the issues discussed in the previous posts, which have also been left open by the judgment(s) (constitutional statutes, referendum questions, identifying the exact elements of the basic structure, etc.)

Making the constitution too rigid?

A stand-out feature of both the High Court and the Court of Appeal judgments has been that, for the first time in basic structure history, the doctrine has been held not to constitute a bar on amendments, but to require the replication of the Constitution’s founding conditions. This, it is argued, provides a safeguard against a possible juristocracy, where the courts stand as barriers to the people’s will, thereby leaving a revolution or a coup as the only options.

To this, the counter-argument – mentioned in Judge Sichale’s dissenting opinion – is that the judiciary nonetheless remains a gatekeeper, as it will decide when a proposed amendment violates the basic structure and therefore needs to go through the rigorous four-step “re-founding” procedure. This becomes problematic, because if Article 257 is meant to empower the common person – Wanjiku – to initiate a constitutional amendment process, then placing the constitutional courts as a set of Damocles’ swords that might at any point fall upon that process, cut it short, and demand its replacement by the far more onerous re-founding procedure, can hardly be called empowerment. After all, is it fair to expect Wanjiku to approach the constitutional court every time, to check in advance, whether Article 257 should apply to a proposed amendment, or whether preparations should commence for nationwide civic education, a constituent assembly, and so on?

I suspect that it is for this reason that more than one judge in the majority did try to define the basic structure with a degree of specificity, gesturing – in particular – to the ten thematic areas set out in Article 255(1) of the Constitution. Ultimately, however, the Court of Appeal judgments could not reach a consensus on this point. The upshot of this is that it is likely that the Kenyan courts – more than courts in other jurisdictions – will be faced with litigation that will specifically require them to identify what constitutes the basic structure.

Is it fair to expect Wanjiku to approach the constitutional court every time, to check in advance, whether Article 257 should apply to a proposed amendment?

That said, however, I believe that the concern is somewhat overstated. One thing that comes through all of the Court of Appeal judgments is a clear sense that constitutional amendment is a serious endeavour. The stakes – permanent alteration of the Constitution – are high. In such a circumstance, is it that disproportionate to have the constitutional courts involved at the stage of vetting the amendment, simply on the question of which procedural channel it should proceed into? After all, there are jurisdictions where pre-legislative scrutiny for constitutional compliance – whether by a constitutional office such as that of the Attorney-General, or even by a court – exists.

And one can easily imagine how the Kenyan courts can develop norms to minimise the disruption that this will cause. For example, the point at which one million signatures are collected and verified could become the trigger point for judicial examination of whether the initiators should proceed to the next steps under Article 257, or whether the four-step re-founding process applies. Note that this need not be an automatic trigger: the requirement that someone has to challenge the process can remain, but the courts can develop norms that will expedite such hearings, discourage appeals on the specific question of which procedural channel a particular amendment should go down, and so on. The judiciary’s role, then, would remain a limited one: simply to adjudicate whether the proposed amendments are of such import that they need the deeper public participation envisaged in the four-step re-founding process, or whether Article 257 will do. The task will obviously be a challenging one, but not one that is beyond the remit of what courts normally do.

De-politicising politics, and the perils of vox populi, vox Dei

There is an argument that both through the basic structure doctrine, and through its interpretation of Article 257, the court evinces a distrust of politicians and political processes, and a (consequent) valorisation of litigation and the judicial process; that the effect of its judgment is to make the constitution too rigid, and effectively impossible to amend; and that, if we look at Article 257 closely, it was always meant to be a joint effort between politicians and the people, because the threshold barriers that it places – one million signatures and so on – require the institutional backing of politicians to start with. It is further argued that this is not necessarily a bad thing, as (a) even historically, the 2010 Constitution of Kenya was the product of political compromise, and not the outcome of pure public participation that the High Court’s judgment made it out to be; and (b) there is no warrant to demonise politicians and politics as tainted or compromised, or at least, relatively more tainted and compromised than litigation and adjudication.

To this, there is an added concern: judgments that claim to speak in the name of the People invariably end up flattening a plural and diverse society, with plural and diverse interests, into a single mass with a single desire – which only the court is in a position to interpret and ventriloquize. This, then, turns into the exact top-down imposition of norms and values that the doctrine of public participation is meant to forestall.

While I believe that the Court of Appeal did not make either of the two mistakes indicated above, I do think that the argument is a powerful one, and requires the judiciary to exercise consistent vigilance (primarily upon itself). A reading of the High Court and Court of Appeal judgments, to my mind, makes it clear that the Constitution Amendment Bill of 2020 was executive-driven (indeed, it would be a bold person who would go against the unanimous finding of twelve judges, across two courts, on this).

But it is easy to imagine messier and less clear-cut situations. What happens if, for instance, an amendment proposal emerges from a set of people, and then a political party or a charismatic politician takes it up, uses their platform to amplify it, and ultimately helps to push it over the one million signature mark? A point was made repeatedly that politicians are part of The People; now, while the distinction between the two was particularly clear in the BBI case, what happens when it is not so, and when it becomes much more difficult to definitively say, “this proposed Amendment came from the political elite, and not from the People?” Is the answer judicial deference? But if it is deference, wouldn’t it simply allow powerful politicians to use proxies, as long as they did it more cleverly and subtly than the protagonists of the BBI?

The difficulty, I believe, lies in the fact that when you say that Article 257 is a provision for The People, you run into a host of very difficult challenges about who are the People, who are not the People, when is it that the People are acting, and so on. The intuitive point that the High Court and the Court of Appeal were getting at is a clear and powerful one: Article 257 envisages an active citizenry, one that engages with issues and generates proposals for amendments after internal social debate – and not a passive citizenry, that votes “Yes” or “No” to a binary choice placed before it by a set of powerful politicians. And while I believe that that is the correct reading of Article 257, it places courts between the Scylla of short-circuiting even legitimate politics, and the Charybdis of stripping Article 257 of its unique, public-facing character.

I think that the only possible answer to this is continuing judicial good sense. Given the issues it had to resolve, I think that it is inevitable – as pointed out above – that the BBI Judgment would leave some issues hanging. But for me this is not a weakness of the judgment, or a reason to castigate it: I think that there are certain problems that simply can’t be resolved in advance, and need courts to “make the path by walking.”

The grammar of power

Stripped down to the essentials, constitutions are about power: who holds it, who can exercise it, who can be stopped from wielding it; when, how, and by whom. Constitutions are also full of gaps, of silences unintended or strategic, of ambiguities planned and unplanned. Interpretation, thus, is often about the balance of power: resolving the gaps, silences, and ambiguities in ways that alter power relations, place – or lift – constraints upon the power that institutional actors have, and how they can deploy it. When Robert Cover writes, therefore, that “legal interpretation takes place in a field of pain and death,” we can slightly modify it to say that “constitutional interpretation takes place in a field of power.”

Article 257 envisages an active citizenry, one that engages with issues and generates proposals for amendments after internal social debate.

At its heart, I think that the BBI Judgment is about power. The issues that span a total of 1089 pages are united by one common theme: the judges in the majority believe that the constitution acts as a barrier against the concentration of power, and as a channel for its dispersal. Why require referendum questions to be grouped together by unity of content? Because doing so will constrain the power of institutional actors to force unpalatable choices upon people in all-or-nothing referenda. Why interpret Article 257 to exclude public office holders from being initiators? Because to hold otherwise would divest power vested in the public, and instead, place it in the hands of a political executive claiming to directly “speak for the people”. Why insist on contextual public participation for the Article 257 process? Because without granular participation, even a “people-driven process” will not be free from centres of power that dominate the conversation. Why insist upon fixing the IEBC quorum at five, and for a legislative framework to conduct referenda? Because independent Fourth Branch Institutions play a vital role in checking executive impunity on a day-to-day basis, in a way that courts often cannot. And lastly, why the basic structure, why this form of the basic structure? Because the power to re-constitute the constitution is the most consequential of all powers: institutional actors should not have it, but nor should the courts have the power to stop it. Thus, the articulation of the primary constituent power, and its exercise through – primarily – procedural steps.

And I think that it is here that we find the most important contribution of the High Court and the Court of Appeal judgments to global constitutional jurisprudence. Reams have been written by now about the “Imperial Presidency”, and the slow – but inevitable – shift, across the world, towards concentration of political power rather than its dispersal. Examining the High Court and Court of Appeal judgments through the lens of power, its structures and its forms, reveals a judiciary that is working with constitutional text and context to combat the institutionalisation and centralisation of power, to prevent the constitution from being used as the vehicle of such a project, and – through interpretive method – to try and future-proof it from ever being so used. It is too early to know if the effort will succeed. The sap and the roots are now the responsibility of future judgments, if sunlight is to be reached, and not just thirsted for.

The hydra and the sword: parting thoughts

There are moments in one’s life when you can tell someone, with utter clarity, that “I was there when. . . .” For my part, I will always remember where I was, and what I was doing, when, during oral arguments before the Court of Appeal, I heard Dr Muthomi Thiankolu’s ten-minute summary of Kenyan constitutional history through the allegory of the Hydra of Lerna. It ended thus:

If you drop the sword, My Lords and My Ladies, we have been there before. When the courts drop the sword of the Constitution, we had torture chambers. We had detentions without trial. We had sedition laws. It may sound, My Lord, that I am exaggerating, but the whole thing began in small bits.

I remember it because by the end, I was almost in tears. It took me back to a moment, more than four years ago, when I stood in another court and heard a lawyer channel Justice William O. Douglas to tell the bench: “As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.”

The judges in the majority believe that the constitution acts as a barrier against the concentration of power, and as a channel for its dispersal.

The chronicle of events that followed those words does not make for pleasant reading. But as I heard Dr Thiankolu speak of an era of executive impunity – an impunity enabled by a judiciary (with a few exceptions) that saw itself as an extended arm of the executive – what struck me was not how familiar (detentions without trial!) his examples sounded, but that he spoke of them in the past tense. And on the 20th of August, as judge after judge in the Court of Appeal read out their pronouncement, it seemed that an exclamation point was being added to those arguments: the past really had become a foreign country.

One person’s past is invariably another person’s present. But the present sometimes overwhelms us with its heaviness. It creates an illusion of permanence that forecloses the possibility of imagining a future where this present has become the past. We cannot bootstrap ourselves out of such moments: we need someone to show us the way, or to show us, at least, that a way exists.

And so, perhaps the great – and intangible – gift that the Kenyan courts have given to those stuck in an interminable present, is a simple reminder: it needn’t always be like this.

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

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We Are So Much Better Than the Elites Make Us Out to Be

To resist the efforts of Cambridge Analytica and similar social saboteurs in the media and the academy, we must believe in our capacity to vote on a diversity of issues.

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We Are So Much Better Than the Elites Make Us Out to Be
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Theatre scholar Gĩchingiri Ndĩgĩrĩgĩ writes that in 1991, at the height of the clamour for multi-partyism, the government denied a license for the staging of Drumbeats of Kirinyaga, a play by Oby Obyerodhiambo.

The reason given was that the play portrayed an ethnically diverse and politically cohesive Kenya, which contradicted the president’s argument at the time that Kenya was too ethnically divided for multi-partyism.

While President Moi was claiming to care for Kenyans who are too tribal, his government was ironically also suppressing any public display of Kenyans transcending their tribal identities. The government needed to encourage tribalism among Kenyans in order to give itself something to cure.

​We were shocked by the confirmation by a young man, Christopher Wylie, that Cambridge Analytica played a major role in polarizing Kenyans during the 2017 elections. Some were insulted that foreigners would deliberately diffuse messages that would polarize us ethnically. Others, however, argued that Kenyans are tribalist, with or without Cambridge Analytica. I think the reality is more complicated than that.

Cambridge Analytica’s role in polarising Kenyans is part of the larger efforts of global and local elites to keep convincing Kenyans that we vote on nothing else but tribe. The elites manipulate culture in order to coerce us to believe that tribalism comes naturally to us Africans. And yet, the reality is something closer to what the government censor did in 1991.

The role of politicians in keeping ethnic temperatures high has been repeatedly stated. But there are two other pillars that keep Kenyans convinced that they are naturally and inevitably tribalist: the use of culture and research by envoys, journalists, researchers, and now, by Cambridge Analytica.

For instance, while Kenyans called for electoral justice, the US ambassador kept framing Kenya’s problem as “long-standing issues” that should be addressed through reconciliation between NASA and Jubilee. The ambassador was savvy enough to know that using the word “tribal” would evoke memories of colonial anthropology. But even “long-standing” is just as insidious, because it appeals to the colonial narrative of Africans as stuck in the past.

Similarly, articles in the local and international media often used tribal data to predict a Jubilee win. The research they quoted almost always used tribe as the major factor in elections, yet there are other factors that influence the way Kenyans vote, such as income, gender, urban migration, economic inequality or voter frustration with politicians.

If a basic rule of good research is that it cannot always use the same variable, it means that the researchers are perpetuating tribalism through faulty research. Yet the variables exist. For instance, our media rarely mention economic inequality as a factor influencing election outcomes, and yet one article in Jacobin found a strong correlation between economic inequality and votes for Raila Odinga.

In the New York Review of Books, Helen Epstein queried the sampling methods of predictions of election results, pointing out that some researchers worked backwards from a known result to a sample, rather than the other way round. Some researchers went to Luo regions and predictably projected a high Raila vote, and to Kikuyu populations and predicted a high Uhuru vote, but did not go, for example, to Kakamega, Bungoma, Busia, Kisii Nyanza, Garissa and other regions where Jubilee claimed to have won a majority.

Other times, electoral predictions remain unquestioned because claims are made from people with perceived academic clout. For instance, Mutahi Ngunyi gave prestige to the concept of “tyranny of numbers”. Most media did not question the validity of his concept, even when a poorly circulated video done by AfriCOG showed that the premises of Ngunyi’s argument were rather weak.

If Kenyans were naturally tribalistic, the politicians, intellectuals and envoys would not need to keep reminding us of it. And there is a political interest in insisting on our tribalism: it prevents us from asking questions about social justice or worse, from organizing ourselves along other lines such us age, profession, economic status and gender.

If a basic rule of good research is that it cannot always use the same variable, it means that the researchers are perpetuating tribalism through faulty research.

The nightmare of the foreign and local elite is of Kenyans organizing as the poor, youth, women or workers, because then, the numbers would surely have an impact. And politicians would not get automatic godfather status like they do as tribes. They would have to pass through institutions like associations and unions, where success is not guaranteed. For instance, politicians’ efforts to divide the doctors along tribal lines backfired and instead produced a hash tag #IAmaTribelessDoctor.

It does not matter how many Kenyans Cambridge Analytica influenced. Even one Kenyan is one Kenyan too many. What matters is that it appealed to Kenyans’ worst fears, essentially hoping to whip up hysteria, just so that the president could win the vote. Our dignity was cheaper than Muigai’s desire to win. Six million dollars cheaper.

But the worst part of the tribal propaganda is that it is based on convincing Kenyans to believe so little of themselves. To resist the efforts of Cambridge Analytica and similar social saboteurs in the media and the academy, we must believe in our capacity to vote on a diversity of issues. For as Daisy Amdany put it, “We are so much better than what the elites make us out to be.  It’s time to believe it, receive it, be it and live it!”

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9/11 and the United States-Kenya Relationship

Would US-Kenya relations be significantly different today had the al-Qaeda attacks not taken place?

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9/11 and the United States-Kenya Relationship
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Looking at the sweep of twenty years, a generation, how have the 11 September 2001 al-Qaeda airplane crash attacks on New York and Washington impacted the relationship between the United States and Kenya?

To start to answer that question, we might create a counterfactual and imagine how things might have proceeded without the shock and horror of the (partial) success of al-Qaeda’s terror attacks that day, especially the falling bodies and fiery collapse of the Twin Towers of the World Trade Center. I think the basics of the relationship would likely have been quite similar.

Osama bin Laden’s declared al-Qaeda war against the United States and its allies, including Kenya, was well along by 9-11 but it had not captured a lot of attention from the public in the United States and had little impact on American daily life and politics. For me, working in the defence industry as an attorney for a large aerospace company at their shipbuilding operation in Mississippi, terrorism had been brought home a year earlier when the damaged hull of the USS Cole, which had been bombed by al-Qaeda off Yemen, was brought to us for repair on the Gulf of Mexico on a giant heavy-lift ship. By coincidence, I was in Northern Virginia, at a seminar not far from the Pentagon on the infamous day of 9-11 itself.  We were not so “on-line” in those days, and it was not until a break that we saw on a television set pulled into the hotel lobby that a plane had crashed into the Pentagon and gradually became aware of what was happening.

It was only then that most Americans really got a sense of what Kenyans and Tanzanians had seen and felt during the 1998 embassy bombings.

To understand what did and did not change in the American-Kenyan relationship, we probably need to go back further to Jomo Kenyatta seeking American military assistance from the Ford Administration in the 1970s, through Minister Mwai Kibaki and others, when Kenya faced threats from Uganda’s Idi Amin, and potential hostilities from Somalia’s Siad Barre in the context of a possible disruption of Kenya’s security relationship with Ethiopia following the overthrow of Haile Selassie by the Derg and Britain’s unwillingness to show support.

By 1977, during the Jimmy Carter administration, the US had started provided police training in Kenya. The Norfolk Hotel was bombed by Palestinian terrorists in 1980, in apparent retaliation for Kenya’s cooperation with the Israeli rescue operation at Entebbe in Idi Amin’s Uganda in 1976.

Therefore, Kenya’s recognition of its insecurity in a “rough neighbourhood”, the related exposure to terrorists, and the desire to rely partly on and cooperate with the United States on security matters, was a component of the relationship for years before al-Qaeda co-founder Osama bin Laden moved from Afghanistan to Sudan in early 1991, from where he was reportedly funding jihadist militants and insurgents in many countries. America’s Operation Hope which was providing famine relief in Somalia under President George H.W. Bush in December 1992, ended up with the US embroiled in clan warfare the following year as part of a UN peacekeeping mission, with al-Qaeda alleged to have contributed to the “Battle of Mogadishu” fiasco that influenced America’s decision to withdraw in early 1994.  In the meantime, the first attempt to blow up the World Trade Center had failed in 1993.

It was only then that most Americans really got a sense of what Kenyans and Tanzanians had seen and felt during the 1998 embassy bombings.

Although Sudan evicted Osama bin Laden who established himself in Taliban-ruled Afghanistan in 1996, al-Qaeda continued to operate in East Africa and a few months after bin Laden’s February 1998 fatwa against Americans and their allies—presumably including Kenyans—came the embassy bombings in Nairobi and in Dar es Salaam.

Sceptical about American “nation building”, George W. Bush took office in January 2001 on a platform of “compassionate conservatism” that was perhaps most positively expressed in expansive new aid programmes that shaped the US-Kenyan relationship. Of particular note is PEPFAR, the President’s Emergency Plan For Aids Relief, enacted in 2003, and the President’s Malaria Initiative that began in 2005, together with the Millennium Challenge Corporation. The US became extensively involved in Southern Sudan, with diplomatic and assistance efforts “back-officed” out of Nairobi.

While the 9/11 attacks led immediately to the invasion of Afghanistan and created the climate in which the long-simmering confrontation with Saddam Hussein became a “regime change” invasion in March 2003 two months before the passage of PEPFAR, the basics of the US-Kenya relationship of health and humanitarian assistance and security cooperation might not have been that much different had the attacks on the US not succeeded.

According to Congressional Research Service reports, Kenya has over the years typically received security assistance of some US$40 million dollars annually as compared to about US$800 million in health, humanitarian, and economic assistance.  Reporting has identified cooperation between Kenyan and US intelligence and paramilitary units in hunting terrorism suspects within Kenya itself but Kenya is not known to have participated in US efforts outside its borders.

A major instance of cooperation that might be imagined to have played out differently could be the Ethiopian invasion of Somalia in late 2006 to displace the Union of Islamic Courts (UIC) and restore the Transitional Federal Government in Mogadishu.  While US officials have stated they did not encourage this decision, we did ultimately provide air support and cooperated with Kenya to “seal the border” to fleeing terror suspects. Controversy arose about “renditions”.  It might be that in the absence of the 9-11 attacks and the long and expansive “war footing” that followed, the US would have dissuaded the Ethiopian operation or followed a different policy to address al-Qaeda elements in Somalia with the rise of the UIC.

The basics of the US-Kenya relationship of health and humanitarian assistance and security cooperation might not have been that much different had the attacks on the US not succeeded.

As it is, the AMISOM force under the African Union was formed in early 2007 and radical elements from the UIC coalesced as al-Shaabab and announced an affiliation with al-Qaeda, eventually provoking the incursion by Kenya in the fall of 2011 following kidnappings in the Lamu area. Although the US is said to have explicitly discouraged this action by the Kenya Defence Forces, within several months Kenyan forces were allowed to join AMISOM and thus begin receiving Western-funded reimbursements.

Since 2011, Somalia has made significant gains in many respects but a shifting stalemate of sorts exists where al-Shabaab controls much territory outside major towns and sustains financing, while federal governance and security remain a work-in-progress.

Meanwhile, al-Shabaab elements continue to recruit and carry out insurgency and terror attacks in Kenya. The attack on Nairobi’s Westgate Mall that was splashed across Western media, the Mpeketoni attack, the horrific slaughter targeting Christian students at Garissa University, bus attacks and small bombings and the DusitD2 attack in Westlands, show a very wide range of actors, methods, and targets.

How much of this would really be different if al-Qaeda’s 9/11 attacks on the World Trade Center and the Pentagon had been thwarted by intelligence beforehand, or by some other intervention, such as by the passengers of Flight 93 which was brought down in Pennsylvania before it could reach its intended target in Washington? The United States might well be different, and much that has happened in the world might be different. But, leaving aside the necessary impact of the ensuing Iraq war on the election of Barack Obama, and then Trump, the relationship between Kenya and the United States might well be much the same today.

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Every Worker Is Essential and Must Be Guaranteed Social Protection, No Matter What

The International Domestic Workers Federation and UNI Global Union demand that all workers of the formal and informal economy are guaranteed social protection.

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Every Worker Is Essential and Must Be Guaranteed Social Protection, No Matter What
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The COVID-19 pandemic has caused an unprecedented disruption to the global economy and a massive increase in unemployment — exacerbating the ongoing crises of inequality. Despite massive public investment in mostly wealthy countries, worldwide, too many workers are living in extremely fragile conditions and directly feeling the effects of decades of austerity programs aimed at cutting social protections to the bone — and limiting workers rights.

Right now we are at the crossroads. As the world begins spending trillions to lift us out of economic crisis, unions and organizations representing workers in both the formal and informal economy sectors are forming new alliances to ensure the legacy of the pandemic is one of improved working conditions throughout the world.

To illustrate this point, let’s consider caregivers. Caregiving is one of the most common and rapidly growing professions. The COVID-19 pandemic has shown us repeatedly just how essential caregivers are. Caregiving might also be one of the most diverse yet in demand roles in the entire world. While nurses operate for the most part in the formal economy, often in a hospital or institution, care providers in a domestic setting may actually live with their employers and can be called upon 24 hours a day with few avenues for recourse.

For us, as long-time advocates of workers in the formal and informal economies, the time has come to work together to demand universal social protections like a living minimum wage for all and access to healthcare and paid sick leave. We must fight to change the global rules through mandatory human rights due diligence laws and other steps to enable workers to exercise their rights to bargain collectively.

The recent report from the International Labour Organization (ILO) only underscores the urgency. The ILO found that over half of the global population lacks any form of social protection. This is the case even after the unprecedented expansion of social protections that took place following the global outbreak of COVID-19.

In 2020, just 47% of the world population had effective access to at least one social protection benefit, the ILO found. The remaining 53% — up to 4.1 billion people — had no protection at all.

Take this in contrast with a global study from earlier this year from the ITUC and UNI Global Union that found 98% of the world’s workers are not getting the sick pay, wage replacement and social benefits they need to address the challenges of COVID-19.

Active government policies will make the difference. We cannot fully recover or rebuild a better world if we don’t urgently and effectively protect all people, including the 61% of the global workforce who labor in the informal economy. When these workers aren’t recognized for the work that they do, not only are their basic rights breached, but their access to collective bargaining mechanisms and unionising is withheld.

In South Africa, this year, domestic workers achieved an historic victory that deserves examination. Since 2000, the South African Domestic Service and Allied Workers Union has been campaigning for a suite of laws that would extend protections to domestic workers. Eventually, after many years of campaigning, the laws passed, but one of them, which would provide compensation for work-related injury or illness known as COIDA, still excluded domestic workers. After the tragic death of a domestic worker in the employer’s swimming pool, organizers in Pretoria lodged a complaint. It took five years, but the high court declared the exclusion of domestic workers unconstitutional in 2020.

Domestic workers are now covered under South Africa’s COIDA because domestic workers organized and demanded change against all odds. We raise this example because active government policies are critical to protecting workers and raising standards. There are too many attempts at excluding entire groups of workers and while they are usually unconstitutional, it takes years for workers to win.

A strong recovery for domestic workers, street vendors, agricultural workers, and other informal economy workers will be the linchpin for a strong global economic recovery. At the Essential for Recovery Summit, we’ll join workers from around the world to make an urgent call to national governments and international organizations to address our demands for better income and social protections so we can weather this crisis and also build a better future for ourselves.

To allow the sector to expand without formalizing protections, and union representation, threatens to make harsh and often grim working conditions worse. For Myrtle who found her voice organizing during apartheid in South Africa, the goals have always been clear: essential protections for caregivers, the majority of whom are women and often immigrants or racial and ethnic minorities. And as Christy has said: “To put health and safety first — and put the virus to rest — we will need more collective bargaining and unions in the care sector.”

Caregivers and their communities have been particularly impacted, both economically and health-wise by the virus, making the need to uplift their working conditions and wages even more urgent. If we do not address these fundamental inequities, the lasting impacts of the pandemic will be a system worse than what we started with, which already was not supporting and protecting workers. Our key global demand is for all workers of the formal and informal economy to be guaranteed social protection.

This article was first published by Progressive international.

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