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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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Twitter: Let It Burn!

Whether or not Twitter survives should be irrelevant to those committed to building a democratic public sphere.

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Twitter: Let It Burn!
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Elon Musk finally bought Twitter. Although everyone expected the move to quickly prove foolhardy, the speed of the implosion has been impressive. The latest gaffe is a failed attempt to monetize verification by requiring paid subscriptions for them, which has led to all manner of comical impersonations (one macabre highlight was a “verified” George W. Bush account tweeting “I miss killing Iraqis. “Tony Blair” responded with “Same tbh”). Some are watching with shock and horror and wondering if Twitter can be saved. But, when sulfur and fire rains, it is best not to look back.

Africa Is a Country managing editor, Boima Tucker, put it best some years ago: “Contrary to the utopian dreams of the early internet, the idea of a more democratic communications space has given way to a system of capitalist exploitation.” The thing to reckon with is the extent to which we have exaggerated the emancipatory potential of networked communication and social media, partly owing to our own psychic overinvestments in it. Which is not to deny that it has never shown democratic and egalitarian potential, but that’s never been what Twitter is forThere can be no right platform in the wrong world.

What was Twitter for then? In the New York Review of Books, Ben Tarnoff describes it as a “network of influence.” In a world characterized by the economization of everything, social media is the place to commodify the self, to transform one’s unique traits and personality into a product for public display. The main imperative online is to “stay on brand,” to cultivate an appealing enough persona in the endless “production of new genres of being human.”

The key contradiction of social media use, of course, is that even though these platforms appear to us as complete products that we participate in and consume, we are the ones responsible for ensuring their possibility in the first place. As the media scholar Christian Fuchs notes, “Digital work is the organization of human experiences with the help of the human brain, digital media and speech in such a way that new products are created. These products can be online information, meanings, social relations, artifacts or social systems.” Thus, it is us who create the value of these platforms.

In a better world, these digital communications platforms would be democratically owned and operated. But one also wonders if in a better world they would be as necessary. Perhaps, when we are less socially disaffected, living in societies with social provision, an abundance of recreational public goods and less exploitative, dignifying work, then we would all have less reason to be online. For now, the question is: in a time when this ideal is nowhere close to being within view, how best can we use platforms like Twitter as tools to get us to that world?

The possible answers here are murky. Twitter seems like a critical piece of infrastructure for modern political life. Musk is not alone in thinking of it as a marketplace of ideas, as something like a digital town square. Yet, and especially in Africa, Twitter is not as popular a platform, and even on it, a minority of Twiteratti exert an outsized influence in terms of setting the discursive agenda. But setting aside the question of who is excluded from the digitalized public sphere of which Twitter is a cornerstone, the important question is whether the quality of political debate that takes place is healthy or desirable at all. Granted, it can be fun and cathartic, but at the best of times, amounts to hyper-politics. In Anton Jager’s explanation, this:

can only occur at a discursive level or within the prism of mediatic politics: every major event is scrutinized for its ideological character, this produces controversies which play out among increasingly clearly delineated camps on social media platforms and are then rebounded through each side’s preferred media outlets. Through this process much is politicized, but little is achieved.

We would lack critical self-awareness if we did not admit that Africa Is A Country is a venue whose existence greatly benefits from an online presence—so it goes for every media outlet. Tarnoff points out that “… if Twitter is not all that populous in absolute terms, it does exert considerable power over popular and elite discourses.” To lack an online presence is to reconcile oneself to irrelevance. Although, the news cycle itself is a disorienting vortex of one topic du jour to the next. It makes difficult the kind of long, slow, and sustained discourse-over-time that is the lifeblood of politics, and instead reduces everything into fleeting soundbites.

Nowhere is the modern phenomenon of what Polish sociologist Zygmunt Bauman called “pointillist time” more apparent than on Twitter. For Bauman, pointillist time is the experience of temporality as a series of eternal instants, and the present moment’s connection to the past and future “turns into gaps—with no bridges, and hopefully unbridgeable.” The consequence of this, is that “there is no room for the idea of ‘progress.’” Living through a mode where everything seems to be happening all at once, is both to experience time as what Walter Benjamin called “a “time of possibilities, a random time, open at any moment to the unforeseeable irruption of the new,” but curiously, at the same time, for everything to feel inert, and for nothing to seem genuinely possible.

For a while, notions of historical progress have been passé on the left, associated with Eurocentric theories of modernity. Now, more than ever, the idea is worth reclaiming. The Right today is no longer straightforwardly conservative, but nihilistic and anti-social, thriving on sowing deeper communal mistrust and paranoia. These are pathologies that flourish on Twitter. The alternative to media-fuelled hyper-politics and anti-politics is not real politics per some ideal type. Politics, in the first instance, is not defined by content, but by form. The reason our politics are empty and shallow is not because today’s political subject lacks virtues possessed by the subjects of yore. It’s because today’s political subject is barely one in the first place, lacking rootedness in those institutions that would have ordinarily shaped an individual’s clear sense of values and commitments. The alternative to digitized human association, as noted by many, is mass politics: only when the majority of citizens are meaningfully mobilized through civic and political organizations can we create a vibrant and substantive public sphere.

AIAC editor Sean Jacobs observed in his book, Media In Post-apartheid South Africa: “the larger context for the growing role of media in political processes is the decline of mass political parties and social movements.” Whether Twitter dies or not, and if it does, whether we should mourn it or not, should be beside the point for those committed to building a world of three-dimensional solidarity and justice.

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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COP 27: Climate Negotiations Repeatedly Flounder

The distribution of global pandemic deaths ignored existing country vulnerability assessments and dealt some of the heaviest blows to the best prepared countries in the world

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COP 27: Climate Negotiations Repeatedly Flounder
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As COP 27 in Egypt nears its end, I find it difficult, almost impossible, to talk to my children about climate change. The shame of our monumental failings as a global community to address the greatest crisis our planet has consciously faced weighs too heavy. The stakes have never been higher, the moral quivering of political leaders has never been more distressing.

“All animals are equal but some animals are more equal than others,” goes the famous commandment from George Orwell’s political allegory Animal Farm. It applies with particular acuity to international negotiations, where each country has a seat, but seats hold very different weights. The outcome of the Sharm-El-Sheik conference will in large part depend on what Western governments are willing to commit to and follow up on. Rich European and other Western countries are historically responsible for the bulk of carbon emissions. The moral case for them being the first-movers and the biggest movers on cutting emissions is crystal clear, and genuine commitments on their part may hold the key to opening up the floodgate of policy innovation towards decarbonization in other countries.

In this context, viewed from the Global South, recent events in the country that still held the COP presidency until it was handed over to Egypt appear as signs of the madness that grips societies before a fall. In her short time as head of government in the UK, Liz Truss spoke as if she lived on another planet that did not show signs of collapsing under the battering of models of economic growth birthed under the British Empire, gleefully pronouncing that her three priorities for Britain were “growth, growth and growth.” Her successor, Rishi Sunak, announced that he would not attend the COP 27 climate summit because he had to focus on the UK economy. The silver lining is that Truss did not last long and Sunak was shamed into reversing his decision. In a scathing rebuke, the Spanish environment minister called the shenanigans of British political leaders “absurd” and pointed out that elections in Brazil and Australia show that voters are starting to punish leaders who ignore climate change.

I see another silver lining. Last week, the World Meteorological Organization (WMO) announced that Europe was warming twice as fast as other parts of the world. A similar report was not issued for North America, but other studies indicate faster than average temperature increases across the continent’s northeastern coast, and its west coast was home to one of the most striking heat waves last year, with a memorable summer temperature peak of 49.6°C recorded in British Columbia, Canada.

Professor Petteri Taalas, the WMO secretary-general, emphasized that the findings highlighted that “even well-prepared societies are not safe from impacts of extreme weather events.” In other words, the report should make Europeans think it could happen to us, with “it” being devastating floods on the scale of what Pakistan and Bangladesh recently experienced, or the hunger-inducing droughts afflicting Madagascar and the Horn of Africa. While some may find it dismal that human beings remain relatively unmoved by the plight of other human beings considered too distant or too different, this is a part of human nature to reckon with. And reckoning with it can turn a sentiment of shared vulnerability into an opportunity for the planet.

Climate negotiations have repeatedly floundered on the unwillingness of rich countries to pay developing countries loss and damages to fund their transitions to greener energies and build crucially needed climate adaptability to limit deaths. Underlying such a position is a centuries-old smug belief that Europe and North America will never need to depend on solidarity from other parts of the world. The WMO report calls into question such hubris, as did the Covid 19 pandemic before that.

The distribution of global pandemic deaths ignored existing country vulnerability assessments and dealt some of the heaviest blows to the best prepared countries in the world. Europe and North America, where barely 15% of the world population resides, accounted for more than half of COVID deaths. Turning the normal direction of disaster statistics upside down, high- and upper-middle-income countries accounted for four out of five Covid deaths globally. While some scientists still pose questions over the real death toll in low-income countries, I was grateful to not live in the West during the pandemic. In Burkina Faso, Kenya and Senegal where I spent most of my pandemic months, I often encountered “COVID refugees,” young Europeans who had temporarily relocated to work remotely from Africa to escape pandemic despair at home.

We are at a point in our failures to fight climate change where fiction writers and other experts of human nature are often more useful than scientists in indicating what our priorities should be. Many fiction writers have turned their focus on what will be necessary for humans to remain humane as societies crumble. Before we get to that stage, let us hope that political leaders and delegates keep remembering that climate disaster could very concretely befall them personally at any time. Let us hope that the sense of equal—or more cynically, unpredictable—vulnerability instills a sense of global solidarity and a platform to negotiate in true good faith. Let us hope that we can start talking to our children again about what we adults are doing to avert the disaster that looms over their futures.

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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The Specter of Foreign Forces in Haiti

The so-called ‘Haitian crisis’ is primarily about outsiders’ attempts force Haitians to live under an imposed order and the latter’s resistance to that order.

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What actually happened on the nights of October 6th and 7th, 2022, remains unclear. What reverberated was the rather loud rumor of the resignation of Haiti’s acting prime minister  Ariel Henry. He was a member of President Jovenel Moïse’s pro-US Pati Ayisien Tèt Kale (PHTK) party. (Moïse was assassinated in July 2021.) Had Henry truly resigned? Or was it just a well-propagated rumor? Could it have perhaps been both at the same time: that Henry might have indeed resigned but had been coerced to stay, thus making the news of his resignation spread like gossip that the governmental communication machine had fabricated for public consumption?

Nevertheless, we witnessed the following the next day: in Henry’s address to the nation, he first requested the intervention of foreign military forces in Haiti. He then made a formal request to the United Nations. This call was picked up by international organizations, particularly the Secretary General of the United Nations, António Guterres. In the media coverage of the events, no relationship was established between the (rumored) resignation of the de facto Prime Minister and his request for military intervention. Was it a way to keep our minds occupied while waiting on a response from the international community? Or was the military intervention a promise made by the international community to Henry for the withdrawal of his letter of resignation?

Media coverage has seemingly obscured what happened on October 6th and 7th by choosing to focus solely on the request for military intervention, obscuring a chain of events in the process. Was the same request addressed to the UN and the US administration? Or were these two distinct approaches: one within a multilateral framework and the other within a bilateral framework? Supposing it was the latter, what does this tell us about the Haitian government’s domestic policy, about US foreign policy toward (or against) Haiti, or even about geopolitics (as part of a white-hot world order)—especially in light of US Assistant Secretary of State Brian Nichols’ visit to Haiti, his ensuing meetings, and the presence of US Coast Guard ships in Haitian waters?

At least one thing’s for sure. Since the request for formal intervention and the presence of the US in the form of its warships and its emissary, the question of military intervention has been swiftly framed as a discourse on the supposed “consensus between Haitians.” In reality, it refers to the convergence of interests between the representatives of the de facto Haitian government; the representatives of the Montana Accord (agreed on between civic and political groups in the wake of Moise’s assassination); and the president, Fritz Jean, and prime minister, Steven Benoit, agreed on as part of that accord. The message is clear: If you do not want a military intervention, side with Ariel Henry, who initiated the request himself. Any posture of self-determination must undergo review by Ariel Henry and his crew.

In these circumstances, there can be no self-determination. It is as though those truly responsible for the military intervention (which was already underway) aren’t those who asked for it, but rather those who were unable to thwart it by finding an agreement with the former group. In this sense, the “nationalist” label (the current catchall term which, among other things, is being made to include any praxis refuting the colonial apparatus) refers to doing everything possible to avoid military intervention—and that means doing exactly what the representatives of the “Colonial Capitalist Internationale” want.

American presence in Haiti—in the form of warships and a high-ranking emissary—takes after historical colonial endeavors such as the Napoleonic expedition for the reestablishment of slavery (1802) and King Charles X’s fleet, sent to demand ransom for Haiti’s independence (1825). Yet, in this case, the point is not to put pressure on those who hold the keys to institutions, but rather to avoid losing control in a context where those in government are not only misguided, but also display the greatest shortcomings in managing the lives of the population for the better. The US’s current presence thus more closely echoes the language of the English warship HMS Bulldog, sent to shell the city of Cap Haitien to support President Geffrard against the anti-government insurrection of Salnave.

The Henry government uses the same grammar as its tutelar powers to discuss the current situation. Much has been made of “efforts deployed by the United States and Canada”: they have consisted in flying police equipment into Haiti on Canadian and US military cargo aircraft. Henry and the Haitian National Police offered warm, public thanks for material paid for with Haitian funds some time ago; indeed, these deliveries have come very late, and only thanks to pressure from Haitian civil society actors. More problematic still, the presence of foreign military planes at the Toussaint Louverture Airport in Port-au-Prince has served both as evidence of an ongoing military intervention and as a subterfuge to obtain such an intervention.

This request for intervention, while it seeks to obfuscate this fact, nevertheless exposes the political illegitimacy of the Henry government—made up of members of Henry’s PHTK and former members of the opposition. Its illegitimacy doesn’t rest on the usual discussion (or lack thereof) and confrontation between the governors and the governed, nor on the classic power play between the political opposition and the authorities in place; rather, it is the result of the absolute rejection on the part of Haitians of an order controlled and engineered by the PHTK machine in Haiti for over 10 years with one purpose in mind: defending the neoliberal interests and projects of the Colonial Capitalist Internationale. The request for intervention reveals the fact that the rejection of the PHTK machine is but one part of a broader rejection of the neoliberal colonial order as it has manifested itself in various anti-popular economic projects, which themselves were made possible by many attempts at reconfiguring Haiti socially and constitutionally: consider, to name but a few, the financial project of privatization of the island of Gonâve, the referendum to replace the 1987 Constitution, and others.

For the first time since the US military intervention of 1915 (the centenary of which was silenced by the PHTK machine), we are witnessing a direct confrontation between the Colonial Capitalist Internationale and the Haitian people, as local political go-betweens aren’t in a position to mediate and local armed forces (whether the military, the militias, or the armed gangs) aren’t able to fully and totally repress unrest. In this colonial scenario—drafted in the past five years, maintained and fueled by the geopolitics of “natural disasters,” epidemics, pandemics, and the presence of gangs (simultaneously functioning as the armed extensions of political parties and materializing “disorder”)—the only possible solution to chaos is military intervention by foreign forces.

Yet one cannot pretend that such an intervention will help the Haitian people, and no agreement crafted in the language of the colonial system can stifle popular demands and aspirations which, in the past twelve years, have built what Haitian academic and activist Camille Chalmers calls a real “anti-imperialist conscience.”

What of late has breathlessly been labeled the “Haitian crisis” must instead be identified as the highest point of the contradiction which has brewed throughout the PHTK regime: between the International Colonial Capitalists’ will to force us to live under an imposed order and our resistance to that order.

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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