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The Kenyan Supreme Court’s BBI Judgment – Part I: On Constitutional Amendments and the Basic Structure

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This is the first of three articles in which Gautam Bhatia analyses the judgments of the High Court, the Court of Appeal and the Supreme Court following the constitutional challenge to the BBI Bill.

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The Kenyan Supreme Court’s BBI Judgment – Part I: On Constitutional Amendments and the Basic Structure
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On 5th April 2022, a seven-judge bench of the Kenyan Supreme Court delivered judgment in The Hon. Attorney General and Ors v David Ndii and Ors [“the BBI Appeal”]. The judgment marked the judicial culmination of the constitutional challenge to the BBI Bill, which had proposed seventy-four amendments to the 2010 Constitution of Kenya. Recall that the case came up in appeal from the judgments of – first – the High Court of Kenya, and then the Kenyan Court of Appeal, both of which had found the Bill unconstitutional for a variety of reasons. The Supreme Court, thus, was the third Court to hear and decide the issue; and over a period of one year, as many as nineteen judges heard and decided this case. The Supreme Court framed seven issues for judgment, which can be found in Martha Koome CJ’s lead judgment and the seven judges wrote individual opinions.

In the course of three articles, I propose to analyse the judgments in the following manner. In this first article, I will consider the issue of the basic structure. In the second article, I will consider the issue of the popular initiative to amend the Kenyan Constitution under Article 257, and some of the remaining points in the judgment(s). In the final article, I will examine some of the potential implications of the judgment(s) going forward (for example, on the issue of whether referendum questions for constitutional amendment must be distinct and separate). It is safe to say that, as with the judgments of the two other superior courts, the range and novelty of the issues before the Court mean that its verdict will be studied across the world for a long time to come.

On the Basic Structure: An Introduction

Recall that the High Court and the Court of Appeal had both held that the basic structure doctrine was applicable in Kenya. In addition, both Courts had also held that in concrete terms, this meant that any alteration to the basic structure of the Kenyan Constitution could take place only through an exercise of the People’s primary constituent power, which existed outside of the Constitution. The primary constituent power was essentially the power to make or remake a Constitution, and could therefore only be done under the framework within which the 2010 Constitution had originally been drafted. This – according to both Courts – required a four-step sequential process: civic education, public participation, a Constituent Assembly, and a referendum. The correctness of these findings was at issue before the Supreme Court.

The formal disposition of the Court indicates that on this point, the judgments of the High Court and Court of Appeal were set aside by a 6-1 majority (Ibrahim J the sole dissent); that is, the Supreme Court rejected the applicability of the basic structure doctrine and of the four-step sequential process in Kenya, by a 6-1 majority. I believe, however, that a close reading of the seven opinions reveals a somewhat more complex picture, which I will now attempt to demonstrate.

Hyper-Amendments and Tiered Constitutional Amendment Processes

In addressing the question of the basic structure, several judgments of the Supreme Court begin at a common starting point: what was the specific historical mischief that the Kenyan Constitution’s amendment procedures (set out under Chapter XVI) were attempting to address? The answer: a culture of “hyper-amendments” to Kenya’s Independence Constitution. In the years after Independence, the old Constitution was often seen as an impediment by the Presidency, and as a result, a series of far-reaching amendments were passed that more or less entirely devalued its status as a founding charter (and invariably concentrated power in the office of the Presidency, at the cost of other State organs and the People (Ouko J, paragraph 1918, quoting Ghai/McAuslan). Upon Kenya’s return to multi-party democracy in the 1990s, and the eventual constitutional reform process, this culture of hyper-amendments was prominently in the minds of the People and of the drafters (see Koome CJ, paragraph 189 – 191; Mwilu DCJ, paragraph 521; Lenaola J, paragraphs 1415 – 1417; Oukuo J, paragraph 1802).

In the years after Independence, the old Constitution was often seen as an impediment by the Presidency.

Up to this point, the opinions of the Supreme Court are in agreement with those of the High Court and the Court of Appeal. Drawing upon the historical record, the Supreme Court opinions then go on to argue that the Kenyan People therefore devised a solution to the problem of hyper-amendments, and constitutionalised it; in other words, the hyper-amendments were to be addressed by a solution internal to the 2010 Kenyan Constitution. This solution is to be found in Chapter XVI of the Constitution, and – in particular – in the tiered amendment process that it sets up. Article 255(1) of the Constitution “entrenches” certain provisions of the document. For these “entrenched” provisions, the amendment procedure is far more onerous than for un-entrenched provisions, requiring a referendum with certain conditions (Article 255(2)), in addition to (or complementing) the Parliamentary amendment route (under Article 256) or the popular initiative route (in Article 257). This tiered amendment process, according to the judges, thus creates a balance between constitutional flexibility and constitutional rigidity, and also “tames” the mischief of hyper-amendments (see Koome CJ, paragraphs 192 – 197; Ndungu J, paragraphs 1161 – 1162; Lenaola J, paragraph 1418; Ouko J, paragraph 1803).

Two conclusions follow from this, according to the Supreme Court. The first is that this history – and structure – of the 2010 Kenyan Constitution therefore distinguishes it from jurisdictions such as India (where the basic structure doctrine first gained judicial acceptance). In India, where Parliament possesses the plenary power to amend the Constitution, the basic structure doctrine arises as a judicial response in order to protect the Constitution from parliamentary abuse. However, what in India requires the basic structure doctrine, is already provided for in Kenya through the tiered amendment process; in other words, the tiered amendment process does the job that the basic structure doctrine is supposed to do (Koome CJ, paragraphs 217; Mwilu J, 401-402; Lenaola J, paragraphs 1439 – 1442, 1451 – 1453; Ouko J, paragraphs 1763 – 1781, 1811). And secondly, the tiered amendment process – and its history – demonstrates that the People – in their capacity as framers of the Constitution – intended to make the amendment process gapless.

The three pathways provided for under Articles 255 – 257 are exhaustive, and for this reason, the High Court and the Court of Appeal were incorrect to introduce a “judicially-created fourth pathway” to amendment (Koome CJ, paragraph 200). Koome CJ also frames this another way, noting that the High Court and the Courts of Appeal failed to demonstrate what the lacuna was in Chapter XVI that necessitated the judicial creation of the four-step process (Koome CJ, paragraphs 200; Mwilu J, 406).

This snapshot, I believe, is an accurate summary of the reasoning of a majority of the judges in this case. To my mind, however, it also raises two interlinked issues, which – when scrutinised closely – somewhat complicate the final holding of the Court.

Amendment, Repeal, and the Basic Structure

It is, of course, entirely correct to say that the plenary power of parliament to amend the Constitution (as in India) is significantly distinct from the tiered amendment process under Articles 255 – 257; and, further, that this distinction is relevant when considering the question of the basic structure. However, it is equally important not to overstate the sequitur: it does follow from this – as I have argued previously – that the version of the basic structure doctrine as developed in India (i.e., a judicial veto over amendments) cannot be transplanted into the Kenyan context. However, this was not what the High Court and Court of Appeal did. Precisely because of the tiered structure of amendments under the Kenyan Constitution, the High Court and the Court of Appeal articulated a much more reduced role for judicial review: not a substantive veto over amendments (thus making every provision potentially amendable), but a procedural role to ensure that alterations to the basic structure could be done only through the primary constituent power.

Secondly – and connectedly – this flows from a conceptual point that is left unaddressed by the summary of the Supreme Court’s argument that I have provided above: the distinction between amendment and repeal (express or implied). The tiered amendment process, the onerous requirements under Article 257 to prevent hyper-amendments, and the balance between flexibility and rigidity ensure that as a practical matter, in most circumstances, the basic structure doctrine will not need to be invoked, because the Constitution’s internal mechanisms are far more effective for dealing with potential constitutional destruction (as opposed to, say, the Indian Constitution). The fact that the basic structure doctrine will almost never need to be imposed does not, however, address the point that it exists because of the conceptual distinction between amendment and repeal, and the fact that the Constitution – as conceded by Ouko J – “does not provide for its own replacement” (paragraph 1847).

Precisely because of the tiered structure of amendments under the Kenyan Constitution, the High Court and the Court of Appeal articulated a much more reduced role for judicial review.

Now, how do the judges of the Supreme Court deal with this point? Let us first consider the judgments of Ibrahim J (formally in dissent) and Dr Smokin Wanjala J (formally in the majority). Ibrahim J’s judgment is straightforward: he agrees with the High Court and the Court of Appeal on the distinction between amend and repeal, the primary constituent power, and the four-step sequential process (see, in particular, paragraphs 724 – 725). Let us now come to Smokin Wanjala J, because this is where things start to get interesting. Wanjala J objects to the abstract nature of the enquiry that has been framed before – and addressed by – the superior courts below (paragraph 1000). He notes:

Speaking for myself from where I sit as a Judge, and deprived of the romanticism of academic theorizing, it is my view that what has been articulated as “the basic structure doctrine”, is no doctrine, but a  notion, a reasoning, a school of thought, or at best, a heuristic device, to which a court of law may turn, within the framework of Article 259(1) of the Constitution, in determining whether, a proposed constitutional amendment, has the potential to destabilize, distort, or even destroy the constitutional equilibrium. (emphasis supplied)

But when you think about it, this is – essentially – the basic structure “doctrine” (or the “basic structure heuristic device” if you want to call it that), without being explicitly named as such. It is an interpretive method whose purpose is to prevent amendments that “destabilise, distort, or destroy the constitutional equilibrium.” Importantly, both here – and in his disposition – Wanjala J explicitly considers Article 259(1), which requires the Constitution to be interpreted in a manner that promotes its values and principles – as a substantive limitation upon constitutional amendments, in addition to the requirements of Chapter XVI. This is particularly clear from paragraph 1026:

In this regard, I am in agreement with the observations by Okwengu and Gatembu, JJ.A to the effect that a proposed amendment must pass both the procedural and substantive test. Where I part ways with my two colleagues is at the point at which they base their substantive test not on the constitutional equilibrium in Article 259, but on a basic structure (Gatembu, J.A–Article 255(1) and Okwengu, J.A–the Preamble). By the same token, I do not agree with the submission by the Attorney General to the effect that any and every proposed constitutional amendment would be valid as long as it goes through the procedural requirements stipulated in Articles 255, 256 and 257 of the Constitution. Courts of law cannot shut their eyes to a proposed constitutional amendment, if its content has the potential of subverting the Constitution. (emphasis supplied)

Now, with great respect, one may choose not to call something “the basic structure doctrine”, but the statement that a Court of law can subject constitutional amendments to judicial review on the question of whether its “content has the potential of subverting the Constitution”, one is doing what is generally understood to be basic structure review. It might be the case that its long association with the specific form taken in India has turned the basic structure doctrine into a bit of a poisoned chalice. In that case, there should of course be no problem in dropping the term, and simply stating that “constitutional amendments that subvert the Constitution are subject to judicial review.” And in his disposition at paragraph 1122, Wanjala J agrees that while the four-step sequential process will not apply to constitutional amendments, it would nonetheless apply to “seismic constitutional moments” when the People are exercising their primary constituent power.

It is an interpretive method whose purpose is to prevent amendments that “destabilise, distort, or destroy the constitutional equilibrium.”

We therefore already have a more complicated situation than what the final disposition of the Court suggests. That disposition suggests that a 6-1 majority rejected the basic structure doctrine. That is true, because Wanjala J does not believe that the basic structure doctrine is a “doctrine”. But we already have two judges who accept the distinction between constitutional amendments and constitutional repeal (or subversion), and accept that in the latter case, the primary constituent power (with its four-step process) will apply.

I now want to consider the opinions of Lenaola J and Ouko J. To their credit, both judges recognise – and address – the issue of constitutional amendment versus constitutional repeal. In paragraph 1464, Lenaola J states:

My point of departure with my learned colleagues is that the process presently in dispute was squarely anchored on Article 257 as read with Articles 255 and 256. I shall return to the question whether the Amendment Bill was in fact a complete overhaul of the present constitutional order or whether it was an amendment as envisaged by these Articles (emphasis supplied). Suffice it to say that, should the Kenyan people, in their sovereign will choose to do away with the Constitution 2010 and create another, then the sequential steps above are mandatory and our constitutional history will be the reference point.

Thus, in paragraph 1464, Lenaola J explicitly recognises the distinction between “a complete overhaul” and “amendment”, and also recognises that the 255 – 257 procedure only deals with the latter category. Indeed, his primary point is that the BBI Bill was not, as a matter of fact, a “complete overhaul”: in paragraph 1472, he asks, “why would dismemberment take centre stage when the issue before the courts below was amendment?” And most definitively, in paragraph 1473, he quotes Richard Albert’s distinction between “amendment” and “dismemberment”, with approval (paragraphs 1474 – 1475). Indeed, in the paragraph he quotes, Albert specifically notes that “a dismemberment is incompatible with the existing framework of the Constitution because it seeks to achieve a conflicting purpose” – lines very similar to Wanjala J’s articulation of constitutional “subversion”.

It might be the case that its long association with the specific form taken in India has turned the basic structure doctrine into a bit of a poisoned chalice.

There is, admittedly, something of an internal tension in Lenaola J’s opinion here: he appears, for example, to suggest later on that dismemberment necessarily requires formally enacting a new Constitution (see paragraph 1485). It is crucial to note, however, that this need not be the case: a Constitution’s structure and identity (the language used by Richard Albert, which Lenaola J cites with approval) can be “overhauled” by something as technically innocuous as changing a single sentence – or even a single word – in a single constitutional provision. For example, an amendment changing a polity from a multi-party democracy to a single-party State can be accomplished through a single sentence, but it is undoubtedly a constitutional dismemberment. Another historical example is the Indian Supreme Court judgment in Minerva Mills, where the Constitutional amendment at issue had essentially made the Indian Constitution’s bill of rights non-justiciable, as long as the government stated that it was carrying out a social policy goal. This had been accomplished by amending a part of a sentence in a sub-clause of one provision of the Indian Constitution.

A very similar tension is present in Ouko J’s opinion. In paragraph 1838, he notes:

Therefore, it is true to say that it is the prerogative of the people to change their system of government, but only by the people’s exercise of their constituent power and not through the amendment procedure. And that is the difference between primary and secondary constituent powers, the former is the power to build a new structure by the people themselves and the latter, the power to amend an existing constitution. Today, under Chapter Sixteen, this power is exercised by the people and their elected representatives.

Once again, we see the distinction between “amendment” and – in this case – “building a new structure” or “changing the system of government.” This comes to a head in paragraph 1846, where she notes:

It ought to be apparent from the foregoing that, I must come to the conclusion that a constituent assembly is an organ for constitution-making. An amendment of the Constitution under Chapter Sixteen does not recognize constituent assembly as one of the organs for the process. This Constitution, like the former Constitution does not contemplate its replacement.

And in paragraph 1849:

Therefore, the question to be determined here is whether the proposed amendments would lead to such egregious outcome. That they had the effect of repudiating essential elements of the Constitution—concerning its structure, identity, or core fundamental rights—and replacing them with the opposite features; a momentous constitutional change.

Once again, with respect, one may choose not to call this “basic structure review”, but what is happening here seems awfully close to “basic structure review” when courts or scholars do call it that. As with Lenaola J, Ouko J’s primary discomfort appears to be with the Courts below having labelled the BBI Bill as akin to constitutional dismemberment. In paragraph 1858, he labels this as “overkill”. The point, however, is that this admits the principle: if indeed any kind of formal “amendment” was possible under Articles 255 – 257, then the question of substantively assessing the amendments themselves wouldn’t even arise. Indeed, it doesn’t arise in Ndungu J’s opinion, which is very clear on the point that there is no constitutional alteration that is outside the scope of Chapter XVI.

An amendment changing a polity from a multi-party democracy to a single-party State can be accomplished through a single sentence, but it is undoubtedly a constitutional dismemberment.

Thus, we now have an even more complicated picture. Two judges out of seven (Ibrahim and Wanjala JJ) accept, in substance, the proposition that the four-step process applies to radical constitutional alteration that cannot properly be called an amendment. Two other judges (Lenaola and Ouko JJ) accept the principled distinction between constitutional “dismemberment” and “amendment”; Lenaola J appears to suggest that in the former case, you would need the four-step process, as it is akin to making a new Constitution, while Ouko J accepts Professor Akech’s amicus brief on the point that the four-step process was not, historically, how the 2010 Constitution was framed; it is only an “approximation.” Thus, we now have a situation where, in the disposition, six out of seven judges have rejected the applicability of “the basic structure doctrine”, but (at least) four out of seven judges have accepted that there is a conceptual distinction between constitutional “amendment” and “dismemberment”, the latter of which is outside the scope of Chapter XVI amendment processes (with three out of those four seeing space for the four-step process, and the fourth holding that it is an “approximation” of the founding moment).

What of the opinion of Mwilu DCJ? In paragraph 407, Mwilu J notes that:

In my view, whether a Constitution is amendable or not, whether any amendment initiative amounts to an alteration or dismemberment and the procedure to be followed is a matter that would be determined on a case to case basis depending on the circumstances.

After then noting the distinction between “amendment” and “alteration” (paragraphs 418 – 419), she then notes, at paragraph 421:

The court always reserves the constitutional obligation to intervene provided that a party seeking relief proves to the court’s satisfaction that there are clear and unambiguous threats such as to the design and architecture of the Constitution (emphasis supplied).

While this is also redolent of basic structure language, Mwilu J later goes on to note that while constitutional alteration must necessarily be an “extra-constitutional process” outside the scope of Articles 255 – 257, the exact form it might take need not replicate the manner of the constitutional founding: it may be through the “primary constituent power” or through “any of the other mechanisms necessary to overhaul the constitutional dispensation.” (paragraph 437)

It is not immediately clear what these other mechanisms might be. Mwilu J’s basic point appears to be that the mechanism by which fundamental constitutional alteration takes place cannot be judicially determined, as it is basically extra-constitutional. The corollary of this surely is, though, that to the extent that these fundamental alterations are sought to be brought in through the amendment process, they are open to substantive judicial review, as Mwilu J explicitly notes that those kinds of alterations “are not subject to referendum” under Article 255. In other words, Mwilu J’s problem appears to be not with judicial review of formal constitutional amendments in order to decide whether or not they are fundamental alterations, but with what follows, i.e., the judiciary deciding that, in case it is a fundamental alteration, that it must be done through the four-step test. But the only other alternative that then reconciles all these positions is for the judiciary to invalidate radical constitutional alteration that is disguised as an amendment via the 255 – 257 route; in no other interpretation does paragraph 421, which calls for judicial intervention when the threat is to “the design and architecture of the Constitution”, make sense.

We now have a situation where, in the disposition, six out of seven judges have rejected the applicability of “the basic structure doctrine”.

Finally, what of Koome CJ’s opinion? While Koome CJ is clearest on the point of the tiered amendment process achieving the balance between rigidity and flexibility, her judgment does not address the distinction between “amendment” and “repeal.” In paragraph 226, Koome CJ notes that any amendment to the Constitution must be carried out in conformity with the procedures set out under Chapter XVI; but that leaves the question unaddressed – what if it is alleged that the impugned amendment is not an amendment, but an implied repeal? In her summary of findings, Koome CJ notes further that the basic structure doctrine and the four step process are not applicable under the Constitution (paragraph 360). This is true, but also in substantial agreement with the case of the BBI challengers: the basic structure doctrine does not kick in as long as the formal amendment is actually an amendment, and as long as we are within the existing constitutional framework. It only applies when we are no longer under the Constitution.

Conclusion

Formally, by a majority of six to one, the Supreme Court rejected “the applicability of the basic structure doctrine” in Kenya. However, as I have attempted to show, a close reading of the seven judgments reveals a more complex picture. Consider a hypothetical future situation where a proposed amendment to the Constitution is once again challenged before the High Court, on the basis that it is not an amendment at all, but implied repeal, or repeal by stealth, or constitutional dismemberment. When the High Court looks to the Supreme Court for guidance, it will find the following:

  1. A majority of six rejecting the applicability of the basic structure doctrine (from the disposition)
  2. A majority of five accepting the distinction between “amendment” and “repeal” or “dismemberment”.
  3. A plurality of three explicitly noting that this distinction is subject to judicial review (with two others not taking an explicit position on this).
  4. A plurality of three holding that in case an “amendment” is actually a disguised “repeal”, the four-step test will apply (with an equal plurality of three against it, and one – Koome CJ – silent, as she does not draw a distinction between amendment and repeal).

In such a situation, how will the High Court proceed? That, I think, is something that time will tell.

Two final remarks. I think that a close reading of Koome CJ’s judgment came close to resolving the bind outlined above, without explicitly saying so. In paragraph 205, she notes:

The jurisprudential underpinning of this view is that in a case where the amendment process is multi-staged; involve multiple institutions; is time-consuming; engenders inclusivity and participation by the people in deliberations over the merits of the proposed amendments; and has down-stream veto by the people in the form of a referendum, there is no need for judicially-created implied limitations to amendment power through importation of the basic structure doctrine into a constitutional system before exhausting home grown mechanisms.

Koome CJ dwells at length upon the extent and depth of public participation required under Articles 256 and 257, and effectively equated the process with the four step test, sans the constituent assembly: running through her judgment is a strong endorsement of the civic education, public participation, and referendum (after adequate voter education) prongs of the test. What this suggests is that it might be open to argue that the procedures for participation under Articles 256 and 257 do not codify the primary constituent power (because that is a conceptual impossibility), but reflect it. In other words, if you are following the procedures under Articles 256 and 257 (in the sense of deep and inclusive public participation, as set out in Koome CJ’s judgment, and we will discuss some of that in the next post), you are exercising primary constituent power, and therefore, fundamental constitutional alterations are also possible as long as public participation happens in all its depth. This, I would suggest, might reconcile some of the potential internal tensions within some of the judgments, and also essentially keep the High Court and Court of Appeal’s judgments intact, just without the Constituent Assembly.

Secondly, one thing that appeared to weigh with the Court was the fact that in the twelve years since 2010, there has been no successful attempt to amend the Kenyan Constitution, and all attempts – whether under Article 256 or Article 257 – have failed. This is true; however, what is equally true is that were the BBI Bill to succeed, we would go from no amendments in twelve years to seventy-four amendments in twelve years, making the Kenyan Constitution one of the most swiftly-amended in the world. If it is true, therefore, that the purpose of the tiered amendment structure is to find a balance between flexibility and rigidity, while also ring-fencing entrenched provisions, then this has certain inescapable conclusions for the interpretation of Article 257 – including the question of single or multiple-issue referenda. This will be the subject of the next two posts.

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

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Will Ruto’s Cargo Clearance Order Be Practicable?

President William Ruto has kept a campaign promise to return cargo clearance to Mombasa but with recent technological advances in cargo handling logistics, the only jobs available today are those involving the physical handling of cargo.

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Will Ruto's Cargo Clearance Order Be Practicable?
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The haste with which President William Ruto issued the cargo clearance directive—during his inaugural speech—may have caught by surprise those industry stakeholders who understand the complex nature of our logistics industry.

The return of the cargo clearance and port operations to Mombasa—decided without serious considerations—was a major campaign issue for Ruto to lure coastal voters. Mombasa has been reeling in economic pain for the last five years after the government issued an order directing that clearance of all Nairobi-bound cargo be undertaken at the Athi River Inland Container Depot (ICD).

Ruto’s directive overturned a notice issued in June 2018 that stopped importers from nominating cargo to any of the Container Freight Stations (CFSs) that had proliferated in Mombasa since 2007. That notice read in part:

“This is to notify all shipping lines that containers destined to Mombasa for local clearance shall not be allowed to be nominated by clients or endorsement of Bill of Lading to any CFS.”

It further read: “The nominations shall be done by Kenya Ports Authority (KPA) based on vessel rotation, volumes, and individual CFS capacity, therefore you are required to inform your clients in your various ports of loading accordingly.”

KPA issued this directive to create cargo volume for the Standard Gauge Railway (SGR), which links the port of Mombasa to the Athi River ICD. The government required the shipping lines to henceforth use a Through Bill of Lading (TBL) instead of Merchant Haulage. TBL refers to a single bill of lading covering receipt of cargo at the point of origin for delivery to the ultimate consignee at a named place in the hinterland, in this case, the Athi River ICD.

In Merchant Haulage of containerized cargo, the responsibility of the shipping line ceases upon discharge of the container at the port. This is the point where the consignee takes delivery of the goods and is given a time frame within which to return the empty container.

The abrupt 2018 notice disturbed a logistics industry that had grown organically for over a decade. In 2007, there was very serious congestion at the port due to capacity constraints in the face of growing cargo volume, which affected the turnaround times of merchant ships.

For the first time in their history with the port, shipping lines threatened to levy a Vessel Delay Surcharge (VDS), a highly punitive fee for unusual delays, which can go as high as KSh30 million a day depending on the size of the vessel or the type of the cargo.

The abrupt 2018 notice disturbed a logistics industry that had grown organically for over a decade.

A need arose to create extra capacity outside the port’s yard to avoid VDS. This is how the CFSs came into being as a temporary measure to address the prevailing congestion. However, it is their business model that was interesting; viewed as an extension of the port, they were to apply the KPA Tarif. Since over 60 per cent of the cargo could not be cleared within the 7 free days the KPA allowed, the income of CFSs came from storage charges levied against importers who could not clear cargo within the free period, profiting from inefficiency.

CFSs became highly lucrative and within a few years had proliferated in number to over 10 stations. This gave the port relief to expand infrastructure—rehabilitation of berths, construction of a second container terminal, and dredging of the channel.

CFSs also invested in modern equipment to improve efficiency and become competitive after the KPA allowed importers to nominate cargo to the CFSs of their choice. Cargo clearance became easier and the storage charges business model could no longer hold.

With no room for tariff adjustment, CFSs had to innovate to remain afloat. They, therefore, introduced tailor-made plans with their customers, largely serving as distributive points and storage facilities for the cargo already cleared by the Kenya Revenue Authority (KRA) through the KRA offices hosted on their premises.

The CFSs became popular among the importers. Those with excellent marketing skills managed to convince over 80 per cent of their clients to nominate cargo to their stations with KPA nominating the rest.

In a 2017 study on the future of CFSs in the wake of the construction of the SGR, Maritime Business and Economic Consultants found that the stations employed 1,804 people, who earned a total monthly salary of KSh102 million monthly. “Out of this number, 1,276 were permanent staff and 528 contracted staff,” noted the study which was led by Gichiri Ndua, an economist and former KPA managing director who oversaw most much of the modern port development. According to the study, CFSs invested over KSh20 billion in 2017.

Following the 2018 directive that importers must clear all cargo with a Nairobi address at Athi River ICD, CFSs lost business. Some closed down, those with the ability moved to Nairobi and others scaled-down business to handle only Mombasa-based cargo, which is less than 10 per cent of the port’s total volumes.

Crucial questions arise following the yet to be gazetted presidential directive. Are CFS operators likely to move their capital back to Mombasa? Will they be willing to move the capital they have invested in other logistics chains that have emerged? What if the SGR addresses the last mile transport challenge, which is the element that makes it costlier than road transport? How many jobs will be lost in Nairobi if operations go back to Mombasa?

CFS operators and other logistics providers are keeping a close eye on how events unfold following the new order. Recently, KPA published a notice that allowed importers to nominate cargo to CFSs of their choice, giving them the choice of either using rail or road. Even with the new terminal, the KPA’s cargo clearing capacity is limited and requires space outside the port, either at CFSs or at ICDs. Indeed, Ndua’s report notes that if the 21,830 Twenty-Foot Equivalent Units (TEUs) handled by CFSs in 2017 were to be dumped at the port, one would not be able to set foot in the terminal.

Another critical consideration is the investment that the government has made in the ICDs in Nairobi and Athi River at the expense of the port. In the last five years, the government has focused all its attention on infrastructure projects at the ICDs in Nairobi and Naivasha. After suffering serious teething problems that led importers to pay huge demurrage charges at ICDs following the 2018 directive, the KPA improved infrastructure, including creating smart gates that now allow for a seamless flow of cargo.

Even with the new terminal, the KPA’s cargo clearing capacity is limited and requires space outside the port, either at CFSs or at ICDs.

The port of Mombasa may face capacity constraints should the number of importers opting to use road transport grow huge. Container traffic at the port has been recording a growth of 10 per cent per year on average in the last decade and the facility is currently handling over 33 million tonnes a year. The feasibility study carried out by China Road and Bridge Corporation (CRBC) on the SGR in 2011 projected that the port will handle 41 million tonnes of cargo by 2028.

Another dilemma facing the implementation of Ruto’s directive is how the neighbouring countries using the port at Mombasa will take it. The port is a regional infrastructure serving the Northern Corridor—Uganda, Rwanda, Democratic Republic of Congo, South Sudan and Burundi. Uganda is of crucial importance. It provides the KPA with 70 per cent of the total transit cargo. In March this year, Kenya Railways Managing Director Philip Mainga took the Ugandan Finance, Planning and Economic Development Parliamentary Committee on a fact-finding tour of the Naivasha Inland Container Depot.

The delegation was led by Henry Musasizi, Uganda’s Minister of State General Duties at the Ministry of Finance, Planning and Economic Development. The team had earlier visited the Dar es Salaam port in Tanzania, before making their way to the Mombasa Port and the Naivasha ICD.

In May last year Kenya and Uganda joined forces to rehabilitate the old meter-gauge railway to enhance the seamless movement of goods. Kenya has provided a linkage between the SGR and the rehabilitated metre gauge railway line from Naivasha to Malaba using the Kenya Defence Forces.

Currently, it costs an average of US$2,100 (about KSh225, 120) to move a 20-foot container from Mombasa to Kampala by road. In December 2021 Kenya Railways (KR) gazetted promotional tariffs to ferry cargo from the Mombasa port to Malaba at US$860 (KSh100,198) for a 20-foot container weighing up to 30 tonnes and US$960 (KSSh111,849) for a container weighing above 30 tonnes. Charges for a 40-foot container weighing up to 30 tonnes stood at US$1,110 (KSh129,326) and at US$1,260 (KSh146,802) for those above 30 tonnes.

A few days before President Uhuru Kenyatta left office, State House announced that Kenya had issued Burundi, Rwanda, DRC, Uganda and South Sudan with the title deeds to the location where a special economic zone is being established at the Naivasha ICD. The five countries were said to have been reluctant to put up inland container depots without title deeds.

But perhaps the biggest headache has to do with the Chinese loan. Kenya signed a “take or pay” loan with the Exim Bank of China. What this 15-year agreement means is that the KPA undertook to “take” a minimum amount of cargo on the new railway every year failure to which it would draw from its revenues to “pay” for the shortfall.

Kenya’s loan repayment to Exim Bank of China this financial year will jump to US$800 million, an increase of over 126.1 per cent compared to last financial year. If the KPA does not provide sufficient cargo to finance the repayment, Kenya will have to pay the loan from public coffers, which are already depleted.

According to data from the Kenya National Bureau of Statistics (KNBS), in the five years that the SGR has been in operation, it has generated US$4.6 billion from cargo freight. Passenger trains generated US$760 million over the same period, indicating that it is cargo that is keeping it afloat. The KPA is therefore the SGR’s main client.

There is an erroneous narrative held by politicians who attach a lot of value to the port as the main job creator in Mombasa. This was perhaps the case a decade and a half ago, but it no longer holds because of technological developments in cargo handling logistics. The only jobs available today are those involving the physical handling of cargo.

Kenya’s loan repayment to Exim Bank of China this financial year will jump to US$800 million, an increase of over 126.1 per cent compared to last financial year.

With the full rollout of the KRA’s Integrated Customs Management System (iCMS) which replaced the decade-old Simba System, and KenTrade’s upgraded National Open Single Window System, cargo clearance is completely paperless and does not involve any physical contact. It can be done from anywhere. Therefore, clearing and forwarding jobs will not come back to Mombasa.

Also, since last year when the system became operational, licensed shipping lines and agents operating in Kenya are required to use the Maritime Single Window System (MSW) to prepare and submit vessel pre-arrival and pre-departure declarations to government agencies electronically.

The revival of Mombasa’s economy may lie elsewhere. As a starting point, the government must up its game by putting up modern training equipment and infrastructure and providing maritime training and education so that the country can equip its citizenry with skills to unlock the much-touted Blue Economy, the next economic growth frontier.

By 2020, the biggest maritime training institute in the country, Bandari Maritime Academy (BMA) in Mombasa, offered only 6 of the over 30 courses offered in maritime training as recommended by International Maritime Organization (IMO). Kenya does not even possess a training vessel to offer the trainee time at sea.

Lack of fishing gear and an ill-trained workforce limit Kenya’s efforts to venture into deep sea fishing. The International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel, which came into force on 29 September 2012, set certification and minimum training requirements for the crew of seagoing fishing vessels of 24 meters and above.

Because of this shortcoming, Kenya has left its sea waters to Distant Water Fishing Nations (DWFN) which mainly fish tuna species. Kenya lies within the rich tuna belt of the West Indian Ocean, where 25 per cent of the world’s tuna is caught.

Training would also open opportunities in other areas such as shipbuilding and repair, as well as seafaring, the biggest foreign earner for the Philippines, which supplies 40 per cent of seafarers’ jobs globally.

During his inaugural ceremony President Ruto promised to establish the Dongo Kundu Special Economic Zone in Mombasa to process leather among other activities. If implemented, it will represent an opportunity for job creation for the region.

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Four Reasons Why Ruto’s Cabinet is Unconstitutional

By creating “cabinet-level” portfolios, President William Ruto commits a subterfuge in an attempt to circumvent the two-thirds gender rule. Ruto’s cabinet also fails to reach ethnic and regional balance while including nominees who fail the leadership and integrity test.

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Four Reasons Why Ruto’s Cabinet is Unconstitutional
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There are at least four reasons why President William Ruto’s cabinet is unconstitutional. First, the cabinet fails the foundational composition rule of not more than two-thirds of the same gender. Two, the cabinet fails the Article 130(2) test that requires the national executive to reflect regional and ethnic balance. Three, some cabinet members fail the Chapter Six of the constitution test on leadership and integrity, tainting the entirety of the cabinet. Four, and finally, the creation of two cabinet-level portfolios is not only illegal but also indignifies women, contrary to Article 28 of the constitution.

I will not discuss chapter six issues in this piece as they require acres of space on their own. I discuss the other three.

Two-thirds gender rule

It is unfortunate that, in 2022, a cabinet formed by a president who without end hollers about his belief in the rule of law, does not meet the bare constitutional gender minimum of not more than two-thirds. It is both a maths issue and a constitutional subterfuge issue.

First, the math issue.

Article 152(a) clearly defines and caps the membership of cabinet. Cabinet comprises of the president, the deputy president, not more than 22 cabinet secretaries and the attorney general. Essentially, the ceiling is 25 members. No more. But this number could be less, because the president can appoint as few as 14 cabinet secretaries. Ruto used all his 22 cabinet cards and more. The more—two positions—he christened “cabinet-level portfolios” on gender and national security and assigned women to superintend them.

Now, here is the problem. Article 27(8) establishes a two-third gender ceiling rule on the composition of any state or public body. The courts have said that the cabinet is a body for the purpose of Article 27(8) gender-capping. Ruto and Deputy President Rigathi Gachagua are men. Justin Muturi, AG-nominee, is also a man. Additionally, of the 22 cabinet secretary nominees, 15 are men. Hence, of the 25 cabinet slots, 18 are reserved for men and 7 for women. In the case of Marilyn Kamuru versus Attorney General decided by Justice Onguto in 2015, the Judge said that Article 27(8) math would require computing the number of the lesser gender against the entirety of the cabinet including the president, deputy president and the AG. For Ruto’s cabinet then, the 7 women would be the numerator against a denominator of the total and maximum 25 cabinet slots. This results in 72 per cent men in cabinet whereas the constitutional cap should, at the minimum, limit them to not more than 66 per cent.

Now, on to the subterfuge.

I know there are those who will ask what about the two cabinet-level portfolios and the secretary to the cabinet who are all women. Again, the comprehensive response is to be found in Articles 152(a) and 154 of the constitution. Article 152 caps the number at 25. In that capping it does not say that secretary to the cabinet is a cabinet member. Article 154 tells us who a secretary to the cabinet is. It is an office in public service but, unlike Article 152 which explicitly says that the AG is a member of the cabinet, Article 154 does not make a secretary to the cabinet a member of the cabinet.

And this is where Ruto commits a constitutional subterfuge. By explicitly naming the four positions—the two advisers, the secretary to the cabinet, and the AG—as cabinet-level portfolios, he was constitutionally mixing apples, oranges and tomatoes. But it seems the intention was to dangle a red-herring both regarding the two-third math and the legality of the two offices. In fact, his supporters misleadingly insist that in computing the two-third rule, the three portfolios—that is, the two cabinet-level advisers and the secretary to the cabinet—should be factored in.

This is how smart people try to circumvent the constitution. But the constitution is quite conscious that public officers will try such tricks so it says—and the court has confirmed—that its violation can be direct or through effect. Both levels of violations are present here.

Regional and ethnic balance

This is straightforward albeit controversial. Article 130(2) says that the composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya. Again, it is a little more than a bean counting exercise.

The two critical operative elements are ethnic and regional. Regional is obviously geographic although the constitution does not delineate what a region is. It leaves that to common sense, practice, rhetoric and legitimate expectation. In this regard, and in our political rhetoric, there is a region christened Mt Kenya. While defined to some extent by proximity to the mountain (Mount Kenya), it also imports into its defining characteristic some ethnic component. So, while Isiolo may be closer to Mt Kenya than Kiambu, the majority of communities resident in Isiolo are not legitimately and in political rhetoric terms considered to be part of Mt Kenya. On the other hand, Kiambu people are, even though they are much further away from Mt Kenya than Isiolo is. But this is where it gets even messier: I believe if you are a GEMA community member living in Isiolo, you are considered Mt Kenya. The opposite is not true. You may wish to argue this point, but it is one of those facts that make political but hardly any logical sense; still, the constitution would recognize the argument in the context of Article 130(2).

Article 130(2) says that the composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya.

In this sense, it is possible that some of the members from the GEMA group who have been nominated to the cabinet may identify as hailing from the Rift Valley or from elsewhere in the country. But when Article 130(2) is purposively read, a question arises whether the numbers of those included in the cabinet who are from Mt Kenya region, or are from one of the pre-dominant Mt Kenya regional ethnic groups (when one considers the demographics and diversity of the country), disproportionately constitute the cabinet. My answer is yes.

Illegal cabinet-level portfolios

This is not about the attorney general or the secretary to the cabinet. As I have explained above, the constitution explicitly says that the AG is a member of the cabinet. Article 154 also creates the position of secretary to the cabinet, although it does not make the holder a member of the cabinet. Whether the position of secretary to the cabinet is a cabinet-level portfolio is a discussion for another day. What I am interested in here is the legality of the other two cabinet-level portfolios Ruto has created on gender and national security.

The constitution and the law are explicit on how state office or offices in public service are to be created. The constitution is also implicitly inundated with the logic of circumscribing a strict criteria and processes of creating such offices, among them to curb wastage of public funds by creating unnecessary or duplicative offices.

The agency with the power to create a public office is the Public Service Commission (PSC). True, the president may request the PSC to create a position in public service—but when he does so, the PSC is required to conduct a thoroughgoing needs assessment to determine whether the position is necessary. The constitution anticipates this and the courts have said as much. If, in fact, the two positions are offices in public service, the strict requirements of Article 234 have not been complied with.

The constitution and the law are explicit on how state office or offices in public service are to be created.

There are only two other avenues through which Ruto could have created the two offices. The first is under Article 234(4) which allows the PSC to create a position of “personal staff” to the president. We shall settle this quickly because it would be oxymoronic to argue that a “cabinet-level portfolio” is a “personal staff” position for the president. In any event, did the PSC sanction it?

The second avenue is to be found under Article 260, which provides that parliament can create a state office but even then only through legislation. Question: under which law are the two offices created?

Dignity

Constituting a cabinet is perhaps one of the most intense of boardroom wheeler-dealer activities. It is, for instance, hard to find the logic why, for example, Ababu Namwamba was assigned the sports and youth docket while Alfred Mutua was assigned foreign affairs. However, at times, the constitution is able to find logic in some of these nocturnal deals and I think, in this case it would easily discover the logic behind why the two tentative and illegal positions of cabinet-level portfolios ended up with women as nominees.

Article 28 is about human dignity. If there are two positions to be assigned, one that is constitutionally recognized and secured and the other constitutionally suspect and tentative, it is no secret that being appointed to the constitutionally secure position is more dignifying. Historically, and as Ruto has demonstrated with his list of cabinet nominees, women are always an afterthought when allocating consequential positions of leadership. This is not conjecture. Instead, it is a compelling argument under Article 259 of our constitution, a provision that requires the constitution to be interpreted in a purposive way. It is a position also supported by many other relevant and endless re-enforcing provisions of the constitution. So, the two most tentative positions are ultimately assigned to women, because, after all, in the animal farm context (but not under the 2010 constitution), all animals are equal but some are more equal than others.

Plum as the positions may seem, in contextual terms they raise an Article 28 issue. An issue of human dignity.

What to do?

There are two ways to deal with these constitutional infirmities. One: Ruto can withdraw his list and amend it accordingly to comply with the constitution. If he is too married to this strange concept of “cabinet-level portfolios” he should at least push some of the Mt Kenya men there and move the women to the real cabinet portfolios. We can then deal with the illegalities of where the men end up later. But that may all be wishful thinking.

Historically, and as Ruto has demonstrated with his list of cabinet nominees, women are always an afterthought when allocating consequential positions of leadership.

Second: In the Marilyn Muthoni case, Justice Onguto chastised the national assembly for aiding and abetting Uhuru (gleefully, may I add) in violating the constitution by failing to conduct, during the vetting of cabinet secretary nominees, a “strict scrutiny” (the judge’s words) on the constitutional compliance of the composition of cabinet for gender, regional and other factors – but primarily gender because the pith of the case was the violation of the two-third gender rule.

Moses Wetangula and the national assembly will soon have a choice to make: whether their primary allegiance and loyalty is to William Ruto or to the constitution.

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TPLF Cannot Survive a Day Without Its Hypocrisy

It is the firm conviction of the Government of Ethiopia that the peace efforts under the auspices of the African Union must be conducted without preconditions, and the international community should condemn the TPLF’s intimidation of the AU Officials and frustration of the peace efforts in unison.

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Lying pathologically is the perennial character of the Tigray People’s Liberation Front. From the cradle to the grave peddling lies is the bread and butter of this terrorist clique. On 04 November 2020, after mercilessly slitting the throats of members of the Northern Command in their sleep, the TPLF cried wolf that the Federal Government (FG, henceforth) pre-emptively attacked it. In the wake of this gruesome massacre, Sekoutoure Getachew, declared that by “pre-emptively striking the TPLF has destroyed the Northern Command”, exposing the facade of the clique awash with deception, brutality and an insatiable appetite for war.

Similarly, on 13 October 2021, the TPLF cabal brazenly declared that it is “willing go to hell to destroy Ethiopia”. After pre-emptively attacking the Ethiopian National Defense Forces (ENDF), once again, the TPLF shamelessly proclaimed that the ENDF attacked it from all fronts. With these heinous provocations, the TPLF showed to the world that it cannot live without shedding the blood of innocent civilians. The blatant, sadistic, self-contradictory proclamations of the TPLF distinctively deviate from the moral standards of a civilized society. There are no limits to its hypocrisy.

While wreaking havoc in the Amhara region unprovoked, the TPLF now alleges it was attacked by the ENDF from the Raya front. The spokesman of the TPLF claimed that the “truce has been broken”, which is true as it is the TPLF’s action, last straw that broke the camel’s back. Yet it is paradoxical to cry foul when it was meticulously self-inflicted. The TPLF is deafening us with its destructive, utterly irrational narratives emblematic of its siege mentality. The TPLF terrorist junta cannot survive without an ecosystem of betrayals, lies, siege mentality and chaos. Put simply, the TPLF cannot dwell in the sphere of the humane, the compassionate and the empathetic. Hence, the suffering of the people of our Tigrayan brothers and sisters under the TPLF’s captivity.

The words and deeds of the TPLF inarguably prove that it has no regard for the dignity of human life including the children it touts as soldiers. Its quotidian transgressions and its anarchic tendencies attest to this very fact. The forceful conscription of Tigrayan children as “soldiers” and the coercive mobilization of the general Tigrayan populace in the service of its suicide mission is a constant demonstration of its insatiable appetite to destabilize Ethiopia and the Horn of Africa by any means necessary, even if it means exterminating hapless civilians. Sadly, the international community doesn’t seem to care about the loss of countless lives. It is a deafening silence, at best. This must change here and now and the international community needs to pass an unambiguous verdict that the genocidal campaigns and crimes against humanity perpetrated by the TPLF in Tigray, Amhara and Afar regions must cease unconditionally in favour of a negotiated settlement.

While the FG has been undertaking confidence-building measures to peacefully resolve the conflict in Tigray, the TPLF is hell-bent on thwarting the peace process. On the one hand, the TPLF is paying lip service to the idea of negotiating with the Federal Government. On the other hand, it is incessantly engaged in an extensive military offensive and flagrantly violating the humanitarian truce. By doing so, it has been impeding government efforts to provide unfettered access to humanitarian assistance in Tigray. Many in the international community have corroborated these well-known facts, including UN agencies.

On 12 July 2022, the FG established a High-level Peace Committee (HLPC) led by the Deputy Prime Minister and Minister of Foreign Affairs to lead the government’s efforts to end the conflict in northern Ethiopia through negotiations. By instituting the HLPC the FG demonstrated its commitment to pursue a constructive engagement with the TPLF in good faith. On the contrary, the TPLF unequivocally refused to list a negotiating team. Even in the face of this awful conundrum, the government persistently appealed to partners to jointly work on restoring basic services to the Tigray region as well as the adjacent Amhara and Afar regions.

As we can all deduce from the history of the world, at a certain stage warring parties who have a genuine desire for peace go back to the negotiating table draw up short, medium and long-term solutions for sustainable peace. To this end, they also address the root socio-political and economic causes of the conflict and forge consensus to put in place a roadmap for peace. However, the TPLF lacks legitimate political demands that could be dealt with through negotiations. It still lacks a valid reason for its insolence and contempt for the people and government of Ethiopia. Every time the FG extends the TPLF an olive branch, it resorts to carnage for fear of becoming utterly irrelevant.

What is even more unnerving is its vexing assertion that without its brutal rule “Ethiopia will fall apart”!. With these diabolical ideals founded on the personality cult of its founding fathers, the TPLF is a specter of violence both in Ethiopia and the Horn of Africa region, while adding fuel to global conflagrations, threatening world peace. Whilst relegating all efforts of peace by the Government of Ethiopia to the museum of intellectual curiosity for fear of becoming extinct for lack of relevance, the TPLF dispatched an ominous letter to foreign dignitaries threatening another bloody war if its fantasy demands are not met.

On the morning of Wednesday, 24 August 2022, the TPLF launched an extensive military offensive with the made-up pretext of “being attacked on the Raya front”, reigniting an unsolicited conflict and flagrantly violating the humanitarian truce the Government of Ethiopia had worked so hard for. Ironically, the TPLF alleges that the FG commenced another “full-fledged war” at 5 a.m. local time via multiple fronts. The TPLF’s propaganda machine is a double-edged sword spreading this falsehood and betraying efforts for peace and reconciliation. Its latest actions accelerated its death wish while galvanizing the Ethiopian people to come to the rescue of their Tigrayan sisters and brothers, who are being held hostage by the TPLF. Through its various social and digital media outlets, the TPLF’s propaganda machinery has also been intensively engaged in undermining the peace efforts, denigrating and attacking the African Union, the leadership of the Commission, and the High Representative for the Horn of Africa, H.E. Olusegun Obasanjo. This is a regrettable reality that is giving Ethiopians, people of Ethiopian origin and friends of Ethiopia around the world sleepless nights. This needs to stop unconditionally.

It is the firm conviction of the Government of Ethiopia that the peace efforts under the auspices of the African Union must be conducted without preconditions, and the international community should condemn the TPLF’s intimidation of the AU Officials and frustration of the peace efforts in unison. The international community must also support the African Union in leading the facilitation process to bring about sanity and security to one of the most troubled regions in the world. Despite repeated unsubstantiated allegations, the government will continue with its efforts to find a lasting solution for the country’s various social and political challenges through the National Dialogue mechanism. There is every reason to believe that the worsening situation in Tigray could ameliorated through this indispensable means. Parallel to this, it is high time that the TPLF menace is buried, once and for all, through the concerted efforts of Ethiopians, the Ethiopian diaspora and friends of Ethiopia around the globe, near and far, by advocating for peace while singularly condemning the reckless terrorist activities in Tigray, Amhara and Afar. The boundless cruelty of the TPLF continues to result in a massive physical, spiritual and psychological trauma that will take years if not decades to come to terms with, let alone overcome. Lastly, the international community needs to unanimously condemn this reckless violence by sending out a clarion call to the TPLF to lay down arms and come to the negotiating table pronto, as the road to peace begins with the silencing of the guns.

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