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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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Education in Rwanda: A Long Walk to the Knowledge Economy

If Rwanda is to attain its stated ambition to become of a middle-income country by 2035 driven by the knowledge economy, then it must inject significant investments in the education and related sectors.

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Education in Rwanda: A Long Walk to the Knowledge Economy
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Rwanda has shown commitment to bring improvements to its education sector. The development of Human capital that involves the enhancement of the education and health sectors was one of the main pillars of Rwanda’s development programme launched in 2000 to transform the country into a middle income state driven by the knowledge economy by 2020. Many developed countries joined in to financially support Rwanda to fulfil its development ambitions.

But while Rwanda did not meet its target to transform into a middle-income state by 2020, it has nevertheless made progress in the education sector that should be recognised. The country has now near-universal access to primary education with net enrolment rates of 98 per cent. There are also roughly equal numbers of boys and girls in pre-primary, primary and secondary schools in Rwanda. Compared to other sub-Saharan African countries, Rwanda has made great improvements in the education sector based on the gains made in primary school gross enrolment, out-of-school and retention rates and considering that the country came out of a genocidal civil war in the 1990s. Those of us living and travelling across the country can also see that the government of Rwanda has built more schools across the country to address congestion in classrooms.

However, education in Rwanda is faced with serious challenges which, if not addressed, the country will not attain its ambition to become a middle-income by 2035 and a high-income by 2050. The World Bank’s comparison with middle- and high-income countries, to whose ranks Rwanda aspires to join, shows that Rwanda lags far behind in primary and lower secondary school completion levels.

The gains made in education are not equally distributed across Rwanda. There are, for instance, wide disparities in lower secondary education by income and urban–rural residence. Whereas lower secondary school gross enrolment ratio level is 82 per cent in urban areas, it is only 44 per cent in rural areas. Moreover, transition rates between primary and lower secondary education are 53 per cent in urban areas, and 33 per cent in rural areas. School completion is 52 per cent among the richest quintile while it is 26 per cent among the poorest. Any future development strategy is unlikely to succeed if it does not provide basic equality of opportunity for all in Rwanda.

The standard of education in Rwanda is another major challenge. At the end of Grade 3, 85 per cent of Rwandan students were rated “below comprehension” in a recent reading test, and one in six could not answer any reading comprehension question. In my view, the quality of education has been partly affected by the abrupt changes in the language of instruction that have taken place without much planning since 2008.

Any future development strategy is unlikely to succeed if it does not provide basic equality of opportunity for all in Rwanda.

Learning levels in basic education remain low in Rwanda.  Children in the country can expect to complete 6.5 years of pre-primary and basic education by the age of 18 years. However, when this is adjusted for learning it translates to only about 3.8 years, implying that children in Rwanda have a learning gap of 2.7 years. This is a concern.

Education in Rwanda is also impended by high levels of malnutrition for children under 5 years. Although there have been improvements over time, malnutrition levels remain significantly high at 33 per cent. Malnutrition impedes cognitive development, educational attainment, and lifetime earnings. It also deprives the economy of quality human capital that is critical to Rwanda attaining its economic goals and sustaining its economic gains. In 2012, Rwanda lost 11.5 per cent of GDP as a result of child undernutrition.

Because of low learning levels and high levels of malnutrition in children under 5 years, Rwanda has consistently ranked below average on the World Bank’s Human Capital index since 2018, the year the index was first published. HCI measures which countries are best at mobilising the economic and professional potential of their citizens.

If Rwanda is to develop the competent workforce needed to transform the country into a knowledge-based economy and bring it into the ranks of middle-income states, the government must put significant public spending in basic education. This has not been the case over the past decades. According to the World Bank, Rwanda’s public spending on primary education has been significantly lower than the average for sub-Saharan African countries with similar coverage of primary school level as Rwanda. This low spending on primary education has translated into relatively modest pay for teachers and low investment in their professional development which in turn affects the provision of quality education in Rwanda. The government recently increased teachers’ salary but the increment is being eroded by, among other things, food price inflation in Rwanda.

Malnutrition impedes cognitive development, educational attainment, and lifetime earnings.

Going forward, Rwanda’s spending on education needs to be increased and allocated to improving standards. Considering that the underlying cause of the high rate of malnourishment in children is food insecurity, the government needs to spend more on the agriculture sector. This sector employs 70 per cent of the labour force but has received only 10 per cent of total public investment. Public investment in Rwanda has in the past gone to the development of the Meetings, Incentives, Conferences and Exhibitions sector rather than towards addressing pressing scarcities. This approach must be reviewed.

Increasing public expenditure in education and connected sectors should also be combined with strengthening accountability in the government institutions responsible for promoting the quality of education in basic schools and in promoting food security and livelihoods in Rwanda. This is because not a year goes by without the office of the Rwanda auditor general reporting dire inefficiencies in these institutions.

Strengthening institutional accountability can be achieved if the country adapts its consensual democracy by opening up the political space to dissenting voices. Doing so would surely enhance the effectiveness of checks and balances across institutions in Rwanda, including in the education sector, and would enable the country to efficiently reach its development targets.

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No Imperialist Peoples, Only Imperialist States

Adam Mayer praises a new collection, Liberated Texts, which includes rediscovered books on Africa’s socialist intellectual history and political economy, looking at the startling, and frequently long ignored work of Walter Rodney, Karim Hirji, Issa Shivji, Dani Wadada Nabudere, A. M. Babu and Makhan Singh.

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No Imperialist Peoples, Only Imperialist States
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Liberated Texts is a magnificent, essential, exciting tome that feels like a bombshell. This incredibly rich collection is a selection that is deep, wide, as well as entertaining. The book focuses on twenty-one volumes from the previous one hundred years, with a geographical range from the UK, the US, Vietnam, Korea, the Peoples Republic of China, the Middle East, Ireland, Malaysia, Africa (especially East Africa), Europe, Latin America, and the former Soviet Union, focusing on books that are without exception, foundational.

The collection is nothing less than a truth pill: in composite form, the volume corrects world history that Howard Zinn’s The People’s History of the United States offered for the sterile, historical curriculum on domestic (US) history. The volume consists of relatively short reviews (written by a wide collection of young and old academics and activists from every corner of the globe) but together they reflect such a unified vision that I would recommend Liberated Texts as compulsory reading for undergraduate students (as well as graduates!) Although the text is a broad canvas it speaks to our age (despite some of the reviewed book having been written in the 1920s).

Each review is by default, a buried tresure. The writer of this very review is a middle-aged Hungarian, which means that some of the works and authors discussed were more familiar to me than they would be to others. For example, Anton Makarenko’s name was, when the author grew up in the People’s Republic of Hungary, a household word. Makarenko’s continued relevance for South America and the oppressed everywhere, as well as his rootedness in the revolutionary transformations of the Soviet experiment, are dealt with here marvellosly by Alex Turrall (p. 289). In loving detail Turrall also  discusses his hero the pedagogue Sukhomlinsky’s love for Stalinist reforms of Soviet education (p. 334).

There is one locus, and one locus only, where death is given reign, perhaps even celebrated: in a Palestinian case (p. 133) the revolutionary horizons are firmly focused on the past, not on any kind of future. The entire problematic of Israeli society’s recent ultra right-wing turn (a terrible outcome from the left’s point of view) is altogther missing here. Yet it is difficult to fault the authors or editors with this (after all, they painstakingly included an exemplary anti-Nazi Palestinian fighter in the text, p. 152) but it might be in order to challenge a fascination with martyrdom as a revolutionary option on the radical left.

In every other aspect, Liberated Texts enlightens without embarrassment, and affirms life itself. Imperialism is taken on in the form of unresolved murders of Chinese researchers in the United States as a focus (p. 307), and in uncovering the diabolical machinations of the peer-review system – racist, classist, prestige-driven as it is (p. 305).

The bravery of this collection is such that we find few authors within academia’s tenure track: authors are either emeriti, tenured, very young academics, or those dedicated to political work: actual grassroots organizers, comrades at high schools, or as language teachers. This has a very beneficial effect on the edited volume as an enterprise at the forefront of knowledge, indeed of creating new knowledge. Career considerations are absent entirely from this volume, in which thankfully even the whiff of mainstream liberalism is anathema.

I can say with certainty regarding the collection’s Africanist chapters that certain specialists globally, on African radical intellectual history, have been included: Leo Zeilig, Zeyad el-Nabolsy, Paul O’Connell, Noosim Naimasiah and Corinna Mullin all shed light on East African (as well as Caribbean) socialist intellectual history in ways that clear new paths in a sub-discipline that is underfunded, purposely confined to obscurity, and which lacks standard go-to syntheses especially in the English language (Hakim Adi’s celebrated history on pan-Africanism and communism stops with the 1950s, and other works are in the making).

Walter Rodney, Karim Hirji, Issa Shivji, Dani Wadada Nabudere, A. M. Babu, Makhan Singh are the central authors dealt with here. Rodney is enjoying a magnificent and much deserved renaissance (but this collection deals with a lost collection of Rodney’s 1978 Hamburg lectures by Zeilig!) Nabolsy shows us how Nyerere’s Marxist opposition experienced Ujamaa, and Tanzanian ’socialism’. Nabudere – a quintessential organic intellectual as much as Rodney –  is encountered in praxis as well as through his thought and academic achievements in a chapter by Corinna Mullin. Nabudere emerges as a towering figure whose renaissance might be in the making right at this juncture. Singh makes us face the real essence of British imperialism. Nabudere, Babu and even Hirji’s achievements in analysing imperialism and its political economy are all celebrated in the collection.

Where Shivji focuses on empire in its less violent aspect (notably NGOs and human rights discourse) powerfully described by Paul O’Connell, Naimasiah reminds us that violence had been as constitutive to Britain’s empire, as it has been to the Unites States (in Vietnam or in Korea). An fascinating chapter in the collection is provided by Marion Ettinger’s review of Richard Boyle’s Mutiny in Vietnam, an account based entirely on journalism, indeed impromptu testimony, of mutinous US soldiers tired of fighting for Vietnam’s landlord class.

Many readers of this anthology will identify with those veterans (since the collection appears in the English language) perhaps more than with East Asia’s magnificent, conscious fighters also written about in the book. Even in armies of the imperialist core, humanity shines through. Simply put, there are no imperialist peoples, only imperialist states.

Zeilig’s nuanced take on this important matter is revealed in Rodney’s rediscovered lectures. Also, the subtlety of class analysis in relation to workers versus peasants, and the bureacratic bourgeoisie profiting from this constellation (p. 219) brings to mind the contradiction that had arguably brought down Thomas Sankara, Burkina Faso’s anti-imperialist president who nevertheless found himself opposing working class demands. Rodney’s politics in Guyana invited the same fate as Sankara, as we know.

Nabolsy’s review on Hirji’s The Travails of a Tanzanian Teacher touches on very interesting issues of Rodney’s role especially in the context of Ujamaa and Nyerere’s idiosyncratic version of African socialism. Nabolsy appreciates Nyerere efforts but analyses his politics with great candour: Ujamaa provided national unification, but failed to undermine Tanzania’s dependency in any real sense. The sad realization of the failure of Tanzania’s experience startles the reader with its implications for the history of African socialism.

On an emotional and personal level, I remain most endeared by the Soviet authors celebrated in this text. So Makarenko and Sukhomlinsky are both Soviet success stories and they demonstrate that this combination of words in no oxymoron, and neither is it necessarily, revisionist mumbo-jumbo. Their artificial removal from their historical context (which had happened many times over in Makarenko’s case, and in one particular account when it comes to Sukhomlinsky) are fought against by the author with Leninist gusto.

Sukhomlinsky had not fought against a supposedly Stalinist education reform: he built it, and it became one of the most important achievements of the country by the 1960s due partly to his efforts. The former educational pioneer did not harm children: he gave them purpose, responsibility, self-respect, and self-esteem. The implication of Sukhomlinsky and Makarenko is that true freedom constructs its own order, and that freedom ultimately thrives on responsibility, and revolutionary freedom.

As this collection is subtitled Volume One, it is my hope and expectation that this shall be the beginning of a series of books, dealing with other foundational texts, and even become a revolutionary alternative to The London Review of Books and the New York Review of Books, both of which still demonstrate how much readers crave review collections. Volumes like Liberated Texts might be the very future of book review magazines in changed form. A luta continua!

This article was first published by ROAPE.

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We Must Democratize the Economy

In the UK, prices for basic goods are soaring while corporations rake in ever-bigger profits. The solution, Jeremy Corbyn argues, is to bring basic resources like energy, water, railways, and the postal service into democratic public ownership.

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Jeremy Corbyn: We Must Democratize the Economy
Photo: Chatham House, London
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On Thursday, December 15, the Royal College of Nursing went on strike for the first time in their 106-year history. Understaffed, underpaid, and overworked, tens of thousands of National Health Service (NHS) nurses walked out after being denied decent, livable pay rises. Hailed as heroes one year, forced to use food banks the next, nurses’ wages have fallen more than £3,000 in real terms since 2010; three in four now say they work overtime to meet rising energy bills.

People will remember 2022 as the year that the Conservative Party plunged this country into political turmoil. However, behind the melodrama is a cost-of-living crisis that has pushed desperate people into destitution and the so-called middle classes to the brink. We should remember 2022 as the year in which relative child poverty reached its highest levels since 2007 and real wage growth reached its lowest levels in half a century. (Average earnings have shrunk by £80 a month and a staggering £180 a month for public sector workers.) These are the real scandals.

For some MPs, this was the year they kick-started their reality TV careers. For others, this was the year they told their children they couldn’t afford any Christmas presents. For energy companies, it was the year they laughed all the way to the bank; in the same amount of time it took for Rishi Sunak to both lose and then win a leadership contest, Shell returned £8.2 billion in profit. SSE, a multinational energy company headquartered in Scotland, saw their profits triple in just one year. Profits across the world’s seven biggest oil firms rose to almost £150 billion.

Tackling the cost-of-living crisis means offering an alternative to our existing economic model — a model that empowers unaccountable companies to profit off the misery of consumers and the destruction of our earth. And that means defending a value, a doctrine, and a tradition that unites us all: democracy.

Labour recently announced “the biggest ever transfer of power from Westminster to the British people.” I welcomed the renewal of many of the policies from the manifesto in 2019: abolishing the House of Lords and handing powers to devolved governments, local authorities, and mayors. These plans should work hand in hand, to ensure any second chamber reflects the geographical diversity of the country. If implemented, this would decentralize a Whitehall-centric model of governance that wastes so much of this country’s regional talent, energy, and creativity.

However, devolution, decentralization, and democracy are not just matters for the constitution. They should characterize our economy too. Regional governments are demanding greater powers for the same reason an unelected second chamber is patently arcane: we want a say over the things that affect our everyday lives. This, surely, includes the way in which our basic resources are produced and distributed.

From energy to water and from rail to mail, a small number of companies monopolize the production of basic resources to the detriment of the workers they exploit and the customers they fleece. We rely on these services, and workers keep them running, but it is remote chief executive officers and unaccountable shareholders who decide how they are run and profit off their provision. Would it not make more sense for workers and consumers to decide how to run the services they provide and consume?

As prices and profits soar, it’s time to put basic resources like energy, water, rail, and mail back where they belong: in public hands. Crucially, this mold of public ownership would not be a return to 1940s-style patronage-appointed boards but a restoration of civic accountability. Water, for example, should be a regional entity controlled by consumers, workers, and local authorities, and work closely with environmental agencies on water conservation, sewage discharges, the preservation of coastlines, and the protection of our natural world. This democratic body would be answerable to the public, and the public alone, rather than to the dividends of distant hedge funds.

Bringing energy, water, rail, and mail into democratic public ownership is about giving local people agency over the resources they use. It’s about making sure these resources are sustainably produced and universally distributed in the interests of workers, communities, and the planet.

Beyond key utilities, a whole host of services and resources require investment, investment that local communities should control. That’s why, in 2019, we pledged to establish regional investment banks across the country, run by local stakeholders who can decide — collectively — how best to direct public investment. Those seeking this investment would not make their case with reference to how much profit they could make in private but how much they could benefit the public as a whole.

To democratize our economy, we need to democratize workplaces too. We can end workplace hierarchies and wage inequalities by giving workers the right to decide, together, how their team operates and how their pay structures are organized. If we want to kick-start a mass transfer of power, we need to redistribute wealth from those who hoard it to those who create it.

Local people know the issues facing them, and they know how to meet them better than anyone else. If we want to practice what we preach, then the same principles of democracy, devolution, and decentralization must apply to our own parties as well. Local party members, not party leaders, should choose their candidates, create policy, and decide what their movement stands for.

Only a democratic party can provide the necessary space for creative and transformative solutions to the crises facing us all. In a world where the division between rich and poor is greater than ever before, our aim should be to unite the country around a more hopeful alternative — an alternative that recognizes how we all rely on each other to survive and thrive.

This alternative is not some abstract ideal to be imagined. It is an alternative that workers are fighting for on the picket line. Even before the nurses went on strike, 2022 was a record-breaking year for industrial action. Striking workers are not just fighting for pay, essential as these demands are. They are fighting for a society without poverty, hunger, and inequality. They are fighting for a future that puts the interests of the community ahead of the greed of energy companies. They are fighting for us all.

Their collective struggle teaches us that democracy exists — it thrives — outside of Westminster. The government is trying its best to turn dedicated postal workers and railway workers into enemies of the general public — a general public that apparently also excludes university staff, bus drivers, barristers, baggage handlers, civil servants, ambulance drivers, firefighters, and charity workers. As the enormous scale of industrial action shows, striking workers are the general public. The year 2022 will go down in history, not as the year the Tories took the public for fools, but as the year the public fought back. United in their thousands, they are sending a clear message: this is what democracy looks like.

This article was first published by Progressive International

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