This is the third and concluding article about the Kenyan Supreme Court’s BBI judgment. The first and second articles can be accessed here. In this article, I will end by examining some of the possible implications of the judgment of the Court, going forward.
Distinct and Separate Referendum Questions
Recall that one of the grounds on which the High Court had invalidated the BBI Bill was that all seventy-four amendments had been lumped together as a “package”. The High Court had held that under Article 257, potential amendments would have to be placed before the People as distinct and separate referendum questions. The Court of Appeal was split on the point, but arguably, a majority of the bench held that at the very least, a “unity of theme” approach would have to be followed: that is, potential amendments that were thematically unrelated could not be lumped together in a package. The one exception was Tuiyott J, who held that the issue was not yet ripe for adjudication, as the IEBC was yet to frame the referendum question – or questions.
A majority of the Supreme Court agreed with Tuiyott J on this point. Thus, while the judgments of the High Court and Court of Appeal were set aside, the question still remains open for adjudication.
In my submission, however, while the Supreme Court did not explicitly decide the question, the overarching logic of its judgment(s) strongly implies that when the question does become ripe at some point in the future, the unity of content approach is to be followed.
The reason for this brings us back to our discussion in the previous post: going forward, any interpretation of Article 257 of the Kenyan Constitution must be informed by the Supreme Court’s finding that the purpose of the tiered amendment process is to provide internal constitutional safeguards against abusive amendments, and – specifically – against the culture of hyper-amendment. Indeed, it is particularly interesting to note that for more than one judge, the fact that no constitutional amendment had been successfully pushed through in the twelve years of the existence of the 2010 Constitution was evidence that the internal safeguards were working.
But now consider the consequences had the High Court’s judgment in May 2021 not stopped the (somewhat advanced) Article 257 in its tracks. Had the process been completed successfully, in one fell swoop, the Kenyan Constitution would have gone from having never been amended in twelve years, to having been amended seventy-four times in twelve years – and if anything can be called a “culture of hyper-amendment”, seventy-four amendments in twelve years would surely fit the bill!
The purpose of the tiered amendment process is to provide internal constitutional safeguards against abusive amendments, and – specifically – against the culture of hyper-amendment.
It is therefore not enough to say that the tiered amendment process provides an adequate internal safeguard against hyper-amendments. The tiered amendment process – as set out under Articles 255 – 257 – still leaves a range of interpretive questions open, and precisely how effective it is against hyper-amendments depends on how the courts answer those questions. It is easy to see that lumping all potential amendments into one referendum question is an enabler of hyper-amendments. As Musinga (P) rightly pointed out in the Court of Appeal, this enabled a culture where, in order to push through a potentially unpopular amendment, its proponents will include a range of “sweeteners” to make the Bill as a whole palatable – or, alternatively, raise the cost of not voting for it.
One can see a direct link between this kind of constitutional jockeying and the culture of hyper-amendment. It is therefore my submission that the constitutional silence in Article 257 on the question of distinct and separate referendum questions ought to be resolved in favour of the unity of content approach, as that is the interpretation that would further the purposes of Article 257 in checking hyper-amendments. Indeed, this interpretive approach matches precisely the Supreme Court’s approach to the popular initiative question. Article 257 was silent on whether the president could or could not initiate a popular initiative. The Supreme Court engaged in a purpose interpretation of Article 257 to hold that he could not, because the contrary interpretation would defeat the objective of the popular initiative. The same considerations apply to the issue of distinct and separate referendum questions.
On at least two crucial issues, the Supreme Court’s judgment was informed by a gap in the Constitution that was meant to be filled in by statute, but hadn’t yet been. The first was the issue of public participation. The second was the issue of the initiation of a popular initiative.
The first issue had also been discussed by the judges in the superior courts below. In the absence of a statute setting out the scope and content of public participation under the Article 257 process, the Courts were forced to stumble around a bit and search for the light, although the judges did eventually – relying upon the constitutional standard of public participation – return findings either way on the subject. Assuming, however, that at some point a law is passed that sets out its details, it will be interesting to see how the courts scrutinise its adequacy; any such scrutiny will now need to be judged against the standard of whether or not the statute can serve as a strong enough bulwark against abusive amendments and hyper-amendments. Thus, issues such as time to scrutinise bills, language, accessibility, and so on, will need to be considered from this rubric.
In order to push through a potentially unpopular amendment, its proponents will include a range of “sweeteners” to make the Bill as a whole palatable
The second issue finds mention in Mwilu DCJ’s judgment, although its echoes are present from the High Court, to the Court of Appeal, and to the Supreme Court. This is the issue of the popular initiative. Eighteen out of nineteen judges who heard this case agreed that the president cannot initiate a popular initiative under Article 257. The devil, however, is in the detail: in the present case, the president’s involvement – through proxies – was too overt and too categorical for most of the judges to ignore. One can easily imagine, however, that stung by this reversal in all the Courts, a future president might just decide to be a lot more subtle about this, and put in substantially greater distance between themselves and their proxies.
At the Court of Appeal, Tuiyott J, and at the Supreme Court, Koome CJ, both exhibited a keen awareness of this problem, but at the end of the day, beyond applying good judicial common sense, there is only so much that Courts can directly do to prevent executive “hardball”. This is why Mwilu DCJ probably had it right when she listed out a range of issues – such as, for example, whether promoters could be members of political parties, or political parties themselves – that might arise in the future. And the fine-grained character of these issues indicates that they are better off addressed by the legislative scalpel rather than the judicial sledgehammer. Of course, the risk here is, given that Article 257 is meant to be a constitutional amendment route that serves as an alternative to parliament, parliament itself legislating on the scope of who can activate Article 257 will raise potential conflicts of interest. That is perhaps inevitable, and once again, it might just be the case that the issue will ultimately find its way back to the judiciary, and that the courts will need to consider at what point the indirect involvement of state actors reaches a threshold where it starts to threaten the fundamental purpose of Article 257.
Parliament itself legislating on the scope of who can activate Article 257 will raise potential conflicts of interest.
Indeed, there is good reason to think that the BBI litigation marks the beginning and not the end of the story. Coming away from the judgment, we find that there is a window open for judicial intervention to stop constitutionally destructive “amendments” (although it is no longer being called “the basic structure doctrine”), but the length, breadth, and design of this window is also … open (pardon the pun). We also find that it has now been firmly established that the purpose of Chapter XVI – and, specifically Article 257 – is to constrain the imperial presidency, check abusive amendments, and safeguard against hyper-amendments. But as history shows, the imperial presidency is not so easy to contain – its “taming” will need more than one set of judgments – but rather, it is a constitutional commitment that will need to be renewed and renewed again. Stopping subtle and indirect hijackings of Article 257, package-deal referendums, and inadequate public participation (to name just a few threats) will all be part of that renewal.
Conclusion: Shadow and Light
It remains to end with a disclaimer (or two). As one of the amici before the Supreme Court of Kenya in the present appeal, my analysis is naturally situated within that broader context, and the arguments I have made in these three articles reflect some of the arguments in my amicus brief (I am particularly grateful to the Court for having admitted the brief, and then – across multiple judgments – engaged with the arguments closely and in depth). Indeed, these arguments reflect a broader set of intellectual commitments I bring to interpreting Constitutions; I believe that Constitutions are fundamentally about power relations, about deciding who has power and who doesn’t, who gets to wield power and upon whom it is wielded, and how power (state power, in particular) is to be confronted, mitigated, and contained. Our task as interpreters is to try and ensure that Constitutions live up to their own goal (often stated in the Preamble) of democratising power, and of checking abuse and impunity.
Having had the opportunity to engage so deeply with these questions in the context of the Kenyan Constitution over the last one year has been a privilege. As an outsider who has tried to approach the subject with respect and humility, but who – no doubt – has often put his foot in it, it has been particularly wonderful to experience the openness and generosity with which the Kenyan interpretive community has treated me; for that, I am deeply grateful. After all, as Yvonne Owuor once wrote, there is a “cartography not of possession, but of – how odd – belonging.”
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Are These the Dying Days of La Françafrique?
The widespread anti-France sentiment among the populations of Francophone Africa is the result of nearly 200 years of French meddling in the political and economic affairs of these countries.
France ruined Haiti, the first Black country to become independent in 1804. France is on course to ruin all its former African colonies. It is no coincidence that the recent spate of coups in Africa has manifested in former French colonies (so-called Francophone Africa), once again redirecting the global spotlight on France’s activities in the region. And that the commentaries, especially amongst Africans, have been most critical of France and its continued interference in the region.
This is coming against the backdrop of France’s continued meddling in the economic and political affairs of “independent” Francophone countries, an involvement which has seen it embroiled, both directly and indirectly, in a series of unrests, corruption controversies and assassinations that have bedevilled the region since independence. Unlike Britain and other European countries with colonial possessions in Africa, France never left – at least not in the sense of the traditional distance observed since independence by the other erstwhile colonial overlords. Instead, it has, under the cover of a policy of coopération (cooperation) within the framework of an extended “French Community”, continued to maintain a perceptible cultural, economic, political and military presence in Africa.
On the surface, the promise of coopération between France and its former colonies in Africa – which presupposes a relationship of mutual benefit between politically independent nations – where the former would, through the provision of technical and military assistance, lead the development/advancement of its erstwhile colonial “family”, is both commendable and perhaps even worthy of emulation. However, when this carefully scripted façade is juxtaposed with the reality that has unfolded over the decades, what is revealed is an extensive conspiracy involving individuals at the highest levels of the French government. Along with other influential business interests – also domiciled in France – they have worked with a select African elite to orchestrate the most extensive and heinous crimes against the people of today’s Francophone Africa. A people who, even today, continues to strain under the weight of France’s insatiable greed.
The greed and covetousness that drove the European nations to abandon trade for colonialisation in Africa is as alive today as it was in the 1950s and 1980s. The decision to give in to African demands for independence was not the outcome of any benevolence or civilised reason on the part of Europe but for economic and political expedience. Thus, when the then president of France, Charles de Gaulle – who nurtured an ambition to see France maintain its status as a world power – agreed to independence for its African colonies, it was only a pre-emptive measure to check the further loss of French influence on the continent. In other words, the political liberation offered “on a platter of gold” as a means to avoid the development of other costly wars of independence which, a France depleted by World War II was already fighting in Indochina and Algeria.
The greed and covetousness that drove the European nations to abandon trade for colonialisation in Africa is as alive today as it was in the 1950s and 1980s.
Independence was, thus, only the first step in ensuring the survival of French interests in Africa and, more importantly, its prioritisation. Pursuant to this objective, de Gaulle also proposed a “French Community” – delivered on the same “golden platter” – as a caveat to continued French patronage. As such, the over 98 per cent of its colonies that agreed to be part of this community were roped into signing coopération accords – covering economic, political, military and cultural sectors – by Jacques Foccart, a former intelligence member of the French Resistance during the Second World War who had been handpicked by de Gaulle. This signing of coopération accords between France and the colonies, which opted to be part of its post-independence French Community, marked the beginning of France’s neo-colonial regime in Africa, where Africans got teachers and despotic leaders in exchange for their natural resources and French military installations.
Commonly referred to as Françafrique—a pejorative derivation from Félix Houphouet Boigny’s “France-Afrique” describing the close ties between France and Africa – France’s neocolonial footprint in Africa has been characterised by allegations of corruption and other covert activities perpetrated through various Franco-African economic, political and military networks. An essential feature of Françafrique is the mafia-like relations between French leaders and their African counterparts, reinforced by a dense web of personal networks. On the French side, African ties, which had been French presidents’ domaine réservé (sole responsibility) since 1958, were managed by an “African cell” founded and run by Jacques Foccart. Comprising French presidents, powerful and influential members of the French business community and the French secret service, this cell operated outside the purview of the French parliament, its civil society organisations, and non-governmental organisations. This created a window for corruption, as politicians and state officials took part in business arrangements that amounted to state racketeering.
Whereas pro-French sentiments in Africa, and without, still argue for France’s continued presence and contributions, particularly in the area of military intervention and economic aid, which they say have been critical to security, political stability and economic survival in the region, such arguments intentionally play down the historical consequences of French interests in the region.
Enjoying free rein in the region – backed mainly by the United States and Britain since the Cold War – France used the opportunity to strengthen its hold on its former colonies. This translated into the development of a franc zone – a restrictive monetary policy tying the economies of Francophone countries to France – as well as the adoption of an active interventionist approach, which has produced over 120 military interventions across fourteen dependent states between 1960 and the 1990s. These interventions, which were either to rescue stranded French citizens, put down rebellions, prevent coups, restore order, or uphold French-favoured regimes, have rarely been about improving the fortunes of the general population of Francophone Africa. French interventions have maintained undemocratic regimes in Cameroun, Senegal, Chad, Gabon, and Niger. At the same time, its joint military action in Libya was responsible for unleashing the Islamic terrorism that threatens to engulf countries like Mali, Burkina Faso, Niger and Nigeria.
In pursuit of its interests in Africa, France has made little secret of its contempt for all independent and populist reasons while upholding puppet regimes. In Guinea in 1958, de Gaulle embarked on a ruthless agenda to undermine the government of Ahmed Sékou Touré – destroying infrastructure and flooding the economy with fake currency – for voting to stay out of the French Community. This behaviour was again replicated in Togo, where that country’s first president, Sylvio Olympio, was overthrown and gruesomely murdered for daring to establish a central bank for the country outside the Franc CFA Zone. Subsequently, his killer, Gnassingbé Eyadema, assumed office and ruled from 1967 until his death in 2005 – after which he was succeeded by his son, who still rules.
In Gabon, you had the Bongo family, who ran a regime of corruption and oppression with the open support of France throughout 56 years of unproductive rule. As for Cameroun, its most promising, Pan-Africanist pro-independence leader, Félix Moumié, died under mysterious circumstances in Switzerland, paving the way for the likes of Paul Biya, who has been president since 1982. France also backs a Senegalese government that today holds over 1,500 political prisoners, and singlehandedly installed Alhassan Ouattara as president of Cote d’Ivoire.
French interventions have maintained undemocratic regimes in Cameroun, Senegal, Chad, Gabon, and Niger.
Therefore, the widespread anti-France sentiment among the populations of Francophone Africa and beyond is not unfounded, as it has become apparent to all and sundry that these countries have not fared well under the shadow of France. In Niger, where France carried out one of the bloodiest campaigns of colonial pacification in Africa – murdering and pillaging entire villages – and which is France’s most important source of uranium, the income per capita was 59 per cent lower in 2022 than it was in 1965. In Cote d’Ivoire, the largest producer of cocoa in the world, the income per capita was 25 per cent lower in 2022 than in 1975.
Outside the rampant unemployment, systematic disenfranchisement and infrastructural deficits that characterise these Francophone countries, there is also the frustration and anger of sitting back and watching helplessly while the wealth of your country is carted away to nations whose people feed fat on your birthright and then turn around to make judgements and other disparaging comments on your humanity and condition of existence. The people are tired of being poor, helpless and judged as third-world citizens! France is a dangerous country.
It is indeed overdue for France to cut its losses – whatever it envisages them to be – and step back from its permanent colonies to allow the people of Francophone Africa to decide on their preferred path to the future. After nearly 200 years of pillage, the people have good reasons to demand that France should leave. The restlessness and the coups that have become commonplace in the region are symptoms of deeper underlying social, economic and political problems, including weak institutions, systematic disenfranchisement, poverty, corruption and the misappropriation of national wealth. And as we call on France to do the honourable thing and withdraw, we should also rebuke Africa’s leaders who have not only put their interests above those of their people but have also turned the instruments of regional intervention and development (like the AU and ECOWAS) into tools for ensuring their political survival.
Tigray Atrocities: Extending ICHREE Mandate Crucial for Accountability
If the Human Rights Council and its members genuinely condemn the atrocities committed in the war waged by the Ethiopian government on Tigray, they must demonstrate their commitment to accountability by extending ICHREE’s mandate.
The Human Rights Council (HRC), the premier human rights body of the United Nations (UN), among many other human rights issues, will decide on the future of the International Commission of Human Rights Experts on Ethiopia (ICHREE). This commission was established to investigate and establish the facts and the circumstances surrounding alleged violations and abuses of international human rights committed during Ethiopia’s war on Tigray, which began on November 4, 2020.
On September 14, 2023, ICHREE submitted its second report that details the atrocities committed in Ethiopia and called for further investigation. ICHREE also reiterated its call for unrestricted access to regions where grave atrocities persist. Ethiopia’s failure to credibly investigate violations of international human rights and humanitarian law leads ICHREE to recommend ongoing international scrutiny and investigations into past and ongoing violations. It has asserted the long-held view that Ethiopia’s journey toward a future of lasting peace hinges on the establishment of political and legal accountability. Without accountability, the recurrence of such heinous acts remains a tangible threat. For this, it is vital to establish the truth for the reason, and given the distrust and limitations of national institutions, only an impartial international entity, such as ICHREE, can provide an objective evaluation and help accomplish this.
Nonetheless, despite its essential work so far and the fact that atrocities continue to be committed and the Ethiopian government is unwilling to ensure genuine transitional justice process and accountability, ICHREE now faces an uncertain future as the HRC debates its renewal. The hopes and demands of millions of victims and their families for truth and justice hang in the balance. Extending ICHREE’s mandate is crucial. Any decision to the contrary will go against the core principles of the HRC upon which it is founded.
Based on their voting behavior of 2021 and 2022, except for Malawi, which has abstained, most of the 13 African members, 6 of the 8 Latin American and Caribbean members, majority of 13 Asia-Pacific States will probably vote against the renewal of the extension. Recent reports show that the US has indicated its readiness to support a bid by the Ethiopian government to end the ICHREE, and 7 Western and 6 Eastern European States may follow suit.
While national interest and geopolitical consideration might explain this change in US and EU policy to ending the ICHREE mandate, they also argue that the anticipated national transitional justice process set out in the Pretoria peace deal makes ICHREE redundant.
ICHREE has also confirmed a long-held view that the government of Ethiopia “has failed to effectively investigate violations and has initiated a flawed transitional justice consultation process. Ethiopia has sought to evade international scrutiny through the creation of domestic mechanisms ostensibly to fight impunity.” ICHREE reports that the complete lack of trust in Ethiopian state institutions to conduct a credible transitional justice process is a recurring theme among the population. The government’s consultation process has fallen short of African Union and international standards, inadequately reflecting victims’ voices and being constrained by arbitrary deadlines. Impunity remains the norm, exacerbating the risk of future atrocity crimes. This challenging situation is compounded by the weakness of state structures responsible for providing protection, including ineffective national laws and a lack of independence in key institutions such as the judiciary and law enforcement. Widespread mistrust in state institutions and domestic accountability mechanisms, exacerbated by the politicization of the transitional justice process, has further eroded public confidence.
The horrific toll of the Tigray war
According to the 2022 Uppsala Conflict Data Program (UCDP) of Uppsala University, the Tigray war marked 2022 as the deadliest year since the Rwandan genocide in 1994, contributing significantly to a 97% global surge in organized violence. This war was waged by the Ethiopian government, significantly assisted by external forces, primarily the Eritrean Defence Forces.
Waged by the Ethiopian government, with substantial assistance from external entities, chiefly the Eritrean Defence Forces, a comprehensive blockade and media blackout were imposed on the region for over two years. The Tigray conflict led to a staggering 600 000 deaths, the deliberate starvation of over 5.7 million people, the pervasive use of rape and sexual assaults on thousands as weapons of war, and the displacement of more than 2 million in an ethnic cleansing campaign.
ICHREE confirmed that between November 2020 and July 2023, over “10,000 survivors, primarily women and girls. By comparison, the Commission is aware of only 13 concluded and 16 pending Ethiopian military court cases addressing sexual violence committed during the conflict. Such cases cannot be said to render meaningful justice for survivors, particularly considering the historical and contemporaneous impunity in Ethiopia for such acts.”
Additionally, the report confirmed the siege on Tigray, destruction of livelihoods, and denial of humanitarian access to Tigray, emphasizing that these actions violate the prohibition on starvation as a method of warfare. ICHREE confirmed civilian deaths directly linked to the manufactured humanitarian crisis leading up to the CoHA.
Both ICHREE and US Secretary of State Antony Blinken have confirmed that these forces were guilty of ethnic cleansing, as well as crimes against humanity and war crimes. Despite the US Secretary of State’s recent decision to exclude the designation of genocide, reports by Foreign Policy suggest that US government experts concluded that, in addition to other crimes, acts of genocide had, in fact, been perpetrated against the Tigray people: “The State Department drafted a declaration in 2021 that the Ethiopian government’s actions in Tigray constituted genocide, according to three US officials familiar with the matter, but never released the declaration.” ICHREE also revealed that the Ethiopian army and its allies frequently used sexual violence against Tigrayan women and girls, at times with the intent to render them infertile and therefore annihilate the Tigrayan ethnicity. At a September meeting of the UN Human Rights Council, representatives of the commission concluded: “the horrific and dehumanising acts of violence committed during the conflict…seem to go beyond mere intent to kill and, instead, reflect a desire to destroy.”
The latest US position appears influenced more by geo-political considerations than by any change in the policies of the Eritrean, Amhara, and Ethiopian forces. Despite its deadly nature and the resulting war crimes, crimes against humanity, and acts of genocide, the Tigray war remains underreported. Compared to the conflict in Ukraine, the Tigray war has received minimal attention and resources, presumably owing to its diminished significance in the geo-political considerations of powerful nations.
The decision of the ongoing HRC will act as a barometer in measuring the world’s commitment to human rights in the Global South. If the HRC and its members genuinely condemn these atrocities, they need to demonstrate their commitment to accountability by extending ICHREE’s mandate.
Transition on paper, war in reality
On 2 November 2022, in Pretoria, South Africa, the government of the Federal Democratic Republic of Ethiopia and the Tigray People’s Liberation Front signed a Permanent Cessation of Hostilities agreement, hoping to conclude the two years of conflict. However, since then, calls for justice and accountability have largely gone unanswered. The peace agreement’s accountability clauses remain vague, and there seems to be an overwhelming lack of political motivation to address them.
Independent international investigations into these atrocities have encountered deliberate obstacles. ICHREE has faced continual resistance from the Ethiopian government and its allies in the HRC since its inception. In an alarming development for international human rights organizations, a parallel inquiry by the African Commission on Human and Peoples’ Rights was silenced and subsequently terminated by the African Union (AU). Both had been established to probe Ethiopia’s war on Tigray, aiming to unearth the causes of the conflict and hold offenders accountable. The AU’s decision undermines the African Charter on Human and Peoples’ Rights, setting a perilous precedent for future inquiries into human rights abuses. Moreover, reports of confidential negotiations between global powers and the Ethiopian government cloud the future of ICHREE. ICHREE continues to call for Ethiopia to cooperate “with ICHREE and other international and regional human rights mechanisms, including granting them unconditional access to all areas of Ethiopia.”
Arguments against these international investigative commissions often emphasize national sovereignty, the Pretoria peace accord, and Ethiopia’s commitment to transitional justice. Article 10 of the Pretoria agreement underlines the importance of a robust national transitional justice policy. While certain countries – China, Russia, and some other HRC members, including those from Africa — view such an investigative mechanism as an infringement on sovereignty, the US and EU support ending the ICHREE mandate based on the anticipated national transitional justice procedures set out in the Pretoria accord.
Recently, the Ethiopian government introduced its transitional justice policy, titled ‘Policy Options for Transitional Justice in Ethiopia’ (TJP). Nevertheless, this policy is mired in controversy, primarily since the Tigray region—one of the significant parties to the Pretoria Agreement—has rejected it. The central contention is the glaring absence of significant consultation with victims, directly affected communities, crucial stakeholders, and representatives of conflict hotspots, predominantly the Tigrayans, during the TJP’s formulation. This lack of inclusivity challenges the policy’s legitimacy, as it appears indifferent to the distinct needs, rights, and interests of these communities.
Furthermore, the TJP’s overarching approach to all Ethiopian conflicts, regardless of their causes, dynamics, and consequences on communities, fails to recognize the particularities of each conflict. Its handling of the Tigray war is a case in point, where long-standing political campaigns, antagonism towards Tigrayans, military collaborations, and egregious tactics like media blackouts, forced starvation, and mass rapes were commonplace.
Additionally, the TJP does not adequately address the broader geopolitical scenario under which these atrocities occured. Critics underscore the policy’s narrow scope, exclusion of victims, impediments to reconciliation, and a worrying trend of state-sanctioned impunity. The TJP’s inclination towards “national sovereignty” at the expense of its “responsibility to protect” its citizens raises significant concerns. It emphasizes reconciliation over holding wrongdoers accountable, potentially sidestepping international probes, especially from ICHREE.
Furthermore, the ICHREE considers Ethiopia’s support and full cooperation with an international investigation mechanism as one of the fundamental indicators of a government’s sincerity in pursuing a transitional justice process meeting international standards. This, as part of establishing the facts surrounding the war, is one of the primary and foundational actions for genuine transitional justice. Therefore, ICHREE recommends that, given Ethiopia’s failure to credibly investigate violations of international human rights and humanitarian law, the Human Rights Council should support ongoing international scrutiny and investigations into past and ongoing violations.
Ethiopia’s deepening poly-crisis
Ethiopia is trapped in a swiftly deteriorating, multi-dimensional predicament. ICHREE highlights a shift toward securitization in Ethiopia, with civilian administration being replaced by militarized “Command Posts.” State–society relationships continue to crumble, culminating in amplified armed conflicts, atrocities, and breakdown of governance. Due to multiple intertwined factors, the armed unrest in Ethiopia shows no signs of subsiding soon. The main reasons for this include widespread dissatisfaction with the Pretoria agreement, an escalating horizontal power struggle, and a collapsing economy. However, the persistent violence and political upheaval in Ethiopia suggest neither a peaceful transition nor a transitional political arrangement. Conflict and atrocities endure in the Tigray, Amhara, Oromia, Gambella, and Benishangul Gumuz regions. War and atrocities continue in various Ethiopian regions. The ICHREE report confirms the continuation of war and atrocities in various Ethiopian regions, including the Wollega zones, Guji, Borana, and parts of West Shewa. It also notes that certain Amhara groups, such as Fano, enjoy considerable local support, similar to that of TDF and OLA.
The prevailing conditions in Ethiopia are not conducive for an earnest transitional justice initiative. With conflicts continuing in numerous regions, the nation seems to be diverging further from peace. The Ethiopian justice framework is viewed as biased, deficient in its capacity, and lacking the determination to hold entities accountable, particularly for transgressions committed by the Eritrean government. It also neglects the vast magnitude of human rights breaches and the ongoing mass atrocities, even after the Pretoria accord’s signing.
ICHREE confirms the occurrence of grave and systematic violations of international law and crimes in Tigray, and the Amhara, Afar, and Oromia regions. These violations encompass mass killings, sexual violence, starvation, forced displacement, and arbitrary detention. This failure primarily stems from the Ethiopian Federal Government’s inability to fulfill commitments related to human rights, transitional justice, and territorial integrity. ICHREE emphasizes that the African Union and states supporting the CoHA (Ceasefire and Humanitarian Agreement) use their best efforts to ensure that the CoHA parties fulfill their obligations, particularly regarding accountability, the protection of civilians, humanitarian assistance, internally displaced persons, and transitional justice. The conflict in Tigray persists, with ongoing atrocities occurring, including those committed by the Ethiopian Defense Forces (EDF) and Amhara militia. Hostilities have escalated to a national scale, posing significant risks to the state, regional stability, and human rights in East Africa.
Furthermore, despite the Pretoria deal’s role in ending active combat, it has failed to deliver on its promises. This failure primarily stems from the Ethiopian Federal Government’s inability to fulfill commitments related to human rights, transitional justice, and territorial integrity. ICHREE pronounces that the African Union Monitoring, Verification, and Compliance Mission (AU-MVCM), and UN OCHA have been undermined by Eritrean government forces operating in Ethiopian territory. With regard to the AU and UN, ICHREE calls on the AU to make their best efforts to ensure that the Pretoria deal is implemented.
Considering Ethiopia’s current tumultuous state, characterized by continued hostilities and a lack of meaningful progress on the Pretoria Deal’s foundational pledges, one questions the nation’s readiness for a genuine transitional justice mechanism. This skepticism is exacerbated by recurring state-led offenses and unrest in areas like Amhara, Oromia, and Gambella. Fundamental questions that emerge in this context are:
- Is Ethiopia earnestly moving towards peace or an inclusive democratic system?
- Can Ethiopia’s current socio-political and economic environment support a genuine transitional justice initiative?
- Is there a discernible commitment towards transitional justice in Ethiopia?
- Does this commitment spring from a genuine intent, or is it merely a smokescreen to conceal impunity?
Transitional justice without transition to peace or transitional politics
Tigray, as represented by the Interim Administration established in accordance with the Pretoria Agreement, has rejected the transitional process and draft policy as is. In essence, in the face of Tigray’s rejection, Ethiopia does not have an active transitional justice policy. The power imbalances in Ethiopia’s transitional justice policy often benefit the stronger party – in this case, the Ethiopian government. The Ethiopian government’s upper hand over Tigray imperils transitional justice, yet again underscoring the need for international oversight and support. However, the national initiatives seem to lack the necessary independence and capability, especially in terms of holding all perpetrators, including Eritrean forces, accountable. National endeavors to unearth this truth are frequently swayed by prevailing power dynamics, underscoring the critical need for an unbiased entity like ICHREE.
The Ethiopian stance on transitional justice shows a lack of resolute intent. The Ethiopian legal infrastructure does not explicitly categorize crimes against humanity, leading to challenges in prosecuting those accountable. The inclusion of foreign entities, chiefly the Eritrean forces, further muddies the legal waters. In this regard, the pressing worry is the TJP’s potential ineffectiveness in averting future atrocity crimes.
Ethiopia’s journey towards a future of lasting peace hinges on the post-war establishment of political and legal accountability. Without accountability, the recurrence of such heinous acts remains a tangible threat. For this, two key steps are essential: First, it is necessary to establish the truth. Ethiopians must agree that truth is the foundation for progress beyond the war and towards lasting peace. Otherwise, the truth remains contested and weaponized for power, resources, and identity politics. Facts surrounding the recent wars, severe and widespread human rights violations, and other significant events must be ascertained, or the “truth” will continue to be manipulated. Second, given the evident distrust and limitations of national institutions, only an impartial international entity, such as ICHREE, can provide an objective evaluation.
Truth and Truth as the bedrock
Truth is the linchpin for reconciliation, accountability, and sustainable peace. For transitional justice to gain a foothold in Ethiopia, establishing the truth about the wars is paramount. Without the truth, the transitional justice process, in its existing design, might perpetuate denial and grant impunity rather than champion justice, increasing the likelihood of its rejection by victims and the wider Ethiopian populace. The current TJP, which seems hasty, warrants a revisit based on independently ascertained facts.
ICHREE’s indispensable role
The conflict in various parts of the country should culminate in a comprehensive peace process addressing the root causes. With UN mandate, independence, capacity, and experience, the ICHREE is uniquely equipped to impartially establish the comprehensive truth, given local constraints and the distrust of national institutions and challenges in their independence. Its impartial inquiry, including investigations into Eritrean government actions, stands a better chance of laying the groundwork for a victim-centric transitional justice process. No alternatives have the same credibility, capability, and impartiality required to establish these facts authoritatively. Terminating ICHREE’s mandate not only contravenes the HRC’s cardinal mission of upholding human rights but also risks perpetuating a relentless cycle of violence and transgressions in Ethiopia.
Given the ongoing wars and atrocities in Ethiopia, and considering the findings in the ICHREE report, now is the moment to reinforce ICHREE, not terminate it.
Climate Change and the Injustice of Environmental Globalism
Beneath the veneer of empty platitudes about acknowledging Africa’s role in conserving biodiversity and mitigating climate change, the Africa Climate Summit was mere geopolitics at play, with the West attempting to reinstate the hegemony it used to exercise over the continent.
According to the Cambridge dictionary, globalism is “the idea that events in one country cannot be separated from those in another and that economic and foreign policy should be planned in an international way”. At first glance, this appears to be a rather benign concept that can even be seen as beneficial when applied to commerce, or in the context of universal human needs like water, human rights and health. However, when it is applied in the context of natural resource management and conservation, it is a delusion that takes on a malevolent quality, threatening sovereignty, resource rights, climate resilience and even the health of hundreds of millions of people around the world.
By and large, globalisation has been a positive human development, but it has spawned a cruel child that follows the same economic strata in the pursuit of power, fuelled by the climate crisis and perceptions thereof. It is instructive to note that the stratification occasioned by environmental globalism places the Global South firmly on the bottom rung. This is the core injustice, because nations of the Global South are custodians of over 75 per cent of the world’s biodiversity and produce less than 50 per cent of total global emissions.
The most powerful and destructive quality of environmental globalism is its capacity to confer acceptability, normality, or even invisibility to the most egregious violations of human rights and sovereignty. This delusion played out blatantly at the Africa Climate Summit 2023 held in Nairobi from 4 to 6 September 2023. The summit was touted as a meeting where “the world” (read: the Western capitalist world) would acknowledge (and somehow reward) Africa’s role in conserving biodiversity and mitigating climate change.
The situation on the ground, however, was very different, because the discussions centred around “carbon markets” and other amorphous financial instruments. These were accompanied by the usual platitudes and lip service to the injustices and suffering in Africa caused by climate change for which the continent only has five per cent responsibility, based on their proportion of global emissions. Like clockwork, the African leaders present came out, cup in hand, pleading for a share of this amorphous thing referred to as “climate financing”, forgetting that these wealthy nations have only made good on 12 per cent of the climate financing commitments made in Paris a decade earlier.
So what was the purpose of this meeting, given that there was so much repetition of what had already been promised earlier and remains unfulfilled? Everything was rehashed, including the typically shrill crisis speeches from the UN Secretary-General, Antonio Gutierrez. An examination of the background information on this meeting reveals that it was more of an “assignment” given to Kenya by the Swedish government, which also financed the meeting. The brief to the Kenyan government was simple: herd, or otherwise coerce, as many African governments into a common position in support of the West’s position in preparation for COP 28, the 28th United Nations Climate Change Conference – or Conference of the Parties of the UNFCCC – to be held in Dubai from 30 November to 12 December 2023.
A key part of that “common position” has been the repeated absolution of the West from blame for the irreparable harm done to the global environment since the Industrial Revolution. It is a position that was repeated throughout the summit, in the media communiqués, television adverts, and in the final declaration. As an African society that aspires to justice, however, it is incumbent upon us (and the wider global community) to recognise that this is a position that has no moral, scientific, or logical standing. Even more perplexing is the fact that the countries seeking to absolve the West from responsibility for the environmental crisis are the same ones expecting various forms of reparations from them for the same environmental impacts; just one example of the cognitive dissonance that is typical of the conservation discourse.
All isn’t lost, though. If one looks past the propaganda being put out by the BBC and other Western media outlets about the climate summit, it is obvious that the loud references to “Africa” in the communiqués and headlines are greatly exaggerated. Kenya’s President William Ruto, the summit host, read out the “Nairobi Declaration” at the end of the summit, outlining several demands and proposals on behalf of “Africa”, despite the fact that, of the 54 countries that make up the continent, only 14 heads of state were in attendance. It was a sad day for Kenya when we bought into, and became purveyors, of the intellectual contempt that is so typical of Western attitudes towards Africa. It is the idea of “Africa the village” where countries, communities and individuals are assumed not to have individual needs, aspirations or ideas.
This continent is a land mass of over 30 million square kilometres, stretching from the temperate Mediterranean zone in the north, across the tropics to the temperate cape, south of the Tropic of Capricorn. A continent of 1.3 billion people. Why would African countries have a common position on environmental issues at COP28 (or on anything else, for that matter)? Surely, the environmental conservation priorities of Algeria in the Sahara Desert cannot be the same as the priorities of the Democratic Republic of Congo covered in tropical rain forest, and home to the world’s third-largest river by volume. Most of the countries that skipped the summit didn’t bother explaining why, but Nigeria, Uganda and South Africa made their positions known. According to a Kenyan diplomat, Nigeria didn’t want to come and be “a bystander at the summit while being lectured by the worst emitters” (of greenhouse gases). Ugandan President Yoweri Museveni refused to attend because of (US climate envoy) John Kerry’s involvement in addressing Africans yet he was a citizen of the “world’s biggest polluter”. South Africa didn’t come because they are currently facing an electricity power crisis and they are being pressured to give up coal, one of their most important energy sources. So what, pray, was the purpose of this strange function in Nairobi?
It was a sad day for Kenya when we bought into, and became purveyors, of the intellectual contempt that is so typical of Western attitudes towards Africa.
This meeting, the platitudes, the posturing, the electric vehicles and propaganda had very little to do with the environment. It was simply global geopolitics. Very few people would fail to notice the massive global power shift to the East over the last two-three years in terms of commerce, innovation, industry, and other fields. Western power in the 19th and 20th centuries was built and maintained on the back of the military industrial complex, but this primitive, blunt tool can no longer ensure dominance in a complex, informed world. “Concern for the environment” is the only remaining tool that the West has at its disposal to try and achieve anything approaching the hegemony it used to exercise over the Global South, particularly Africa.
The duplicity of creating and pushing “carbon markets” while continuing unabated with their industries and emissions has a two-fold benefit for the Global North, if it succeeds. Firstly, they can slow down development and maintain dependency in the South by curtailing the use of natural resources and using these countries as “carbon sinks” for Northern excesses. Secondly, they can conjure up a position of leadership based on non-existent environmental stewardship, in spite of their being the world’s top emitters and consumers. This “leadership” is exercised on global platforms, particularly the UN, which has fully adopted the crisis narrative.
This country has a less than stellar record of environmental leadership: failing to enforce our most basic laws, the wanton destruction of tree cover, the dumping of toxic waste, and cities choking in refuse and sewerage. The choice of Kenya certainly couldn’t have been based on our credentials as a nation, so why was the Africa Climate Summit held here? The choice was more likely based on Kenya’s characteristically blank policy slate onto which foreign interests can be stencilled as and when needed. Where the chosen tool is conservation, Kenya provides the best “entry point” into Africa because of our inability to separate conservation from foreign tourism, and our official obsession with the latter.
The duplicity of creating and pushing “carbon markets” while continuing unabated with their industries and emissions has a two-fold benefit for the Global North, if it succeeds.
As early as 1972, the Guyanese scholar and Pan-African thinker Walter Rodney said that international imperialism was turning Kenya, Uganda and Tanzania into “wildlife republics” where “every effort was made to attract tourists to look at the animals, and the animals assumed priorities higher than human beings…” He went on to refer to tourism as one of the new areas of “expansion of the imperialist economy” and a new way of confirming the dependence and subjugation of Third World economies. Tanzania and Uganda developed their own political and cultural identities over the decades, but Kenya excelled in the role of “client state”, making us the preferred choice for Western projects.
What, then, did we gain from the so-called African Climate Summit? Environmentally, nothing at all, but we learned that our continent is the custodian of the resources on which the world’s future depends. Hopefully, we also learned that Africa’s future belongs to the nations that are committed to their own people’s needs and aspirations.
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