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At Supreme Court, Kenya Is Also on Trial

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To have honest elections, its not just the electoral machinery but Kenya itself which will have to change.

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At Supreme Court, Kenya Is Also on Trial
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Soon after the Independent Elections and Boundaries Commission (IEBC) declared Uhuru Kenyatta the winner of the presidential election on 8 April 2013, I was startled to see a call coming in from Gen. Michael Gichangi, the head of Kenya’s National Intelligence Service. I was in New York, having hurriedly left the country a month before the election because of death threats designed to keep me out of the campaign. Gichangi had been my nemesis during the 2007 election crisis, but once the Kibaki-Odinga Grand Coalition government was formed, we would occasionally have candid chats.

Anyway, Gen. Gichangi wanted to know how Raila would respond to the IEBC verdict. I assured him that Raila would do nothing which might lead to public protests. Oh, so he will accept the election result? Gichangi asked. I said no, he will not, he will appeal the verdict in the Supreme Court. There was silence for a moment before he said, “Even if going to the court could lead to protests and unrest? Are you sure you want that again?”

I was stunned. Raila was being asked by one of the most powerful officials in Kenya to forego his right to challenge the presidential election outcome in our Supreme Court that was newly created with the express mandate of determining presidential election disputes. That was done in part to provide breathing room and hope for redress for the losing candidate’s supporters while the three-week period that the court has to deliver judgement would diminish tensions. Indeed our universally hailed 2010 Constitution that created the court owed its promulgation to the violence that erupted immediately after the results of the bitterly disputed 2007 election were announced.

Gen. Gichangi’s suggestion that Raila desist from petitioning the Supreme Court was for me yet another indication of how far we as a country had fallen despite the new constitution, with the state openly flaunting its power by trying to prevent an electoral challenge.

Fast forward to a decade later—to 15 August 2022, when IEBC chairman Wafula Chebukati declared William Ruto the election winner and president-elect. Within a few hours I was doing a very interesting BBC interview until I was blown away by the presenter’s last question:  Was it right for Odinga to challenge and therefore delay the final election result when Kenya was facing profound economic problems that needed urgent attention?

The question was startling, bizarre in fact, because it came not from a state operative but from the democratic world’s best known broadcaster that constantly pushes for greater democracy and for electoral integrity. Would the BBC discourage a lawful challenge by a losing candidate in a Western nation?

It was not lost on me that the British High Commissioner to Kenya, Jane Marriott, was perceived as being partial to Ruto, a claim she publicly rebutted after he was declared president-elect.

Interestingly, the United States has also been seen as being partial in this election. The US embassy twice put out an election-related travel advisory urging Americans to move about with caution. The first advisory, issued on 3 August, was criticized by Kisumu officials for mentioning only their city, the capital of Raila’s region, as being specifically dangerous. The implication was that Raila was expected to lose the election and that violence by his supporters might break out.

On Friday 2 September, a second US advisory went farther and imposed restrictions of movement on US government personnel in Kisumu ahead of Monday’s Supreme Court decision.  

Separately, a US delegation led by Senator Chris Coons came to Nairobi and held talks with president-elect Ruto on security and anti-terror issues, even though it was known that Raila was to petition the Supreme Court and could potentially become president. Such signals from major powers at critical moments have significant impact as they can be read to indicate political preferences.

To come back to Gen. Gichangi’s 2013 suggestion, it seemed much more acceptable than the interventions of the UK and the US. Kenya’s intelligence and security services are the prime protectors of both national security and the continued rule of our entrenched political and economic establishment. This “establishment” has had an unbroken hold on our country for almost 60 years, ruling by hook or by crook—and through regularly rigged elections.

So it is no surprise that every single one of the four elections that followed our first—and only—fair election in 2002 has been deeply tainted by the actions of the electoral commission and other powerful actors. Such unlawful interference seems to have reached a new peak during the current election, judging by the submissions from Raila and other petitioners.

What has made the difference in the significantly increased revelations of illicit actions is that Raila, the long-time insurgent outsider, had joined forces with President Uhuru Kenyatta. Once seen as a poster child of extreme wealth and leader of the Kikuyu elite, Uhuru has adopted a reformist stance and was committed to neutralizing Kenya’s powerful election subverters (the “deep state”). He has also been preaching a strong multi-ethnic message of inclusion and, at political risk to himself, has repeatedly declared that presidents cannot continue to emanate from only two communities (his own and Ruto’s) for nearly 60 years, while at the same time expecting all Kenyans to feel that they are part of one nation.

So for the first time, the police service uncovered a number of rigging schemes, the most visible being their arrest of the three Venezuelan citizens who were in possession of IEBC election materials that they should not have been in possession of. Chairman Chebukati claimed that he had hired the three as IT specialists but could produce no evidence of such hiring. The police service also produced its own detailed forensic audit of the election tally that has helped identify problematic counts.

At the Supreme Court hearing of the petition, what stood out was Chief Justice Martha Koome’s skilful handling of the complex proceedings, comfortably asserting her authority and mastery of the law, as well as her decisive rulings. She also demonstrated collegiality and respect for the autonomy of the other Justices. I recall the difficulties she faced from what was a moderate vetting group who thought she rooted too much for women! How her mastery has grown—and now both top posts at the judiciary are held by women! This is among the many remarkable achievements Kenyans have been recognized for globally.

Raila had a strong petition, presented by his team of eminent and highly experienced lawyers who have long supported his democratic politics. Other petitioners’ lawyers added significant value to the case as well.

We have no idea if the Supreme Court will find the numerous allegedly unlawful actions to have decisively refuted Chebukati’s declaration of Ruto as president-elect. But the verdict that will be delivered on Monday will have a high degree of credibility. There is intense anticipation and excitement over the possibility that the Supreme Court ruling will be historic. We will know Monday.

The Supreme Court verdict does not, of course, automatically put an end to legal wrangles. In 2017, Raila’s petition led to the election being annulled by the court for “irregularities and illegalities”. It was a stunning verdict, the first ever in Africa. A re-run was ordered—but it was to be conducted by the same electoral commission that had committed the irregularities and illegalities!

Raila refused to run, and Uhuru Kenyatta and his deputy William Ruto were re-elected. The famed “Handshake” between Raila and the president took place the following year, in 2018, designed to overcome decades of political turbulence with a much more inclusive and collaborative model to unite the country. The last four years have seen a significant easing of historical political tensions, but there have been quite a few hitches too.

There is intense anticipation and excitement over the possibility that the Supreme Court will uphold Raila’s petition, which would be a huge boost for democracy and electoral participation.

So, if the justices accept the petitions, how will they propose to move forward? Clearly, Chebukati and his team cannot be entrusted with any responsibilities. Moreover, there is the question whether the 60-day constitutional limit within which the next election must take place can be amended through special constitutional measures.

Time has been a huge constraint in every petition. In 2013, a substantial chunk of Raila’s petition was disallowed by Willy Mutunga’s court for having been filed late. In many countries, there is a much longer lag between the election and assumption of office. In the US, it is over 75 days. In some countries it is four months. It is time to review the Supreme Court’s intense electoral experience over its decade-plus existence to see what lessons have been learned.

The rigging of four elections in a row is a shameful stain not just on the electoral machinery and the election officials but also for our nation and its many institutions. With election after election providing evidence of irregularities and illegalities at a minimum, faith in our democracy has been slowly dying. As observed, the turnout on 9 August was dramatically down, to about 65 per cent. It was 85 percent in 2013. 

It is extremely ironic that the only fair presidential election ever held in independent Kenya took place in 2002 under the highly anti-democratic autocrat, President Daniel arap Moi. He had served his second and final term under the constitution but his anointed successor, Uhuru Kenyatta, lost to an unprecedented cross-national opposition— the National Rainbow Coalition (NARC) led jointly by Mwai Kibaki and Raila Odinga.

(There is a widely mistaken notion that the 1963 election was the first fair election held in independent Kenya; it was held in May of that year under colonial rule).

Electoral misdeeds are an extension of the rampant, massive corruption and theft that is literally killing Kenyans as the wealth of the country is siphoned off by the growing number of shilling billionaires. This is nothing less than the taking of food from the mouths of babes by those who have already made fortunes but show no sign of being sated!

With election after election rigged, faith in democracy was dying in Kenya. The turnout on 9 August was dramatically down, to 65 per cent at most, compared to 85 per cent in 2013.

This is grand corruption at its worst, very deeply entrenched and seemingly uncontrollable. Ironically, it is that vast pot of corruption gold that makes Kenya’s winner-take-all results of presidential and other polls so very desirable for those seeking riches and power. For some, even assassinations are part of their toolkit for success.

In the 2017 election, Chris Msando, the IEBC’s chief ICT officer responsible for ensuring the integrity of the election, was murdered just before the election. An incorruptible civil servant, he had assured Kenyans in a television interview that only he had the necessary electronic passwords and that the election would be fairly tallied. Photographs of his mutilated body were published, sending a clear message to those who might want to be brave.

Roselyn Akombe, an IEBC commissioner who was on sabbatical from the United Nations, resigned soon after and fled the country during the rerun of the presidential poll. Akombe had received many death threats and, alluding to Msando, said “You’d be suicidal to think that nothing will happen to you.”

In the current election, the Returning Officer for Nairobi’s Embakasi East Constituency, Daniel Musyoka, was whisked away after he briefly stepped out of his office; his body was found 150 miles away. The media has hardly probed into this awful killing by those who want to sway elections without having worked hard to win votes. If we did not enjoy close ties with the West, we would be pariah nation.

Assassinations of election officials occur because that tool has been used as a matter of course since right after independence. Elections are in fact a microcosm of all the horrors that afflict our nation. Kenya has had more political murders of potential future leaders—including renowned ones who were not part of the inner sanctum of power—than any other democratic country in the world. Fortunately there have been none in the last few years.

Kenya’s elections per capita are just about the most expensive in the world, costing a remarkable one third of a billion dollars each time. The electoral commission basically gets what it wants as Kenyans are willing to pay whatever it takes to have a secure, honest election. What they invariably get is the opposite.

The electoral commission engaged in rigging the last four elections. But the current one became much harder to pull off when Raila, the long-time insurgent, joined forces with President Uhuru Kenyatta.

From 2007 onwards, Raila Odinga has been the petitioner in all the four deeply tainted elections. He is indisputably the only presidential aspirant who has fought for real, pro-people change in the last 25 years, having earlier made major sacrifices including nine years as a political prisoner. But he rarely, if ever, speaks about any of the profound traumas that have been visited upon him and his family.

Like some credible independent analysts, I am convinced that Raila won the 2007, 2013 and 2017 elections. But not only has he kept going without a hint of bitterness, he has remained a larger-than-life figure, returning again and again to fight for a better Kenya.

And yet Raila is routinely referred to as the candidate who never accepts defeat. He has lost narrowly in the last four elections, and with regards to 2007 and 2017 (when the election results were annulled by the Supreme Court), there is consensus that he did not lose those elections. Did he lose the August 9 2022 polls? We will know Monday.

Because he is the only presidential candidate who fights for pro-people change and is immensely popular because of it, Raila is naturally the target of all the other major candidates, none of whom have reformist credentials. He is also the target of some foreign countries too.

The most vivid example of international anti-Raila animus came after the 2017 election, when former Secretary of State John Kerry, the senior-most US observer in Kenya representing the Carter Center, noted “Election day voting and counting processes had functioned smoothly with only isolated instances of procedural irregularities [which] did not appear to affect the integrity of those processes.” To make sure that his message was clear, Kerry publicly asked the “losing” candidate, Raila Odinga, to “move on”.

As we know, the Supreme Court annulled that election. Kerry was forced to publish an op-ed in the New York Times to camouflage his blunder. This episode again confirmed that foreign observers have no clue about whether an election has been free and fair. They mainly go by how voting day went, which in Kenya is invariably peacefully. But a peaceful election does not a fair election make. Africa needs to review the observer system from the ground up; and certainly, observers should specifically indicate what particular elements they looked at in their assessment.

The international media’s perception of Raila fails to reflect his commitment to reforms and change. To give a more current example than the interview mentioned above, a recent BBC article explored whether “results sheets were altered as Odinga claims?” “We’ve compared images of the original results sheets from these polling stations with those registered on the electoral commission website” it wrote. “In every case the results from the polling stations matched the official tallies published by the electoral commission.”

To have honest elections, it is not just the electoral machinery but Kenya itself that will have to change.

Given the BBC’s reputation and reach, people around the world will take this to mean that charges of fraud by the Raila team do not have a lot of credibility. But Prof. Walter Mebane, a renowned election expert at the University of Michigan, extensively studied this election’s results and found significant fraud, indicating however that the polling stations the BBC studied had revealed very low or no fraud.

The New York Times also shows a strong anti-Raila bias. Right after William Ruto was declared president-elect last month, the paper published a lengthy article portraying Raila as a leader who had lost even his hold on his ethnic base, quoting five of Raila’s kinsmen and Nic Cheeseman, a British scholar, to back its claims. The authors seemingly could not find a single voice with a differing perspective of Raila!

In a second article, the New York Times went harder at Raila. Prof Cheeseman now equated him to Donald Trump after the latter lost the 2020 election: “Misinformation, one side making wild accusations to excuse defeat, and a significant number of people who believe their candidate didn’t lose — it’s very Trumpian,” he said.

The article, titled In Kenyan Elections, the People Decide First. Then Come the Judges, asserted that “his legal team appear to have taken a kitchen sink approach, making a wide range of charges that, analysts say, range from the plausible to the outlandish.”  The article goes on to mention “vicious personal attacks directed at the same electoral commission chairman who only recently was being praised for a polling process seen by many as a model for Africa, and beyond.”

I would like to mention that I have never heard anyone describe Chebukati in terms remotely approaching such hagiography. In 2017, it was he and his commission who were blamed by the Supreme Court for the “irregularities and illegalities” that led to the election’s annulment.

I think most readers will get the idea of what the New York Times thinks of Raila’s election petition. This is a man who at a minimum came close to winning the last four presidential elections. You would never realize that from reading any of these articles.

To avoid any misunderstanding, I should mention that I am not remotely implying that Raila cannot be criticized or his political weaknesses pointed out. I am a media person myself and I criticize people regularly. But unless I am writing about a recognized pariah, I avoid demonization and try to find a bit of balance.

We look forward to Monday’s decision by the Supreme Court on the petition filed by Raila. Whatever the decision, one can say that an awful lot of electoral re-thinking is urgently needed.

I can also say we will never have free and fair elections as long as corruption is not curbed, and addressing the extreme inequality and mass deprivation that are now part of Kenyan life becomes the nation’s most urgent priority.

A President Raila Amolo Odinga is what we need to get this clean-up process started. I very much hope the Supreme Court upholds his petition.

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Salim Lone is a Kenyan journalist who was Prime Minister Raila Odinga's Spokesman, and before that was a Director Communications under Kofi Annan at the United Nations, where he worked for two decades until retiring in 2003.

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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.

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Are These the Dying Days of La Françafrique?
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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.

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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.

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Tigray: Call It Genocide, Prosecute Its Leaders and End It
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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.

Geo-political manoeuvres

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.

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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.

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COP 27: Climate Negotiations Repeatedly Flounder
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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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