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Supreme Court Ruling on 2022 Kenyan Presidential Poll Challenge

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The Court set out neutral and objective framework principles to guide its adjudication of the case, reasoned closely and narrowly within those principles, and set out its chain of reasoning in a judgment on record.

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Supreme Court Ruling on 2022 Kenyan Presidential Poll Challenge
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To a comparative constitutional lawyer, Article 140 of the Kenyan Constitution is an interesting provision: it sets out, in some detail, the legal route by which a dispute around a presidential election is to be resolved. Read with Article 163(3)(a), it clothes the Supreme Court of Kenya with the exclusive prerogative – as well as the duty – to hear and decide a challenge to a presidential election, within fourteen days. Article 140’s mandatory and time-bound language precludes the Supreme Court from taking two paths, which judiciaries often take, to avoid entanglement in politics: declining jurisdiction to hear a dispute, or simply putting off a decision until the case becomes infructuous. Rather, Article 140 envisages that the Supreme Court will be the first – and final – arbiter of the most contentious of all political disputes.

This puts the Supreme Court in something of a bind. A large part of judicial legitimacy flows from a Court’s ability to stay out of political disputes, or to carefully negotiate political terrain when such questions are thrown up before it. The histories of independent judiciaries around the world have shown us that if a Court deals politicians too many setbacks, a backlash will not be far behind.

This bind is worsened by two things. The first is that complicated electronic technology has become integral to modern-day elections, and disputes around elections will therefore require the Court to assess competing claims around technology, presented by duelling sets of experts. This is a fraught exercise at the best of times, and becomes particularly fraught when a presidential election turns on the outcome. The second – and related – point is that many of the issues that arise in a presidential dispute will necessarily involve high degrees of judicial subjectivity. It is a truism that there is no such thing as a “perfect election”. In any election held at scale, there will be machine errors and human errors – somewhere, somebody will make a mistake, a computer will break down, a rule will be misunderstood or wrongly applied. There is no bright line for determining the point at which these atomised errors coalesce into something that undermines the integrity of an election. It is a matter of judgment, and like all matters of judgment, subject to attack.

To negotiate this bind, a court that is given the kind of task that the Supreme Court of Kenya has been given under Article 140, can do the following things: (a) articulate a set of objective and neutral standards concerning questions of evidence, and the threshold required to invalidate the results of an election; (b) hew closely to the submissions and evidence provided by the parties to the dispute; and (c) set out detailed and transparent reasoning for its decision, so that the losing party has the right to feel aggrieved, but does not feel cheated.

The unanimous judgment of the seven judges of the Supreme Court of Kenya in Odinga and 16 Others vs Ruto and 10 others – the challenge to the 2022 Kenyan Presidential elections, and the certification of William Ruto as the president-elect – reveals both the bind, and the Court’s attempt to negotiate it through the principles set out above. Faced with a series of allegations about the conduct of the 2022 presidential elections – ranging from hacking to physical manipulation of forms, and from voter suppression to technological breakdown – the Court framed its response along two lines: a standard of evidence and a standard of invalidity. With respect to the first, the Court held that allegations of impropriety would have to meet an “intermediate standard” of “clear and cogent evidence” – that is, something between the civil law standard of “balance of probabilities” and the criminal law standard of “beyond reasonable doubt” (the exception to this was when allegations of a criminal nature – such as fraud – were made in the course of the election petition).

With respect to the second, the Court held that where the standard had been met, the next question was: did the improprieties reach a level where they materially impacted the outcome of the election? To an extent, this is a counterfactual question that is difficult to answer with certainty, especially in close elections; what would have happened if the improprieties had not taken place? But it is also an essential question; if an election were to be set aside on the basis of any impropriety, then we would be having election re-runs until the end of time. The standard of invalidity is, to an extent, a compromise, but a necessary one.

With this framework in mind, the Supreme Court’s analysis can be divided into two buckets. In the first bucket were allegations (such as fraud, switching of Forms 34A, and so on) that the Court found were not proven to the required standard. Importantly, in making this assessment, the Court primarily relied upon the competing affidavits of the parties (including upon internal contradictions within some of the affidavits). This is the second principle outlined above: as the Court stressed, in adjudicating the case, it could not travel beyond the quality of evidence provided to it by the respective parties. In the second bucket were allegations (such as printing errors and failure of voting kits) where the Court found that there had been lapses, but that it could not be shown that these lapses had materially altered the outcome of the election.

Perhaps the most significant part of the judgment, however, is the third principle. During the course of the hearings, the Court ordered a scrutiny of the IEBC’s servers – under the supervision of the Court’s registrar – in order to cross-check the veracity of some of the allegations. The results of the scrutiny report are discussed extensively in the judgment, with a candour that is not often found in the adjudication of such disputes elsewhere in the world. Indeed, on most of the issues that it framed, the Court set out its reasoning process – including mathematical calculations in some detail and with great transparency – allowing, in turn, for the foundations of its judgment to be scrutinised by the public.

It is trite to say that one may disagree – on substance – with the Court’s analysis on each of the three steps outlined above. Indeed, this writer believes – for example – that the Court’s holding that spoilt ballots be not counted in the determination of whether the winner of the election has crossed 50 per cent is open to critique. After all, why shouldn’t an individual be entitled to spoil their ballot and have their vote counted accordingly? Such disagreements are in the nature of things; the crucial point, however, is that the Court’s overall analytical framework – that is, the standard of evidence and the standard of invalidity – and the three-step analysis outlined above, is undoubtedly sound, and one of the only routes open to a Court to adjudicate high-stakes political disputes without being dragged down into the mire of political partisanship.

The results of the scrutiny report are discussed extensively in the judgment, with a candour that is not often found in the adjudication of such disputes elsewhere in the world.

It is in this context that the statement of Azimio that the Supreme Court presents a “threat to democracy” is a matter of some concern. As mentioned in the beginning of this article, around the world, clashes between the judiciary and politicians are not uncommon, especially when it comes to high-stakes elections. However, many of those clashes have occurred in contexts of judicial overreach, or where the Court instals a politician or validates an election in highly opaque or secretive proceedings. In the opinion of this writer, two things set apart the Kenyan case: the first is that the Constitution explicitly envisages the Supreme Court as the body that will resolve this dispute, and for good historical reasons (indeed, as the 2017 elections showed, the Supreme Court is capable of – and has – set aside an election in the past). And the second – and more important – thing is that, when you consider the judgment in Odinga and 16 others vs Ruto and 10 others from the perspective of global best practices in adjudication, it stands up to searching scrutiny. The Court set out neutral and objective framework principles to guide its adjudication of the case, reasoned closely and narrowly within those principles, and set out its chain of reasoning in a judgment on record. The Court’s judgment may attract criticism (even stringent criticism), and that is in the nature of things, but – respectfully – it does not warrant an attack. It is important to remember that the dispute resolution process under Article 140 requires an independent and strong Court that can act to invalidate a flawed presidential election (as it did in 2017). If that is gone, then it is an open question how future disputes can ever be resolved without serious problems.

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

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Will Ruto Resist the Temptation to Marginalize Civil Society?

William Ruto’s administration has an opportunity to distinguish itself from its predecessor as a defender of civil society’s independent role.  

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Will Ruto Resist the Temptation to Marginalize Civil Society?
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When scholars speak of “civil society”, they usually mean all organized groupings of people that are neither part of government nor part of business. Sometimes media groups are also included. Using this definition, Kenya’s civil society sector is rich and diverse. It ranges from neighbourhood chamas, to churches and mosques, to international NGOs with billion-shilling budgets. Yet it is the highly focused governance and democracy-promoting civil society organizations (CSOs) that usually have the most prominent voices in Kenya. Around the world, the 1990s heralded an “opening” of space for such organizations, but that space eventually began to close. Kenya is no exception to this experience.

There has also grown some confusion in the country about the role that civil society ought to play. In the 1990s, CSOs were perceived by wananchi as primarily interested in fairness, accountability, and human rights—not political power—as they pushed to make Kenya a democracy. But as the new millennium has unfolded, prominent CSO leaders have increasingly been seen as “taking sides” in the political arena, whether in supporting the International Criminal Court indictments and the challenge to the 2022 presidential results, or in themselves running for political office. Although most NGOs and community-based organizations remain apolitical, these changes can make CSOs in general appear to be less united with wananchi as a whole. And this leaves CSOs in a more precarious position.

With the new William Ruto administration, the country now sits at a possible inflection point. Will Ruto follow in the footsteps of his immediate predecessor, Uhuru Kenyatta, in threatening to close the space for CSOs, or might he take an approach similar to Mwai Kibaki, under whose leadership vocal Kenyan civil society largely thrived?

As a candidate, Ruto ran as a proponent of accountability. If he wishes to continue in the same vein as president, he will facilitate Kenyan civil society and free media. Doing so will not only help to guarantee his legacy among Kenyans, it will also help to retain Nairobi as a regional leader and an employment hub for the large Eastern Africa and Horn development sector. And it could bring more politicians with a CSO background to his side.

Here, we present a brief history of the space allowed for civil society over the past sixty-plus years and under the three previous administrations, followed by a discussion of possible trajectories for Ruto and their potential outcomes.

Kenya’s rich history of civil society since before independence

Kenya has had a reputation for being home to a strong civil society sector—arguably the strongest in East Africa. This reputation stems from the long-standing culture of harambee, which encourages people to work together to better the community. The sector has also grown in part out of the country’s religious communities. But it has also grown from the decolonization movements that included educational institutions, trade unions, and ethnic associations, among others fighting for self-rule.

Kenya’s CSOs are diverse, yet they all share at least one thing in common: the space in which they can operate is determined by government regulation—and sometimes by a government’s whims. During colonial times, space was exceedingly limited. The colonial government restricted education and assembly in order to maintain its illegitimate power. During the Jomo Kenyatta administration, local community based organizations and harambee groups were granted more space, but also something of a responsibility to provide self-help solutions.

Closed space: repression and resilience under Moi

For more than two decades, civil society was tightly controlled by the Daniel arap Moi administration. After the 1982 coup attempt, Moi learned to carefully monitor society for potential sources of alternative power, including from nongovernmental organizations and the media.

Given flat economic growth and increasing calls for economic liberalization and budget downsizing from powerful Western donors, however, Moi also recognized the benefits of some types of civil society actors. He recognized that they could provide social services like healthcare, education, and sanitation services where the state could not.

Moi skilfully developed regulations that allowed such apolitical service-provision organizations to offer needed services, while maintaining the ability to take credit for their work. At the same time, the creation of the governmental NGO Board in 1989 gave his administration an organizational authority to shut down or intimidate democracy, human rights, and governance organizations that he perceived as threatening him politically, while the NGO Act, passed in 1990, provided the legal justification. Media was similarly repressed while harambee organizations, meant to be an avenue for self-help, became politicized tools for support and mobilization.

Moi skilfully developed regulations that allowed such apolitical service-provision organizations to offer needed services, while maintaining the ability to take credit for their work.

Yet individual proponents of opening up the civic space, like Wangari Maathai, Oginga Odinga, and Kenneth Matiba, could not be fully deterred. Under Moi, they were largely based in professional organizations like the Law Society of Kenya, religious ones, like the National Council of Churches of Kenya, national movements like Greenbelt, or banned political parties like FORD. From these havens, they pushed for political opening and democracy for Kenyans.

And, importantly, they attracted popular support from wananchi wanting to live without fear of government. Activists and Kenyans together sought basic political and civic rights.

Opening space: CSOs in the Kibaki administration

When Mwai Kibaki came to power in 2002, he brought with him many allies from civil society. Kibaki’s regime not only hired many CSO leaders like Maina Kiai, Willy Mutunga, Kivutha Kibwana, and John Githongo into government, but also deliberately worked more openly with those who stayed in the third sector. Many thought Kibaki’s technocratic background allowed him to adopt a hands-off approach.

These strong relationships soured somewhat when Githongo was run out of the country in 2005. And tensions grew after the 2008 post-election violence, when some governance, human rights, and media leaders were harassed or restricted, and even murdered.

Yet Kibaki signed the Public Benefit Organization (PBO) Act of 2013 into law before leaving office. The progressive law, which aims to ensure transparency and accountability for organizations in Kenya, has been lauded by civil society advocates, but is yet to be operationalized nearly a decade later.

Further, beyond civil society leaders moving into administrative offices, during Kibaki’s time some civil society leaders began to seek their own political ambitions as well. New research shows that NGO work can act as a pipeline to politics for potential candidates by placing them in politics-adjacent roles and providing them with deep community connections and relevant expertise. Civic activism can align well with opposition politics. This trend of CSO activists making the leap into politics could erode a focus on human rights and the collective good. In seeking political advancement—especially in a country where MPs are among the highest paid in the world—former activists-turned-politicians may muddy the waters of civil society, blurring the line between governance and accountability.

Contracting space: Uhuru warns CSOs

The start of the Uhuru Kenyatta administration in March 2013 was in many ways overshadowed by the indictment in the preceding months of both Uhuru and his deputy, Ruto, at the International Criminal Court on charges of crimes against humanity in relation to the violence that followed the 2007 elections. Although service-providing civil society organizations were largely unaffected, and most NGOs stayed out of the conversation, many prominent governance and human rights organization leaders supported the ICC investigations. They petitioned for the courts to bar Uhuru and Ruto’s candidacy on account of the indictments and demanded that the trials move forward even after the two were in office. They focused on the worrying “culture of impunity” in the wake of the 2008 post-election violence.

This trend of CSO activists making the leap into politics could erode a focus on human rights and the collective good.

This had caused tension even before the 2013 election. Uhuru’s rhetoric troubled many CSOs as he supported calls for limits on foreign funding of NGOs. Public support for restrictions on NGO funding rose in some quarters as Uhuru supporters suggested that civil society had evolved into an “evil society.”

In the coming years, the space grew more hostile. Uhuru made sharp statements threatening to defund NGOs and restrict foreign worker permits. His administration also stridently refused to implement the PBO Act of 2013, even when ordered to do so by the High Court.

The administration was even willing to use the NGO Board, which the PBO Act abolishes, for political purposes. It sent harassing letters from the Board in an attempt to silence human rights and governance NGOs that had spoken out against Chris Msando’s brutal murder in the lead-up to the 2017 election.

These challenges were compounded by the government’s support of a controversial media bill which would have forced journalists to reveal their sources and, unsurprisingly, drew immediate protests. These efforts to restrict free expression led to reports that Kenya was experiencing significant free speech backsliding,

Yet these setbacks for civil society occurred as Kenyan legal institutions grew stronger. The courts’ empowerment culminated in the Supreme Court’s historic ruling on the 2017 election, annulling Uhuru’s win and requiring that the election be rerun. This dramatic democratic showing buoyed the CSO sector, reassuring governance groups that they were not operating alone, but rather had powerful allies on the march toward a stronger democracy. In so doing, however, did these prominent governance organizations increasingly politicize themselves?

New space: greater autonomy and accountability on the horizon?

The future prospects for Kenyan civil society now depend a great deal on how Ruto decides to lead. We see a unique opportunity for this new administration to distinguish itself from its predecessor as a defender of civil society’s independent role. In so doing, he may thwart further politicization of the sector.

Will President Ruto follow Candidate Ruto’s roadmap? While campaigning, Ruto worked hard to separate himself from prior administrations. He presented himself as an “outsider” candidate, immune to dynasty politics. His opposition to the Building Bridges Initiative suggested wariness of the strongman politics of years past and signalled an openness to robust government accountability, a point he has made at home and abroad.

Candidate Ruto appeared to extend a hand to civil society groups, in contrast to Uhuru’s contentious engagement with the sector. He promised that they would be free to operate without government interference. He explicitly invited them to hold the Kenya Kwanza government to account, referring to the sector as a key accountability mechanism, essential for good governance.

Yet during the same period, Candidate Ruto’s team was accused of media harassment that threatened progress toward a more robust democratic space for all. Prominent CSOs called for an opening of civic space with an eleven-point list of demands. They noted that Civicus, a global alliance of civil society organizations, had rated Kenyan civil society as “obstructed” while Ruto was deputy president.

The future prospects for Kenyan civil society now depend a great deal on how Ruto decides to lead.

It remains unclear what hand Ruto may have had in marginalizing civil society during the Kenyatta administration. And he may still harbour a grudge against CSOs for their support of the ICC trials. Regardless, the relationship between his administration and CSOs is off to a rocky start, as it is well known that prominent civil society groups strongly supported Ruto’s opponent, Raila Odinga, in the August general election. After the election, leading civil society activist (and The Elephant founder) John Githongo, claimed to have evidence that the IEBC could have been hacked easily. Githongo’s affidavit, which the court ruled could amount to perjury, was a prominent part of the larger, unsuccessful, effort to overturn Ruto’s win.

Moreover, compared to past periods, activists such as Githongo and Boniface Mwangi have been more open about their partisan leanings, which may make it easier for citizens to discount their calls for reform. Even former Chief Justice Willy Mutunga has advocated that civil society actors form a political party, a move which would further muddy the waters. Through these explicitly political dabblings, and by betting on Odinga in the August poll, the civil society sector may have inadvertently undermined its future relationship with the Ruto government.

Nevertheless, as president, Ruto can choose whether to see civil society as a continued opponent or not. At least publicly, he has not moved to restrict the sector in retaliation, and has called for civil society and media to work hand in hand with government to amplify the voices of Africa globally with regard to climate change. Yet after more than two months of the Kenya Kwanza government, it is not clear that the administration is going to heed its own calls.

If the new administration can put aside its election-related differences with prominent civil society actors and submit to accountability meted out by CSOs, Ruto will find an undeniably effective way to prove the anti-dynasty politics for which he campaigned. This may prove fruitful if he plans to seek re-election in 2027. It could also endear him to Western allies, who have historically encouraged democracy.

Activists such as John Githongo and Boniface Mwangi have been more open about their partisan leanings, which may make it easier for citizens to discount their calls for reform.

Indeed, abstaining from undermining civil society freedoms while also choosing to embrace criticism from CSOs could distinguish Ruto’s leadership internationally. The West is facing challenges with declining democratic credibility both at home and abroad. The US and UK spoke out in support of the ICC cases, yet took a “business as usual” approach to relations with the Uhuru/Ruto administration. Western leaders also praised the 2017 elections before they were annulled by the Kenyan Supreme Court. If Ruto shuns the temptation to ignore the warnings of civil society, his administration could be a model on the international stage that would needle at older democracies that may be leaning away from accountability.

On an even more practical note, re-opening space for civil society could help Ruto fulfil his vow to reinvigorate the Kenyan economy. The international humanitarian and development sector comprises a nontrivial part of the economy. There are not only UN agencies based in Nairobi, but also around 12,000 active NGOs countrywide, who employ an estimated quarter of a million people. The sector brought in KSh185 billion in donations in the 2019/2020 financial year.

Abstaining from undermining civil society freedoms while also choosing to embrace criticism from CSOs could distinguish Ruto’s leadership internationally.

Research shows that development sector organizations like international NGOs tend to locate in democratic countries more than in authoritarian ones. Thus a welcoming environment for civil society could help to retain Nairobi as a leader and an employment hub of the large Eastern Africa and Horn development sector.

Ruto must decide which legacy to leave for the history books. Ultimately, his administration, like those of his predecessors, may find itself unable to resist the temptation to frustrate and marginalize civil society actors who opposed his presidency. If that happens, we expect the sector to grow ever more nimble, adapting to restricted space just as it has in the past.

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Philosophy for the People

For philosophy to be relevant in Africa, it must democratize and address contemporary social problems.

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Philosophy for the People
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In late September 2022, a consortium of universities hosted by the Universite’ Catholique d’Afrique Centrale in Yaounde, Cameroon held an “Ethicslab” to deliberate on the theme, “Justice, Democracy and Diversity.” The meeting brought together doctoral candidates in philosophy from Cameroon, Canada, Nigeria, Chad, and the Democratic Republic of Congo to be mentored by experts. Some of those experts included Dany Rondeau (Canada), Geert Demuijnck (France, based in the Netherlands), and Bernard Gagnon (Canada).

The driving force behind the event was Thierry Ngosso, a young Cameroonian philosopher based  at the University of St Gallen, Switzerland. Ngosso’s dream has been to deliver important philosophical lessons in a readily digestible way to younger African scholars while at the same time aiming for social transformation.

The study of philosophy in the continent is marked by all-too-familiar colonial linguistic and political divisions: the anglophone sector fastened to the thought of figures such as John Rawls and analytic philosophy, while francophone countries usually follow the dictates of continental philosophy. Ngosso thinks it is time to collapse these age-old colonial divisions. Also, philosophy seems removed from pressing issues, such as poverty. It can certainly be successfully re-energized by interrogating topics such as ethics and health, ethics and education, ethics and business, politics, the environment, and so on to broaden and deepen linkages between the discipline and urgent contemporary issues.

Nonetheless, philosophy has always been valued in Cameroon’s education system. As early as high school, students are introduced to the discipline. At postgraduate levels, there are various social media forums where students debate philosophical concerns of mutual interest. These debates are usually vibrant and engrossing.

Since its inception in 2019, the Ethicslab has been inviting two or three keynote speakers from disciplines such as sociology, political science and history to brainstorm about the intellectual concerns it seeks to tackle. The Ethicslab is concerned with issues of normativity and social change. Such an approach obviously grants philosophy an urgency, purpose and social transformational energy.

The Ethicslab is an intellectual experiment to identify the future stars of theoretical thought on the continent. During the 2022 edition of the event, quite a few promising upcoming scholars further etched their names;  Benjamin Olujohungbe (Nigeria), Charles Dine (Cameroon/Canada), Hammadou Yaya (Cameroon),  Opeyemi Gbadegesin (Nigeria), Elisanne Pellerin (Canada), Tatiana Nganti (Cameroon), Henri Gbadi Finimonga (DRC), Kakmeni Schaller (Cameroon), Eric Vernuy Suyru (Cameroon) and Ndedi Emma Maximine Ndjandjo (Cameroon). All these individuals are not only being trained in the rigors of theoretical reflection but also in the ethics of mutuality and reciprocity. Although they come from varied national, linguistic, and institutional backgrounds, the objective is to establish commonalities based on universally accepted cultural and human values.

Ultimately, Ngosso is interested in effecting meaningful social change in African communities through the study and use of philosophy. He plans to find funding for about ten doctoral students and thirty postdoctoral scholars in the discipline within the next five years. He also intends to shift the nodes of perception regarding the African continent from an ostensibly external locus to largely endogenous sources. To realize these grand aims, Ngosso has had to battle with numerous bureaucratic obstacles. The quest to change societies from within also entails transforming the traditional character and functions of academic institutions and establishments. This is no small task. What Ngosso has been able to do is wrest a degree of flexibility in how he operates within and amongst institutions. He is currently employed by the University of Maroua, Cameroon, holds an ongoing research fellowship at the University of St. Gallen, where he is based, and is a research associate of Universite’ Catholique d’Afrique Centrale. Within an African context, and perhaps any other setting in the world, such institutional flexibility and mobility are rare. But this is precisely the sort of liberty Ngosso requires in accomplishing his stated mission of social change.

Perhaps as part of ongoing efforts to demystify the study of philosophy, Ngosso arranged a trip to Kribi for all the participants of the 2022 Ethicslab. Kribi, a coastal town, is a perfect spot to unwind. Its coast is replete with tourist attractions such as the magisterial Lobe Falls, a pristine array of waterfalls nestled within Kribi beach. The Atlantic ocean is always enticingly open for a swim after intense brainstorming or away from the diurnal pressures of everyday life. There are also amazing seaside resorts and restaurants and the most delightful varieties of seafood to savor.

In 2024, Ngosso plans a grand event to mark the fifth anniversary of the Ethicslab. In this, he will have accomplished the entrenchment of modern philosophy in Africa, concomitant globalization of its multicultural potentials and tentacles, and finally, a re-configuration of the discipline for the myriad demands and expectations of the 21st century.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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War of the Worlds: Africa’s Next Great War

The international community’s limited attention span is laser-focused on jihadism in the Sahel and the imploding Horn of Africa. But interstate war is potentially brewing in the eastern DRC.

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It’s happening again. A Rwandan-backed rebel force threatens the Congolese provincial capital of Goma while foreign intervention is cobbled together to bail out the struggling Congolese army. Unlike the last two or three times this happened, the conflict faces the prospect of horrific escalation into interstate war. Rwandan and Kenyan troops are racing headfirst into a confrontation. As Kenya airlifts troops into the east under the flag of the East Africa Community (EAC), the Rwandan soldiers embedded within the M23 rebellion show no signs of backing down. These two African states, each claiming to have the most professional force in the region, will soon trade blows.

Nearly thirty years of complex, multilayered, and tragic war in the Great Lakes have led to this latest escalation. The eastern DRC never recovered from the deadly inferno that was “Africa’s great war,” a bitter conflict that drew in nine countries and killed as many as five million. While peace was declared in 2003, the embers of war continued to burn in the eastern DRC, where the war had injected violence into local politics. Local violence continues to blend with national- and regional-level politics. Rwanda, which has complex and often competitive relationships with Uganda and Burundi, has a history of repeatedly creating and supporting rebellions in Congo. While this current M23 rebellion has many Congolese members with genuine grievances, the force is historically constructed and supported by the Rwandan state. While it is unclear what exactly motivated this offensive, some point to Rwandan concerns over the growing influence of rival Uganda in the DRC. The relationship between Uganda and Rwanda is not straightforward, and there are reports that Ugandan elements have supported M23. The regional tensions at play here are unclear, as the Ugandan and Congolese states are not unitary actors. According to leaked UN reports, Rwanda is directly assisting this latest iteration of M23 with infantry, artillery, and logistics. It has easily beat back the Congolese regulars and their militia allies and downed UN and Congolese military aircraft.

In response to the escalation, the regional EAC has announced the deployment of a military force at the invitation of the DRC, its newest member. Kenya seems to have been the power player behind this intervention and has begun deploying its forces into the fight. The international community has slowly lost interest in the region, writing off the turbulence in the Great Lakes as an endemic low-intensity conflict, ignoring the possibility of an explosion. Some in Kenya, the regional economic powerhouse, dream of an East African unified market where a pacified region ensures that Kenyan goods are supplied to Congolese consumers. Rwanda believes that it can only be secure if it has influence in Eastern Congo, where various rebel forces opposing the Rwandan regime have sheltered. When that influence wanes, Rwanda backs a rebellion to ensure that its influence continues.

Whether you believe that Rwandan meddling and Kenyan-backed EAC intervention are valid responses to the insecurity on their western flanks, the current escalatory track is dangerous. No one is backing down until blood is spilled. Both sides seem to underestimate the other’s will and ability.

The new kid on the block, Congolese President Felix Tshisekedi, demands a military solution and proclaims negotiations a failure. He is inviting foreign armies across the region into the country to bring him the peace he needs to salvage his falling popularity. All the while, the badly needed security sector reform remains stalled by the great Congolese patronage machine. Under the EAC regional force’s flag, Ugandan and Burundian forces are now in the DRC to pursue their own enemies on Congolese soil, raising the possibility of inciting countermobilization. The eastern Congolese conflict ecosystem often reacts to foreign bodies with a violent immune response that would further inflame the conflict.

The limited attention span that the international community reserves for Africa is laser-focused on jihadism in the Sahel and the imploding Horn of Africa. Former US National Security Council Africa lead Cameron Hudson pronounced on Twitter and to The Telegraph that the war in Tigray was “the new great war for Africa.” Unfortunately, the ashes of the last great war are being stoked yet again. Few players in the international game seem to realize the stakes.

The US did send its top diplomat, Secretary of State Antony Blinken, to talk to both the Congolese and Rwandans. Blinken’s public statements were ripe with both-sidesisms and seemed to accept Rwandan behavior as a response to Congolese support to the genocidal Rwandan FDLR rebel group—a problematic assumption. The Congolese political elite, when being generous, complain that the US position is muddled and confused. This reasonable view is much less popular than theories that accuse the Americans of actively backing Rwandan president Kagame’s plots. Unfortunately, these conspiracy theories are grounded in real historical US blindness to—and occasional support for—destructive Rwandan interventionism in the late 1990s.

The apathetic international response to the crisis stands in marked contrast to the global response to the previous M23 rebellion nearly ten years ago, when the US publicly pressured Rwanda to withdraw support for the group. In 2013, a combination of the Southern African Development Community’s intervention under the UN flag, the rise of a capable Congolese army colonel, and US pressure led to successful negotiations with Rwanda and the defeat of M23. This time, attempts by the EAC to bring a diplomatic solution have failed thus far, and it seems that military pressure is the only effective tool the community can bring to bear.

This conflict is not doomed to descend into a larger interstate war, but the region as a whole will have to grapple with the consequences if it does. The international community must bring more diplomatic levers to bear, and the EAC must question the sweeping mandate of their current intervention. Regardless, the war is on an escalatory path, and the Congolese of North Kivu will suffer first as foreign forces battle over their home yet again.

Evan Nachtrieb graduated with an honors bachelor’s degree in political studies from Pitzer College last May, where he wrote his thesis on protest and insurgency trends south of the Sahara. He is currently in California.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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