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I ACCUSE THE PRESS: Why the Kenyan media must ‘get with the programme’

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Drowning fourth estate

Charles Onyango-Obbo is an astute media practitioner with loads of experience. For many years, he has been writing three weekly columns, one in Kenya’s Daily Nation, another one in Uganda’s Daily Monitor, and one in the regional newspaper The East African.

Onyango-Obbo has also held various editorial management positions at both the Nation and the Monitor. So when he writes, especially on issues to do with the media, he writes from a position of authority. His piece, on the move by the Kenyan government to move all their advertising to a single portal managed by Government Advertising Agency (GAA) – in effect denying the media revenue from government advertisements – is hugely instructive. Onyango-Obbo believes that the media should stop wringing their hands and crying red murder, and instead use this as an opportunity for growth and innovation.

However, Mutuma Mathiu, a top editor at the Nation Media Group, took a moral stance against the move by the Kenyan government, equating it to publishing in the Soviet era publication Pravda.

One thing both pieces missed was how the media found itself in the present predicament in the first place.

Binge growth and failure of imagination 

Until recently, the four biggest media houses in Kenya – the Nation Media Group (NMG), the Standard Group Limited, Royal Media Services, and the Radio Africa Group – witnessed exponential growth, which blinded them to the shifting media reality of technological growth and demography.

Further, the media also failed in its role in holding the authorities to account. As a result, the media has been stuck in a time warp, which has inevitably led to a sense of misplaced entitlement, and also their alienation from the citizens.

In the early 1990s, the Standard newspaper, the oldest newspaper in the country, saw the future in broadcast, and so acquired the Kenya Television Network (KTN), the first non-pay, privately owned TV-station in Africa. The newspaper’s close alliance with the state, especially during the Daniel arap Moi era, ensured steady government advertising revenue. (President Moi owned shares in the Standard Group.)

KTN, which was initially a bold step forward, got locked into an imaginary internecine cat-and-mouse fight with the Nation Media Group’s NTV station over who had the best programing, which resulted in the poaching of individual journalists and producers – a carryover of print turf wars into broadcast. This allowed Royal Media’s Citizen TV to beat them both. KTN has since been playing catch-up with Citizen TV.

As a result, and also considering they had good programming, KTN became a runaway success. However, this masked the lack of creativity at the Standard newspaper. Therefore, the Standard continuously lagged behind the Nation, the region’s largest media enterprise, in revenue and growth.

Further, KTN, which was initially a bold step forward, got locked into an imaginary internecine cat-and-mouse fight with the Nation Media Group’s NTV station over who had the best programing, which resulted in the poaching of individual journalists and producers – a carryover of print turf wars into broadcast. This allowed Royal Media’s Citizen TV to beat them both. KTN has since been playing catch-up with Citizen TV.

Application of the wrong models

While the Nation newspaper overtook the Standard in terms of market leadership and growth, the Nation’s broadcasting division struggled from the outset. Its original sin was convergence, and the application of the print model to broadcast.

Nation assumed their print model could be transferred to the broadcast medium; so confident were they in their model that they initially gave air slots to their senior print journalists.

Just as the Standard hid under KTN’s success to cover up their deficiency in print, the Nation also hid under print’s success, and ignored the broadcast division’s inadequacies, including its staid programming.

Last year, the Nation Media Group’s management finally pulled the plug, and opted for an all-digital broadcast unit. Too little, too late.

If they were guilty of applying the newspaper model to broadcast, Patrick Quarcoo, Radio Africa’s proprietor, was similarly guilty of applying the radio model to the Star newspaper, which has largely been a failure. The Star has been bleeding dry radio revenue.

Had Quarcoo stayed in radio, where both Kiss TV and Classic FM have been incredibly successful, he would have been crowned the “King of Radio”. With all the new county/community radio stations coming up, he would also be controlling a substantive radio advertising market.

If the Nation Media Group and Radio Africa applied the wrong model for the right medium, S.K. Macharia, the owner of Royal Media, after the initial mistake of trying his hand in print, decided to stick with what he knows best – broadcast. The result has been phenomenal growth of both his radio and TV stable.

Demography and technology are destiny  

The median age in Kenya is 19 years and 80% of the country’s population is below the age of 35. Mobile phone penetration in Kenya was 88% in 2016. Facebook has approximately 5 million (and growing) active users in Kenya, while Twitter had slightly over 1.5 million. These few statistics are incredibly sobering for the media of the future.

As a means of engaging younger audiences, all the big four media houses have news apps. However, none are regularly updated, have good user experience, or have locally customised stories. Instead, they tend to carry old and international stories rather than national/local ones. Most of the people in the age-bracket to whom the apps would have appealed already get their international stories online, especially on social media platforms, since most of them are glocal and worldly.

The median age in Kenya is 19 years and 80% of the country’s population is below the age of 35. Mobile phone penetration in Kenya was 88% in 2016. Facebook has approximately 5 million (and growing) active users in Kenya, while Twitter had slightly over 1.5 million. These few statistics are incredibly sobering for the media of the future.

The failure to creatively engage younger audiences has left the media with a huge revenue loss, for which media managers have no answer. This has revealed the media’s incapacity to serve the changing tastes and media usage of the younger generation.

Younger audiences are not the only segment neglected by the media; women have also been ignored. On any day, most of the panelists on radio and TV are likely to be men. The only time women are included is when the panel discusses the role of women. A survey of newspaper columns in the main newspapers also reveals that the number of female columnists is disproportionately lower than that of men. This tokenism, despite the presence of qualified women in various fields, has seen many make a conscious effort to ignore the media.

The struggle against technological disruption is not limited to the Kenyan media. The New York Times, in its first report on how to be innovative in the face of breathless disruption of traditional media, which was released in 2014, stated: “Our core mission remains producing the world’s best journalism. But with the endless upheaval in technology, reader habits and the entire business model, The Times needs to pursue smart new strategies for growing our audience”.

In a subsequent report, the Times observed: “In the third quarter of 2016, our digital subscriptions grew at the fastest pace since the launch of the pay model in 2011 — and growth then exceeded that pace during the fourth quarter, in a post-election surge. We now have more than 1.5 million digital-only subscriptions, up from one million a year ago and from zero only six years ago. We also have more than one million print subscriptions, and our readers are receiving a product better than it has ever been, with rich new standalone sections.”

One would be hard-pressed to read any account of Kenya’s media in being forthright about their reflection on the state of the media.

Multimedia deep-dive storytelling

One way of addressing the deep apathy among the youth towards the media is through multi-media storytelling. The UK’s Guardian newspaper and the Economist, both well respected publications, offer a best practice in new ways of telling stories. The Guardian is a centre-left publication while the Economist espouses economic liberalism that includes free trade, globalisation, and freedom of movement. Yet both publications, despite suffering the natural readership decline of hardcopy, have a solid online and subscription base. They have blazed the trail of innovation, especially on digital platforms. The Guardian provides a raft of products: the Long Read that is also produced as a podcast; and multi-media productions, including short documentaries and videos. All these products are available on the website, but also on the app.

Similarly, the Economist has an army of digital, graphic and data visualizations, especially for their long reads. It also has a slew of podcasts on technology, business, finance, etc. Unlike the Guardian, the Economist has limited the number of articles that one can access for free per week; if one wants more, one needs to subscribe.

Nothing illustrates the death of serious journalism than Jeff Koinange. His show on KTN, Jeff Koinange Live, was a circus. His clowning on national TV with a fire extinguisher was a sad example of how low a once renowned journalist – who had even been a correspondent for CNN and who many looked up to as a role model – could sink. The line between serious TV journalism and fantasy became hard to discern.

In Kenya, so far, only the Daily Nation engages in data journalism through its Newsplex. This long form immersive journalism rather than the he-said-she-said variety is the future of journalism. This form moves away from the traditional “5Ws and H” to the “so what?” that is central to fulfilling audience’s needs.

Dereliction of duty

The Kenyan media played a sometimes not fully acknowledged critical role in the expansion of democratic space in Kenya in the late 1980s and early 1990s during Moi’s repressive era. The media, against multiple odds, continuously exposed human rights violations and the massive corruption of the Moi administration. By setting the agenda for an open, pluralistic and transparent administration, as opposed to the centralised version Moi advocated for, the media reflected the aspirations of many Kenyans.

For this, the Kenyan media paid a steep price. Nothing exemplifies this more than the People Daily, against whom the recently deceased once powerful minister, Nicholas Biwott, won multi-million-shilling libel cases. The People Daily never recovered financially from those dubiously awarded costs.

After Moi’s Kanu party was defeated in the 2002 elections, the media was keen to quickly cash in on the role they had played in expanding the democratic space. But because they were not keen to kill the goose that lays the golden egg – the advertiser, which included the government – they lost sight of their principal role. The broadcast media, especially, moved away from hiring serious journalists and instead put on air men and women, some with fake accents, who behaved more like actors or comedians, rather than journalists, to increase ratings.

Nothing illustrates the death of serious journalism than Jeff Koinange. His show on KTN, Jeff Koinange Live, was a circus. His clowning on national TV with a fire extinguisher was a sad example of how low a once renowned journalist – who had even been a correspondent for CNN and who many looked up to as a role model – could sink. The line between serious TV journalism and fantasy became hard to discern. When Jeff was off the air, the air waves were filled with third-rate Mexican soap operas.

Morning radio shows are a mixture of soft porn, where even the former Harambee Star Coach, Jacob “Ghost” Mulei, has a morning show with others where he has turned into a marriage counsellor of sorts. Mid-morning radio shows are pretty much driven by the Top 100 music formatting.

In Kenya today it is not uncommon to hear someone, even a trained journalist, remark nonchalantly, “You know, I don’t read the newspapers.” For some, it is even considered a badge of honour to say, “I don’t watch TV.” While these sentiments are anecdotal, they speak volumes about a larger problem.

This inevitably has led to many having little regard for the media. In Kenya today it is not uncommon to hear someone, even a trained journalist, remark nonchalantly, “You know, I don’t read the newspapers.” For some, it is even considered a badge of honour to say, “I don’t watch TV”. While these sentiments are anecdotal, they speak volumes about a larger problem. There was a time when watching the 7 p.m. and 9 p.m. news was a must in many households. Even if your family did not have a TV set, you would head to the neighbour’s house to catch the news. Buying a newspaper was seen as a status symbol and a sign that one follows current affairs. That golden age of the media is gone.

Newspapers are for wrapping meat

In December 2013, President Uhuru Kenyatta said newspapers were only good for wrapping meat because they publish false news. Some journalists took umbrage at this statement, but few, if any, cared. It was a kind of poetic justice and a commentary on the state of journalism and media in Kenya. The media’s standing has plummeted thus far to the point that a president can nonchalantly dismiss the media without attendant costs. For the media, the lack of distinct response from the public regarding the president’s statement should be instructive. Once the mainstream media relinquished its critical agenda-setting credentials, they stopped speaking for Wanjiku.

On 17 July this year, Kenyans expected to watch televised presidential running mate debates. But the politicians from the major political parties did not show up, except Eliud Muthiora Kariara, a former banker-turned-running mate and independent presidential candidate Japhet Kavinga Kaluyu. If the media had any doubt about their status with politicians, this episode served up another reminder that, in an election year, politicians can ignore the media, and expect to bear no costs politically.

Instead of seeing the failure to show up as politicians’ abdication of their duty, all the media could see was the money they lost in preparation for the debates. It was bizarre watching visibly irritated media talking heads expressing anger at losing the money they would have made, since that was not the primary reason for the debates in the first place.

This gap has been filled by individual bloggers, like Owaahh, whose treatment of the Imperial Bank explosion was incredible, way better than any business pages, and the disparate collection of individual citizen “journalists” called Kenyans on Twitter (#KOT). This irreverent group of individuals have sometimes broken stories and pushed agendas mainstream media are either afraid of or not interested in pursuing. One such story is the maize scandal, which the mainstream media was slow to warm up to. #KOT “sleuths” asked the hard questions regarding the origin of the maize after searching the ship’s online manifest, something the mainstream could have done.

With the explosion of Fake News, which is mostly generated and transmitted through social media, a robust and credible mainstream media has never been more needed.

While individual bloggers and conscious citizens on social media platforms have done an admirable job, they cannot be a substitute for a functioning mainstream media. With the explosion of Fake News, which is mostly generated and transmitted through social media, a robust and credible mainstream media has never been more needed. During the political party’s primaries, photoshopped newspapers claiming that Dr. Paul Otuoma had left the ODM party to join Jubilee started circulating in Busia town. These stories were wildly shared on social media platforms. People had to turn to mainstream media to find out if they were true.

With the elections just days away, the media have a real opportunity to distinguish themselves. If they don’t use this opportunity, their relevance will decline further, if not completely.

By Abdullahi Boru Halakhe

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Abdullahi Boru Halakhe is a security analyst from the Horn of Africa.

Politics

The Gay Debate: Decriminalising Homosexuality in Kenya

12 min read. Courts, individuals, movements, state human rights organs and government health agencies have already established Kenya’s legal consciousness on how continued criminalisation of homosexuality undermines our constitutional principles and goals.

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The Gay Debate: Decriminalising Homosexuality in Kenya

Private consensual sexual conduct between adults of the same sex is criminalised in Kenya and 32 other African countries. How did private consensual sexual conduct between adults become the subject of criminal laws in Kenya and most of these African countries? How does the secrecy surrounding matters related to sex and sexuality influence the implementation of these laws? Let’s take a journey through Kenya.

According to legal historians, what is today known as Kenya started off as the British East Africa Protectorate in 1896. The protectorate was ruled under British law; prior to that period, no formal legal structure existed. Further, the name Kenya did not exist until it was named so as a colony in 1920 and as a country in 1963 (upon independence). Criminalisation of same sex relations in Kenya dates back to between 1897 and 1902, when the British colonial authorities applied the Indian Penal Code that had been drafted by the British and which criminalised same sex relations. The Indian Penal Code was a novel colonisation project aimed at using legislation to model British values and common law to govern British protectorates and colonies abroad.

Research by Dr. Nancy Baraza characterises the history and rationale of the criminalisation of homosexuality as part of the disguise to civilize “natives”, stop slavery and spread Christianity. She found that it led to social coercion into British moral and Christian religious values whose aim was to standardise divergent ethnic sexualities for ease of ruling and colonising them. Dr. Baraza found that these colonial laws that policed sexuality and gender were closely tied to Judeo-Christian religious beliefs that gradually displaced African customary laws that recognised the harmony of gender, sexuality and spirituality.

Upon Kenya’s independence in 1963, the pre-colonial Penal Code was adopted by the post-colonial state without substantive changes, save for the renamed title of the statute to reflect promulgation by the newly created sovereign Parliament of Kenya. Kenya, therefore, remained among those African countries that mete varying punishments for same sex relations. The death penalty is imposed for homosexual sex in Sudan, Nigeria (12 northern states), Somalia and Mauritania. Life sentences are prescribed by penal law in Tanzania, Uganda and Sierra Leone. Kenya imposes a fourteen-year imprisonment term. To prove the crime of homosexual sex, forced anal examinations are used to in Tanzania, Cameroon, Egypt, Tunisia and Uganda. (Kenya’s Court of Appeal banned the practice in 2018.) Attempts to commit homosexual sex are also punished in Kenya, including indecent acts between males. The crime of homosexual sex is framed as an “unnatural” offence, carnal knowledge against the order of nature, or indecent acts between adults.

The legal challenges

The African Commission on Human and Peoples Rights (ACHPR) has noted that individuals in Africa continue to face infractions due to real or imputed sexual orientation and/or gender identity. According to the ACHPR, common infractions include “corrective” rape, physical assaults, torture, murder, arbitrary arrests, detentions, extrajudicial killings and executions, forced disappearances, extortion and blackmail. In a 2014 resolution against violence on ground of sexual orientation or gender identity in Africa (resolution 275), the African Commission called on African states to take preventative actions and redress these violations, including through legal reform.

This history of an imposed legal system in relation to criminalisation of same sex conduct in Kenya was slightly altered through Act No 5 of 2003 when section 162 of the penal code was amended to remove corporal punishment, which had existed as a supplementary punishment to the prison sentence of fourteen years for homosexual sex. This amendment also distinguished punishment for consensual unnatural offences (14 years) and non-consensual (sodomy) unnatural offences (21 years). Removal of corporal punishment for unnatural offences was part of general penal reforms to align Kenya’s laws to international obligations against torture and cruel, degrading or inhumane treatment and punishment.

The African Commission on Human and Peoples Rights (ACHPR) has noted that individuals in Africa continue to face infractions due to real or imputed sexual orientation and/or gender identity. According to the ACHPR, common infractions include “corrective” rape, physical assaults, torture, murder, arbitrary arrests, detentions, extrajudicial killings and executions, forced disappearances, extortion and blackmail.

By the time the nation was debating a new constitution, discrimination on the basis of sexual orientation was being discussed inconclusively by constituent assemblies, including at the subsequent 2010 referendum. The new 2010 Constitution entrenches an elaborate Bills of Rights that affords constitutional protection from discrimination. Article 27 states: “The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.” While being inclusive, Article 27 does not explicitly list sexual orientation or gender identity. On the contrary, the Constitution recognises only heterosexual unions in Article 45, which states that “every adult has the right to marry a person of the opposite sex, based on the free consent of the parties”.

In addition, Section 158 of the Children’s Act of Kenya explicitly prohibits adoption of children by homosexuals, In brief, Kenya’s legal system is generally hostile to gays, lesbians, bisexuals and queer persons. The law is also vague on the constitutional protection from discrimination on the basis of sexual orientation and gender identity. There is no comprehensive or specific equality legislation to guarantee protection from sexual orientation and gender identity discrimination, particularly in employment, health, housing and other social economic spheres.

In 2012, a Kenya National Commission on Human Rights (KNCHR) report on sexual and reproductive health rights in Kenya recommended decriminalisation of same sex relations. This was in order to ensure the realisation of the right to the highest attainable standard of health, including reproductive healthcare, as enshrined in article 43 of the Constitution 2010.

Studies have shown that gay men suffer discrimination when they access health services in Kenya and taboos around homosexuality prevent many others from seeking health services. Similar findings on the effects of criminalisation on state health policies and recommendations on their decriminalisation have been made by the Kenyan Ministry of Health in its HIV and AIDS Strategic Plan (2009/10-2012/13 as well as the 2014-2019). The justification of the health ministry and the KNCHR is that decriminalisation will remove structural barriers that impede access to the provision of the highest attainable standard of health care to all, which is a constitutional right in Kenya. KNCHR and the ministry have been consistent every year on their recommendations on decriminalising homosexuality, including through supporting civil society and individuals working on this reform issue. These empirical findings and recommendations by the health and the state human rights institution stand in contrast with active prosecutions against suspected homosexuals in Kenya by the police and the Director of Public Prosecutions.

Religion and politics

The most common rhetoric against same sex relations in Kenya has been coming from the religious and political elite who often characterise homosexuality as being against African tradition and biblical teachings. Studies have found that this charge of homosexuality being exogenous to Africa is politically designed to erode the legitimacy of same sex sexualities in Africa and to assert a homogenous “cultural identity”. This makes the public dependent upon political and religious leaders for “a communal sense of self”. It reminds the public what the government is – that it is in charge, in power and working or aspires to work for their best interests and survival, including protecting the most vulnerable (especially children) from “recruitment” and securing the future of the nation (by securing reproduction). The law under study therefore becomes political bait, an attractive instrument to regenerate political power domestically and internationally. This is made possible when arguments intersect with popular religious doctrine and social anxieties over reproduction, marriage and the future.

The most common rhetoric against same sex relations in Kenya has been coming from the religious and political elite who often characterise homosexuality as being against African tradition and biblical teachings. Studies have found that this charge of homosexuality being exogenous to Africa is politically designed to erode the legitimacy of same sex sexualities in Africa and to assert a homogenous “cultural identity”.

The public discourse becomes more difficult when homosexuality is politicised with religious doctrines whose nature hardly allows deliberations, which are necessary for democratic progress. This politicisation of religion is conflated with social anxieties over reproduction and social security.

Studies have found that economic inequalities give such political rhetoric traction. In this power analysis of law, the inflation of claims (such as saving the morality of the country) work to displace desires and failures within society and fix them on minority human objects who are generalised and whose presence or distinguishing factor (such as sexual orientation, in this case) is not distinctive or new to Kenya.

We are a developing country that is struggling with poverty and a high population growth rate. Poverty, religious doctrine that does not allow reasoning or deliberations, and an education system whose compulsory curriculum teaches homosexuality to be a moral/social deviance can be seen as part of the key social economic factors involved in shaping the public posture against homosexuality.

A convenient distraction

Activists have argued that the political capital invested by the Kenyan state on homophobia is a tactic to distract the public from pressing economic issues, such as rampant corruption. Studies show that after the end of colonialism, arbitrary governments in most post-colonial African states “latched onto anti-homosexuality laws as ammunition in a battle for power”. Such political rhetoric has also been found to thrive more in countries with weak institutions, inadequate basic equality statutes, poor participatory rights and social protection law, increasing inequalities, high unemployment amongst youth, and a general restrictive civic space. Studies have also established that compared to full democracies, authoritarian regimes and flawed democracies have a higher propensity to criminalise homosexuality

There are findings that support the need for reform on this issue. Research by the World Bank shows that a country’s economic growth is inversely correlated with the level of discrimination against ethnic, religious and sexual minorities under the law. The study found that criminalisation of homosexuality is connected with economic development with multiple links and that criminalisation costs as much as 1.7 per cent of a country’s GDP. Other studies have argued that criminalisation of homosexuality is “irreconcilable with good governance” because it hinders progress within a country, particularly in regard to democracy, the rule of law, human rights, public health, and economic development

The economic benefits of ending discrimination using the rule of law, therefore, resonate with many aspirations of middle- and low-income African countries. Continued discrimination against sexual and gender minorities through law is a grave economic concern in emerging African economies such as Kenya, which is currently working to achieve inclusive development.

In the social-cultural sphere, Kenya’s creative/arts scene has increasingly become a mirror of the diversity in Kenya’s gender and sexuality fluidity. Notable among them are the films Stories of Our Lives and Rafiki, whose same sex themes have been banned locally but have spiked local and international demand. Art galleries and cultural centres in Kenya have in recent years been hosting Lesbian Gay Bisexual Trans Intersex and Queer (LGBTIQ) art and cultural events without state sanction. Reputed artists, such as Michael Soi, with his provocative paintings on sexuality and Kawira Mwirichia, with her Kanga love art, also continue to highlight the changing social landscape on matters sexuality and gender in Kenya. Although the education curriculum in primary and secondary schools still teaches that homosexuality is a social deviance, many public universities and colleges have been pushing back with a much more inclusive curriculum, especially in law schools. In addition, student-led bodies in universities and colleges have been engaging in research, internships, moot courts and other public service partnerships with civil society organisations dealing with LGBTIQ equality in Kenya.

Enforcement of gay laws

The existing laws against homosexual offences are actively enforced in Kenya. In 2015, a “Ministerial statement on non-enforcement of anti-gay laws in Kenya” indicated that between 2010 and 2014, the Kenya Police had prosecuted 595 cases of homosexuality across Kenya. An independent due diligence report of this police report found gross errors and conflation of homosexuality with bestiality and defilement charges. The conflation was either deliberate or was meant to increase social opprobrium towards homosexuality (by conflating consensual private adult same sex intimacy with bestiality and defilement). It could also be due to mistakes due to poor record-keeping by the police whose documentation remains largely manual.

The existing laws against homosexual offences are actively enforced in Kenya. In 2015, a “Ministerial statement on non-enforcement of anti-gay laws in Kenya” indicated that between 2010 and 2014, the Kenya Police had prosecuted 595 cases of homosexuality across Kenya. An independent due diligence report of this police report found gross errors and conflation of homosexuality with bestiality and defilement charges.

In addition, civil society organisations continue to document human rights violations based on sexual orientation and gender identity. In 2010, the Kenya Human Rights Commission (KHRC) found that LGBTIQ persons in Kenya are routinely harassed by police, evicted from housing by landlords, fired from jobs, denied access to healthcare and cut off from families, religious groups and social support structures. The National Gay and Lesbian Human Rights Commission (NGLHRC) has since 2012 been responding to and documenting violations against LGBTIQ persons. Annual legal aid reports from NGLHRC indicate that recurrent violations include “corrective” rape, physical assaults, arbitrary arrests, detentions, extrajudicial killings and executions, forced disappearances, extortion and blackmail, entrapment, among others. NGLHRC has been litigating on some of these violations, including challenging the use of forced anal examination to prove sexual orientation, forced evictions by landlords, dismissals from work, denial of government services and documents, etc.

Interpreting anti-homosexuality laws

Be that as it may, Kenya’s judicial jurisprudence on this issue demonstrates a compelling state interest to extinguish legal discrimination on the basis of sexual orientation and gender identity that is often justified and excused by the existence of criminal sanctions against LGBTQ persons. In Petition 440/2013 that sought to register the National Gay and Lesbian Human Rights Commission with the NGO Board, Justices Lenaola Odunga and Mumbi Ngugi ruled unanimously that sexual orientation was constitutionally protected from discrimination in Kenya and allowed the registration of the NGO. In February 2018, the Court of Appeal struck down the use of anal examination to prove homosexual orientation after the NGLHRC challenged anal examination, which had been performed on two suspected gay men at the Coast General Hospital. In the Baby A case, the court found that intersex persons in Kenya have the right to be recognised as persons before the law and went further to task the relevant state organs to develop relevant policy to secure recognition of intersex persons as persons before the law.

Courts in Kenya have also allowed the registration of transgender groups and the change of gender markers on official documents issued by the government to transgender persons. The first stream is an internal analysis of the legal system using Kenyan law jurisprudence from which finds that there is arbitrary interpretation and application of the criminal rule under study which is inconsistent with the rule of law. The courts have become aware of this inconsistency and framed it as a constitutional issue, thereby triggering public discourse. The second stream is external in that it makes observations “outside” of the law on the performance of this criminal rule and characterises the performance of this law as political instrumentalisation of arbitrariness. This arbitrariness is more instrumentalised by the democratic branch of government through inflated paternalistic moral and religious claims within the domestic and international public spheres. I conclude by predicting how the criminal rule under study is under imminent foreclosure through court action under a rule of law analysis.

Moving towards a less homophobic society

I predict that criminalisation of homosexuality will grow into an exceptional doctrine in criminal law and will incrementally be foreclosed by courts as erroneous and excluded within the general domain of law. Criminal law is meant to prevent harm to society and enhance harmony and order within persons. To achieve order, the law can regulate how humans relate by way of justifiable legal stipulations and legal constrains. Over time, equality and non-discrimination will become the dominant theories in the transformation of the law in Kenya, but the foreclosure of the criminalisation described in this essay is a necessary first step.

Claims against the negative effects of criminalisation of homosexual conduct will continue to sharpen the consciousness of the courts on the structure, meaning and effects of this law. The claims will allow the courts to be the public repository of accounts of discrimination on the basis of sexual orientation. The critical studies movement has taught us that we can reform our legal practice to deliver legal justice without breaking legality. This reformed legality supports the foreclosure of criminalisation with the aim of protecting the constitutional/immunity rights of persons affected by this law because these rights already exist in our constitutional texts.

The ongoing litigation work by LGBTIQ individuals are therefore democratic efforts by citizens and organised groups to instill the rule of law, human rights and good governance in Kenya. Such efforts fulfill the civic duty that individuals and social movements have in promoting the democratic values of their communities and the country through institutional enforcement of their rights in courts. It is also a follow-up from constitutional drafting conferences that appreciated the issue as contentious but offered no closure to the affected. Individuals and social movements are using the judiciary to communicate and document their discriminatory lived experiences. By framing these claims as constitutional breaches, individuals are building public value of human rights as an essential part of their democracy and societal values. Courts therefore become entry points of building human rights and democratic values into social and political pillars of society.

Claims against the negative effects of criminalisation of homosexual conduct will continue to sharpen the consciousness of the courts on the structure, meaning and effects of this law. The claims will allow the courts to be the public repository of accounts of discrimination on the basis of sexual orientation.

The fact that these cases are being entertained, processed and resolved without dismissals due to technicalities and despite the fact that there are existing laws that criminalise homosexuality are green shoots and omens that suggest that access to justice is being realised in Kenya, which is a score for our democracy. It shows that the courts in Kenya are rooting for the rule of law and the constitutional constraints in the law’s predictability.

Because the Constitution of Kenya 2010 was promulgated through a public referendum, courts enjoy sole curatorship of the Constitution, arguably raising the public acceptance of their decisions and the democratic pedigree of their legitimacy. Their decisions, therefore, play a leading role in public discourse.

Foreclosure through decriminalisation will, however, need enforcement. This might translate to a reduction of arrests and prosecutions of suspected homosexuals as well as reduced social and economic exclusion. It is possible that LGBTIQ persons have begun to value their constitutional rights and will take more chances for equal protection within the civic commons. It is also possible that sexuality, citizenship and belonging will remain a live constitutional issue for judges in Kenya for the next decade as the cases move to the appellate stages through the courts.

Regardless of the outcome of these cases, Kenya’s legal consciousness on how continued criminalisation of homosexuality undermines our constitutional principles and goals has already been established by courts, individuals, movements, state human rights organs and government health agencies. By litigating towards decriminalisation of homosexuality, activists are implementing evidence-based recommendations of state agencies as well as upholding the constitutional promise of non-discrimination, including equal benefit and equal protection under the law. The day may finally come when homosexuality in Kenya will truly be a “non-issue”, as President Uhuru Kenyatta recently stated in a televised interview.

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Politics

A Perfect Storm: Why the DRC Remains the Epicentre of the Ebola Epidemic

10 min read. The Western reaction to the Ebola contagion is, once again, a deeply colonial one. The more enlightened and civilized countries of the Old Continent (and the New one as well) are patronising impoverished African countries who keep paying the price of their own underdevelopment. The Ebola epidemic just confirms the underlying narrative engineered by centuries of oppressive politics – that this disease is the result of a “plagued” environment where even animals and the forces of nature carry some form of sickness.

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A Perfect Storm: Why the DRC Remains the Epicentre of the Ebola Epidemic

The Democratic Republic of the Congo (DRC) is facing the worst Ebola outbreak in the history of this country. Nearly 400 people have died since August last year and the situation is only getting worse. Shortly after the elections last month, violence spiked, leading hundreds of refugees to flood bordering nations and many international health workers to withdraw from the country. Armed conflict threatened the safety of many healthcare professionals, forcing them to suspend their work and allowing the virus to spread. Once again, the government of the DRC answered to this crisis by shutting down the country’s Internet service, making things even worse.

But what is Ebola, and what’s the history behind this horrific disease? What are the numbers of the current outbreak and the risks for the neighbouring regions associated with this unmanaged crisis? How did the other African countries and the international community plan to deal with this humanitarian catastrophe?

What is Ebola and how does it work?

The Ebola Virus Disease (EVD) is a rare and often fatal haemorrhagic fever. An animal-borne illness, Ebola spreads in the human population through human-to-human transmission. Much less contagious than many people think, the infection occurs only through direct contact with bodily fluids or secretions (blood, urine, semen, stool, saliva) of a sick or recently dead person. A healthy person needs to come in contact with infected body fluids or contaminated items (such as syringes, bed linen or soiled clothing) for the virus to be able to get in through broken skin or mucous membranes (nose, eyes, mouth). Sexual contact with a diseased individual can also transmit the virus.

People who are most at risk during an outbreak are health workers, people who are in close contact with infected individuals (such as relatives, close friends, and spouses/partners), and mourners who have direct contact with bodies. For example, during the 2014-2015 West Africa outbreak, 74 per cent of transmissions occurred among family members.

The incubation period ranges from 2 to 21 days during which the individual is not contagious. Early symptoms (dry phase) include intense weakness, sudden onset of high fever, joint and muscle pain, sore throat, headache, and stomach pain. As the virus spreads through the body, the host’s immune system is damaged, and other symptoms become manifest, including diarrhoea, skin rash, uncontrollable internal and external bleeding, and impaired liver and kidney function (wet phase). As the levels of blood-clotting cells drop, the patient may start bleeding from the mouth, eyes, ears, nose, and rectum.

People who are most at risk during an outbreak are health workers, people who are in close contact with infected individuals (such as relatives, close friends, and spouses/partners), and mourners who have direct contact with bodies. For example, during the 2014-2015 West Africa outbreak, 74 per cent of transmissions occurred among family members.

Currently, there’s still no official cure for Ebola, other than some experimental antiviral drugs that may stop the virus from replicating. Treatment is usually only supportive, and aimed at keeping the patient alive while his body fights the infection. Doctors manage the symptoms of Ebola with basic interventions to improve the chances of survival, such as providing intravenous fluids and electrolytes, administering oxygen therapy and medications to improve blood pressure and reduce fluid loss caused by vomit and diarrhoea. Patients can also receive blood transfusions and additional treatment to deal with secondary infections.

The average mortality rate associated with Ebola is slightly below 50 per cent. However, in some instances, fatality rates have reached up to 90 per cent in past outbreaks. Those who survive may experience several side effects during their long convalescence period, including weakness, vision and hearing impairment, and digestion problems. Survivors often face social stigma when they re-enter their communities.

The first outbreak

Ebola first appeared in 1976 when two consecutive outbreaks of fatal haemorrhagic fever occurred in South Sudan and in the Democratic Republic of the Congo (formerly Zaire), approximately within 850 km of each other. The latter outbreak occurred in Yambuku, near the Ebola River, which gave the virus its name. However, researchers found that the virus existed long before these recorded outbreaks occurred, suggesting that encroachment into forested areas and increased interaction with infected wildlife may have caused the initial epidemics.

The genus Ebolavirus is a group of viruses that include several subtypes, of which only four are known to cause disease in humans. The other forms can infect other animals such as pigs, apes and duikers. The four viruses that infect humans (Ebola, Taï Forest, Sudan, and Bundibugyo) also affect non-human primates such as chimpanzees, gorillas, and monkeys, and fruit bats of the Pteropodidae family that help spread the infection to the general population. In fact, bats carrying the virus are the most likely source that transmitted it to apes and humans. However, the main reason why the virus spread so quickly during the initial outbreaks was the lack of proper hygienic measures taken to contain the contagion. The Yambuku mission hospital was underequipped and understaffed, and nurses reportedly re-used the same five syringes for roughly half a thousand patients a day even if they were contaminated.

2014: Ebola becomes a global threat

On March 23, 2014, a new EVD epidemic started spreading from a rural region of southeastern Guinea after a young boy from a small village was infected by bats. More cases of fatal haemorrhagic diarrhoea occurred in that area as the virus kept spreading rapidly toward nearby urban areas. Within weeks, the contagion had reached the bordering countries of Sierra Leone and Liberia, and in just a few months the epidemic became global, marking the beginning of the largest Ebola epidemic in history.

As the virus reached the more densely populated urban centres, the situation started deteriorating rapidly, and the World Health Organization declared a Public Health Emergency of International Concern (PHEIC). EVD crossed the borders of the African continent, reaching other countries such as the United States, the United Kingdom, Italy, and Spain. The poor public health infrastructure vastly contributed to the inability of the local authorities to contain the outbreak. Scientists and public health officials had only a vague idea how the virus spread, and the local community was never educated on how to prevent contagion. Many prevailing traditional and cultural practices related to mourning and burial provided additional opportunities for transmission.

Eventually, a careful implementation of health policies and infection prevention and control practices at the national and global level allowed the international community to curb the epidemic. Community engagement was critical in controlling the outbreak, especially when local leaders assisted with prevention programmes and the adoption of safe burial practices. Liberia and Sierra Leone were declared Ebola-free in early 2016, two and a half years after the first case was discovered. The aftermath, however, was tremendous; 11,325 people out of a total of 28,639 confirmed cases lost their lives to the infection. To put things in perspective, there were 2,427 reported cases and 1,597 deaths in all other known cases and outbreaks of Ebola combined.

The outbreak had also a tremendous impact on the healthcare sector of the countries affected; there were 513 confirmed deaths of health workers reported in Guinea, Sierra Leone and Liberia. Sierra Leone and Liberia lost 7 per cent and 8 per cent of their doctors, nurses, and midwives to Ebola, respectively. The epidemic caused a total loss of $2.2 billion in the gross domestic product of the three countries, and their growth was stunted due to food security concerns that negatively affected agricultural exports and cross-border trade restrictions.

The role of conflict in Ebola epidemics

Currently the DRC is fighting another devastating Ebola outbreak. Since the first four patients tested positive for the Ebola virus on 1 August 2018, a total of 608 cases have been reported, with 368 deaths confirmed, a fatality rate of about 60 per cent. Despite the lessons learned during the last epidemic of 2014, the death count keeps rising every day. The virus has already started moving from the North Kivu province where it originated, and reached the neighbouring Ituri province. If the crisis is not contained quickly, the three bordering nations, Rwanda, Uganda, and South Sudan, are endangered as well.

Currently the DRC is fighting another devastating Ebola outbreak. Since the first four patients tested positive for the Ebola virus on 1 August 2018, a total of 608 cases have been reported, with 368 deaths confirmed, a fatality rate of about 60 per cent. Despite the lessons learned during the last epidemic of 2014, the death count keeps rising every day.

Since the first outbreak in 1976, 10 of the more than 30 known Ebola epidemics occurred in the DRC, the current one starting just weeks after the previous one was declared over. Congolese health officials have a lot of experience responding to Ebola cases in the DRC. But why is the second-largest Ebola outbreak in history ravaging a country which should be much more prepared than other countries? The answer is simple yet complicated at the same time. But it can be summed up in one word: conflict.

The history of the previous outbreak taught us all a very important lesson: that disorganisation is the most effective force to help the virus multiply and spread unobstructed. Anything that hinders treatment and prevention efforts places an unbearable burden on the already stressed health system, especially when hospitals and facilities must deal with the aggravated health problems associated with military conflict. War puts the civilian population under unnecessary distress, paving the way to what the WHO’s Deputy Director-General for Emergency Preparedness and Response already described as “the perfect storm”. A closer look at the data from the aftermath of the outbreak in Liberia and Sierra Leone shows how much the difficulties associated with local conflict can turn a tragedy into a catastrophe.

Liberia and Sierra Leone were already devastated by a decade of civil war that resulted in half a million deaths and over 200,000 refugees. Population displacement and military struggles increase the risk for an infectious disease to spread unhindered. Civilians may be forced to survive through marginal subsistence strategies when crops are collaterally or deliberately destroyed. This increases their vulnerability to disease. All the medications in the world are useless when the human body is already weak due to lack of food and water. Soldiers and armed groups, on the other hand, may face additional exposure during forced marches, advances, and reconnaissance missions in densely forested areas.

All the prevention and control strategies needed to contain an outbreak cannot be employed in a country facing the many challenges of an ongoing conflict. War brings insecurity, and when combatants keep carrying out deadly attacks on civilians, the entire country is paralysed and the body count keeps rising, exposing people to further contagion. Help from the international community must be temporarily halted, all crisis response strategies are slowed down to a crawl, and critical supplies end up being pinned down or seized by the military forces. Key communication channels may be hindered or severed when dictators or other governmental authorities try to muzzle dissidents by restricting freedom of speech.

The current situation in the DRC

Violence is rampant in the DRC right now, with rebel armed groups engaged in a constant state of warfare with government forces, and over a million refugees travelling out of the country. A lot of “red zones” are too dangerous for health responders to reach and help the infected. Mistrust is causing resistance among the local population who refuses experimental vaccines and take care of their sick relatives at home at a time when they’re most contagious. The constant state of uncertainty is causing widespread fear among the Congolese population, which is fleeing the country en masse, trying to cross the border towards the neighbouring Uganda. Many of these refugees will try to sneak through by avoiding patrols, and who knows how many of them could be infected?

Crooked politics and corruption are the norm, and the situation is very volatile. In December, the government of Joseph Kabila even resorted to using the Ebola epidemic as an excuse to disenfranchise a million voters and postpone the presidential election in the areas most affected by the disease. Protesters didn’t take this decision well, and took out their anger and frustration on the hotspot city of Beni, the site of one of the few Ebola-testing facilities available. During the riot, a few tents got burned. What’s worse, a few people panicked and fled the assessment centre. Some of them could be infected. Oh, and an epidemic of malaria has also likely broken in the region.

Crooked politics and corruption are the norm, and the situation is very volatile. In December, the government of Joseph Kabila even resorted to using the Ebola epidemic as an excuse to disenfranchise a million voters and postpone the presidential election in the areas most affected by the disease. Protesters didn’t take this decision well, and took out their anger and frustration on the hotspot city of Beni, the site of one of the few Ebola-testing facilities available.

Local politicians are also spreading abominable rumours that Ebola was created by the national government to exterminate the Nande population. They think that they’re boosting their popularity, but in their foolish madness they do not understand how much they’re endangering the lives of their own citizens (and of countless other people). People are now angry with health workers because they think these absurd rumours are true, and are unleashing their fury on the same persons who helped them in the beginning. Much of the international staff from the Centers for Disease Control and Prevention (CDC) had to be moved to more secure locations when their safety has been threatened. The DRC has been deprived of the fundamental help of highly-qualified professionals who have unmatched expertise dealing with Ebola.

Ebola as a political rather than just a medical problem

Does the international community care about Ebola? To some extent, yes, it does. After all, if this lethal disease is not confined within the borders of these African countries, it may become a threat to the other, richer, more industrialised countries. It may kill rich people, which is something that neither the CDC nor the United Nations want to even think about. But as long as Ebola keeps killing poor people, there’s no need to redouble their efforts. To put things in perspective, during the devastating crisis of 2014, Germany spent on Ebola less than half of what it spent on a single footbal stadium during the 2006 World Cup. Many of the promises made in the past have not been kept, and it’s no secret that most of the Western aid is nothing but charity – useful to appease an immense mass of hypocrites, but not to make the West African health system stronger, more efficient, or more organised.

The Western reaction to the contagion is, once again, a deeply colonial one. The more enlightened and civilized countries of the Old Continent (and the New one as well) are patronising impoverished African countries who keep paying the price of their own underdevelopment. This epidemic just confirms the underlying narrative engineered by centuries of oppressive politics – that this disease is the result of a “plagued” environment where even animals and the forces of nature carry some form of sickness – a sickness whose eradication is part of the “civilizing” mission of Western countries. Except morals are always set aside every time it becomes clear how this mission is just an excuse for the economic exploitation of peoples and lands. Who else if not the American tyre company Firestone helped Charles Taylor establish a cruel dictatorship in Liberia – a country where Ebola caused nearly 5,000 deaths? But hey, Firestone protected its own workes so well that it was commended by the WHO for its timely and well-organised response. Great job, indeed.

The Western reaction to the contagion is, once again, a deeply colonial one. The more enlightened and civilized countries of the Old Continent (and the New one as well) are patronising impoverished African countries who keep paying the price of their own underdevelopment. This epidemic just confirms the underlying narrative engineered by centuries of oppressive politics – that this disease is the result of a “plagued” environment where even animals and the forces of nature carry some form of sickness…

Drawing a line

The current Ebola crisis is an international one that goes well beyond the scope of the citizens of the DRC. Politics are a curtain behind which the Western countries hide their double standards about global security. Yet, they cannot deny their responsibility in shaping the country in its current form. After all, the history of the DRC is still deeply intertwined with its colonial past, and its current political instability and the disastrous conditions of its healthcare system are the most obvious consequences.

For the Congolese health officials and the international community to be successful at containing the epidemic, a vaccine or treatment may not be sufficient. Patients must be reached, they must accept the therapy, and the health facilities where they recover must survive the onslaught.

To prevent this “perfect storm” from becoming a true cataclysm, conflict must be stopped, and a more radical approach to rebuilding the DRC’s health infrastructure is needed. If this is not done, everybody will pay a steep price – because a virus doesn’t understand nor does it care about politics.

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Nowhere to Run: How Urban Terrorism Is Impacting Nairobi’s Architecture and Public Spaces

6 min read. In other countries, it is understood that the intention of terrorists is to make crowded spaces “empty” – to terrorise the public into retreating inwards in fear. But in Nairobi, where inclusive, truly public spaces have long been “designed” out, where the attack happened in one of the most insulated, formidable-looking, closed-off, “safest” places, the horror of urban terror attacks runs deeper.

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Nowhere to Run: How Urban Terrorism Is Impacting Nairobi’s Architecture and Public Spaces

It is nearly impossible to go a single day in Nairobi without going through “security.” It is a part of the urban landscape. Surveillance cameras, sniffer dogs, metal detectors, and concrete walls are all meant to deter terrorists and petty criminals; they communicate fortification, even in grocery stores and gyms.

But the visual language of security is full of paradoxes; while the quasi-militarised architecture seeks to reassure the public that we are safe from attack, it simultaneously acknowledges that we are indeed under attack, and all the time – only one unpredictable, unfortunate moment away from siege.

Another paradox: we endorse these forms of security through our daily acquiescence, but at the same time acknowledge its superficiality. Each time a bored or underpaid guard waves a metal detector wand around us –ignoring the beeping sound – and glances through our bags, we tell ourselves that this the whole exercise is pointless. Yet few complain or change their behaviour. And terrorist attacks continue to happen.

On 15 January, in 14 Riverside, which hosts the DusitD2 hotel and various commercial offices, a suicide bomber detonated himself at the Secret Garden Café. Other attackers forced their way through the single entrance using hand grenades and automatic weapons. Many victims were, tragically and fatefully, barricaded inside a “fortress.” While the vast majority of people trapped within the compound were rescued by private and state security forces, by the end of the siege, 21 people had been killed. Al Shabaab claimed responsibility for the attack.

George Musamali, a security analyst and CEO of the security firm Executive Protection Services, argues that the method of terrorist attacks evolves following the path of least resistance and that Kenya’s security apparatus has failed to keep up with the terrorists. Airplane hijackings, for example, were more common until heightened airport security made them more difficult. Then, car bombings like the twin attacks on the U.S. embassies in Nairobi and Dar es Salaam in 1998, became more common. Musamali says that after that restrictions on acquiring and transporting large quantities of explosives made this type to terrorist attack more difficult.

Now, of all the attacks in Kenya that have been claimed by Al Shabaab since 2011, the majority have involved active shooters. In the case of 14 Riverside, the same provisions that would have protected people from a bomb blast may have sealed victims in. Musamali says, “If you look at the modus operandi of Al Shabaab, they force their way in. More measures being recommended are not being implemented, so that’s why you find it so easy for Al Shabaab to use the same method in 2015 as in 2019. They see no change in tactics.”

The 14 Riverside attack has reinvigorated valid concerns about the security of commercial complexes in Nairobi, as key gaps in security at 14 Riverside are replicated in many other malls and compounds throughout the country. Perhaps the question we need to ask is what security really means for the public. Until then, we will continue to be sniffed, scanned, patted – and let through.

Guards, gadgets and now guns

Nairobi has always been a city obsessed with insecurity and, as a result, its residents are accustomed to security and surveillance. Because Nairobi did not truly ever break out of its original colonial, race-segregated lines, it got a head start on the privatisation of “public” space in the name of “securing” it. Mike Davis, writing about Los Angeles in the 1980s, pointed out that “the universal consequence of the crusade to secure the city is the destruction of any truly democratic urban space…. The ‘public’ spaces of the new megastructures and supermalls have supplanted traditional streets and disciplined their spontaneity.” He could just as well be describing Nairobi.

The 14 Riverside attack has reinvigorated valid concerns about the security of commercial complexes in Nairobi, as key gaps in security at 14 Riverside are replicated in many other malls and compounds throughout the country. Perhaps the question we need to ask is what security really means for the public. Until then, we will continue to be sniffed, scanned, patted – and let through.

A mosaic of fences and walls is designed to provide social insulation for upper class residents from the threat of the public poor. In this way, Nairobians have come to develop a peculiarly comfortable relationship with security apparatuses that would seem severe in other cities. Through perimeter walls, barbed wire, guards, and gates, Nairobi polices its social boundaries. “The fear of the criminal other has shaped Nairobi’s built form in profound ways,” writes anthropologist Constance Smith, “but has also led to a new architecture of desire and aspiration, influencing architectural aesthetics.” The security apparatus is not only an extension of fear, but also a marker of aspiration.

Because the public is so inured to life behind high walls and barbed wire (or outside of them) – in contrast with other cities where “the right to the street” is taken for granted – in Nairobi the extraordinary ubiquity of security is tolerated. It is more important that security is seen rather than guaranteed. Security consultant Andrew Franklin criticises what he calls the “industry of fear,” which is the market’s response to urban terrorism: “guards, gadgets, and now guns.” If this were not the case, perhaps there would be more investment in tactics that are less visible but equally effective.

For a mall, the bulk of the work in detecting and preventing a terror attack is painfully mundane. It is unglamorous, says Franklin, like examining food delivery boda bodas that move in and out of compounds, often unchecked. Or scanning deliveries that come in before dawn and get loaded in the morning. Franklin suggests that at least some of the ammunition used at the 14 Riverside attack was already within the compound – an insight echoed by other analysts with whom I spoke – indicating large gaps in security that have nothing to do with what people see when they enter and exit every day.

Because the public is so inured to life behind high walls and barbed wire (or outside of them) – in contrast with other cities where “the right to the street” is taken for granted – in Nairobi the extraordinary ubiquity of security is tolerated. It is more important that security is seen rather than guaranteed.

Another important but undervalued tool is counter-surveillance. Musamali recommends that malls, in addition to hiring trained observers to monitor suspicious activity, should also equip tenants with specialised observation skills. In London, for example, the city combatted terrorist attacks by the Irish Republican Army in part by training ordinary people to spot and flag behaviours that mark intention to plan a terror attack.

Locked city

Sometimes, in addition to being inconvenient, the architecture of security may actually compromise security. With its single entry point, the design of the 14 Riverside complex may have jeopardised the lives of those inside. One independent security analyst I spoke to (who chose to remain anonymous) said that there were originally meant to be twelve attackers at 14 Riverside. “Logistics made it difficult for the other to pursue. One group was supposed to actively engage in killing of hostages and the other six were supposed to engage the responders,” he said. “The other team did not arrive on time. [14 Riverside] only has one entrance. It could have been devastating.”

“We’re living in a concrete city where everyone has locked themselves in,” says Musamali. “If someone manages to break your access control, compromise it, and get in, then you definitely have given them easy targets because people do not have escape routes.”

The former analyst added that he knew the independent security company that previously completed a security assessment at 14 Riverside. Because the compound was originally intended to be only an office space, he said, there were additional recommendations the security company made to accommodate the presence of a hotel. Those suggestions were not heeded.

“We’re living in a concrete city where everyone has locked themselves in,” says Musamali. “If someone manages to break your access control, compromise it, and get in, then you definitely have given them easy targets because people do not have escape routes.”

Indeed, there is no legal obligation for building managements to achieve a certain standard of security, and those that do exist are seldom enforced. For example, the Occupational Safety and Health Act (2007) requires that all employers ensure that their employees are familiar with fire escape routes. Nevertheless, fire drills are few and far between. In the case of 14 Riverside, not all who were trapped within the building knew of or were able to access the small pedestrian walkway in the rear.

Furthermore, and equally disturbing, there are scant standards or guidelines for private security companies in Nairobi. Byron Adera, a pioneer Kenya Special Forces officer and security consultant, says that mediocrity runs throughout the sector: “You see different uniforms, different malls, but it’s the same kind of searching that is done. They’ve got a wand in their hands, and they sweep you without asking questions if it beeps.”

To fill the void in industry standards, Adera and other former military personnel have formed the Association of Corporate and Industrial Security Management Professionals, an organisation that liaises with the government, security providers, building managements, and other stakeholders to develop and enforce standards for security providers. 

But, even if there are standards of quality for security provision, there is no obligation for mall managements to invest in it—and, perhaps worryingly, little financial incentive to do so. Previously, the (anonymous) analyst had been approached by the management of a well-known mall in Westlands to run a security audit, but, after quoting the cost of his services, the management decided not to move forward, citing cost. “The management of these properties only look at the bottom line,” he said. “They don’t look at other factors.”

In other countries, it is understood that the intention of terrorists is to make crowded spaces “empty” – to terrorise the public into retreating inwards in fear. But in Nairobi, where inclusive, truly public spaces have long been “designed” out, where the attack happened in one of the most insulated, formidable-looking, closed-off, “safest” places, the horror of urban terror attacks runs deeper.

On 4 February 2019, the U.S. Embassy issued a warning to its citizens to avoid areas frequented by tourists and foreigners, as there was risk of another terror attack. The risk will not wane. For the first time, for the city’s walled-off elites, there are no “safe zones” left. Not only are the trappings of security to which we comply daily ineffective but they are perhaps the very thing which makes us targets.

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