The phrase “compounding illegalities” aptly describes the approach and processes taken by Uhuru Kenyatta and Raila Odinga to change the constitution through the Building Bridges Initiative (BBI).

The following have been the defining processes for BBI thus far. One, the formation of the BBI Steering Committee and Taskforce; two, the decision that the mandate of the BBI is to propose constitutional reforms; three, the decision that BBI constitutional amendments will be introduced through a popular initiative; four, submission of the BBI Bill and verification of its support by the IEBC; five, the referendum path being scripted by BBI proponents. Each of these steps has been riddled with a myriad of illegalities.

Let us discuss these processes one at a time.

BBI taskforce

The BBI Taskforce was born out of the opaque “truce” between Raila Odinga and Uhuru Kenyatta following the dramatic swearing in of Raila Odinga as the People’s President on 9 March 2018 that was presided over by Miguna Miguna. It is unclear the extent of the considerations that placated Raila and led him to the “handshake” with Uhuru at a time when he professed that everything he stood for was diametrically opposed to Uhuru’s beliefs. What was made public, however, were the nine issues that the two identified as afflicting Kenya’s democracy. The issues ranged from ethnic antagonism to a lack of a national ethos with regard to corruption.

The launch of the BBI Steering Committee soon followed on 24 May 2018. The membership of the Steering Committee was drawn from Uhuru and Raila’s long-term loyalists, with persons considered politically non-controversial included to give the membership a veneer of diversity. The Steering Committee had only three terms of reference: (i) evaluate the national challenges identified in the BBI (handshake) communiqué and make recommendations on the necessary “reforms that build lasting national unity”; (ii) draw up policy and administrative reform proposals to address the challenges identified, and (iii) consult with members of the public.

After it issued its first report, the Steering Committee’s term was extended on 20 January 2020 and its description was changed to a Taskforce. Its revised terms of reference were to conduct public participation to validate its report. However, a mischievous mandate was sneaked into the Taskforce work: “proposing constitutional reforms”.

I must pause here and identify how, even this early in the process, Uhuru violated the constitution and the law. The illegalities are at least at three levels. First, all the nine issues that he and Raila identified as bedevilling the country were already issues assigned by the constitution or the law to already existing and established state agencies. Let us sample a few. One – ethnic antagonism and inclusivity are the mainstay functions of the National Cohesion and Integration Commission (NCIC). Two – corruption is the single issue assigned to the Ethics and Anti-Corruption Commission (EACC). Three – the constitution and other laws have already established all manner of agencies and structures to deal with every aspect of devolution, including the Summit (the body bringing together the president and all governors), the Inter-governmental Relations Technical Committee and the Inter-governmental Budget and Economic Council. Finally, we already have institutions – ranging from the IEBC, the NCIC, and the judiciary among others – to deal with electoral justice.

Essentially, what Uhuru did in establishing the Steering Committee and Taskforce to deal with his and Raila’s nine issues was to usurp responsibilities that have already been assigned by the constitution and the law to established state institutions and hand them over to a select group of friends and loyalists to steer.

But there are those who will argue that part of Uhuru’s constitutional mandate as the President and Head of State is to foster national unity and it is therefore within his powers to appoint a taskforce to assist with this constitutional task. But this argument misses the fundamental point that the President is required to be the first in line to respect the functional mandate of the institutions established by the constitution and the law and not to do anything that undermines or minimises their authority.

The second level of illegality has to do with how Uhuru and Raila settled on members of the taskforce. The constitution insists that, with the exception of the personal staff of the president and his deputy, anyone selected to undertake a public function by and for the executive must undergo a merit-based and competitive selection process. This is to ensure that those assigned public duties are qualified to do what they are assigned to do and are not just sycophants of the appointing authority.

Essentially, what Uhuru did was to usurp responsibilities that have already been assigned by the constitution and the law to established state institutions.

The third illegality is unilaterally starting a consequential constitutional revision project without first creating a legal framework to guide the process. Revising a constitution is too sacrosanct a task to be left to three half-baked terms of reference contained in a nondescript gazette notice and assigning the work to a taskforce that is not accountable to the people. Worse, the fact that the constitutional mandate was sneaked into the terms of reference of the taskforce at the last minute only aggravates the disregard Uhuru has for the law.

Popular initiative

The constitution provides two pathways to its amendment. The first is through a parliamentary initiative. The second is the popular initiative. The parliamentary pathway to amending the constitution largely mirrors the manner in which regular laws are introduced in parliament. Ordinarily, and ideally, the executive formulates policy on an issue. That policy is transmitted to the office of the attorney general who works in tandem with parliament to translate it into a draft law. The draft is then introduced in parliament by a member of parliament – ordinarily the majority leader or a member of a political party aligned to the executive.

There is logic to this process. Parliament exists largely to ensure that whatever action is taken by the executive is regulated by law. Ensuring that every action of the state derives its authority from the law is essentially what the principle of the rule of law is all about. But, importantly, the law-making function of parliament is intended to restrain the executive or other arms of government from transgressing on areas not assigned to them or undertaking their work in a way that is inimical to the principles of constitutionalism and rule of law. Hence, the law-making power of parliament is not passive but, at its core, involves ensuring that the law it enacts provides for the necessary guardrails against abuse of public power and sufficient guidance to those charged with implementing public responsibilities.

But how does this relate to the popular initiative process? The point here is that the constitution created the parliamentary initiative process for use by state actors including the executive and this is the path the constitution expects Uhuru and other government actors to take if they want to amend the constitution.

Why then the popular initiative process?

The constitution created this path for the people who do not wield state power to initiate the process of changing the constitution. Understanding the popular initiative as the people’s pathway to amending the constitution is critical for a number of reasons. To start with, it reaffirms the constitutional principle of sovereignty of the people – giving the people a pathway to changing the constitution that is not at the mercy of the political leadership.

The second reason is perhaps the most relevant given our circumstances and experience with the BBI thus far. The constitution and the law intend that the person or persons sponsoring amendments through the popular initiative fully bear the costs and inconveniences of initially mobilising the required threshold of at least one million voters to support the proposed amendment. It is only after the promoters deliver the bill and the supporting signatures to the IEBC that the constitution requires that state agencies – starting with the IEBC – engage with and deploy state resources in processing the bill and other ensuing procedures.

Revising a constitution is too sacrosanct a task to be left to three half-baked terms of reference contained in a nondescript gazette notice.

When the state hijacks the popular initiative process it unfairly inverts power relations between the people and the ruling elites. It also negates the entire constitutional intention of creating a popular initiative pathway since the use of state resources by state officers in order to popularise and attain the initial support of at least one million voters is unfair and discriminatory because similar public resources are not available to the people – who have no favour with the state – when pushing for amendments through the popular initiative.

Briefly, not only did Uhuru violate the law by hijacking the popular initiative pathway to amending the constitution when the law required him to use the parliamentary initiative pathway, but he has also abused his powers by deploying state resources to raise support for BBI constitutional amendments.

IEBC verification and approval by county assemblies

The constitution imposes three foundational obligations on the IEBC as an independent constitutional commission: to protect the sovereignty of the people; to secure observance of democratic values and principles by all state organs; and to promote constitutionalism. However, the IEBC’s handling of the BBI process goes against these obligations. The violations range from caving into undue pressure from the promoters of BBI, failing to observe the basic requirements of verification of signatures, using a makeshift administrative (legal) framework that was promulgated without complying with the law and, worse, violating the provisions of that framework.

Let us start with the lack of a proper legal framework. There is no law that guides the IEBC in its verification of signatures or any other aspects entrusted to it in processing the request to amend the constitution through a popular initiative. Yet there are very many issues where it is unclear  what the IEBC can or cannot do with regard to a popular initiative to amend the constitution. A law or proper guidance from the court is necessary if for no other reason other than to render IEBC actions legal.

A few examples of the gaps will suffice here. Although the constitution requires that a popular initiative have “supporting signatures” and that the IEBC will then “verify that the initiative is supported by at least one million registered voters”, given that the IEBC does not maintain a database of signatures of voters, it is unclear how it should undertake the verification exercise or what it would actually verify. Similarly, it is unclear whether the IEBC has an obligation to provide the public with information about who signed to support the popular initiative, and if so, through which medium.

Yes, the IEBC does not make law. That is the work of parliament. However, the IEBC has an obligation to request parliament to prepare the necessary regulatory framework to ensure its work and processes are guided by law. Where parliament refuses or fails to enact a guiding law, the IEBC has the option to go to court to seek guidance, especially given the importance of the process.

The law-making power of parliament is not passive but involves ensuring that the law it enacts provides for the necessary guardrails against abuse of public power.

An illustration is necessary here. In 2014, when the Embu County Assembly impeached Governor Martin Wambora it quickly noticed that, while the constitution allowed the deputy governor to take over the governor’s position, there was no national law to determine how the arising vacancy of a deputy governor would be filled. Parliament, which has the authority to pass such a law, had not done so. The County Assembly moved to the Supreme Court to ask for guidance. The Supreme Court provided that guidance because it found that both the position of the governor and of the deputy were so crucial “to the operations of County Government, it is inconceivable that, constitutionally, they could remain fallow until the next cycle of a general election.” Equally, the amendment of the constitution is too crucial a matter for the IEBC to allow itself to rely on guesswork when it has all along had the option to seek authoritative guidance from the Supreme Court.

What the IEBC has done is to illegally arrogate itself law-making powers by cobbling together some vague administrative procedures that it claims to use to guide its verification process.

But this is where it gets even more interesting. The IEBC failed to follow even its own procedures when verifying BBI signatures. First, its administrative procedures require it to compile and publish the list of supporters on its portal for two weeks. The procedures further allow it to receive complaints from members of the public whose information is either wrongly included or is excluded. However, the IEBC was in such haste to facilitate the BBI bill that it published the names for only four days before forwarding it to the County Assemblies.

Lack of a regulatory framework to guide a constitutional amendment driven by a popular initiative not only affects the IEBC but also nearly every step of the process. For example, there is no law that guides the county assemblies on how they should undertake the crucial step of approving the amendment bill. In fact, in 2019, the High Court ordered parliament to enact a law to seal this legislative lacuna. Again, parliament has failed to pass that law.

Yet, it is quite ironical that when the two Speakers – Justin Muturi and Ken Lusaka – were notifying parliament that it would start the process of considering the BBI bill they loudly stated that even parliament did not have the necessary law of parliamentary procedures to guide its own procedure of processing the bill. The Speakers had a quick solution to this – make up the rules and procedures as you go. Then parliamentarians were quite surprised when their process quickly hit a snag as they were unsure whether they were permitted to amend the BBI bill or not.

Uhuru violated the law and abused his powers by deploying state resources to raise support for BBI constitutional amendments.

Admittedly, there are currently two unsatisfactory bills pending in parliament intended to guide the entire constitutional amendment process – including how to resolve issues relating to preparing for and conducting the referendum. Those bills are full of regulatory gaps including the procedure in parliament. Still, instead of parliament prioritising the passing of these laws, it is focussing on pushing the BBI bill through. A classic case of putting the cart before the horse.

But why does passing a law to regulate the process matter?  Because that is what rule of law is all about – the authority to exercise public power must find its validity in a rule, a law. Law provides a framework through which those entrusted with public power to undertake certain processes can be objectively audited for compliance with the law and the constitution. Discretion, especially unregulated discretion, only breeds anarchy. It allows those with power to manipulate public processes for their own personal gain. In many ways, that is the story of BBI.

Crystal-balling future violations

The BBI bill is now before parliament. There are a few things that should be constitutionally clear about how parliament should process the bill. First, and unlike most county assemblies which voted for the bill using a single motion to approve it, parliament must subject the bill to the rigours of the mandatory three readings that bills undergo in parliament before they become law. This is because, under the constitution, parliament has the ultimate responsibility to pass the constitutional amendments into law – especially where a referendum may be unnecessary. The enormity of this responsibility demands that it must use a proper, predictable, accountable and constitutionally compliant procedure.

Second, parliament has the obligation to facilitate adequate public participation. The constitution requires that, for a constitutional amendment proposed through a parliamentary initiative, the period provided by parliament for public participation should not be less 90 days. Yet, this minimum timeline is constitutionally ring-fenced between the first and second reading of the bill. Similar timelines should apply for a popular initiative and for parliament’s passing of the BBI bill. However, Parliament has already indicated it will not comply with this timeline because Uhuru and Raila have imposed a deadline for passing the BBI bill.

Third, the bill is passed by parliament if it is supported by a majority of members in both houses. This is important. A majority of members means at least over 50 per cent of all members of each house and not just those present in parliament at the time of voting.

But given the extent to which promoters of the BBI bill have already violated the constitution, and the haste with which they are pushing for the bill to pass, it is highly conceivable that parliament will violate the very clear rules and expectations of the constitution. Parliament has already committed the first sin by rushing public participation.

Another likely BBI illegality will relate to the referendum. As it is, the BBI bill cannot avoid a referendum because it is packed with issues that require a referendum based on Article 255 of the constitution. This includes re-organisation of the executive, changing the composition and roles of the National Assembly and the Senate, and numerous issues concerning devolution and tampering with the independence of autonomous institutions. There is much more.

At least two violations relating to the referendum are being primed. The first is the possibility that BBI proponents – and especially the president – will only designate certain matters to go to referendum and insist that those issues not submitted to the referendum are adopted into the constitution regardless of the outcome of the referendum. This is problematic because the constitution provides that “if a bill to amend the constitution proposes an amendment relating to a matter” that requires a referendum, the president cannot assent to the bill until after the referendum is held. This means that if the bill is not approved through a referendum the entirety of the amendment bill fails.

The IEBC has an obligation to request parliament to prepare the necessary regulatory framework to ensure its work and processes are guided by law.

But in the case of the BBI bill, there is a more fundamental problem which makes it impossible to reconcile the process concerning the referendum and assent. The BBI bill has always been constitutionally irredeemably defective in its content. Irredeemably defective because a bill to amend the constitution – either though a parliamentary or a popular initiative – should not contain more than one matter. Essentially, it was illegal for BBI promoters to include in one bill so many unrelated issues. Each issue should have gone into a separate bill. This is actually the issue I should have started this analysis with because the point I am making here is that the BBI bill that was force-fed to the IEBC, bribed through the county assemblies and is now being walked through Parliament has – in its content – been unconstitutional from the start.

This brings me to the second likely violation concerning the referendum that we can expect and this is what the BBI proponents have told us already; the BBI referendum will field only one question. This is wrong. Firstly, the law already authorises multiple questions and leaves that decision to the IEBC to make. Secondly, not only was it unconstitutional for BBI proponents to include in the amendment bill a myriad unrelated changes but demanding that only one question be presented at the referendum will be aggravating this cardinal sin.

It is not over yet

When on 8 February 2021 the High Court issued orders restraining the IEBC from facilitating and subjecting the BBI bill to a referendum, it made a fundamental observation. It observed that that rushing the bill through the various stages “does not inoculate the resultant proposed constitutional amendment from the possibility that it could yet, upon final disposition of these Petitions, be declared invalid.” The litany of violations of the constitution that litter the path the BBI has travelled would make a great mockery of the constitution if the amendments proposed by BBI are eventually pronounced to be part of the Kenya 2010 Constitution.

Ultimately, the passing of the BBI will represent the moment that tested whether Kenyans recognise that the supremacy of the constitution, rule of law and the sovereignty of the people as enshrined in the 2010 Constitution are not mere words. It will be the true and defining moment pitting the people against a gluttonous, insatiable and incorrigible ruling elite.

By the time President John Magufuli went to the St. Peter’s Church on that sunny Sunday on 21 February 2021 he already knew that he had lost the debate on the coronavirus situation in Tanzania. The reality, as many anticipated, had proved him utterly wrong. The decision to attend the mass took place against the background of widespread calls from various religious leaders who, after witnessing the unprecedented number of deaths in their respective parishes, decided to defy the government’s rhetoric that Tanzania was coronavirus-free.

Church leaders felt obliged to tell their followers the truth authorities kept denying; that COVID-19 was in fact present in the country and that they needed to protect themselves against the disease. President Magufuli’s attendance at the mass followed hard on the heels of pushbacks against his COVID-19 approach, including from his own Catholic Church, something that made skeptics wonder if the devout Catholic would show up at the service. That he did led some observers see the decision as a tactical one, aimed at preventing a further shrinking of his authority –  and even relevance –  when it comes to the issue of COVID-19.

While at the church, President Magufuli, who had until then acted as he wished as far as COVID-19 was concerned, pointed out that he had nothing against people wearing facemasks, while also warning that not all facemasks are appropriate and that Tanzanians face the risk of being supplied with faulty facemasks if they are not careful. Magufuli claimed that there was “an economic war” going on and urged his people to wear only those facemasks that are approved by his ministry of health or made locally by Tanzanians themselves.

Of course, these claims are questionable. How, for example, did the government allow the importation of virus-infected facemasks? If those masks are already in the market, why haven’t the authorities launched a manhunt to confiscate the merchandise for destruction and bring those responsible to justice? Still, the president’s positive remarks about a disease he has spent a lot of his time downplaying were welcome. This is especially so considering the fact that his statement came barely a month after the Head of State admitted the presence of a new coronavirus variant in Tanzania, in a speech during which he also claimed that COVID-19 vaccines were inappropriate.

But while many are breathing a sigh of relief, it is important to point out that the government’s current position on COVID-19 in Tanzania did not just come out of thin air. It is solely thanks to church leaders who fearlessly decided to break the silence by saying enough is enough. After spending months dilly-dallying, peddling falsehoods and outright denials in the face of numerous documented and undocumented deaths of innocent citizens, the clergy decided to intervene to fill the vacuum left by the press, professional associations and civil society organisations which, out of the fear of reprisals or mere opportunism, had given the government carte blanche to play with the lives of its citizens.

The clergy’s intervention motivated by the troubling events that started occurring in Tanzania at the beginning of 2021. On 20 January, for instance, UWC East Africa, a school in the Moshi District of Kilimanjaro Region, announced that it was suspending all presential teaching after one of its students tested positive for COVID-19 and another displayed symptoms of the killer disease. Kilimanjaro regional commissioner Anna Mghwira, however, promptly denied the reports and demanded that the school apologise. Whether the school’s claims were true or false doesn’t matter. What does matter at this moment is that it was soon after this that reports of pneumonia-related deaths started coming in in astonishing succession.

Some of the deaths reported in the month of January 2021 include that of a popular hip-hop artist, Ilunga Khalifa alias Cpwaa, who died at the Muhimbili National Hospital (MNH) of pneumonia-related complications. Others are former legislator Gregory Teu who died following a short illness, Deputy Commissioner of Prisons Julius Sang’uti who died at Benjamin Mkapa Hospital in the capital Dodoma, and Special Seat MP Martha Umbula who died in India where she had been hospitalised. Others include a seasoned political analyst Prudence Karugendo, Ankunda Muro, mother of Arumeru District Commissioner Jerry Muro, who died while receiving treatment at MNH, former Permanent Secretary Richard Mariki and former Kigoma Regional Commissioner Emanuel Maganga who died in Tabora shortly after arriving at Mirambo Hospital for treatment. On the list is also Bukoba Catholic Bishop Ireneus Mbahulira who died at Mugana Hospital in Misenyi District, with the area’s auxiliary bishop Methodius Kilaini saying that Bishop Mbahulira had been on a ventilator while in hospital.

While many more people were reported to have died, the government seemed reluctant to admit the existence of COVID-19 in the country and take the measures that any responsible government would deem necessary to take to control of the situation. This was despite reports indicating that the South African coronavirus variant had been found in travellers from Tanzania, which led the UK to ban Tanzanians from entering the country, while some countries such as Turkey airlifted their ailing citizens out of Tanzania.

It is against this background that the Tanzania Episcopal Conference (TEC) was the first to issue a statement on 26 January pointing out that COVID-19 poses a dangerous threat to the safety of many Tanzanians and urging its congregation and the general public to take all necessary precautions to protect themselves against the pandemic. In an interview with the German broadcaster, the TEC Secretary General Dr Charles Kitima told DW that the TEC was forced to issue the statement after noticing an unprecedented number of deaths in their parishes. “For example,” explained Dr Kitima, “in our parishes located in big cities, we used to have one or two requiem masses per week. But nowadays it is everyday, there’s something wrong.” A day later, on 27 January, Magufuli admitted that COVID-19 was present in Tanzania.

On 3 March 2021 Dr Kitima revealed that, between mid-December and February, more than 25 priests, 60 nuns and two members of the laity had died of various causes including respiratory issues, a revelation that invited a reprimand from the government’s chief propagandist, Hassan Abbasi, who warned against what he described as the “arbitrary” release of statistics on diseases such as COVID-19.

His acknowledgement of the presence of COVID-19 in Tanzania notwithstanding, Magufuli did not take any measures to combat the spread of the virus. Even now the government will not admit that there are people dying of COVID-19, the cause of death given being respiratory complications. So people keep on dying with many people announcing the deaths of their relatives and loved ones through various social media platforms.

It would be misleading to claim that all these deaths are COVID-19-related since authorities continue to refuse to test people for the disease. But the rapid succession of deaths was enough to freak the hell out of people who now knew that something was wrong. Some of high-profile people who were reported dead in the month of February include the First Vice President of Zanzibar, Seif Sharif Hamad, who died at the Muhimbili National Hospital after he tested positive for COVID-19, former Bank of Tanzania governor Prof Benno Ndulu, and Chief Secretary John Kijazi. In Mbeya, so many deaths were reported that a regional commissioner, Albert Chalamila, banned the use of the word “sudden” in death announcements.

Even now the government will not admit that there are people dying of COVID-19, the cause of death given being respiratory complications.

Against this background of indifference and carelessness, church leaders intervened again, with the Christian Council of Tanzania (CCT) this time warning Tanzanians that they are not safe against COVID-19 and calling on them to protect themselves against the disease. On February 12, the Evangelical Lutheran Church in Tanzania (ELCT) also asked its congregation to hold a special prayer against COVID-19 while insisting on the need to take all necessary care to avoid contracting the virus.

Other church leaders continued to use their positions and pulpits to urge Tanzanians to take precautions against COVID-19. At the same time, others were coming out to urge people to take precautions with a ruling Chama cha Mapinduzi (CCM) legislator for Mbulu constituency, Zacharia Isaay, asking the government to stop beating about the bush on COVID-19, saying that people in his constituency were dying at an unprecedented rate and that he was tired of burying them.

The church may have forced the government to admit to the presence of COVID-19 in Tanzania but not to mount effective intervention mechanisms to combat the negative effects of the pandemic. Apart from urging people to resort to traditional herbs and steam inhalation therapy to keep themselves safe, the government hasn’t made public its COVID-19 response plan. Government officials themselves are far from observing the safety guidelines recommended to prevent the spread of COVID-19. In many state functions, government officials can be seen not wearing facemasks or maintaining social distance. But getting the government to bow to pressure and confess publicly that Tanzanians are at risk of dying of COVID-19 is no small matter and for this the church deserves some praise. By speaking out, the church acted upon its long and glorious history of intervening in matters of national importance, especially at a time when it is the only institution in the country that can take the bull by the horns in the interests of the people.

With the exception of its history of neutrality during the struggle against German and British colonialism in Tanganyika, and its relative indifference during Tanzania’s single party rule, the church has played a notable role in the country’s political life, particularly since the introduction of fundamental political reforms during the 1990s which included the re-introduction of multi-party politics, a process which took place under the leadership of the late Benjamin Mkapa.

In Justice, Rights and Worship: Religion and Politics in Tanzania, Prof Rwekaza S. Mukandala explains that religion became one of the forums where pertinent issues such as corruption, embezzlement of public funds and other vices that the political system had failed to deal with were addressed. It was during this time that the Catholic bishops, in February 1993, issued one of their strongest statements ever when they blamed the government for the deteriorating economic, social and political situation in the country. Around the same time, the Evangelical Lutheran Church of Tanzania (ELCT) issued its famous Bagamoyo Statement where it spoke of the worsening political, economic and social conditions in the country and the need for the government to take appropriate actions.

In Mbeya, so many deaths were reported that a regional commissioner banned the use of the word “sudden” in death announcements

Since then, church leaders have been acting as mediators between the government and opposition parties, especially following highly contested elections where claims of vote-rigging threaten the peace of the country and during other heightened political moments, by taking part in the provision of civic education to their congregations which includes, but is not limited to, providing voter education to their followers so that they can make informed decisions at the voting booth.

When President Magufuli came into office in late 2015, the relationship between the church and the state was rather bitter and strained thanks to the government’s crackdown on the press and civil society, and its attacks on fundamental rights and freedoms like the freedom of expression and the right to assembly. The churches’ attempts to warn against these tendencies pitted church leaders against reactionary government officials who went as far as threatening to shut down churches it accused of “mixing politics and religion”.’

So far no church has been shut down in Tanzania but the government has tried to minimise the role that the clergy can play in the country’s politics. During the 2020 general elections, for example, the government denied the Tanzania Episcopal Conference (TEC), alongside other experienced Civil Society Organisations, permits to observe the elections, a task that the TEC has been undertaking since Tanzania’s multi-party election of 1995.

Another tactic which has been employed by the state to force the clergy into silence is to harrass church leaders who engage in matters of national interest by arresting and detaining them on trumped-up charges of “threatening the national security”. Bishop Emmaus Mwamakula of the Uamsho Morovian Church who was arrested and detained for seven days ahead of planned demos to demand a new constitution, is the latest case of such harrassment.

As far as the relationship between religious leaders and the Magufuli administration is concerned—with the notable exception of Sheikh Ponda Issa Ponda of the Council of Imams who has been a thorn in the flesh of the authorities for many years and who has been able to maintain such a reputation at huge personal cost—Christian leaders have been more open and forthcoming when it comes to standing with the people against state repression than their Muslim counterparts.

Getting the government to bow to pressure and confess publicly that Tanzanians are at risk of dying of COVID-19 is no small matter and for this the church deserves some praise.

The clergy intervened in the COVID-19 situation in Tanzania at the most critical moment when absolutely nobody had the guts to tell the king to his face that he was naked. Church leaders came out to confront the dangerous rhetoric by government officials who kept on fooling people by telling them to go about their business and leave COVID-19 to God who would miraculously take care of it. At his press conference on 3 March 2020, TEC’s Dr Kitima urged Tanzanians to take all the necessary precautions against the pandemic, urging them to ignore the baseless claims that their God would intervene on their behalf. “Prayers alone are not enough,” Dr Kitima correctly pointed out. “We need to also consider scientific findings.” That it took religious leaders to insist on the usefulness of science in combating a pandemic while the leaders of a secular state were busy endangering the lives of their people by promoting superstition will be the biggest irony in Tanzania’s history of secularism.

The clergy may have forced the “denialist government” of Tanzania to abandon its false claims that the country was coronavirus-free. While such a development is a step in the right direction against the COVID-19 pandemic, merely acknowledging the presence of COVID-19 will not save Tanzanians from dying of the disease. A lot is still at stake. With President Magufuli remaining skeptical of the COVID-19 vaccines, and the Director General of the National Institute for Medical Research (NIMR), Prof Yunus Mgaya, saying that there is no need for Tanzania to rush for the vaccines, calling them a product of “neo-colonialism”, Tanzanians risk being locked out of the world, as the recent announcement by Saudi authorities that COVID-19 vaccines would be a mandatory requirement for anyone preparing for the 2021 Hajj vividly shows.

Church leaders have successfully shown that pressure works and now is the time for others – the press, the CSOs, the WHO, trade unions, etc. – to join forces and pressure the government into prioritising the fight against COVID-19 for the safety of Tanzanians. We are at a critical moment in our history where our actions or inaction will determine our future relevance and how we will be judged by future generations. We have the opportunity to make the best out of this moment and we must seize it for silence in the face of extinction is no virtue and a fair and responsible society cannot be built upon servitude, opportunism and such a frigid and killing indifference.

The return to multipartyism in the early 1990s and the implementation of the 2010 constitution were seen by many as seminal moments in the democratisation of Kenya. However, in truth, they merely masked what essentially remains an unchanged bureaucratic-security state dating back to the colonial era that is today reproducing itself at the county level. The continuity and longevity of this state has chiefly been the product of an ideology of law and order created to protect the class and commercial interests of an African colonial elite.

For the colonial enterprise in Kenya to succeed, it needed local allies who would bring existing economic and political institutions into the newly created colonial order. However, this arrangement, which privileged the small white settler community, irrevocably corrupted and even usurped indigenous African authority and generated a collaborating class of African big men whose loyalty was no longer to kinship networks and ties but to the newly established colonial government.

Over time, the newfangled chiefly power and leadership of men like Koinange wa Mbiyu, Karuri wa Gakure, Njiiri wa Karanja, Mumia of Wanga, Ole Murumbi of the Maasai, Owuor Kere of Nyakach, Kinyanjui wa Gathirimu, Muhoho wa Gathecha, Michuki wa Kagwi and Ogola Ayieke resulted in a ready-made socioeconomic and political class to whom independence and state power could be entrusted in 1963.

It is therefore no coincidence that many of the politicians and senior government administrators who have dominated the top ranks of government and the civil service in post-colonial Kenya were scions of this class. These include the recently deceased Simeon Nyachae (son of Chief Musa Nyandusi), Joab Omino, the Mwendwa brothers (Eliud Ngala Mwendwa, who served as the Minister of Labour in Jomo Kenyatta’s cabinet, and Kitili Mwendwa, the first African Chief Justice of Kenya), John Njoroge Michuki, Kariuki wa Njiiri, Peter Mbiyu Koinange (son of Chief Koinange who also served as a powerful Kenyatta minister).

Although he was not himself the scion of a colonial-era chief, Jomo Kenyattta wisely married into chief Koinange wa Mbiyu’s family and, later, into that of Chief Muhoho wa Gathecha, thus founding one of Kenya’s foremost and lasting political dynasties. His immediate successor, Daniel arap Moi, established his own dynasty that is showing a similar political tenacity.

The return to multipartyism in the early 1990s and the implementation of the 2010 constitution were seen by many as seminal moments in the democratisation of Kenya. However, in truth, they merely masked what essentially remains an unchanged bureaucratic-security state dating back to the colonial era that is today reproducing itself at the county level

Jomo and the presidents who succeeded him have all sung the same refrain of law and order that was sang in colonial times. For this class of big men, political stability and the peaceful maintenance of the status quo has been the singular objective. Through a masterful stroke of political genius, Moi repackaged it into the populist appeal of his Nyayo philosophy of love, peace and unity. Mwai Kibaki, for his part, hinted at it when he reminded people that Kenya was a working nation and that there was nothing for free. At every stage of its evolution, the Kenyan state has had a steady hand at the helm ensuring the continuity of the ideology of order.

However, ensuring the survival of this vision amid the political reality of the Kenyan state with its veneer of democracy demands the suppression of all alternatives articulated and championed through political dissent. Beyond its preoccupation with the preservation of power, the ideology of order is thus also committed to protecting the Kenyan state and its brand of democracy from the people.

‘The danger to democracy is the people’

One of the colonial state’s greatest fears is the masses. Colonial authorities, and later, independent Kenya’s African ruling elite, were afraid the hordes of have-nots might rebel and challenge the politics of law and order as they had in 1952. Therefore, the imperative was to coopt, exclude or crush all dissenting voices in society. This is a task that the political heirs of the colonial state — led by Kenyatta and the scions of chiefly power such as his attorney general Charles Njonjo — fulfilled to the hilt.

Having already been recognised as the rallying political symbol through whom the hopes of the European community, London’s commercial interests and continued military presence, and the ideology of order could be secured, Kenyatta had his task already cut out for him on the eve of independence. He faced-off with the Kenya Land and Freedom Army — the Mau Mau — who sought to create an equitable society by any means, including violence. Unsurprisingly, early during Kenyatta’s tenure at the helm, much of the time was spent coaxing fighters to leave the forest and surrender their weapons.

One of the colonial state’s greatest fears is the masses. Colonial authorities, and later, independent Kenya’s African ruling elite, were afraid the hordes of have-nots might rebel and challenge the politics of law and order as they had in 1952

On the whole, Kenyatta attempted to temper the high expectations of ordinary Kenyans with his calls for Harambee (pooling together), pleas to forgive and forget the past and, consistent with the ideology of order which he understood only too well, entreating people to celebrate and embrace “uhuru na kazi” (“freedom and work”) — an appeal later echoed by Kibaki.

Toward the end of Kenyatta’s tenure, as his faculties were dulled by age, his ideological lieutenant, Njonjo, a chiefly big man in his own right, held guard against “dangerous agitators”. Njonjo openly threatened to jail the radical novelist Ngugi wa Thiong’o who had just penned his incendiary novel, Petals of Blood which both London and Nairobi feared would inspire a revolution. The palpable and shared crowd-phobia by the custodians of the ideology of order shows they understood that “the danger to democracy is the people”, who had to be thwarted at every turn and by every means available to the state.

Moral anarchy and the culture of impunity

The colonial state was built not through consensus as a democracy, but by decree. Not only did the colonial system corrupt African traditional authority and contribute to the destruction of African morality — thus creating moral anarchy — but it also sowed the seeds of a political culture of impunity. Indeed, the colonial state was itself a result of impunity.

Two of Kenya’s largest corruption scandals, Goldenberg and Anglo Leasing, were enabled by this culture of impunity. The Goldenberg scandal, which occurred between 1990 and 1993 under Moi’s imperial presidency, entailed the government paying Goldenberg International special compensation for fictional exports of gold and diamonds. The total cost of the scandal is unknown, but some estimates indicate that up to 10 per cent of Kenya’s GDP was lost.

Anglo Leasing, which occurred between 1997 and 2003, involved payments to a British company under the guise of investing to improve Kenyan security services, such as $36 million for new high-technology “tamper-proof passports”. However, the scandal also involved payments to other fictitious corporate entities that were paid to supply naval ships and forensic laboratories. The fact that this scandal straddles both the Moi and Kibaki administrations is quite telling. It shows that high-level corruption in the country is deeply entrenched in the bureaucracy and is, therefore, systemic or institutionalised. Alluding to this repugnant systemic morass of corruption, John Githongo, the former anti-corruption tsar and whistleblower who served in the first half of Kibaki’s first administration as the Governance and Ethics Permanent Secretary, sadly observed in a public personal statement on May 2, 2019 that:

“The Anglo Leasing model of misappropriation of resources from the Kenyan people has continued unabated since 2001. . . . Over the past six years in particular the plunder of public resources has accelerated to levels unprecedented in Kenyan history since independence. Increasingly the economic, political, social and very personal cost of this plunder by officials in positions of authority has been borne by the Kenyan people directly.”

Illustration: Gado

The Uhuru Kenyatta government too has been rocked by several corruption scandals including the Eurobond scandal which entailed the mysterious disappearance of over $1 billion after Kenya issued its first sovereign bond in 2014. The amounts of money said to have gone missing under Uhuru Kenyatta are staggering. It is not surprising that skyrocketing corruption under President Kenyatta, the country’s fourth, dwarfs all previous corruption scandals.

Flagrant and rampant corruption in the post-independence era has surprised even Kenya’s erstwhile rulers. Reacting to Anglo Leasing, the biggest scandal of the Kibaki era, Sir Edward Clay, the then British High Commissioner to Kenya, lamented that top figures of the hegemonic regime were eating “like gluttons” and vomiting “all over our shoes”.

This “eating” culture at various levels of the bureaucracy and in the high echelons of government is mirrored throughout society. Corruption permeates Kenyan society because it is the sort of society that the predatory state has created. In 2015, exasperated by rampant corruption, Dr Willy Mutunga, then Kenya’s Chief Justice of the Supreme Court of Kenya, concluded that Kenya had become a “bandit economy”. The respected and high-ranking jurist complained that corruption stretched from the very bottom to the very top of society. As an apparatus transforming society, the Kenyan predatory state has created a sukuma wiki bandit economy characterised by survival by any means necessary.

Indeed, corruption so permeates society that it scarcely leaves anyone untouched or unaffected. The unwritten code is expressed in the African proverb, “the goat eats where it is tethered”. It is, therefore, not surprising to find corruption and the trading of favours, bakshish, among lawmakers, among revenue collection officials, among parents, teachers and students in schools and universities, among doctors, nurses and staff in hospitals, in the corridors of justice among judges and magistrates and even in the so-called disciplined forces including the police.

The colonial state was built not through consensus as a democracy, but by decree. Not only did the colonial system corrupt African traditional authority and contribute to the destruction of African morality — thus creating moral anarchy — but it also sowed the seeds of a political culture of impunity. Indeed, the colonial state was itself a result of impunity.

The poor remuneration of public servants, a poor incentive system for hard and honest work (due to nepotism and ethnic discrimination) and socioeconomic frustrations caused by unemployment or underemployment, force ordinary citizens to resort to corruption. Working people, much like a tethered goat, tend to eat where they are “tethered”, or, put differently, use the nature of their work to look after themselves. Professional people, therefore, do not only find it necessary but also morally easy to exploit their professions or their workplace because of such tacit African cultural sanction of bakshish – acceptance of relatively small gifts or money in return for services rendered. In the meld of African traditional values and modernity in a society imbued by corruption, the line between gratitude and corruption is blurred.

In this way, therefore, the strategies adopted for material survival by school principals, the military, lawmakers, judges, magistrates, the police and other civil servants, people in the private sector, and even criminals, are not dissimilar from those used by leaders to accumulate power and wealth. Thus, the tempting image of innocent, by-standing masses, or viewing the Kenyan public as victims of grand corruption, is shattered. There is, therefore, no prospect of a united demand for clean government. It could even be said that very few Kenyans qualify to make such a demand.

Source: Afrobarometer

In Kenya, the bribes collected go by many words: bakshish, chai (tea) or kitu kidogo (something small). In this sukuma wiki bandit economy characterised by predatoriness, survival is at any cost. Hence, the civil servant and other officials who are poorly remunerated, or simply harbour an insatiable greed for riches, make their living or build their fortunes off the people they serve rather than from their meagre salaries.

Even heads of public schools are known to charge exorbitant tuition and illegally admit students, while in hospitals, necessities like mattresses and bed sheets, even prescription drugs, are known to be sold-off by poorly paid staff. At times, members of the police force, politicians and other public authorities, are forced to collude with the criminal underworld. Facing harsh laws or the lynch mob, young criminals have no choice but to kill or be killed, unleashing a veritable balance of urban terror. This can also be interpreted as an unlawful effort at a re-distribution of the resources hoarded by the rich in society. In major cities, rural areas and townships, local people engage in all sorts of vandalism of public service installations and petty theft. In other more remote localities, traditional raiding or cattle rustling, for example in the North Rift region and the North Eastern Province, this survival-by-all-means bandit economy translates into a form of political action.

Culturally and structurally, therefore, both the state and Kenyan society have mutually transformed each other, producing a national psyche characterised by moral anarchy and primal greed; the state and society mutually reinforce each other in entrenching unabated, runaway corruption, a culture of impunity, and politics of (dis)order.

Illustration: Gado

The twin tyranny of political tribalism 

At the core of the bane of politics in post-independent Kenya is the twin tyranny of political tribalism. On the one hand is the tyranny of the masses, that is, the pressure that different ethnic groups — and seasonal and shifting ethnic-political alliances — place on their respective ethnic bigwigs. On the other is the tyranny of the ruling class that is responsible for the institutionalisation of grand malfeasance. These two tyrannies feed off each other and are, as such, inextricably connected.

With political consciousness and organisation restricted only within the bounds of discrete, administratively designated “ethnic regions” during the colonial era and well into the postcolonial period, wealthy politicians have acted as guardians or custodians of their respective ethnic groups to the exclusion of all others within the political context of perceived stiff competition for public goods or state power.

The masses, as ethnic political “patrons” — either pursuing their real or perceived pan-ethnic interests — neither have tribal innocence nor are they innocent of the endless accumulation and concentration of power in the hands of the political elite without accountability, and the perpetuation of corruption. After all, when they act, whether at the ballot box or when they defend their ethnic elite “clients” even when they are accused of grand corruption, they do so simply along ethnic lines.

Both in the colonial and postcolonial periods, therefore, ethnicity (political tribalism) acts as the main vehicle through which dominance and the preservation of power and resources are achieved. In turn, ethnic political elites are beholden to “their own”; they are expected by their respective ethnic groups to defend and expand real or perceived pan-ethnic interests and opportunities with regard to the modern economic, or civic public, sector.

This, then, is the first tyrannical twin of political tribalism. A classic case of the tail wagging the dog or, as E.S.A. Odhiambo puts it in The Political Economy of Kenya, the logic of patron-client relationships turned upside down. According to Odhiambo, political entrepreneurs:

“Came to the threshold of state power with a specific objective. The bottom line for all of them was that they had to ‘deliver the goods’. . . . To maintain and reproduce their bases of power, they had to recruit, sustain, and reward their followers from time to time. . . . The peasants have the latitude, at elections, to shift their patronage. The fascination with the fact that the Kenyan member of Parliament is vulnerable at election time should acknowledge the fact of peasant choice as well as the peasants’ success at insisting on accountability by the parliamentary representative to his constituents. Put more directly, the masses put the leaders on the run to the gates of Parliament. ‘They invaded the state with society at their heels rather than imposed it on the people. They were accountable to an elected democracy’.”

But at times, indeed, more often than not, and increasingly over the course of time, to do so – delivering public goods to sustain the support of their patrons, namely, their close individual supporters/enablers or cronies and tribes – politicians, as tribal clients, have no recourse but to seek to gain private capital out of the public domain. State coffers are, therefore, raided rather blatantly by the political elite in order to benefit their immediate and extended families (nepotism), ethnic communities (tribalism) and/or elite cronies and political allies.

This, then, is the second twin tyranny of political tribalism: rampant, massive and seemingly endemic institutionalised corruption unleashed on the nation by the political elite in their quest for the accumulation, concentration and perpetuation of power and (re)producing themselves. This is the conundrum of the twin tyranny of political tribalism. On the one hand, a collection of patron-tribes acting as rational actors exacting high expectations of public goods on their clients, their corresponding ethnic political elites. And on the other hand, insatiable politicians who exploit ethnicity and such tribal expectations and demands to profit by looting the public domain. There are, after all, no serious investigations into subsequent and ever increasing corruption scandals.

Tribal bigwigs are untouchable sacred cows even when implicated or involved in appalling corruption scandals. After all, they enjoy the unstinting support of their tribes who would rather be “eaten” by the hyena they think they know (a politician from their own ethnic group) than one they neither really know nor care to know (a politician from a different ethnic group).

It is not surprising, therefore, that when it comes to fighting corruption, Kenyans are rather resigned to their fate. Politics, for the most part, is viewed as an inherently flawed and dirty game; a rather cynical acceptance that ordinary citizens can do nothing about it except vote for political tribalism. This languid attitude ensures that, collectively, ordinary people are unsafe and are, more often than not, not at the table but, rather, on the menu. And so goes the vicious cycle, the Kenyan political circus window-dressed as a paragon of Western democracy in Africa although multiparty elections are largely nothing more than ethnic contests that take place every five years.

The Configuration of State Patronage / National Finance Grid (NFG)

Fig. 1. The distribution of state finance capital in the Kikuyu-centric Kenyatta state, 1963–1978.

Fig. 2. The distribution of state finance capital in the Kalenjin-centric Moi state, 1978–2002.

The ideology of the propertied elite is thus shored up by the pervasive ideology of tribalism which defines the struggle and capture of state power. The corresponding democracy emanating from within such a political system is one in which the election-winning strategy is based purely on ethnic considerations. Political and economic competition in the context of tense inter-ethnic relations has a deleterious and blighting effect on a range of important institutions that generally give states their form, stability and longevity.

The highly ethnicised nature of Kenyan politics and the stultifying and stunting sway and monopoly of ethnic kingpins has historically created personality cults and hegemonic political dynasties that hark back to the very first collaborating class of African big men who were produced by the colonial order of the early 20th Century.

Culturally and structurally, therefore, both the state and Kenyan society have mutually transformed each other, producing a national psyche characterised by moral anarchy and primal greed

Having reproduced itself over the years, this political class has consolidated a hegemony that enables it to flaunt, subvert or circumvent institutions based on democratic values such as the constitution that guaranteesfreedom of expression, freedom of conscience, freedom of meeting, freedom of association, the rule of law; a free and independent judiciary; an independent election commission; public integrity and control bodies; and the civil service, among others.

But it is the generic political partyfounded on principles or championing social issues of concern and pursuing clear ideological positions that has, arguably, borne the brunt of dynastic and tribal politics. In the face of political tribalism and dynastic politics, the democratic multiparty political system is weakened and stultified. Ethnicity, the fulcrum on which national politics revolves has, therefore, implied the inexorable death of the political party in Kenya.

This is the unspoken consequence of the double tragedy of the twin tyranny of political tribalism that exists beneath the thin veneer of the preponderant ideological insistence on “order”, a political “order” underpinned by moral anarchy and the assorted vagaries of political tribalism. One, moreover, that suppresses political dissent and one, therefore, that is, at once, anti-people and, thus, anti-democratic, chaotic and violent; and one that perpetuates the endless search for, and accumulation of, power accompanied by skyrocketing corruption. It is, alas, political disorder that is based on a false political stability enforced by the state security apparatus – regular and anti-riot police, intelligence services and the army.

In post-independent Kenya, therefore, the colonial ideology of order is sustained through the very means that were used at the state’s inception – force, authority, bureaucracy and power.