Around the world, the internet has become an important source of information, influencing decisions on everything from news and politics to shopping and recreation. Employers today will use internet search engines to check out prospective employees just as voters are likely to “google” politicians they are considering voting for. The search engines, of which Google is the most dominant, categorize the mass of available online information on any particular topic into consumable chunks and decide which ones are most relevant for any particular search.
With so much resting on search results, it is no surprise that a whole industry of reputation management has been spawned with companies dedicated, through means fair and foul, to gaming the system in favor of their clients. While some engage in enlightened best-practice, such as optimizing content and websites for the search engines, others are practitioners of the dark arts, utilizing intimidation and deception in campaigns to suppress unflattering information.
According to its website, the Spanish firm, Eliminalia “was born to ensure every individual and company maintains its privacy and network security, regardless of the uncensored information that has been posted on the Internet – whether malicious, incorrect, or embarrassing”. In short, its mission is to erase internet content its clients consider objectionable. Media reports in August last year – denied by both parties – claimed that Kenya’s Deputy President, William Ruto, had retained the company to spruce up his online image as he prepares for a run at the country’s presidency in 2022.
While some engage in enlightened best-practice, such as optimizing content and websites for the search engines, others are practitioners of the dark arts, utilizing intimidation and deception in campaigns to suppress unflattering information.
However, the techniques the company utilises are not always transparent and could even be illegal. A newly released investigation by Qurium has found that the company is involved in a campaign of intimidation and deceit using fake lawyers and impersonating regulators to threaten websites into taking down content, and creates fake websites to manipulate search results.
In an initial report summarising some of their findings, Qurium shows how the Digital Millennium Copyright Act (DMCA), a US law enacted in 1998 that requires hosting services and internet service providers to take down content when notified of copyright infringements, and data protection regulations as the EU’s General Data Protection Regulation (GDPR), are systematically abused to restrict the freedom of the press, particularly when investigating corruption or abuses of power.
Some of the techniques used by Eliminalia to eliminate, modify or de-index content from the Internet identified by Qurium include creating copies of original content in other websites, backdating it and then filing a DMCA complaint to Google for copyright infringement. Thanks to research access granted by the Lumen Database, Qurium found several identities used by Eliminalia to file such complaints. The company also sends fake GDPR abuse reports using fake legal e-mails and domain names.
De-indexing is a process that involves removing a website from the search engine’s index but not from the page where it originates which means that a website or a specific URL stops being seen in search results. The Google search engine will automatically de-index content that it determines is not original, that is, which has been previously published on another web page. Cloned websites abuse this by making it difficult for the search engine to determine which is the authoritative source.
One of the methods to push down results in search engines is to clone the full content of the websites in similar domains. During the cloning of the content, all articles that their clients do not want to be published are avoided. This strategy is consistent with their definition of de-indexing in their contracts.
The forensic analysis by Qurium determined that Eliminalia creates fake domain names and impersonates the EU Commission in order to send fake take down requests. The company also submits fake copyright complaints to Google and clones original articles from websites in an attempt to de-index content from search engines. It also uses hundreds of fake newspapers hosted in the Ukraine to support disinformation campaigns on Social Media.
The Google search engine will automatically de-index content that it determines is not original, that is, which has been previously published on another web page. Cloned websites abuse this by making it difficult for the search engine to determine which is the authoritative source.
The Elephant has been among those targeted by such content take-down campaigns. They involve notices from fake legal firms claiming copyright infringement or invoking data protection legislation and demanding removal of the content without revealing the identity of who is paying for their legal services.
After exchanging dozens of e-mails with different “lawyers” in the course of several months, Qurium, which provides secure hosting services for human rights organisations and independent media – including The Elephant – from more than twenty countries, managed to identify those behind such campaigns and the infrastructure that has been put in place to support such businesses.
Emails from IP addresses associated with Eliminalia, which has registered offices in Spain, the US and the Ukraine, were sent to Qurium, purporting to be from lawyers and from the Legal Department of the European Commission in Brussels demanding removal of articles related to corruption in Angola involving Isabel dos Santos or Vincent Miclet.
The Elephant has been among those targeted by such content take-down campaigns. They involve notices from fake legal firms claiming copyright infringement or invoking data protection legislation and demanding removal of the content without revealing the identity of who is paying for their legal services.
One of the emails concerned a story published in The Elephant two years ago regarding French businessman Vincent Miclet’s corruption-tinged exploits in Angola. It was sent February this year to one of Qurium’s internet service providers in the Netherlands by one “Raul Soto” claiming to be from the Legal Department of European Commission.
The physical address provided was actually that of Regus, an office space rental agency in Brussels, Belgium, which happens to be situated in front of one of the buildings of the European Commission. However, the information on the header shows that the email was actually sent from a Ukrainian IP address using a server in France.
The domain it was sent from, abuse-report.eu, appears to have been registered in September last year for the sole purpose of sending fake data protection complaints as it lacks a website or other contact details. Queries on both Censys and Shodan, which are internet search engines that enable researchers to probe hosts, networks and devices, quickly revealed that Eliminalia was behind the fake setup.
A further examination of the internet infrastructure of Eliminalia in the Ukraine found that several of their servers are within an IP address range (188.8.131.52 – 184.108.40.206) which includes the servers of World Intelligence Ltd, a company registered to Diego Sanchez. Diego (Didac) Sanchez Jimenez/Gimenez is also the founder and CEO of Eliminalia. World Intelligence Ltd. hosts almost 300 fake newspapers which are used to run all sorts of “information campaigns” and to clone existing websites in order to “de-index” content out of search engines.
To understand how the 300 fake newspaper websites were used and whether they were used in a coordinated manner, Qurium analysed 3,000 articles published by them during one calendar month. They found that many of the newspapers shared common articles and groups of them posted the same content simultaneously.
The domain it was sent from, abuse-report.eu, appears to have been registered in September last year for the sole purpose of sending fake data protection complaints as it lacks a website or other contact details.
Apart from trying to de-index content from Google Search, they also found that clusters of websites are used to promote fake content. For example, a campaign targeting the Tanzanian whistle-blower website Fichua Tanzania used social media and a cluster of websites to distribute the fake news.
The dangers posed by such tactics to democracy are obvious. Information is the oxygen of democracy, allowing citizens to hold governments to account and to accurately assess their options when making selections in voting booths. Much of this information is today to be found online where it is curated by search engines. However, when companies use laws meant to protect online privacy and guard against copyright theft are abused to silence the press, and when they use fraudulent means to manipulate search results, then the public is deprived of the tools it needs to meaningfully participate in democracy.
This is a problem for the search engines as well. Trust is the currency of the internet. Left unchecked, companies like Eliminalia will inevitably damage public confidence in the results delivered by the engines and thus the public’s propensity to use them.
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Rites And Wrongs: Are we Going the Right Way About Ending FGM?
While COVID-related school closures in Kenya have led to a surge in the number of teenage girls undergoing FGM/C, it is also an opportune time to ask whether Alternative Rites of Passage work.
There are reports from some parts of Kenya that 30 per cent of high school girls have been missing from class. This may be the result of Female Genital Mutilation/Cutting (FGM/C), marriage, pregnancy, the cost of school fees, or a combination of these factors. The Orchid Project reports similar findings, although its survey was published last September and the situation may well have worsened since then:
“The impact of COVID is huge,” says Charles Leshore, who formerly worked for a leading Kenyan health NGO that campaigns against FGM/C. He is also a board member at a school in Kajiado, and has seen the negative impacts there and across the county. “COVID and school closures have significantly erased a lot of good work [around FGM/C] and more girls have succumbed to teenage pregnancy, FGM/C, depression and mental health issues.”
The issue goes well beyond Kenya. Judy Gitau, Regional Coordinator for Africa for the NGO Equality Now (whose Africa office is in Nairobi) warns: “Schools are generally safe spaces for girls and those not in school are more vulnerable to human rights violations, including sexual and labor exploitation, human trafficking, female genital mutilation, early pregnancy, and early and forced marriage. Schools provide a channel via which violation or threats can be reported and action taken. This pandemic has shut down this key source of safeguarding . . . .”
With a couple of exceptions, this article will not name any other NGOs from this point on to avoid seeming to show favour or disfavour.
Our starting point is that this is an opportune moment to pause and ask whether anti-FGM/C strategies have been working. This will be our main focus, with particular reference to Alternative Rites of Passage (ARP, explained below). One of the authors (Hughes) has researched this subject academically, while Newell-Jones has empirical knowledge of it as a development practitioner. We shall also refer to FGM/C as “the cut”, which is the colloquial expression, at least in East Africa. Efforts to end the practice take many forms, of which ARP is only one.
FGM/C in Kenya: laws and incidence
FGM/C has been outlawed in Kenya since 2001, first under the Children Act 2001 and later under the Prohibition of FGM Act 2011. It was further proscribed (by implication, not by name) in the Constitution of Kenya 2010 (CoK), which banned harmful cultural practices without specifying what these are. Although the CoK upholds rights to culture, it also says that these cannot include harmful cultural practices. Under the 2011 Act, an Anti-FGM Board of Kenya was established, with a remit to spearhead anti-FGM/C efforts nationwide. Despite this legislation, and the efforts of the Board, the practice continues. According to the Kenya Demographic and Health Survey 2014, 21 per cent of all Kenyan women aged 15 to 49 years have been circumcised. This compares to 38 per cent in 1999; the rate is steadily falling. The incidence is, however, much higher in certain communities, e.g. 94 per cent among the Somali and 78 per cent among the Maasai. Worryingly for campaigners, FGM/C is increasingly becoming medicalised, meaning it is being performed in secret by medical practitioners in a child’s home or in government health facilities. Medicalisation was highlighted in the court case brought by medical doctor Tatu Kamau, which she recently lost. In 2018, UNFPA reported that 20 per cent of FGM/C in Kenya was performed by medical professionals, compared to 77 per cent in Sudan and 12 per cent in Nigeria.
What are Alternative Rites of Passage?
This relatively new approach to tackling FGM/C was developed by NGOs and some communities. It has become increasingly popular in Kenya and Tanzania, and with international donors that fund anti-FGM/C work. At least ten NGOs in Kenya run ARP programmes, or have done so in the past. ARP is only believed to be effective in communities where FGM/C traditionally involved initiation into womanhood, not those in which pre-pubescent girls, even babies, undergo it. This is because NGOs seek to use ARP to replicate girls’ initiation, but without the cut. As Christine Alfons, Founder of SAFE Engage Foundation, explained to us: “ARP is more effective in communities where the cut is done towards the marriage time. In Kuria, girls are cut way back before they are ready for marriage, so we don’t need ARP, it adds nothing and takes many resources.”
ARP is known colloquially as a “ritual without cutting” or “circumcision by words”. There is no standard model, but it usually consists of two parts: a training session or sessions, for girls and sometimes boys, followed by a public graduation ceremony where the participants declare that they have renounced FGM/C. The participants include not only girls and boys but also their parents (though not all parents attend, or even oppose FGM/C), elders, other members of the community, and VIPs who can include police chiefs, teachers, faith leaders, representatives of the county council and the Anti-FGM Board. ARP usually takes place during the school holidays, to coincide with the “cutting season”. Most cutting is carried out in the long school holidays in November-December, April, or July-August with local variations.
ARP was first developed in Kenya by Maendeleo ya Wanawake in collaboration with PATH (Programme for Alternative Technology in Health), in the Tharaka area of Meru in 1996. The few studies on ARP that exist all cite this pioneering work, but without being able to access the original data, and in the absence of follow-up studies, it is difficult to draw conclusive lessons from it. ARP remains highly under-researched, both by scholars and development practitioners, and research access is difficult to negotiate. The Anti-FGM Board acknowledges that more research is needed.
ARP training sessions
The training or educational element of an ARP is arguably much more important than the final ceremony, though media coverage, NGO reports and the Anti-FGM Board pay far less attention to this. For PR purposes, it’s not sexy or eye-catching and nor is it deemed newsworthy.
The training sessions, when combined with longer-term community sensitisation and other measures that form an integrated multi-pronged approach, are vital if attitudes and behaviour are to change. Evidence that they actually achieve those aims, however, is hard to find, largely because no long-term evaluations have been carried out on the educational element. We only know of two NGOs that hold quizzes some months later to test how much children remember about the anti-FGM/C messages. It is difficult to access the training, and requests to see curricula and teaching materials are often declined. The following observations are mostly based on Hughes’s experience of sitting in on training sessions run by two major NGOs that did allow access, where she took verbatim notes with the aid of local translators.
The training sessions usually take up to a week, sometimes two, and often take place in girls’ boarding schools where the girls stay for the duration of the ARP. (If boys are included, they usually stay in boys’ boarding schools nearby.) The curriculum can include: traditional culture (good and bad), harmful practices, the law and FGM/C, health and hygiene, food and nutrition, sexuality and reproductive health (including sexually transmitted diseases), drug abuse, human rights, violence against girls and women, self-esteem, the bible/Christian faith (if the community concerned is Christian), and “good morals”.
ARP graduation ceremonies
These are days of high excitement, celebration and expectation. For the children, it’s a chance to dress up, perform songs and dances, and laugh with their friends. It often starts with a parade to the venue, the girls and boys (if they are involved) striding along carrying NGO-branded banners, singing songs about stopping the cut. Journalists and camera crews are out in force, scrambling for visuals and soundbites. Some parents (not all attend) sit separately, looking slightly baffled as the ceremony unfolds. In some ARP ceremonies, parents publicly declare they will not cut their daughters. Hours of speeches from NGO staff, pastors, elders, health workers, teachers, law enforcers and VIPs have tested most onlookers’ patience by mid-afternoon. The graduates are presented with certificates towards the end of the day: the girls’ certificates confirm their personal commitment to remain “cut free”, the boys’ certificates confirm their commitment to keeping their sisters and future daughters “cut free”. Musical performances by the children, and cultural artistes, are highly entertaining and the poems and songs written and performed by children can be very moving.
What are the challenges and weaknesses of ARP?
Besides those already mentioned, these include:
On the training: There is, from observation, wide disparity in the quality of the teaching, with some trainers (rarely professional teachers, not that this would necessarily be appropriate) clearly unprepared and ill-equipped to teach. Many trainers are outsiders, rather than members of the community concerned, though some NGOs do take care to include “grassroots” people. The mode of delivery can resemble brainwashing, while some of the content jars with the avowed aim of empowering girls to make their own choices about their bodies and future lives. For example, the trainers repeatedly tell girls to “be obedient”, especially to men, parents and elders, yet these are often the very people who want to see the practice continue, and who force girls to undergo FGM/C and child marriage.
The emphasis on obedience, this time to God, is repeated in the lessons about faith, and features throughout the programmes run by faith-based NGOs. (We refer only to Christian NGOs here, and have not studied the approach taken by Muslim ones; there is less uptake of ARP in Muslim communities.) It is drummed into the children that FGM/C is a sinful act, it displeases God, is “the devil’s work”, and so on. Some Christian NGO staff defend this approach on the grounds that faith is a key vehicle for messaging, and that it’s important to point out, to a predominantly Christian audience, that the bible does not condone or even mention FGM/C (though it does endorse male circumcision). Some scholars also see the use of religious discourse as helpful in certain situations, noting how “many participants drew inspiration from the Bible in a way that enabled them to cope and deal with adversity”.
But how can biblical arguments convince non-believers? Furthermore, they encourage people to stop practising FGM/C for biblical rather than, say, health and human rights reasons. Fear of divine retribution for “sinfulness” hardly suggests a sincere change of heart. As a 45-year- old Maasai Pentecostal pastor’s wife who took part in a focus group discussion (mediated by Hughes in a Kajiado village in March 2015) said: “As a Christian I have to obey what the law says. As a good Christian, unless something is against the word of God I will do it. But if it’s clear in the Bible that it’s wrong, I can’t continue [to support FGM/C].” Earlier in the discussion, this woman had said she used to “love” FGM/C before she was “born again”.
Good work to tackle FGM/C is undoubtedly being done by some faith-based NGOs and individual churches but it tends to be undermined by what may be called “fire and brimstone” religiosity. This was very evident at some training sessions we observed. The emphasis was on fearing God, confessing sin, and families being excluded from church if they cut their daughters. Evangelical pastors also lead entire sessions that resemble religious services at some ARP ceremonies. However, both Christianity and Islam believe in the perfection of God’s creation of man and woman, which can lead to powerful anti-FGM/C messages. As one clergyman trainer put it: “What God created in human beings was complete, nothing to be added or subtracted . . . God made us perfectly. So those people who come and cut those parts are doing a wrong thing.”
NGOs say that the lessons on culture and tradition are meant to mimic the instruction that girls traditionally had before or after they were cut. But back in the day, girls were taught by older women to be good wives and mothers, to obey their husbands at all times (even if they beat them), to be sexually submissive, and so on. How does this type of message equip today’s girls to become empowered women, and to challenge gender stereotyping? Clearly, it does not. Hence there is a fundamental contradiction here, for example between lessons on traditional culture and those on children’s and human rights. Girls taking part in ARP told us that they were confused by contradictory messaging.
Good work to tackle FGM/C is undoubtedly being done by some faith-based NGOs and individual churches but it tends to be undermined by what may be called “fire and brimstone” religiosity.
Some scholars have previously noted that telling youngsters that education will bring wealth and high social status is not realistic. We concur. Many of the children we saw in these classes clearly come from very poor families and are highly unlikely to make it past primary school, never mind enter college. Yet a repeated refrain by several trainers was along the lines of, ”if you get educated, you can become a pilot, lawyer or doctor, become an important person like me, travel the world, the sky’s the limit!” This isn’t helpful, and may raise false expectations that will soon be dashed, or leave some girls thinking that the ARP training doesn’t apply to them.
Curiously, the Board’s Guideline for Conducting an Alternative Rite of Passage pays little attention to the education component of ARP, but focuses largely on the final ceremony. It gives no detail of what a recommended curriculum might look like, but simply says the training should centre on sexual reproductive health and rights, and subsumes under this “life skills, awareness of sexual and gender-based violence, children’s rights and essential hygiene”. It adds, “Boys and girls are also taken through traditional values, customs and beliefs that positively impact their response to ARP.” This begs the question: but what if the community’s “cultural stakeholders” (who tend to be older men) favour an entirely different set of values and customs that contradict those of ARP? Moreover, a top-down directive from a national body aligned to government is the very opposite of community ownership, and does not augur well for community buy-in – especially in historically marginalised communities such as the Maasai and Samburu, where fear of and antagonism towards government is entrenched.
Views are divided on the use by some NGOs of shockingly graphic videos showing children, even babies, being cut. We believe these are abusive in themselves, and doubly abuse the children shown undergoing the cut. Community members in Kuria in 2015 declared after watching a video of a girl undergoing a very severe type of cut, “but we do not cut like that, our girls are back playing within two days”. Instead of convincing them to abandon FGM/C, the video seemed to reinforce their belief that the way they themselves perform the cut is not harmful. Some NGO staff defend the use of such videos in order to show the grim reality to children who may otherwise disbelieve it. Says Charles Leshore: “The videos bring reality and deep reflections on what FGM/C is, and its negative impact.”
What parts of the training seem to work best? The use of culturally-specific African proverbs went down well. So did the use of humour. So did lessons in West Pokot given by someone calling herself “Mrs Culture”, who spoke passionately about the blight of FGM/C on her own life; the girls loved her honesty and warmth. Lessons on children’s rights were informative about the constitution and the UN Convention on the Rights of the Child, but were contradicted by repetition of the exhortation to “obey your parents”. Interactive sessions on FGM/C facts and myths were also well received.
On the graduation ceremony: Many NGOs claim, amidst media fanfare, to have “saved” large numbers of girls from FGM/C, simply because they went through an ARP. The Anti-FGM Board itself claims, among its list of key achievements in 2011-14, to have “graduated 10,000 girls through ARP”, which implies that they were “saved”. But NGOs admit that some participating girls have already been cut, and that some girls also attend ARPs several times in succession. Why? Because they are fun events, where girls who may not have much freedom at home get the chance to hang out with their friends, dress up, sing and dance, and eat better food than they get at home. Some ARPs in Kuria have been dubbed “fattening camps” for that reason.
A top-down directive from a national body aligned to government is the very opposite of community ownership and does not augur well for community buy-in.
There are very odd elements in some ARP ceremonies, such as the cutting of a huge iced cake at one in Maasai country, and the presence of some Miss Tourisms in high heels and mini-skirts who were presented as role models for uncut girls. (With great respect to the people concerned, who were obviously sincere, what have scantily-clad beauty queens – which is what Miss Tourisms essentially are – got to do with ending FGM/C and offering realistic role models? Given the widely-held myth that uncut girls are more promiscuous than cut girls, beauty queens in minis and heavy make-up seem to be entirely inappropriate role models.) The day often ends with a free meal, but it was notable, at several ARP ceremonies, that VIPs et al. were served superior refreshments to everyone else in a separate venue.
What relationship does all this have to traditional initiation rites? Very little. The ceremonies include “pick-and-mix notions of pastness, culture, social transformation and tradition . . . incorporated into a hybridised ritual”. Some scholars have questioned whether these rites are not in fact better understood as alternatives to rites of passage, or rites of delayed passage, for “girls who underwent the alternative rites of passage did not feel themselves to be women, nor were they considered women by others”. Some may argue that all this is fine, that the means justify the ends. It would be fine if there was any evidence that they did, if these high-cost events were sustainable, and if there was proof that the whole community fully embraced and endorsed them. Thus far, robust evidence is lacking, and sadly, reports that some girls are still cut even after attending an ARP are common.
On ARP overall: ARP can be highly divisive. The selection processes for girls frequently lack transparency and fail to reach out-of-school girls who are most at risk, and most likely to benefit from engagement. Reports are common of priority being given to the daughters of community leaders. Moreover, the girls are often from one or two schools rather than from across the whole community. From an NGO’s point of view, it is far easier logistically to work with a few schools, and with families whose girls are in school, and who (in some cases) have already decided not to cut their daughters.
In its introduction to the 2018 Guideline, the Board recognises that “such alternative rites were neither accepted by the communities where they were conducted nor held for uncut girls only”. The intention of the Guideline is to ensure “community involvement in the planning and execution of alternative rites of passage, reduce undue costs, give more meaning to the alternative rituals and hold the communities together in the eradication of female genital mutilation”. These intentions highlight some of the significant shortcomings of ARP. Apart from those already mentioned, they also include the fact that ARP tends to be delivered to communities, rather than developed and implemented by them. The external funding often far exceeds what communities could raise themselves, once external funding ends. Such a model is therefore unsustainable. Furthermore, the alternative rituals – though they include traditional elements such as elders’ blessings – are usually newly created and unfamiliar to younger generations and community elders alike.
There are contradictions within the Guideline. In the Foreword, Board chair Agnes Pareiyo states that the aim of ARP is to maintain all traditional culture with the exception of the cut. However, culture is not static (as the March 2021 ruling in the Tatu Kamau legal case made clear), but is an evolving tapestry of beliefs and attitudes linking different aspects of community life. FGM/C is one aspect of culture, which is closely linked to the status, identity, role and life opportunities of girls and women. Abandoning FGM/C needs to be more than just replacing the act of cutting with another ritual. The community awareness and empowerment programme which precedes the ARP ceremony needs to reflect the aspirations of the community, with a strong emphasis on the role and life opportunities of girls and women.
Secondly, there is a contradiction between the attempt on the one hand to harmonise and standardise ARPs by suggesting a set of criteria to be met and steps to follow, while on the other hand encouraging communities to develop and own the process. The Guideline lists things which communities should lead on, but all within a prescriptive framework. This drive for consistency contradicts the guiding principle of being community-led, and is likely to increase the feeling that ARP is externally driven, rather than community owned.
They are fun events, where girls who may not have much freedom at home get the chance to hang out with their friends, dress up, sing and dance, and eat better food than they get at home.
The Guideline recognises ARP as “not a standalone approach but a product of community dialogue and school engagements”. This statement in itself highlights one of the key challenges, namely that the ARP ceremony is seen as the vehicle of change, that somehow the ceremony itself changes beliefs, attitudes and opinions in relation to FGM/C. In section 3.9 the Guideline talks about “a productive ARP that delivers the desired change not only to the girls but also to the community”. There is no evidence that the ARP ceremony itself actually brings about change. At best, the ceremony is a means of consolidating, celebrating and communicating change that has previously taken place as a result of education, awareness-raising and community dialogue. As Seleyian Partoip, Founder of Murua Girl Child Education Program, told us, “We see the ARP ceremony as a way of reducing the stigma against the girls who have not been cut. If we can reduce this stigma then maybe more families will make the move to not cutting their daughters.”
The Guideline describes how the community and its leadership needs to be “fully mobilised” and that this process “may take at least six months” prior to an ARP. It usefully lists community dialogue, capacity building, school outreach programmes and cultural learning and exchange as means of community mobilisation. However, it implies that this process is quite straightforward, whereas in reality this is where the real challenge lies, in encouraging dialogue about the harmful effects of FGM/C and supporting the community in taking the decision to abandon it.
When is ARP likely to be most effective?
The activities which appear to result in attitudinal change in relation to FGM/C are those which take place in communities, regardless of whether the community holds an ARP ceremony. They include awareness-raising and intergenerational dialogue on the direct and indirect impact of FGM/C, the associated sanction and benefits imposed by the community and the links to girls’ education, child marriage, etc. Equally important is the active engagement of the youth in discussing their own aspirations for their future. As Christine Alfons told us, “We are the youth, leading change in our community. The whole community needs to be empowered and mobilised on why to abandon the cutting, as girls alone can’t manage to say no to FGM. And one change needs to lead to others about the roles of men and women in our society.”
Some community organisations in Kenya have developed alternative models of ARP which are proving to be more effective than the model that we, and others, have critiqued. The new models have incorporated some of these features: a steering/planning committee that consists primarily of community members greater involvement of youth in the development, implementation and evaluation of the ARP model; community engagement throughout the year which is holistic, based on dialogue rather than instruction, and involves the whole community; the education/mobilisation programme has a consistent message of empowered decision-making, rather than obedience, and redefines the role, status and life opportunities of girls and women, irrespective of whether they are cut; the ARP ceremony is not introduced until there is sound evidence of change towards the abandonment of FGM/C within the community; resourcing for the ARP ceremony comes from within the community, using resources which would have been used for the traditional cut.
Given the lack of evidence that ARP actually works, more longer-term evaluation and research is needed. The Anti-FGM Board is responsible for the monitoring and evaluation of ARPs in Kenya, and its Guideline includes a framework for this. Board representatives often attend ARP ceremonies. In the light of reports of girls still being cut after participating in an ARP, and priority given to girls from more privileged backgrounds, it would be useful if the Board collected and published data on these and other issues.
ARP is being overused in contexts where it is unlikely to succeed, but may be useful in specific contexts when it is community driven and where the community is already changing, and where plenty of mobilisation has already taken place. Most scholars and practitioners agree that community ownership of the process of ending FGM/C is vital to achieving this goal. It follows that ARP should be community owned too, if it is to be continued at all as an anti-FGM/C strategy. Ideally, ARP should be totally community-run without outside intervention; only then will it be sustainable.
Above all, young people themselves need to be more involved in this process. With donor funding being slashed as a result of COVID-19, and the cutting of overseas aid budgets such as that of the UK, the pressure for “magic bullet/quick fix” solutions increases. Reducing gender-based violence, including FGM/C, is likely to remain a priority in the current global climate; however, with reduced budgets it is even more important to ensure funds are spent wisely and approaches like ARP are robustly evaluated and applied only where there is evidence of effectiveness.
Democracy as Imperialism
In a far-reaching long-read, writer and commentator Yusuf Serunkuma argues that ‘democracy’ in Africa is not just a language of (colonial) exploitation, it is the practice of exploitation itself. Our challenge today, is to understand the colonial nature of this democracy – divide and rule, shameless free markets, foreign aid, and loans & media bombardment – and the myriad, so-called good-intentioned crusaders who promote it.
If Marx had lived during our time, he would edit his timeless phrase about religion. He would write, as religion is the opium of the masses, democracy is the crack cocaine of the elite. Especially the African elite, we are high on it. As it quietly destroys our internal organs, we strive for more and of better quality. The vendors are merchandisers all the most aggressive and most persuasive. Their adverts have refused to add the cautionary label, “democracy smoking will kill you.”
These vendors are not only ‘creaming away’ all the profits from their product, but also eating the carcasses of their victims. By the time the African intelligentsia overcome their addiction, they would understand that the enemy to their governance-development question has never been themselves, their bad education or bad leadership but rather the stuff they have been smoking as medication – democracy itself, its crusaders and merchandisers. Democracy is not just a language of [colonial] exploitation, it is the practice of exploitation itself. Problematically mixed with civil liberties, democracy has inextricably, irretrievably tied the African elite to exploitative capitalism, while at the same time, exciting, distracting and completely blinding them from real concerns, or even revolution.
Just the same way colonial exploitation thrived on divide and conquer, democracy does the same, but more tactfully, more elusively. Democracy thrives on a double-layered divide and conquer (a) it disconnects the elite from ordinary folks with the elite not only developing new tastes and cultures —not simply consumptive ones, but lifestyles and practices—but they also become obsessed with their own preservation. On the other hand, the lifestyles, struggles and pains of rural folks are exorcised as slight inconveniences, painful sores and humanitarian— not structural—challenges needing benevolent intervention. And (b) the elite are then split into often terribly polarised “political parties” and other smaller camps, where sustaining or grabbing power becomes the single most important preoccupation. The task of the African intellectual therefore is to understand the colonial exploitative nature of democracy (divide and rule, shameless vulgarity of free markets, disruptive endless ‘human rights’ quibbles, foreign aid, and loans, media bombardment); and the myriad lofty seemingly good-intentioned crusaders.
Let’s start with some basic seemingly obsolete questions: Do former colonial masters still want to exploit the resources of formerly colonised places – specifically Africa? By exploit I mean, to steal or benefit at the expense of the Natives of those countries. Stated differently, are Africans convinced that their former colonisers are happy to see them thrive, and the endless streams of aid and loans, and the gospel of democracy are all meant for their betterment? How about new powers such as America and China? Are they benevolent friends helping in times of need or honest business partners? Has this urge, ambition and plotting to pillage ended? Again, this is not about countries in West Africa where the colonial powers, specifically, France actually didn’t leave after independence but rather retained its grip on their former colonies through especially banking. I am concerned about countries where colonial masters actually “left” upon independence.
The response to these questions is an easy YES; all the world’s new and old powers are interested in stealing from weaker countries especially in Africa. A sombre cry by novelist Ama Ato Aidoo on 500 years of European exploitation captures the painful state of affairs, and a recent meticulous study by Angus Elsby on coffee and cotton captures this ongoing pillage. But the question is this: if Africans know that there are thieves all around them plotting, scheming, and conniving to steal their resources, why are they not resisting the way their predecessors resisted colonialism? Why do Africans feel and behave so weak, incapable, and conditioned to playball as their countries are looted by the same powers their anti-colonial mothers and fathers resisted? Why don’t we have a second wave of anti-exploitation struggle on the continent resisting the new manifestation of colonial-like exploitation?
If Marx had lived during our time, he would edit his timeless phrase about religion. He would write, as religion is the opium of the masses, democracy is the crack cocaine of the elite
Let me make one caveat here: this has nothing to do with the so-called legacy of colonialism – see Mahmood Mamdani and co. – because that would mean seeking to bring an end to a way of doing things, or simple removal of the structures that were left behind after independence. Mine is not a quest to decolonise but rather to see foreign exploitation in all its new forms. Perhaps my first proposition is that seeing and discussing western exploitation of the African continent through the language of colonialism, and its blighted offshoots, neo-colonialism, decolonisation, etc is not necessarily obsolete, but is actually distractive. It denies us the chance to appreciate the performatively non-colonial ways in which the continent is being looted. My core proposition is that we need to see democracy as the new absolute manifestation of exploitation. There is urgent need to go behind it, expose its traps, and confront its beastly smiley face. Africa will need to proudly pursue a de-democratisation struggle—which is certainly much more difficult than the anti-colonial struggle.
Let’s return to my central question: why are Africans not resisting this new form of exploitation – democracy? My answer to this question is threefold: (a) the new exploiters, couched in the slick but highly deceptive, confusingly omnibus understanding of democracy (to include free markets, free and fair elections, freedoms and human rights, free speech, choice, people, representation, equality, justice) have deftly disguised the manifest exploitation of democracy. The face of democracy appears attractive and sophisticated as it displays and performs ironically non-existent Mzungu practices on governance in Europe and North America.
As Ali Mazrui, 1997 succinctly demonstrated, the humanitarian values (freedom of speech, women emancipation and empowerment, freedom of choice, religion, etc.) believed to the guaranteed as so terribly inexistent even in the so-called democracies of the west. The denial of these values, Mazrui noted, only takes a different more subtle form. One doesn’t have to look too far to see how “democratic” America or the United Kingdom treats its black folks, workers, women, drops bombs on other nations for sport, continue to openly loot abroad, etcetera.. The beautiful decorated façade of regular elections, freedom of speech and religion mask a rather dangerous strain of thuggery and exploitation.
There is an army of pleasant looking, beautiful, ever-smiling, sweet-talking and cash-dangling handlers and brokers pushing democracy with high-sounding and seemingly beautiful arguments about justice, rights, the people… etcetera claiming these are provided and guaranteed by democracy. Who could be against that…? They subtly ask. These handlers – these new colonial administrators – do not call themselves Governors and Colonial Lords, but rather “regional coordinators,” “country directors,” “programme managers” and academics. They operate without the brutality, overt racism and insults that defined earlier exploiters. They are constantly “seeking partnerships,” not dominions. They claim to “respect” national sovereignty and independence and will seek to execute their duties in the confines of international law. They will never tell you the history of so-called international law, which explicitly does not recognise Africans as sovereigns but rather just as Africans (see Siba N’Zatioula Grovogui, 1996). In doing all this, they never lose sight on the estate. These new exploiter emissaries include charming fellows in the European Union, American and British embassies, the United Nations offices, World Bank and International Monetary Fund (IMF) and several experts of democracy based at British and American universities—studying Africa! They run tantalisingly named units such as the Democracy Governance Facility (DGF) where they narcotize thousands of local elites into inertia, spending endless hours in offices writing proposals and forging accountabilities (see Makau Mutua, eds. 2009).
These strategies have quietly, methodically captured all local media houses, schools, and all other spaces of active learning to push the democracy agenda into curriculums. In the end, they produce democracy thinking clones – literally, producing democracy’s Uncle Toms. Ever wondered why war-torn countries such as Somalia, South Sudan, Central African Republic, Libya, etcetera have intellectuals and politicians on podiums chanting democracy amidst ruins and dead bodies—entering contracts for oil and other mineral resource explorations, signing off loans and debts? Yes, it is the good work of these handlers.
Oftentimes, these democracy “merchandisers” operate under the language of development assistance. They flood the NGO sector, and civil society. This is in spite of the copious amounts of scholarship that vividly demonstrate that aid does not work (see Andrew Rugasira, 2007; Juluis Gatune, 2010; Dambisa Moyo, 2010). African countries surely do not need aid to stave off famine or prosper – no country ever did – but the givers will not listen. Even when asked to leave, they go away sour-graping like they loved the recipient country more than its leaders. But these new exploiters, wearing their false smiles have, through a series of lengthy and underhand methods—including manufacturing narratives of poverty, predictions of disease, fake annual indices on this and that—they actually force, squeeze, cajole, and harass an African country into receiving aid, but will never mention better terms of trade (see Slavoj Zizek, 2009). If they fail to push this through more technicalized forgeries and liberal concoctions, they’ll resort to outright violence. Examples abound of both covert and overt uses of violence: Egypt, Libya, Afghanistan, Somalia, Iraq, Iran, Cuba, Venezuela, etcetera under the cover of civil liberties. In truth, these are fortune hunters – like their colonial predecessors who rode on the deceptive language of civilising the Natives, these are simply sophisticated thieves who have managed to manufacture a common sense around their practice of theft as the best form of governance (elsewhere, see Pepe Escobar, 2009).
And finally, against such an environment of deftly disguised exploitation and aggressive brokers (c) the current breed of leaders – in the academia, media, and mainstream politics – have been extremely softened by urban life, and the perverse spread of bodily pleasures from Europe and North America. Softeners range from their beautiful wives (and, occasionally, husbands) and long streams of concubines, comfortable beds, to sweet foods, which they have not earned and are haunted by the fact that they do not deserve. Incredible amounts of money circulate among these fellows over and above the rent for their labour. It is a cartel.
All the world’s new and old powers are interested in stealing from weaker countries especially in Africa. A sombre cry by novelist Ama Ato Aidoo on 500 years of European exploitation captures the painful state of affairs, and a recent meticulous study by Angus Elsby on coffee and cotton captures this ongoing pillage
These comprador leaders and elites surviving off the crumbs of elite capital are condemned to perpetual praise and gratitude to their present oppressors – for enabling them access to these crumbs in the theft of their compatriots. Intellectually inferior, and without the backing of a traditional modernities upon which their predecessors —the anti-colonial intelligentsia—were bedecked, our new leaders are barebones, thrown into modernities where they have no histories and are simply drowning. When Partha Chatterjee writes about ‘tradition’ presenting the anti-colonial intellectuals with ‘a liberal rationalist dilemma’, that is, in the words of Lidwien Kapteijns, the challenge to be modern and traditional at the same time, he actually recognises the base upon which the anti-colonial intelligentsia constantly made reference as they negotiated their entry into a colonial modernity in a postcolonial moment. Our new would-be liberationists have neither and are simply swimming with the tide.
Spending endless hours watching European football on SuperSport, and admiring lofty English on BBC and CNN, googling stuff, and busying themselves on the myriad social media platforms, they cannot imagine abandoning these pleasures for thoroughbred struggle, which could benefit the collective. It is simply enough and too much. With the majority of this elite imprisoned at their small desks in parliament, NGOs and Civil Society, they are seemingly content with the status quo since they can ably afford the bodily pleasures mentioned above (you’ll find them endlessly chanting: ‘Compatriots! Do not risk throwing the existing order up in air – who knows where we will land !’). They are obsessed with their pleasures and freedoms guaranteed by democracy as the actual wealth of the country is quietly scooped up by their NGOs and Civil Society funders.
Democracy as divide and rule: Lessons from Uganda
Ugandans are now familiar with constant images of mostly white folks from the European Union, and other western embassies driving to homes of leading opposition candidate after every election. Their agenda remains the most enigmatic. When it was Col. Kiiza Besigye, amidst the tension of a stolen election in 2016 —the Uganda confirmed gross irregularities on two occasions but refused to nullify the election— EU folks would drive to his home in Kasangati for some conversations. We will never know exactly what they discussed but it wouldn’t matter anyway. But they often had such a grand entry and exit from the dusty Kasangati road turning into Besigye’s home. From Kiiza Besigye’s home, they would then go and meet the incumbent, Yoweri Museveni. This Museveni meeting was never as prominently publicised. Most recently, with Bobi Wine becoming the lead opposition candidate in the country, they have been driving to his home in Magere, and quite often to his party offices in Kamwokya. Again, they often make quite an entry. From meeting Bobi Wine, they then travelled a few kilometres to meet Museveni where he assured them that Uganda was not “their enemy” [sic] before posing for pictures.
There is no better manifestation, or blatant display of divide and conquer than seeing these democracy merchandisers strutting from one corner of Kampala to the other just like colonial lords patronising the lead politicians on either side of the rather superficial aisle. Their obvious but deftly disguised intention are threefold: (a) ensure that while these two groups remain diametrically opposed to each other, they do not disturb the peace creating a mess for business. Preach peace— there should be no disruptions to our looting! Because if they did, you will never know where it ends. (b) should either side emerge victorious, no alliances are lost, as all of them will consider you a friend. But more significantly, (c) once the cameras are gone, the EU uses opposition leaders as bargaining chips against which they force Museveni into tougher concessions. They constantly remind Museveni of their potential to support his adversary if he does not play ball. Indeed, if this were the 1970s, these fellows would actually sell guns to both sides, and then bring relief food supplies to war-displaced natives.
Democracy is not just a language of [colonial] exploitation, it is the practice of exploitation itself. Problematically mixed with civil liberties, democracy has inextricably, irretrievably tied the African elite to exploitative capitalism, while at the same time, exciting, distracting and completely blinding them from real concerns, or even revolution
If colonialism thrived on the principle of divide and conquer, democracy thrived on a likeable but sadly, equally dangerous arrangement, ‘multi-party governance.’ As a principle, a multi-party order divides the elite into polarized camps, political parties, with one forming the government and the other, the opposition. After the country’s intelligentsia are divided, the democracy brokers and merchandisers proceed to conquer them. Deeply divided, and sometimes at the point of violence against each other, Natives never get the opportunity to stop and see their real enemy. The contest over retaining office becomes the major concern for the ruling party at the expense of developing the country. Instead of actually uniting to consolidate their position and use their combined brain power (as their anti-colonial intelligentsia did), the sitting government both imprisons and murders its critics—key human resources—leaving it empty of brain power, and terribly exposed. By the time the democracy thieves strike, the sitting president has sycophants and praise singers to consult with.
In the Ugandan example, we will never know (a) how much money Ugandan president Yoweri Museveni invests in keeping the office of president, since he has some of the most sumptuous classified budget votes—such as state house (spending USH550m daily – US$152,000) with a budget allocation above tourism, the lead foreign exchange earner). It is certainly in billions. Since he has life presidency ambitions, Museveni spends a great deal of time and money procuring members of the opposition. To divide them further. Museveni is also endlessly facilitating and privileging the security forces, which in 2020, took 10% of the entire national budget above health and agriculture. [There is no war in Uganda, and the budget has been as high as this for the last 15 years]. The guardian ministries of the man (state house and security) also get sumptuous supplementary budgets for classified expenditure! But the larger goal is to keep the president in power, since he sees a constant threat in the opposing side.
Parliament, which Museveni obviously does not need if there were no democracy merchandisers pushing him, is terribly bloated with over 530 legislators currently making it the biggest in Africa—bigger than South Africa and Nigeria. Annually, the Ugandan parliament burns USH1.3 trillion (approximately US$360m) of Ugandan taxpayer just for the theatrics of it. Just for the theatrics of it. Yet, everything of consequence in Uganda is pre-decided by Museveni before it is dramatized on the floor of Parliament. Additionally, Museveni employs hundreds of advisors, ministers, Residential District Commissioners (RDCs) with equally senior deputies, simply as part of his great retinue of patronage.
The amount of money and energy Museveni spends on playing other centres of power especially the Catholic church, Muslims and the Buganda kingdom elite is equally immense. These are not simple cash-staffed brown envelopes—which are far too common—these are big sums ranging from billions to churches to four-wheel Land-cruisers. Just to buy off opposition in the name of democracy. But democracy merchandisers hold these items in his face, which forces him into concessions with specifically the foreign exploiters. Let’s now consider the related part of this argument.
As Ali Mazrui, 1997 succinctly demonstrated, the humanitarian values (freedom of speech, women emancipation and empowerment, freedom of choice, religion, etc.) believed to the guaranteed as so terribly inexistent even in the so-called democracies of the west.
Living in simple fear—not the principle—of the opposition (b) we would never know the amount of concessions, Museveni has had to make with the new democracy-wagging exploiters, the self-appointed vanguards of democracy to allow them to continue their pillage of Uganda, and him to continue governing. If he is not sending mercenary forces to Somalia, he is sending them to South Sudan, and DRC. The details of these concessions remain top secrets to the Ugandan public. The Ugandan parliament predicts that the country will need 94 years to clear this debt, which continues to surge every passing day. Business deals where Uganda is left with minority shareholding over its own resources such as oil are simply baffling.
Incidentally, all this rides on the wreck left behind by vanguards of democracy into African economies in the late 1980s when they coerced country after country into dismantling cooperatives that had enabled societies and the people to survive. The dismantling of cooperatives led to a rise in rural poverty after tilling the land had been made unprofitable. If this was no colonialism—an outright plot to exploit and break the toiling masses of Africa —then we’ll never appreciate the depth of its damage to the continent. Because after local economies were ruined, including the closure of all local banks – many of them closed without explanation – the vacuum left behind was filled by European and Asian banks. The Ugandan banking market is now dominated by foreign banks, with business-suffocating interest rates, making banks in Africa the most profitable in the world, yet the most inefficient—according to The Economist. It is extremely difficult, if not outright terrifying, for farmers and small scale businesspersons to access credit. Surprisingly, this so-called Washington Consensus is still enforced 20 years on – even when the damage is visible everywhere – and the WB has acknowledged its mistakes. What the fuck is this?
Yet farmers across Europe and North America are not on their own. They are heavily funded by their states. Take the example of Mali that Slavoj Zizek (2009) writes about, despite producing high quality cotton and beef, the two pillars of its economy, the country could not compete with the US and EU, where the same industries are heavily subsidised:
…the problem is that the financial support the US government gives to its own cotton farmers amounts to more than the entire state budget of Mali… the EU subsidizes every single cow with around 500 Euros per year—more than the per capita GDP in Mali.
These double standards are visible to every single soul from South Africa to Mali and Uganda (see also, Jörg Wiegratz 2019). The promotion of free markets remains a central idea to a so-called democratic government. But in truth, it is outright exploitation through the international dictates of structural adjustment and open markets which are pushed down the throats of Africans as a core parts of ‘democracy.’ Only in Africa!
To return to the question why is there no concentrated movement against this new form of exploitation dubbed democracy (its free market economics, loans, and grants, and foreign aid) and enforced onto only small countries? This is because of democracy’s disguised logic of divide and conquer. The language of democracy ensures the best brains of the country are split into conflicting camps with one obsessed with the holding onto the presidency as much of the intelligentsia remains blind but also conscripted to the networks and channels of exploitation.
The west’s no-change regimes, and PR presidents
One of the most powerful jokes of the 21st Century is the highly cited notion that “power belongs to the people.” It never does, has never, and will never. That in the exercise of democracy—specifically voting—ordinary folks wield their power to determine the ways in which they are governed, remains one of the biggest lies of our time. The lie continues that by this single act of voting, they have power to restore civility, end dangerous policies of previous governments such as removing American troops from Iraq and Afghanistan, which since the start was based on fake intelligence, closing the very embarrassing Guantanamo Prison, or ensuring a minimum wage for workers etcetera. It is all high sounding nonsense. Ordinary folks have no power—except through violent revolution—but would be constantly manipulated into the belief in their electoral power.
The Slovenian theorist, Slavoj Zizek, was right when he claimed that while humanity was okay, 99 percent of people are boring gullible idiots. They have been deluded into belief of possessing electoral civil power. In truth, the world is run on self-interested authorities or autocracy. These take two forms, institutionalised and individualised. While in Europe and North America, authority or autocracy is institutionalised, it has tended to take individualised forms in Africa. The west has extremely autocratic institutions, which constantly change their public relations officers—often problematically called Presidents or Prime Ministers. The holders of these titles and offices actually have no power besides speech and celebrity. See for example, be it Clinton, Bush, Obama, Trump and now Biden, America’s domestic policy on immigration, the police force, black folks, guns, women, the minimum wage will remain the same. There will be minute adjustments that the very noisy American press will blow out of proportion discussing it endlessly. But by and large, stuff remains the same. American foreign policy towards the Middle East, Israel, Palestine, Iran and Africa will not change. Change only comes by way of violent revolution, marches, strikes, community organising, media activism, etcetera—not through the facades of elections.
As an African watching America from the outside, I agree with Syria’s Bashar-al-Assad’s conclusion that President Donald Trump’s crime was transparency about the intentions of America’s imperial interests. While Obama and Clinton smiled and joked through their crimes in the Middle East and at home, Trump was boisterous and embarrassingly candid. With more gusto, Trump simply continued Obama’s policies at home and abroad. Surely, Joe Biden is already doing the same — with just a little sophistication and disguise. American and European presidents are like shirts and dresses, while some make the wearer turn out smart, others could simply mess-up their appearances. But the bodies behind these fabrics remain the same. The truth is, heavily invested, albeit invisible Hitlers, Mussolinis, Stalins, Lenins, and Napoleons control American and European institutions. True to their power, these invisible Hitlers and Mussolinis blatantly took away the megaphone from Donald Trump for constantly embarrassing them with terrible PR. They went ahead and killed those smaller units that sought to challenge their power? [Please note, Facebook and Twitter are simply a manifestation, not the wielders of actual power].
The cycle of deception continues. Americans will always unite in stealing and killing from the rest of the world. Then back home, lobbyists, bankers and the super rich will squeeze life out of workers and African Americans will constantly be jailed and murdered, as women march for equal work equal pay like democracy never existed. It is all a deception.
The deceptive entanglement that democracy is more than elections, but all other civil liberties and humane treatment is terribly ahistorical. African history is replete with civil regimes that have no connection with our present perceptions of so-called democracy. In truth, the proposition that their democracy guarantees and is synonymous with humaneness and civil liberties is not just problematically ahistorical, but a dreadful deceptive. It is the trick. It is behind this claim that Africans have been duped, as their resources are being stolen under their noses.
Towards regimes of authority
After Tanzanian President John Pombe Magufuli had died, and the deafening elite noise boomed from every corner of the region, sloganeering about how Magufuli stifled dissent and free press, a friend of mine asked me to name the major opposition political party in China, and how many MPs they had in their parliament. I didn’t know. He then asked me to name the main opposition party in Russia, and how democracy—as dramatized in western Europe and North America—played out there. I did not know it either. He moved on to the much admired Qatar, and the United Arab Emirates. He mixed it up with Saudi Arabia, Turkey, Egypt, Argentina, North Korea, Iran asking me to name their opposition political parties. It was such as mixed bag, and I did not know how to respond. He then asked me about the quality of life in those countries compared to say the “more democratic” Great Britain, Kenya, Uganda or even South Africa.
Humbled, I then recalled Muammar Gaddafi’s Libya which the UN constantly ranked highest in Africa on its Development Index. Focused on items including literacy rates, women empowerment, living conditions, and healthcare, Libya, for years ranked above more democratic spaces such as South Africa and Nigeria. On their part, Russia, China and Turkey have a higher quality of life for their populations in addition to being major economic powers. Why, if they aren’t democratic? Why don’t they have open markets? Didn’t structural adjustment reach these places? Before asking about the civil liberties in these countries, my friend raised the story of Julian Assange and the asked whether I had read a Mazrui 1997 essay discussing how similar the so-called democratic spaces in the west aren’t any different from so-called authoritarian spaces in the Islamic world.
The exploitative dangerousness of democracy is captured in Slavoj Zizek’s eulogy to Nelson Mandela that appeared in The Guardian upon his death. Concluding that Mandela was a failure—as regards the uplift the victims of apartheid from the backwaters of the economy, land redistribution . Zizek speaks to a difficult capitalist-democracy dilemma, and how leaders get derided and fought as authoritarians and sometimes even killed. Zizek writes,
A leader or party is elected with universal enthusiasm, promising a “new world”– but, then, sooner or later, they stumble upon the key dilemma: does one dare to touch the capitalist mechanisms, or does one decide to “play the game”? If one disturbs these mechanisms, one is very swiftly “punished” by market perturbations, economic chaos and the rest.
Although Zizek speaks to open confrontation from capitalists, we need to appreciate that exploitative nature of capitalism has thrived with ‘democracy’ as its utmost enabler, its methodology, which most importantly, makes resistance to exploitation divided and distracted.
Across Africa, this dilemma of whether to or not to touch the capitalist machine is as old as independence. Those leaders who played the game were either favourably profiled in international presses, given lucrative deals in mining and other resource exploitation projects. In other cases, they were knighted, and sometimes awarded with Nobel prizes. If they touched or simply threatened to dismantle this exploitative structure, they were punished, either with sanctions leading to removal from office, assassinated or exiled. They would be labelled dictators.
It is noteworthy that those few African leaders in history who actually managed to destabilise the machinery of new exploitation—euphemised as ‘free markets democracy’—had to craft something entirely different. But they were fiercely resisted. Even if they had actually been elected, as soon as they touched the machinery of exploitation, they were challenged. Especially on land and resources exploitation reforms, Idi Amin, Robert Mugabe, John Pombe Magufuli are noteworthy. The core reason for dispensing with their democracy is that it has tended to bind government into contracts (globalisation, and free market), sensibilities (such as certain political freedoms, international human rights regimes etc), which are often selfishly and racially applied onto weaker countries and then exploited. International exploitative capitalism would be dead if it were not offered democracy as its handmaiden.
It is noteworthy that those few African leaders in history who actually managed to destabilise the machinery of new exploitation—euphemised as ‘free markets democracy’—had to craft something entirely different. But they were fiercely resisted
Nelson Mandela’s Nobel Prize winning genius was in deftly deflecting ANC land reform and economic redistribution movement leaving the economy in the hands of white South Africans. And because Steve Biko, Chris Hani, Winnie Mandela presented a persistent threat to white capital, they were purged. It should be interesting to note that the land reform in Zimbabwe was for a while actually working despite the country continuing under sanctions and misinformation in the major media houses (see Grasian Mkodzongi and Peter Lawrence, 2019). Six years of John Pombe Magufuli would be characterised by immense international name-calling because he actually refused to cow-tow to the dictates of the democracy merchandisers.
Closely appreciating these exploitative dynamics of a mode of government—a more sophisticated mode of pillage and control just like colonialism—continues to be stifled by the democracy machine and lobby. Africans will have to take a stand. And standing up will be costly in terms of life and resources. Sanctions, death, wars will be created so as to reproduce democratic exploitation. But for the African who is convinced that democratic Uganda under Museveni or democratic Kenya under the Mwai Kibaki, Uhuru Kenyatta, or Raila Odinga rather than Libya under Gaddafi or Cuba under Fidel Castro has actually joined the thieves en-route to rob their father’s estate.
Of course, there are empty comprador autocracies, which are as bad as democracy. Of course, Libya’s Gaddafi would be more humane, and the example of what it has become is extreme. But democratic Libya would never return to Gaddafi’s Libya, unless all Africans stood up. Nor will democratic South Africa ever reach Gaddafi’s Libya. The values often confused with democracy were more often preserved under the Ottomans. The scholarship on the Islamic tradition is deep and explicit on humaneness, rights of women, the poor, social security, equality between races, workers, independent scholarship, and thus freedom of speech, but the language is never “democracy.” In truth, democracy is divide and rule. It is thuggery.
This article was first published in the Review of African Political Economy Journal.
Why the LSK Choice of Female Representative to the JSC Is Crucial
To promote the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice, the JSC needs members of impeccable character.
Since the promulgation of the Constitution of Kenya in August 2010, the Judicial Service Commission (JSC) is one of the Constitutional Commissions which has gone through what was described by scientist Thomas Kuhn as a “paradigm shift” in his book, The Structure of Scientific Revolutions. A paradigm shift was described in scientific terms as a way in which there occurs, or needs to occur, a fundamental change in how to describe a scientific development of basic concepts and practices that had previously guided that science.
Assuming exercise of judicial power is a science (even if social), and reflecting on where Kenya was during the tenure of the previous JSC that reigned before the fundamental changes that have taken place under the 2010 Constitution, Kenya has fundamentally transformed that institution.
The single most significant difference is that whereas in both the repealed constitution and the current one the JSC is a constitutional commission, the composition and number of members are radically different, giving the current commission 11 members with some independence of thought and decision-making unlike the previous 5-member JSC.
The five members of the previous JSC were direct appointees of the president. They included the Chief Justice, the Attorney General, two judges appointed from amongst the puisne judges and finally the chair of the Public Service Commission. The requirement today that judicial officers elect their own JSC with a broad-based representation of various interests within the legal profession contrasts with the previous JSC which only represented the interests of the appointing authority. The President.
Therefore, whereas the previous JSC was filled with presidential appointees whose appointment was not even approved by the National Assembly, today all but six of the JSC members are officially nominated by the president but may or may not be approved by the National Assembly. This gives the National Assembly veto powers to approve or disprove that membership.
Chaired by the Chief Justice, the JSC includes a judge representing the Supreme Court; a judge elected by members of the Court of Appeal; a judge elected by judges of the High Court; a Chief Magistrate representing the Magistracy; and finally, two members (one man and one woman) representing the Law Society of Kenya (LSK).
The other members are more or less appointed with the tacit approval of the National Assembly. That is, if the president has sway over the National Assembly membership, as the current President has, through what in The Elephant has been described as the “Tyranny of Parliament by the Jubilee Party”, then the nominees have been appointed tacitly by the president in the knowledge that members of the National Assembly will raise no objections.
These other members of the JSC include the Attorney General, a member nominated by the Public Service Commission, and two members (one man, one woman) to represent the members of the public. Finally, the Chief Registrar of the Judiciary makes up the 11th member and is the Secretary to the JSC. The latter has no voting rights in decision-making.
In the current political context of the Building Bridges Initiative (BBI) debates, there are radical proposals around the JSC. Some of these include introducing an Office of the Ombudsperson, whose occupant will sit in the JSC. This has caused a political and judicial furore, particularly because it is proposed that the Ombudsperson will be appointed directly by the president.
In social and political spaces, some have opined that the Ombudsperson will be the president’s “watchman” in the JSC. It is no wonder then that there has been overt and covert resistance from the LSK, the JSC and the entire Judiciary. Kenyans have been here before and it is obvious that they do not want a return to the past.
Furthermore, the BBI intends that the two judges and one magistrate who are elected by their peers serve for a fixed term of five years. The constitution bestows the powers of nomination and election of these members on judicial officers, not on itself. Yet the BBI proposals tend to crystalise that power on the constitution. Thus, it has been argued that this is total interference with and an erosion of the independent choice of the electorate (judicial officers in this case) to hold their representatives to account.
Moreover, it is perceived as an attempt by the Executive to interfere with the Judiciary, with many recalling the president’s warning following the nullification of the August 2017 presidential poll that “we shall revisit” the judiciary. On his way out, Uhuru Kenyatta seemingly intends to make good his threat — let us also not forget that David Maraga departed office on a controversial note.
The former Chief Justice, David Maraga, ended his term by recommending that the president dissolve parliament for not conforming to Article 27 of the constitution — which provides that “The State shall take legislative and other measures to implement the principle that not more than two thirds of the members of elective or appointive bodies shall be of the same gender” — which did not go down well with members of his inner circle, and hence perhaps the need to “tame” the Judiciary.
Therefore, in the current debate pitting the Executive against the Judiciary through the BBI process, it is incumbent upon the JSC to stand tall and protect itself. It requires members of impeccable integrity, character, tone, gravitas and bravado to face present and future challenges.
This commentary delves specifically into the role of the JSC as provided in Article 172 of the Constitution, which is to promote and facilitate the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice.
Given that the Office of the Chief Justice is still vacant, it points out to the nuances that may emerge in the recruitment process, and why the role of each member is important, including that of the future female representative of the LSK to the JSC.
The JSC needs members with impeccable integrity, character, tone, gravitas and bravado to face present and future challenges.
This is so because currently there are only nine members, split between those who may be considered fully independent, who are five, and those representing the Executive, who are four. However, with the departure of the female representative, the “independents” go down to four: Mohammed Warsame, David Majanja, Evalyne Olwande (who represents the Judiciary) and Macharia Njeru (who represents the LSK).
It is my view that, as Philomena Mwilu is the acting Chief Justice, her legal and social history, her pending criminal cases and of course her controversial “acting capacity” as the Chief Justice, render her susceptible to the influence of “other forces” other than those she should ideally represent — her peers in the Supreme Court — when deciding who will be Kenya’s next Chief Justice. In case of a 4-4 tie, she may be called upon to be the tie-breaker. This is an important decision to make.
Electing the LSK Female Representative
As alluded to above, two members are elected directly by the membership of the Roll of Advocates (that the LSK scrutinises through an Elections’ Board) and they are formally appointed by the president through a Gazette Notice. In May 2019, Macharia Njeru — formerly the Chairperson of the Independent Policing Oversight Authority (IPOA) — won the Male Representative seat by trouncing the then incumbent Tom Ojienda. Today, Macharia represents the LSK in the JSC.
The first five-year term of the Female Representative of the LSK, Mercy Deche, came to an end on 24 March 2021 and although she is eligible for a second five-year term, she will be stepping down. In her view, Deche has served her term and is satisfied with her performance; she therefore wants to be succeeded.
However, since institutions are led by people, they reflect the personal convictions and commitments of those within them. The current JSC has been led by former Chief Justices Willy Mutunga and David Maraga, with the latter exiting the scene only recently in January 2021. The JSC advertised its search for the third Chief Justice following the “paradigm shift” in the appointment of members of the JSC referred to above.
This article aims to point out issues as they appear, issues that should be dealt with, and issues that should make advocates line up to vote in large numbers for whoever their choice will be. It is an election that advocates cannot afford to ignore, particularly in view of the ongoing BBI debates previously referred to.
Politics at the LSK
The LSK is in crisis — with some members seeking to remove the current president, Nelson Havi while others support him. Already a meeting to remove Havi had been called for the 27th March 2021.
With regard to the Female Representative position, the advertisement was made on 18 December 2020 by beleaguered Chief Executive Officer Mercy Wambua, who is not on good terms with Havi. The deadline for the submission of interest in the position was 18 January 2021. However, since then, the LSK has been suffering a severe crisis of leadership — both at the level of the Secretariat and at the Council which is led by Havi.
It is therefore inconceivable that the LSK will be a composite body with a leadership capable of successfully steering the election processes.
It is an election that advocates cannot afford to ignore, particularly in view of the ongoing BBI debates.
Unless something is done by the whole Council working together in harmony, with unity of purpose, and demonstrating ethical leadership, the upcoming elections are bound to be perhaps the most controversial in LSK’s history since the promulgation of the 2010 Constitution.
As stated, unlike the former Male Representative, Tom Ojienda, who sought a second term in accordance with the JSC Act, Mercy Deche is not seeking re-election. That election was very competitive since the difference between Ojienda and Njeru was not more than 300 votes. With Deche not in the race, the power of the incumbency is non-existent unlike during the Ojienda poll, which was a huge challenge.
With a divided Council, a seemingly authoritarian president who is accused of not consulting by some members of the Council, and a CEO faced with a dictatorial president, and court cases flying left and right, LSK is in troubled waters.
Changes in the Judicial Service Commission
As changes are happening to the LSK and the Judiciary, the JSC is also facing imminent changes. The biggest change has been the retirement of the former Chief Justice Maraga and the search for his replacement.
Since Maraga retired, media and other pundits, including lawyers, have been very vocal about the eligibility of the “acting Chief Justice”, Philomena Mwilu, to be given such a role considering the various criminal matters facing her in court. Indeed, a petition was also filed by Okiya Omtatah seeking a constitutional interpretation regarding this transition, and her eligibility and/or the legality of her position as “acting Chief Justice”.
Moreover, even within the JSC itself, similar questions have been raised both by the Commissioners and in the Secretariat, not to mention the murmurs at the top echelons of the Judiciary. Therefore, as the Commissioners seek to recruit the next Chief Justice, the politics of the institution will be laid bare.
The JSC will most likely be split in their opinion based on how they join(ed) the JSC. As mentioned above, only the Chief Justice is appointed through a public process and the nominee is sent to the president for formal appointment. The president’s “direct nominees” are four compared to the four who may be called “independent”. This is because, currently, the seat of the Female Representative of the LSK fell vacant on 24 March 2021. The Acting Chief justice is likely to lean towards the former group of “conservatives” as I shall demonstrate.
Therefore, as campaigns for the position of the LSK’s Female Representative begin in earnest, all the eight candidates for this position and the voting advocates will need to bear in mind what is going on in the JSC, as that is the institution they seek to join together with the new Chief Justice who will be the chairperson of the JSC.
The Campaign environment
In addition to the foregoing, there are other issues that shaped the campaign agenda in the period between the submission of papers on January 18, and the election on March 24, 2021. Already, we observed stay orders emerging from the courts stopping the LSK’s Elections Board from proceeding with the shortlisting and processes of preparing for the election of the LSK Female Representative.
Campaigning in the midst of the COVID-19 pandemic
There is no doubt that COVID-19 has altered our social, economic and political landscape. This elections taking place in an environment which is largely restricted through: limiting the number of gatherings; observing physical and social distancing even if the campaign is done in public halls; and no campaigns outside curfew hours, among other COVID-19 protocols that must be respected.
In this context, violation of the protocols could cost a candidate the seat. This could happen since the media will be watching, as will advocates. If candidates cannot observe the law, then their reputations are at serious risk.
Second, candidates who are tech-savvy will have an advantage, since campaigns will be done on new media, using Facebook, Twitter, Zoom meetings, and other such platforms. Those that will attract the biggest number of followers are likely to tip the balance of this campaign.
Finally, any candidate who wishes to win this election should of necessity be seen to be supporting the government, especially the Ministry of Health. This is not because one should support blindly, but in order to create linkages with the Ministry to support efforts to have Kenyans respect COVID-19 protocols and encourage them to get vaccinated. This could be as easy as linking one’s campaign sites with the relevant information from the Ministry, especially their daily updates.
Political knowledge and the IEBC
Running for political office requires knowledge of politicking, and the ability to debate issues without losing arguments. One should be consistent in messaging whether on social media or on traditional media such as pamphlets, television, radio, etc. Second, politics has neither permanent friends nor permanent enemies. It’s bare knuckles in political debates, but with respect when differences emerge.
Third, this is a political position, not a legal position and candidates need to learn this fast. In a period of less than eight weeks or so, things will turn hot, and it is not the best legal mind that will win the position, but the one with political guts.
Finally, the Independent Electoral and Boundaries Commission (IEBC) will oversee the elections. Knowledge of this institution will prove very vital for any candidate. The institution has a series of codes of conduct, protocols, regulations, and so on. Familiarity with the IEBC rules of procedure is essential for candidates.
The IEBC is an institution that has faced serious issues of integrity during every electoral cycle in Kenya. However, it has conducted itself professionally for other institutional elections such as that of the LSK. Candidates’ knowledge of past LSK elections and whether there were complaints concerning voting, counting, tallying, verification and announcement of the eventual winner is a valuable asset.
The typologies of voters
In his book, The Science of Election Campaigning, Afrifa Gitonga makes the argument that there are three types of voters in the world of politics. These typologies have been manifested variously in political competition and they include voters who are rational and who seek to question everything the candidate has done, if seeking re-election, or is committing to do for them for them by seeking office.
Second, sentimental voters are those attracted by sensual appeal and they will vote on that very basis. These voters are impressed by the looks, by the mannerisms and by the beauty of the candidate, and even by how they dress.
Thirdly, Afrifa talks of conformist voters who, unlike the two above, simply conform to how the tide is moving, by asking questions like “who are we voting for?” They go with the flow and do not make any rational or sentimental decision.
The advocates may or may not understand these concepts fully. Back in 2007 I wrote about the three typologies above and added two more: there are those who vote with the head (rational), those who vote with the heart (sentimental), and those who vote with the wind (conformist).
In addition, there are those who vote with the tongue (ethnicity of a candidate, which is very familiar in Kenya) and, finally, those who vote with the stomach (those whose decision is based on what they have “eaten” from the candidate). These typologies exist even amongst the advocates despite references to “learned friend” or “senior”.
Role of young lawyers
It is evident that there has been a debate between the long-serving “seniors” and the “juniors” — recently admitted advocates. The debate is basically about what young lawyers feel about the old and established advocates and the young lawyers’ role in the advancement of the legal profession in Kenya in the absence of equal and fair opportunities for progress. This debate has not ended, and it is not ending any time soon. It should be approached with caution and information on where this debate is headed could be a great piece of the puzzle in the elections.
There are those who vote with the tongue and those who vote with the stomach.
In my opinion, since each candidate has at least 15 years of practice as per the requirements, they belong to the “seniors” category. Those who have been practicing for less than 15 years have different perspectives about what these elections are about, unlike the “seniors” who know the difference between practicing law under the old legal framework of the repealed constitution and under the current decade-old constitution.
This was a hot issue during the May 2019 and is not to be ignored by any candidate as it could be a deciding factor in the forthcoming election.
Selling the agenda
Selling the agenda is the most important matter for consideration. It should document what the first five years, between 2021 and 2026, would involve. There are many problems mentioned in the policies — such as the BBI proposals — in the laws being proposed, the LSK leadership wrangles, the possible splits between the ”independents” and the “conservatives” in the JSC, etc. Prioritising what is to be tackled, and in which sequence, should not just be documented but should also be verbalised throughout the campaigns.
This should include appreciating, upholding and defending the advances made by the 2010 Constitution; providing a considered legal opinion about the BBI process; transforming the case management system to reduce the backlog of cases and ensure the speedy dispensation of justice; and, strengthening ethics and integrity by enforcing the codes of conduct, among others.
Eight candidates have been cleared to run for the position of Female Representative of the LSK to the JSC and they have formally submitted their nomination papers. The election board will vet these aspirants and determine who actually appears on the electoral ballot. Using the above typologies, lawyers are spoilt for choice, but this independent and objective assessment should help advocates select the best female candidate to represent the LSK at the JSC. Be on the lookout.
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