In 2015 John Pombe Magufuli became Tanzania’s accidental President. Colourful and charismatic, Magufuli charmed the masses during his five years in office. He demanded results and pulled off successes that were elevated to the status of minor miracles. He channeled his inner Julius Nyerere to revive Tanzania’s distinctive internal self-reliance-based identity.
The state was back, and the state was Magufuli. He used his campaign against the mabepari class to grandstand on a regular basis, and the coronavirus pandemic provided the former chemist with an opportunity to elevate his anti-imperialist credentials. His controversial stance won him approval across the region: several of my colleagues remarked that “Magufuli is the only African President to speak truth to the pandemic”.
Then his government ministers began getting sick. Magufuli disappeared from public view. After two weeks of rumour and speculation, Tanzania’s Vice President announced his passing due to a chronic heart condition. Corona or coronary? Magufuli’s outsized sending off soon overtook conjecture about the cause of his death.
It began with the usual laudatory speeches by his fellow African heads of state. The dead president then set off on a grand tour that took him across the country by land, sea, and air. The wananchi paid homage by throwing their clothes on the road in front of the motorcade escorting the casket. People lining the road chanted, “jeshi, jeshi!”
The lionisation of the dead president was a fascinating trope, amplified by the mellifluous High Swahili commentary accompanying the televised coverage of the Magufuli hegira. My wife had become a Samia Suluhu Hassan fan. She insisted that the TV remain tuned to the Tanzania Broadcasting Corporation channel.
The stature of Tanzania’s domestic Shujaa grew over the course of the week. Like the mythical wrestler Anteus, who grew stronger when he touched the ground, Hayati Rais appeared to be drawing new power from the landscape as the conquering hero’s body made the long journey from Zanzibar to Chato, his lakeside home.
By day three of the roadshow, Tanzania’s state media was praising the departed leader, as Jabali ya Africa, “the rock who stood up to the West”. But Twitter was providing an interesting counter-narrative; for Tanzania’s online opposition, the “Jabali” was “Jiwe”, the “stone” who terrorised his critics and pummeled the political opposition. Day four brought the claim by a Chama Cha Mapinduzi party sycophant that the Magufuli show was attracting an audience larger than that of the last two World Cups.
I was looking forward to seeing Chato, the village that during Magufuli’s tenure had been transformed along the lines of Houphouët-Boigny’s Yamoussoukro birthplace in Côte d’Ivoire, and Mobutu Sese Seko’s Gbadolite home in the Congo. I was not able to catch the end of the journey because of a close friend’s funeral. But I did witness the dead president’s final apotheosis, which led me to pause on my way out the door: “With due respect to our respective religions”, one of the TBC commentators was remarking, “it should be recognized that President Magufuli was a Nabii.”
The roadshow that followed was a skillfully executed event that provided the Bulldozer’s inner circle with the breathing room needed to ring-fence the new President.
Nabii is the Swahili term for prophet. The proof of his prophethood (unabii wake), the commentors went on to explain, lay in the fact that President Magufuli was the only world leader God sent to warn us that the pandemic is a crisis manufactured by the global elite to extend the hegemony of Big Pharma and other agents of the international capitalist order.
The real news for some of us was Vice President Samia Sulubu Hassan’s swearing in as the Republic’s sixth Head of State. Tanzania’s record of relatively seamless political succession was further enhanced by her status as a female Muslim from a minority community. My wife, who is from Lamu and has never seen anyone of her background in a position of power, declared, “Samia is my president.”
It is hard to envision a similar sequence occurring in Kenya, or for that matter in any other country in the Horn of Africa.
Dog eat dog versus man eat nothing
“No contrast, no information”, my field linguistics professor used to tell us. The large number of African states and the interesting dyads they form makes for a lot of information. Nigeria and Ghana, Mozambique and Angola, Egypt and Sudan, Guinea and Sierra Leone, are examples that come to mind. But the Kenya-Tanzania contrast remains among the most intriguing examples of post-independence Africa’s political comparison.
Tanzania and Kenya represent two of the continent’s more closely matched territories. They are linked by centuries of interaction on the coastal strip and a common history that gave rise to Swahili as the region’s lingua franca. Together they host the world’s most famous concentration of wildlife. Artificially divided into two countries by European powers, the modern nations created by imperial intervention were shaped by the same colonial model. Both gained independence under leaders inspired by the spirit of Pan-Africanism.
Tanzania’s record of relatively seamless political succession was furtherenhanced by her status as a female Muslim from a minority community.
Tanzania’s more uniform geography supported the intricately networked small-scale societal adaptations documented in Kjekjus’s classic study, Ecology Control and Environmental Management in East Africa. Kenya’s physical environment conditioned the country’s more complex ethno-economic composition diversity; late precolonial era migrations contributed to Kenya’s more variegated population of Bantu-, Nilotic-, and Cushitic-speaking communities.
Where the harshness of the German occupation in Tanzania inoculated the population with a healthy dose of anti-colonial consciousness, many Kenyan communities welcomed the Pax Britannica, in part due to the disruptions of the decade preceding it. Efforts to force peasants to cultivate cotton for export in Tanzania triggered the Maji Maji rebellion in 1905, and the movement rapidly spread across southern and parts of central Tanganyika until its brutal suppression.
The commercial economy introduced by Kenya’s colonial rulers created new opportunities and avenues for accumulation. The first stirrings of anti-colonial opposition only emerged after World War II. The ethnic base of the Mau Mau insurgency contrasted with the nationalist focus of Tanzania’s liberation politics. The new countries nevertheless came into existence driven by a common vision of the future and its possibilities.
It was a time of idealism and political experimentation. Shared orientations propelled Kenya, Tanzania, and Uganda to form the East African Community soon after independence. The union represented a practical first step towards Kwame Nkrumah’s vision of a United States of Africa—before political liberation gave way to an era of competing ideologies, superpower patronage, and military coups. Much of the ideological superstructure of that period ended up either dissipating gradually or collapsing for reasons that have been rigorously documented.
Technically, both Kenya and Tanzania subscribed to the third path option championed by the non-aligned movement, but their economies were moving on diverging paths. The East African Community foundered, undermined by economic differentials fueled by Kenya’s colonial economic legacy and Tanzania’s Fabian socialism. The ideological bifurcation saw Kenya and Tanzania become proxies for the struggle between the world’s capitalist and socialist systems.
The clash between Jomo Kenyatta’s conservatism and Julius Nyerere’s idealism highlighted their contrasting political ideologies and the external support they attracted. In 1975 the submerged tensions between the two countries surfaced in an exchange of words between Tanzania’s President Julius Nyerere and Kenya’s Attorney General, Charles Njonjo. Nyerere referred to Kenya as a “dog eat dog” society; Njonjo retorted by describing Tanzania as a “man eat nothing economy”.
The ideological bifurcation saw Kenya and Tanzania become proxies for the struggle between the world’s capitalist and socialist systems.
There is a simpler explanation. Where Kenya retained the hierarchical Anglo-colonial template after independence, Tanzania adopted the more integrative Swahili model of nation-building. As Jomo Kenyatta once told his fellow East African presidents after Milton Obote adopted the socialist Common Man’s Charter in Uganda, “I cannot experiment with [the] lives of my people.”
Donor-mandated structural adjustment policies of the 1990s brought the countries’ economies into closer alignment. But the different trajectories pursued by Kenya and Tanzania continued to reflect their contrasting developmental strategies, and the delicate balance of competition and cooperation defining the two countries’ bilateral relations.
Kenya and Tanzania’s ideological differentials are sufficient but not necessary explanations of the two nations’ post-independence divergence.
Crawford Young’s seminal work published in 1981, Ideology and Development in Africa, confirmed as much for the two decades following independence. Young concluded that the strong ideological groundings informing Africa’s capitalist, socialist, mixed, and Afro-Marxist economic models, although important, did not significantly influence their performance. This is consistent with historical studies that show how countries within a geographical region tend to converge over time.
This trajectory appears to hold for the comparison examined here. Tanzania has recorded impressive economic growth under the neoliberal policy regime. Although Kenya is still East Africa’s strongest economy with an annual GDP of US$37 billion versus Tanzania’s US$28 billion, Tanzania’s per capita GDP is now only US$200 less than Kenya’s (US$1,600 vs. US$1,400). Some 50 per cent of Kenya’s population is below the poverty line in contrast to 33 per cent in Tanzania, which also performs better in several categories of social development.
Tanzania was catching up to Kenya in the Transparency International annual corruption rankings until Tanzania’s position improved slightly after Magufuli took office. His anti-corruption campaign saw hundreds of civil servants lose their jobs, but only a few cases of prosecution. The offensive targeting international investors and domestic business interests took up the slack. The state charged international investors and domestic businessmen in court for underpaying taxes and other violations.
Barrick Gold Corporation, the Canadian mining company that has helped make gold the country’s leading export commodity, received a notice claiming it owed US$190 billion in fines and unpaid taxes. Many of these cases resulted in negotiated settlements and revisions in the terms of their contracts. Barrick ended up settling by paying US$300 million and increasing the government’s stake in their operations to 50 per cent.
Some 50 per cent of Kenya’s population is below the poverty line in contrast to 33 per cent in Tanzania, which also performs better in several categories of social development.
Both of these campaigns, and Magufuli’s rejection of China’s debt diplomacy and IMF loans, enhanced the President’s reputation as the “Bulldozer”, but did little to effect the structural changes needed. Tundu Lissu, the head of Tanzania’s main opposition party, reported that many of the settlements were actually shakedowns initiated by the President’s CCM faction. Such behind the scenes venality accounts for Magufuli’s silencing of Tanzania’s media and the intensified persecution of the opposition during last year’s national elections.
Sources on the ground report a more complicated picture than the pumped-up legacy conveyed by state media. Although Tanzania joined the ranks of lower middle-income societies in 2020, the improved household income generated by the pro-market policies enacted by Magufuli’s predecessors is being eroded by the rising cost of living, while demographic growth is increasing pressure on the country’s land and natural resources.
Presidential activism failed to arrest the downward drift of conditions across Tanzania’s rural areas. Magufuli’s opposition to international capital limited smallholder access to the contract-farming arrangements that have enabled Kenya’s small-scale producers’ participation in global supply chains. While the benefits of contract farming are contested in academic circles, participation in out-grower schemes has led to improvement in producer terms in a number of cases, and improved access to inputs while diversifying livelihood options for many rural households.
The revival of the East African Community in 2010 was boosting both countries’ commodity exports to each other until tit-for-tat border disputes contributed to a drop to pre-2010 levels. Bilateral trade is a sub-set of the policy frame promoting regional integration, which has in turn triggered a scramble to upgrade the infrastructure facilitating trans-national linkages. This brings us to the governments’ penchant for mega-projects like Kenya’s grandiose Lamu Port-South Sudan-Ethiopia-Transport corridor project (LAPSSET) and Tanzania’s Southern Agricultural Growth Corridor (SAGCOT).
LAPSSET came to be viewed as a cash cow for Kenya’s state-based cartels before it stalled due to the withdrawal of once enthusiastic international investors. Analysis of the SAGCOT corridor indicates it has generated mainly just-for-show benefits while facilitating the entrance of large-scale agribusiness actors at the expense of local smallholder communities. Both countries are beneficiaries of economically dysfunctional Chinese railroads, contrasting monuments to that country’s contribution to regional linkages over the years.
Even in the presence of more comprehensive analyses of the two countries’ development, it is difficult to arrive at definitive conclusions about the efficacy of the Kenya and Tanzania models. They are more connected — Kenya-based companies are the second largest source of foreign investment in Tanzania — than at independence, yet seem even farther apart now with respect to their political sensibilities.
Local folk models provide more succinct perceptions of the differences. Talk to Kenyans and they will characterise Tanzanians as laid back, loquacious, and xenophobic; talk to Tanzanians and they will tell you their neighbors are arrogant, aggressive, and hopelessly tribal. But if you pursue the conversation further, most will show that they understand their neighbours better than formal analyses like the one above convey. Informants on each side of the border will probably concede that their governments have become dog-eat-man regimes.
Political theatre and executive revisionism
Is Magufuli’s hyper-nationalism at odds with Kenya’s constitutionally mandated federalism? In reality, each of these shifts from the previous status quo have been manipulated to reinforce the two states’ tradition of top-down governance. Both governments face an ongoing crisis of constitutionalism, and both have resorted to elaborate exercises of political theatre to camouflage their respective political elites’ strategies to remain at the top of the food chain.
Kenya’s Building Bridges Initiative began with the handshake marking the reconciliation between Uhuru Kenyatta and Raila Odinga, then morphed into a comprehensive gambit to revise the nation’s new constitutional order. Two years later the government released an eloquently worded BBI task force report that was long on promises to fix long-festering problems, but short on how they would be implemented.
Informants on each side of the border will probably concede that their governments have become dog-eat-man regimes.
The provisions to double the seats in the senate, create 80 new parliamentary constituencies, and create positions for a prime minister and four deputy presidents are hard to justify for a country that already expends 48 per cent of its budget on state salaries. Unlike his father, Uhuru Kenyatta is not averse to experimentation. But the circus orchestrated by the BBI’s political beneficiaries has worked to redirect attention away from such inconvenient details.
Since the handshake the Kenyan public has been subjected to an unrelenting procession of media publicity, traveling pep rallies, and tactics used to herd reluctant politicians into the BBI corral. The campaign has been an amped up version of the Moi playbook, featuring theatrics reminiscent of the anti-Nyayo charade the former President used to outmaneuver his opponents during his early days in office.
The rapid deterioration of Magufuli’s health clearly caught his CCM faction by surprise. The media coverage of the President’s elevation from politician to prophet contrasted with the opaque treatment of his last two weeks on earth — or was it actually one week, as the intelligence that he actually passed away on the 10th of March claimed?
The Nabii failed to prophesise his departure from the stage. The roadshow that followed was a skillfully executed event that provided the Bulldozer’s inner circle with the breathing room needed to ring-fence the new President, who receded into the background after her eloquent speech at the funeral. In the meantime, critics were pointing out how the new government’s key appointments violated the process mandated in Tanzania’s constitution.
These games, however cynical, are part of a larger contest being waged across the larger Horn of Africa region, pitting executive power at the centre against distributed governance. Museveni’s Uganda presidency has dynastic ambitions, Rwanda is a developmental dictatorship, and Farmajo wants to restore the same kind of centralised state in Somalia that led to its collapse in 1991. Ahmed Abiy’s ugly war in Tigray is linked to his ambition to reverse the devolution established by the 1994 constitution that declared all sovereign power resides in the Nations, Nationalities and Peoples of Ethiopia.
The strategies to bolster control at the centre that we are witnessing in Kenya and Tanzania may be benign by comparison, but the actions taken to muzzle the press and critics of government policies, along with political impunity, and institutionalised corruption, are not. They differ from the efforts to recentralise the state elsewhere by degree, not in kind.
Reimagining the African state?
The trend is part of a wider global pattern. Since 2017 opposition to heavy-handed governments and their policies has erupted across the world, occurring mainly in authoritarian and authoritarian-leaning states. These surging protests correlate with the reversal of gains in democratisation, respect for human rights, and increased local autonomy across the world.
Liberalisation catalysed a universal movement towards self-determination and the deconcentration of political power. Twenty years ago, scholars were even predicting the end of the nation-state as we know it. In recent years the state has fought back with a vengeance. Recent African developments, for example, reflect the influence of the surveillance state in China that is now challenging the democratic values guiding the post-1945 world order.
There was near-universal belief in the monolithic state at independence, and in the assumption that Africa’s leaders would use its power for the benefit of their populations. By the end of the 1960s these beliefs and assumptions were in tatters. African nations’ largely trial-and-error efforts to balance the nation-building equation since that time still represent the prerogative to adapt the state to the continent’s unique initial conditions.
The unique combination of scholarship, deep historical inquiry, and political imagination that flourished during the post-independence period, at least in theory, remains a useful resource for navigating Africa’s developmental future. The reforms of the post-1989 period come over as dismal and devoid of spirit in comparison, incapable of generating the creativity and passion inspired by the ideas that preceded them.
Tanzania was one of the continent’s leading exemplars of that era’s critical thinking. To his credit, John Pombe Magufuli fought to establish an equitable relationship with international capital while his counterparts in Kenya were drinking the foreign debt Kool-Aid. Theory is useful but trial and error empiricism is the best teacher. We hope that President Samia Suluhu Hassan will use the information generated by the two countries’ contrasting experience to negotiate an adaptive middle path without too much fanfare.
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Basic Structure Doctrine: Winds of Change for Constitutionalism in Africa?
There are implied constitutional limitations by which the constitution should not be amended in a way that changes the basic structure and features of the constitution and its identity.
On 13 May 2021, a panel of five High Court justices unanimously adopted a significant ruling disqualifying The Constitution of Kenya (Amendment) Bill, 2020. The bill aimed to implement President Uhuru Kenyatta’s so called “Building Bridges Initiative” (BBI) and was supposed to be the most significant change to the state’s governmental structure since the constitution was adopted in 2010. It included the creation of 70 new constituencies, an increase in parliament seats, the selection of cabinet Secretaries from among members of parliament , the creation of a Prime Minister’s position together with Deputy Prime Ministers, and the creation of a Leader of Official Opposition in the National Assembly.
Having been approved by the legislature, the amendment was awaiting presidential approval after which it would be put to a referendum. The High Court ruled that the constitutional amendments are unconstitutional and, most importantly, that the so-called Basic Structure Doctrine applies in Kenya. Gautam Bhatia called the judgment “an instant classic” and “an example par excellence of transformative constitutionalism”. The judgment is not only a milestone from the perspective of comparative constitutional law; it might also change the future landscape of constitutionalism in Africa.
Constitutional amendment and basic structure doctrine
In a nutshell, the basic structure doctrine is a legal doctrine according to which even in the absence of explicit limitations on the constitutional amendment power, there are implied constitutional limitations by which the constitution should not be amended in a way that changes the basic structure and features of the constitution and its identity. The doctrine migrated from Germany to India, where it was accepted by the Supreme Court (see e.g. Kesavananda Bharati v. The State of Kerala and Others, AIR 1973 SC 1461), and from there migrated to other countries, in one name or another (see, for instance, the Slovak Constitutional Court’s “material core” doctrine).
The basic theoretical argument for this idea, as I elaborate in my book Unconstitutional Constitutional Amendments – The Limits of Amendment Powers, is that the constitutional amendment power is not unlimited. The amendment power is a delegated legal competence which acts as a trustee of the people and therefore is limited both explicitly and implicitly.
Firstly, it is limited by those explicit limitations / eternity clauses stipulated in the constitution. Secondly, the body which holds the constitutional amendment power in trust cannot use it to destroy the constitution from which the body’s authority derives in the first place. The amendment power is the internal method that the constitution provides for its self-preservation. By destroying the constitution, the delegated amending power thus undermines its own raison d’être.
There are implied constitutional limitations by which the constitution should not be amended in a way that changes the basic structure and features of the constitution and its identity.
Amending the constitution in a way that would destroy the old and create a new constitution would be an action ultra vires. Also, since every constitution consists of a set of basic principles and features, which determine the totality of the constitutional order and the “spirit of the constitution” and its identity, the constitutional amendment power cannot be used to destroy those basic principles.
The alteration of the constitution’s core would result in the collapse of the entire constitution and its replacement by another. This decision, however, is not left to the delegated organs, but to the people’s primary constituent power and it ought to be taken via the proper channels of higher-level democratic participation and deliberations.
Three layers of sovereignty
The dramatic judgment of the Kenyan Court reflects this general idea very well.
Reading out the judgment, Justice Joel M. Ngugi, a former law professor at the University of Washington, began with a review of Kenya’s constitutional history and the 2010 constitutional process. As we shall later see, this historical review will be important for drawing the exact basic structure limitations. The most important part of the judgment, however, is this: the basic structure doctrine applies in Kenya. In particular, the doctrine limits the authority of amending the constitution (as set forth in sections 255-257) in a way that would change the basic structure of the 2010 Constitution.
According to the court, the sovereignty of the people in its constituent capacity is expressed in three layers. The first one, the Primary Constituent Power, is the extraordinary power to draft or radically change a constitution. This is, in the tradition of Sieyès, the immediate expression of the people. This authority is free and independent of any constitutional restrictions and is unlimited by the constitutional rules and procedures of the previous Constitution.
The Secondary Constituent Power is the constitutive authority for constitutional changes which are not material and therefore do not change the basic structure of the constitution. In Kenya, this power “is exercisable through a referendum subsequent to public participation and Parliamentary process” and may be exercised only in accordance with the procedure set forth in Articles 255-257 of the Constitution.
The basic structure doctrine, according to the court, protects fundamental aspects of the constitution from amendment by the secondary or constituted constituent power.
The Constituted Power is a delegated authority limited by the Constitution and derived from it. In Kenya, this limited power to amend the constitution is in the hands of the parliament.
The basic structure doctrine, according to the court, protects fundamental aspects of the constitution from amendment by the secondary or constituted constituent power. In other words, the essential features of the constitution that form the basic structure can only be changed by the people exercising the primary constitutive authority.
The Court’s reasoning on this dimension of the primary constitutive authority marks an extremely important development. In Kenya, the court states that this power can be exercised in four stages: through civic education to provide the public with sufficient information regarding the possibility of participating in the process of establishing or amending the constitution; through public participation, in which the people share their positions on constitutional issues; through deliberations in a Constituent Assembly for the formulation of constitutional ideas through representatives specially elected for establishing or amending the Constitution; and through a referendum for the adoption or rejection of the constitution or the amendments to the basic structure of the constitution.
If constitutional theory regarded the people in its “original constituent power” capacity as either the initiator of the process but not necessarily its executor, or alternatively, as its ratifier at the end, than the Kenyan judgment is crucial in elaborating that for constitutional moments to truly manifest the people’s will, popular participation in constitutional moments should not be limited to a solely “yes” or “no” vote in a referendum but should extend to the stages before, throughout, and after the process of constitutional change. As I claimed elsewhere, “it is the manifestation of ‘we the people’, not simply ‘oui, the people’”.
Foundational structure interpretation
As the notion of constituent power is returning to the front stage of current constitutional theory (see for example only recently: Arato, Colón-Ríos, Rubinelli, Arvidsson, Brännström & Minkkinen, Spång, Patberg, and López Bofill), this amplification of the various stages through which the people’s primary constituent power can be democratically initiated and exercised, provides an important contribution and a ground for both scholarly work and for future constitution-drafters and courts.
The court learned about these implied limitations of the basic structure doctrine from what I term in my book “foundational structure interpretation”: a holistic reading of the constitution, the history and context of the constitution, and the fundamental structure of the constitution, including the Preamble.
The historical point is interesting. According to the court, the 2010 constitution-making process served as a “model . . . of participatory constitution building process” and was a response to the previous “culture of hyper-amendment, especially under one-party states where the constitution was frequently amended for every-day politics which is a mark of what Okoth-Ogendo described as “Constitutions without Constitutionalism”.
Considering this constitutional history of struggle for popular participation in constitution-making and change, and the hyper-amendment culture, the court notes that “these principles of interpretation, applied to the question at hand, yield the conclusion that Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments”.
This latter emphasis on “destruction through gradual amendments” is especially important in the current era of populist constitutionalism in which constitutional democracies are eroded through subtle and gradual means, by a “straw that broke the Constitution’s back”.
Thus, the court held that the core of the constitution, the foundations of constitution-building, cannot be transformed without summoning the primary constituent power of the people. And this point is crucial for any criticism that might – and probably will – arise from the decision. When the court enforces the implied limitations on constitutional amendments, it ensures that the amendment power does not exceed its authority, and thereby protects popular sovereignty and the vertical separation of powers between the primary constituent power of the people and the secondary constituent power.
In addition, the court ruled that the president has no authority to initiate changes to the constitution, and that only parliament, through a parliamentary initiative or through a popular initiative, can initiate a constitutional amendment. Giving the president the authority to initiate amendments which should be made through a popular initiative, would grant the president the dual role of initiating and deciding on the amendment – and therefore put him in a conflict of interest: “The President cannot be both player and the umpire in the same match.”
The court further ruled that the matter as such was justiciable and that legal proceedings could be initiated against an incumbent president for any violation of the constitution. The Steering Committee, which was established for the Implementation of the BBI, is unconstitutional and therefore cannot initiate constitutional changes. By initiating and promoting the process of constitutional change contrary to the constitution, the president violated the constitution.
Winds of change?
Apparently, an appeal of the court’s decision will be filed at the Court of Appeal, but it is difficult to predict how the matter will be decided. On the one hand, affirming the decision would mean going against a strong political leadership based on a substantive rather than a formal interpretation of the constitution. On the other hand, the High Court discussed all the issues comprehensively and convincingly, and it might be difficult for the court to go against such a grounded decision that guards constitutionalism and the people’s constituent power. Gitobu Imanyara writes that:
“The . . . court has saved our hard-won constitution from the most serious assault it has faced during the ten years of its existence. The culture of rule of law and constitutionalism that our country is settling into has been entrenched.”
And Joshua Malidzo Nyawa adds,
“This decision sets a tempo in our constitutional democracy. It tells the wielders of state power that they are subject to the Constitution, reminding Judges that it is their duty to protect and safeguard the Constitution and its aura.”
Beyond the implications for Kenya, this ruling could have wider implications in Africa. It might signal the prospect for the much needed consolidation of constitutionalism and democracy in Africa. The news of the dramatic ruling will have already reached courts in other countries of the continent such as Zimbabwe, where the High Court recently held hearings concerning petitions against constitutional amendments. And indeed, two days after the Kenya decision, on 15 May 2021, the High Court of Zimbabwe declared that the decision of President Emmerson Mnangagwa to extend Chief Justice Luke Malaba’s tenure by five years through a constitutional amendment was invalid because it breached the constitution.
Perhaps these judicial decisions signal the winds of change for constitutionalism in Africa.
Some Countries Are More Equal Than Others: Inequality in the Age of COVID
The world has suffered greatly, the health and livelihoods of billions disrupted and the greatest shame would be to learn nothing and change even less.
Driving down the fabulous Acacia Avenue parallel to Kololo hill in Kampala (the neighbourhood known for being the poshest of the posh) late on a Saturday night, the clubs are hardly unnoticeable. Dozens of cars fill the outside parking, bouncers walk the inebriated out to the street by the elbow and the dull echoes of bass lines filter out onto the trafficless tarmac.
Like it or not, safe or not, Kampala is taking reopening into its own hands. The curfew is still “strictly” imposed at 9 p.m. although the cops are said to be getting less lenient and more likely to attempt to tackle passengers on after-hours boda bodas and quicker to pull the gun on unwitting rule-breakers to better induce a quick handover of Ugandan shillings. The behaviour of the police has become so over the top in recent weeks that it almost seems as though they know that the curfew could soon be ending and are trying to cash in as much as possible before the plug is pulled. There are reports of heavy-handed police behaviour, not only arresting people and jailing them, but then holding onto IDs and remanding individuals in prisons outside of Kampala.
Talk to nearly anyone in Kampala and they’ll all tell you the same thing — that the curfew is far more a political measure than it ever was about the coronavirus threat. Across Uganda, before everyone scatters off into the wind to beat the curfew, the entire nation seems to be operating as normal; the markets are full, people hop mask-free onto matatus and big church services take place unimpeded.
That is the trouble with the current state of COVID-19 restrictions in Uganda; too much falls through the gaps, rules are bent as though they’re meant to be bent, and all the while the economy of Uganda is quietly falling into utter disarray — a pattern that is becoming the norm across the East African region. So now, as most countries in the world are hovering around the one-year anniversary of the beginning of pandemic lockdowns, it has become more clear that the “Western” model of lockdowns adopted by countries like Uganda and Kenya has simply not worked — and the fall-out will surely be felt for years, if not decades, to come.
March of 2020 saw the pandemic spiral out of control, with dozens of countries announcing lockdowns, curfews, business closures and other measures to try to stem the tide. Some nations, like South Korea and New Zealand, did a remarkable job and have all but contained the situation (and, frankly, had done so by May of 2020). These countries, however, were revealed to be outliers in the global community as most countries found their own methods of failure and leaned strongly into them. These include two of the most influential countries on earth, the UK and the US, both of which took arguably the worst direction they could possibly take and have spiraled into chaos as a result — that of inconsistent, slow and inadequate “half-measures”. In the UK’s case, it was the initial leaning into the concept of “herd immunity” for the population before pulling back and shutting down too late. In the US it was the exact confluence of systemic problems that caused this pandemic to tear down the façade of the “most powerful nation on earth” by way of killing over half a million people and decimating the economic status of tens of millions while politicians complained incessantly about money.
Unfortunately, Uganda seems to be borrowing largely from the failed policies of these two nations and has suffered immensely for it. If nothing else, the intensive measures taken, and their incompleteness have proved to be a sort of litmus test for the failures of neo-colonial influence. Museveni has long been known to have extensive ties with the West and, as with other developing nations, Uganda took the advice of foreign diplomats, external policy, and the NGO apparatus into careful consideration when outlining Uganda’s COVID-19 response, drawing sharp criticism from political opposition figures including Bobi Wine, who called for less short-term solutions and more long-term systemic changes to Uganda’s healthcare system.
Now, over a year in, the effects of the pandemic in Uganda have been largely muted, and potentially underreported in terms of case numbers and deaths. Despite the opacity of the information, the actual human toll has been far less than initially projected by a myriad of global media outlets in the early months of the epidemic.
That isn’t to say that the narrative has not continually shifted, with leading voices in Western medical, diplomatic and academic spheres being repeatedly mystified that the pandemic hasn’t impacted the African continent as it has the “leading democracies on earth”. Moreover, cases are also clearly rising in Kenya, and President Magufuli of Tanzania — one of the leading coronavirus deniers on the continent if not the world — recently died of heart failure days after finally admitting during a church service that the pandemic was real. The issue is clearly a real one, but that isn’t to say that it is not deeply complicated and unexplored, even by leading experts.
Right now in Nairobi, queues for the vaccine are lengthening, but diplomats are allegedly being given preferential priority for the jabs alongside frontline medical workers. Vaccines are being openly hoarded by several of the richer nations of the world, even as COVID-19 variants continue to pop up to potentially plunge the world back into turmoil just when there is a “light at the end of tunnel” following the development of vaccines (at least in the West, which has blocked vaccine access schemes, preferring to back the profit motives of pharmaceutical giants.)
If there is anything positive to have come out of this pandemic, it is the illumination that many leading powers and voices around the world (such as the US, the UK and the WHO) might not know best, let alone have the best interests of developing nations at heart. Whether or not this will lead to some sort of paradigm shift is altogether too far off to see, as we’re all still caught in the middle of the pandemic maelstrom.
A popular retort that many an American politician likes to resort to is: “it’s the economy, stupid!”. That most of the elected officials in Washington DC who like to use it tend to act with shocking economic obtuseness immediately thereafter is almost irrelevant. The phrase is not merely applicable to the American condition, but can be applied to any company, society, country, region or system. In a largely capitalist world, money makes all things go round and impedes many from trying to jump into the fray.
It has never been more starkly clear that the global financial structures are inherently flawed than in the last year of the COVID-19 pandemic. A case in point the ugly situation surrounding testing for coronavirus within the East African region.
If there is anything positive to have come out of this pandemic, it is the illumination that many leading powers and voices around the world might not know best.
While testing is available, it comes at a cost, a cost that is simply irrational for many people to bear. Unlike the free voluntary counselling and testing systems that helped to get the HIV/AIDS epidemic under control within the region, the COVID-19 testing systems within East Africa are largely preferential in nature; skewed towards the elite, the upper middle-class and the expatriate community in terms of access and availability.
Large foreign-funded organisations in places like Kampala have protocols in place to routinely test their staff, inevitably turning up positive cases as a result. The positive staff are then generally instructed to home-quarantine, where it is unclear if there are monitoring measures in place to ensure that the elderly house help is not allowed to come in to do the ironing. For her however, a “flu” that her neighbours don’t believe to be real might not be worth the risk of losing potential income during the two weeks her client is in quarantine.
And there’s the rub, that the coronavirus crisis comes with a brutal layer of classism ingrained within it. In the US, depending on their political affiliation, the upper classes either criticise individuals who try to continue running their businesses despite government orders or lambast government orders while staying at home. Both political sides of the upper class coin get takeout pizza delivered by a minimum wage driver and get the latest political tell-all book delivered by an Amazon worker who is employed at a crowded “fulfillment center” just far enough away to be out of sight and out of mind.
The cheapest test at a private clinic that I found in Uganda costs USh150,000 (US$41 or KSh4500 Kenyan). The last time the minimum wage was raised in Uganda was in 1984 when it was raised to USh 6,000 per month. Granted, no employer would dare offer such a pittance as a monthly wage in 2021, but ask yourself, would a waitress earning a USh600,000 monthly salary use a quarter of her take-home wages to get a test that may end up negative?
It is the economy, stupid.
The Kenyan government recently released further information about the rollout of the vaccination plan for the country, stating that it aims to have only 30 per cent of the nation’s population vaccinated by June of 2023. That is more than two years away at the time of writing, which begs the obvious follow-up question: what is everyone supposed to do until then? Will the rich nations in the West vaccinate the majority of their populations by July of this year and then continue to hoard doses from the rest of the world just in case?
It has never been more starkly clear that the global financial structures are inherently flawed than in the last year of the COVID-19 pandemic.
It is to reflect on how the vast majority of East Africans would cope if, for instance, the curfew was maintained for another two years. Apart from the psychological damage this would cause, the economic prospects for the region’s youth, in particular, would be perhaps irreparably damaged (and may already have been after a year of COVID-19 measures). This may be coming across as some sort of conservative pro-business stance, but I assure you this is far from the case. COVID-19 is real, it has killed millions and none of us knows just how deep the damage truly is.
The stark reality is that the economic realities of different nations are, well, different. COVID-19 funds to the tune of billions of shillings were famously “eaten” in Kenya. It is unclear whether the IMF will lend any more stimulus funds to Rwanda. Tourism numbers in Uganda have come dramatically down and are far below the rates seen in 2019, even six months after the country re-opened its borders to foreign visitors. It is a question of what the endgame will be, and how equitable it will be once the world crosses the post-pandemic threshold.
At present, it seems that the global economic systems, those of the neo-liberal ilk, the global powerbrokers, the spectres of the 20th century paradigm, are still winning out. This is frankly a horrid scenario, for if the world has been made to suffer so greatly, the livelihoods and health of billions disrupted, then the greatest shame would be to learn nothing and change even less. If the global “norm” is to revert to the ways of 2019, then truly the COVID-19 pandemic will have been a tragedy that will only grow uglier as, onion-like, its many layers are revealed in the months and years to come.
A Dangerous Woman: A Tribute to Nawal el Saadawi
What Saadawi taught me was that the oppression of women – whether in feudal societies or in capitalist ones – is not confined to any religion or region.
I was in my mid-20s when I read Nawal el Saadawi’s The Hidden Face of Eve, a book that completely changed the way I viewed feminism. Until then, I thought I knew everything about the women’s movement. After all, I had taken several courses in Women’s Studies as an undergraduate at a very liberal university in Boston, USA, in the 1980s, so I thought I knew all there was to know about patriarchy and misogyny. But Saadawi’s book led me to question all my assumptions.
The Hidden Face of Eve could be described as a Marxist analysis of the root causes of patriarchy. It lays out in clinical detail how advanced forms of agriculture, which produced surpluses that could be sold for profit, created societies where the subjugation and seclusion of women became the norm. Her thesis is simple but devastating in its conclusion: when societies transitioned from subsistence farming and started making a profit off their land, the value of their land increased. The more land you owned, the more power you wielded. So, issues surrounding inheritance – who would be the heirs to the land – became more important. To ensure that the person inheriting your land was your biological son, you made sure that your wife (or wives) had no opportunity to have sexual relations with other men. Because only a woman knows who the father of her child is, it became imperative to ensure that she did not “stray”. Hence the veiling and seclusion of women.
When feudal agricultural societies transformed into urban capitalist ones, the impetus to control women and their bodies did not diminish; it merely took other forms. In some societies, the veil became normalised; in others, women’s “purity” was safeguarded through other means, such as female circumcision or arranged marriages. Women who dared to break these norms were dismissed as prostitutes, witches or mad.
Literary reviewers and feminists have described The Hidden Face of Eve as a book about women’s oppression in the Arab world. The tendency is to see it as an indictment of Islam’s attitude towards women. But it is far from this. On the contrary, Saadawi argued that it is not Islam that has kept women down, but a patriarchal class system that cuts across all religions. It is not men who are the problem, but a system that prevents both women and men from fulfilling their potential. Men too suffer from a patriarchal system that determines what they can and cannot do.
Saadawi emphasised that this system has its origins in the mythical “first woman”, Eve, who dared to eat “the fruit of knowledge” that was forbidden to her. For this “sin”, she was punished, labour pains during childbirth being one among many other penalties she had to endure. Since then, women have continued to be suppressed by men who prefer women to remain ignorant. Christianity, Judaism, and Islam – the major Abrahamic religions – all have an Eve story where a woman’s intellectual awakening is considered threatening. Women who “know too much” are viewed as dangerous, potentially promiscuous, women who might become bad mothers or wives.
Men too suffer from a patriarchal system that determines what they can and cannot do.
What Saadawi taught me was that the oppression of women – whether in feudal societies or in capitalist ones – is not confined to any religion or region. That when critics of Islam, like the Somali-born Dutch American author Ayaan Hirsi, blame the religion for treating women badly, they must also accept that the “enlightened” Western/Christian world, which they believe has accorded women more rights, has developed other types of oppression against women that can be equally devastating. Rape and domestic violence are as prevalent in Western societies as in non-Western ones. Violence against women has become normalised because women are commodified in capitalist societies – they are valued purely on the basis of their capacity to please men. The beauty industry has capitalised on this and created a market for fashion and cosmetics. Hence the growing demand among Western women for silicone breast implants and Botox injections, and the acceptance of pornography as a legitimate form of entertainment.
This revelation – that there is no hierarchy in women’s oppression and that patriarchy and the capitalist system upon which it is built is inherently oppressive – completely changed the way I viewed the family and community structures within which I operated. I realised that being born female had already relegated me, my sisters, my mother and my grandmother to an inferior status. That the women who participated in my oppression, including my mother (who was more eager that I get married than that I obtain a university education), were only doing so because patriarchal norms left them with no choice. That when Saadawi’s mother happily watched her six-year-old daughter being circumcised, she did so because she knew that her daughter would only be accepted in her small Egyptian village if she underwent the procedure. “I did not know what they had cut off my body, and I did not try to find out,” recalled Saadawi. “I just wept and called out to my mother for help. But the worst shock of all was when I looked around and found her standing by my side.”
Women are commodified in capitalist societies – they are valued purely on the basis of their capacity to please men.
The Egyptian feminist and author, who died in March at the age of 89, and who I had the pleasure of meeting briefly at a literary event in Nairobi a few years ago, was born in the village of Kafr Tahla outside Cairo, where it was normal for girls as young as 10 to be married off. She defied all societal expectations, did well in school, and went on to become a medical doctor, only to lose her job in the Ministry of Health when her book Women and Sex was published in 1969. Saadawi did eventually marry – three times – and had a son and a daughter.
In 1981, Saadawi was among hundreds of activists imprisoned by President Anwar Sadat, and was only released from jail three months later when Sadat was assassinated. Her imprisonment did not deter her writing or her activism; she remained a strong advocate for women’s rights throughout her life. In 2011, she joined the protesters in Tahrir Square in Cairo who eventually brought to an end the regime of President Hosni Mubarak. But her staunch opposition to Egypt’s Muslim Brotherhood, which gained prominence after Mubarak’s ouster, had many questioning her democratic ideals when she celebrated the removal of President Mohamed Morsi (who supported the Muslim Brotherhood), in a military coup. (Morsi’s successor and the coup leader, Abdel Fattah al-Sisi, is viewed by many as a dictator.)
Saadawi wrote more than 50 books during her lifetime. One of her more well-known novels is Woman at Point Zero, the story of Firdaus, a sex worker sentenced to death for murdering her pimp. In this book, Saadawi shows how patriarchy is relentless in its vilification of women – even those who have allowed their bodies to be used and abused for the pleasure or benefit of men. Women seeking justice for the crimes committed against them find that justice always favours men, including those who have committed the crimes. Women like Firdaus are described as “savage and dangerous”.
Mona Eltahawy, an Egyptian American journalist, sums up how important Saadawi’s writings were to her and to other women around the world: “Patriarchy fucks us over and it has us thinking we are the insane ones, that we are the wrong ones, that we are the unworthy ones . . . And so to be told that you are not insane or unworthy . . . that is the gift of Nawal El Saadawi . . . .”
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