On 13 May 2021, the Constitutional and Human Rights Division of the High Court of Kenya handed down an important judgment in David Ndii and Others v Attorney General and Others (BBI judgment). The decision struck down President Uhuru Kenyatta’s the “Constitution of Kenya Amendment Bill, 2020”, engineered through the Building Bridges Initiative (BBI), as unconstitutional.  The Constitution of Kenya Amendment Bill was a comprehensive constitutional reform proposal that aimed to introduce some fundamental changes to several chapters of the 2010 Constitution of Kenya to “build a lasting unity in the country.” For example, the redesign of the legislature by bringing the Government back to Parliament, the expansion of the national executive by creating the Office of the Prime Minister and Deputy Prime Ministers, the inclusion of the Leader of the Official Opposition in Parliament, and the creation of 70 new constituencies were among the many changes introduced by the Bill.

In its 321-page judgment, the five-judge Court framed 17 broad issues for determination including the applicability of the Basic Structure Doctrine and its implications for amendment powers, the nature and remits of popular participation in constitution-making, and the responsibility of unconstitutional exercise of public authority. The Court found that the Basic Structure Doctrine is applicable in Kenya, that the Constitution of Kenya Amendment Bill is unconstitutional, and that President Kenyatta violated the Constitution in his attempt to amend it through the BBI.

The BBI judgment has already attracted the attention of several scholars. While this case will be further litigated in the Court of Appeal – and we have to wait and see what the final outcome will look like – the judgment offers some unique jurisprudential insights to the Basic Structure Doctrine and transformative constitutionalism. In this column, I analyze the judgment’s contribution to the theory and practice of transformative constitutionalism.

In its 321-page judgment, the five-judge Court framed 17 broad issues for determination including the applicability of the Basic Structure Doctrine and its implications for amendment powers, the nature and remits of popular participation in constitution-making, and the responsibility of unconstitutional exercise of public authority

One of the main features of constitutions in the global south, including Kenya, is their transformative ethos. In the global south, constitutions are not only devices of constituting and constraining political power, but they are also mechanisms for enabling broader societal transformation. This feature of constitutionalism is called transformative constitutionalism. Although transformative constitutionalism may have more normative appeal and descriptive potential to much of the global south, its subject and extent varies widely, and its significance is not limited to the global south.

Even though the normative commitments, theoretical contours, and interpretive frameworks of transformative constitutionalism have been a subject of discussion for quite some time, Karl Klare’s original account captures its essence: transformative constitutionalism is ‘a long-term project of constitutional enactment, interpretation, and enforcement committed … to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction’.

As an interpretive project, transformative constitutionalism may require a break from the liberal individualistic conception and its formal distinction between law and politics. As a broader constitutional vision, it mainly aims to transform rather than preserve the constitutional order and its animating socio-economic, political, and cultural systems. While the BBI judgment is transformative, it is transformative in a unique Kenyan way, and this is what makes the judgment so important to the theory and practice of transformative constitutionalism.

Transformative Constitutionalism as a Jurisprudence of History

Out of the 17 broad issues the Court framed for determination, the first two are the most relevant ones to transformative constitutionalism and are related to the Basic Structure Doctrine: Is the Basic Structure Doctrine applicable in Kenya, and if so, what are its implications for amendment powers in Articles 255 to 257 of the Kenyan Constitution?

To answer these questions, the Court first developed what it called a “canon of interpretation” that includes the underlying ethos of transformative constitutionalism: the interpretation of a transformative constitution, like Kenya, requires the rejection of both liberal formalism and the distinction between “law” and “non-law” matters.

Within such canon of interpretation, the Court resorted to history to determine whether the Basic Structure Doctrine is applicable in Kenya. After carefully examining the constitutional history of Kenya since independence – the history of “hyper-amendment culture”, one-party system, imperial presidency, and elite entrenchment – along with the specific history and processes of constitution-making – public participation and people-driven constitution-making processes and efforts, the Court concluded that “Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments” Accordingly, the Court found that “there are substantive limits on the constitutional power to amend the Constitution”. The Court further stated that:

To be sure, there is no clause in the Constitution that explicitly makes any article in the Constitution un-amendable. However, the scheme of the Constitution, coupled with its history, structure and nature creates an ineluctable and unmistakable conclusion that the power to amend the Constitution is substantively limited. The structure and history of this Constitution makes it plain that it was the desire of Kenyans to barricade it against destruction by political and other elites. As has been said before, the Kenyan Constitution was one in which Kenyans bequeathed themselves in spite of, and, at times, against the Political and other elites.

As a result, the Court held, the Basic Structure of the Constitution, which “consists of the foundational structure of the Constitution as provided in the Preamble; the eighteen chapters; and the six schedules of the Constitution” that form “the core edifice, foundational structure and values of the Constitution”, which could not be exhaustively listed ex-ante but determined on a case-by-case basis cannot be amended through Articles 255 to 257, i.e., through articles that regulate constitutional amendment. The Basic Structure of the Constitution can only be amended “through a similarly informed and participatory process” through the exercise of “Primary Constituent Power”, which is not bound by previous constitutional rules. The Court builds the Basic Structure Doctrine primarily from the constitutional biography of the nation and the ordinary Kenyans’ quest for and right to meaningfully participate in the constitution and reconstitution of their nation.

A Procedural Turn in Transformative Constitutionalism

If the Court’s use of “radical social history” makes it “an example par excellence of transformative constitutionalism”, as Gautam Bhatia beautifully put it, its further engagement with the Basic Structure Doctrine ushers in a procedural turn in transformative constitutionalism, which could open valuable avenues not only to protect constitutionalism but also to advance a more transformative constitutional vision that reflects the will of the people at any given time without necessarily undergoing war or violent revolution.

According to the Court, “the sovereignty of the People in constitution-making is exercised at three levels”: two are within the bounds of the Constitution and one is outside of it. First, according to the Court, the Basic Structure of the Constitution can only be changed through the exercise of “Primary Constituent Power” – i.e., an extraordinary power to radically change the Constitution without being limited by prior constitutional rules or procedures. In Kenya, while this “Primary Constituent Power” is substantively free to change the Basic Structure of the Constitution, it is procedurally limited. It can only be exercised “after four sequential processes are met: civic education, public participation, constituent assembly debates, and referendum”.

One of the main features of constitutions in the global south, including Kenya, is their transformative ethos. In the global south, constitutions are not only devices of constituting and constraining political power, but they are also mechanisms for enabling broader societal transformation.

Second, other parts of the Constitution, which do not constitute the Basic Structure, could be amended either by the “Secondary Constituent Power” – that is “through a referendum subsequent to public participation and Parliamentary process” or by the “Constituted Power” that is by Parliament, both following the amendment procedures provided in Articles 255 to 257 of the Constitution.

The invention of a normatively open and procedurally regulated “Primary Constituent Power” as the defender of the Basic Structure of the Constitution sheds light not only on transformative constitutionalism’s condition of possibility in bringing about a fundamental constitutional change, but also shows its potential in preventing the fermentation of a violent force (such as war or revolution) that brings about and structures the constituent power in the first place. This is particularly important not only to Kenya, but also to much of the global south, where societies may, first, not afford violent revolutions that could destroy the positive socio-economic and political gains and, second, could not be sure of the dividends of the post-revolutionary constitutional outcomes.

Preservative Constitutionalism as Transformative Constitutionalism

The Court found the BBI engineered Constitution of Kenya Amendment Bill unconstitutional because it falls outside of the three permissible methods of constitutional amendment noted above. It held that the BBI process was initiated by the President, in the words of the Court, who cannot be both “the promoter and the referee” or the “player and the umpire in the same match”.

Essentially, the BBI judgment is preservative of the 2010 Constitution of Kenya and its animating values, principles, and structures, which emanate from and are grounded in the notion of popular sovereignty manifested in the public participation and people-driven constitution-making processes and outcomes – the lack of which had troubled Kenya until 2010. While the Constitution of Kenya may require some improvements, like any constitution in the world, it is important to reiterate that it is almost peerless on the African continent both in the way it came into being and in the way it has structured political power and authority. Therefore, a theory of constitutional adjudication that preserves this constitutional framework and vision is no less transformative than an adjudication that enforces socio-economic rights or advances some progressive and egalitarian ideals.

While transformative constitutionalism has been considered as a ‘metaphor of crossing the bridge’ from ‘where we stand today’, largely being the ‘geography of injustice and inequality’, to a ‘promised land of more justice and equality’, the BBI judgment makes it clear that “protecting the bridge” is as transformative as “enabling its crossing”. Finally, if South Africa has exported the notion of “transformative constitutionalism 1.0” in the 1990s to the field of comparative constitutionalism, Kenya has provided “transformative constitutionalism 2.0.” that could expand the theory and practice of transformative constitutionalism in the years to come. The BBI judgment, beyond its jurisprudential contribution to comparative constitutional studies, may inspire courts on the African continent to execute their constitutional duties.

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This article was first published in I·CONnect: the blog of the International Journal of Constitutional Law. 

Writers have run out of adjectives to describe the coronavirus situation in India – Horrific! Apocalyptic! Inhuman! Unbelievable! Disastrous! Tragic! . . .  and many, many, more. Indians are dying in hospital corridors, on the streets and in their homes as they try to get a hospital bed. Parks and car parks have been turned into cremation grounds and piles of wood are being fought over to burn the dead. Exhausted doctors, frontline workers and cremators are at breaking point. And now COVID-19 is exploding in rural India as migrants return home carrying the virus from the cities, desperate to escape a repeat of the heartless lockdown imposed in December 2020 with only a four-hour notice. Many died on the way as their government abandoned them to their fate, leaving them to walk hundreds of kilometres to their homes.

Harrowing scenes of people gasping for air and helpless carers at their wits end, bloated corpses floating in the sacred Ganges River. . . Here in Kenya we feel the pain of our fellow human beings.

There are of course many theories as to what has caused this calamity; the superspreader events such as the Kumbh Mela and the election campaign rallies in Bengal, the failure of India’s vaccine producers – one of the largest in the world – to execute its mandate, the apparent collapse of the public health system, the newly mutated Indian variant. Arundhati Roy asserts that since the massive privatisation of healthcare there has not been any public health system to speak of in India. The silencing of all patriotic and progressive media, print and electronic, has resulted in the Indian population being completely kept in the dark, unaware of the extent of the tragedy and what they could or should be doing to help themselves. We in Kenya are probably better informed of the COVID-19 situation in India than its own citizens are, and Twitter is helping Modi out by deactivating accounts critical of his government.

And then, rubbing salt into this raw wound is India’s obscenely wealthy class which is flaunting its US dollars to get preferential treatment and the best of everything there is. It is their right, they insist, in the India that they have created. The black market for oxygen cylinders and other medical supplies is booming, and desperate families are being fleeced by ruthless doctors, ambulance drivers and cremation supervisors. Just last year Modi was boasting that India had contained the virus. “Too good to be true”, tweeted a politically correct journalist, Shekhar Gupta. Too full of themselves they did not hear the scientists’ warnings: “There will be a second wave!”

What is now beyond dispute is that Prime Minister Modi’s government has failed miserably. But believe it or not, there is not a word of regret, a visit to a hospital, a gesture of sympathy, or even recognition that the suffering has escalated. My question is, should we be surprised?

I learnt an important lesson while watching the recent vetting process to select the next chief justice of Kenya. Judge David Majanja asked Senior Counsel Philip Murgor whether he had any regrets for his actions as Chief Prosecutor during the Mwakenya trials. (For those who may not be aware of this particular dark part of our history, the Judge was referring to the kangaroo courts which were held in 1985-88, always after sunset, and where Kenyans who were demanding their basic human rights were consigned to the Nyayo torture chambers, prison and detention. Some died, and those who survived were scarred for life.)  Mr Murgor replied that he had acted professionally and had done his best. Well, needless to say, Mr Murgor was not selected for the post – his history had caught up with him.

You must be wondering why I have digressed from the subject of India. It is because the truth struck me then that “we are our history”, and that we cannot escape it. More importantly, we should never ignore it. Should Indians and the world have expected anything different from Mr Modi and his BJP Party? Let us take a quick look at their histories, starting with Mr Modi.

In order to escape the ignominy of being labelled OBC (Other Backward Classes in India) Modi referred to himself as the “son of a chai wallah” (tea seller). In 2002, as chief minister of Gujarat, he oversaw the brutal massacre of Muslims in his state and presented himself as the saviour of Hindu India. The Gujarat Pogrom was ostensibly a reaction to the deaths of Hindu pilgrims when the railway coach they were travelling in caught fire in Godhra. This tragedy was blamed on Muslim terrorism; not only did Modi not try to quell the furious, rampaging mobs, but he is widely believed to have encouraged them. What is certain is that thousands of Muslims were literally butchered and burnt alive; they received neither police protection nor humanitarian aid. This calamity was Modi’s vehicle to the premiership. Horrified, the US and UK governments barred Modi from entering their countries, but the bans were soon lifted as Modi opened his “beloved” country to imperialist exploitation and went on to embrace Donald Trump and Benjamin Netanyahu.

The truth struck me then that “we are our history”, and that we cannot escape it.

Interestingly, the Modi phenomenon was preceded by a very similar saga in Kenya just a year earlier. In March 2013, newspaper headlines around the globe informed their readers that Kenya had elected as their top leaders, two suspects who were being tried by the International Criminal Court for “crimes against humanity”. The charges against Uhuru Kenyatta (now President) and William Ruto (now Deputy President) were in connection with their alleged role in the 2007-8 post-election chaos in Kenya that left more than 1,200 people dead and many others raped and wounded, and forced about 600,000 to flee their homes.

The cases were suspended for lack of evidence, with the chief judge, Chile Eboe-Osuji of Nigeria, declaring a mistrial “due to a troubling incidence of witness interference and intolerable political meddling.” “The government was blocking most avenues of investigation and witnesses were threatened and bribed,” the prosecution said. To date, neither of the suspects has been acquitted by the court.

Many Kenyans watched the subsequent celebrations in utter disbelief and dismay, hoping against hope that international censure would bring back sanity. “Choices have consequences,” Western leaders warned, distancing and themselves and choosing to restrict diplomatic relations to “essential contact”. But soon, too soon, Western economic and security interests superseded their moral concerns, driving them to resume business as usual.

As Uhuru Kenyatta approaches the end of his presidential term, the country is not only extremely polarised but the economy is in the ICU and corruption is at its worst ever. Civil society has been silenced, the media compromised, parliament is a rubber stamp for the executive and the judiciary is under constant threat. Poverty, injustice and gross inequality are the order of the day.

A similar scenario has unfolded in India. Modi’s demonetisation policy has broken the back of India’s small business sector and his attempt to corporatise agriculture has been met with the largest farmers’ demonstration ever. His reneging on the United Nation Security Council Resolution 47 for Kashmir, and the passing of the National Register of Citizens (NRC) and the Citizenship Amendment Act (CAA) in 2020, all blatantly discriminate against Muslims, rendering stateless the second largest population of Muslims in the world after Indonesia. Forcing back home the few thousand Rohingyas who had sought refuge from the murderous Myanmar regime – and so much else – points to an authoritarian, fascist leader whose satanic character COVID-19 has now exposed further.

Am I being melodramatic? Extremist? Biased? Is this history not evidence enough? I ask because there is much else that is far more sinister and ominous. The roots of Modi and his BJP Party run deep and are firmly embedded in an organisation known as the RSS (Rashtriya Swayamsevak Sangh).

The RSS was formed in 1925 in colonial India to achieve freedom, not by driving out the British, please note, but by “defending religion and culture”. Hinduism is not a doctrinaire religion; it does not have a definitive scripture or value system, nor does it have laid down laws and rituals that must be observed, and its followers even have a wide choice of deities to choose from. But there has always been a section of Hindus who have felt the need to “get organised” and have a well-defined identity. Adopting certain dress codes and vegetarian diets, promoting the Hindi language and endorsing Hindu festivals such as Diwali and Holi are just a few of the strategies towards these objectives.

The spectre of “conversion to other faiths” has been of increasing concern, and probably goes back to when the Mughals ruled India. In the last century, Christian missionaries from the USA had made inroads into the Adivasi or hill tribes of India but have since been expelled. In order to escape their “pre-destined” sub-human condition, some Dalits or Untouchables, have converted to Islam or Christianity. B.R. Ambedkar, the father of India’s Independence Constitution and a Dalit himself, became a Buddhist and advised his people to do the same.  To these realities have been added totally unsubstantiated fears of a portended demographic shift which would reduce the Hindus to a minority in their own homeland.

The roots of Modi and his BJP Party run deep and are firmly embedded in an organisation known as the RSS.

While in their time Gandhi, Nehru and others unequivocally espoused a democratic, socialist and secular India, today there are no significant and sustained counter-narratives to the rising tide of Hindu chauvinism and RSS ideology.

Although the RSS was against the caste system, it did not support its abolition. Drawn from upper caste Brahmins, the RSS leaders were focussed on a Hindu renaissance and were enthused by Hitler’s efforts to create a supreme Aryan race and eliminate minorities. It was, and still is, a highly organised paramilitary outfit with its own militias; in 2016 it had between five and six million members and 56,859 branches throughout India.

In a letter to the heads of provincial governments in December 1947, the year of India’s independence from British rule, Prime Minister Nehru wrote, “we have a great deal of evidence to show that RSS is an organisation which is in the nature of a private army and which is definitely proceeding on the strictest Nazi lines, even following the techniques of the organisation.” It was an RSS adherent, Nathuram Godse, who shot and killed Mahatma Gandhi. It was also the RSS which engineered the destruction of Babri Masjid (it was claimed, in spite of archaeological evidence to the contrary, that the mosque was built over a Hindu temple) and which is fuelling the fires against Muslims, Christians and Dalits, and radically altering the status of Kashmir.

In 1980, former Jana Sangh Party members belonging to the RSS formed a new party, the Bharatiya Janata Party or BJP. After several attempts, the BJP achieved its most desired goal in 2014: the Prime Ministership of India in the person of Narendra Modi and ministerial positions for his closest allies. The RSS could now actualise its fascist Hindutva pogrom in defiance of the late former Prime Minister Nehru’s democratic, secular and socialist ideals. What is happening in India today is the product of that history of decades past. The egoism, the hatred, the repression, the inhumanity and the idiocy continue.

And like all fundamentalist movements, the RSS gauges its success by how far it can spread its toxic presence; in today’s global village there are no borders. The RSS has branches in Europe, Canada and the US. In Africa it has a presence in Kenya and possibly elsewhere too. In the presence of global insecurity and yawning economic divides, people are seeking protection within their ethnic, religious or racial enclaves. The rise of right-wing politics, embodied most significantly by Trump, Bolsanaro and Modi, serves the objectives of the dividers rather than those of the unifiers, the dictators rather than the democrats. White Supremacy in the US bears the same imprint as the RSS. Of course, outside India the RSS relinquishes its militaristic role and operates under the guise of teaching Hindu culture and language. In the public sphere, it promotes yoga for all and in times of crisis and need, it is at the forefront in providing the highly organised and very efficient and incorruptible social and welfare services it has developed.

The RSS could now actualise its fascist Hindutva pogrom in defiance of the late former Prime Minister Nehru’s democratic, secular and socialist ideals.

The RSS’s raison d’être abroad is to secure the loyalty and ties of Hindu minorities to their motherland India, to lead them to embrace the ideology of Hindutva and maintain the purity of their race and religion. Citizenship in their adopted country then becomes a mere paper transaction and the issue of nationhood is not even on the horizon.

This is not to say that all Hindus in Kenya or India are affiliated to the RSS, or even approve of it. Far from it. But if the huge crowd of very animated Kenyan Indians who turned up at Kasarani Stadium to welcome Mr Modi on 10 July 2016 is anything to go by, the RSS is well entrenched in Kenya – a fascist fundamentalism among several others – all of which deflect us from achieving the democratic, equitable, just and humanitarian Kenya that most of us long for, and many of us work towards. Kenyans need to be vigilant against the dangerous currents circulating among us and be fully aware of the hurdles we have to overcome. COVID-19 has much to teach us, and lest we forget, we are our history.

Most of us have seen images of the calamity taking place in Indian cities – overflowing crematoriums; countless burning bodies on wooden pyres; smoke from the flames engulfing entire neighbourhoods; COVID-19 patients dying outside hospitals or in ambulances due to lack of hospital beds or oxygen cylinders. The visuals are compelling, and Indian and international TV channels have not spared any aspect of this unfolding tragedy from being aired on television. CNN even sent their international war correspondent to New Delhi – not their health or science correspondent – which speaks volumes.

There is no doubt that the dramatic spike in COVID-19 deaths in India in the last couple of weeks is a catastrophe that could have been avoided. Analysts have pointed to complacency on the part of both Indians and their government in allowing strains of the coronavirus to spread at crowded political rallies and at the recent Kumbh Mela festival, the largest religious gathering in the world. Prime Minister Narendra Modi has even been accused by Indian activist Arundhati Roy of allowing this “crime against humanity” to take place.

But the images being shown on international television channels are making many Africans uncomfortable. Africans know what it means to be the object of what many perceive as “disaster porn” – a voyeuristic peek (in the name of “news”) into the dying moments of those suffering from a disaster. Now Indians are getting the same treatment.

For decades, the world has been fed images of Africans dying from conflict, famines, and other calamities.  The photo of the “starving African baby” often appears on the front pages of leading newspapers in the West. Editors argue that such images save lives because they usually lead to a humanitarian response. But Africans know that these images belie a racism that is not immediately apparent because it is often couched in the language of compassion. They know that if the person dying was an American or a European, he or she would not be filmed or photographed in this way because it would rob them of their privacy and dignity. This is why we never saw the mass funerals of Italians when the coronavirus pandemic was at its peak in Italy. Nor did the world see the bodies of the 3,000 Americans who plunged to their death or were burnt alive during the horrific World Trade Centre twin towers terrorist attack on 11 September 2001.

The disaster unfolding in India is one that Western journalists had prepared for, but which did not materialise – until now. As one person on Twitter quipped, the high COVID-19 infection and death rates in the United States and Europe robbed Western journalists of an opportunity to portray it as a Third World problem. Everyone, from billionaire philanthropist Bill Gates to the United Nations Secretary-General Antonio Guterres, had predicted that millions of Africans would die from the virus, and they were all geared up for a fundraising campaign for the continent. But on this one, Africans disappointed them; they just did not die in sufficient numbers. India has now given Western journalists an opportunity to focus their voyeuristic gaze elsewhere.

Africans know that these images belie a racism that is not immediately apparent because it is often couched in the language of compassion.

Various theories about why Africans are not getting infected in large numbers have been proposed, including Africa’s youthful population that is apparently disease-resistant, Africa’s largely rural population,which has more exposure to fresh air, and so is less likely to inhale the virus, and the continent’s hot climate, which is not conducive to the virus’s longevity (even though not all of Africa has high temperatures; many parts of the continent experience near-zero temperatures in the winter).

This “othering” of non-white people is also reflected in COVID-19 reporting. Indi Samarajiva, writing in The Medium, talked about a New York Times article where a journalist wondered whether “there is a genetic component in which the immune systems of Thais and others in the Mekong River region are more resistant to the coronavirus”.  Samarajiva called this racist reporting. “Instead of looking at what the Thai people did, they’re asking if it’s something in their veins. Because Thai people couldn’t possibly just be competent, it must be alchemy,” he wrote.

The number of fatalities in African countries is in sharp contrast to the massive death toll in the United States, where millions have been infected and where more than half a million people have died from the disease, making America the country with the highest number of COVID-related deaths. If such horrifying figures were emanating from the African continent, there would no doubt have been a massive fundraising drive for Africans. Even televised images of thousands of middle-class Americans lining up for food donations and food stamps did not prompt international charities to organise a fundraising campaign for America’s hungry and jobless citizens.

Few analysts and media houses have dared to admit that some African countries might actually have been better at handling the pandemic than countries such as the United States, Britain, and Italy, where governments did not impose stringent measures on citizens to contain the virus. Uganda, Senegal and Rwanda, which successfully contained the virus in the initial stages through a series of rigorous measures and strategies, were not hailed as success stories in the fight against COVID-19. Nor did we hear much about Vietnam, where only a few dozen people died from the virus in the early months of the pandemic.

Kenyans have in the past called out racist depictions of tragedies occurring in their country.  After the Al Shabaab terror attack on the Dusit D2 building in Nairobi in January 2019, which left 21 people dead, the New York Times carried a disturbing photo of dead bodies slumped over dining tables in a restaurant in the building. Kenyans on Twitter (KOT) reacted quickly and furiously. Under the hashtag #SomeoneTellNYTimes, many Kenyans argued that the newspaper had employed double standards – that if the images were of dead Americans, they would not have been published. Despite the protests, the New York Times refused to pull down the offending photo. Instead, it issued an unapologetic and defensive statement that said that the newspaper believed “it is important to give our readers a clear picture of the horror of an attack like this”, which “includes showing pictures that are not sensationalized but that give a real sense of the situation.” The statement further said that the newspaper takes “the same approach wherever in the world something like this happens – balancing the need for sensitivity and respect with our mission of showing the reality of events.”

India has now given Western journalists an opportunity to focus their voyeuristic gaze elsewhere.

The self-righteousness reflected in this statement reminded me of a photo essay published by TIME magazine in June 2010 that showed the dying moments of an 18-year-old Sierra Leonean woman called Mamma Sessay who had just given birth to twins in a rural clinic. Ten images captured Sessay’s slow and painful death as she struggled to give birth to the second twin, nearly 24 hours after giving birth to the first. It was as if the photographer anticipated her death, and decided to watch it happen before his eyes. He did not take Mamma to the nearest hospital or offer any other kind of help. As one Kenyan female blogger commented: “Here, the author and the photographer strip Mamma of all dignity, parading her in her very desperate moments for the world to see. Would these pictures have been published if she was white?”

Why is death considered a private, sombre affair when the person dying or who has died is white but a public event if the person who is dying or is dead is black or brown? It his high time the international media stopped using this double standard in its reporting of grim news.