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The Kenyan High Court’s BBI Judgement: An Instant Classic
13 min read.The High Court joins the family of courts that have adopted a variant of the basic structure doctrine, and has done so in an entirely unique and compelling manner.
On 13th May, the Constitutional and Human Rights Division of the High Court of Kenya handed down its judgment in David Ndii and Others v Attorney General and Others (the BBI Judgment). Through the course of the judgment, the Court examined a fascinatingly broad range of issues, including the question of whether the Kenyan Constitution of 2010 has an un-amendable “basic structure”, the extent and limits of public participation in law-making, and political representation and the alteration of constituencies. For this reason, and for the clarity of its analysis, the BBI Judgment is a landmark judicial verdict that will be studied by students of constitutional law across the world in the days to come.
The primary issue in the BBI judgment involved a set of contentious proposals to amend the Kenyan Constitution. After winning power in 2017, in a controversial general election (the results were set aside by the Supreme Court the first time, and the Opposition boycotted the rerun), Kenyan President Uhuru Kenyatta created a “Building Bridges to Unity Taskforce” (BBI Taskforce), which was mandated to come up with “recommendations and proposals for building a lasting unity in the country”. After the BBI Taskforce submitted its report, the president appointed a sixteen-member “BBI Steering Committee”, whose terms of reference included “administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the Taskforce Report”. The Steering Committee’s report finally turned into a Bill for bringing about wide-ranging amendments to the Kenyan Constitution (“The Constitution of Kenya Amendment Bill, 2020).
Under Article 257 of the Kenyan Constitution, one of the ways to amend the Constitution is by “Popular Initiative”, which requires – as a starting point – the signatures of one million registered voters (Article 257[1]). Consequently, the BBI Secretariat commenced the process of gathering signatures. At this point, the entire process – as a whole, as well as its constituent parts – was challenged before the High Court through a number of petitions. All these petitions were consolidated, and the High Court eventually struck down the whole of the BBI process as unconstitutional.
The Court framed a total of 17 issues for disposal.
The basic structure
As the challenges were to (proposed) constitutional amendments, at the outset, the High Court was called upon to answer a crucial – preliminary – question: was there any part of the Kenyan Constitution that was un-amendable, i.e., beyond the amendment processes set out in the constitution itself (the “basic structure” question).
The constitutional provisions
To understand this better, let us briefly consider Articles 255 to 257 of the Kenyan Constitution, that deal with constitutional amendments. Articles 256 and 257 set out two methods of amending the constitution: through parliament, and through Popular Initiative. The Parliamentary Process is contained in Article 256, which requires amendments to be passed by a two-thirds majority of both Houses of Parliament. The Popular Initiative process is contained in Article 257. It requires the signature of one million registered voters, followed by a range of procedural and substantive steps, such as certification by the Independent Electoral and Boundaries Commission (IEBC), approval by a majority of county assemblies, and approval by a majority in both Houses of Parliament (failing which, the proposal can be put to a referendum).
Article 255 of the Kenyan Constitution places a further requirement for certain types of amendments. If an amendment falls into one of the ten categories set out in Article 255(1) (including Kenyan territory, the Bill of Rights, presidential terms, etc.), then in addition to the processes described in the previous paragraph, it must also be approved in a referendum by a simple majority (and under certain quorum rules). A perusal of the categories under Article 255(1) reveals – unsurprisingly – that they pertain to core structural issues, and are therefore deemed more important (in a way), or – dare we say it – more basic than the other constitutional provisions.
The text of the Kenyan Constitution, therefore, sets out two processes of amendment: Parliament (Article 256) and People and Parliament (Article 257). It also divides the constitution into two sets of provisions: those that can only be amended following a referendum, and those that do not need a referendum (Article 255). The key question in the BBI Judgment was whether Articles 255 to 257 were exhaustive when it came to constitutional amendments, or whether there was a third set of provisions that could not be amended even if the scheme under these articles was scrupulously followed.
The history
To answer this question, the High Court embarked upon a detailed analysis of Kenyan constitutional history. It noted that if there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a “model . . . of participatory constitution building process”. This meant that the public was meant to be involved in every step of the constitution-making process, as opposed to the “20th century model”, where constitutions drafted by experts were submitted for public approval, giving the people a say over only the final version.
Indeed, the 2010 Constitution – the Court argued – was designed to respond to two sets of pathologies that had plagued Kenyan constitutionalism in its previous iterations (starting from independence in 1963). The first was a “culture of hyper-amendment”, where presidents amended constitutions with such ease and such frequency, that the document became little more than a “hollow shell”, creating a raft of “constitutions without constitutionalism”. This was especially true in the 1970s and 1980s, when Kenya effectively became a one-party state, and this was at the heart of demands for constitutional reform when multi-party democracy returned in 1991.
If there was one thing that was a defining feature of the 2010 Constitution, it was that it was meant to serve as a model of participatory constitution-building process.
The second piece of constitutional history that culminated in the 2010 document was a two-decade emphasis on a citizen-led process. The High Court’s account of this history – starting at paragraph 411 of the judgment – is deeply fascinating, and repays careful study. Despite strong pushback from the political executive – with the president sarcastically asking “What does Wanjiku [i.e. the common Kenyan] know about the Constitution?” – efforts to centre the citizen in the constitution-making process remained undeterred. The Constitution of Kenya Review Act of 1997 specified that constitutional review had to be “by the people of Kenya”, and went on to provide a framework for public participation – insulated from legislative and executive interference – at every stage of the drafting process. The Constitution of Kenya Review Commission (the CKRC) implemented this at the ground level through a sequential process that involved civic education, research, public consultation, preparing the draft bill, and considering the commissioners’ report. After a long process that included considering more than 35,000 submissions from the people, a draft constitution was prepared by 2002. This process was, however, short-circuited when the then President Daniel arap Moi dissolved Parliament before the 2002 general election.
In the 2002 elections, however, President Moi lost power, and the opposition coalition that entered into government committed to continuing with the constitutional process. After further consultations, a draft called “the Bomas Draft” was prepared; however, the government attempted to significantly alter the draft through a non-participatory parliamentary process that resulted in a fresh document called “the Wako Draft”. Attempts to force through the Wako Draft were forestalled when, in 2004, the High Court of Kenya famously held that the draft would have to be put to a referendum. In 2005, when the referendum did take place, the Wako Draft was voted down 58-42.
Constitutional reform came back on the table after the large-scale violence in the aftermath of the 2007 general election, which needed international mediation. The legal framework for this was provided by the 2008 Constitution of Kenya Review Act, which again placed public participation at the centre (although its implementation in this regard was criticised). On 4th August 2010, the new draft constitution was passed with 68.55% of Kenyans voting in its favour.
Relying upon this constitutional history – i.e., the pathologies of hyper-amendments and the two-decades-long struggle for public participation – the High Court concluded 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 was buttressed by the fact that the Wako draft – which did not respect the principle of public participation – had been voted down by the Kenyan people. Over the course of the years, it had become clear that participation in the constitution-making process required four distinct steps: civic education to equip people with sufficient information to meaningfully participate in the constitution-making process; public participation in which the people – after civic education – give their views about the issues; debate, consultations and public discourse to channel and shape the issues through representatives elected specifically for purposes of constitution-making in a Constituent Assembly; and, a referendum to endorse or ratify the Draft Constitution.
The Court thus found:
What we can glean from the insistence on these four processes in the history of our constitution-making is that Kenyans intended that the constitutional order that they so painstakingly made would only be fundamentally altered or re-made through a similarly informed and participatory process. It is clear that Kenyans intended that each of the four steps in constitution-making would be necessary before they denatured or replaced the social contract they bequeathed themselves in the form of Constitution of Kenya, 2010.
The Court labeled this the “primary constituent power” – i.e., the power possessed by the people themselves, as a constituent body – as opposed to the “secondary constituent power” (the Popular Initiative + Referendum process under Articles 255 and 257) and the “constituted power” (amendment only by Parliament under Article 256). The “primary constituent power” was located outside of the constitution’s amendment provisions, and was plenary and unlimited. It followed that there were substantive limitations upon which amendments the secondary constituent power or the constituted power could bring about: such amendments could not “destroy the basic structure of the Kenyan Constitution”, because that right – i.e., to make or radically alter the fundamentals of a constitution – lay only with the primary constituent power, i.e., with “the People.”
Thus, while the High Court affirmed the basic structure doctrine in the Kenyan context, it also went one step beyond. In its classical iteration, the basic structure stops at saying that constitutional amendments cannot damage or destroy the basic structure. It hints at the possibility that such alterations can be brought about only through revolution or by a complete destruction of the existing order but – for obvious reasons – does not spell that out. The assumption is that if a constitution is to be replaced altogether, then it can only be done extra-constitutionally – and presumably through great revolutionary upheaval. The Kenyan High Court on the other hand – drawing from Kenyan history – spelt out a concrete, four-step process that could be resorted to if the People did want to change the basic structure of the Kenyan constitution. There is, of course, an interesting question: now that the Court – a body that owes its own existence to the 2010 Constitution – has spelt out the process, is it “extra-constitutional” in any genuine sense? Or is it simply a third kind of amendment process that owes its existence solely to the judiciary? This is no doubt a debate that will be joined intensely, both in Kenya and elsewhere, in the days to come.
It is nonetheless important to note, therefore, that the High Court did not actually hold that any provision or principle of the constitution is entirely un-amendable (the default position under classical basic structure doctrine). Every constitutional provision is hypothetically amendable, but some – that the Court called “eternity clauses”, borrowing form Germany – can only be amended by “recalling the Primary Constituent Power“, in accordance with the four-step process that the Court set out. As is now familiar to students of the basic structure, the Court declined to set out an “exhaustive list” of eternity clauses, noting only that this would have to be determined on a case-to-case basis, while providing illustrative examples: constitutional supremacy, the role of international law on the one hand (eternity clauses), and the number of constituencies on the other (not an eternity clause).
A final point: it is particularly fascinating to note that the High Court derived its articulation of the basic structure not from a textual interpretation of the word “amend”, or from structural arguments about implied limitations, but from Kenyan social history. Its entire analysis was focused on how Kenyans struggled for – and won – the right to public participation in constitution-making, and that was the basis for holding that the core of the constitution could not be altered without going back to the people. A crucial argument of transformative constitutionalism is that constitutional interpretation needs to work with an expanded interpretive canon, which centres people – and social movements – in its understanding of constitutional meaning. The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.
The popular initiative and the BBI process
A second key issue that fell for determination was the exact meaning of Article 257(1) of the Kenyan Constitution. Article 257(1) states that “an amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.” The BBI Taskforce and Steering Committee, however, had been set up by the President. Consequently, was it legal for it to start gathering the one million signatures needed for triggering amendment by Popular Initiative?
The High Court held that it was not. Going back to the constitutional history outlined above, it held that through multiple iterations of constitutional drafts, it had been clear that the intent of the provision that finally became Article 257(1) was that the power to initiate a constitutional amendment lie in the hands of voters. Here, the president’s direct involvement – including establishing the Taskforce and Steering Committee through gazette notifications – made it clear that the amendment bill had not been initiated by the voters. This was also impermissible because the scheme of Article 257 made the president the adjudicating authority of whether or not a referendum was to take place – thus making that authority both the “player and the umpire in the same match”, if he was also allowed to initiate proceedings.
Thus, as the Court summed up:
It is our view that a Popular Initiative being a process of participatory democracy that empowers the ordinary citizenry to propose constitutional amendment independent of the law making power of the governing body cannot be undertaken by the President or State Organs under any guise. It was inserted in the Constitution to give meaning to the principles of sovereignty based on historical past where the reservation of the power of amendment of the Constitution to the elite few was abused in order to satisfy their own interests.
While I find this clear and persuasive, it is – I think – an open question about how effective this part of the ruling will be. One can imagine all too easily how – without further safeguards and judicial good sense – such rulings can be subverted through use of proxies as “initiators” of the process. Whether or not that plays out in the future will be interesting to see.
In this case, however, it meant that the BBI process – insofar as it contemplated the Steering Committee recommending “constitutional changes” as part of its terms of reference – was illegal. An executive-led amending process was unknown to the constitution: it had to be parliament (Article 256) or people and parliament (Article 257).
The High Court’s judgment is an example par excellence of transformative constitutionalism grounded in radical social history.
The Court also found the BBI process to be unlawful for another reason – it violated Article 10’s requirement of public participation in law-making. Over the years, the Kenyan judiciary has developed a rich and substantive jurisprudence around public participation under Article 10, that requires meaningful participation, and all that it entails (intelligibility, enough time, substantive exchange of views etc.). Here, however, the Court found a very straightforward violation: the Constitutional Amendment Bill had been made available only in English, whereas Kiswahili and Braille were constitutionally-mandated languages.
Thus the Court held:
The copies also ought to have been made available in other communication formats and technologies accessible to persons with disabilities including Kenya Sign Language as required under Article 7(3)(b) of the Constitution. Only then would the voters be deemed to have been given sufficient information to enable them to make informed decisions on whether or not to append their signatures in support of the proposed constitutional amendments.
Constituency apportionment and delimitation
A significant portion of the Constitutional Amendment Bill dealt with effective alterations to Article 89 of the Kenyan Constitution, which deals with “delimitation of electoral units”. The Bill sought to introduce 70 new electoral constituencies – but also directed the IEBC to complete the delimitation within a specified time, and the basis of delimitation (“equality of [the] vote.”). The roots of this, again, lay in pre-2007 distortions of constituencies that had severely compromised the one-person-one-vote principle. To correct this, in the run-up to the 2010 Constitution, the Interim Independent Boundaries Review Commission (IIBRC) had presented a detailed report, which recognised the importance of stakeholder participation in any constituency or electoral boundary review process, and set out five principles of delimitation that were eventually incorporated into Article 89.
The Constitutional Amendment Bill gave the High Court an immediate opportunity to apply the basic structure doctrine that it had just crafted. The Court found that while the number of constituencies was not part of the eternity clauses, the provisions dealing with the method of delimitation were:
Both the text and the history of the Article makes it clear that Kenyans were very particular about the criteria of the delimitation and apportionment of constituencies. This was because the apportionment and distribution of electoral units has a bearing on both the right to representation (which is a political right) as well as the distribution of national economic resources (which is an economic right). The reason for this, as outlined above, is that a substantial amount of national resources distributed to the regions by the national government is done at the constituency level . . . Given this history and the text of the Constitution, we can easily conclude that whereas Kenyans were particular to entrench the process, procedure, timelines, criteria and review process of the delimitation of electoral units, they were not so particular about the determination of the actual number of constituencies.
Thus, the Constitutional Amendment Bill’s departure from the stipulated processes – in particular, by detailing how and when the IEBC had to do its job – was unconstitutional. Lurking underneath this reasoning, one senses an undercurrent of concern about institutional independence: it appears clear that the Constitutional Amendment Bill amounted to an encroachment upon an independent, fourth-branch institution’s sphere of work, and – indeed – interfered with how the ground rules of the democratic processes were set. This is evident in the Court’s – correct – observation that the Bill attempted to amend Article 89 “by stealth”, setting up a parallel process of boundary delimitation, as well as dispensing with public participation and taking away the guaranteed constitutional right of individuals to challenge delimitation (also under Article 89):
We say it is an attempt to amend the Constitution by stealth because it has the effect of suspending the operation of Article 89 without textually amending it. The implications of such a scheme if allowed are at least two-fold. First, it creates a constitutional loophole through which the Promoters can amend the Basic Structure of the Constitution without triggering the Primary Constituent Power. Second, such a scheme creates a “constitutional hatch” through which future Promoters of constitutional amendments can sneak in fundamental changes to the governing charter of the nation for ephemeral political convenience and without following the due process of the law.
Although the Court did not put it in so many words, this is – in many ways – a classic checks-and-balances argument: democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference (and, in the Kenyan case, buttressed by requirements of public participation). Distortion or undermining of fourth-branch institutions (whether explicitly or implicitly) would amount to undermining the ground rules of the democratic game, which are what render democratic outcomes legitimate. Thus – once the Court has committed to identifying a set of constitutional provisions as “eternity clauses”, provisions governing political representation are prime candidates. It is perhaps therefore rather fitting that it was Article 89 that was the basis of the High Court’s first application of the basic structure doctrine.
There were a number of other issues, all of which deserve a detailed analysis of their own, but which we do not have further space to examine here. These include the finding that there was no suitable legislative or regulatory framework to collect signatures and to conduct the referendum; the (fascinating) holding that amendments would have to be presented separately in multiple referenda, and not as a bloc; and the finding that County Assemblies could not alter or modify a Popular Initiative proposal (so as to avoid political capture), but were only allowed to consider and vote on it. All of these holdings raise a range of important questions that will no doubt be discussed in detail in the coming days.
Democracy depends upon independent fourth-branch institutions, constitutionally insulated from executive interference.
If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender. While the High Court joins the family of courts that have adopted a variant of the basic structure doctrine, it does so in an entirely unique – and compelling – manner: relying upon social and constitutional history in order to craft a three-tiered hierarchy of constituted power, secondary constituent power, and primary constituent power; it then utilises that same social history to spell out in great detail what the components of primary constituent power would look like, thus taking on the (seemingly) paradoxical task of constitutionalising revolutionary power.
If ever a judgment deserved to be called an instant classic, the Kenyan High Court’s BBI Judgment must surely rank as a top contender.
But even more than that, what is perhaps most heartening about the judgment is how it uses constitutional silences and the interpretive openness of constitutional text to advance an interpretation that in concrete and tangible ways seeks to empower citizens against the executive. From its spelling out of the basic structure, to its interpretation of Article 257, and to its reading of Article 89, at every step, the Court is keenly aware of the power difference between a powerful executive and the individual citizen, and at every step, the judgment works to mitigate that powerful imbalance upon the terrain of the constitution. In a world that is too full of Imperial presidencies and quiescent courts, the BBI Judgment is an inspiring illustration of courts and constitutions at their very best.
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Op-Eds
Tigray: Call It Genocide, Prosecute Its Leaders and End It
The Tigrayan people should not, must not, wait for one century, one year or even one more day for the world to acknowledge their plight and rescue them from obliteration.
On 26 May 2021, US President Joe Biden issued a bold statement on the raging crisis in Ethiopia, warning of escalating violence and the hardening of regional and ethnic divisions, including the “large-scale human rights abuses” and “widespread sexual violence” taking place in Tigray. But he stopped short of calling the appalling atrocities in Tigray by their true name: genocide.
Just one month earlier, Biden had righted an historic wrong by pronouncing the attempted extermination of Armenians by the Ottoman Empire in 1915 to have been a “genocide.” The Armenians had waited 106 years for this rhetorical symbol of justice. The Nazis’ attempt to eradicate the Jewish people was not recognised until it was too late to do anything about it. Rwandans had to wait four full years to hear President Bill Clinton express “deep regret” that he had not declared the massacre in 1994 of a million of their compatriots a genocide. Biden’s condemnation sends a message of solidarity to Ethiopians everywhere and to the people of Tigray in particular. But it also risks igniting false hopes that the international community will now take decisive action to prevent the erasure of an entire nation.
For almost seven months now, the armies of Ethiopia and Eritrea, aided and abetted by extremist militias from the neighbouring Amhara ethnic group, have been engaged in a well-planned, deliberate and systematic genocide of the Tigrayan people. The government in Addis Ababa claims that the Tigrayan People’s Liberation Front (TPLF) started the fighting with a surprise attack on a military garrison and that they must be brought to justice. The TPLF claims that a pre-emptive strike was necessary to disrupt the government’s pre-meditated war plans. But it no longer matters who fired the first shot or whether the ossified TPLF leadership should have anticipated that armed conflict could be used to justify their people’s extermination. Between November 2020 and March 2021, the University of Ghent, in Belgium, documented more than 150 massacres across Tigray, including victims as young as two years old and as old as 93; the killing has continued unabated.
Despite systematic government attempts to restrict humanitarian access and impose a media blackout, some courageous journalists, aid workers and activists have succeeded in reporting these atrocities. But most of Tigray remains inaccessible to outsiders and communications are severely restricted, so the vast majority of these crimes remain unknown and undocumented. As a medical doctor from Tigray who served in the regional capital of Mekelle during the first four months of the genocide before fleeing my country one month ago, I have watched this violence unfolding with my own eyes and I bear both personal and professional witness.
Mass murder is not enough for the masterminds of the atrocities in Tigray, Ethiopian Prime Minister Abiy Ahmed and Eritrean President Isaias Afwerki. Their armed forces and allied militias seek to exterminate the Tigrayan people by inducing mass starvation; they are burning crops and seeds, cutting trees, destroying agricultural implements, killing animals, and destroying small dams and irrigation canals, to cripple the agricultural sector. The troops grind any remaining foodstuff they find into the dirt or manure with their boots to make it inedible. In late May, UN Under-Secretary-General for Humanitarian Affairs Mark Lowcock estimated that “over 90% of the harvest was lost due to looting, burning, or other destruction, and that 80% of the livestock in the region were looted or slaughtered.”
I have watched this violence unfolding with my own eyes and I bear both personal and professional witness.
Reports by UN agencies and Tigray’s interim administration assert that more than 2.3 million people in the region are internally displaced, and 5.2 million people are in urgent need of humanitarian aid. According to UNICEF, the number of severely malnourished children in Tigray has gone up nearly 90 per cent in the past week. Uncounted numbers of people have already died of hunger. But the Ethiopian government, the Eritrean Army, and Amhara forces are determined to block humanitarian efforts, impeding and obstructing access by aid agencies. At least eight aid workers have been killed in the last six months.
The coordinated ethnic cleansing by Ethiopia and Eritrean troops in collaboration with Amhara militias also involves erasing all traces of Tigrayan identity, a heritage that dates back to the Axumite kingdom of the 2nd Century CE. To this end, they have decreed the unrestricted use of mass rape, sexual slavery, and the traumatic sterilisation of Tigrayan women as instruments of war. As a doctor I have seen the unspeakable suffering of the victims of such sexual violence, including gratuitous mutilation and torture.
But these war crimes have a much broader and equally sinister strategic purpose: the total annihilation of Tigrayans as a people. According to the Ethiopian Ministry of Health, some 1.2 million inhabitants of Western Tigray have been driven from their homes, many of them killed or incarcerated in concentration camps. The occupying authorities have officially annexed these territories and encouraged ethnic Amharas from Gojjam and Gonder regions to claim the lands, properties and assets abandoned by their rightful Tigrayan owners. While men are killed or interned, Tigrayan women and children under seven are forced to take Amhara identity if they wish to remain in their homes. Women are also forced to serve as concubines for Amhara militia so that they no longer bear children of Tigrayan descent. National census exercises in 1978 and 1994 indicated that the inhabitants of these zones were overwhelmingly Tigrigna speakers. If ethnic cleansing continues at this rate, Tigrayans could become a minority in their homeland before the end of this year.
The coordinated ethnic cleansing by Ethiopian and Eritrean troops in collaboration with Amhara militias also involves erasing all traces of Tigrayan identity.
Tigray’s unique contribution to Ethiopia’s national heritage is also being methodically obliterated. The ancient monasteries of Debredamo, Dengolat St Mary, and the Al Nejashi Mosque – possibly the oldest in Africa – have all been vandalised. Aksum, a UNESCO World Heritage site, has been razed and pillaged by Eritrean and Ethiopian troops.
The progress of this genocidal campaign beyond Tigray is hard to assess, but – as the Associated Press reported on 29 April – there is no question that Tigrayans throughout Ethiopia, and even beyond its borders, have been subjected to profiling, arbitrary arrest and detention, travel restrictions, dismissal from government posts and transfer to concentration camps. Tens of thousands of Tigrayan members of the Ethiopian National Defense Force have also been disarmed and detained on the grounds that they might pose some undefined security threat. Some have refused orders to return to Ethiopia from peacekeeping missions abroad for fear of persecution.
In addition to President Biden’s statement, the United States government and the European Union have both called for an immediate ceasefire and the withdrawal of Eritrean and Amhara forces from Tigray, and have announced plans to impose travel restrictions on Ethiopian and Eritrean officials responsible for these atrocities, with the possibility of further sanctions to follow.
These are welcome measures, but they are in no way commensurate with the scale of the crimes being committed against the people of Tigray, the depth of human suffering or the depravity of men who seek to exterminate a nation of more than 6 million people.
If ethnic cleansing continues at this rate, Tigrayans could become a minority in their homeland before the end of this year.
Genocides, like other core international crimes, do not simply “happen” or “unfold”: they are premeditated, prepared, and perpetrated by individual leaders and their followers. The killers seek to dehumanise and displace the blame onto their victims, not only to make it easier for their forces to kill, but also to confound the international community, create confusion and buy time for the long, laborious work of mass murder.
As a medical professional, as a witness, and as a husband, father, brother, and son, I cannot accept that the dead, the maimed and the destitute survivors in Tigray be stripped of their humanity. I have tended to their horrifying wounds, shared their suffering, and buried their dead. Some sympathetic observers have encouraged me to publicly describe their injuries in detail so as to elicit global revulsion, but I believe that to do so would be a second desecration of these victims. No people, whatever the alleged sins of their erstwhile political masters, should ever have to face extermination like vermin or pests at the hands of their own government.
The Tigrayan people should not, must not, wait for one century, one year or even one more day for the world to acknowledge their plight and rescue them from obliteration. President Biden and other world leaders have a moral and legal duty to call this evil in Tigray by its true name, genocide, and to identify and prosecute those ultimately responsible for this most heinous of crimes – Abiy Ahmed and Isaias Afwerki. And then to act with ruthless efficiency and determination to end the genocide.
Op-Eds
Somaliland Electoral Law Imperils Inclusive Representation
The absence of legal commitments to promote representation of women, minorities, and clans from contested regions in the upcoming elections will reinforce an exclusionary voting system.
30 years after declaring independence from Somalia in 1991, Somaliland can take pride in an impressive but not flawless democratisation record. Since 2002, the people of Somaliland have participated in six multi-party elections: three presidential elections (2003, 2010 and 2017) and two district council elections (2002 and 2012), but only one parliamentary (2005), and none for the House of Elders (Guurti). At last, combined local council and parliamentary elections will take place on 31 May 2021, respectively four years and eleven years after they were due.
The repeated postponements of elections have at times caused political tensions and uncertainty. This has undermined Somaliland’s democratisation process, weakened public confidence in democracy, stalled institution-building and reforms, and damaged the country’s relationship with the international community.
The main obstacle to holding parliamentary elections has been the difficulty in reaching a political compromise on the allocation of the 82 seats in the House of Representatives to Somaliland’s regions – and by extension, their clans – without a reliable national census. The 2005 parliamentary election could only take place because the National Electoral Commission (NEC) brokered a compromise on seat distribution just weeks before the polls.
However, the five-year mandate of the House of Representatives came to an end in 2010 without a reliable national census having been carried out, or a political solution put in place to resolve the issue of seat distribution. Disagreement on this issue delayed the holding of parliamentary elections for the next 10 years. Whenever the issue was raised, the only solution proposed was to return to the 2005 compromise formula. However, this has elicited strong opposition from people in Awdal region (western Somaliland), particularly from the Samaroon clan, who felt that the 2005 arrangement did not allocate them enough seats. Leaders from the clan threatened to boycott any future polls if a revised seat allocation formula was not agreed.
The national clan arithmetic and balance were at the centre of this stand-off. Expectations in Awdal region were anchored in a demand to allocate half of the seats of the House of Representatives to non-Isaaq clans (including Samaroon, Isse, Harti). The argument was based on the need to protect minority rights against majority rule and promote equitable clan representation rather than representation based on population. Among the leaders of the populous Isaaq clans in particular, the proposal was perceived as unreasonable and provocative. It was also seen as an attempt to win the other non-Isaaq clans, such as the Harti, over to the Samaroon cause.
Given the overwhelming public support in Awdal for stronger representation, and the fear of alienating other non-Isaaq constituencies, Somaliland’s political leaders refrained from addressing this divisive issue, contributing to the continued postponement of Somaliland’s parliamentary elections. But growing internal and external pressure forced President Musa Bihi to act. In September 2020, he endorsed a new electoral law, which stipulated that parliamentary seats would again be distributed according to the 2005 arrangement. The law was passed in early October, despite strong opposition from MPs and elders in Awdal region, paving the way for the NEC to prepare parliamentary elections.
Women’s candidacy and representation
The change in 2002 from the clan-based system of representation to electoral democracy with universal suffrage gave women in Somaliland the right to stand for election and to vote. There was hope among women that recognition of their political rights would improve women’s participation and representation in Somaliland’s politics unlike in the clan-based system of nominations, which discriminated against women.
However, the first test of the new system — the local council elections held in 2002 — demonstrated that formal recognition of the political rights of women was rarely respected in practice and was not enough to significantly improve their political participation. Clan influence remained extremely strong and most Somalilanders voted along clan lines, which tends to exclude women. The patriarchal clan system meant that very few women were put forward for election. In 2002, this resulted in only two women being elected among a total of 379 local councillors.
Even when the law allows it, few women run for office in Somaliland. And women too generally vote along clan lines, often under the direction of the men in their family. In the run-up to the parliamentary elections of 2005, women’s groups and other civic organisations campaigned hard to have provisions included in the electoral law that would establish a quota for women candidates. However, the initiative was rejected by parliament. Once more, female candidates were largely excluded from the electoral process due to the strong clan influence in the nomination process and voting patterns. As a result, out of the 246 candidates in the parliamentary elections, only seven were women and of the 82 MPs elected, only two were women.
Efforts to amend the electoral law to set a quota for women continued and in 2007, constant pressure and lobbying from women’s groups and other civic organisations eventually persuaded the government and parliament to include provisions in the electoral law that would grant a quota for female candidates. But although the proposal was endorsed by the House of Representatives, it was rejected by the House of Elders due to opposition from religious groups. The proposal was put to a vote again in 2020, but both Houses rejected the amendments under external pressure.
In the absence of a quota or a framework for promoting women’s representation, female candidates for the upcoming parliamentary elections on 31 May 2021 have sought support and endorsement from their respective clans. Seven women reportedly pursued the backing of their clans. Only one of them won the full support of her clansmen, setting a precedent as this was the first time in Somaliland’s history that clan elders, intellectuals, the diaspora, youth, opinion makers, and businessmen publicly endorsed a woman’s candidacy. Securing her clan backing furthered her candidacy. Resources were mobilised and a database was established to support her and to ensure high turnout in her clan constituency during the voter registration exercise. In contrast, a female candidate who failed to secure the support of her clansmen has faced strong and consistent resistance and opposition from her clan leadership and politicians.
Marginalised communities
The most marginalised groups in Somaliland are the Gabooye, who constitute the traditional occupational castes (“low caste”) known as Tumaal, Midgaan and Yibir. (In casual speech, these groups are often referred to as Beelaha Gabooye, although members of the various sub-groups do not necessarily accept this appellation. For the purposes of brevity, the term Beelaha Gabooye is used to refer to the Gabooye, Tumaal, and Yibir together.) For the Gabooye, the challenge of representation is more a question of their social status rather than their numbers; they have a significant number of voters to pick up seats in Hargeisa and other urban centres. But their internal divisions and especially their lack of political, social, and economic clout as a result of years of marginalisation hinder the nomination and electoral success of Gabooye candidates. To rectify this, Gabooye representation had also been discussed as part of the failed attempts to establish quotas.
Female candidates for the upcoming parliamentary elections have sought support and endorsement from their respective clans.
In the absence of quotas, the Gabooye now compete with candidates from the “noble” sub-clans of Somaliland, both to get nominated by the parties and to win seats in the parliamentary and local elections. Local observers believe that at least one Gabooye candidate in Hargeisa has a good chance of winning a parliamentary seat because he is a prominent and outspoken member of a political party and enjoys public support.
Harti candidacy and representation
In the eastern regions of Sool, Sanaag and Togdheer that are the object of contest between Somaliland and Puntland, the Dhulbahante and Warsangeli clans — which are sub-clans of the Harti clan federation which includes the Majerteen of Puntland — have long been divided in their attitudes towards Somaliland. In the run-up to the 2005 parliamentary elections, there were security concerns about holding elections in some of these contested areas. Exclusion of these territories from the poll would have reduced Harti representation in the new parliament. A provision was therefore made in the electoral law for eight reserved, uncontested seats for these Harti sub-clans – six for the Dulbahante and two for the Warsangeli.
In spite of this, Harti representation decreased from 14 to 10 following the 2005 parliamentary election. Of these seats, 8 were from the uncontested list, while 2 were elected. In contrast, the number of Samaroon seats from Awdal region increased from 10 to 13. Candidates from the Isaaq clans won 57 seats, gaining 10 seats at the expense of the Harti and minority representation. Members from Isaaq clans now controlled 70 per cent of the House, up from 63 per cent before the polls.
Ensuring the active participation of the Harti clans in the upcoming parliamentary election remains a challenge. There was an understanding between some Harti MPs and the president that the provision granting uncontested seats for the non-voting Sool, Sanaag, and Togdheer regions would remain. However, the plan met with strong opposition from some Isaaq MPs in these three regions who hope to win these seats in an electoral contest. They pressured the government to back off and passionately lobbied other Isaaq MPs to vote against reserved seats for the Harti. All Samaroon parliamentarians and most of the Harti MPs boycotted the parliamentary debate on the electoral law in protest against the proposed seat allocation. In the end, the law was narrowly approved by Isaaq MPs in parliament, and no seats were reserved for Harti constituencies.
For the Gabooye, the challenge of representation is more a question of their social status rather than their numbers.
Those opposed to the special arrangement argued that the Harti communities could organise themselves as a political group to register enough voters to compete successfully in the elections. This sentiment is shared by some members of the Harti, particularly those from the areas controlled by Somaliland, such as Sool region. Efforts by the competing candidates from the Dulbahante clan in Sool, government officials from these areas and the political parties have all considerably improved participation in voter registration. The Dulbahante districts now account for more than 57 per cent of the registered voters in the region, which would enable Dulbahante candidates to win 6 or 7 of the 12 electoral seats if there is high voter turnout. By contrast, the Warsangeli candidates (mostly in Sanaag) were far less successful because large sections of the area are not sufficiently under the control of the Somaliland government. The two predominantly Warsangeli districts have registered only about 10,000 voters. Together with about 16,500 other voters in the capital district of Eiragabo, Warsangeli candidates stand a chance to win only 2 out of 12 electoral seats in Sanaag. The refusal by parliament to allocate uncontested seats could inflict substantial damage on political representation in Somaliland if the Harti constituencies fail to gain sufficient numbers in the House.
Reinforcing exclusion
The absence of legal commitments and special arrangements to promote the representation of women, minorities, and clans from Somaliland’s contested regions in the upcoming parliamentary election will reinforce an exclusionary majoritarian voting system. This will clearly produce segments of winners and losers and will ultimately lead to less inclusive representation.
The most obvious losers will be women. Already, few women are running for parliament due to the prevailing social barriers. At best, women are likely to have only one representative in parliament. This will mean that women continue to be denied equal legislative rights, which will also have a negative impact on public policy.
Harti representation in parliament could reduce further after the upcoming election, thereby increasing their sense of marginalisation within Somaliland. It is also foreseeable that Isaaq clans will increase their share of seats at the expense of the Harti, while Samaroon representation will probably remain unchanged, thereby increasing Isaaq dominance in the parliament and further cementing their majoritarian rule.
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This article relies heavily on interviews and informal discussions with candidates and MPs from Awdal, Hargeisa, Sool, East Sanaag and West Sanaag conducted between 6 and 22 December 2020.
Op-Eds
How Technology Can Help Nations Navigate the Difficult Path to Food Sovereignty
Using digital platforms to enhance food sovereignty is only plausible if international trade is not disruptive.
As the movement of people across the world creates more multicultural societies, can trade help communities maintain their identity? This is the question at the heart of a concept known as “food sovereignty”.
Food sovereignty has been defined as “the right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods” and, critically, the ability of people to own their food systems.
Culturally appropriate food refers to the cuisine eaten by a certain group, which reflects their own values, norms, religion and preferences. It is usually dynamic and may change over time.
In my journey across different food landscapes, I have discovered that people consume food not just to satisfy hunger but for cultural, religious, and social reasons. And I have learnt that there are ways that international trade can help facilitate this.
How trade affects cuisine
My journey was shaped by my experiences examining the preferences of people from Afro-Caribbean descent, South Asians and Chinese people in the Greater Toronto Area of Canada.
The Chinese have a huge palate for bok choy, chinese eggplant, and gailan (also known as Chinese broccoli). South Asians love okra, bitter melon and eggplant. People of African descents tend to love okra and amaranth (a leafy green vegetable), at times substituting the latter with spinach because of scarcity.
The interesting thing about these groups is that they share a lot of food in common, though the preparation may differ.
This makes sense: one of my main findings has been that everyone’s cuisine has been affected by migration and trade. This pattern is ever more pronounced in the contemporary world, as people explore and learn from other cultures by including other food traditions in their own cuisine.
Enriching food culture
The integration of cultures does not negate culturally appropriate food, it enriches it. London’s curries are a result of migration, and in Nairobi the inclusion of channa (chickpea) and chapati (flatbread) in the diet is a result of the Indians trading and settling in the region.
Cultural groups have different definitions of good or appropriate food. The elite (who can afford it) and people who are environmentally conscious, for instance, believe in organic or local produce; Jews eat kosher food; and Muslims eat halal.
The challenge lies with making sure food is appropriately labelled – as organic, local, kosher or halal – and the key here is the authenticity of the certification process.
It can be quite difficult to trace the origin of certain foods, whether they’re produced locally or internationally. This educates consumers, allowing them to make the right choice. But it may be an additional cost for farmers, so there is little incentive to label.
The case for transparency and authentication
To ensure that trade allows people to have access to authentic and culturally appropriate food, I recommend a new, digitised process called “crypto-labelling”. Crypto-labelling would use secure communication technology to create a record which traces the history of a particular food from the farm to grocery stores. It would mean consistent records, no duplication, a certification registry, and easy traceability.
Crypto-labelling would ensure transparency in the certification process for niche markets, such as halal, kosher and organic. It allows people who don’t know or trust each other to develop a dependable relationship based on a particular commodity.
If somebody produces organic amaranth in Cotonou, Benin, for instance, and labels it with a digital code that anyone can easily understand, then a family in another country can have access to the desired food throughout the year.
This initiative, which should be based on the blockchain technology behind Bitcoin, can be managed by consumer or producer cooperatives. On the consumer end, all that’s required is a smartphone to scan and read the crypto-labels.
The adoption of blockchain technology in the agricultural sector can help African countries “leapfrog” to the fourth industrial revolution.
Leapfrogging happens when developing countries skip an already outmoded technology that’s widely used in the developed world and embrace a newer one instead. In the early 2000s, for instance, households with no landline became households with more than two mobile phones. This enabled the advent of a new platform for mobile banking in Kenya and Somalia.
Similarly, crypto-labelling will lead to a form of “electronic agriculture” which will make it cheaper in the long run to label and enhance traceability. With access to mobile technology increasing globally, it’s a feasible system for the developing world.
The right kind of trade
But using digital platforms to enhance food sovereignty is only plausible if international trade is not disruptive.
This is not the case now. A whole roasted turkey and condensed milk are cheaper in Hillacondji (Benin Republic) and SanveeCondji (Togo) than they are in Europe because of what economists call “dumping” – when a product is cheaper in a foreign market than in the domestic market.
Because of the low cost of imported products, local farmers in these francophone West African countries simply cannot compete. There’s no incentive to produce locally if you won’t recoup the cost of production.
In theory, it’s desirable for these to import such products because they are so inexpensive. But in practice, food sovereignty is compromised once a country needs to import staple foods that could easily be produced domestically.
Local production guarantees food safety if consumers purchase directly from farmers or through community shared agriculture. It promotes healthy eating, especially for perishable foods, that lose quality as a result of long-distance travel. It also strengthens the local economy through creation of employment and value-added products.
La Via Campesina, the international peasant’s movement interested in the welfare of farmers, wants the World Trade Organisation (WTO) to stop interfering with agriculture. But it is possible for the WTO to develop processes and procedures that will facilitate trade in Africa, based on its Trade Facilitation Agreement.
The WTO should also support developing countries in protecting their farmers, reusing seeds, and developing indigenous knowledge. Trade should not tamper with farmers’ right to plant what they want, when they want.
Intertwined sovereignty
Africa has been trading with different parts of the world for centuries, as reflected in the continent’s diverse diet. The national cuisine of the Somalis, for instance, is influenced by India, (because of the Indian Ocean trade); the Arabian Peninsula (Arab immigrants kept coming in different waves and in the process exchanges of ideas, culture and commodities took place); Ethiopia (because of trade caravan networks); and Italy (because it colonised Somalia for half a century, from 1889 to 1936).
The same thing is seen among the Swahili people of the Kenyan and Tanzanian coastal areas. There, trade has flourished for centuries, enriching the food sovereignty of several countries in Africa – that is, until multilateral organisations started performing experiments with uncertain outcomes.
I have enjoyed palm wine and pounded yam with egusi soup with a farmer called Adedeji in Ile-Ife; asked for more ugali and hot nyama choma in Nairobi while hanging out with two researchers of food and agricultural development, Makau and Magomere.
And as empirical evidence for showing food travels across borders, I have eaten kisra and okra in Edmonton with the Abibakris, a Sudanese family.
During this journey, I realised that food sovereignty is intertwined and we have a lot more in common than we tend to acknowledge. Of course food sovereignty and international trade can coexist – as long as the private sector is socially responsible and governments develop appropriate policies.
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This article is republished from The Conversation under a Creative Commons license. Read the original article.
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