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Defining Food Waste in Kenya and Beyond: A Comparative Perspective

12 min read.

Food losses in Africa occur close to the farm-end of the chain. Halving them would significantly impact food availability, affordability, and malnutrition among the poor.

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Defining Food Waste in Kenya and Beyond: A Comparative Perspective

My generation grew up in a country where the government used to dump shiploads of grain into the ocean. But not finishing your broccoli, in contrast, invoked mealtime lectures about hungry children in less fortunate countries. Wasting food was a moral problem and not the outcome of global inequality and skewed access that we later learned were responsible for those starving children pictured in UNESCO funding appeals on television.

Aversion to wasting food is probably wired into our genes. Even so, competing with your friends to kill oranges by rolling them under the wheels of passing vehicles was not exactly a sin when you were surrounded by near-endless expanses of citrus groves, and where neighbours routinely left gift bags of oranges on the doorstep that only added to the surfeit accumulating inside.

This and other examples of excess and profligacy remained largely invisible to the public until research during the 1970s indicated that up to 40 per cent of the food produced worldwide was never consumed. The 1973 University of Arizona garbage study, for example, concluded that American households were wasting up to a fifth of the meat, produce, and grains they purchased. This cost the average family US$600 a year at a time when the annual median family income was US$12,500.

This waste was only part of a much larger complex. The industrialisation of agriculture had improved the efficiencies of production but exacerbated the problem of waste between the farm gate and the family table. We may have come of age feeling guilty about the growing mountains of garbage that had become too big to hide during the 1970s, but this was actually one aspect of a far more insidious syndrome encompassing massive waste and pollution, inhumane treatment of animals, poor conditions affecting the food chain work force, and negative impacts on consumer nutrition.

These and other related issues were brought home by Eric Schlosser in his seminal 2001 book, Fast Food Nation. We came of age aware that commoditisation and convenience had created a monster. This is why many of my peers and I became strict vegetarians. We avoided processed foods and sought out organic produce wherever it was available. Food was one of the sacraments of the counterculture movement, and we believed our elevated tastes and preferences made us holy. Subsisting on bean sprouts, carrot juice, and brown rice was our ticket to heaven.

Famine and food in Turkana, 1974

I eventually came to recognise that this culinary elitism was a luxury, an Aquarian age equivalent of a Roman bacchanal. The realisation contributed to my decision to travel abroad and experience life in the more organic environs of the developing world.

After nine months in Central America, I ended up in Kenya, which was still a slow food nation the time. I arrived at a time when the hunger crisis precipitated by the Great Sahel Famine was peaking, and my first venture beyond the relatively well-fed highlands saw me spend several weeks in Turkana. My real education in the anthropology of food began in November of 1974.

We left Kitale on the back of a lorry carrying sacks of famine relief flour, arriving in Lodwar under a full moon at 2.30 a.m. Our driver insisted I join him for libations in the local bar, where we sat next to a window besieged by a posse of naked boys. The driver teased them by pretending to press a coin into the skinny hands protruding through the windows. He allayed my apparent discomfort with a beaming smile, “Sijali, wako na njaa, lakini tumewabebea chakula.” Yes, these kids are hungry, but we are the ones bringing them food, he said. I slept under the lorry, waking up to a stark landscape of scattered acacia dotted with stick people wrapped in dirty white togas.

We explored downtown Lodwar, which consisted of two streets lined with wooden storefronts. A door opened up briefly and a Somali man motioned us inside, where he served us black tea and dry bread and refused payment. My friend the lorry driver said he was going on to Kalokol, and invited us to join him. A crowd of stick people collected around us as we waited for the lorry to depart, withered arms extended. I watched an old man squatting to the side keel over.

Impelled by a mix of compassion and discomfort, we started cutting up our travel stash — a basket of fruit — distributing strips of papaya and mango as the engine roared into life. Then, as the lorry lurched into gear, the recipients of our largesse pelted us with the fruit.

My distraught traveling companion caught a ride back to Kitale after a few hours in Kalokol on the shores of Lake Turkana. Because the owner of the only transport firm serving the area had passed away the night we were on the road, I ended up marooned at the lake where I wandered during the day, and spent the evenings listening to the BBC with my host Mr Muriuki, a quiet man who worked for the National Council of Churches of Kenya. After he went to sleep, I slipped under the wire fence surrounding the missionaries’ and civil servants’ houses to listen to the Turkana singing and clapping late into the night.

It was three weeks before the next lorry left for downcountry. We traveled during the day this time. The lorry briefly stopped at a laaga, where several emaciated Karamoja men petitioned us for food.  The upcountry people on the lorry tossed them some biscuit boxes, then enjoyed a hearty laugh when the pastoralists found they were empty. “We work for our food,” they told me.

Making sense of my time in Turkana coalesced around two observations. The first was that how we define food is a culturally-bound concept. I will forever associate Kalokol with the pungent aroma of roasted doum palm nuts, which the Turkana spent their days converting into a course flour — on the shores of one of the world’s least exploited inland lakes.

As for the hungry Turkana who wasted our fruit, they had probably never seen a papaya or mango, much less tasted one. Several years later the same point was reinforced by my mother-in-law in Lamu, who demurred when I argued for reducing our young children’s starch-heavy diet: “hii mboga yako si chakula,” she objected.

The second observation notes that the universal practice of sharing food in Africa is subject to issues of identity and social relations: some people fall through the cracks. In any case, food losses, and not food waste, is the greater problem in Kenya. Food losses refer to any decrease in food mass across the edible food supply chain, which claims up to 30 per cent of the food produced across the world. Food rarely goes to waste here, but post-harvest grain losses range between 10 and 20 per cent of the harvest in this part of the world — an average of 13 per cent of Kenya’s maize harvest — and such figures would be much higher if they factored for food in the field and on the hoof that is lost to drought, disease, and other risk factors.

As for the hungry Turkana who wasted our fruit, they had probably never seen a papaya or mango, much less tasted one.

Where the losses increase closer to the consumer’s plate in the developed world, in Africa most of the losses occur close to the farm-end of the chain. Halving these losses in Africa alone would significantly impact food availability, affordability, and malnutrition among the poor.

The political ecology of food in Kenya

The European push into the Kenya highlands coincided with conditions more severe than those that I witnessed in Turkana. Disease and famine ravaged the region during the 1890s. The Maasai lost 90 per cent of their cattle to rinderpest, and drought forced many communities to seek refuge among less affected neighbours. Long-term impacts included the increased population of highland agricultural communities and the net loss of land to colonial settlement.

The structural and legal institutional framework of Kenya’s commercial agriculture that followed replaced the indigenous political ecology of food with a monoculture mindset geared to supporting commodity production for export. Native producers were confined to tribal reserves and much of their production was quarantined by colonial statutes limiting the free movement of local crops and livestock. African production systems were deemed pre-scientific and inefficient, and the trade networks that were expanding during the decades preceding European intervention were curtailed.

The colonial economy experienced a succession of crises that persist up to now. Kenya’s economy is nevertheless a complex system, and the dynamism of the indigenous order has helped offset the entropy undermining the monoculture model. Fifteen years after my Turkana awakening, I set off for the Meru highland fringe, where one of the indigenous production systems least affected by the rules of colonial agriculture was flourishing.

When the women in the lower Nyambenes winnowed their njavi, one Samburu elder told us, the papery skin of the beans was carried away by the wind. After a day or so, our eagle-eyed warriors would see the tiny flakes floating in air, and we would know it is time to collect some animals for trade and travel there.

Food storage did not feature prominently in most precolonial production systems. Cassava and other low protein-high starch root crops were important because they could be stored in the ground. Unused food was fed to the livestock that played a critical interstitial role in food systems as currency and as a protein bank.  In some societies, force-feeding young women to make them plump was an indicator of wealth that conferred prestige. The merits of voluptuous bodies for marriageability and childbearing in areas of West Africa is a tradition that still conditions African concepts of feminine beauty.

Storage was difficult in the African environment for reasons that still make it problematic today, and this is why reinvesting surplus food in social relations through trade and reciprocal arrangements was universal practice.  The importance of the circulation of food resources was underscored by the protocols enabling women to trade during episodes of group conflict.

The variability intrinsic in regional environments gave rise to multiple variations on non-hierarchical organisation that contrasted with the centralised states that emerged in areas of sustained surplus food production like Buganda and Bunyoro in the intra-lacustrine region.

The Lozi system of the Barotse plateau encompassed irrigated fields complemented by cultivation on the drier margins, followed by seasonal migration into the riverine plain where receding floodwater watered another crop. The King in the Lozi system coordinated production across the annual cycle, conscripted labour for maintenance of the dikes funneling water into the irrigation zone, and organised the mass migration into the floodplain. He also presided over the distribution of food held in communal granaries. This included assisting other communities dependent on rainfed agriculture during times of shortfall, a practice that at times emptied the royal stores.

The importance of the circulation of food resources was underscored by the protocols enabling women to trade during episodes of group conflict.

Kjekjus detailed the intricate workings of social ecologies in Tanganyika, where diverse small-scale communities operating in synch achieved an impressive level of disease control and resilience in conditions of periodic zoonotics and climatic uncertainty. The invisible hand guiding these economies highlights the role of econiche-conditioned comparative advantage enhanced by a continuous process of experimentation and adaptation.

I found these dynamics still functioning in the Nyambene region, an area relatively undisturbed by the rigid hierarchical order imposed by colonial rule. My surveys included a question on sources of agricultural information, listing four responses: extension services; the educational curriculum; radio and other media; and non-governmental organisations. Over 70 per cent of the informants replied by adding a new category: personal on-farm experimentation and observation of the same by neighbours. I collected a 50-page list of trees and plants incorporated into their on-farm production that provide a diverse range of benefits from soil fertility maintenance to herbal concoctions for treating human, livestock, and crop diseases.

Where tens of thousands of households in the coffee, tea, and maize zones of Meru received famine relief food during the 1984 drought, only several hundred non-Igembe Meru families required government food support. The disparity highlighted the stability of the Nyambene miraa-powered permaculture, which continued to generate income even during the height of the drought, and the internally mobilised assistance for food-poor households. The unending criticism of miraa production, which supports an indigenous social institution with its own multi-directional information flows, is a telling reflection of the monoculture brainwashing that holds sway among Kenya’s educated elite.

The colonial government used a range of legal acts to centralise and control the agricultural sector, and this came with strict rules regulating the production and movement of food. The systems described above, in contrast, operated as free-scale networks featuring multiple lateral linkages interspersed with nodes created by a high concentration of connections.

The disparity highlighted the stability of the Nyambene miraa-powered permaculture, which continued to generate income even during the height of the drought.

Hunger was not uncommon, and even had a season named after it, but it is difficult to find accounts of large-scale starvation in pre-colonial Africa. The more serious problem was, and still is, malnutrition, the incidence of which was episodic and location-specific in the accounts of European explorers. According to doctors who came after them, malnutrition was often aggravated by infections and parasites, which explains why disease is the main cause of death in famine-struck areas. The emergence of structural food shortfalls and endemic malnutrition was a colonial era development.

The indigenous systems referred to above sat on top of food webs, where human populations participated in the larger energy-generating ecology. Unlike the supply chains we now depend on, food webs are anchored by the 99 per cent conversion efficiency of plant photosynthesis. These webs subsume complex multi-species relationships and overlapping food chains. The indigenous political ecology of food in this region came to reflect a mosaic of coevolutionary adaptations, including cultural protocols facilitating internal and external social relations.

The emergence of structural food shortfalls and endemic malnutrition was a colonial era development.

The rise of the industrial nation-state subjected these webs to top-down control, simplifying and making them more fragile in the process. The energy-to-food conversion rate has declined precipitously under the regime of mechanisation and industrial inputs, while consumption of empty calories has skyrocketed apace. Human obesity has paralled the three-fold increase of sugar over the past fifty years, and the number of people living with diabetes across the world has quadrupled since 1980. Eighty per cent of the deaths it causes occur in low and middle income countries.

Viewed from a holistic perspective, the rising incidence of diabetes and other lifestyle diseases in Kenya reflecting these trends is another form of food waste.

The political economy of eating in Kenya

A week before I travelled to Kenya, a fracas erupted over food that had gone missing from the communal refrigerator in our dormitory. An angry young lady was ranting about other students eating her food when a Kenya student named Saleh Karanja interrupted: “People do not steal food,” he told her, “they eat it.” The observation piqued my attention, and the full implications are still sinking in.

It did not take long to understand that eating is a very context-dependent verb in this part of the world. On the positive side, I learned from my early interactions with Kenyans that sharing food was near practice. This was offset by the frequent “help me with something to eat” petitions, which I soon found out rarely referred to real food.

My survey of food waste issues for this article led me to a similar contradiction. Food waste occurs in Kenya, but it not among the poor who are not sure where their next meal will come from. Rather, the problem is limited to specific sectors. Most food waste occurs in the export horticulture industry where broken contracts, late deliveries, and other logistic glitches lead to produce not reaching its destination, or farmers not receiving full payment. Milk is the other industry prone to waste and spoilage. These findings prompted me to do my own neighbourhood spot survey to test the hypothesis. My statistically insignificant sample yielded the following results:

 

The restaurants recycle their leftovers, as do the produce sellers. Unsold fruit and vegetables also account for most of the supermarket waste; wholesale milk buyers are the only business that actually dumps their spoilage, which is placed in septic tanks. But this is not to say that Kenya’s food sector is waste-free.

Kenyan parastatals are known for the mismanagement and inefficiencies that have cost small-scale coffee, tea, maize, pyrethrum, sugar, and milk producers high losses over the years. Leakages, poor management of grain stores, and corruption at buying centres are responsible for many of the problems. The procurement of maize, sugar, and imports of agricultural chemicals are the source of most of the national scandals affecting the availability and prices of staple commodities, which in turn lowers the quality of life and nutritional status of poor Kenyan households.

The delivery of famine relief supplies during periods of extended drought has earned high marks in contrast, the incidence of District Officers and private sector transporters diverting supplies notwithstanding. All of this qualifies Saleh Karanja’s observation: taking food and not eating it is stealing. The same applies for diverting resources and prejudicial policies that benefit state-based actors and the private sector cartels they cultivate.

Footage of hungry Kenyans collecting the condemned maize some lazy civil servant decided to deposit at Nairobi’s Dandora landfill summed up Kenya’s food waste conundrum: happy scavengers interviewed by the press thanked the KANU government for the gift of free food.

Resistance and escape on fast food planet

The waste problem runs much deeper than the high levels of global food losses and the exploitation of land and agricultural resources by elites at the top of the food chain pyramid. Agronomists define weeds as plants in the wrong place. The issue of food waste, by the same logic, is often a function of food in the wrong place, Food policy analysts have weighed in on the problem by stressing the tradeoffs between investing in curtailing losses instead of improving production. The gains to be realised through the former option, they note, are finite; investing the same resources in agricultural research can generate production gains that far exceed production lost to waste.

This recommendation, however, runs up against the yet larger dilemma highlighted by the declining state of the planet’s environmental commons and the precarity overtaking the world’s small-scale producers. The quest for national food security, for example, is directly responsible for the ongoing African land grab. Ceding ownership of large tracts of communal land to increase the supply for food insecure nations in the Middle East and Asia means more carbon intensive production and negative impacts on the livelihoods of the displaced communities forced to labour on the new estates and commercial farms.

Monoculture cultivation of grains and pulses plays an important role in the provision of global food supplies. But increasing industrial agriculture at the expense of peasant producers entails, among other things, more energy-intensive transport, increased losses across supply chains, and more consumer-attractive packaging generating the plastic waste that ends up polluting our dying oceans. The policies promoting these outcomes are ironically presented as smallholder-empowering reforms.

The World Bank policy matrix adopted by the Narendra Modi government is a case in point. The new laws passed in 2020 are designed to transform locally managed rural economies into a national industry. But incorporating India’s small-scale producers into the system of global food supply chains highlights a complex of negative consequences for the country’s 100 million farmers that include the expansion of private agribusiness, mandatory use of corporate-owned hybrid seeds, centralised state management of the agriculture sector in place of the local mandi marketing system, and a ban on the private storage of key foods.

We are all caught in the new webs spun by the world’s capitalist high roaders. Like the intense protests provoked by Modi’s reforms, the conversion of the world into a fast food planet is feeding a gathering fightback in the West. The movement is based on the formation of intentional communities predicated on sustainable production and lifestyle, the adoption of permaculture, practices promoting environment regeneration, and the rejection in general of the maladaptive social operating system driving the earth to the point of collapse. Regional cultural ecologies in this part of the world and elsewhere embody many of the holistic sensibilities driving this movement, as advocates of indigenous knowledge systems have long pointed out.

Research on the anthropology of food has detailed the role of local foodways as a repository of historical memory and meaning, and ethnographic studies demonstrating how eating and drinking are intrinsic to their informants’ domestic, economic, political, and spiritual lives. Producing more high quality food in the right places is one antidote to eating at the top.

Treating food as a sacrament, as it turns out, was not such a bad idea after all.

This article is part of The Elephant Food Edition Series done in collaboration with Route to Food Initiative (RTFI). Views expressed in the article are not necessarily those of the RTFI.

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Dr. Goldsmith is an American researcher and writer who has lived in Kenya for over 40 years.

Politics

Art of War by Other Means: How Africa’s Leaders Have Become the Masters of Information Warfare

Authoritarian regimes in Africa may be perfecting the art of shutting down the internet as an advanced form of rigging the elections, with the help of western based internet based companies and platforms.

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Art of War by Other Means: How Africa’s Leaders Have Become the Masters of Information Warfare

With weeks to go until the Ugandan presidential election on January 14, 2021, Ugandan readers of The Elephant, an online platform published in Nairobi, Kenya, suddenly could not access its site. Typically, at first, they presumed, the site was down, or was experiencing some normal malfunctions associated with the heavy use of such a platform. So, they really were not duly concerned, they knew the site managers would no sooner fix the problem. But after a week, or so, word started filtering out from Kampala to Nairobi, that The Elephant site had been hacked and interfered with, and the worst thought was that the Ugandan government had shut down the website. Indeed, it had precisely done that. The publisher John Githongo had to explain to the Ugandan readers, on January 14, 2021, why they were experiencing difficulties accessing the site.

“For about a month now, some of our readers within Uganda have been reporting problems accessing the website. Following receipt of these reports, we launched investigations which have established that The Elephant has been blocked by some, though not all, internet service providers in the country. We have further ascertained that the directive to do so came from the Uganda Communication Commission (UCC) and was implemented beginning 12 December, 2020, when we noticed a sudden traffic drop coming from several providers in Uganda, including Africell and Airtel. We have written to the UCC requesting a reason for the blocking, but we are yet to receive a response.”

The publisher assured the readers that the management had temporarily put in place measures to obviate the blocking: “To circumvent the block, a Bifrost mirror has been deployed.” The Bifrost mirror enabled the readers to access the website through a specially established link.

Yoweri Kaguta Museveni, who was inaugurated on May 12, 2021, in Kampala for his sixth record time, is setting a precedent, that of completely clamping down the entire communication system, that may as well be emulated by other African strongmen. Strongmen like President Museveni, who have no intentions whatsoever of abandoning state power, have come up with ingenious methods, every time they are faced with a general election, of winging the election into their favour.

One of the latest methods is temporarily shutting down the internet. “Museveni has gone a step further, Ugandans could not even use short message service (SMS),” said an Al Jazeera newsman who covered the election. “He also made sure that people with cross-country telecommunication roaming services could not use their mobile phones, hence blocking all forms of mobile telephony communication.”

President Museveni’s government resolve to temporarily bring down The Elephant platform was a tacit acknowledgment of two things: The Pan Africanist platform which also covers stories from Uganda, written by Ugandans, could be widely read in the country. Two, that the wonders of the Internet have allowed the platform, to be available to all corners of the country, therefore to anyone, so long as they have a smart phone and can afford some internet bundles.

Towards the end of 2019, I got a Twitter direct message from a Ugandan reader of The Elephant from Jinja town, who told me the publication had become his reliable source of well-analyzed information. When the platform begun writing stories on Uganda, the platform became a must read for him. He told me if there is one thing he uses his internet bundles for, is to download all the stories he wants to read from The Elephant, so as to read them offline later on.

The ‘New Breed’

Yoweri Museveni, it will be recalled, is an ageing East African leader, who in the mid-1990s was part of a group of leaders who were referred to as the “New Breed”. The others were Paul Kagame of Rwanda and Meles Zenawi of Ethiopia. Kagame was then the Vice President and Minister of Defense. Zenawi was until his death in 2012, the Prime Minister. One of the distinguishing characteristics of the “New Breed” leaders was their capacity to control and channel communication effectively to their advantage. So, even as early as in the 1990s, leaders like President Museveni already understood the importance of managing and manipulating information as a way of keeping a stranglehold on state power. In a candid interview, in 1995, one of these “New Breed” leaders told a foreign correspondent that “the handling of information was about the survival of my country”. He could as well have said: it is about my survival to hold onto absolute power.

The influence of the Internet and information communication technology was just beginning to be felt in Africa and savvy political leaders like Kagame and Museveni were alive to the fact that it is the leader who controlled these communication advances that would stay at the apex of power. In essence, they mastered the art of information warfare. Is it any less surprising that the trio become the masters of shutting down the internet every time they are faced with presidential elections?

President Museveni’s government resolve to temporarily bring down The Elephant platform was a tacit acknowledgment of two things: The Pan Africanist platform which also covers stories from Uganda, written by Ugandans, could be widely read in the country.

The latest president to shut down the internet during election time was Denis Sassou Nguesso of the Republic of Congo, which was prior to the March 21, 2021 presidential elections. In a continent that has one of the fastest penetrations of the internet worldwide, African rulers aware of the power of the internet in relaying news and mobilizing crowds, have quickly learned that the new weapon for controlling the flow of information and mass control is the shutting down the internet.

Lisa Garbe, an internet researcher who has done some work on internet shutdowns by the authoritarian regimes of Africa, has aptly noted that “internet shutdowns in African have become the new normal.” To be fair to African despots, it is not only them who have been conspiring to shut down the internet: Four months ago, in Myanmar, a military junta, one morning on February 1, 2021, woke up and overthrew the democratically elected government of state counsellor Aung San Suu Kyi. One of the first things it did, was to shut down the internet as a way of checking the flow of information and controlling crowd mobilization.

President Museveni’s chief opponent this time around was a young man – the 39-year-old Robert Kyagulanyi aka Bobi Wine, who was born four years before the 42-year-old Museveni captured state power in Kampala. Bobi considered a local boy, built his fame as a musician from the Kampala ghetto of Kyadondo, where he is the MP for Kyadondo East constituency. Because of being constantly harassed by Museveni’s security agencies, he could hardly hold political rallies. So, he resorted to investing heavily in social media, as a way of reaching his supporters.

But to Bobi’s (late) realization, he was using a campaign tool that was in complete control of his competitor. “Museveni was intent on shutting off Bobi from all information and communication relayed through the internet connectivity, from his legion of supporters: the tech-savvy millennial and Generation Z, whose use of social media is supposedly second nature to them,” said a foreign journalist who covered the election. Today, the millennial and Generation Z, constitute an upward of 65 percent of the total registered voters, hence, form the largest voting bloc in Uganda. “So even if it meant bringing the entire system altogether down, Museveni wasn’t taking any chances.”

Protests against IMF support

In Uganda, as indeed in many African countries including the East African countries of Kenya, and Tanzania, the most popular social media apps that today frighten the political class, are Facebook, Twitter, WhatsApp, YouTube and Telegram, necessarily in that order. Kenyans on Twitter (KOT), a motley crew of ferocious countrymen, for example, rallied in protesting against the IMF lending any more money to the ruling Jubilee Party. Said Grant Brooke, a social economist in Kenya on his Twitter handle: “Kenyans on Facebook and Twitter rejecting IMF lending Kenya government’s more money is a fascinating sign of things to come in global finance. Government might not care, but IMF is certainly sensitive to bad PR.”

On the eve of Museveni’s swearing-in, angry Ugandans unleashed a swift pushback aimed at the German Embassy in Kampala, after it posted a congratulatory message from Angela Merkel to President Museveni. “Hello followers, we are getting a lot of criticisms for this post…that’s OK.” Hoping to calm down the online warriors, the embassy’s acknowledgement only helped to fuel more anger. At night when everyone was apparently asleep, the embassy deleted the Facebook message.

Without information, the few election observers that were allowed into the country, for example, could not collect and collate data on the electioneering process. “But more fundamentally, Museveni made it nearly impossible to report on the election by the assembled media houses – local and foreign,” Al Jazeera claimed. “The internet shutdown took the media houses 20 years back in time. If you didn’t have satellite capabilities you couldn’t operate. Internet shutdowns not only work against the regime’s political opponents, but are also meant to cripple media operations or make it very expensive and difficult to report on the election.” Today, many of the media houses have invested in social media tools that greatly eased their work and lessened their operational costs.

Bringing the entire system down, Museveni wasn’t taking any chances.

“Some of us who could afford, had to resort to B-Gan and satellite phones to transmit information back to our stations,” said the journalist. B-Gan which stands for Broadband Global Area Network, just like satellite today, is very expensive, few media houses can ill-afford to equip all their journalists with the gadgets.”

Authoritarian regimes in Africa may be perfecting the art of shutting down the internet as an advanced form of rigging the elections, but they are not without a helping hand: Suraya Dadoo, a South African journalist in Johannesburg writes about Circles, an Israel telecoms company, which mostly deals with government helps those government, “intercept data from 3G networks, allows the infiltrator to read messages, emails and listen in on phone calls as they occur.”

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Politics

Katiba 2010 and the Power of “We the People”: A New Account From Kenya

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.

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Katiba 2010 and the Power of “We the People”: A New Account From Kenya

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.

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

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We Are Our History: COVID-19 in India

The novel coronavirus has exposed the ugly underbelly of Prime Minister Modi’s BJP, a party founded on fascist fundamentalism and whose dangerous currents have reached Kenyan shores.

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We Are Our History: COVID-19 in India

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.

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