Ethiopia will go to the polls on June 22, buffeted by various crises domestically and abroad. But the upcoming election has many echoes of the May 15 2005 election, whose impact continues to shape Ethiopia’s domestic politics and politics in the Horn of Africa. Central to Ethiopia’s current domestic crisis and the border dispute with Sudan, is the Abiy-Amhara compact.

The 15 May 2005 elections were the third national elections to be held under the 1994 constitution following the ouster of the Marxist-Leninist Derg. In the 1995 and 2000 elections, the Ethiopian People’s Revolutionary Democratic Front (EPRDF) government harassed the opposition parties, forcing the influential ones to boycott the polls, with the result that the EPRDF won both elections with over 90 per cent of the seats.

Ahead of the 2005 election, the EPDRF signalled the significant participation of the opposition parties so that Western observers—whose support was critical for Meles—would declare the elections to have been free and fair. The incumbent party acceded to the pre-election demands of some opposition parties, allowing in international election observers and giving the opposition parties a chance to sell their manifestos on the national broadcaster. These conditions were absent in the previous elections. While these were not among the chief demands of the opposition parties prior to the polls, they indicated reasonable good faith on the part of the government compared to previous elections.

As a result, for the first time in Ethiopia’s history, a nationwide multiparty competition seemed possible; neither the ruling party nor the opposition had ever faced a competitive election before.

Internal turmoil within the EPRDF preceded the election. The Central Committee of the Tigray People’s Liberation Front (TPLF)—Prime Minister Meles Zenawi’s core support base—broke up into two rival factions in 2001. With his base in the Tigray heartland at risk, Meles took advantage of his central position within the broader EPRDF coalition and outmanoeuvred his rivals. He sacked several senior officials and successfully weathered the storm, but the fault line remained and emerged during the 2005 elections.

Post-election 

The pre-election period saw the unprecedented participation of the opposition parties and civil society organisations in the campaigns. Election Day went peacefully, and the early results in Addis Ababa and other major urban areas showed the opposition parties making significant electoral gains. According to unofficial preliminary results, the opposition had won 172 parliamentary seats—its most considerable showing yet in the 547-member assembly. On the night of the election, Prime Minister Meles Zenawi declared a one-month ban on public demonstrations in the capital and brought the Addis Ababa security forces (which would have come under the opposition’s command had they been sworn in) under the control of the Prime Minister’s office.

Opposition parties boycotted their seats in parliament, alleging rigging by the incumbent. Their refusal to take up their seats in parliament handed Meles Zenawi and his party a third term in office. Meles interpreted his “mandate” as a licence to take the authoritarian path. Hundreds, if not thousands, of political opposition and human rights activists were arbitrarily detained, with some facing the spurious charge of treason. Ethiopian security forces killed almost 200 demonstrators in post-election protests in June and November 2005 and arrested tens of thousands of people.

With the domestic front “sorted”, Meles turned to regional matters. In December 2006, Ethiopia’s military intervened in Somalia to root out the Union of Islamic Courts (UIC), which had brought stability for the few months they were in charge. The Ethiopian forces captured Mogadishu in less than a week, and the UIC dissolved and surrendered political leadership to clan leaders.

Ethiopia’s ouster of the UIC tapped into a deep historical hostility between Somalia and Ethiopia, something Al Shabaab, the youth wing of the UIC, exploited with a mix of latent Somalia nationalism and anti-imperialism.

Ethiopia’s actions provided Al Shabaab with an opportunity to translate its rhetoric into action. Al Shabaab began targeting the nascent Somalia government, Ethiopian forces, the Transitional Federal Government security, political figures, and any Somalis collaborating with Ethiopia. Ethiopia’s and TFG’s heavy-handed counterinsurgency responses played into the hands of Al Shabaab.

Ethiopia’s incursion into Somalia took place three weeks after General John Abizaid, the commander of US forces from the Middle East to Afghanistan, had met with then Ethiopian Prime Minister Meles Zenawi.

Sixteen years later, Ethiopia goes into another election whose consequences could transcend Ethiopia.

The limits of Abiy-Mania

When he ascended to power in April 2018, Prime Minister Abiy Ahmed elicited a groundswell of collective goodwill inside and outside Ethiopia. He embarked at breakneck speed on reforms that just a few years earlier would have sounded far-fetched.

At home, Abiy released political prisoners, appointed the country’s first female as the ceremonial president and a cabinet half-filled by women. He nominated a once-jailed opposition leader as the new chairwoman of the electoral board. In the Horn of Africa region, Abiy had a rapprochement with Eritrea, a country with which Ethiopia had fought a bloody war between 1998 and 2000. Abiy also attempted to mediate the Sudan political crisis.

The Nobel Committee awarded Abiy the 2019 Nobel Peace Prize “For his efforts to achieve peace and international cooperation, particularly for his decisive initiative to resolve the border conflict with neighbouring Eritrea.”

Federalism vs centralisation

While the trigger for the Abiy-led military operation against the Regional Government of Tigray in the north of the country is the alleged attack of the federal army base by the Tigray Peoples Liberation Front (TPLF), the attack was only a symptom and not the actual cause.

The battle between Abiy and the TPLF and other groups is a battle between those who champion the multi-ethnic federalism constitution and those who prefer a centralised state. Abiy favours centralisation to federalism.

The Tigray region is not the first to bear the brunt of the military and federal security forces to achieve Abiy’s centralisation agenda. The Oromia and Sidama regions have also been at the receiving end of the violence of the federal security authorities.

Abiy embarked at breakneck speed on reforms that just a few years earlier would have sounded far-fetched.

Throughout its long history of state formation, Ethiopia was for thousands of years ruled by emperors under a monarchy with a unitary system of government. The last emperor, Haile Selassie, was deposed in 1974 and from then on until 1991, the country came under a dictatorship with a unitary system of government.

The creation of the EPRDF in 1989—an ethnic coalition of the Tigrayan Peoples’ Liberation Front, the Amhara National Democratic Movement (ANDM; later Amhara Democratic Party), the Oromo Peoples’ Democratic Organization (OPDO; later Oromo Democratic Party), and the Southern Ethiopian Peoples’ Democratic Movement (SEPDM)—had changed that.

Abiy’s shot across the bow was the dissolution of the EPDRF and the launching of the Prosperity Party (PP) on December 1 2019. The OPDO, ANDM, and SEPDM voted overwhelmingly to join the party, while the TPLF rejected the idea as “illegal and reactionary”. The timing of the move was convenient, coming just a few months before the election that was postponed because of the COVID-19 pandemic.

The EPDRF’s multi-ethnic federalism and the inclusion in the constitution of the right to secede for all “nations and nationalities and peoples” of the country were innovative breakthroughs in a country with 80 different ethnic groups. But the constitution was also a product of ideological foment and political necessity. The leaders who revolted against the Mengistu junta had emerged from the student movement that had adopted the “nationalities and the land question”, redefining Ethiopian statehood.

The Oromia and Sidama regions have also been at the receiving end of the violence of the federal security authorities.

While the multi-ethnic federalism has been imperfect, especially its implementation and the domination of the EPDRF by the TPLF, in a multi-ethnic country with historical and contemporary grievances against the state, federalism has acted as a safety valve against ethnic tension.

Abiy and Amhara expansionism 

The Amharas are Abiy’s vociferous supporters at home. They, especially their elites, have an axe to grind with the TPLF for diluting their decades of uninterrupted state power and control. Amhara language and culture are the state’s language and culture, and the language and culture of the Orthodox Church which wields unfettered power. But with its political nous, its deep bureaucracy and know-how, the TPLF was always a challenging prospect for Abiy, a political novice with limited federal-level experience and hardly a political base. The connecting tissue of Abiy-Amhara unity is the lowest common denominator that is the fear and loathing of the TPLF. After dissolving the EPDR, a coalition in which the TPLF was a strong partner, the next step was to defeat the TPLF militarily. Even before the November military incursion into Tigray, Amhara militias were massed at the border with Tigray. If Abiy’s anti-TPLF move was intended to destroy them as a political force, for the Amharas this was an opportunity to regain some of the territories they had lost to Tigray in 1991.

Sudan

Ethiopia also has a boundary dispute with Sudan. The dispute centres on the al-Fashaga region, Sudan’s fertile breadbasket located in Gedaref State, which borders Ethiopia’s Amhara region in the north-west. According to the Anglo-Ethiopian Treaty of 1902 the area belongs to Sudan and, unlike the regime of Omar al-Bashir, for the transitional government of Prime Minister Abdulla Hamdok, settling this dispute is a priority. However, the Abiy-Amhara alliance has made resolving the dispute complicated.

Sudan is also a critical factor in resolving the Tigray crisis; the country is the only remaining supply route for the TPLF as Eritrea is closed to them and bringing in supplies and fuel through other routes is risky. Sudan could also determine how the GERD dam conflict will be resolved. Unlike Egypt, Sudan could benefit from cheap electricity if the dam is filled, but the country will not countenance losing al-Fashaga. Abiy faces difficult choices: cede al-Fashaga to Sudan and gain a partner in the dam negotiations while also denying the TPLF a supply route or keep al-Fashaga and lose Sudan in the GERD dam discussions, leaving the TPLF to use the Sudan border for supplies.

The Tigray conflict, which Abiy initially promised would be a straightforward law enforcement operation, has instead metastasised into a slow-grinding counterinsurgency operation. The continuing humanitarian crisis in the Tigray region is losing Abiy friends.

On May 23, the US State Department announced visa restrictions for any current or former Ethiopian or Eritrean government officials, members of the security forces, or other individuals—including Amhara regional and irregular forces and members of the Tigray People’s Liberation Front (TPLF)—responsible for, or complicit in, undermining the resolution of the crisis in Tigray.

In a multi-ethnic country with historical and contemporary grievances against the state, federalism has acted as a safety valve against ethnic tension.

America’s sanctions came on the heels of the European Union’s suspension of budgetary support worth €88 million (US$107 million) until humanitarian agencies are granted access to people in need of aid in the northern Tigray region.

On the 7th of June 2021, Representatives Gregory Meeks (D-NY) and Michael McCaul (R-TX), who is also Chairman and Ranking Member of the House Foreign Affairs Committee, together with Karen Bass (D-CA) and Christopher H. Smith (R-NJ), respectively Chairwoman and Ranking Member of the House Foreign Affairs Subcommittee on Africa, Global Health and Global Human Rights, issued a joint statement after tabling a resolution condemning violence and human rights abuses in Ethiopia.

The sanctions come as Ethiopia awards its first telecom licence for US$850 million to a consortium that includes the UK’s Vodafone in what could herald the opening up of Ethiopia’s closed economy.

Before the EPDRF came into power, Ethiopia was a posterchild of famine and incessant conflict, especially under the Derg regime. Abiy and Amhara nationalism is bringing back the echoes of the Derg era and the upcoming June election is unlikely to resolve current crises; if anything, it will exacerbate them.

Sometimes even the “biggest” victories can ring hollow. That especially seems to be the case several months into 2021, and 11 odd months after George Floyd had his life snuffed out in front of a red-brick grocery store in South Minneapolis, around the corner from the “Little East Africa” neighbourhood. That Derek Chauvin, the cop who laid his blatancy in the form of a knee across Floyd’s neck in a gutter finally faced some form of consequence in the form of a guilty verdict, may, in and of itself be of little consequence in the grandest of schemes.

Yes, right now it seems as though the verdict that has come down harshly on Chauvin is a rebuke of all things heinous, nothing less than a massive moral victory for racial progress, black America and global equality.

Indeed, rainbows shall now shine through and if you listen to many pundits within the American (and for that matter, Western) broadcast media, racism against Black America has been solved once and for all —  à la the presidential election of Barack Obama way back in those heady days of 2008.

Chauvin will be sentenced on June 25th of this year. Much of Black America is already lowering their expectations away from the 40-year maximum prison sentence.

Life is full of disappointments.

In itself, the Chauvin verdict is not one of them; it is just another opportunity for a larger collective sadness, another opportunity for an eventual letdown, a reminder of the global system of injustice that is, frankly, far as hell from ever being permanently resolved.

I haven’t been in Minneapolis since the end of May 2020, the Saturday following the Floyd killing, when the very landscape and fabric of the “Twin Cities” of Minnesota and Saint Paul were irrevocably changed. Walking around that day, the sense of despair was palpable. All of Lake Street — all seven kilometers of it — seemed to have been hit by varying degrees of madness. Some buildings were completely burnt out, husks of their former selves; others had smashed windows or had “BLACK OWNED BUSINESS: DON’T BURN!” scrawled in graffiti across the boarded-up doors. Thousands of people trudged around with shovels, cleaning up debris ahead of the inevitable next night of chaos.

In the weeks that followed, the protests spread across the United States, and even took root on a global scale, spreading as far as Nairobi, London, Kampala, Rome and dozens of other cities. In Minneapolis, all the tension of a tense superpower seemingly dying of its own hubris during the chaotic early months of the COVID-19 pandemic descended on an idyllic neighbourhood. By the day I arrived, May 30th, the United States National Guard was being deployed to put down any form of violence with their own forms of violence. But the damage had been done and the rest of the country was experiencing its own varying levels of chaos. At least two people were killed in Minneapolis alone (and at least 19 across the rest of the US, though this number seems to be low). Dozens of people were injured in Minneapolis alone (although the exact numbers are hard to confirm; personally I talked to at least three people who had sustained non-lethal injuries during the protests, so the real number could be much higher).

Thousands were injured across the US, with hundreds more incidents of police brutality filmed and shared widely. In Minneapolis there was approximately KSh 53 billion worth of damage related to the unrest. Bob Kroll, the president of the Police Officers Federation of Minneapolis who allegedly had white supremacist ties retired at the beginning of 2021. The Minneapolis Police Department was defunded following the reckoning that fell upon the Twin Cities in those warm early summer weeks.

Among pundit across America, talk of alliance and “listening” rapidly became the norm. Many leading neo-liberals put out statements, Republicans and Democrats alike. Trump ordered the beating up of peaceful protesters in front the White House and goodhearted liberals were shocked and appalled. Everyone said it was a “sea change” in American race-relations.

Less than three months after the George Floyd protests kicked off there was a “monumental change” — Jacob Blake was shot in the back by police in the city of Kenosha, in my home state of Wisconsin. The NBA boycotted games, more conversations were had and the world kept right on turning, same as it ever has.

When it comes down to issues of inequality, racism and oppression the status quo is always maintained, especially in America. Two steps forward and three steps back seems to be the pattern, one that is only reinforced by the pattern of police getting away with the murder of Black Americans — whether on tape or merely under “suspicious” circumstances in which “the officer felt their life was threatened and required a response of lethal force”.

Perhaps it is this constant pattern of impunity that has caused the most damage, a pattern that in the US can be traced to well before the 1992 Rodney King riots in Los Angeles, California. The riots were sparked off by the acquittal of cops who had been caught on film beating and kicking King senseless on the shoulder of a freeway.

It’s the same as it ever was.

Over the years since, especially in this age of social media ubiquity, incidents police violence against Black men, women and children have been caught on camera with horrifying regularity.

Horrifying, but not at all surprising. Everyone within the Black community in the US has long known the score. “Officers under threat” deaths, cases failing to be investigated, rumours of pistols being planted, delays in emergency responder times, ties to white supremacy, “warrior cops” getting more military equipment, stop-and-frisk policies, higher incarceration rates among Blacks, continual harassment, talking to children about keeping hands visible when dealing with police, media bias, fetishisation of police, the “Blue Lives Matter” movement — the list of systemic issues within US police forces could fill the remainder of this article.

In this age of social media ubiquity, incidents of police violence against Black men, women and children have been caught on camera with horrifying regularity.

The American judicial system itself is inherently flawed. The narrative among much of the “upstanding” upper middle-class elements of society is that somehow race relations were, if not solved outright, repaired with a sustained “upward” trajectory somewhere around the funeral of civil rights leader Martin Luther King Jr. after his assassination in 1968.

They paint a rosy picture of race-relations in the US in which all segregationist judges were replaced with forward thinking progressives, where all cops with KKK ties were unceremoniously fired, where the ghosts of “Jim Crow” laws (designed to suppress, segregate and subjugate post-slavery Black America) simply faded into the distant memories of a bygone era. The result was a sort of racial Cold War, where proxy wars were fought through the war on drugs, mass incarceration, neoliberalism and police impunity.

“At least segregation is illegal now”, says White America when pressed, as if cities, schools, hospitals and police actions were not still segregated sans overt painted signs.

Such sentiments bled into the politics of the US’s two major parties, Republicans spearheading the “War on Drugs” under the Reagan presidency of the 1980s and the Clinton administration cutting social programmes and accelerating mass incarceration during the 90s under the all-American ideal of “pulling oneself up by your bootstraps”. Such proponents of America’s neo-liberal ethos cared little whether there were any boots to begin with.

Slowly the technology caught up with the reality, and the anger felt across the marginalised communities in America had a focal point on which to pour out their frustrations. The images were there on film, little snippets sent into cyberspace by countless onlookers. The anger was in the bloody and lifeless body of Michael Brown lying for hours in a Missouri street. It was in Eric Garner pleading that he couldn’t breathe while being choked to death by cops in New York City. It was in Philando Castille being shot and killed in his car seconds after telling the officer who had pulled him over that he had a licensed gun in the car and reached for his wallet. (This shooting also happened in the Twin Cities area of Minnesota.) It was in Breonna Taylor being shot dead on a no-knock warrant in Louisville, Kentucky only for the officers to be charged with “wanton endangerment” for firing bullets into a neighbouring apartment.

None of the officers in the above incidents were convicted. Some were never even brought into a courtroom.

On April 11th 2021, Daunte Wright was shot and killed by a cop during a traffic stop in a suburb of Minneapolis, Minnesota. Details and footage of the incident are scant. The officer involved has been charged with second-degree manslaughter (a lesser charge than homicide in the US court system). Protests have sprung up around the US, youth wearing surgical masks — the hallmark of the smoldering COVID-19 pandemic — clashing with police and facing arrest, and “non-lethal weapons being deployed by officers to quell pockets of unrest”. This killing occurred at the epicentre of the “defund the police” movement — Minneapolis.

The cycle continues same as ever, two steps forward and three steps back in Black America’s quest for equitable treatment.

The police are just the visible agents of the systemic suppression of Black people that stretches far beyond the shores of the US.

If COVID-19 has shown up anything, it is the brutality of police worldwide. Most times their actions go on with impunity. Cops in Kenya beat up people without mercy and enforce curfew by leaving motorists stranded on highways. In Uganda cops extort commuters under threat of jail. In Rwanda the stranglehold on the nation continues to tighten under threat of harsh penalties.

There is no equality when it comes to the Global South, particularly for much of Africa whose suffering at the hands of the police echoes the oppression faced by the Black community in the US.

The cycle continues same as ever, two steps forward and three steps back in Black America’s quest for equitable treatment.

Through this lens of warranted cynicism, the “guilty” verdict handed down to Derek Chauvin by a jury in Minnesota is not a massive turning point. The very pundits stating that the verdict is such a monumental moment of change inherently prove that it is nothing remotely close to such a trend. There will be other failed indictments, other cops walking away, more cases of mysteriously “lost” body-cam footage. More will die, protests will spring up and be quelled with extreme prejudice.

Chauvin, the smirking killer that he is, did prove one thing and one thing only: where the “line” truly is, where the grey areas that the police hide behind blur over into black and white, from a “justified act of lethal self-defense from a frightened officer” into outright murder. His actions were so unquestionably heinous that they had to be dealt with. What Chauvin did derives directly from an ugly history; he lynched that man and at the time thought he would get away with it, hands in pockets, cocky half-smile on his face while his bodyweight cut off George Floyd’s air supply in that street gutter. Bystanders begged him to stop as the other officers watched in idle complicity. Paramedics were not allowed to give medical aid and Chauvin continued to apply pressure for minutes after Floyd had become non-responsive.

The systems, after all, stay much as they are in America. Profit margins must be maintained and “order” by way of the status quo must be upheld. The Twin Cities, of which Minneapolis is the more visible twin, would have simply exploded if the verdict had come back anything less than guilty. After a year of protests, COVID-19 lockdowns, electoral strangeness, Trumpian policies, political divisions, economic challenges and continued incidents of police violence, the tinderbox that was Minneapolis could not have handled Chauvin walking free out of the courthouse to appear on Fox News to “thank God”.

If that had happened the resulting violence would have dwarfed any incidents of unrest in America’s past. It is likely that weeks later clashes with police would be continuing on a nightly basis in dozens of cities across America. Minneapolis, where major corporates are headquartered, would have been engulfed in flames so huge the smoke would have been seen in the neighbouring state of Wisconsin.

The tinderbox that was Minneapolis could not have handled Chauvin walking free out of the courthouse to appear on Fox News to “thank God”.

Chauvin’s true legacy is that of an outlier, the ultimate talking-head example that “things are different now”, that something has truly been accomplished on a systemic level when it comes to police treatment of Black America.

In reality, Chauvin is simply a cop who committed an action so ugly that he had to be made an example of so that America could “get back to normal”.

For Black America in 2021 however, normal life is chockful of disappointments.

Lady Justice Martha Koome’s appointment as our Chief Justice is causing me angst. It gives me hope yet wrenches something in my gut. Her reputation as a defender of human rights is unquestioned. Yet a confession during her interview by the Judicial Service Commission showed a bias towards government.  In Requiem for a nun, William Faulkner warns, “The past is never dead. It’s not even past”.

There is Koome’s activist past, her legendary past as the chairperson of the Federation of Women Lawyers (FIDA). There is the Koome who, from 2001, led civil rights organisations in securing women’s participation in the constitutional review. She frightened the Moi era regime which deemed her ideas dangerous. Koome pushed for children and women’s rights, sought the release of people locked up on trumped-up charges, those whose rights the regime had violated. That they did not lock her up as well is inexplicable. That possibility frightened her then. Not anymore.

Justice Koome hasn’t fought the government in a while. No sooner had she become a judge than she jettisoned activism. As she told the JSC panel, her work at FIDA was situational. As a judge, she said, “I have changed completely. . . . I am government, as the Chief Justice of the Republic of Kenya . . . I head the other part of government.” This is her immediate past. And it makes many anxious.

Writing on race equality in the America of the 1940s, Faulkner’s message was that some day, the people would rise above these divisions and recognise the ties that bind them. They would recognise the fundamental lie of racism. But the protagonist, with his very Southern attitudes and bigotries, fails that test, and hence the past is never dead. For Justice Koome, which of these pasts is past?

Our main worry is something that her 18 years as a judge have revealed. Petitioning the JSC to reject Koome’s nomination, the President of the Law Society of Kenya Nelson Havi argued that her appointment would weaken the independence of the judiciary. Havi cited a questionable Saturday night sitting of the Court of Appeal during which Hon. Justice (rtd.) E.M. Githinji, Hon. Justice Fatuma Sichale and Hon. Justice M.K. Koome delivered a judgment ex parte (in the interests of one side only), a final order reversing a High Court ruling in the case of the Republic v IEBC Khelef Khalifa and another (2017) that had been delivered that very morning.

If Justice Koome is to deliver justice, she will have to find her true north again, her human rights past. Upholding justice must not be situational, Madam Chief Justice. Justice is about equal rights, and access to justice for those denied it. Delivery of justice must start within the judiciary.

While interviewing Justice Koome, Commissioner Everlyn Olwande spoke for the judges and magistrates when she expressed her fears using piercing allegory: Is the judiciary fast hurtling towards another purge? There was the radical surgery under Justice Aaron Ringera, and the judicial vetting that saw a host of judges evicted. The signal has always been to claim corruption within the judiciary.

In 2019, the state moved its war on graft to the judiciary. The Chief Public Prosecutor, Noordin Mohamed Haji, brought a charge against the Deputy Chief Justice Philomena Mwilu, that she had “abused her office for personal gain, undermining public integrity in the judiciary”. Haji claimed he had instituted criminal proceedings against her in the public interest as he had gathered enough evidence for “a reasonable prospect of conviction”.

But observers saw through the scheme. If the case had not been brought in order to force the JSC to eject the DCJ from office, then it was in fulfilment of the “we shall revisit” promise made by the president to the judiciary. This, in my view, was the veiled fear in Commissioner Olwande’s questions. It would be tragic if the Chief Justice were to cede her power to the executive.

The only hope the judiciary can hang on to is Justice Koome’s statement that, “An institution like the Judiciary should be self-cleansing . . .  from within and . . .  not from without,” to “ring-fence the independence of the judges, the judges’ decision making and the institution,” she said.

Chief Justice Koome’s major challenge will be to deliver justice to Kenyans. With a compromised legislature and an executive that is working on its own agenda, as the custodian of law, the judiciary remains the only guardrail protecting Kenya from tumbling down the precipice of chaos.

It would be tragic if the Chief Justice were to cede her power to the executive.

Governments have a propensity to oppress and Uhuru Kenyatta’s government isn’t unique in the little regard it has for justice. Justice Koome inherits a judiciary that has been battered to a pulp by the regime; punitive budget cuts, disregard of the courts’ authority, derisive rhetoric. How else can we explain the president’s delay in appointing the 41 judges recommended by the the JSC in mid-2019? Chief Justice Maraga complained that the delay had made work difficult for the courts while  Kwamchetsi Makokha argued that the president’s agenda was to diminish the stature of the judiciary.

I appeal to Chief Justice Koome’s faith to make the judiciary work for Kenyans and in this regard, an episode in Exodus 1 demands our attention since it a turning point in human history. Its heroines are two outstanding women, Shiphrah and Puah. The Pharaoh instructed these two midwives thus: “When you are helping the Hebrew women during childbirth on the delivery stool, if you see that the baby is a boy, kill him; but if it is a girl, let her live” (Exodus 1: 16). But they did not carry out the order: “The midwives, however, feared God and did not do what the king of Egypt had told them to do; they let the boys live”(1:17).

Commenting on the episode, Rabbi Jonathan Sacks termed it as “the first recorded instance in history of civil disobedience”. The two women refused to obey the order of their world’s most powerful man, an order they judged unethical and inhuman. Questioned by Pharaoh they explained: “Hebrew women are not like Egyptian women; they are vigorous and give birth before the midwives arrive,” (1: 19) to which he had no reply.

In refusing to follow the orders, Shiphrah and Puah showed that the ultimate sovereignty lies with God. The notion that sovereignty belongs to the people is a fallacy. Rabbi Jonathan Sacks argues that moral law transcends and may override the law of the state.

The judiciary remains the only guardrail protecting Kenya from tumbling down the precipice of chaos.

During the 1946 Nuremburg trials, the war criminals’ plea was that “they were merely obeying orders, given by a duly constituted and democratically elected government”. But for the new legal concept of a crime against humanity, the guilt  of the perpetrators of the holocaust would have remained unestablished. Sacks observes that “The Nuremberg principle gave legal substance to what the midwives instinctively understood, that there are orders that should not be obeyed, because they are immoral.” So, any human order transgressing the will of God is by that fact alone ultra vires. Shiphrah and Puah were the first to teach humanity the moral limits of power.

We are a country, it seems, that is bankrupt of goodness. A space filled with the evil that we commit against each other. If we do not cooperate in shunning evil against others, a good judiciary will be as useless as a scarecrow after the harvest. We should do good because that is what a human being is supposed to do.

It confounds me how attractive evil is to others. We give undue attention to the whispers or the shouts of evil. Not that evil does not demand confrontation, but I wonder why it is so elevated.  Toni Morrison, the winner of the 1993 Nobel Prize for Literature, noted that “Evil has a blockbuster audience; Goodness lurks backstage. Evil has vivid speech; Goodness bites its tongue.”

To understand goodness, Toni explored the term altruism, selfless compassion for the “other”. In her research, she learned something about altruism, its weight and its relevance in contemporary thought. What defined goodness for her was an incident that occurred within the Amish community of Pennsylvania in the United States. On the 2nd of October 2006, 32-year-old Charles C. Roberts arrived at the West Nickel Mines Amish School and ordered the male students to leave. He also allowed a pregnant woman and three women with babies to leave. Roberts then lined up 10 girls aged between 9 to 13 and shot them, killing five girls and injuring five others. Then he killed himself.

Although Roberts was not Amish, the community forgave him, refused to seek justice, demand vengeance, or even to judge him. They visited and comforted his widow and children, just as they embraced the relatives of the slain. In refusing to judge Roberts, the Amish community asserted that it was God’s place to judge. They said nothing or very little to outside inquiry, held no press conferences and submitted to no television interviews, only cautioning, “Do not think evil of this man.” They buried their dead, then attended the killer’s funeral the following day. Then they built a new schoolhouse, having torn down the old one.

Their silence following the slaughter, along with their deep concern for the killer’s family, seemed to Toni characteristic of genuine “goodness” or altruism and she became fascinated with the term and its definition.

Toni Morrison found that altruism is not an instinctive act of selflessness, but a taught and learned one. Altruism can also be used to enhance the ego in a desperate attempt to decrease self-loathing. Others have argued that altruism is embedded in our genes to enable the sacrifice of self for others. Such sacrifice for kin and/or community is innate, they claim, and is built into our genes, just as we hold individual conquest of others to be an instinctive drive that serves evolution.

This goodness can be learned. We can be taught goodness until it becomes a habit of helping strangers and/or taking risks for others at our expense. We can override that instinct which inclines us to protect only our own kin or group and broaden it to include all the people we meet, an unquestioning compassion for all.

Justice John Khamoni (rtd) learnt this goodness and the Law Society of Kenya recognised him for his distinguished service in the administration of justice in 1999, an award which the then Chief Justice barred him from receiving. In 2015 Justice Khamoni was awarded the Justice C. B. Madan prize for his contribution to the administration of justice. Justice Khamoni is in my view an example of altruism within the judiciary.

We can override that instinct which inclines us to protect only our own kin or group and broaden it to include all the people we meet.

Justice Khamoni’s acts of goodness were carried out at significant risk to his career in the judiciary. In November 1991, at the peak of the calls for political reforms, the movement’s leaders were arrested and charged. A magistrate had refused the bail applications for James Orengo and Luke Obok and the case had come before the newly appointed Justice Khamoni at the High Court in Kisumu. In that charged atmosphere, Khamoni considered the refusal to grant bail on purely legal grounds and both applicants were granted bail.

Justice Khamoni’s vision of the criminal justice system was one that was averse to oppression. He held that the High Court had a duty to prevent vexatious and oppressive prosecutions, instituted for an improper purpose and hence an abuse of the court.

The two midwives, Shiphrah and Puah, acted like good people. As did Justice Khamoni. By their acts we learn that they “feared God”, a generic description of those who have a moral sense.

Do we wonder why Hon. Amos Wako changed during his 20 years as Kenya’s Attorney General? He served as the LSK chairman from 1979 to 1981 and was a member of the UN Human Rights Committee between 1985 and 1992. The honour accorded him and the awe in which he was held reached beyond Kenya to places far away and in countries where the intelligence of Africans is the source of much amusement. Expecting that he would check the Nyayo era excesses turned out to be a futile dream. As head of the state law office, he oversaw the torture and oppression of Kenyans agitating for multi-party politics. Wako witnessed the wanton abuse of human rights without flinching. And although Kenya achieved multi-party rule and change of constitution during his tenure, the KANU government tethered him to the Goldenberg scandal during his entire time as Attorney General which led to his being sanctioned by the US government.

Do we wonder why Hon. Amos Wako changed during his 20 years as Kenya’s Attorney General?

The government is a toxic soil. This we now know. This soil is bad for certain kinds of flowers, to borrow the words of Claudia at the end of Toni Morrison’s The Bluest Eye. Certain seeds this soil will not nurture, certain fruit it will not bear. Can Chief Justice Koome thrive in this soil?

When we say the past is just a prologue, we mean the past should not enslave us; rather we spring into the bright day from lessons learnt from that dark past. Prologue because we follow those such as Shifra and Puah who paved the way.