Article 257 of the Kenyan Constitution is one of the most interesting constitutional provisions that I’ve seen. Titled “Amendment by Popular Initiative”, it sets out ten steps for amending the Constitution, which ostensibly begin with the collection of one million signatures of registered voters, and end with a referendum. In between, there is the involvement of the representative organs (Parliament and County Assemblies) as well as a fourth-branch institution (the Independent Electoral and Boundaries Commission, or the IEBC). If each of these ten steps is completed – with its mixture of direct and representative democracy, and the participation of independent constitutional bodies – the Constitution stands amended by Popular Initiative.

As the Constitution Amendment Bill 2020 was going down the Popular Initiative Route, Article 257 was at the heart of much of the litigation, both before the High Court, and the Court of Appeal. Out of the twenty-one thematic issues framed in paragraph 50 of Musinga (P)’s lead judgment, I counted six that were directly about the interpretation of Article 257, and a few more that were ancillary. For the sake of simplicity, I propose to analyse three issues here.

1. While the “promoters” of the BBI initiative were Mr Dennis Waveru and the Hon. Junet Mohammed, it was strongly urged that the actual force behind the initiative were H.E. President Uhuru Kenyatta and the Hon. Raila Odinga. This then led to a mixed question of fact and law: on fact, who was actually behind the initiative; and on law, if it was the President, then does Article 257 contemplate a situation where the President sets the popular initiative process in motion?
2. The Constitution Amendment Bill contained seventy-four proposed constitutional amendments. Does Article 257 allow for this kind of a “package deal” to be put to a referendum, or does it require each proposed amendment to be put to the People in a separate referendum?
3. What are the standards of public participation contemplated by Article 257, and did the BBI process meet those standards?

According to the Disposition, the Court of Appeal (i) unanimously held that the President was behind the BBI initiative, and that this was unconstitutional; (ii) by a 4-3 majority, held that separate amendments need not be put to the People as individual referendum questions; and (iii) did not specifically pass any orders on the third issue. Let us now consider each in turn.

Top-Down or Bottom-Up?

On the issue of who really was behind the BBI initiative, the findings are fairly straightforward. The lead judgment of Musinga (P) traces the chronology as follows: the “handshake” between H.E. President Uhuru Kenyatta and the Hon. Raila Odinga; the establishment, by the President, and through a formal gazette notification, of the BBI Taskforce; the establishment, also by the President, and also through a formal gazette notification, of the BBI Steering Committee; and the coming-into-being of the Constitution Amendment Bill 2020 as an annexure to the Steering Committee Report. Musinga (P) therefore holds:

From the foregoing, there can be no dispute that the President was the initiator of the BBI Initiative, having established and gazetted under his hand the BBI Taskforce and the BBI Steering Committee. I am in agreement with the High Court’s finding that the Amendment Bill was an initiative of the President. (paragraph 312)

During proceedings before the Court of Appeal, Appellants had nonetheless argued that the BBI Taskforce and the BBI Steering Committee were distinct from the BBI Secretariat, a voluntary alliance of political parties, and from where the actual promoters of the initiative under 257 (Mr. Waveru and Hon. Mohammed) came from. Musinga (P) rebuts this point by noting that constitutional amendment proposals were clearly within the terms of reference of the BBI Steering Committee (paragraph 321), evincing a clear intention to start the process under Article 257. Thus:

Considering the way the Amendment Bill was developed and processed, it cannot pass muster as a popular initiative. The Bill came into being after “the President and Commander –in-Chief of the Defence Forces” appointed the BBI Taskforce which prepared a report and presented it to the President, who in turn set up the BBI Steering Committee that eventually drew up the Bill. It is however not in dispute that the BBI Steering Committee toured all the counties and received views from various stakeholders, but that cannot qualify the process as a popular initiative. There is no indication whatsoever that this was a citizen initiated move. By all means, it was an executive led and driven initiative. (paragraph 325)

We find similar analysis in the other judgments (see Nambuye JA, paragraphs 66 – 71; Okwengu JA, paragraph 136, 154 – 158; Kiage JA, pgs 101 – 107, 118 – 121; Gatembu Kairu JA, paragraph 83; Sichale JA, pgs 67 – 69; Tuiyott JA, paragraphs 66 – 78, for a particularly detailed examination of affidavits).

Musinga (P) then affirms the High Court’s historical analysis, according to which a clear distinction was drawn between amendments initiated “by the People”, and those initiated by the “political elite”, with the BBI falling clearly within the latter category. A perusal of the CKRC Report reveals that the entire purpose of what eventually become Article 257 – and its passage through multiple draft Constitutions through the 2000s – was to release the amendment process from parliamentary monopoly, and provide an avenue whereby the public could be involved, not just at the end of the process (through a referendum), but at the point of initiation.

Now, what of the argument that the President could nonetheless initiate the process “in his capacity as a private citizen”, exercising his own constitutional rights? Here, Musinga (P) affirms the High Court’s conceptual analysis, noting that the Kenyan Constitution itself recognises the distinction between representative and direct democracy; consequently, a provision that expressly contemplates the latter process cannot be usurped by representative organs (paragraph 348). Other judges agree (see Nambuye JA, paragraphs 99 – 101; Okwengu JA, paragraphs 110 – 112, and also paragraph 152, noting that the President cannot “temporary remove his executive mantle”; Kiage JA, pg 108 – 110; Gatembu Kairu JA, paragraphs 77 – 81, Sichale JA, pgs 69 – 72; Tuiyott JA, paragraphs 49, 52 – 55).

From the foregoing, there can be no dispute that the President was the initiator of the BBI Initiative, having established and gazetted under his hand the BBI Taskforce and the BBI Steering Committee. I am in agreement with the High Court’s finding that the Amendment Bill was an initiative of the President

I want to make two further points here. The first is that during oral arguments, Appellants pointed out a situation where the President’s agenda would be stymied by an opposition-dominated Parliament (the famous “veto points”, to borrow a term from American Presidentialism), leaving them no choice but to take their case to the People directly. Article 257 facilitated this. This argument is acknowledged by Kiage JA, but his response is, essentially, “too bad, the Constitution doesn’t allow for that.” I think, however, that Kiage JA does indeed answer this question, but as part of his basic structure analysis (see previous post). In his analysis of comparative constitutional history, Kiage JA notes how the “Imperial Presidency” came to dominate African constitutionalism after the first wave of decolonisation in the 1960s, and he goes on to argue that the 2010 Kenyan Constitution is a response – inter alia – to the pathologies of the Imperial Presidency.

This is a crucial point, because the arguments in the context of Article 257 reveal the stakes here. As multiple Justices note, the text of Article 257 does not specifically bar the President from initiating or promoting the popular amendment process. The question then becomes, how do you resolve this constitutional silence? Now if you think of the Presidential system as set out under the 2010 Constitution as empowering the President against the kind of veto-points that one finds in the United States, then the Appellants’ arguments would be persuasive; however, if you think that the 2010 Constitution was meant – inter alia – to check the Imperial Presidency, then ambiguities and silences should be resolved in favour of veto points and against expanded Presidential power. As is clear, this debate goes right to the fundamental premises of the 2010 Constitution – its “basic structure”, one might almost say! And consequently, which side one takes on this will have implications beyond this judgment, in future litigation concerning Presidential and executive powers. None of the judgments in the Court of Appeal squarely address this point, and so, arguably, it remains open.

My second point involves a debate (of sorts) between Okwengu JA and Tuiyott JA on this point. In her analysis of the legality of the BBI Steering Committee itself, Okwengu JA appears to suggest that had the Steering Committee simply floated some proposals on constitutional amendment, and had those proposals then been taken up by ordinary citizens, the process under Article 257 may have been kicked off validly. This, however, raises a concern that I had indicated in my earlier post about the High Court judgment: even a ruling clarifying that neither the President nor any other State organ can initiate or promote the process under Article 257 will leave open the possibility of doing an end-run around the Constitution through clever use of proxies. Interestingly, this danger is specifically recognised by Tuiyott JA. In paragraph 60, Tuiyott JA notes that:

That said, the process of popular initiative must be guarded from abuse. A State actor, who is otherwise barred from initiating a popular initiative, cannot originate a proposal for amendment then hire or sponsor a citizen to formulate it into a Bill and then collect signatures in support. In that instance, the promoter will simply be a surrogate of the State actor. That will not be a truly citizen-driven initiative as it will an enterprise of the State actor. There will be occasion therefore when it will be necessary to look beyond the person who formulates the draft Bill and collects the signatures to discover the hand behind the initiative, only in this way will the true intent of the popular initiative process be protected against manipulation. (paragraph 60)

Tuiyott JA therefore spends the next eighteen paragraphs minutely examining the evidence on record, including – in particular detail – the affidavit of Mr Waveru, where he himself conceded links between the BBI Secretariat, Taskforce, and Steering Committee, to demonstrate that what was happening here was indeed “an enterprise of the State actor.” This is promising: I suspect that, given the Court of Appeal’s ruling, in the future, the use of proxies – only more subtly and cleverly than the somewhat ham-fisted attempt in this case – to circumvent Article 257 is a non-trivial possibility. In such cases, Tuiyott JA’s detailed consideration of evidence indicates how the judiciary may examine this issue.

The Referendum Questions

Recall that the High Court had held that in a proposal for amending the Constitution that goes to a referendum, the proposed amendments must be submitted as separate and distinct questions, and not as a “package deal”. There are many rationales for this, two of which are succinctly summarised by Nambuye JA (paragraph 121). First, the binary, up-down nature of referenda makes them particularly unsuitable for the simultaneous determination of multiple issues, especially where citizens may have different views on those issues. By forcing a “package deal” vote, actual public preferences are thus seriously distorted. Secondly – and relatedly – the “package deal” allows the State to throw in “sweeteners” to make undesired changes more palatable. Suppose I offer to buy you ice-cream for a week if – and only if – you allow me to whack you in the face, your affirmation of my “package deal” doesn’t actually signify that you want to be whacked in the face – especially when the two “offers” are entirely unrelated.

It is however not in dispute that the BBI Steering Committee toured all the counties and received views from various stakeholders, but that cannot qualify the process as a popular initiative. There is no indication whatsoever that this was a citizen initiated move. By all means, it was an executive led and driven initiative.

On this point, Musinga (P) – whose opinion appears to be controlling (but see below) – adopts a textual reading that is somewhat (in my submission) at odds with the tenor of the rest of his judgment. He notes that under Article 257, what is required to be submitted to the People is a “Bill”, not a “question” or “questions”. The modalities of how this is to be done lies exclusively within the domain of the IEBC (paragraph 398). Note, however, that the textual point is not quite as clear-cut as all that. As Nambuye JA notes – in a very clear exposition of the argument (paragraphs 121 – 132) – the Article 257 differs from, say, the Article V of the United States Constitution, which uses the plural “amendments”, while Article 257 uses the singular “an amendment.” (see also Kiage JA, pgs 175 – 176) There, is therefore, at least a plausible textual argument for the proposition that the Article 257 process refers to a single amendment and therefore, by definition, excludes omnibus bills that offer up multiple amendments.

Now, on all other points, the Justices in the Court of Appeal – including Musinga (P) – consistently hold that wherever there is textual ambiguity or silence, an interpretation that strengthens public participation is to be preferred over one that does not. In this context, it is hard to argue with Nambuye JA’s observation in paragraph 128, that:

It is further my position that, when a bill is limited to a single subject, it is easier for the public to more fully understand the impact of the enactment. It also prevents fraud upon the people by minimizing the possibility of promoters of the amendment hiding harmful proposals in the midst complex multi-subject measures that the common man might not be able to grasp and understand. (paragraph 128)

I respectfully submit, therefore, that on this issue, Musinga (P) departs from his own consistent interpretive methodology. Furthermore, and somewhat bafflingly, shortly after his analysis, he nevertheless goes on to say “that notwithstanding, it is improper to lump together 74 proposed constitutional amendments in a Bill” (paragraph 399) Evidently, therefore, Musinga (P) is entirely cognisant of the problem with “package deals” – and indeed, around sixty paragraphs before, he himself identifies the problem with this package deal:

Some of the proposed amendments are rather superfluous, and strictly speaking they ought not to have been proposed as constitutional amendments by the promoters. At best, they could only be proposed as statutory amendments but were intentionally included in the Amendment Bill and appropriate statutory amendment Bills drawn by the to act as sweeteners to coax voters into supporting the proposed constitutional amendments. (paragraph 336)

He goes on to describe these amendments (tax breaks, loan exemptions etc), and immediately after, notes:

These are definitely very good and appealing proposals, but anchoring them on the Constitution of Kenya (Amendment) Bill, 2020 that also proposed very far reaching alterations of the basic structure of our Constitution was a clever bait to entice the populace, and particularly the young registered voters, who are the majority, to support the Amendment Bill, without proper civic education on all the contents of the entire Bill. (paragraph 338)

But this “clever bait” is surely as much an end run around Article 257 as is the President standing behind the figures of Mr. Waveru and the Hon. Mohammed to initiate the BBI process! Thus, this makes Musinga (P)’s finding on the issue of separate referendum questions even more baffling. I wonder, though, if an answer is to be found in paragraph 400. There, Musinga (P) notes:

I do not therefore agree with the learned judges that what is to be subjected to the referendum is a question or questions, it is the Amendment Bill, but the people are to approve or disapprove of the Bill by answering a question or questions as framed by the IEBC and approved by Parliament. (paragraph 400)

This – I would submit – is a bit of a walk-back, because here Musinga (P) does become prescriptive about the form that the Amendment Bill should take, notwithstanding the IEBC. Now, realistically, it is hard to imagine how anyone might lump together 74 amendments into a single question, unless one takes the absolutely blatant route of listing out all the amendments and ending it with a single question: “Do you agree, yes/no?” What Musinga (P) seems to be saying here is that the referendum can be a single referendum, on a single Bill, but within that, the People should have a chance to vote on separate questions separately (this possibility of a multi-option referendum as solving the “Hobson’s Choice” at issue is indicated by Kiage JA, although he declines to make a finding on it, given that there is no Referendum Act in existence yet (Kiage JA, pg 179).

There is, however, a further issue that now arises. The Disposition notes that the High Court’s finding on multiple/single question referenda has been overruled by a 4-3 majority. The three in the minority are said to be Nambuye JA, Okwengu JA, and Kiage JA. I have referred to the views of Nambuye and Kiage JJA above, and Okwengu JA says that she agrees with Kiage JA.

Now, first of all, Tuiyott JA in his opinion does not return a finding on this issue: he says that there was no “live controversy” in the instant case, as the IEBC had not yet determined the manner and form in which it would frame the reference questions (paragraph 251). To start with, this already means that – even if we read Musinga (P)’s opinion as going against the Respondents, there is no majority for the proposition that multiple issues can be lumped together in a single bill.

Complicating matters further, Gatembu Kairu JA, in his consideration of the issue, has this to say:

…[the voter’s] choice, in my view, is rendered nugatory, inoperative, and inconsequential if the voter is called upon to vote on an omnibus draft Bill, that contains a raft of numerous, diverse, and unrelated proposed amendments to the Constitution, in this case over 70 proposals of amendments, that cut across the entire spectrum of the Constitution. (paragraph 156)

He then says:

The argument made for the respondents on the principle of unity of content or single subject matter, that Constitutional amendment through a referendum should deal with only one main issue, is one I find most attractive and persuasive. (paragraph 157)

And he then says:

Ultimately, it seems to me that to put a single binary question or multiple question is a matter to be informed by the nature of amendment proposed. It may well be that certain proposed amendments may require separate and distinct referendum questions to be framed. What in my view Article 257(10) of the Constitution does not contemplate is the submission to the people in a referendum of an omnibus amendment Bill, a hotchpot of an amendment Bill, such as the Constitution Amendment Bill in this case. (paragraph 159)

Gatembu Kairu JA thus seems to adopt a middle ground, where it is possible to have thematic amendment bills, where the several questions relate or are part of the same theme, thus leading to “unity of content”. It is easy to imagine examples: say, for instance, the restructuring of a regulatory body, where it wouldn’t make sense to treat the amendments separately. This determination, it is clear, must be on a case to case basis. Gatembu Kairu JA makes this explicit when, in his summary, he says that he is not overruling, but qualifying the High Court’s orders on this point by adding the phrase “subject to the nature of the amendment” (paragraph 197); but what is also clear is that Gatembu Kairu JA – along with the three other judges in the minority – is unambiguous on the point that the lumping together of unrelated amendments into an Omnibus Bill is not merely improper, but unconstitutional.

As, however, there is nothing in the overall Disposition on this, we will have to see what the future holds.

Public Participation

The final issue that I want to consider in this post is the scope of public participation under Article 257. Public participation as a constitutional value is one of the outstanding features of the Kenyan Constitution, explicitly set out under Article 10, and subject to interpretation in a number of judgments such as Kiambu County Government v Robert N. Gakuru. Public participation under Kenyan Constitutional law has both procedural and substantive elements: transparency, adequate time, accessibility, and so on.

The requirements of public participation are somewhat challenging to articulate in the abstract, and are therefore best understood through application. In the majority judgments, the following aspects come through: (a) that copies of the Amendment Bill were posted online only in English, despite Kiswhaili being both the national and an official language (Musinga (P), paragraph 333); that there was no indication that civic education about the amendments had been undertaken (Musinga (P), paragraph 335; Nambuye JA, paragraph 84; Okwengu JA, paragraphs 122 – 128;); that the time gap between when the Bill was published in local newspapers and its approval in County Assemblies, as well as at other stages of the process, was much too short to allow for any reasonable public participation; (Musinga (P), paragraph 339; Kiage JA, pgs 135 – 137).

It is further my position that, when a bill is limited to a single subject, it is easier for the public to more fully understand the impact of the enactment. It also prevents fraud upon the people by minimizing the possibility of promoters of the amendment hiding harmful proposals in the midst complex multi-subject measures that the common man might not be able to grasp and understand.

Importantly, a majority of the bench also holds that the burden of demonstrating public participation lies upon the State, as – in accordance with the law of evidence – it has the requisite information on that point. To this I would only add: to the extent that public participation is a constitutional value under Article 10, the argument that an amendment process (for example) is not constitutionally complete until public participation has been affirmatively demonstrated, is a powerful one. Beyond the law of evidence, thus, there is a constitutional reason why the burden of proof should be upon the State.

There is, however, something of a split in the bench when it comes to the stages at which this obligation exists, and the intensity to which it exists. This split reveals something of an internal tension within Article 257. On the one hand – as almost all the Justices note – public participation is particularly vital especially in the context of Article 257, given that it is an instance of direct democracy; on the other hand, given that Article 257 is meant to be initiated by the People, ordinary people (small-p) will invariably lack the resources that will allow them to conduct public participation at a national scale, at the stage of collection of signatures. This tension is articulated by Kiage J, when he notes that:

I must express my unease, brought out quite poignantly by Mr. Karori in his address to us, that it would be to place an onerous, and well-nigh impossible burden on promoters of a constitutional amendment by popular initiative, to expect them to go the whole hog captured in the above excerpt before they can properly collect the signatures. It seems to me, with respect, that the requirements stated by the judges must be present before or as at the time the voters finally make their decision on the proposed amendments at the referendum failing which the mandatory requirement for public participation will not have been met, with fatal consequences to the proposed amendment. I am of the view, however, that the elements of public participation stated must per force be understood to form a spectrum or a continuum which is incremental in character. (pg 130; see also Tuiyott JA, paragraph 209).

Similarly, Gatembu Kairu JA notes that:

For it might appear that by one hand, Wanjiku is given a vehicle by the Constitution to propose amendments to the Constitution, but the vehicle is then taken away by the other hand, by making it impossible for Wanjiku to drive that vehicle by reason of want of resources. (paragraph 88)

Gatembu Kairu JA, however, proposes a different solution. While Kiage J would simply hold that the requirement of public participation – in all its rigour – applies at the final (referendum) stage, Gatembu Kairu JA holds that in an individual case, it would be “open” to Wanjiku to claim a lack of resources (a claim that would not be open to the IEBC, when it gets involved in the process).

I respectfully submit that Gatembu Kairu JA is correct. It is true that the burden of public participation is one that should be borne by the State – or State organs – and not by wanjiku. However, this is where we come right back to the elegant design of Article 257, which accommodates the involvement of the People, of County Assemblies, of Parliament, and of the IEBC. Consequently, would it not make sense for the requirement of public participation – in all its rigour – to be applicable corresponding to the stage at which State organs get involved? This, in my respectful submission, would resolve the tension within Article 257.

The structure and design of Article 257 gives rise to a range of fascinating questions, many of which came to be answered by the Court of Appeal. These include the difference between top-down and bottom-up amendment, with the Court affirming that, viewed in its history and context, Article 257 precludes an executive-driven process. These also include the manner in which a popular initiative may be crystallised into a referendum question (or questions), with a clear majority of the Court holding that “omnibus Bills” that have no “unity of content” are outside the scope of Article 257. And these further include the extent to which the obligation of public participation applies to a public-initiated directly democratic process. Here, the Court affirms that it is clear that in this case – given that it was executive-driven in any event – the obligation has not been discharged; it remains open, however, what standards will apply when – in the hypothetical future – a 257 process is genuinely wanjiku-driven.

I think that some of the ambiguities and tensions in the judgment(s) reflect the challenges of interpreting what is, undoubtedly, a complex provision, and also the fact that these questions are coming up for the determination for the first time, in a relatively young Constitution. Faced with these challenges, the judges of the Court of Appeal, in my respectful submission, have done important, pioneering work (as have the judges in the High Court). It now remains to be seen how future benches take some of these principles forward, and build on them.

We write this letter as concerned African intellectuals on the continent and in the Diaspora. Many of us have dedicated our professional lives to understanding the causes and potential solutions to intra-and inter-African conflicts. We are appalled and dismayed by the steadily deteriorating situation in Ethiopia – so tragically illustrative of the continued lack of uptake of the abundant commentary produced by African intellectuals on how to resolve African conflicts.

We are deeply disturbed by the ongoing civil war in Ethiopia — which some refer to as a regionalized internal conflict, given Eritrea’s role within it. We note with dismay that protagonists to the conflict no longer include just the Tigray Defence Force (TDF) and the Ethiopian National Defence Force (ENDF) together with the special forces from Amhara, but now also include the Oromo Liberation Army on one side, and on the other side, special forces from several other regions, as well as numerous conscripts. We note too, the advance of the TDF into Amhara and Afar regions, which, despite the TDF’s claims to be seeking to enable humanitarian and other supply access chains, is contributing to the expansion of the conflict across Ethiopia.

Ethiopia is of continental significance, not only for its record of successful resistance to European imperial expansionism, but also for its being the home of the African Union (AU), our inter-governmental institution whose lack of effective engagement on the situation in Ethiopia we also find deplorable. The AU, its member states — particularly Ethiopia’s neighbouring states — must not allow Ethiopia to dictate the terms of their engagement in seeking resolution to this conflict.

We condemn the fact that the conflict is affecting ever-increasing numbers of civilians — the deaths, the sexual violence, the refugee outflows, the documented hunger and unmet medical and psychosocial needs, the reports of widespread and targeted illegal detentions (especially because of ethnicity), the enforced disappearances and torture in captivity. We also condemn the destruction of hard-earned physical and metaphysical infrastructure across Tigray, as well as other regions of Ethiopia, including institutions of higher learning, houses of worship and cultural heritage. Ethiopia and its peoples have suffered enough. Ethiopia cannot afford any further destruction.

All Ethiopians must recognize that a political rather than military solution is what is now called for, regardless of the claims and counterclaims, legitimate and otherwise, as to how Ethiopia has come to this place. Retributive justice, including the seizure and counter-seizures of contested land, and the detention of family members of recently outlawed political groups heightens tensions, leading to generational cycles of violence.

Ethiopia is on the precipice; we must take action. We therefore call on:

• The Ethiopian government and the national regional government of Tigray to respond positively to the repeated calls for political dialogue, including with the affected and implicated groups in the Amhara and Oromia regions;
• The Ethiopian government and the national regional government of Tigray to make positive use, in such dialogue, of the numerous African intellectuals who have put forward their views on pathways out of conflict;
• Neighbouring countries to exercise maximum pressure on the Ethiopian government and the national regional government of Tigray to—under the framework of the Intergovernmental Authority on Development (IGAD) and the AU—submit to external mediation of this conflict;
• The IGAD and the AU to proactively take up their mandates with respect to providing mediation for the protagonists to this conflict—including providing all possible political support to the soon to be announced AU Special Envoy for the Horn;
• The rest of the international community to continue to support such IGAD and AU action with the carrots and sticks needed to get the protagonists and all other stakeholders to the table, keep them there and determine a political solution leading to more broad-based national dialogue on the future of the Ethiopian state.

We urge all Ethiopian leaders and civic groups to demonstrate the magnanimity and vision needed to reconstruct a country that has suffered far too long already. We call on any negotiated political settlement to include a process of public accountability for mass atrocities committed across Ethiopia. The history of the African state attests to the efficacy of an alternate path committed to truth, peace, justice and reconciliation.

We stand in solidarity with all Ethiopian intellectuals in-country who want to speak out against the war but feel unable to do so due to fear of retaliation.

Signed:

Souleymane Bachir Diagne
Professor of French and Philosophy 
Director of the Institute of African Studies
Columbia University

Mamadou Diouf
Leitner Family Professor of African Studies
Department of Middle Eastern, South Asian and African Studies
Columbia University

Elleni Centime Zeleke
Assistant Professor 
Department of Middle Eastern, South Asian and African Studies
Columbia University

Godwin Murunga
Executive Secretary
Council for the Development of Social Science Research in Africa (CODESRIA)

Boubacar Boris Diop
Award winning author of Murambi, The Book of Bones and many other novels, essays and journalistic works

Achille Mbembe
Research Professor in History and Politics
Wits Institute for Social and Economic Research
University of the Witwatersrand

Jimi O Adesina
Professor and Chair in Social Policy
College of Graduate Studies 
University of South Africa

Ato Sekyi-Otu 
Professor Emeritus
Department of Social Science and the Graduate Programme in Social and Political Thought
York University

Felwine Sarr 
Anne-Marie Bryan Distinguished Professor of Romance Studies
Duke University

Imraan Coovadia
Writer, essayist and novelist 
Director of the creative writing programme
University of Cape Town

Koulsy Lamko 
Chadian playwright, poet, novelist and university lecturer

Willy Mutunga 
Former Chief Justice
Supreme Court of Kenya

Maina Kiai 
Former Chair
Kenya National Human Rights Commission 
Former United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association

Rashida Manjoo
Professor Emeritus
Department of Public Law,
University of Cape Town 
Former UN Special Rapporteur on violence against women

Siba N Grovogui 
Professor of international relations theory and law
Africana Studies and Research Centre
Cornell University

Nadia Nurhussein 
Associate Professor of English and Africana Studies
Johns Hopkins University

Martha Kuwee Kumsa
Professor of Social Work
Wilfrid Laurier University

Mekonnen Firew Ayano 
Associate Professor
SUNY Buffalo Law School

Dagmawi Woubshet
Ahuja Family Presidential Associate Professor of English
University of Pennsylvania

Awet T Weldemichael
Professor and Queen’s National Scholar
Queen’s University

Abadir Ibrahim
Ethiopian Human Rights Activist and Lawyer

Michael Woldemariam
Associate Professor of International Relations and Political Science
Director of the African Studies Center
Boston University

Safia Aidid
Arts and Science Postdoctoral Fellow
Department of History
University of Toronto

Abdoulaye Bathily
Professor of History
University Cheikh Anta Diop

David Ndii
Kenyan Economist

Siphokazi Magadla
Senior Lecturer in Political and International Studies
Rhodes University

Fred Hendricks
Emeritus Professor
Faculty of Humanities
Rhodes University

Pablo Idahosa
Professor of African Studies and International Development Studies
York University

Ibrahim Abdullah
Department of History and African Studies
Fourah Bay College
University of Sierra Leone

Seye Abimbola
Senior Lecturer
School of Public Health
University of Sydney

Makau Mutua
SUNY Distinguished Professor
SUNY Buffalo Law School

Salim Vally
Professor, Faculty of Education
University of Johannesburg
Director, Centre for Education Rights and Transformation

Muthoni Wanyeki
Kenya Political Scientist

Dominic Brown
Activist and Economic Justice Programme Manager
Alternative Information and Documentation Centre

Michael Neocosmos
Emeritus Professor in Humanities
Rhodes University

Zubairu Wai
Associate Professor
Department of Political Science and Department of Global Development Studies
University of Toronto

Alden Young
Assistant Professor
African American Studies
University of California

Benjamin Talton
Professor of History
Department of History
Temple University

G Ugo Nwokeji
Associate Professor of African History and African Diaspora Studies
Department of African-American Studies
University of California

Lionel Zevounou
Associate Professor of Public Law
University of Paris Nanterre

Amy Niang
Professeur associé
L’Université Mohammed VI Polytechnique

Sean Jacobs
Associate Professor of international Affairs
Julien J Studley Graduate Programmes in International Affairs
The New School
Founder and Editor of Africa is a Country

Abosede George
Associate Professor of African History
Barnard College

Dr Abdourahmane Seck
Senior Lecturer
Université Gaston Berger

Nimi Hoffmann
Lecturer, Centre for International Education
University of Sussex
Research AssociateCentre for International Teacher Education
Cape Peninsula University of Technology

Maria Paula Meneses
Vice-Presidente, Conselho Científico do CES
Centro de Estudos Sociais
Universidade de Coimbra

Ibrahima Drame
Director of Education
Henry George School of Social Science

Cesaltina Abreu
Co-Director
Laboratory of Social Sciences and Humanities
Angolan Catholic University

Lina Benabdallah
Assistant Professor of Politics
Wake Forest University

Oumar Ba
Assistant Professor of International Relations
Department of Government
Cornell University

Samar Al-Bulushi
Assistant Professor
Department of Anthropology
University of California

Nisrin Elamin
Assistant Professor of International Studies
Bryn Mawr College

Marie-Jolie Rwigema
Incoming Assistant Professor
Applied Human Sciences
Concordia University

Eddie Cottle
Postdoctoral Fellow
Society, Work and Politics Institute
University of the Witwatersrand

Amira Ahmed
School of Humanities and Social Science
American University of Cairo

Convenors’ Forum of The C19 People’s Coalition

Ibrahim Abdullah
Department of History and African Studies
Fourah Bay College
University of Sierra Leone

Jok Madut Jok
Professor of Anthropology
Maxwell School of Citizenship and Public Affairs
Syracuse University

In the recent past, Kenyans have been bombarded with a string of proposed, seemingly petty, laws and regulations targeted at the agricultural sector. Kenyans are bewildered and asking the right questions; what purpose do these bills serve? Whose interests are they securing? Surely not those of small-scale farmers? And how are they connected to the trade deals Kenya recently signed with the US and the UK?

Kenyans first heard of a proposed Livestock Act (2021) that would provide a framework for the regulation and development of the livestock sector at the beginning of June 2021. The provisions relating to beekeeping gathered unusual attention because of the frivolous and punitive regulations they would have imposed on farmers. The bill sought to register beekeepers, and required farmers to, among other things, keep their bees in registered and branded hives prescribed by county authorities. Only a public uproar caused Amos Kimunya- the Leader of Majority in the National Assembly – to shelve plans to table the bill before Parliament.

Several provisions of the bill would have locked out many Kenyans, especially small-scale farmers, from beekeeping. FarmBiz Africa reports that Kenya produces approximately 7,300 tonnes of honey every year against an estimated potential of 100,000 tonnes. A litre of honey is five times more expensive than a litre of oil in Kenya. We need to nurture this sector, not stifle it.

But this was not the first time seemingly frivolous laws relating to the agricultural sector were being proposed or made into law. The Irish Potatoes Regulations were quietly passed into law and gazetted toward the end of 2019, barely attracting public attention that was at the time firmly fixated on BBI shenanigans. The Irish potato regulations that, for instance, sought to register growers, transporters, traders, collection centres and warehouses, only came to the attention of most Kenyans when the Nyandarua County Government issued notice of a sensitization exercise on the new regulations.

Earlier in March 2019, the Kenya Dairy Board was forced to suspend the Draft Dairy Regulations (2019) following massive pressure from the public and farmers. The regressive and repressive dairy regulations were rejected by farmers on grounds such as their attempt to prohibit farmers from selling raw milk to neighbours. This was a clear attempt by those who control the dairy industry to show who is boss; ‘’If you don’t sell to us, your produce is illegal’’. The exploitative milk processors were at the time buying a litre of milk from the farmers at 26 shillings, way lower than the 40 shillings the farmers got from selling that same quantity of milk to neighbours at farm gate prices. The Dairy Industry regulations were finally re-introduced and passed in 2021 without some of the controversial sections that had caused that initial uproar, especially those forbidding small-scale farmers from selling milk to their neighbours and other consumers. The new regulations now set a minimum price for a litre of milk, to be reviewed every six months based on small-scale farmers’ demands.

What mischief is the political elite up to through this endless string of frivolous laws?

Kenya is often portrayed in the news as a developing African nation that has its affairs in order. In the eyes of many, it is a vibrant middle-income country with a young and educated population, with agriculture as its mainstay, and blessed with that African beauty that draws tourists year in year out. The reality, however, is that Kenya is the quintessential neo-colonial state, firmly within the orbit of global finance capital. It is debt-ridden after eight years of the UhuRuto administration that has been characterised by ineptitude and is anchored in an economic philosophy of beg, borrow and steal. With its economy doing poorly and unemployment already high, the COVID-19 pandemic has only exacerbated the situation by disrupting livelihoods while adding to the numbers of those unable to find work. Salaries have been delayed in several government departments this year, and the country is basically floating on economic guesswork. Retired civil servants, military officers and politicians cannot get their pensions. Existence for many has been reduced to a daily struggle for survival.

The facade is held together by a calculatingly ruthless state machinery that is very adept at shaping and controlling narratives through sleek public relations campaigns, paid hashtags on social media and intimidation of legacy media. Its security organs—the conveyor belts of its monopoly of violence—have no qualms scuttling peoples’ organising through dispersing protests, arresting activists, or dispatching citizens to impromptu extrajudicial meetings with their maker.

Kenya is the quintessential neo-colonial state, firmly within the orbit of global finance capital.

But what is Kenya? Kenya started off as an economic venture. The Imperial British East African Company was set up and granted a charter in 1888 to run this venture with a view to making profit. The profit turned out to be so good that the British crown wanted full control of the cake. Actually, the whole cake—plus the box. Britain duly declared Kenya a protectorate in 1895, and a colony on July 23rd 1920.

Because of its favourable weather, large swathes of fertile land and strategic location, the British colonial empire made Kenya a settler state. Land was forcefully alienated from the indigenous owners and given to white settlers through a series of punitive measures and laws such as the Crown Land Act. The White Highlands were the jewel of the Kenya colony, and the (in)famous Lunatic Express was soon under construction to ease extraction from the hinterland and on to the ports of Britain—and Europe. The railway project was completed despite fierce resistance by numerous Africans—most notably the Nandi resistance led by Koitalel Arap Samoei.

Thereafter, the Kipande tax, hut or pole tax and the breast tax were introduced to force the African into the cash economy through work, and a system of forced labour was imposed on those unable to pay tax. Yes, African men were taxed for having more than one wife. And for every other female in their household. The colonial enterprise could now concentrate on its main objective, economic extraction.

Kenya’s war of independence was waged for land and freedom, not for bourgeois ideas. The Kenya Land and Freedom Army, popularly known as Mau Mau, went into the forests to fight for freedom and to get back their land. As independence loomed, the land issue remained thorny, emotive and close to the hearts of the people. Most African people are tied to the land, their umbilical cords buried in it at birth.

Independence in 1963 failed to address the land question. And it remains a thorny issue to date. No one actually fought for the independence project, though the collaborators wanted “independence” in order to replace the colonialists in the various spaces they occupied— ownership of prime property, lucrative jobs, club memberships, living in leafy neighbourhoods with servants, et cetera. Land redistribution schemes were hijacked and vast swathes of land shared out among Jomo Kenyatta and his coterie, while the petty bourgeois were allowed to acquire some relatively smaller parcels to not only create a semblance of equality but also fabricate a belief among the struggling masses that it was somehow possible to climb up the social and economic ladder, that hard work paid.

Kenya’s war of independence was waged for land and freedom, not for bourgeois ideas.

Many of the Mau Mau and their children were never compensated or resettled by the independence government. They were never allowed to access or control the land they had fought for in such brave fashion. Most of the fertile and highly productive land remained in the hands of this tiny clique of Africans, mostly former colonial collaborators, and those settlers who chose to stay on after “independence”. These are the people who still own the big tracts of land in Kenya, together with an ensemble of crooks and tenderpreneurs.

Control over the land and its abundant resources gives them the economic power that most of them use to purchase political power that they then use to consolidate their economic power in unscrupulous fashion. Others prefer to remain anonymous, but wield considerable power behind the scenes, flexing their economic muscles every once in a while to keep the political landscape in tune with their interests and those of their masters across the ocean—those same masters of misery who just a few decades ago perpetrated the exploitation and subjugation that Mau Mau and other liberation heroes sought to confine to the dustbin of history.

Enter the Kenya-US Free Trade Agreement

In February 2020, President Uhuru Kenyatta met US President Donald Trump in Washington DC to push forward a free trade agreement (FTA) between the two nations. In July 2020, the two countries began negotiations on the FTA, with Kenya especially going against the regional protocols and collective trade deals it had ratified via the East African Community (EAC), the Common Market for East and Southern Africa (COMESA) and the African Continental Free Trade Area (AfCFTA). Despite the uproar from the region, Kenya went full steam ahead with its plans. (Upon conclusion, Kenya will become the second African country to sign an FTA with the United States, after Morocco in 2006.) The voices of Kenyans who could see that the deal only served to entrench extractive and exclusionary colonial patterns of economics were either ignored or drowned out by the public relations campaign that followed. The ruling class had again smothered voices from below.

Similarly, in early 2021 Kenya and the UK, Kenya’s former colonial masters, signed a trade deal that gives British companies that have been extracting since the colonial epoch a 25-year tax holiday despite opposition from small-scale farmers and Kenyans in general. The people had no say about it.

According to the Office of the United States Trade Representative, Kenya and the United States traded US$1.1 billion worth of goods in total (two-way) trade during 2019, with the US importing goods worth US$667 million from Kenya. In the same year, the US imported edible fruits and nuts worth US$55 million (KSh5.5 billion) from Kenya.

A joint statement released on July 8 2020 to signify the start of negotiations partly states that ‘’Increasing and sustaining export performance to the United States requires a trade arrangement that is predictable and guarantees preferential market access for Kenyan products’’.

But whose products? Who has the capital and technological know-how to meet the stringent standards set out in such deals and reinforced by ridiculous legislation like those highlighted at the beginning of this article? Certainly not the small-scale farmers who account for over 70 per cent of Kenya’s agricultural production. It is the class that ensures political power is subservient to its economic power. The Kenya-US Free Trade Agreement is an economic partnership of the bourgeoisie. It prostrates our collective existence as an untapped market, and is aimed at extracting resources for the insatiable consumerism of America. Locally, it only serves to entrench the hegemony of the elite.

There is nothing new under the sun

The neo-colonial state is full of wonders and oxymorons. It has adapted and perfected colonial tools of political and economic domination for continued extraction. It has equally been moulded in the punitive nature of empire, crushing those who stand in the path of primitive accumulation of wealth, and especially land.

The capitalist system behind it continues to thrive using slave labour as it has done for the last four centuries, this time through wages that leave workers struggling to put a single meal on the table, let alone pay a myriad of bills.

The Kenyan elite have perfected use of the state and its organs to meet their personal interests, negating the common wants and demands of the motherland. They have further perfected the art of moulding law, culture, ideology, religion, et cetera to serve and defend their economic interests.

Kenya and the UK, Kenya’s former colonial masters, signed a trade deal that gives British companies that have been extracting since the colonial epoch a 25-year tax holiday.

What is the difference between last year’s eviction of Korogocho residents who possessed valid land ownership documents and the land alienation perpetrated by the British colonial empire of the early 20th Century? What is the difference between the colonial laws that limited what crops black African farmers could grow, and these new laws that today aim to criminalise our people, their daily work, their produce and means of sustenance?

The difference is the same.

Although the basic structure of the exploitative system remains the same, today’s agents of neo-colonialism do not blatantly criminalise production. They only restrict access to the large and lucrative international trade in select goods for small-scale farmers and peasant producers. That is why the state has put minimal effort into enabling the millions of existing small-scale producers to increase production, carry out local value addition through their cooperatives, or meet the standards demanded by external markets. It is instead focussed on criminalising their toil, sweat and produce. With an abundance of young jobless Kenyans, labour remains cheap. The seemingly frivolous laws serve this purpose.

There is nothing new under the sun.